MERRICK & DENARD (No.3)
[2021] FCCA 478
•12 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MERRICK & DENARD (No.3) | [2021] FCCA 478 |
| Catchwords: FAMILY LAW – Property – pool – short relationship – expert valuation evidence – estimate of business valuation by the applicant husband – business valuation agreed – where the parties gave their own estimates of value in respect of certain assets – the manner in which the Court should treat “lay opinions” – the “opinion rule” – “admissions” against interest – a consideration of a “waiver of the rules of evidence” – “agreement as to facts” – allegations of “sham” transaction – allegation that assets were dissipated – consideration of notional “add backs” – contributions – future needs – justice and equity. FAMILY LAW – Spousal maintenance – application for discharge of arrears – no “just cause” established – prospective order sought – entitlement not established. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 74, 75(2), 79, 81, 90SM, 90SF, 90SI, 90ST, 117 |
| Cases cited: Bevan & Bevan (1995) FLC 92-600 Briginshaw v Briginshaw (1938) 60 CLR 336 Carlson v Bowden (2008) 40 Fam LR 327 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 Frederick v Frederick (2019) 60 Fam LR 1 Hett and Seer [2019] FamCA 362 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314 In the marriage of Chapman & Palmer (1978) FLC 90-510 in the Marriage of Hall (1979) 5 Fam LR 609 In the Marriage of Kowaliw (1981) FLC 91-092 In the Marriage of Lutzke (1979) 5 Fam LR 553 In the Marriage of Townsend (1994) 18 Fam LR 505 In the Marriage of Vakil (1997) 138 FLR 88 Merrick & Denard (No.2) [2020] FCCA 2111 Lewis v Condon (2013) 85 NSWLR 99 Mathieson v Hamilton (2006) 201 FLR 28 National Westminster Bank plc v Jones [2001] 1 BCLC 98 Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (Cth) (1995) 62 FCR 289 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Stanford v Stanford (2012) 247 CLR 108 Su v Chang (1999) 25 Fam LR 558 Trevi & Trevi [2018] FamCAFC 173 Vass v Vass (2015) 53 Fam LR 373 White v Overland [2001] FCA 1333 Wreford v Caley (2010) 238 FLR 88 |
| Applicant: | MR MERRICK |
| Respondent: | MS DENARD |
| File Number: | BRC 11879 of 2017 |
| Judgment of: | Judge Howard |
| Hearing dates: | 3, 4 and 5 August 2020, 12 February 2021 |
| Date of Last Submission: | 22 February 2021 |
| Delivered at: | Brisbane |
| Delivered on: | 12 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | N R Barbi Solicitors |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Barry Nilsson Lawyers |
ORDERS
That by no later than 4:00pm on 26 March 2021, the Applicant shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to the Respondent and a copy of the same to the Court at [email protected].
That by no later than 4:00pm on 1 April 2021, the Respondent shall provide any reply to the proposed Final Order to the Applicant and a copy of the same to the Court at [email protected].
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 15 April 2021.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph 3 above herein – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Merrick & Denard (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11879 of 2017
| MR MERRICK |
Applicant
And
| MS DENARD |
Respondent
REASONS FOR JUDGMENT
Background
The applicant father was born in Country Q in 1981. The respondent mother was born in Australia in 1984.
The father migrated to Australia with his family when he was only five years old.
The parties commenced living in a de-facto relationship somewhere between May and August 2014. They lived together originally in rented accommodation in R Street, Suburb S, Brisbane. The parties never married but in these Reasons for Judgment (for convenience) I have (at times) referred to them as the “husband” and wife”.
The parties separated on 21 May 2017. The length of the cohabitation was approximately three years.
The parties have two young children, X born in 2015 and Y born in 2016.
The parties have been unable to agree in relation to the parenting arrangements for their children. Further, the parties have not been able to reach an agreement in relation to property settlement.
The trial was conducted over three days – 3, 4 and 5 August 2020. Written submissions were required. Mr Jordan, counsel on behalf the respondent (Ms Denard) filed a written submission on 21 August 2020. Mr Galloway (counsel on behalf the applicant, Mr Merrick) filed a written submission on 4 September 2020. Mr Jordan subsequently filed a submission by way of reply on 11 September 2020. Judgment was reserved. In early 2021, the Court re-listed the matter in order to obtain clarification from the parties in relation to certain aspects of the property pool – primarily in relation to the appropriate treatment of the debt to P Bank. On 12 February 2021, Mr Galloway of counsel again appeared for the applicant and Mr Jordan of counsel appeared for the respondent. Mr Galloway confirmed that the applicant's contention that his current business interests should be included in the property pool in the sum of $308,373 was a figure which was net of the relevant P Bank debt ($198,000). A submission was sought from Mr Jordan of counsel concerning the respondent's contention that the husband's current business interests should be valued at $451,000 – in accordance with a written valuation of Mr T from O Chartered Accountants. On 12 February 2021 – once it was confirmed on behalf of the applicant that the figure of $308,373 was net of the P Bank debt – Mr Jordan informed the Court (on behalf the respondent, Ms Denard) that the respondent would then agree to the figure of $308,373 being included in the property pool as the value of the husband's current business interests. Effectively, at that point, the parties had agreed on the amount to be included in the pool as the current value of the husband’s business interests. This was a sensible concession to make and the agreement in relation to that figure assisted the Court and provided the parties with more certainty concerning the structure of the property pool.
The Court then gave to the parties (on 12 February 2021) a short period of time to provide a brief further written submission in relation to the make-up of the property pool and their respective arguments concerning the property pool – including a submission as to contributions and future needs in the event that the Court accepted Mr Galloway's submission that there should only be one pool of property.
On 12 February 2021 it was also possible to for the parties to clarify one further (although relatively minor) uncertain aspect concerning the value of an item of property. It was clarified that the respondent (Ms Denard) would agree that the value of the engagement ring was $14,000 – as contended on behalf the applicant (Mr Merrick). The value of the diamond ring will therefore be included in the pool in the sum of $14,000 and the respondent noted that she wished to retain that engagement ring.
Mr Jordan of counsel provided a further written submission on 19 February 2021 and Mr Galloway of counsel responded on 22 February 2021.
Parenting
The children live primarily with the mother. They have done so since separation. The current parenting arrangement is in accordance with an order made by Her Honour Judge Turner on 6 July 2018. By that order the children spend time with the father each Tuesday and Thursday from 12 noon to 2:00p.m. The children also spend time with the father each alternate weekend from 4:00p.m Saturday to 4:00p.m Sunday. On the alternative Sunday the children spend time with the father during the day from 8:30a.m to 4:00p.m.
At Christmas time 2018 the parents were not able to agree on what time the children should spend with the father. The matter returned to Court and Her Honour Judge Spelleken made an order on 7 December 2018 whereby the children spent time with the father from 9:00a.m on 23 December 2018 until 4:00p.m on 24 December 2018. The Court also ordered that the father's time on Tuesday and Thursday be extended from 9:00a.m to 4:00p.m during the holiday period. The order is not noted to have been made by consent. It is apparent, therefore, that the Court was called upon to make a decision and the Court made a decision and made orders in the general terms, as outlined.
The matter first came into my docket in Court on 21 November 2019. On that day, the Court set the matter down for a final hearing for three days commencing 3 August 2020. Also, on 21 November 2019, the Court made an order (with the consent of the parties) that the children's time with the father be extended on a Tuesday and Thursday from 9:00a.m to 4:00p.m between 21 December 2019 and 19 January 2020. There was also time for the father from 23 December to 25 December 2019.
By way of final parenting orders the applicant father seeks an order for equal shared parental responsibility. The father also seeks, inter alia:-
“8. That until 1 January 2021, the children shall live with/spend time with the father from Saturday in each alternate week at 4:00 pm until Wednesday of the following week at 4:00 pm with such week to coincide with the weekend the children’s cousins spend with the paternal aunt.
9. From 1 January 2021, the children shall spend equal time with each parent with the father collecting the children from Monday after school or day care and for the children to spend that time with the father and the father to return the children to their day care or school on the following Monday or if it is a public holiday on the Tuesday with such week to coincide with the weekend the children’s cousins spend with the paternal aunt.”
From 1 January 2021 therefore the father seeks a week about arrangement with changeovers on Monday.
The father seeks other orders in relation to holidays and special occasions. The orders sought by the father in relation to parenting are contained in annexure A to the father's written submissions prepared by Mr Galloway of counsel. Those submissions were filed in the Court on 4 September 2020.
The mother seeks an order for sole parental responsibility in her favour. The mother seeks an order that the children live with her and spend time with the father on a gradually increasing basis. The orders sought by the mother are outlined in an annexure to the written submissions of Mr Jordan of counsel. Those submissions were filed on 21 August 2020.
The mother seeks orders that, during the school term, the children spend time with the father as follows:-
5. That the children shall spend time and communicate with the Father at times and dates, as agreed between the parties and failing agreement as follows:
a. From the date of these Orders until the commencement of the 2021 school year:
i. Each alternate weekend from 4pm Saturday to 4pm Sunday;
ii. Each Tuesday, from 12pm to 2pm;
iii. Each Thursday, from the conclusion of kindergarten/day-care (at 2:30pm) to 4:30pm. The Father will collect the children from kindergarten/day-care on a Thursday.
b. From the commencement of the 2021 school year to the commencement of 2022 school year:
i. each alternate weekend from 9am Saturday to 4pm Sunday;
ii. Each Wednesday, from the conclusion of school for X (which is approximately 3pm) and conclusion of kindergarten/day-care for Y (which will occur between 2:30pm and 3:30pm as it will be subject to change depending on kindergarten/day-care group) to 5:30pm. The Father will collect the children from school/kindergarten/day-care on a Wednesday.
c. From the commencement of the 2022 school year onwards:
i. In week one of a fortnightly cycle, each alternate weekend from 9am Saturday to before school/day-care Monday (or 8:30am).
ii. In week two of a fortnightly cycle, from after school/day-care (or 3pm) to 5:00pm on Wednesday.”
In relation to term time it will be noted that the mother seeks that the father's time increase on a graduated basis leading up to alternative weekends with the father from 9:00a.m Saturday to before school Monday (in week one) and, in week two, from after-school until 5:00pm on Wednesday. The mother seeks other orders in relation to school holidays and special occasions et cetera.
The mother therefore proposes an eventual amount of time for the father during school term of two nights per fortnight. When the mother filed her response on 30 November 2017 she had sought an order that the children spend time with the father on a graduated basis leading up to four nights per fortnight. At the time that the mother first filed her response she also sought an order for equal shared parental responsibility. The mother's views have changed.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) relates to Children. The objects of the Part and the principles underlying the Part are set out by the Legislature in section 60B. That section relevantly states:-
“s.60B
1. The objects of this Part are to ensure that the best interests of children are met by:
a. ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b. protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d. ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c. parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d. parents should agree about the future parenting of their children; and
e. children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).” (Emphasis added).
I have included section 60B(1)(a) and section 60B(2)(a) with special emphasis in the above quotation to draw to the attention of the parents in this case that they need to reflect thoughtfully on both the objects of the relevant legislation (the Family Law Act 1975) and the underlying principles relating to children and parenting orders.
By Section 60CA of the Act the Court, in deciding whether to make a particular parenting order, must regard the best interests of the child as the paramount consideration. The legislation then sets out how it is that a Court is to determine what is in the child's best interests.
Primary considerations
Section 60CC(2) of the Act
Section 60CC(2) provides:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The first stated primary consideration is the benefit to the children of having a meaningful relationship with both of their parents. The parties went to see Ms U. Ms U has provided two family reports. The first family report is annexed to an affidavit filed 19 April 2018. In that first family report Ms U noted the following interactions between the children and their parents. Ms U stated in paragraphs 7.1 and 7.2:-
“7.1 The interaction between the children and their mother was characterised by much warmth and familiarity. The boys frequently approached their mother for kisses, cuddles and affection. The children enjoy an obviously strong attachment to their mother. Both boys appeared happy and relaxed throughout the interaction. Ms Denard had lunch for them. Y copied his older brother, for example, in his choice of toys and activities. The children appear to have a very loving and close relationship with her (sic) mother.
7.2 The relationship between the children and their father was also characterised by familiarity and warmth. Mr Merrick got down on the ground to play with the children and was physically affectionate toward them. The children engaged very comfortably with their father. Mr Merrick managed the sometimes-competing needs of the children well. Mr Merrick is obviously a very "hands on" father.”
Ms U has noted two further important points relevant at this stage in paragraphs 8.1 and 8.2 of her first family report. In those paragraphs, Ms U has stated:-
“8.1 There is little doubt that despite the fact that these parents obviously love their children and their sons respond in kind, their relationship was significantly complicated by starting a family prior to ensuring they had a robust, mutually respectful and well-considered partnership. There are enormous fundamental differences between them. These differences ultimately lead to the demise of the relationship and now underpin the angst, discord and loss of trust that is evident today.
8.2 It is clear that Mr Merrick is extremely frustrated about the lack of time he spends with his children. These annoyance (sic) and Mr Merrick's perception that Ms Denard lacks empathy around his position/role as a father undoubtedly contributed to inappropriate behaviour, such as the Facebook posts ‘naming and shaming’ Ms Denard for limiting his time with the children. Such behaviour is not child-focused and possibly demonstrates a compromised ability to regulate emotions.” (Emphasis added).
I agree with these observations made by Ms U and stated in paragraphs 8.1 and 8.2 above. I have emphasised those parts that I find particularly relevant. The early arrival of children in this relationship – and the birth of the two children in quick succession – seems to have contributed to the relationship spiralling out of control.
The parents never seem to have been "on the same page" when it came to what they expected of the other once the children were born. The father appears to have embarked head long full-time into a very busy and (apparently) successful career as a businessman. He already, of course, was a businessman at the time the couple met. But, it appears, that he was working very hard after the boys were born and this meant that he did not have the time to be present to assist the mother to the extent that she wanted and to the extent that she felt she needed assistance.
Unfortunately for the two young boys the two most important adults in their lives – their father and their mother – did not, together, have the necessary skill-set to navigate what seemed to have been fairly straightforward stressors – namely, one partner (the father) with a busy professional practice and the other partner (the mother) struggling and somewhat overwhelmed with the arrival in quick succession of two babies. In any event, for whatever reason, these parents were not able to make a go of things together. Their two little boys obviously love and adore both the mother and the father. It is difficult to see a justifiable reason for the mother limiting the children's time with the father to the extent that she has since the separation of the parties. Some of Mr Merrick's conduct was inappropriate. I will consider those aspects in more detail shortly. But I do agree with the impression formed by Ms U and included in paragraph 8.2 above that it is the father's perception that the mother was blocking his time with the children which led to his inappropriate behaviour. This is not to say that the father's conduct is justifiable. It is not. Both parents are at fault. The sooner they realise that the sooner they might be able to get past their own selfish conduct and begin co-parenting in a civil way for the benefit of their two young children.
As noted, the parties separated on 20 May 2017. The first interviews with Ms U occurred on 21 February 2018. That led to the first family report dated 9 April 2018 which is annexed to the affidavit of Ms U filed 19 April 2018.
The family returned to see Ms U approximately two years after the first interviews. The second set of interviews took place on 28 January 2020. That led to the preparation of Ms U's second family report dated 13 February 2020 and annexed to the affidavit of Ms U filed 25 February 2020.
In the second family report the acrimonious relationship between the two parents is referred to again. The father felt that he had "been bled dry" as a result of an order for spousal maintenance in the amount of $1,800 per week. He also considered that the mother had dishonestly obtained child support on top of that amount. The father considered, further, that he had been met with "absolute resistance" by the mother in relation to his attempts to spend additional time with the boys (note paragraphs 2.4 and 2.5 of the second family report).
So far as the mother is concerned her view is that the father was ignoring the Court order in relation to the payment of spousal maintenance and had (apparently) unilaterally reduced the amount that he was willing to pay. The mother disputes the father's assertions relating to child support (note paragraphs 2.1 and 2.15 of the second family report).
These bitter and acrimonious disputes in relation to money have, to a very large extent, underpinned the attitude of these parents towards each other and have influenced the parents’ attitudes to the litigation relating to parenting. Both parents are at fault in this respect.
Much of the second family report involves the family report writer recounting a litany of complaints levelled by one parent against the other. This is pretty much the case from paragraph 2.43 through to paragraph 4.23.
For present purposes I am focusing on the relationship between the parents and the children. This was commented on again by Ms U in the second family report as follows:-
“6.1 The interaction between the children and their mother was again characterised by much warmth and familiarity. Ms Denard's parenting style is effortless and natural. X was very affectionate toward his mother. The boys wanted to play an imaginary game of 'cafe's' whereby they took orders for and make imaginary food. Ms Denard was affirming toward to boys, for example, she acknowledge their efforts when they were building a tower. The boys engaged with their mother in a very relaxed and comfortable manner. Consistent with my previous observation, the children appear to have a very loving and close relationship with their mother.
6.2 Y happily engaged in various play activities. Ms Denard seems quite comfortable juggling the (sometimes competing) needs of the boys.
6.3 The relationship between the children and their father was also characterised by familiarity and warmth. The boys were very enthusiastic about being with their father. As soon as X saw him, he ran into his arms. Mr Merrick and the boys were mutually affectionate toward each other. Mr Merrick asked the boys questions, including "how much TV are you watching". Mr Merrick told X 'you need to be mindful of how much TV you are watching’. They spoke about kindy and going to the beach. Mr Merrick asked the boys if they spent ''the whole time eating ice cream’. Mr Merrick also acknowledged the boys' efforts in building a tower with blocks.
6.4 The writer commented on what was happening on the day of interviews and that the boys would see their father tomorrow, to which Mr Merrick responded "Yes, I see you for two hours tomorrow". His tone suggested that he was making the point (to me) about how little time this is.
6.5 Ms V joined Mr Merrick and the boys after a period; the boys seemed very comfortable with her.”
Again, Ms U has noted that the relationship between the children and their mother (on the one hand) and the relationship between the children and their father (on the other hand) was – in both instances – characterised by familiarity and warmth. Notably, the boys “were very enthusiastic about being with their father”.
It is the conclusion of the Court that the boys already enjoy a meaningful relationship with both of their parents. My assessment of the father and the mother is that they both have a good deal to offer the children. There will be benefits to both children of continuing the meaningful relationship between the children and each parent.
Section 60CC(2)(b)
The observation made by Ms U in paragraph 7.3 of her second report is important in the context of this family law dispute between the parents of X and Y. I note from paragraph 7.3 of the second family report:-
Mr Merrick continues to be extremely frustrated about the lack of time he spends with his children. The dynamics that were present at the time of the initial family report continue to exist at present: Mr Merrick 's unhelpful and at times inappropriate behaviour appears to arise from his extreme and escalating frustration around what he perceives to be insufficient time with his children. Examples of this unhelpful behaviour include filming Ms Denard walking to the gate with the children; questioning Ms Denard about the time arrangement in an aggressive manner in the children's presence; and directly involving the children in these altercations (asking X to ask the mother why he can't see them for longer periods of time). Mr Merrick appears to lack insight into his own behaviour and its impact on Ms Denard, the co-parenting relationship and ultimately the children. As stated previously, such behaviour is not child-focused - and, consistently behaving in a manner that is not child-focused will negatively impact upon the nature of parenting; the children will inevitably experience this as suboptimal parenting. This is the critical link that Mr Merrick must make; one cannot declare that they are an "excellent" parent (and therefore the children should spend more time with them), when they routinely and purposefully engage in behaviours which negatively impact the children. There are several other examples of behaviour that is not at all child-focused. For example, telling X that his bellybutton will be cut open, is, in my view, a reaction to Mr Merrick's frustration about being excluded from direct discussions with the surgeon. Although this comment is a poorly disguised attempt at challenging Ms Denard, such behaviour ultimately (negatively) impacts on X.”
A similar dynamic therefore persists. The family report writer had initially observed this dynamic in February 2018 and, still, two years later, in January 2020, the same dynamics were present. Namely, the father's “unhelpful and at times inappropriate behaviour” which appears to the family report writer, "to arise from his extreme and escalating frustration about what he perceives to be insufficient time with the (children)."
The family report writer then goes on to provide examples of the unhelpful behaviour which she attributes to the father. The relevant evidence in relation to these matters will be considered shortly.
The mother's trial affidavit was filed on 14 July 2020. The trial affidavit (including annexures) comprises 689 pages. The body of the affidavit is contained in 123 pages comprising 724 paragraphs.
The mother provides evidence as to the parenting arrangements during the relationship. According to the mother, from the outset, the father does not appear to have done anything right. I note, by way of summary, the following:-
a)The mother was not happy with the father because he would not assist her getting up to the children at night (paragraph 33 of the mother's affidavit);
b)The mother says that she was criticised in relation to whether she attended breakfast at the Suburb E Cafe or whether she did not attend (paragraph 36);
c)The father would only really agree to meet the mother and the children during the day (in the park for example) and the father would (according to the mother) prefer to attend lunches and social engagements during his work day (paragraph 38);
d)The father arrived home sometime between 6:30pm and 7:30pm regularly and the children had already been fed, bathed and were ready for bed or perhaps were in bed asleep (paragraph 39);
e)The father did not assist sufficiently with the bedtime routine (paragraph 40); and
f)The father spent an undue amount of time away from the family (during the course of the relationship) – according to the mother (paragraph 45).
Much of what is detailed by the mother during that part of her evidence seems, unfortunately, to be issues that the mother can't let go of. To an objective observer what it indicates is that the father was spending a lot of time at work. Further, if the mother's evidence is correct, the father was not “pulling his weight” in terms of assisting the mother with caring for the two young babies. The parents have different perceptions as to what was expected of both of them and what their respective roles were. The father seems to have considered that his role was to go to work and bring in the income and the mother should do the rest. The mother expected more help at home. The mother's evidence is probably correct in relation to many of these issues – but all that really indicates is that the father was insensitive when it came to the mother's hopes, expectations and needs as a mother of two young babies. It certainly does not amount to "disentitling" conduct so far as the relationship now between the boys and the father is concerned.
The evidence of the young child with a plastic bag over his head (note paragraph 43 of the mother’s affidavit) is disturbing. At best for the father it would have to be described an exceptionally stupid thing to do – namely photograph the child and send the photograph to the mother. I presume, of course, that this was a one-off event. I also assume that the mother made it very clear to the father what her view was in relation to that situation. I note they were still together at that stage but the relationship was about to break down completely. I have not identified any physical risk issues to the children in the care of the father and I am not satisfied that it is an ongoing issue.
Post separation – it is apparent that the children who were then aged two years and one years old respectively, were living primarily with their mother. Both were apparently still being breastfed at that stage.
From paragraph 46 of her trial affidavit the mother than embarks upon a further list of complaints against the father and his insensitive conduct (paragraph 56). It is apparent that in the immediate aftermath of the separation that the parents were attempting to agree on arrangements. There is an interesting passage of evidence contained in paragraphs 52 and 53 by the mother. In those paragraphs the mother states:-
“52. On 11 September 2017, Mr Merrick had a visit with the children from 3pm to 5pm. Mr Merrick collected the children at 3pm as planned. I confirmed that he would return the children at 5pm and he replied, "yep". Following Mr Merrick's departure from my residence, the following text messages were exchanged between Mr Merrick and me
(a) 3:06pm text from Mr Merrick "Hi Ms Denard. I have an office photo at 5pm and id like the boys in it so 5:30pm. U cool with that?"
(b) 3:37pm text from me to Mr Merrick "Please have X and Y home by 5pm as agreed"
(c) 5:15pm text from me to Mr Merrick "Mr Merrick the kids were due home 15 minutes ago"
(d) 5:19pm text from Mr Merrick to me "Coming now''
( e) 5: 19pm text from Mr Merrick to me "5"
53. The children were returned home to me at 5:32pm. Shortly after the photo shoot I saw the children's images published in the “W” magazine as part of promotional material for C Group. Mr Merrick did not seek my opinion with respect to publishing our children's photos and this made me very uncomfortable.”
What is apparent is that there was a two-hour opportunity for the children to spend time with the father. The father sought to extend that time by 30 minutes. The mother would not agree. The children were supposed to (according to the mother) spend time with the father from 3:00pm until 5:00pm. The father returned the children home at 5:32pm. It's difficult to tell whether the mother is more critical of the father because he did not bring the children home as originally agreed at 5:00pm or because of the inclusion of the children's photograph in a promotional magazine. I must say, inclusion of photographs of children in promotional material would normally be an issue that parents would discuss together. The telling part of the evidence – especially from paragraph 52 – is the obvious intransigence of the mother in relation to any extension of time between the boys and the father. The father had not taken off with the boys overnight against expectations. He returned them home 30 minutes after the original agreed time – after, frankly, respectfully requesting that extension. In that regard, I note paragraph 52(a) of the mother's evidence where she says the father sent a text message:-
"3:06pm text from Mr Merrick
Hi Ms Denard. I have an office photo at 5:00pm and I'd like the boys in it, so 5:30pm. You cool with that?”
The mother includes the evidence as a criticism of the father. It proves the contrary, in my view. What would have been wrong with the mother sending a message back to the father along the lines of, “sure, Mr Merrick. See you with the boys at 5:30pm?”.
The mother's complaints about the father continue in her trial affidavit (paragraphs 54 and 55) with references to water bottles not being returned during visits and insufficient changing of nappies.
From paragraph 56 the mother gives evidence of parenting matters after the interim hearing that took place on 14 May 2018.
The mother complains in this part of the affidavit about the father returning the children late (prior to the making of Court orders) and the mother includes an email (from the father to the mother – 11 June 2018) where the father criticises the mother for offering him additional time with the boys – but during his work hours.
It is apparent from the mother's own affidavit that the father was very disappointed with the limited time that he was getting with the children. It is apparent from the evidence contained in paragraph number 67 of the mother’s affidavit that the father's view was the mother was acting unreasonably in restricting his time with the children and, further, the father's view was that it was the mother who was acting like a bully (note, for instance paragraph 67(t)(v)) – “you’re holding all the power”. The father’s view is that the mother’s conduct was going to rebound on her one day – “you will reap what you sow and that day is coming.” – (note paragraph 67(s)).
The father’s view that he was being drip fed time with his children is almost certainly correct. The problem for the father is that the matter went before the Court in May 2018 and a Judge of the Federal Circuit Court made certain orders (on 6 July 2018). The father had to comply with those orders. There was no point in the father being upset or disappointed or let down. To the extent that any extra time was to be spent with the boys after the making of the order on 6 July 2018 – it did need to be with the agreement of the mother. That is the reality in a separated family engaged in family law litigation. Further, to the extent that the father made any comments to the mother concerning adult issues in front of the children –this conduct is completely inappropriate. The father was almost "childish" in his approach, for instance, as outlined in paragraph 67(y) of the mother’s trial affidavit – where he was using the child X to engage in a three-way conversation with the mother about extending time for sleepovers for camping at Christmas and Easter. This was not appropriate conduct by the father. I accept the mother's evidence that it occurred. If any parent in the family law jurisdiction ever needed to attend a parenting orders program – it is the father in this case. The father was utterly frustrated. He remains so. This much was identified by Ms U. It is perfectly apparent to this Court from the evidence before it (of the father and the mother), and indeed the evidence of the family report writer – that the father has been utterly frustrated with the process and with the relatively small amount of time that he has been able to spend with the children since separation. But the process has to be followed. The matter has been before the Court. Judges of the Court made orders. In the absence of another agreement the parents (including the father) are stuck with the orders of the Court. There is no point involving the children (or attempting to involve the children) in trying to get the other parent (in this case the mother) to change their mind and agree to an extension of orders. Obviously, these are adult issues.
As I noted earlier the father was self-represented at the time of the interim hearing which took place in May 2018. The father appears only to have begun to obtain more insight in relation to his conduct following the engagement by the father of a lawyer. The firm of N R Barbie became the father's lawyers and were noted on the record of this Court on 12 June 2019.
The father was obviously bitterly disappointed with the outcome of the interim hearing insofar as it related not only to the time between the boys and himself, but also in relation to the amount of spousal maintenance that he was ordered to pay to the respondent. He was ordered to pay $1,800 per week. There was no point in the father being bitterly disappointed. Once a person embarks upon litigation there is no telling where it might end up. It is the father who filed the original application. The fact that Court orders were made and the father did not like those Court orders – is just the way it goes. The only option for a person in that situation is to appeal. As far as I'm aware, no Notice of Appeal was filed. I will address the spousal maintenance issue later in these reasons.
There is a gap in the mother's evidence. Her evidence about the father’s conduct is silent between the dates of February 2019 and May 2020. Perhaps this was a period of relative calm between this warring couple? I tend to think it must have been. The mother has been relentless in documenting her complaints concerning the father’s conduct. If there was poor conduct by the father between February 2019 and May 2020 (concerning parenting issues) I feel quite certain that the mother would have included that evidence in her trial affidavit.
In paragraph 7.6 of Ms U's second report she criticises the father for being impatient. Ms U states:-
“7.6. Mr Merrick has had little regard for the recommendations already provided and little regard for some of the orders that have been made. He is almost exclusively focussed on the time he does not spend with his children. To date, orders have been made in line with recommendations around what is in the children's best interest. Nonetheless, Mr Merrick is dissatisfied. On this basis, it appears he believes the recommendations are not in the children's best interest or he is disinterested in what is in the best interests of his children and more interested in pursuing what he deems to be fair for him. Further, he blames Ms Denard for being forced to endure what he perceives to be insufficient time with his children.”
The statement made by Ms U to the effect that “orders have been made in line with recommendations” is not correct. Ms U has misstated the facts and has used this erroneous view of the situation to criticise the father. At paragraph 8.8 of the first family report, Ms U stated, inter-alia:-
“…In terms of mid-week time, however, given Mr Merrick's work commitments, which certainly deserve consideration, the time proposed by the father from 7am to 8.30am each Monday, Wednesday and Friday as well as 12 to 2pm on Thursday should be accommodated if this is practicable. In terms of weekend time, similarly, Mr Merrick's work commitments ought to be considered. With increased time during the week, it may be that 9am to 3pm on alternate Sundays will be well tolerated by the boys. Such an arrangement would mean the boys are seeing their father four or five days each week. They would continue to develop a close relationship with him.”
In week one, Ms U recommended that the children would see the father on four days (Monday, Wednesday, Thursday and Friday) for a total period of time of 6 and a half hours. In week two, Ms U recommended that the children would spend time with the father spread over five days (Monday, Wednesday, Thursday, Friday and Sunday) for a total time of 12 and a half hours.
The matter was argued in Court and the outcome led to the children spending time with the father for four hours in week one, and in week two (from August 2018) from 4:00pm Saturday until 4:00pm Sunday.
It is the week one arrangement which has caused the father such considerable angst. My comments are not, in any way, meant as a criticism of the interim decision. That interim decision was decided based on the evidence and the submissions then before the Court. The father was self-represented. Ms Pendergast of counsel appeared on behalf of the mother.
The point that I'm making at this stage is that it is not correct for Ms U to say that orders had been made “in line with recommendations”. Having heard each parent give evidence in the witness box and having had the opportunity to consider the totality of the evidence in this case the view that I have formed and which I will continue to expand upon in these reasons – is that four hours between the children and the father in one week is demonstrably too low and not in the children's best interests. The fact that the mother has held out for so long against any increase in that time is reprehensible.
The mother includes in paragraph 71 of her trial affidavit a series of text messages sent by the father in June 2020. The father was keen to see if the mother would agree to an increase in time in week one. In particular the father obviously wanted to spend time on Wednesday 24 June with the boys between 9:00am and 4:00pm. The father sent a text message on 22 June 2020 with an obvious typographical error. He included the word "buyers” instead of the word “boys”. The father sent another text correcting that error. The evidence in paragraph 71 reads as follows:-
“71. After Court on 11 May 2020 and in particular in the couple of weeks leading up to our filing of trial material on 13 July 2020, these requests have been persistent and harassing. An example of these requests are below:
(a) On 22 June 2020, Mr Merrick sent me a text message requesting additional time with the children:
Hi Ms Denard. I see the buyers for 4 hours this week. This is not enough time to have a reasonable relationship. I'm proposing that this Wednesday I have them from 9am to 4pm. Please advise. Cheers. Mr Merrick.
(b) X attends the kindergarten/school readiness program on Wednesday 8:30am to 2:30pm that Mr Merrick has proposed additional time with the children. Mr Merrick is aware of the children's kindy schedule. Before replying, I received another request:
Hi Ms Denard, The boys only have 4 hours with me this week. This isn't enough time to have s meaningful relationship. I'm proposing this Wednesday I could have them from 9am till 4pm. Pls advise. Cheers.
(c) On 23 June 2020, Mr Merrick sent me a text message requesting additional time:
Hi Ms Denard. I didn't hear from you yesterday. I see the boys for 4 hours this week. This is not enough time to have a reasonable and meaningful relationship. I'm proposing that this Wednesday I have them from 9am - 4pm. Please advise. Cheers.”
The mother puts forward this evidence as examples of requests for an increase in time on one particular week. The mother says that the requests by the father were “persistent and harassing”. The mother says this evidence is an example of repeated requests for an increase in time.
The mother does not appear to have responded to the father’s text messages. The father's text messages are framed in a respectful manner. The father was not seeking to permanently include a Wednesday in each week from 9:00am to 4:00pm. This was a request for one particular day, namely Wednesday, 24 June 2020. I cannot see that it would have impacted young X unduly to miss the “kindergarten/school readiness program” on one day.
It is notable that this evidence of the father's request for time occurred in “week one” of the cycle – the week he was limited to 4 hours of time with the children.
It is apparent from the mother’s trial affidavit that she would not agree to the father's request concerning 24 June 2020.
The mother provided evidence in paragraph 73 of her trial affidavit concerning an exchange of text messages on 8 June 2020. Again, the mother was not willing to agree to any alteration. Paragraph 73 sums up the mother's attitude. The father was not able to have the children on the Tuesday between 12 noon and 2:00pm because of certain commitments. The father proposed three separate alternatives. The father proposed time on the Wednesday, Thursday or the Friday – to make up for the lost two hours on the Tuesday. In respect of the three alternatives proposed by the father – the mother had a reason on each occasion as to why that would not be suitable. Paragraph 73 of the mother's trial affidavit is as follows:-
“73. On 8 June 2020, Mr Merrick contacted me requesting to change a Tuesday visit with the children. Our text communication was as follows:
(a) Mr Merrick 1:01 pm - Hi Ms Denard. Are you ok with switching this Tuesday with Wednesday? 12-2pm. I have some commitments on Tuesday. Please advise. Mr Merrick
(b) Me 4:39pm - Hi Mr Merrick. We have plans out of Brisbane on Wednesday, so I won't be able to.
(c) Mr Merrick 4:41 pm - Ok. So on Thursday i can have them for 4 hours?
(d) Me 4:47pm - Thursday is X and Y's first day back at Kindy. Access on Thursday is from 2:30pm to 4:30pm. If it helps to shift the time tomorrow to the morning we could do that.
(e) Mr Merrick 5:36pm - What about Friday
(f) Me 8:51 pm - Sorry, we have commitments on Friday. Tuesday is our only available day.
(X attends Kindergarten each Friday and Mr Merrick is aware of this).
(g) Mr Merrick 8:52pm - Hehe. Ok. All goooood.”
I point out once again that the wording used in the text messages by the father is respectful towards the mother. Further, the mother’s responses are also drafted in a respectful manner. The evidence is put forward by the mother as a criticism of the father. But the father has not acted unreasonably. Surely the mother could have found two hours in that week to swap with the father to accommodate his Tuesday commitment? My view in this regard is confirmed by the evidence in paragraphs 74 and 75 of the mother's trial affidavit:-
“74. On Monday 29 June 2020, Mr Merrick sent me a text message:
Hi Ms Denard. I need to shuffle Tuesday this week to Thursday. I'm proposing Thursday 2:30pm pick till Friday 8am. Pls advise.
75. I replied on 30 June 2020 6:19am – ‘Hi, We could do 12:30pm - 4:30pm Thursday to make up for time missed today’. Mr Merrick then replied, ‘ok’.”
On that occasion (very recent I note) the father made a respectful request for an alteration to his time with the boys. The mother respectfully responded with, – essentially a counter offer – which the father accepted. This polite and respectful communication between the parents augurs well for the future.
The mother has run a case for sole parental responsibility on the basis that she and the father are not able to agree in relation to issues. The mother maintains that this is the father’s fault. I am far from convinced that this is correct.
In relation to the evidence of the mother that the father has denigrated her by using a Country Q word, namely, “Z” – I am unsure what to make of this evidence. The mother says that she is “aware” that the word “Z”, is a Country Q word for “cunt”. The mother says this word was included on spousal maintenance bank transfers between May 2018 and December 2018. I presume that the word is no longer used. As to precisely what the word means – I do not know. It could be a derogatory term. If it is derogatory it was quite pathetic of the father to use that word – if indeed he did use that word. The allegation appears to be that it might have been the paternal grandmother who used the word. In any event the conduct, as I understand it, has ceased. The mother maintains in paragraph 110 of her trial affidavit that the children have referred to her on more than one occasion as “Z” and “silly bitch” after spending time with the father.
I am not convinced that the father is denigrating the mother to these children. Indeed, there was nothing in the evidence of Ms U that would lead me to conclude that the father is denigrating the mother in front of these children. He has discussed adult issues with the mother in front of the children. I have already pointed out that this is not appropriate.
Changeovers
The evidence of the mother concerning changeovers commences at paragraph 111 of her affidavit and continues through and covers the period after the Court event on 11 May 2020. The evidence continues up to paragraph 129. There seems to be a good deal of disharmony at changeovers. There is evidence of arguments and disagreements. The father seems to have vented his frustration with the Court process taking issue with the mother in relation to the spousal maintenance order (note paragraph 117(e)(iii)(B) “…ripping me off with money”.
The father was also obviously frustrated with the small amount of time he was seeing the children. I note paragraph 117(e)(i)(E). “I'm the father, I've got every right. You think you can just dictate terms. Who gives you the right to do what you're doing. Who do you think you are? You think you're like the only one who is the important parent here."
The mother appears to have responded, – paragraph 117(e)(ii)(A) “I’m following the Court orders”.
Ms U was asked about changeovers. It is apparent that the changeovers really should take place at school/kindergarten. Changeovers have been taking place at the police station. That is not appropriate on a long-term basis.
The father may feel that he had been harshly done by in terms of the interim parenting order (four hours in week one with the children). The Court made an order in that respect. The father must accept the umpire’s decision. The father cannot vent his frustration or anger directly towards the mother and certainly not in front of the children. The father has to come to terms with the fact that he needs to exercise his own will and calm down. This Court, having examined the evidence in its totality in the course of the three day trial will be making more expansive orders for the children to spend time with the father. But the father must accept the outcome (subject to his rights of appeal). He cannot continue to press for increases of time. It is correct that Court orders must be followed – in the absence of some reasonable agreement to the contrary. The mother has made it very plain that she is (generally) not interested in variations to the Court orders. Hence, the Court orders will have to be clear and concise – and both parties will be bound by the orders.
Health issues
It is apparent that the child X may need an operation for a medical condition. X has had this medical condition since he was born. He has been examined by Dr AA (paediatric urologist). The parents were advised to watch the medical condition and if it had not resolved itself by the age of about four or five years it then was to be reviewed and treatment may be required. The evidence shows a respectful exchange of information between the parents. The mother took the child to see Dr AA on 6 January 2020 and Dr AA recommended surgery.
The mother had, on 1 January 2020, emailed the father to inform him that she intended taking X for a review appointment with Dr AA. On 4 January 2020 the father responded via email with words that included:-
“…Okay thank you, is there anything to know right now?"
When the mother received a letter from Dr AA on 15 January 2020 she emailed that to the father. The father responded on the same day pointing out that he had not been at the meeting with the doctor "which in my view, is not only unfair to me but to X also".
The father at paragraph 123 of his trial affidavit stated, inter-alia:-
“123. I have also engaged with Dr AA who X has visited regarding his medical condition. Ms Denard sent me a letter detailing his recommendations. I was not involved in the initial appointment or recommendations as I did not know about them, however, I spoke with Dr AA at his offices.”
The father was cross-examined about this paragraph in his affidavit. He eventually had to admit that he had made a mistake. He had in fact been told by the mother that she was taking the child for a review. The father did know about the consultation.
It seems agreed between the parties that the father went to see Dr AA in February 2020.
I would have to say that it is not unreasonable for the father to request a second opinion in relation to the surgery – which was his stated intention. I note paragraph 152 of the mother's trial affidavit where she states:-
“152. On 11 March 2020, I received an email from Mr Merrick about his recent appointment with Dr AA, as follows:
‘.. .I had a lovely conversation with Dr AA yesterday at his offices. Although he recommends operating on our son, he also mentioned that monitoring him for the next 12 to 24 months isn't a bad option. I am of the view that we should monitor for the next 12 months and see what happens, operating should only be the very last option. The condition has reduced in size since last seeing him and if you look at the condition, it seems to be retracting. I have a gut feel to monitor and not too operate ...’.”
My attention has not been drawn to any evidence from the father that he has in fact taken the child for a second opinion. In the absence of written confirmation of a second opinion, the Court is left with the written recommendation of Dr AA. The father does say that Dr AA gave him a different slant/interpretation/view when he saw him in February 2020. In any event, I note paragraph paragraphs 164 and 165 of the mother's affidavit where she states:-
“164. Currently, Mr Merrick and I do not agree with the course of treatment with respect to X's medical condition. It continues to be my position in accordance with the letter from Dr AA dated 15 January 2020, that X should have surgery. I consider this is best done sooner rather than later and prior to him commencing his formal schooling, prep year in 2021. To my knowledge, Mr Merrick never obtained a second opinion in which he was adamant about obtaining.
165. X is a young child. It is our responsibility as his parents to make these decisions on his behalf. I consider that the position Mr Merrick has taken allows him to avoid making a decision and blame me for excluding him from the decision. X needs parents who will make the appropriate decisions for him in the interest of his health.”
There is no evidence that the information contained in the father's email to the mother (part of which is contained in paragraph 152 of the mothers' trial affidavit) is not correct. The situation seems to be that the doctor is of the view that the child X will “eventually become symptomatic”. (Note paragraph 160 of the mother’s trial affidavit).
It is not a straightforward issue. The parents have separated and they take a different view in relation to the issue relating to X's medical condition. The inability to agree at this point in time in relation to treatment (or non-treatment) of X's medical condition is one of the reasons that the mother seeks an order for sole parental responsibility.
The mother also is of the view that the disagreement between the parents relating to immunisations is another reason that she should be granted sole parental responsibility. I note paragraph 167 of the mother's affidavit:-
“167. In around mid-2017, Mr Merrick and I discussed the children's vaccinations. Both children received their newborn vaccinations and following this, Mr Merrick and I discussed not vaccinating the children further.”
It is apparent that the parents did previously discuss no further vaccinations for the children. The father's view is that they had reached an agreement in that regard. I accept the father's evidence in that regard. When the parents were together that was their view. The mother has subsequently taken a different view and would like the children vaccinated in accordance with the national immunisation schedule. I note her evidence from paragraph 168 in her trial affidavit. The mother confirms that the family GP – Dr BB– has recommended that the vaccinations for the children be brought up to date. The mother followed the medical advice and had the children vaccinated. That was in March 2019. The child Y is due to receive his four year old vaccinations. The parents currently are not in agreement in relation to that issue.
The issue relating to young X's medical condition and the issue relating to the vaccinations for these two children are important medical issues. These parents have taken differing views. They are not able to agree.
The mother gave evidence about Y's collarbone. The child originally broke his collarbone in 2018 when wrestling with his brother. He seems again to have broken his collarbone on 18 March 2020 – again while wrestling with his brother.
In March 2020, the mother took Y to the Emergency Department at the Brisbane Children's Hospital for medical care and obtained the necessary treatment and told the father about it the next morning and the father responded appropriately – thanking the mother for the email. The mother does not think that the father took proper care of the child – in relation to the wearing of the sling following the surgery. That seems unnecessarily critical.
The father certainly had no issue with the mother ensuring young Y received the necessary emergency treatment for the broken collarbone.
Again, the father was not critical of the mother in relation to the mother obtaining urgent medical attention for an abscess in X's mouth. This occurred in March 2020. The father was keen to spend time with the child and apparently this occurred the day after the surgery, while still in the hospital. I note paragraph 214 of the mother's affidavit:-
“214. At around 11 am when waiting at the chemist to get the scripts filled, I contacted Mr Merrick via text message about the children's visit with him that day. Our text message conversation is below:
(a) 11.01am, I text Mr Merrick – ‘Hi Mr Merrick. X has been discharged from hospital. He will be on antibiotics for the next week to assist his recovery'.
(b) 11:02am Mr Merrick texts – ‘Ok great. I’ll see him at 12pm’.
(c) 11 :04am I text Mr Merrick – ‘Could we push it back to 1pm today so I can get him home and bath and change him first’ .
(d) 11:05am ‘Of course. Can I spend more time with him today?’
(e) 11:07am- ‘Thank you. I don't agree to extending the access time’.
(f) Mr Merrick texts - "Why"
(g) 11:08am Mr Merrick texts – ‘Why would you do this to your own children.”
The father did not need to send that text message at 11:08am. It is understandable that the father would have wanted to spend some extra time – perhaps even an hour or two extra with the children on that day – after X's discharge from hospital. The mother would not agree to any extension of time whatsoever.
In relation to the other health issues referred to by the mother from paragraphs 220 through to 232 of her affidavit – these appear to be nothing more than differing parenting styles. I am not satisfied that any of the matters raised in these paragraphs demonstrate to the Court any fundamental difference between the parents on an important issue pertaining to the health of the children. Perhaps it is the case that the father should be more diligent in relation to applying sunscreen. I'm not in a position to make a finding about that issue. Raising children in Queensland necessarily brings with it an obligation upon parents to take proper steps in respect of sun protection. I do not intend making any order concerning sun cream or sun burning. There has not been sufficient evidence on the topic for the Court to intrude into the lives of the family and the children to that extent.
The view that I have formed is that there are really only two fundamental issues of dispute between these parents upon which they cannot reach an agreement. I'm talking here in about the issue of parental responsibility. It is a significant step for a Court to make an order limiting one parent’s involvement in the decision-making in respect of the major long term issues for a child – especially such young children. I am not satisfied that the evidence in this case warrants the making of a sole parental responsibility order in favour of the mother. In Carlson v Bowden (2008) 40 Fam LR 327, Murphy J noted that the exercise of discretion in favour of the making of an order for sole parental responsibility is, “a very significant step, being a very serious interference with the fundamental rights of a person.” (Note paragraph 175). As Murphy J pointed out in Carlson at paragraphs 175 and 176 the making of an order for allocating parental responsibility involves the exercise of discretion and such exercise, “… Ought be resolved in favour of an outcome which is seen to be in the best interests of the child.”
It will be apparent from these Reasons for Judgment that the view that I have formed is that the mother has consistently resisted attempts by the father to increase his involvement in the lives of the children. I accept that the mother has relied upon Court orders. But the mother has not been flexible enough (in my view) in relation to those orders. Furthermore, before the making of the Court orders the mother dictated the terms upon which the father would be permitted (by the mother) to spend time with the children. The father’s frustration (as identified more than once by Ms U) boiled over and manifested itself in certain inappropriate conduct by the father (to which I have referred elsewhere). At times the father's conduct was childish and it was certainly not child focused. Neither that conduct by the father nor the allegations of family violence (about which I will have more to say in these Reasons for Judgment) is sufficient for this Court to make an order for sole parental responsibility in favour of the mother. These parents have been involved in a dispute relating to parenting matters and a dispute in relation to money. At times the dispute has been acrimonious. It will be apparent from these Reasons for Judgment that the view I have formed is both parents have contributed to this acrimony.
Both parents in this case are highly intelligent and after the finalisation of these Court proceedings my view is that it is much more likely than not that they will be able to reach an agreement in relation to future issues that arise concerning important health matters for the children. I am mindful of section 60CC(3)(l). This is the section of the Act which places upon the Court an obligation to consider making an order which is least likely to lead to the institution of further proceedings. Noting the particular personalities of these two parents an order (in favour of the mother) for sole parental responsibility is likely to inflame the tension between the parties at a time (namely the conclusion to the litigation) when a reduction in tension is what is needed. The parents have already been able to make a decision in relation to the E State School.
I do, however, think it is preferable for the Court to make an order in relation to two aspects relating to the health of the children. The parties have put before the Court evidence and argument in relation to X's medical condition and the question of childhood immunisations. In order to resolve those two issues I have come to the conclusion that, in respect of those two issues alone – the mother should have the final say. I have come to the conclusion because the father has not obtained a second opinion concerning X's medical condition – even though he has stated that he would obtain a second opinion. The only written advice before the court is from Dr AA and it has been put before the Court by the mother. It recommends that the surgery go ahead. The father did see Dr AA but there is nothing in writing confirming precisely what was said by Dr AA to the father. I am not doubting that the father left his meeting with Dr AA it with a different impression of the medical situation. But it does seem to me that Dr AA was prepared to commit to writing his initial recommendation. The parents cannot have this dispute linger any longer. The issue concerning X's medical condition needs to be decided now by the Court. The mother will have the final say on that issue.
Concerning immunisations, the mother’s evidence is that Dr BB (the General Practitioner) has recommended that immunisations for the children be brought up to date. There is no contrary medical evidence put before the Court by the father. Accordingly, in relation to vaccinations and immunisations for these children – the mother shall have the final say.
I am not prepared to give to the mother the final say in relation to all medical issues. The father was not critical of the mother in relation to the care she obtained in respect of Y’s collarbone and his attendance at the Emergency Department. The father was not critical of the mother in relation to the care that the mother obtained for the emergency oral surgery for young X. The father desperately wanted to see the boy following the surgery, but this is understandable. The father was not critical about the healthcare that the mother sought and obtained for the child.
Other issues
As noted, the parents have been able to agree in relation to childcare and schooling for the children. The children will attend the E School. There have been occasions when the parents have not been able to agree on the variation of the father’s time with the children. On the other hand, there have also been occasions when they have been able to agree. It all depends. These are the swings and roundabouts of life. I am well aware of the provisions of section 61DA of the Act. There is nothing particularly relevant in the circumstances of this case which require my consideration of the "presumption" or, indeed, in respect of any argument for the "rebuttal of the presumption". The decision concerning parental responsibility is a discretionary one based on the best interests of the children and I have already made reference to the relevant aspects. I do not consider it appropriate to deprive the father of parental responsibility on the basis of the evidence before the Court.
I listened to the father's evidence in relation to email accounts that he had set up for the children. The father feels very strongly that he has been cut out of the lives of the children and his view seemed to be that the children, one day, should be told precisely what happened (at least from the point of view of the father). The father was cross-examined about this issue. He did not know what age would be appropriate to tell the children or let them have access to the email accounts. The father's position in relation to this issue is completely misguided. The very last thing that these children (or any children) need is to one day have access to the running battle that took place between their parents whilst involved in family law litigation. I was exceedingly pleased to hear that the father agreed to a final order abandoning the email accounts et cetera.
The father has, over time, continued to gain some insight in relation to inappropriate conduct. I do consider that the father has shown genuine remorse for some of his conduct.
The conduct of both the parents in this case indicates to the Court that they will both benefit from completing a parenting orders program. I note that the parents may have completed some programs in the past. I consider that they will both gain more from such a program after the end of this litigation. Hence, there will be orders requiring the parents to complete a parenting orders program in person – not via video-link.
The mother made reference to an issue relating to car seat belts. I do not propose making any findings one or the other concerning that issue. Obviously, both parents must comply with Queensland law in relation to the use of car seats and seat belts.
Surname
As to the children's surname. The mother would like the children’s surname to be changed so that it is "Merrick-Denard". The father, on the other hand, would like the name of the children to be “Denard-Merrick”. The children currently have the surname Merrick. I have had regard to the relevant authorities. I have noted the six factors referred to by the Full Court In the marriage of Chapman & Palmer (1978) FLC 90-510. I have also had regard to those cases involving hyphenated names. It is, essentially, a best interests question.
It seems to me that a continuation of the situation whereby the name "Merrick" appears at the very end of the children's name is appropriate. The children's surname will therefore be "Denard-Merrick". This provides a certain continuity in respect of the children's last name. I consider that to be in the best interests of the children. I agree with the father’s submissions on this issue.
Family Violence
I note paragraph 300 of the mother's affidavit:-
“300. Throughout the course of my relationship with Mr Merrick, he has at times been emotionally and psychologically, financially and physically abusive towards me. This has continued post separation.”
The mother did not include any evidence in her trial affidavit of allegations of family violence which she says were perpetrated by the father towards her during the course of the relationship. There was no evidence that there had been emotional, psychological, financial or physical abuse towards the mother during the relationship. The mother did provide evidence between paragraphs 29 and 45 of the period of time when the parties were together after the birth of the children. Mainly it appears to be a difference in parenting style. The parents’ personalities are very different. Much of what the mother refers to can be described as evidence of insensitive conduct by the father. I do not consider that the evidence referred to there amounts to family violence. It is surprising that the mother has not provided details of any evidence alleging family violence during the relationship – notwithstanding her broad statement in paragraph 300. The mother has provided extensive details of all other evidence upon which she relies. Counsel for the mother did not draw to my attention any specific evidence by the mother of allegations of family violence during the course of the relationship.
I note the mother’s evidence from paragraph 301 onwards. The mother provided details of evidence alleging family violence perpetrated by the father in respect of the period of time after separation.
The first parenting order in this case was not made until 6 July 2018. The parties had separated in May 2017. The father spent time with the children – as dictated by the mother until the making of the first parenting order. The mother was only prepared to agree to allow the children to spend time with the father for four hours in one week and eight hours in another week. There is no justification in the evidence for the mother restricting the father's time to the extent that she did. It is another thing altogether for a Court to make an order concerning time. The Court is the correct arbiter of such disputes. It is not for one parent to dictate to the other.
The father’s Facebook posting of 19 November 2017 was puerile, short-sighted and wrong. He should not have done it. It undoubtedly inflamed the dispute. The Facebook post is referred to in the mother's affidavit at paragraph 303. The father posted a photograph of the mother on his Facebook page and included the following comment:-
"This is Ms Denard . My ex. She is giving me four hours one week and eight hours the second week to see my children. She thinks this is in the best interests of the boys. She won't allow me to Facetime them as she thinks they can not communicate appropriately. I want it to be known that I think this is criminal and disgusting behaviour. Just because we didn't work out doesn't mean you can take my kids away!!!
Shame, shame, shame!!!"
The father gave evidence in his trial affidavit (paragraph 115) that he has come to the realisation that it was not appropriate for him to vent his frustration in that manner. I note that the father said at paragraph 115:-
“115. I have been accused of writing threatening and abusive Facebook posts. I have received advice regarding this and taken on board those comments. I realise that the posts were made out of frustration and it was not appropriate for me to use this forum to vent that frustration. Since these matters were first raised in 2017, I have made every reasonable effort to ensure I use proper support mechanisms. There have been some very difficult times. I am grateful for the support of my family and my partner Ms V.”
I accept this evidence of the father. I do consider that he has been genuinely remorseful in relation to his inappropriate conduct (including the Facebook posts).
The posting of such messages et cetera is childish. But it is much worse than simply being childish – it is reprehensible conduct by the father that must not be repeated. I propose making non-denigration orders. Such orders will cover both parents. The orders will not be limited to non-denigration in front of the children.
I have had close regard to the evidence of the mother in relation to the domestic violence orders. Apart from the Facebook posts the issues primarily relate to incidents which occurred when the parents personally came into contact at changeover. The most recent domestic violence order is an order made on 30 April 2019 covering a period of five years. The changeovers by that order were noted to have to take place inside the Suburb CC Police Station. As indicated earlier, this cannot continue. The evidence of the family report writer supports an order for changeovers to take place at school/kindy/child-care.
None of the protection orders made relate to any period of time that the couple were together. The dispute escalated rapidly after separation, fuelled by arguments between the parents concerning money and arguments between the parents concerning what period of time the children would be permitted (by the mother) to spend with the father. Once this litigation is concluded the view that I have formed is that the conflict between the parents is also likely to disappear. It may be that tension remains between this couple. Indeed, it probably will remain. It is to be hoped that, over time, even the tension will disappear and the parents will be more relaxed and able to co-parent without any conflict whatsoever.
Other aspects of section 60CC(3)
The children are too young to express any meaningful views (section 60CC(3)(a)).
I have already detailed at length the nature of the relationship of the children with their parents. The children also have a close and loving relationship with the maternal grandfather and the maternal family generally – including the maternal grandmother, uncles, cousins, et cetera. Similarly, the children have a close and loving relationship with the paternal family, including their paternal grandmother. The children also seem to have a very nice relationship with the father's new partner, Ms V. (I note section 60CC(3)(b)).
Both parents have been involved and taken every available opportunity to participate in decisions concerning the children. I have detailed at some length the difficulties that the parents have had in relation to two particular decisions (relating to X's medical condition and immunisations for the children). The father has been relentless in his pursuit of spending more time with the children. I have detailed that already in these reasons. After the making of the interim order the father really had no alternative but to be patient and await a final hearing in an attempt to persuade the Court that different parenting orders were appropriate. The father has been less than patient on numerous occasions. Nonetheless, he has tried to take every possible opportunity to spend time with and communicate with the children. (Section 60CC(3)(c)).
The parents, generally, appear to have fulfilled their obligations to maintain the children. I note that the mother indicates that the father is up-to-date with respect to child support. The child support assessment was originally obtained in around June 2018. (Note paragraph 343 of the mother’s affidavit). (Section 60CC(3)(ca)).
There would be an adverse impact upon these children if they were separated from either of their parents for any extended period. (Section 60CC(3)(d)).
The parents live in close proximity in the suburb of Suburb E in Brisbane. There are no practical difficulties and expenses for the children to spend time with the parents. (Section 60CC(3)(e)).
Both parents have the capacity to provide for the needs of the children, including their emotional and intellectual needs. These parents just need to get past the warring nature of this particular litigation. (Section 60CC(3)(f)).
Both parents have an excellent attitude towards the children and they have accepted the responsibilities of parenthood. (Section 60CC(3)(i)).
The father had been ordered to maintain the family Bupa cover. If he has not done so that is reprehensible conduct by the father. The mother says in paragraph 345 – "Mr Merrick was also ordered to maintain the family Bupa cover. Whilst he has paid some funds towards the cover, the cover is regularly frozen for use by the children and me."
I am not sure what the mother actually means when she says that the cover is regularly frozen. I'm not willing to make any finding about that issue. After the conclusion of this litigation each party will be responsible for their own private health insurance. If the parties wish the Court to make an order concerning private health insurance in respect of the children then I will need to hear submissions – including as to whether or not it is appropriate to do so (given that it more than likely would come under the child support jurisdiction).
Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant
One of the Court's biggest concerns is the fact that the father has shown a lack of understanding in relation to the seriousness of Court orders. He has pleaded guilty to a breach of a domestic violence order. This resulted in the order made for a five year period from 30 April 2019. And in relation to parenting orders made by this Court – the father has persistently tried to get the mother to vary the orders – even though the mother has only rarely shown any inclination to do so. When Court orders are made – they must be followed by both parents. Once final orders are made by the Court they must be followed. If the father breaches the orders and if the mother were to bring a successful Contravention Application – there could be very serious ramifications for the father. The same goes for the mother.
Mr Galloway, counsel on behalf of the husband, in his further written submission filed with the Court on 22 February 2021 points out that, in fact, the husband has clearly put this matter before the Court in an open manner. In paragraph 204 of the husband's trial affidavit the husband states:-
“204. Ms Denard continues to live at the DD Street, Suburb E Unit. Pursuant to orders dated 14 May 2018 I am required to pay one half of the interest only component of the mortgage together with certain other payments. I have put these costs on hold as I am unable to meet these costs.”
That trial affidavit was filed on 13 July 2020. I note and accept the generous submission made by Mr Galloway where he stated in relation to paragraph 204:-
“This is evidence before the Court, and again respectfully, before the Respondent who may have overlooked it.”
However, I disagree with Mr Galloway as to the treatment of the current outstanding amount ($18,651.20) contained in the Letter of Demand. The view that I have formed is that the husband should be responsible for the payment of this amount. I do not consider that it should be deducted as a joint liability of the parties. This again forms part of the husband’s neglect in relation to his obligations pursuant to the Court order of Judge Turner from 14 May 2018. If I merely allow the figure to be included as part of the matrimonial liabilities – this will mean that the wife has contributed to an obligation that was the husband’s. The husband was obligated to pay his share of the mortgage after the order made by Judge Turner. This should not now become an obligation that gets shared between the parties. Therefore there should be included an order requiring a specific payment or reimbursement by the husband to the wife in relation to this sum – assuming that it will be the wife who will address the issue with the P Bank. At the time of the making of the final order the Court may need to hear a further submission on this point.
I note that the further written submissions provided by Mr Jordan (on 19 February 2021) submitted that – in the event of a one pool approach the wife sought a division of 78% to the wife and 22% to the applicant. I acknowledge, of course, that Mr Jordan's submissions (in relation to the percentage of the division of the pool) relates to a different pool to the findings made by the Court. I have had regard to those submissions. I have also had regard to the submissions of Mr Galloway of counsel (on behalf of the husband received by the Court on 22 February 2021). Mr Galloway submitted that in respect of the property pool (being the one pool which is substantially similar to the pool contended for by the husband in Mr Galloway’s written submissions provided to the Court on 4 September 2020) – that there should be a division of 62.5% in favour of the wife and 37.5% in favour of the husband.
The net pool is approximately $1,000,000. The DD Street, Suburb E unit is the major asset. It may be necessary for the unit to be sold – but this is a matter for the parties. I note that the wife would prefer to retain the unit – apparently with the financial assistance of her father. If it is sold, the mortgage on the unit can be paid out and the wife and the husband would receive a cash amount. Whatever occurs in relation to the DD Street, Suburb E unit the wife will leave the relationship with 65% of the net pool and the husband will leave the relationship with 35% of the net pool. The husband must pay the spousal maintenance arrears – up until 3 August 2020. I will refer to this issue in more detail shortly. I am satisfied that he has the earning capacity to make that payment. I will consider a request from the husband to pay that money over a period of time. I am satisfied that with his earning capacity he will be able to obtain some financial facility to help him comply with that obligation – whether it be with the assistance of his family or a bank etc. I note the evidence of Ms WW (which I have already accepted) to the effect that she had lent the sum of $440,000 to the husband to assist him with the initial purchase of the QQ Company franchise. As at the date of Ms WW’s July 2020 affidavit – all of that money had been repaid by the husband to his mother (Ms WW). This shows that the husband has the ability to raise money or to earn sufficient money to repay a significant loan in a relatively short period of time. It also shows the willingness and ability of the husband’s family members to assist him financially through the provision of loans. Of course, if the DD Street, Suburb E unit does not have to be sold – it may well be the case that, to the extent that there needs to be any payment from the wife to the husband in order to effect a 35% division of the net pool to the husband – one conceivable approach is for the wife to deduct the spousal maintenance arrears owed to her by the husband (as referred to below) and also to deduct the amount of money referred to in the ZZ Lawyers’ Notice of Demand ($18,641.20). These are matters for the parties to consider at the appropriate time and if the form of orders to reflect the Reasons for Judgment remains in dispute then the Court will hear from the parties in relation to the appropriate wording of the final orders.
I note that the wife will have the primary care of the two children but they will be spending four nights a fortnight with the father and (as I have noted elsewhere) the view that I have formed is that the father will assist with additional care if the mother makes a request. The wife will be able to return to work. I do not accept that the husband is limited to an income of $80,000 per year. All of these matters have been referred to already. It was a short relationship. I have noted what each party brought into the relationship. For all the (relevant) reasons contained in these Reasons for Judgment, the property orders proposed are just and equitable.
Spousal Maintenance
An order for the payment of spousal maintenance was made by her Honour Judge Turner on 14 May 2018. That order relevantly provides as follows:
“Spousal maintenance payable by Applicant
12. That the Applicant shall pay or cause to be paid to the Respondent, by way of spousal maintenance the following:
a) the weekly amount of $1,800 per week with payment being made each Thursday to the Respondent’s nominated bank account;
b) the interest only repayments as and when they fall due associated with the Commonwealth Bank home loan in the Applicant’s name being the Registered Mortgage with the Commonwealth Bank (mortgage number: ...) secured over the real property situated at DD Street, Suburb E, more particularly described as Lot ... on Building Unit Plan ..., Title Reference: ...(“the DD Street, Suburb E property”); and
c) the family private health insurance for the Applicant, Respondent and the children, at the current level with BUPA, including immediately making payment of any arrears associated with the family’s BUPA health insurance.
Expenses payable by Respondent
13. That the Respondent shall pay the following expenses associated with the DD Street, Suburb E property:
a) the interest only repayments as and when they fall due associated with the Commonwealth Bank home loan in the Respondent’s name being the Registered Mortgage with the Commonwealth Bank (mortgage number: ...); and
b) the body corporate fees, rates, water, electricity, gas and other expenses associated with the DD Street, Suburb E property,
14. That within seven (7) days of the Applicant receiving any invoices/requests for payment associated with expenses outlined in Order 2 (b) herein, the Applicant will forward these invoices/requests to the Respondent by post to the DD Street, Suburb E property.
15. That the Respondent shall pay the registration, insurance and any necessary maintenance expenses associated with the Motor Vehicle 2 registered in the name of K Pty Ltd and in the possession of the Respondent.
16. That within seven (7) days of the Applicant receiving any invoices/requests for payment associated with the registration and insurance for the Motor Vehicle 2 as outlined in Order 15 herein, the Applicant will forward to the Respondent by post to the DD Street, Suburb E property.”
The terms of the order required the applicant husband to pay the weekly amount of $1,800 to the respondent wife – but in addition, the applicant husband was also to pay to the respondent wife the “interest only repayments” in respect of the Commonwealth bank home loan secured (which was, essentially, his share of the home loan) by registered mortgage over the DD Street, Suburb E unit. This is the subject of the most recent affidavit of the wife (16 February 2021). The applicant husband was also ordered to pay the private health insurance for both parties and the children at the then current level with BUPA. I have already made some reference to this earlier in these reasons.
The order made by her Honour then required the respondent wife to pay the stated expenses in respect of the DD Street, Suburb E unit.
In the current application before the Court, the applicant husband seeks an order that this Court discharge the earlier spousal maintenance order. The husband relies upon section 90SI. Section 90SI provides to the Court a discretion to discharge such a maintenance order, “if there is any just cause for doing so” (Section 90SI(1)(c).
The respondent wife opposes the husband's application for a discharge of the order and seeks an order in respect of the spousal maintenance arrears in the sum of $111,900. That sum was calculated by the respondent wife up until 3 August 2020. I apprehend from the nature of the orders sought by the wife (contained, for instance, in the August 2020 written submissions of her counsel, Mr Jordan) that the wife will be continuing to seek arrears in respect of spousal maintenance up until the time of the making of the final order in these proceedings.
The husband paid the sum of $1,800 per week until December 2018. He then reduced the payments to $300 per week (note paragraph 65 of the written submissions on behalf of the husband). The husband seeks the following orders concerning the spousal maintenance order:-
“68. The husband seeks an order in addition to those scheduled in exhibit B to these submissions that:
(1) The orders made by the honourable Judge Turner on 14 May 2018 be discharged;
(2) All and any arrears arising from the operation of the foregoing orders be discharged.
(3) The orders of Judge Andrew of 17 June 2019 be wholly discharged.”
Not only does the wife (in the present case) oppose the husband's application to discharge the previous spousal maintenance order – the wife also seeks the prospective payment of spousal maintenance in the sum of $2268 per week until 30 June 2023.
It is appropriate for the Court to consider the applicant's application to discharge – prior to turning to the wife’s application for the ongoing payment of spousal maintenance as part of the final orders in these proceedings currently before the Court.
I note the decision of the Full Court in Wreford v Caley (2010) 238 FLR 88. That case related to arrears of child support. I agree with the submission made by Mr Galloway (on behalf of the husband) that the considerations noted in Wreford remain relevant in relation to arrears of spousal maintenance. I note the concession made on behalf of the husband that there is an onus on the husband to demonstrate a “just cause” as to why there should be a discharge of the arrears.
In Wreford the Full Court referred to the previous decisions Inthe Marriage of Lutzke (1979) 5 Fam LR 553 and In the Marriage of Vakil (1997) 138 FLR 88. Those earlier decisions had been approved (in relevant respects) in a decision of Daniels v Bell (2007) FLC 93-315. Lindenmayer J in Lutzke stated at pages 559-560 inter-alia, as follows:-
“the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.”
(Emphasis added)
I have come to the conclusion that it is neither “right” nor “proper” that the spousal maintenance order – at least insofar as it relates to the arrears of spousal maintenance up until the time of the commencement of the trial (3 August 2020) – should be discharged. That is, I am going to discharge the spousal maintenance arrears from 3 August 2020 onwards. In coming to this conclusion I have had regard to the considerations referred to by the Full Court in paragraph 59 of Wreford – where the Full Court referred back to the Vakil decision. Relevantly that paragraph (59 in Wreford) provides:-
“The provisions to which the Full Court referred as being appropriate to inform the Court in its consideration of whether there is, or is any, just cause to discharge a maintenance order, were general substantive provisions in relation to spousal maintenance, in particular:
• the right of a spouse to maintenance (s 72) (90SF(1);
• the matters to be taken into consideration in relation to spousal maintenance (s 75)(90SF(3);
• the duty of the court to end financial relations (s 81) (90ST);
…”
(References to relevant de facto provisions added)
I have taken all the relevant considerations into account and I've had regard to the relevant sections and subsections of the Act. I will only refer to the most important considerations for the purposes of this decision. Many of the items referred to are relevant by reason of section 90SF(3)(r) which requires the Court to take into account:-
“any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
I note that the husband did not appeal the original decision made by Judge Turner. When the wife applied to enforce the spousal maintenance order in January 2019 the husband cross applied for the discharge of the order. His Honour Judge Andrew did not grant the husband's application. There was no appeal by the husband against the order of Judge Andrew. It is the case that the husband now earns (or has been earning) approximately $80,000 as a salesman. It may be the case that he chose to enter into a contract of employment whereby he receives a salary of $80,000 (from his current employer) but the fact remains that the finding made by this Court is that the husband's earning capacity as a salesman is in excess of $200,000 per annum. It is said that he doesn't have the ability to pay the arrears. I do not accept that submission on behalf of the husband. The husband's earning capacity is such that the view that I have formed is that he will have the ability to pay the arrears and in order to do so I am confident that he will have the ability to obtain the necessary finance (from family or commercial sources) in order to pay his obligations under the spousal maintenance order. After the completion of these property proceedings he will nonetheless remain liable for the payment of the arrears – up until 3 August 2020. Whatever way I look at this case – the husband's earning capacity looms large. The husband did make some reference in the evidence to changing careers. I do not accept that he will do so. He has a new partner and he has obligations in relation to his two sons. The evidence reveals that the husband is extremely well known in the Suburb E area as a businessman. He clearly has a significant amount of expertise and is a skilful professional in the property industry.
The Full Court in Wreford quoted with approval comments made by Walters FM (as he then was) in Mathieson v Hamilton (2006) 201 FLR 28. Federal Magistrate Walters stated at paragraph 230(e) of the Mathieson decision (note paragraph 71 of the decision in Wreford). :-
“The Court should be very cautious not to encourage a Payer to metaphorically sit back and ignore his/her liability for maintenance or child support, and to continue to ignore such liability " … ‘hoping for the best’”.
Further, I accept the submissions made on behalf of the wife that she continued to make payments for outgoings as ordered by Judge Turner – even though the wife was not receiving the full spousal maintenance payment from the husband. The wife had other outgoings as well. Earlier in these reasons, I noted that the Court would not be bringing to account as a liability in the pool the amount of the loan that the wife had obtained from Mr OO and/or Denard Holdings Pty Ltd in the sum of $366,096. That figure is included in the written submissions prepared by Mr Jordan and filed on 21 August 2020 (under the heading of “liabilities” at page 31 of 32 on behalf the wife) as an amount of money owing to the wife’s father in respect of legal expenses. But the loan from her father was also to assist the wife with the payment of other outgoings and (the evidence and submission which I accept on behalf of the wife) is that the husband’s non-compliance with the spousal maintenance order of 14 May 2018 made it necessary (at least in part) for the wife to borrow money from her father to assist with the payment of other outgoings (such as the mortgage). Paragraph 682(d) of the wife's trial affidavit makes it clear that the loan she obtained from her father was not only in respect of legal expenses but also to assist the wife with payment of her share of the mortgage following the husband's non-compliance with the spousal maintenance order of 14 May 2018. The wife does not provide a breakdown of the amount borrowed from her father in order to fund her legal fees as opposed to the amount borrowed from her father in order to assist with the payment of the mortgage. I accept the wife’s evidence that she has borrowed a sum of money from her father to assist her with the payment of the mortgage. I also accept that the wife has borrowed money from her father in order to assist her payment of legal fees. I have already made comment in relation to why the Court is not prepared to include that figure ($366,096) as a debt in the pool of assets and liabilities. For present purposes, the point is as follows – the Court accepts that the wife did borrow some money from her father in order to make mortgage repayments (as described by the wife in paragraph 682(d)). The wife will have a moral, if not a legal obligation to repay her father. As to when and how this will occur and on what terms – I do not need to consider. But having accepted that the wife did borrow some money (although an unspecified amount) from her father to assist her with the repayment of the mortgage – this is another reason why the Court has come to the conclusion that there should be no discharge of the spousal maintenance arrears up until the time of the trial. It will be noted that earlier in these Reasons for Judgment I expressed a somewhat sympathetic view towards the husband's evidence that he wanted to slow down with his work having somewhat lost motivation due to litigation, et cetera. But my expressed views concerning that evidence from the husband must be balanced against the obvious legal obligation of the husband to comply with spousal maintenance orders of the Court. There was some evidence contained at annexure -06 to the affidavit of Ms WW concerning what impact spousal maintenance and other payments might have had upon the husband’s business. To begin with, the evidence contained in annexure -06 is not convincing. It is difficult to follow. It is not clear what is meant, for instance, on page 64, as to what comes under the heading “other expenses”. Further, and in any event, in the letter dated 6 September 2019 (at the commencement of -06) there is reference made (in the second paragraph) to “the living expenses advice”. There doesn't appear to be any specific reference in the evidence to what was the “living expenses advice” by the husband to Mr AAA the director of the accounting firm, AAA Accountants.
If that advice is referred to elsewhere in the evidence – my attention has not been drawn to it. The evidence in relation to spousal maintenance (so far as the husband is concerned) has not been well presented. The onus to present evidence in a logical and convenient way rests with the parties to litigation. I note what was stated in this regard by Allsop J (as his Honour then was) in White v Overland [2001] FCA 1333. At paragraph 4, his Honour stated (inter-alia):-
“…by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are.”
By way of extrapolation I would add (as I have in other cases) my view that the parties must ensure that the evidence they seek to rely on to prove their case (on any given issue) must be presented in a clear and cogent manner. The importance of clarity was highlighted by McClelland DCJ in Hanas & Jolaha (No. 4) [2019] FamCA 483. His Honour also noted what the High Court had to say in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 per Barwick CJ, Gibbs, Stephen and Mason JJ at 258, inter alia:-
“A Judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it.”
In my view, limited weight can be placed upon the evidence provided by Mr AAA – provided as it was as an annexure to the affidavit of Ms WW. The author of the material (Mr AAA) did not swear an affidavit and was not available for cross examination. If my observation in that regard is not correct – it will make no difference to my conclusion on this issue.
Further, in relation to the husband's application for the discharge of the arrears of spousal maintenance – I note the written submissions provided by Mr Galloway (paragraph 76) – filed 4 September 2020. Mr Galloway refers to the husband’s "payment schedule”. It does not appear to have been specifically referred to in the body of the husband’s trial affidavit. But there is an annexure "-11” which is from a MYOB/Excel sheet headed “PP Pty Ltd” and the next heading is, "Account Transaction [Accrual] – 28 – 9 – 2017 to 31 – 1 – 2020”. That annexure has various payments referred to on various dates and for various reasons. It is not evidence of the husband's inability to comply with the order for spousal maintenance which was made by a Judge of this Court (Judge Turner) and confirmed by a second Judge of this Court (Judge Andrew).
For the reasons stated, I do not consider that the husband has demonstrated a “just cause” as to why there should be a discharge of the arrears prior to 3 August 2020. I am, however, persuaded to discharge the arrears from 3 August 2020 onwards. It will be apparent from these Reasons for Judgment that I consider that the actions of the husband in selling the business (or part of the business) in July 2020 were reasonable.
The sale by the husband of the business was completed in approximately early July 2020 – after the Court dismissed an application brought by the wife for an interlocutory injunction preventing the sale of the business. I consider that it is fair to say that the husband's conduct of his business and the structure of his business fundamentally changed in July 2020. I have said more than once (both in these Reasons for Judgment and the reasons delivered in: Merrick & Denard (2) (2020) FCCA 2111) that the global pandemic had created economic uncertainty which was one of the factors that convinced the Court not to grant to the wife the injunction which she had sought.
It is difficult to be precise in relation to this kind of issue. But in a broad sense, the husband's earning capacity, the husband's business structure had, in my view, in general, remained unaltered until the sale of the business in July 2020. I accept that the global pandemic came upon us earlier in 2020 and his earning capacity may have suffered from that point in time in any event. I have attempted to balance the various considerations, including the fact that the husband had a well-established earning capacity (in excess of $200,000 per annum) along with the fact that he probably lost a certain amount of motivation as a result of the relationship break down and this litigation. I reiterate, it is impossible to be precise in these matters. There is a significant amount of discretion involved but I do think it is "proper" and "right" to discharge the arrears from 3 August 2020 onwards – on the basis that the Court has already accepted that the significant restructure of the husband's business at that point in time was reasonable and was, frankly, likely to lead to an alteration in his income or earning capacity – at least in the short-term thereafter. I have already noted that the benefit of permitting the sale was, of course, related (in large part) to the significant reduction in debt achieved by the sale. I acknowledge that there is authority to support the contention that a drop in income is not – by itself – a sufficient reason to vary a maintenance order. But in the context of the significant restructure of the husband's business affairs in 2020 – along with the global pandemic creating the uncertainty previously referred to – in the particular circumstances of this case, I take the view that it is “proper” and “right” to discharge the arrears of spousal maintenance from 3 August 2020 onwards.
Spousal Maintenance for the future
I am not persuaded that there should be any order for spousal maintenance into the future. The view that I have formed is that the wife has not established an entitlement to spousal maintenance at this stage. I note section 90SF of the Act states:-
“Matters to be taken into consideration in relation to maintenance
(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a) only to the extent that the first-mentioned party is reasonably able to do so; and
(b) only if the second-mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.”
I have had regard to the matters referred to in section 90SF(3). I will not refer individually to each of the relevant subsections, but I will make reference to those upon which I'm placing more weight. I note that the husband's earning capacity (as found by the Court) is high enough to satisfy the requirement in section 90SF(1)(a) – that he would be able to make a payment by way of spousal maintenance. For the reasons that follow I do not need to explore that issue any further. I do not need to explore how much the husband would be "reasonably able" to pay by way of spousal maintenance. I am not persuaded that the wife has satisfied the requirements of section 90SF(1)(b) of the Act. Now that these property and parenting proceedings have come to an end, the wife (it seems to me) will be in a position to now concentrate on seeking employment (I note section 90SF(3(b) and (r)). Further, with the conclusion of these proceedings, the wife will become entitled to 65% of the net property pool. It is important for the Court to take into account the terms of the proposed property order. In this regard I note section 90SF(3)(n). I also note that this aspect was specifically referred to by the Full Court in Bevan & Bevan. The form of the proposed final property order is one of the most important aspects – if not the most important aspect in my decision that the wife has failed to satisfy section 90SF(1)(b). In addition, the wife will have available to her the financial resource represented by this Court’s proposed order for the payment of maintenance arrears up to the date of the trial. It seems to me that such a matter can be taken into account by the Court, having regard to section 90SF (3)(b) or (r). I know that it is said that the wife owes to her father various debts in respect of loans advanced by him to his daughter. I am confident that the wife's father will continue to afford her generous terms in relation to any such debts. I note that the wife has maintained that she wants to retain the DD Street, Suburb E unit. There is no confirmation at this point in time as to whether or not she will be in a position to do so – even with the assistance of her father. I have had close regard to all of the wife's quite extensive evidence concerning her weekly and other expenses. If the DD Street, Suburb E unit is sold the wife will be in a position to receive a significant cash sum. Again, this lends weight to the conclusion of the Court that there should be no further order for spousal maintenance. I have also specifically taken into account the fact that the wife is the primary carer for the children and I have taken into account her desire to continue in her role as a parent. But in weighing these various considerations, it seems to me that the Court should exercise its discretion not to make any further spousal maintenance order, as sought by the wife (or on any terms). Pursuant to section 90SF(3)(r), I would point out that in the opinion of the Court, the justice of the case requires the dismissal of the wife’s application for further spousal maintenance (in any event) because it is highly likely to continue as a source of conflict between the wife and the husband – to the detriment of them both and to the detriment of the family generally.
I also note section 90ST states as follows:-
“90ST Duty of court to end financial relations
In proceedings under this Division, other than proceedings under section 90SL, the court must, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the de facto relationship and avoid further proceedings between them.”
I note the decision of the Full Court in Bevan & Bevan (1995) FLC 92 – 600 where the Full Court (Nicholson, CJ, Lindenmayer and McGovern JJ) stated in relation to section 81 of the Act (the equivalent of section 90ST) as follows:-
"We have considered section 81 in making this order, but we feel that the expression of legislative policy which it contains must give way to the requirement of section 74, that the Court is to make such order as it considers proper, once the threshold tests of section 72 are overcome”.
It will be apparent that I have come to the conclusion that the wife in this case, has not overcome the threshold test of section 90SF(1). In particular, I am not satisfied that the wife “is unable to support herself adequately” – as stated in section 90SF(1)(b). My reasons in this regard have already been explained. Further, I specifically note the duty of the Court as stated by the Legislature in section 90ST. That duty would point the Court towards refusing an order for ongoing spousal maintenance to be paid by the husband to the wife. If I am wrong to take this duty into account in the wife’s application for ongoing spousal maintenance – it will make no difference to my conclusion and I rely upon the previous reasons provided herein for dismissing the wife’s application for ongoing spousal maintenance.
Costs
The respondent seeks various orders in relation to costs. On 14 May 2018 her Honour Judge Turner made an order reserving costs of that day. Further, on 11 May 2020 the court reserved costs when the further proposed interim hearing was adjourned to the trial that was due to commence less than three months after that date.
In relation to costs that were reserved to the trial – I note that the respondent wife/mother has sought those costs. In respect of her application in that regard – those applications are dismissed. In respect of any costs that may have been reserved previously, the Court's intention is that the parties shall bear their own costs. I note section 117(1) states the usual rule that each party to proceedings under the Act "shall bear his or her own costs". In the view of the Court – it is not "unjust" for the Court to make the costs orders sought by the respondent.
In reaching this decision I have had regard to section 117(2A). I am well aware of the financial circumstances of each of these parties – especially in view of the proposed final property order and the order for payment of arrears of spousal maintenance (section 117(2A)(a)). Neither party is in receipt of Legal Aid (section 117(2A)(b)). In relation to section 117(2A)(c) – the “conduct” of the parties to the proceedings is relevant. In addition, the Court is permitted (pursuant to section 117(2A)(g) to take into account “such other matters as the Court considers relevant”. The view that I have formed is that neither party have covered themselves in glory. I have made numerous findings were I have been critical of both the applicant and the respondent. I rely upon those findings in these reasons for reaching the conclusion that neither party should be the beneficiary of a costs order in relation to the reserved costs. Further, in respect of any of those other applications for costs currently sought by the wife in paragraph 5 of the written submissions (filed 21 August 2020) – my views are the same. To begin with, I'm not certain how it would be that this Court has jurisdiction to make a costs order in respect of what occurred in the Magistrates Court on 29 September 2018. No authority is cited to support such a submission. Even if this Court had the power to make the order – I would not exercise that power as sought by the respondent.
In relation to the costs order already made by his Honour Judge Andrew on 17 June 2019 – I note that the order required the applicant father to pay to the respondent mother "costs of and incidental in relation to his non-compliance with the interim orders and the subpoena objection on a party – party basis." There is nothing in the written submissions to take me to evidence where the "party – party" costs have been calculated. The costs should be payable in accordance with the scale of the Federal Circuit Court of Australia – as it seems to me, that would be the equivalent of “party-party basis”. I did not hear argument on the point. I do not intend making any further order. If the respondent needs to file an enforcement application in relation to that aspect – she should do so.
The other subsections of section 117(2A) have been taken into account by the Court in relation to the specific costs applications referred to here. Obviously, I'm only dealing with the costs applications referred to specifically in paragraph 5 of the respondent's written submissions of 21 August 2020.
I will give the parties time to submit orders to reflect the Reasons for Judgment.
One other matter which may become relevant in the future
This will only become relevant in the event that my conclusion requiring the husband to pay spousal maintenance arrears (in the sum of $111,900) up to the date of the trial is held not to be correct. That is, if it is subsequently held to be the case that the arrears of spousal maintenance (prior to the time of the commencement of the trial) should also be discharged - then, this paragraph will become relevant. In that event, my estimate of “future needs” under s.90SF(3) will increase from 15% to 20%. My assessment of contributions up until the date of the trial would remain the same. Under that scenario – an outcome of 70% to the wife and 30% to the husband overall will be just and equitable and I rely on the reasons already contained in the body of this judgment.
I certify that the preceding two hundred and ninety-three (293) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 12 March 2021
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