Merritt and Richards (No 2)
[2016] FamCA 66
•11 February 2016
FAMILY COURT OF AUSTRALIA
| MERRITT & RICHARDS (NO 2) | [2016] FamCA 66 |
| FAMILY LAW – PARENTING AND PROPERTY PROCEEDINGS – Undefended. FAMILY LAW – PROPERTY – Limited property and father may have hidden assets – All property otherwise in the power or control and ownership of the mother – Father's only interest in property is small sum of superannuation – Orders that there be a splitting order to transfer those interests to the mother. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
| Black and Kellner (1992) FLC 92-287 Briese and Briese (1986) FLC 91-713 De Winter and De Winter (1979) 4 Fam LR 583 Goode and Goode [2006] FamCA 1346; (2006) FLC 93,286 Runcorn and Raine (unreported [2008] FamCA 837) Steinbrenner and Steinbrenner [2008] FamCAFC 193 |
| APPLICANT: | Ms Merritt |
| RESPONDENT: | Mr Richards |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 78 | of | 2014 |
| DATE DELIVERED: | 11 February 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 1 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Phelan |
| SOLICITOR FOR THE APPLICANT: | Meier Denison Guymer |
| THE RESPONDENT: | No Appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr O'Connell |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | McCormack & Co |
Orders
That the mother have sole parental responsibility for the children C born … 2005, D born … 2007 and E born …2008.
That the children live with the mother.
That the father be restrained from contacting the mother for the purposes of making arrangements for any form of contact with the children.
That to the extent necessary, the mother have sole parental responsibility for signing any necessary document to obtain a passport (or a renewal of a passport) for each of the three children without the necessity to obtain the consent of the father.
That the monies held on trust by Meier Denison Guymer Pty Ltd, Solicitors, be released to the mother (or at her instructions) and this order shall be sufficient warrant to enable the said solicitors to release the funds notwithstanding their position as trustees for the parties.
Whenever a splittable payment becomes payable in respect of the interest of Mr Richards (Member No …) in Q Super, the mother (Ms Merritt) be paid 100 per cent of such splittable payment and there be a corresponding reduction in the entitlement that Mr Richards would otherwise have received but for this order.
This order has effect from the operative time which is four days after the sealed copy of this order is served upon the trustee of Q Super.
This order binds the trustee of the Q Super.
Whenever a splittable payment becomes payable in respect of the interest of Mr Richards (Member No …) in AMP Retirement Savings Account Fund, the mother (Ms Merritt) be paid 100 per cent of such splittable payment and there be a corresponding reduction in the entitlement that Mr Richards would otherwise have received but for this order.
This order binds the trustee of AMP Retirement Savings Account Fund.
This order has effect from the operative time which is four days after the sealed copy of this order is served upon the trustee of AMP Retirement Savings Account Fund.
That each party retain and by this order, any interest of the other is expunged, in all other property owned by or in the possession of the holder of that property as of this date.
That to the extent that any item of property in the possession of either party is encumbered by any liability, the person who is the owner of that property shall be solely liable for and indemnify the other against such liability.
That the Independent Children’s Lawyer be discharged from the proceedings.
That the mother be at liberty to provide a copy of these orders and reasons given this day to any health professional or school involved with the said children.
That a copy of this order be served upon the father at his last known email address by the solicitors for the mother.
That save as to any applications for costs, the application of the mother is dismissed and any application by the father is otherwise struck out.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES:
A.That by virtue of paragraph 1 of these orders, the mother does not need the consent of the father to obtain passports for the three children.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merritt & Richards has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 78 of 2014
| MS MERRITT |
Applicant
And
| MR RICHARDS |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
In the final hearing of proceedings between Ms Merritt (“the mother”) and Mr Richards (“the father”), the latter did not attend. Normal court process, as well as natural justice, requires the Court to consider whether some event has prevailed which has prevented the father’s attendance. There could be no doubt that the father knew of the hearing. Orders were made on 6 October 2015 setting that date; the father attended. On 5 November 2015, enforcement proceedings occurred in this Court before Bennett J where again the trial date was mentioned; the father attended.
On 27 January 2016, as a result of email communication with the father about a proposed superannuation order, the mother’s solicitor received the following communication from the father:
do what ever you need to do. I have never been afforded procedural fairness. I have no funds or ability to appear or to have paperwork in court. so in essence you and your lying client will undoubtably (sic) get the unfair crap you have requested.
know this though, I am left with no option than to declare bankrupt, this I will be doing Wednesday and I will request that the administrator applies to be joined as a party to the case, as a result I would expect that an application shall be put in place to adjourn the final hearing so that the administrator may then apply to obtain what I would be rightfully be entitled to. (sic) Exhibit M1
Despite the father’s prophecy about a bankruptcy trustee attending the Court, that did not eventuate. The Court could not be confident that the father has entered into a bankruptcy arrangement.
Even if there was some substance to the indication of potential bankruptcy, nothing explains the father’s absence in relation to the parenting proceedings about his children. For those reasons and others given when the final hearing began, the father’s response (filed in July 2014), and in respect of which, no supporting evidentiary material has been provided, was struck out.
Justice entitles, as well as requires, an end to this litigation particularly for the children but predominantly the wife. The proceedings began in the Federal Circuit Court in 2014. There have been a number of hearings. If nothing else, the children deserve to get on with their lives without interference (and that is what it has been) from the father.
On 14 December 2015, the Magistrates’ Court at Suburb H made an intervention order against the father naming the mother, the children of the relationship and one of the mother’s other two children, F, as “Affected Family Members” to be protected by that order. The father was present at the hearing and did not agree with the order, which I note remains in force indefinitely. An unusual condition of the order was that the father could:
Negotiate child arrangements by letter, email or text message; or communicate with a protected person through a lawyer or mediator; or arrange and/or participate in counselling or mediation; or go to the home of the protected person, in the company of a police officer or a person chosen by the applicant (the mother), to collect personal property.
The children of this relationship are well protected by the mother. She sought an order that the father be restrained from directly contacting her as might be anticipated by that intervention order. If the father wishes to make some arrangement, her position is that it should be through a formal application to this court. Whilst the father may not have been aware of the mother’s application for that precise order, the mother’s outline of case and her application filed on 13 January 2016 made her position very clear; she seeks that there be no contact.
I do not know the precise basis of the intervention order (because the full details of s 60CC(3)(k) have not been provided) but I conclude that the Magistrates’ Court at Suburb H was satisfied that the father had caused problems sufficient to justify excluding him from the lives of the mother and the children indefinitely. The unchallenged evidence of the mother is that a similar order was made in August 2013 against the father which included herself and the children. There were problems about the service of that order upon the father. Ultimately a final order was made in January 2014 for one year. The mother later applied for an extension and variation of that order; an interim order was made on 20 August 2015.
For reasons which remain obscure, on 15 August 2014, the father and his partner applied for an intervention order against the mother and that was granted on an ex parte basis. This according to the mother had something to do with her entering the G Town property and breaking a lock. Eventually the father’s application was transferred to the Suburb H Magistrates’ Court to be heard with the mother’s application. They were both heard on 14 December 2015 and both parties were said to have given evidence. The father’s application was dismissed. The mother’s application was granted.
It is appropriate in those circumstances to allow the mother’s oral application to proceed without formal notice to the father of its precise terms. In my view, there is no prejudice to the father and indeed, his complaint in the email to which I have referred about not being given procedural fairness has no substance.
Relationship
The mother was the applicant for orders. She is aged 46 years and engaged in home duties.
The father was the respondent and he is aged 45 years. His current occupation remains obscure.
The parties commenced a de facto relationship in August 2006 at the mother’s home in Suburb H. That relationship came to an end in 2012.
There is no dispute that the applicant and the respondent were in a de facto relationship. No jurisdictional issues of any nature were raised (such as those found in s 90SK(1) and (1A) or in s 90SM(9) or s 90SA of the Act). There is also no dispute that the de facto relationship has broken down and that the application has been brought within time (see s 44(5)).
From the relationship, three children were born. They are C aged 10 years, D aged 8 years and E aged 7 years.
The mother also has two children with her former husband. Mr I and Ms F are now both adults.
The parties met in July 2004 and commenced their relationship. At that time, the mother had a property, which she still owns and where she and the children currently reside, in Suburb H. It is asserted that at that time, the property was worth something more than $350,000 and a sworn valuation now shows that it is valued at $455,000. When the cohabitation commenced, the property was unencumbered but as a result of the activities during the relationship, money was borrowed for the purposes of the father’s business. Mortgage security was taken over the Suburb H property and there is an outstanding mortgage now of $100,000.
In August 2006 when the de facto relationship commenced, the parties moved into that house. The mother at that time also owned a recent model motor vehicle and a household of furniture.
When the relationship commenced, the father was the director of a company which conducted a transport business but the vehicle used for the business was leased and he had no assets.
Between 2004 and when the parties commenced cohabitation, two vehicles and trailers were purchased by the father’s corporate entity, both of which were purchased in the mother’s name because of the father’s credit rating. Repayments of the loans taken to finance these purchases were made from the mother’s bank accounts.
Ultimately in 2008, the company was deregistered by ASIC and the mother deposed to the fact that the father was unemployed before he became a driver as an employee. He then commenced a partnership in 2011. An ASIC search shows that after separation, the father commenced his own transport company.
Other assets were acquired prior to separation with some of the money coming from the mother’s banking accounts.
After separation, the mother continued to assist the father by purchasing two vehicles.
I am satisfied on the mother’s unchallenged evidence that she made a significant financial contribution towards the few assets that the parties had at the time of separation or shortly thereafter, leaving aside the home at Suburb H. Her income paid, and continues to pay, the mortgage commitment which, under the orders that I shall make, she continues to carry to the exclusion of the father.
A property was purchased at J Town in New South Wales during the relationship for a very modest sum of $18,500 but with a mortgage of approximately $14,000. It was purchased in the name of B Holdings Pty Ltd, the directors of which are the mother and a Mr Moore. This property has been valued by a valuer at $11,500 but there are outstanding rates of over $2000.
When the proceedings were before this Court in October 2015, Mr Moore was a party. Consent orders were made on 25 November 2015 providing for Mr Moore to be paid $1000 by the mother, in return for which he would transfer to her his shareholding and resign his directorship in B Holdings Pty Ltd. Whilst that has not been implemented, it seems a matter of logistics. Certainly, the time has passed for the completion of that order but I propose to include B Holdings Pty Ltd in the list of assets as owning the block of land at J Town.
During the relationship and since, the mother has been responsible for the various administration matters of B Holdings Pty Ltd including ASIC fees, a tax fine of $1000 and various mowing expenses because there is significant land around the building structure.
There were plans for the property at J Town to be sold but that did not ultimately occur.
In February 2010, the mother and father purchased a property at G Town for $82,500. The mother’s unchallenged evidence is that she paid the deposit as well as the balance of the purchase price from her bank account. The father was not present and has never filed material to indicate whether he disputes that the money that was used to purchase G Town came exclusively from the mother.
The mother’s evidence was that upon the death of her mother in 2011, she received $30,000 from the estate.
G Town was sold pursuant to a court order. It would seem that the father was not cooperative. A registrar had to sign documents and the consequence was that the mother incurred legal fees.
The proceedings regarding that sale commenced in the Federal Circuit Court and a variety of orders were made by Judge Small. The father was uncooperative. An enormous amount of money was spent in the Federal Circuit Court but ironically, the father has now failed to participate.
Various items of plant and equipment were ordered to be sold both by this Court and the Federal Circuit Court. As a consequence, there is approximately $30,500 in the trust account of the mother’s solicitor.
It was the mother’s evidence that her legal fees currently exceed $50,000 because of the numerous steps she has had to take to get a resolution of the proceedings. As earlier mentioned, the last documents were filed by the father in 2014 and his lack of cooperation in trying to get to a resolution of the matter has exacerbated that cost position.
The mother’s unchallenged evidence is that the father took a vehicle to the G Town property where he chained it up, damaged some panels and removed eight tyres and the front light. He took another vehicle to Queensland and it has since disappeared. Various other items were left exposed to the weather.
The father also relocated tools and equipment and spare parts to a property which meant that as a consequence of the order for sale, transport costs were unnecessarily incurred.
The mother also owned a caravan now valued at only $1000 as a result of damage done by the father.
The mother’s evidence set out what property is now left. It is a sad and unimpressive picture.
In addition to the problems of her own legal costs, the mother has expenses associated with the line of credit, vehicle purchase payments and expenses associated with the administration of B Holdings Pty Ltd. All of that will come to approximately $42,000.
The children
This relationship was infected with family violence as a number of illustrative examples shows. In 2005, the father was violent to Mr I (the mother’s adult child) and made threats to assault the mother and the maternal grandmother. In 2008 he smashed the windscreen of the mother’s new car when she, C and D were in it. In May 2009, the father assaulted the mother’s child Mr I and the police charged him with offences. That assault took place in the presence of F, C and D. The Department of Health and Human Services also became involved with the family and that precipitated an assault on the mother by the father where he grabbed her by the throat and demanded that she tell the Department that the May 2009 incident was Mr I’s fault. The mother’s evidence was that the school had taken the matter up with the relevant welfare department.
The father assaulted Mr I in December 2009 and damaged the mother’s vehicle in the presence of F, D and E.
The father’s behaviour in January 2010 and thereafter was similarly appalling. In January 2010, he grabbed the mother by the throat and tore up a document relating to the purchase of the property at G Town. In March 2010, the father hit Mr I. He was charged with assault in relation to that incident. In August 2010, the father assaulted his son Mr K who was then aged 20. In 2011, the father stabbed a kitchen table several times with a screwdriver in the presence of F, C, D and E and the mother and threw a computer mouse through the kitchen window, breaking the window.
In July 2011, the father verbally abused the mother, F, C, D and E and then smashed his iPod and threw his telephone away.
In June 2012, the father punched the mother, grabbed her by the hair and tried to drag her to a car. He then kicked and punched her when she resisted. He drove off with F, C, D and E in the car and made threats toward their lives and the life of the mother’s dog.
In August 2012, the father made threats that he would send “bikies” around and in November 2012, he slammed a car door on to the right leg of the mother and then threw gravel at her car as she drove away with C, D and E as passengers.
It is unnecessary that I detail the precise evidence as the mother set it out in her affidavit. The father has had access to that evidence and chosen not to dispute it. The father’s language towards and in the presence of the children was appalling. This was language of a denigrating nature. Much of this behaviour as detailed in the mother’s evidence is reflected in the evidence of the experts to whom I turn below. Their evidence is telling regarding the impact of the conflict on these children. As the father filed no evidence, I have accepted that he does not dispute what she has said. On that basis, I find no reason to doubt the evidence of the mother. The instances of abuse are chilling.
The father, as an interstate driver, was only at home one or two days per week. He spent little time with the children and was rarely involved in their activities. He had no interaction with the children’s peers or their parents. All of the decisions regarding the care of the children and addressing their problems were dealt with by the mother. The father refused to have the children immunised. He did not attend the day care. His attendance over five years at kindergartens was minimal. He attended school only on the first day. Whilst that might have been understandable if he was working full-time, the evidence supports a conclusion that he was not particularly interested in any of the activities of the children. All of that meant that the mother was left with the responsibility for making all of the significant decisions in the lives of the children.
The unchallenged evidence is that C has problems at school. His performance is poor and he requires a teacher’s aide. He requires the attendance upon certain allied health professionals.
A potential step towards an improvement of C’s health and outlook was available to the parents’ but the father refused to cooperate. A situation that allows for such an outcome cannot be allowed to continue.
D has learning difficulties and requires fortnightly speech and occupational therapy.
E is a good student.
The evidence of the experts
Dr L
Dr L is a Mental Health Clinician. She said that C presented with ‘a range of social, emotional and behavioural difficulties, including oppositional behaviour at home and at school, school refusal, difficulties with learning, and nocturnal enuresis and encopresis’ and these problems presented ‘on a background of ongoing acrimonious family court action’. She said that C had been referred to an inpatient unit for in-depth assessment but that referral did not go ahead for reasons that included, among others, acrimony between C’s parents. C has been diagnosed with Autism Spectrum Disorder, Oppositional Defiant Disorder and Separation Anxiety Disorder, and, according to Dr L, ‘will engage in extreme behaviours to stay with his mother and disrupt efforts to engage him in schooling’. It was suggested that although children with Autism Spectrum disorder will have lifelong symptoms, C had scope for significant improvement with support at home and at school to overcome his separation anxiety symptoms.
According to Dr L, C would be assisted by intensive behavioural support.
Ms M
Ms M is an occupational therapist. She observed that C was diagnosed by other healthcare professionals with Juvenile Idiopathic Arthritis in 2010 and diagnosed with ADHD, Oppositional Defiant Disorder, Anxiety Disorder and Parent-Child Relationship Disorder in 2014. A psychological assessment had shown C had significant working memory difficulties, while formal and informal language assessment had shown he had language difficulties. It is unsurprising, and certainly relevant to any parenting orders and any question of the father seeking to influence the lives of the children and particularly C, that the child has difficulty tolerating change. He requires a firm routine that his mother has found difficult to alter and he sleeps poorly.
C has difficulty separating from his mother and often refuses to complete tasks independently; he was unable to separate from his mother while attending occupational therapy sessions and also could not engage in the sessions while his sisters were present. That made attendance difficult over the school holiday period.
Ms M observed that C was anxious about entering the assessment space and hyper-vigilant. He has a slumped posture, difficulty in maintaining eye contact and difficulty with breath control. C avoided discussing his own emotions and had poor control over his use of a texta.
Ms M opined that C would benefit from ‘an environment that can support a predictable routine, with predictable expectations’ and will ‘continue to require the support of an adult’ to assist him in matters of hygiene and health, planning and structuring activities and making sense of and managing his emotions.
Ms N
Ms N was commissioned to writer a family report by the Federal Circuit Court but was unable to interview C or the mother in person as C would not separate from the mother. It was observed that E said she was “not sad about not seeing” her father and did not want to see him because C and her mother would be unhappy if she did. She said she was not seeing her father “because he was mean” and that she had been informed of incidents of violence perpetrated by him. D did not wish to see the father because, as she said, “he hurts us” and “he is mean”. D said that her father had not hurt her but had shut her mother’s leg in a door. She noted that her mother did not want them to see their father and that “if we’re naughty she says we have to go live with dad”. She said “C definitely doesn’t want to see [the father] because he is afraid he will get hurt”.
It is significant that the children have witnessed the family violence and are affected by it. The car door incident report of D corroborates the mother’s version of events.
Ms N had the benefit of a report of psychiatrist Dr O. He considered the incidents acknowledged by the father, which appear to have been discussed when Dr O interviewed the father, to be “very concerning as is his use of violence as a form of discipline”. Dr O’s view was that ongoing unsupervised time between the father and the children was contraindicated for psychiatric reasons.
Dr O had opined that there was sufficient evidence indicating that the father suffers from some form of mild-to-moderate Antisocial Personality Disorder. Dr O opined that this “would appear to be a significant factor” affecting his ability to “consistently provide positive parenting without impulsive and reckless relapses into inappropriate verbal and physical behaviours”.
The report of Ms N was not without its criticisms and expressions of concern about the mother. She noted the Department of Human Services had been involved with the family and had substantiated evidence of the father’s violence toward Mr I but the mother had not notified them. That, she thought, raised questions about the mother’s capacity as a protective parent. She was also concerned that the mother discussed family violence incidents with the children which the children otherwise had not witnessed.
Ms N expressed concern about the mother’s reactions to the children when frustrated, including screaming, swearing and telling the children that if they were naughty, they would have to live with the father. In fairness, the mother acknowledged that was an inappropriate threat and she is addressing it in counselling.
Ms N was not able to observe the children with the father, which made formulation of recommendations difficult. The absence of the father and his lack of material to support any resolution of the parenting problems, particularly with the major issues of the children’s health, indicates that Ms N probably did not need to make further assessments. She recorded the mother’s stance that the two girls might be willing to see their father in a supervised setting. In my view, it is difficult to see how supervised visits could benefit the children.
All of the evidence of Dr L, Ms M and Ms N corroborates the evidence of the mother that there are significant problems for these children. Disruption of their routine is unlikely to be helpful to their development. Worse still, these children have witnessed significant conflict and have made their views clear that there is little if any benefit in any relationship for them with their absent father. The evidence is therefore of assistance particularly on the question of some form of injunction precluding the father endeavouring to negotiate some parenting arrangement with the mother. Ms N noted that the mother was “stressed” by the anticipation of visits by the father. That stress is not something that the mother should have to experience, given its impact upon the children.
All of these children are on the waiting list for counselling. Since the separation in 2012, the father has had nothing to do with the children, who refuse to speak to him. He also has not contributed child support since September 2013 and there is an outstanding child support obligation.
In respect of child support, the mother had sought an order under s 123A of the Child Support (Assessment) Act 1989 (Cth) but ultimately decided that enforcement of the current assessment might be better sought through the Child Support Agency. In any event, the father has shown little interest in the children’s financial welfare.
THE LEGAL ISSUES
Part VII of the Act sets out how the determination of parenting orders should be approached.
Because the response of the father which sought orders has been “struck out”, there is no application by him for parenting orders. It is the mother who therefore seeks orders. She seeks the following:
·That she have sole parental responsibility for the three children;
·That the children live with her;
·That the father be restrained by injunction from contacting her to negotiate arrangements for any time between himself and the three children; and
·That she have the right to seek a passport for the children without having to obtain the father’s consent.
Section 64B sets out that if an order is made, it may deal with a number of matters relating to contact between parents and children. It is important to look at what impact any order would have on the children if the conflict between parents continued. Here, the picture is not encouraging.
Section 68B(1) of the Act provides that a court may grant an injunction which is appropriate for the welfare of a child including for the protection of a parent. The mother seeks the order on the basis that the purpose of the intervention order to which I have already referred was to stop the father contacting her. He could continue do so however under the guise of making arrangements for contact with the children. The evidence supports the finding that such an approach by him would not be in the best interests of the children. The children have no desire to see him. He has shown no interest in them. His behaviour has been counter-productive for the stability of the children. There have been a number of hearings, all of which ran up legal costs unnecessarily. The suggestion of any contact in those circumstances is not in the best interests of the children nor that of the mother. That justifies an order for injunctive relief.
The evidence about the impact of the father’s behaviour on the children is also relevant to the question of who should be able to make decisions about them. Major long term decisions about children include issues of their health, education, religion, name change and where they live. The husband has shown no interest in those issues and his absence from these proceedings suggests that will not change. The behaviour described in the reasons above indicates little prospect of civil communication with the mother over such decisions.
In Goode and Goode [2006] FamCA 1346; (2006) FLC 93,286, a case about interim arrangements, the Full Court observed about legislative intent at [72]:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
Involvement by parents must be seen to be advancing the welfare and development of their children. It is difficult to see here what the father has to contribute. To the extent that the legislation considers that meaningful involvement of parents in the lives of their children is important, the amendment to s 60CC(2) in 2012 makes clear that if that sort of relationship clashes with the need to protect children from harm, the latter must take precedence. This is such a case.
Section 60B sets out the Parliament’s aspiration for Australia’s children. The legislative objects are to ensure that the best interests of children are met by:
·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;
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In so far as the father is concerned, the Court has no evidence that would enable it to understand his proposals for these children, nor, importantly, how he sees any of the children’s future needs of a physical or financial nature being met.
Parental responsibility is defined to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. In Runcorn and Raine [2008] FamCA 837, Murphy J said at [34]-[38]:
34.A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
35.Equally, though, an order for “sole parental responsibility” in favour of a party means (as, it seems to me, follows from the statutory definitions) that the other party has no “duties, powers, responsibilities and authority” in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
36.The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
I respectfully adopt and agree with the views of Murphy J. It is a serious step to exclude a parent from both a child’s life but also the decision-making processes surrounding that child. However, absent involvement and a willingness to have a positive role in a child’s life, the court’s hands are metaphorically tied. In circumstances of violence as here, the court is justified in excluding a parent simply because the sort of behaviour which the evidence shows occurred, is irresponsible parenting. In any event, the best yardstick for determining the question is to examine whether the parents could meet the statutory requirements if they had joint responsibility. History tells the prospects of successful joint decision-making. No evidence here suggests it could work for these children.
Section 61DA requires a court to apply a presumption of equal shared parental responsibility when making parenting orders. That presumption, consistent with the Parliament’s view that parents should share the decision-making responsibility, is that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.
Abuse and family violence are now defined in s 4 (1) and s 4AB respectively. The abuse definition refers to “serious psychological harm” and “serious neglect”. The evidence here is overwhelming in favour of a finding that the father has perpetrated abuse and family violence. I find his behaviour has been particularly poor in so far as his conflict with the mother has so often occurred in front of the children but also because of his violence to another member of the mother’s household.
The presumption in s 61DA does not apply.
I am satisfied that it would not be in the best interests of the children for their parents to have any joint responsibility for the children because joint decisions about education, religion and health could not be made efficaciously.
As to what parenting order should be made, s 65D provides that in proceedings for a parenting order, the court may, subject to provisions to which I shall turn, make such parenting order as it thinks proper. The word “proper” refers to a discretion in the Court to do what it considers is right for a child’s future. There is little prospect of any civil relationship between the parents. The father has provided no evidence as to how he would raise or assist in the raising of the children. I find that all of the evidence supports the conclusion that under difficult circumstances, the mother is, overall, a positive and child-focused parent.
Ultimately, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (s 60CA). The use of the word “paramount” means that it is not the only consideration but if there is a conflict, the children’s best interests may prevail. That mandatory requirement also appears in s 65AA of the Act.
To determine what is in a child’s best interests, the Court is required to consider the matters set out in s 60CC. I have already dealt with the primary considerations.
In s 60CC(3), the court is required to consider a number of factors. They can be grouped. The views of the children are that there should be no contact with the father. The independent children’s lawyer (appointed under s 68L) supports that position. Similarly, the family report writer saw no real benefit in not adopting the children’s views. That evidence is admissible and relevant because of s 62G(8).
The father has been shown not to be a responsible parent and there is no evidence about his capacity to act as a parent. The children have no current relationship with him . There is no evidence as to how those relationships could be repaired, constructed or resolved. No financial support is provided by the father. Whilst I have some concerns about the mother, they are limited. There is little choice here in any event. Section 60CC requires the Court to consider the involvement of the parents in respect of their desire to involve the other and be involved in the children’s life. There is little I can say about the role of the father. There appears to be no impact on the children by his absence.
I have already dealt with family violence in the details above. They do not need repetition.
I admire the mother’s efforts in the fulfilment of her difficult task.
This is a case where the Court should make final orders. These children and the mother need an end to this controversy even if the resolution is ultimately restrictive of the nature and form of the father’s relationship with them. The respite for them is more important than the hurt to the father.
Property
The mother sought that, to the extent the property of the either of the parties was known, she retain it all. As the father did not file a financial statement, any property he may own remains obscure. For example, it was submitted by counsel for the mother that the Court could infer that the father had retained possession of a vehicle that is currently missing. However, that vehicle was not suggested to be highly valuable. Another example is that the father created the company P Pty Ltd. If that entity owns any property, the details are unknown, but the very fact that the father incorporated such an entity suggests he foresaw that doing so might provide some financial benefit or asset-protection.
No details were known about the father’s banking accounts nor indeed his indebtedness to anyone. The latter is all the more curious given the father’s statement in the email referred to earlier that he intends to enter into a bankruptcy arrangement. One would suspect that would only be possible let alone necessary, if he had creditors.
On the unchallenged evidence, I am satisfied that the known property of either of the parties is as follows (rounded up or down):
House$455,000
Less mortgage, personal loan
and credit cards $123,640 $331,360
Car$20,000
B Holdings Pty Ltd
(estimated net value of
Shareholding) $9,000
Contents of house $10,000
Shares$4,000
Trailer, caravan, camper $3,000
Money currently in trust
or soon to be in trust from sales $30,000
Total$407,360
Superannuation
Mother’s interests $ 4,000
Father’s interests $15,000
Subtotal$19,000
It will be seen that I have ignored the mother’s bank accounts. Whilst they were candidly included in the aide memoire, it has been so long since the parties separated and the main source of the mother’s capital seems to be Centrelink benefits. In light of the absence of any indication of what money the father has retained, it would not be just and equitable to include the funds in those accounts as property that should be contemplated in the division. In any event, they are monies that belong in law to the mother.
I have also included the estimated net value of the mother’s shareholding in B Holdings Pty Ltd. I have done this on the assumption that the other shareholder and director no longer has any legal interest and based on the obligations to meet rates on the only property owned by the company.
I have included the contents of the house, the shares and the trailer and other items on the basis that they are modest in value but may have all been attributable in some way to the joint efforts of the parties. The same must be said in relation to the money that is currently in the trust account of the mother’s solicitor.
Although superannuation interests are deemed to be property, it is a different “species” of property and having regard to the quantum and the ages of the parties as an indicator of how far away those interests are from being accessible as cash, they should not be included as part of the general property for division.
I have also ignored the outstanding legal costs of the mother on the basis that at least as a starting point, s 117 of the Act provides that each party shall bear their own costs. That may not necessarily be the ultimate outcome in these proceedings.
Accordingly, the property for consideration as to any division is $407,360, all of which, save for $30,000, is owned by the mother.
In respect of the superannuation, the annexure to the affidavit of Mr Meier relied on by the mother shows the respective values of the policies owned by the father. It is interesting to observe that notwithstanding the absence of any evidence from the father, in the period between 1 July 2015 and 11 January 2016, his superannuation entitlement in the Q Super dropped significantly and without explanation.
The legal issues
Section 90SM provides that after the breakdown of the de facto relationship, the Court may make such order as it considers appropriate altering the interests of the parties in their property. Section 90SM(3) provides that the Court must not make an order unless it is just and equitable to do so.
It is just and equitable to alter the interests of the father here but not the mother because what she has, does not fairly represent all that she has contributed to. It ignores her indirect contribution to the father’s superannuation. It ignores the fact that her financial position has deteriorated since the commencement of the relationship. The father has failed to provide details of his financial position drawing the suspicion of the mother that he has assets to which she contributed. It would not be fair to allow the father to walk away with assets such as superannuation where he has made little contribution to the mother’s assets. In my view, justice and equity requires an alteration of the father’s property in favour of the mother.
Having decided that it is just and equitable to alter the parties’ property interests or, more relevantly, alter the legal interests of the respondent in favour of the applicant, the Court is obliged to consider what order should be made taking into account:
·The financial contributions made by each to the acquisition, conservation or improvement of any of the property of the parties (whether or not that property still exists);
·The non-financial contributions made to those same properties;
·The contributions made to the welfare of the family;
·The effect of any proposed order upon the earning capacity of either party; and
·The matters referred to in s 90SF(3) in so far as they are relevant; and
·Any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future.
In respect of (e) above, the Court is obliged here to consider:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care of control of a child of the de facto relationship who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
…
(f)subject to s 90SF(4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable;
…
(i)the effect of any proposed order on the ability of a party to recover the creditor’s debt, so far as that effect is relevant;
…
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties;
…
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship;
…
(q)any child support under the Child Support (Assessment) Act1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship;
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
…
It is noticeable that notwithstanding the length of the relationship, the father never sought to become a joint proprietor of the home with the mother. That could have occurred when the property was provided as security for borrowings associated with the business and plant and equipment that the father was using but it did not. It is also significant that the mother has owned the Suburb H property since prior to the relationship with the father but the equity has, in real terms, decreased by the mortgage.
The asset sales which have occurred pursuant to court orders relate to the transport business which the mother financed and for which she remains liable in the form of the mortgage.
The B Holdings Pty Ltd entity did not involve the father, yet the company bought land which is now reflected in the assets of the mother.
I find that the father specifically did not seek to become an owner and, absent any evidence from him, there is nothing to suggest that he had (or has) any equitable interest in any of those properties. Nothing in the evidence suggests anything like a constructive, resulting or express trust here.
I find the properties predominantly already belong to the mother and that no claim for any form of interest has been shown by the father.
Contributions
On the evidence, I find the mother’s contributions in every category of consideration under s 90SM were overwhelmingly greater than those of the father. In making that finding, I take into account the damage that the father has done to the value of assets as indicated earlier in these reasons. The mother’s unchallenged evidence is that the conduct of the father may have contributed to the drop in value of such things as the caravan and the tools and equipment.
Before making any order however, the Court must be satisfied that it is just and equitable to make such an order. Here, the only known property interests of the father are his superannuation. There is an inference open that he has retained other property but I am unable to say what property, or what values, are involved.
But for his superannuation, the evidence does not support a conclusion that the father has any assets. To a large degree, however, he is the master of his own demise, having regard to his positive obligations to provide evidence as to not only his assets but also his earning capacity and financial position (see Black and Kellner (1992) FLC 92-287 and Briese and Briese (1986) FLC 91-713).
What is just and equitable?
If the mother was permitted only to retain the assets she already owns and the trust monies, which are less than the debts for which she is responsible, in my view, the outcome would not be just. The only fair solution is to adjust the father’s property in the superannuation (as that is the only property known) in favour of the mother. The extent of the adjustment is the question.
In respect of the superannuation, the father contributed to the funds by his earnings. Therefore, I find his contribution to the superannuation is greater than that of the mother. The mother’s contribution to the superannuation however can be seen as an indirect one. She has cared for the welfare of the family made up of the father and the children. Despite that, the primary contribution to the superannuation of the father has clearly been greater by him than that of the mother.
Section 90SF
The Act requires the Court to contemplate the factors set out in s 90SF(3). I find as follows:
There is no suggestion of a health problem of either of the parties and their ages are such that each has the capacity to be employed albeit that the mother has difficulties because of her obligations to the children;
The father’s income position is unknown but it would seem that he is a driver earning an average wage. The mother is dependent upon Centrelink benefits;
The mother has the care and control of the children and as indicated by the evidence, that is a burdensome role;
The Commonwealth is currently funding the daily lives of the mother and the children and there is no child support or assistance provided by the father;
The mother’s standard of living is much as it has always been save that she now has the added burden of the obligation of debt which, even as a result of these orders, cannot be ameliorated. That puts her in a different position to what she was when the relationship began.
There is no suggestion that the secured creditor cannot be paid, because it has security over the mother’s home;
The mother will continue her role as the primary parent of the children knowing that, on the evidence before me, there is no other person willing to take on that role and she will receive little or no physical assistance from the father;
The terms of the orders proposed are extremely modest, putting the mother in the position where she is realistically worse off than she was when the relationship began as a result of the indebtedness but now has to meet the added costs burden because of the lack of assistance from the father in respect of the litigation;
The amount involved is extremely modest and if the superannuation is the only other asset that can be attached for the purposes of any award, it will be a maximum of about $15,000 in any event. Ultimately, the mother will be unable to access it until such time as she reaches retirement age.
All of those factors justify an adjustment in the mother’s favour. It is particularly unfortunate that the father is providing neither child support nor financial or physical assistance. There is little prospect of that changing and there are a number of child-rearing years ahead for the mother.
In De Winter and De Winter (1979) 4 Fam LR 583, 589, Gibbs J noted that the discretion conferred upon the Family Court to make orders affecting financial interests under s 79 of the Act is “extraordinarily wide”. Notwithstanding the court was referring to the marriage relationship, the legislature has used the same language relating to de facto relationships. I see no reason to think that the same judicial pronouncements would not apply here.
Coleman J’s observation in Steinbrenner and Steinbrenner [2008] FamCAFC 193 is also pertinent; his Honour said at [234]:
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
In my view, a just result is that the mother retains what she has and is given the funds currently held in trust to satisfy or alleviate her indebtedness (including her own legal costs). She should additionally be given a further entitlement to enable her to put something aside for her own retirement, provision for which is made more difficult because of her obligations to the children. Her position is otherwise unlikely to change. To take a portion of the father’s superannuation, which totals less than $20,000, and approach any division in a percentage way would be trivial and probably meaningless. The only fair result is to give the mother the entire amount.
Procedural matters
The mother indicated that she desired the opportunity to seek an order for costs if it was practical. I shall leave that option open to her. It may very well be that if a trustee in bankruptcy does seek to intervene, the costs issue needs to be reconsidered.
I shall also formally discharge the Independent Children’s Lawyer and direct that these reasons and the orders be served by email on the father.
The proceedings are otherwise dismissed.
I certify that the preceding One Hundred and Thirty One (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 February 2016.
Associate:
Date: 11 February 2016
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