MILL & MILL

[2012] FMCAfam 805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILL & MILL [2012] FMCAfam 805

FAMILY LAW – Parenting – best interests of the children – equal shared care of the children – capacity of the parents to co-parent.

FAMILY LAW – Property – 18-year marriage – contributions – question of add backs considered.

Family Law Act 1975, ss.60A, 60CC, 65DAA, 75(2), 79

Goode v Goode (2006) 36 Fam LR 422
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Applicant: MR MILL

Respondent: MS MILL

File Number: MLC 6219 of 2011

Judgment of: Whelan FM

Hearing dates: 14, 15 & 16 May 2012

Date of Last Submission: 16 May 2012

Delivered at: Melbourne

Delivered on: 8 August 2012

REPRESENTATION

Counsel for the Applicant: Mr Hoult

Solicitors for the Applicant: Taussig Cherrie Fildes

Counsel for the Respondent: Mr Wood

Solicitors for the Respondent: Nevett Ford

ORDERS

1. That the children [X] born [in] 2001 and [Y] born [in] 2003 (“the children”) live with the Wife.

2. That the Husband and Wife have equal shared parental responsibility for the children.

3. That the Husband spend time and communicate with the children as follows:

   (a)In the first week, from 3.30pm on Thursday to before school on Friday;

   (b)In the second week, from 3.30pm on Thursday to 5.00pm on Sunday;

   (c)For half of all school term holidays by agreement, but failing agreement the first half;

   (d)For two weeks of the Christmas school holidays by agreement;

   (e)From 9.00am to 5.00pm on Father’s Day;

   (f)For not less than 3 hours by agreement on each of the children’s birthdays;

   (g)For not less than 3 hours by agreement on the Husband’s birthday;

   (h)From 3.00pm Christmas Day until 3.00pm Boxing Day in 2012 and each alternate year thereafter;

   (i)From 3.00pm Christmas Eve until 3.00pm Christmas Day in 2013 and each alternate year thereafter.

4. That, where changeover is not at the children’s school the Wife deliver the children to the Husband’s residence at the commencement of his time and that the Husband deliver the children to the Wife’s residence at the conclusion of his time.

5. That both parents be noted as enrolling parents and emergency contacts at the children’s school, after-care and extracurricular activities.

6. That either parents and the grandparents, be at liberty to attend any significant (e.g. end of year, semester or term) school events, and any significant extracurricular or sporting events.

7. That the parents notify each other within 24 hours of any change of address, email or telephone number (including mobile phone).

8. Each parent must advise the other of:

   (a)Any significant illness, accident or injury suffered by a child;

   (b)Any significant medical or dental treatment provided to a child;

   (c)Any medication a child is to take while a child is in the other’s care including the dosage;

   and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.

9. That if a parent proposes to take the children away for holidays, that they provide the other parent with the address and telephone number for the proposed holiday location, not less than seven days prior to departure.

10. That the Wife retain possession of the children’s passports for safekeeping, and if the Husband is travelling overseas with the children in accordance with the following Order, that the Wife deliver the children’s passports to the Husband not less than four weeks prior to the date of intended departure, and that the Husband return the children’s passports to the Wife within 72 hours of return from any overseas trip.

11. That either parent be at liberty to travel overseas with a child or children, provided that:

    (a)The proposed period of travel falls within a period in which the children would be living with that parent pursuant to the terms of these Orders;

    (b)Any proposed destination is a country which has acceded to the Convention on the Civil Aspects of International Child Abduction, and is a convention country under Regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986;

    (c)The parent travels with a child or children for the entire period during which a child or children is travelling;

    (d)The parent that is proposing to travel provides the other parent with:

    (i)Not less than eight weeks prior to the intended departure, a detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel; and details of accommodation for the entire period of travel (including if applicable, the name of accommodation, address and telephone and email contact details);

    (ii)Not less than four weeks prior to the intended departure, a certified copy of the booked tickets in the parent’s and children’s names (either the hard copy tickets or a written confirmation of the tickets from the travel agent or airline) for the departure and return flights; and

    (iii)Not less than 2 weeks prior to the intended departure, details of an email address or telephone number at which the children and parent can be contacted during the trip.

12. That if a parent is travelling overseas with the children, the parent must arrange for the children to telephone the other parent in Australia, within four hours of arrival at the intended destination (not any flight stop-overs), on each alternate day during the period of the trip, and within four hours of arrival back in Australia.

13. That the Husband retain the former marital home situate at Property C, [C] (“the marital home”).

14. That the Husband pay the Wife of total of $670,160.00 within 30 days of the date of this Order.

15. That in the event that the Husband does not wish to retain the marital home, or is unable to raise the loan needed to pay the Wife within 30 days of the date of this Order, the house be sold and the proceeds of the sale be divided as follows:

    (a)The amount of $670,160.00 minus 40% of costs associated with the sale be paid to the Wife; and

    (b)The Husband to retain the balance.

16. That the Husband retain the business [C] PTY LTD (“[C] Pty Ltd”).

17. That the Husband retain the two Peugeot cars currently in his possession.

18. That the Wife retain the Citroen motor car currently in her possession.

19. That the Wife be liable for the HECS loan of $9,772.00.

20. That the Husband be liable for the ANZ Investment loan.

21. That the Husband retain his superannuation assets in the [E] Pension Fund and the [W] Pension Fund.

22. That the Wife retain her superannuation assets in the [U] Fund and the [E] Pension Fund.

23. That pursuant to s.90MT(4) of the Act a base amount is to be allocated to the Wife from the Mill Family Super Fund, such amount to be the sum necessary to give her 50% of the total superannuation assets as at 30 June 2012.

24. That in accordance with section 90MT(1)(a) of the Family Law Act 1975 the Wife be entitled to be paid the amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001.

25. That the Husband’s entitlement, and the entitlement of such other person to whom a splittable payment made be made to payments out of the Husband’s interest in the Mill Family Superannuation Fund is correspondingly reduced.

26. That unless specified in these orders:

    (a)Each party is solely entitled to the exclusion of the other all property and chattels of whatsoever kind and nature including bank accounts, insurance policies and superannuation in their name;

    (b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

    (c)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

27. That each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106 (A) of the Family Law Act 1975 (Cth) is authorised to sign any such document on behalf of the defaulting party.

28. That there be liberty to apply with respect to the enforcement of these Orders.

29. That all extant applications otherwise be dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars these orders.

IT IS NOTED that publication of this judgment under the pseudonym Mill & Mill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 6219 of 2011

MR MILL

Applicant

And

MS MILL

Respondent

REASONS FOR JUDGMENT

1. This matter concerns applications in relation to parenting and property matters lodged by the Applicant Husband, MR MILL, born [in] 1968 (“the Husband”) in which he seeks a shared care arrangement on a week about basis in relation to the two children of the marriage, [X], born [in] 2001 (“[X]”) and [Y] born [in] 2003 (“[Y]”) (collectively “the children”).

2. The Husband also seeks that the property be divided as to the superannuation on a 50/50 basis, and as to all other property with a percentage of 52.5% to the Wife and the residual to himself.

3. The Respondent Wife, MS MILL, born [in] 1965 (“the Wife”) seeks that she be the primary care giver for the children with a 10/4 arrangement in relation to the time spent by the Husband and she also seeks that the superannuation be split on a 50/50 basis with the residual property to be split on 65/35 basis in her favour.

Background

1. The Husband is now 43 years of age. The Wife is now 48 years of age. The parties were both born in South Africa where they met and married in 1994. At the time of the marriage, the Husband was working as an [omitted] and had net assets of approximately $15,000.00 consisting of superannuation and equity in an apartment. The Wife, at the time was working as a [omitted] and had net assets of, on the Husband’s estimate, $60,000.00 and on her estimate, $80,000.00.

2. At the time of the marriage the parties executed an ante-nuptial contract. Neither of them however rely on that contract in the context of this case.

3. Shortly after the marriage the parties relocated to France for six months as a result of the Husband’s employment being transferred. They later relocated back to South Africa and then again moved to the United Kingdom in January 1996.

4. The Wife continued to work until shortly before the birth of the first child, [X], and did not return again to work until May 2009. In August 2002, the parties moved from the United Kingdom to Australia. The Husband was initially employed in a [omitted] firm but since 2003 has worked as an independent [omitted].

5. In 2003, the Wife commenced studying part-time at [omitted] University from which she graduated in 2008. In 2003 the child, [Y], was born. In March of that year the parties purchased a property at [O] (“the [O] property”) using joint savings. They later sold that property in June 2006 and purchased the property at Property C, [C] (“the marital home”) which was the marital home up until the time of the separation. The parties used joint savings and the proceeds of the sale of the [O] property to purchase this property.

6. In 2007, the Husband commenced a business, [C] PTY LTD (“[C] Pty Ltd”), and in May 2009 the Wife returned to paid employment working as a [omitted].

7. On 3 August 2010, the Wife informed the Husband that she wished to separate from him and shortly thereafter, or almost immediately, the Husband started internet dating and met MS H (“Ms H”) who is his current partner. Ms H has a son from a previous relationship, [Z] (“[Z]”).

8. On 28 August 2010, the Wife vacated the marital home and the children commenced spending equal time with each of the parents. At the time of the separation, the Husband agreed to pay the Wife an amount of $1,200.00 per month to assist her with payment of rental accommodation. The Husband remained in the marital home.

9. On 3 October 2010, the Husband decided to inform the children that he was in a relationship with Ms H and from 20 October 2010, she and [Z] started staying at the Husband’s residence during periods that the children were in his care. On 25 January 2011, Ms H officially moved into the marital home with the Husband.

10. In June 2011, the Husband informed the Wife that he would stop paying to her the amount of $1,200.00 per month which he had been paying since the time of separation as and from August 2011 and in response the Wife withdrew $100,000.00 from the parties’ ANZ Investment Loan account.

11. On 13 July 2011, the Husband filed an Initiating Application in the Federal Magistrates Court seeking property orders. On 2 September 2011, the Wife filed a Response to the Initiating Application seeking both property and parenting orders.

12. On 25 October 2011, the parties attended upon MS S (“Ms S”) for the preparation of a Family Report which was released on 6 November 2011.

13. On 25 November 2011, there was an interim hearing where consent orders were made in relation to interim parenting arrangements which provided for the children to spend time with the parents for seven days each on a week about basis.

Issues

1. In relation to parenting matters, both parents agree that there should be equal shared parental responsibility. The Wife contends that in this case there are grounds to rebut the presumption under s.61DA(2) of the Family Law Act 1975 (Cth) (“the Act”) in relation to the spending of equal time with each of the parents. The issues in relation to that include:

   ·The workability of the equal time arrangement;

   ·The capacity of the parties to communicate with each other and resolve difficulties between them; and

   ·The attitude shown by the Husband to negotiating with the Wife any changes to the arrangements.

2. The Husband relies on a recommendation made by Ms S in the written report that the arrangements should stay as they are for the time being and be reviewed in 2013.

3. In relation to the property matters, essentially there was no disagreement as to the extent of the asset pool. There was disagreement however in relation to the question of certain add backs and as to whether the value of [C] Pty Ltd should be included in that pool. In relation to the percentage split the issues essentially were tied to s.75(2) factors.

The Applicant Husband

1. Ms S, in her written report, described the Husband as presenting as confident and articulate, “he is straightforward and candid”.[1] She stated:

   He related a history of the separation where he and Ms Mill were able to put their differences aside and focus on what was best for the children and he was able to then move forward with his life unencumbered by unresolved emotional issues.[2]

   [1] Affidavit of Ms S sworn 27 April 2012, Attachment A - Family Report dated 4 November 2011, page 4 at paragraph 6.

   [2] Affidavit of Ms S sworn 27 April 2012, Attachment A - Family Report dated 4 November 2011, page 4 at paragraph 6.

2. Ms Mill, on the other hand described him as being “autocratic”[3] and as prioritising his relationship with Ms H over the children’s needs.

   [3] Affidavit of Ms S sworn 27 April 2012, Attachment A - Family Report dated 4 November 2011, page 4 at paragraph 6.

3. In relation to the issue of the introduction of Ms H into the children’s lives, Ms S said in her written report:

   When unsure of how to introduce Ms H to the children, he sought professional advice which he followed. It may well have been premature to introduce the children to the relationship but this becomes an academic exercise as the children have adjusted and seem to be accepting of Ms H and seem particularly fond of her son [Z]. If Mr Mill is able to seek and consider professional advice in relation to the children’s emotional and psychological needs then Ms Mill’s worries about his capacity to respond appropriately to the children can be somewhat allayed.[4]

   [4] Affidavit of Ms S sworn 27 April 2012, Attachment A - Family Report dated 4 November 2011, page 11 at paragraph 24.

4. This assessment seems to be at stark contrast with the assessment given by MS S (“Ms A”). Ms A is a registered psychologist who was consulted by Ms Mill after being referred by her general practitioner. At the time Ms Mill was concerned that the Husband had re-partnered with Ms H so quickly after their separation and also about the rapid introduction of Ms H into the children’s lives. She requested a joint session with herself and the Husband to discuss the welfare of the children and how to move forward in the best interests of the children.

5. Having made contact with Mr Mill, Ms A, with his permission, contacted his psychologist MR S (“Mr S”) to speak to him in relation to the issue. She says in her affidavit:

   I rang Mr S and he agreed that it was inappropriate to introduce the girls to a new partner at this early stage. He stated that “Mr Mill had a plan and was putting his needs before the needs and interests of others”.[5]

   [5] Affidavit of Ms A, Attachment A – Psychological Report dated 7 May 2012, page 3 at paragraph 3.

6. There are two issues in particular which the Wife raises as concerns about the Husband’s behaviour. The first of these is his behaviour in the counselling session that was organised with Ms A and the second of these is the incident which occurred one week before the trial when he asked the children their views and recorded their responses.

7. Ms A describes the counselling session as follows:

   Against all the advice to the contrary, Mr Mill decided to bring his new partner Ms H to a private counselling session to discuss the future welfare of his and Ms Mill’s children.

   In my professional opinion I found the decision to have Ms H present in counselling to be insensitive and irrelevant. It appeared to be a perverse act by Mr Mill and Ms H. The session lasted for 90 minutes. Naturally Ms Mill was distressed and caught off guard. When she was attempting to clarify the situation and express her concerns for their girls’ needs and what was in their best interest she was bullied to the point that I had to ask Mr Mill to ‘calm down and let her speak’. Mr Mill appeared to have reached a forgone conclusion to have Ms H live in the house with the girls as soon as possible. He asked me my opinion, “did I think it was too early for Ms H to be staying over”. When I gave my professional opinion, I stated the following-

   Please understand Mr Mill and Ms H that you have had time to process the separation and your new adult relationship, however the girls have not had this luxury and have only heard this news, that their parents have separated, less than 2 months ago. They need time to absorb this let alone introducing a new partner and child into their family life … In addition, in my professional opinion, particularly from my experience in family court and when I was with DHS, I don’t believe that a Magistrate or Judge would rule that what you’re asking for this would be any child’s best interest. I believe, that IF the matter went to court, that no child psychologist or court would express it was a positive idea for [X]’s and [Y]’s development.

   At this point Mr Mill and Ms H became quite hostile and argumentative with me. They demanded proof and strongly objected to my opinion. Ms H and Mr Mill started belittling and questioning my opinion and criticising my reasoning in a very loud and aggressive manner. I was shocked at their attempt to intimidate and bully Ms Mill when she was visibly upset. I again asked them to calm down, to no avail. Mr Mill then went into a tirade and character assassination about Ms Mill, whilst she was sobbing. He said she needed psychological help and was “hopeless and needed to see someone”. I was astonished at his lack of empathy towards Ms Mill and the fact that he was clearly missing an opportunity to discuss the future welfare of his children. I believe he was frustrated that I didn’t tell him what he wanted to hear.[6]

   [6] Affidavit of Ms A sworn 8 May 2012, Attachment A – Psychological Report dated 7 May 2012 at page 4.

1. In his oral evidence, Mr Mill denied that he received any advice that Ms H should not be present at the counselling session. He denied that he had been hostile and argumentative or that he had attempted to intimidate and bully Ms Mill or that he had started questioning the opinion of Ms A. He did agree that she may have asked them to calm down. He denied that Ms A’s record was a true record of what had transpired. He could not recall raising his voice at all during the counselling session although he did recall that there had been a disagreement with Ms A and that she offered an opinion with which he disagreed and that he was critical of that opinion. He also agreed that Ms Mill was sobbing at one stage. He denied that Mr S had advised him that it was inappropriate to introduce the children to Ms H at such an early stage.

2. In her evidence concerning the counselling session, Ms H said she did not recall Ms A saying anything about the future plans for the children in respect of whether it should proceed quickly or slowly or any other advice to that effect. It was her evidence that, “Mr Mill didn’t say very much at all”.[7] She did recall Mr Mill saying,

   that it was important that Ms Mill get some help as I had heard him say on a number of occasions that she needed to get some assistance . . . She was obviously not coping very well. But I certainly don’t remember him saying anything about her being hopeless.[8]

   [7] Transcript of 15 May 2012, page 62 at line 23.

   [8] Transcript of 15 May 2012, page 62 at line 23 at lines 40-43.

3. In her view, Ms A was hostile towards Mr Mill and herself and she was a little surprised by this. She considered Ms A to be biased and, “a bit unprofessional”.[9] In her view, they had come to a very clear understanding by the end of the session. She could recall Mr Mill being involved in an argument or discussion with Ms A. When it was put to him that the children were upset, he suggested that the problem lay with Ms Mill, i.e. the Wife, dealing with the situation, that that was what was upsetting the children and that was why, “Ms Mill should get some help”.[10]

   [9] Transcript of 15 May 2012, page 63, line 2.

   [10] Transcript of 15 May 2012, page 66 at line 18.

4. Ms H described Mr Mill as, “a calm, collected kind of a guy”.[11] She did not consider that the emails he sent to Ms Mill were blunt. She described the emails as, “clear . . . concise . . . if that’s your definition of blunt, then, sure. But I don’t think they’re rude.”[12]

   [11] Transcript of 15 May 2012, page 66 at line 24.

   [12] Transcript of 15 May 2012, page 66 at lines 43-44.

5. In her oral evidence, Ms A said she understood that Ms H would be attending at the practice but that she would stay in the waiting room as with Ms Mill’s friend who accompanied her but did not come into the session. When Mr Mill and Ms H arrived, she said, “What’s happening? What are the arrangements? I want to see Mr Mill and
   

   [13] Transcript of 16 May 2012, page 105 at lines 45-48.

   Ms Mill and Ms H and Mr Mill said, no, they were coming too. It would be the three of them”.[13]

6. Ms A said that she took notes during the session and typed them up afterwards. She said that she had never had a counselling session where the new partner is there with three people in the room. She stated, “I never, in my wildest dreams, thought he would bring his new partner into a private counselling session to talk about their children”.[14] She described Mr Mill’s insistence as, “symbolic that he did what he wanted to do”.[15] She also indicated that she suggested that, “Ms Mill and Mr Mill come back by themselves, because the matter was just going around in circles . . . Mr Mill did not want to do that”.[16]

   [14] Transcript of 16 May 2012, page 109 at lines 21-22.

   [15] Transcript of 16 May 2012, page 110 at lines 30-31.

   [16] Transcript of 16 May 2012, page 111 at lines 38-41.

7. She described Mr Mill as asking her opinion and then telling her what he was going to do anyway. In her opinion, he was very hostile that night. She was critical of his opinion because, “his ex-wife was sitting there sobbing and he did not let down, and they were both attacking her verbally”,[17] “they both” being a reference to Mr Mill and Ms H. Ms A described her giving an opinion and Mr Mill and Ms H both speaking at once and saying, “Where’s the proof? You don’t have the proof of that”.[18]

   [17] Transcript of 16 May 2012, page 114 at lines 17-18.

   [18] Transcript of 16 May 2012, page 119 at lines 5-6.

8. In the session when Ms Mill was crying, because it was very distressing, she had to ask him twice to calm down. He said, “This is typical of you, Ms Mill. You’re crying. You’re a mess. This is the problem that affects the girls. You’re so emotional. Look at you. You’re a mess. You need to see someone. You’re hopeless”.[19] Ms A said:

   They were both (i.e. Mr Mill and Ms H) talking over the top of each other and lunging forward and she was criticising. She was asking about my qualifications and how did I know, and she was criticising where did I get that - my opinion from, . . . that it was too early to introduce the children to her, and what facts did I have to back that up. And I told her that I had worked in child protection and the Family Court in a long time and with the police . . . they did not want to listen.[20]

   [19] Transcript of 16 May 2012, page 119 at lines 30-32.

   [20] Transcript of 16 May 2012, page 119 at lines 34-40.

9. In her oral evidence, Ms S described Mr Mill as very black and white. She expressed the view that there was:

   a difference between co-parenting and their ability to parent the children as individual parents. I think those characteristics will probably play a greater role as the children grow older and I think I refer to that in the report. So the characteristics in and of themselves . . . are not criticisms. But I think they may influence their parenting of the children as they get older. They may become more significant.[21]

   [21] Transcript of 16 May 2012, page 122 at lines 17-23.

10. In relation to the issue of shared care she said:

    While they are still young and, I guess, far more dependent on their parents, this shared arrangement can operate at a level that’s not too – it’s not so – it is disruptive. It can be disruptive, but it doesn’t interfere with the children’s day‑to‑day lives. I think, as children get older, it starts to become a burden. I think, at the moment, it’s less of a burden and, therefore, I thought it could – it could stay the same for a little bit longer. I would hope the parties could come to some kind of agreement, themselves – that they could work out what’s best for their children.[22]

    [22] Transcript of 16 May 2012, page 122 at lines 43-46; page 123 at lines 1-8.

11. When questioned about Mr Mill’s view that he was never prepared to accept anything other than a 7/7 arrangement, she agreed that it showed a certain rigidity in his views. In relation to the evidence concerning the counselling session with Ms A she said:

    if he’s not prepared to take professional advice, it is worrying, because – especially given some of the recommendations in my report, which is that, given – that if he is able to take advice, then you know that he’s going to put the welfare of the children before his own, and if he wasn’t prepared to take it – that was a pretty important situation, and pretty important advice about how to manage the children at a time of separation.[23]

    [23] Transcript of 16 May 2012, page 128 at lines 8-13.

12. It was then put to her, “His response was appalling, wasn’t it?” to which she responded, “It seems to be, yes. If the evidence is accepted, yes”.[24]

    [24] Transcript of 16 May 2012, page 128 at lines 15-17.

13. In relation to the insistence that Ms H participate in the counselling session, she expressed the view that was inappropriate in the circumstances, “It’s a real imbalance of power within the room, so yes, I think I would have given the same advice”[25] (as Ms A).

    [25] Transcript of 16 May 2012, page 129 at lines 21-23.

14. Ms S also indicated that if one was not going to move from one’s position, in relation to the insistence by Mr Mill on the 7/7 arrangement, that there seemed to be, “very little room for mediation”.[26]

    [26] Transcript of 16 May 2012, page 130 at lines 44-45.

15. Mr Mill impressed me as being rather rigid and dogmatic in his presentation. He seemed to have difficulty in countenancing any view which was contrary to his own. He was insistent that Ms Mill had agreed to a range of things which would appear on the face of them to be contrary to her own interests. I include in that the fact that money advanced to her, some $7,500.00, at the time of the separation to assist her in establishing a new home was agreed by them to be a ‘loan’ which the Husband has sought to have treated as an add back, inclusive of interest.

16. I accept the evidence of Ms A concerning the meeting with Ms Mill, the Husband and Ms H. It is consistent with the Husband’s presentation as someone unable to see anyone else’s point of view.

17. The second issue of concern in relation to Mr Mill’s behaviour concerned the question of the tape recording of the two children about a week before the trial. The evidence was that the Husband had used his telephone to record what the children had to say and then asked them questions in relation to their wishes concerning the care arrangement. He said, “Prior to starting it, I said to the girls, “Do you mind if I record?”.[27] He also told the children that even though he was going to record their voices he was not going to tell anyone. It was only for him to listen to although he agreed that he was now telling the Court what he said the children had said.

    [27] Transcript of 14 May 2012, page 22 at lines 9-10.

18. Mr Mill denied that involving the children in this activity was a test of their loyalty. He considered it to have been an appropriate way to behave. He stated that he asked [X] and [Y] what their preferences were and it was quite clear to him that they would like the existing arrangements to continue. When asked about the incident, Ms H also said that she regarded the behaviour as appropriate with the appropriate consent which he had gained. When it was put to her that what legitimised that process was that he had consent of the children she responded, “Well they are his children”[28] and later, “The normal ethical procedure would be to obtain the consent of the girls ... and the consent of the parent, and he was the parent, so yes”.[29] When it was put to her again, “You say that’s appropriate conduct on his part?”, she responded, “Yes”.[30]

    [28] Transcript of 15 May 2012, page 68 at line 17.

    [29] Transcript of 15 May 2012, page 68 at lines 29-31.

    [30] Transcript of 15 May 2012, page 68 at lines 33-34.

19. When the scenario was put to Ms S, she said, “It’s worrying”[31] in relation to the conduct and she was questioned:

    Because that was imposing upon the children all of the pressures that they were complaining of, wasn’t it?[32]

    She replied:

    Yes, I would have thought that my report would have made it very clear the kind of pressures that the children were under, and that a parent asking those questions – you’re just not going to get – well, you’re going to get the answer you want;[33]

    and it was put to her:

    But you’re also going to cause the children a lot of pain in giving the answers, aren’t you?;[34]

    to which she responded:

    [31] Transcript 16 May 2012, page 132 at line 43.

    [32] Transcript 16 May 2012, page 132 at lines 45-46.

    [33] Transcript 16 May 2012, page 132-133 at lines 46-2.

    [34] Transcript 16 May 2012, page 133 at lines 4-5.

    Yes.

    And you’re going to – you’re going to cause them a lot of emotional turmoil, aren’t you?;[35]

    and again she responded:

    Yes.[36]

    [35] Transcript 16 May 2012, page 133 at lines 5-8.

    [36] Transcript 16 May 2012, page 133 at line 8.

20. It was then put to her:

    Now, the proverbial Jack the blind miner reading your report would have known that that was inappropriate, wouldn’t they?;[37]

    and she responded:

    Well, I would have liked to have thought that it was pretty straightforward and clear.[38]

    [37] Transcript 16 May 2012, page 133 at lines 10-11.

    [38] Transcript 16 May 2012, page 133 at lines 11-12

21. When it was put to her that Mr Mill seemed to be the sort of person who needed equal shared care arrangement to fulfil his needs she responded:

    Well. I think I’ve said in the report that it’s often about the parental need.  And if he’s holding onto it so tightly it certainly doesn’t seem to be, at least acknowledging that the kids could need something different.[39]

    [39] Transcript of 16 May 2012, page 133 at lines 24-26.

22. When it was put to Ms S that Ms H had endorsed that conduct, she agreed that it was disturbing.

23. It was also put to her that Ms H believed that, “taping the children in that fashion was appropriate, as long as you had the consent of one of the parents of course. We had the consent of Mr Mill”,[40] to which Ms S responded, “I’m sorry. I’m really surprised by that . . . I think it was inappropriate”.[41] It was then put to her that the other basis upon which Ms H had considered that the behaviour was appropriate was because the children consented, to which she responded, “But the children would consent . . . They would not say no to their parent”.[42]

    [40] Transcript of proceedings, 16 May 2012 at page 133, lines 31-33.

    [41] Transcript of proceedings, 16 May 2012 at page 133, lines 33-37.

    [42] Transcript of proceedings, 16 May 2012 at page 134, lines 7-9.

The Respondent Wife

1. The Wife was described by Ms S as having a “somewhat anxious demeanour, her speech sometimes staccato but she became more fluent as she relaxed in the interview”.[43] Later in the report she says:

   Ms Mill seems cognisant of her emotional reaction to Ms H and her role in the children’s life but the reason for her sustained concern is because she believes that Mr Mill’s and Ms H’s actions and decisions clearly point to a lack of insight, understanding and sensitivity to the children’s needs which worries her in terms of future parenting capacity. Her anxieties are compounded by what she believes is Mr Mill’s shift from co-parenting and considering her views about the children to ignoring her concerns and being influenced by Ms H in whom she has little trust.[44]

   [43] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 10.

   [44] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 22.

2. She further states:

   Ms Mill does not present as one motivated by resentment or anger but rather one hurt by the father’s insensitivity to her and pained by what she perceives as Mr Mill’s inability to understand and respond to the children . . . Clearly Ms Mill feels controlled and dictated to by the father and further more, marginalised since
   Ms H has become his partner.

3. Ms A has been involved in ongoing counselling with Ms Mill in relation to concerns about her children. In her report she describes Ms Mill to be an, “intelligent and stable woman . . . very obliging with a kind nurturing nature and hardworking”.[45]

   [45] Affidavit sworn 8 May 2012 by Ms A, Attachment A – Psychological Report, dated 7 May 2012 at paragraph 6.

4. Ms Mill agreed in cross-examination that some of the complaints that she had made about the Husband had been fairly minor. She also agreed that the Husband loved the children and that their relationship with him was important. She also agreed that she did get emotional and did get upset and recognised that she had difficulty in confronting
   Ms H and the girls being together. She gave as an example an incident which occurred in December only a few months after the separation when Ms H had attended the children’s speech night with Mr Mill and she had not known that Ms H was going to be there and this was a bit of shock to her. She also indicated that she found Ms H’s treatment of her to be very aggressive and dominating.

The children

1. Ms S described [X] as softly spoken and:

   presents as a somewhat anxious and sensitive child, sensitive to others’ needs and reluctant to expose her feelings for fear of being disloyal. [X] seems accepting of the current parenting plan but describes having a “bit of trouble going and coming between two houses where things are forgotten and this creates “a hassle when we forget stuff”. However this offset by the advantage of being able to spend time with each parents every three or four days which she likes.”[46]

   [46] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 13.

2. I note this interview was conducted prior to the parenting arrangements being changed to a one week on, one week off arrangement. Ms S went on:

   Although she engaged well and was able to articulate her views, she was slow to answer or discuss many issues as if considering every response and mindful of not offending anyone or being disloyal. In fact, she stated while discussing her views about the parenting arrangements, that “I don’t want to offend either . . . I don’t want to hurt their feelings”. She remained uncommitted to any one parenting regime and expressed confusion and doubt; “ I feel like I’m mixed . . .  I don’t know what to say” although she has not been asked by either parent to make decisions but is nonetheless, aware of the dispute about what regime should be implemented. She perceives the current arrangement as fair for the parents as they each “get the same time”.[47]

   [47] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 15.

3. She expressed a need for a resolution. According to Ms S:

   [X] seemed to have a good relationship with both parents who were able to meet her needs and she felt cared for and nurtured by both. She has a sense of regret, or possibly jealousy, that she does not have her father’s full attention now that he is in a relationship with Ms H with whom he shares his time. “We don’t get as much time with Dad” since Ms H’s introduction about which she was surprised but had accepted.[48]

   [48] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 17.

4. Ms S described [Y] as:

   a confident and robust child who was able to present her views in a direct and forthright manner and appears to be a bright and intelligent girl. She seems less affected by the emotional burden her sister carries for her parents’ feelings and welfare. However she too is aware of the parental tensions although the parents are conscientious about shielding the child but she notes that “they talk to each other but they are not friendly, they sound a bit plain” and notably “not like they were before”.[49]

   [49] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 18.

5. Ms S considered that [Y] was well-adjusted to the current routine despite the annoying elements of forgetting things. She does not have a need for change feeling that:

   it works OK . . . and I’m used to it now. . . . She clearly does not want to choose between her parents or what parenting regime is best but notes that she does “not want the Judge to go on one side” reflecting her need for fairness and equity.[50]

   [50] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 19.

6. Ms S noted:

   “a note of grief” in [Y]’s statement that she has “to share” her father but this seems to be unquestionably accepted as part of the household as is his need to work as “usually Dad’s just working . . . sometimes he plays with us”.[51]

   [51] Affidavit sworn on 27 April 2012 by Ms S, Attachment A – Family Report dated 4 November 2011 at paragraph 20.

7. Mr Mill was of the view that it was an easy transition for the girls when he introduced Ms H and [Z] into their lives. When asked if his daughters had got used to having a new adult in the house he said, “No . . . there was no getting used to”.[52] Ms H did not impose differences on their lives that were meaningful in any significant way. He denied that the arrival of her and her son in their household was a big change for the children. It was a smooth transition. When questioned about the changes in sleeping arrangements that occurred over a period of time with first, [Z] sleeping in [Y]’s bedroom, then [Y] and [X] sharing the one bedroom and then a further change so that [Y] went back into her original bedroom. He described those changes as being of no significance.

   [52] Transcript of proceedings of 14 May 2012, page 31 at lines 42-44.

1. In relation to the issue of the disagreement that he had had with
   

   [53] Transcript of proceedings of 14 May 2012, page 31 at lines 22-24.

   Ms Mill about the children walking home from school he said, “I thought it would be a good thing for the children’s development for them to walk home themselves and to develop the independent spirit and care for themselves that that involved”.[53]

2. In relation to the incident where he left [Y] alone in the park, he responded that, “She was out of sight – out of my line of sight for two minutes”.[54] When asked if a 8/6 arrangement would be satisfactory to him Mr Mill responded, “Anything that undermines my ability to parent the girls in the day to day activities is something that wouldn’t be acceptable to me”[55] and when asked if that falls into that category he said, “Probably, yes”.[56]

   [54] Transcript of proceedings of 14 May 2012, page 31 at lines 37-38.

   [55] Transcript of proceedings of 14 May 2012, page 44 at lines 2-3.

   [56] Transcript of proceedings of 14 May 2012, page 44 at line 5.

3. In his view, in relation to the children, seeking professional advice from someone who was respected and qualified to offer it would be the best way to proceed. He disagreed that a proposal which provided for the parties to come back in 12 months time and to seek a report from an expert would not provide a final resolution to the parenting arrangements for the children. In his view, the children had given a clear and unequivocal statement of their wishes.

4. In relation to the children, Ms Mill said it was important to them that things are seen as normal but that she had seen a lot of stress going on as well and concerning things. She agreed that they had a good relationship with their father and that both parents had a lot to offer them. Ms Mill considered that the children were not in an easy situation with being expected to be in a new family so soon. When asked what she did if the girls complained to her she said, “All I do is encourage them to stand up for themselves and talk to Mr Mill about it”.[57]

   [57] Transcript of proceedings of 15 May 2012, page 79 at lines 4-5.

5. She also agreed that Mr Mill was quite capable of caring for the children. In Ms Mill’s view, the change between the households had been an issue and would always have been one but she felt that there were some deeper issues. She expressed a concern about [X] in particular where she saw a level of stress that really concerned her in that child.

The applicable legal considerations

1. The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.

Parental Responsibility

1. Section 61DA of the Act sets out that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[58]

   [58] Family Law Act 1975 s.61DA(4).

2. In this matter, both parents support ongoing equal shared parental responsibility for the two children of the marriage.

Equal time spent with each parent

1. Section 65DAA(1) of the Act requires that where a parenting order has been made for equal joint parental responsibility, the Court is to consider the reasonable practicality of the children spending equal time with each parent and whether it would be in the children’s best interests.

2. The Full Court in Goode v Goode (2006)[59] held that even where the Court does not make an order that the parents have equal shared parental responsibility for a child, the Court must still consider whether it is in the child’s best interests that the child spend equal time or substantial and significant time with each parent. The Court must also consider whether spending substantial and significant time is reasonably practicable. Such is provided for in s.65DAA(2) of the Act.

   [59] Goode v Goode (2006) 36 Fam LR 422.

3. Pursuant to s.65DAA(3) of the Act, substantial and significant time constitutes both weekend and holiday time[60] and allows the parent to be involved in both the children’s daily routine and occasions and events that are of particular significance to the children.[61]

   [60] s.65DAA(3)(a).

   [61] s.65DAA(3)(b).

4. Section 65DAA(5) of the Act also sets out what the Court must have regard to in considering what is reasonably practicable.

Primary considerations

Section 60CC factors

1. Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence. These are matters I shall address below.

Considerations relevant to equal time and significant and substantial time – Section 65DAA

1. It would appear that the Husband’s position is that final orders should be made reflecting the current arrangement but that there should be some notation made that the parties agree to attend upon either Ms S, Mr P or some other appropriately qualified child psychologist in July 2013 to discuss and review the parenting arrangements from that date on.

2. The Wife is of the view that the Husband’s proposal to continue with the week about arrangements and have a review process would simply guarantee that there would be a further trial. The Wife essentially submits that the evidence shows that the pre-condition for effective shared care arrangements are not there. The evidence falls dismally short in terms of communication. The way in which the Husband has approached negotiations indicates that he has a completely closed mind as far as the arrangements with the children are concerned. He could not even contemplate the idea of having an 8/6 arrangement – it simply had to be 7/7 – and that that attitude flows through all of the other communication he has with the Wife. His emails stand in stark contrast to the way in which he would seek to characterise communication between himself and the Wife.

3. In the Wife’s submission, the Husband is a person who has iron-clad views, very narrow views and he is dogmatic and overbearing. This makes him a poor candidate to be involved in a shared care arrangement.

4. By contrast, the Wife has a retiring and reticent demeanour. Every step of the way she is therefore likely to be prevailed upon and every step of the way she is going to have an unsatisfactory experience with respect to communication.

5. Secondly, the Wife says there are the parenting styles. They have very different parenting styles. The issues about the children walking home from school and being left in the park are cited as examples. The Wife also refers to the issue of the taking of professional advice and submits that all the evidence would indicate that the Husband is not a good candidate to be involved in accepting any professional advice unless that advice concurs with his own views. The Wife further submits that there is no level of trust between the parents and cites the evidence given before the Court about the recording of the children and the obvious shock shown by Ms S that someone could behave in that fashion.

6. The Husband submits that the report of Ms S indicated that the current arrangement was meeting the children’s needs; was working well; and that the children had adjusted to the routine. The Husband submits that little weight should be given to the evidence of Ms A and that that evidence needed to be looked at in the context of the time at which the meeting occurred and where, even on Ms A’s evidence, emotions between the parties were running quite high.

7. The Husband submits that while the Wife has a problem with the way in which Ms H had been introduced to the children’s lives, and she continues to have a problem with Ms H, there was no evidence that the introduction of Ms H into their lives had had any impact whatsoever on the children or on their relationship with either of their parents.

8. The Husband points out that the Wife was hard-pressed to point to anything that affected the children in terms of the current shared care arrangement or anything specifically related to difficulties associated with equal time. The Husband submits that there is no evidence that the children’s welfare has been in any comprised by the shared care arrangement as it currently exists, apart from a reference to an issue concerning whether the children had difficulty in completing their homework while with their father.

9. The Husband remained of the view that the shared care arrangement should continue at least until the middle or later part of next year and that the parties should then attend for mediation in order to resolve the ongoing arrangements.

10. Ms S indicated that while the children had become used to the arrangement, if you look at the evidence, it tends to point to a shared care arrangement not working well for older children. The children are already complaining about the difficulties of forgetting things; trying to remember things from one household to the other; and the practicalities of it is only going to get worse as they get older. The other part is that children generally do not cope well with two separate households. They need to feel that they have a base from which to move from but there is one base and from that base they move into other areas. They can go and spend more time with one or other parent, but they have a home that they can leave all their things, that that is where they belong.

11. Ms S was of the view that Ms Mill was far more sensitive to the children’s needs and perhaps that Mr Mill was a bit more blunt. Those were characteristics that may have an impact on the children and their ability to be heard and how you parent them as you get into the more adult years. Ms S agreed that for a shared care arrangement to work that:

    ·The parents have to demonstrate that they have some respect for each other and that it makes it very difficult and painful for the children where this does not exist;

    ·The parents have to communicate comfortably and effectively with each other;

    ·Cooperation was a crucial factor;

    ·“You have got to be united”.[62]

    She agreed that in so far as successful shared parenting arrangements were concerned there needed to be an equal playing field.

    [62] Transcript of proceedings of 16 May 2012, page 128 at line 42.

12. I turn now to the factors set out in s.60CC of the Act.

Section 60CC(2)(a)

1. While the current equal time arrangement allows for the children to have a meaningful relationship with both parents, the children clearly have an established relationship with their father and in my view this would not be diminished by a reduction in the amount of time they spent with him. The children are of an age where the amount of time they spend with each of the parents could in other circumstances be flexible. Unfortunately it does not appear to me from the evidence that the Husband has the capacity to be flexible.

Section 60CC(2)(b)

1. There is no evidence before the Court concerning the children being exposed to physical or psychological harm or exposed to abuse, neglect or family violence. The evidence also suggests that Mr Mill could be a bully and could be quite controlling in terms of his behaviour. As the children enter adolescence this may become a significant issue particularly if they are of the view that they cannot express a view to their father which is contrary to his own.

Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Section 60CC(3)(a) refers to views expressed by the children and any factors that the Court thinks are relevant to the weight it should give to any expression of those views. The report by Ms S seemed to suggest that the children had become used to the existing arrangements although I note that those were the arrangements prior to a change being made by the parents in February 2012. The children also seemed to wish not to be disloyal to either of the parents and raised issues of equity in relation to the time spent with each of the parents. Both the Husband and Wife gave evidence of their discussions with the children concerning their wishes. As Ms S noted, the children were unlikely to tell either parent something that they do not wish to hear and I place little weight on those discussions. Ultimately the Court must look at not only the current situation, but the situation into the future. It seemed to me to be very clear that Ms S had a concern that an equal time arrangement would not be appropriate into the future and the evidence before me suggests that that is also a matter to which I should give weight.

Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. Section 60CC(3)(b) refers to the nature of the relationship of the children with each of the parents and other persons. There is no doubt that the children have a good relationship with both of their parents. That has been commented upon by Ms S and in fact each of the parents agrees that that is the case. There was little evidence concerning the relationship between the children and Ms H and [Z]. While they expressed to Ms S that there was no problem with either of those relationships, the Wife’s evidence would suggest that it was not quite as clear cut as the impression that they gave to the family report writer. It is also likely that the children are aware that their mother has some difficulty with Ms H in the context of her relationship with their father and with them.

Section 60CC(3)(c): The willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. Section 60CC(3)(c) refers to the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The Husband suggests that the fact that the Wife wishes to reduce the amount of time that he spends with the children indicates that she is less willing or able to facilitate an ongoing relationship. In the face of that, the Wife refers to her willingness to negotiate and to try various arrangements prior to the matter going to trial. I also refer to the evidence of Ms S that, in her view, the Wife’s concerns about the current arrangements were ones that were genuinely held.

2. From her evidence before the Court, I am of the view that despite her own difficulties, the Wife would do her best to ensure that the relationship with the Husband was maintained and supported.

Section 60CC(3)(d): The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other children, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Section 60CC(3)(d) refers to the likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living. Under the Wife’s proposal, the children would spend less time with their Father. Ms S suggested that that would be a significant change for the children given the arrangements that have been in existence since separation and that perhaps this might be approached by some form of phasing-in of those changes.

2. The changes, in my view, would not amount to a separation from the parent given the children’s ages and the fact that the parents live in close proximity and in close proximity to the children’s school. The only significant difference would be the number of nights that the children actually spent staying at the Husband’s home. These are changes which, in my view, the children would be able to accommodate.

Section 60CC(3)(e): The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Section 60CC(3)(e) refers to the practical difficulties and expense of children spending time and communicating with the parents. The parents live in close proximity to each other as previously indicated although the impact of the property arrangements in this matter may cause some change of address for one or both of them.

Section 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. Section 60CC(3)(f) refers to the capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs. The Wife submits that the Husband is not able to provide for all of the children’s day-to-day needs because he works long hours. He is not able to provide for the children’s emotional needs because he puts his own needs before those of the children and he has an autocratic parenting style and lacks sensitivity to the children’s emotional needs. The Wife on the other hand works school hours and is therefore more available to the children. Further, she is an intuitive parent and is able to provide for their emotional needs.

2. I do note that Ms S in her evidence described the Wife as being more “in tuned” than the Husband to the children and their needs and that appeared to me to be consistent with the evidence before me. I have no doubt that the Husband is able to provide for the children’s physical and intellectual needs. I do have a concern that as they get older, his capacity to provide for their emotional needs may be less apparent.

Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. In relation to s.60CC(3)(g) the Wife refers to the fact that the child [X] will be entering puberty in the near future and suggests that she is best placed to support her during that transitional time.

2. Neither the parent made any particular submissions in relation to s.60CC(3)(h), (i), (j) or (k) none of which are relevant.

Section 60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In relation to s.60CC(3)(l), whether it would be preferable to make orders which would be least likely to lead to the institution of further proceedings, the Husband submits that his orders would bring finality to the litigation in relation to the parenting issues and those orders are in the best interests of the children.

2. The Wife submits that if the current arrangements were to continue, with some form of review process enormous pressure would continue to be placed on the children. It would also place pressure on the Wife whereby she has to continue with a regime she felt uncomfortable about and has felt uncomfortable about for a considerable period of time.

1. The evidence also clearly suggests to me that these parties are not ones who could appropriately benefit from some form of mediation in relation to the ongoing arrangements for the children. The Husband has shown an extreme rigidity in his views as to what he considers to be the best situation and is unlikely to change these views, in my view, no matter what occurs. The Wife has in the past been flexible. She has been prepared to look at different arrangements. She has come clearly to the view that the current arrangements are not working and that the children need the security of having one parent who is their primary care-giver.

2. On the evidence of Ms S it is clear to me that the Wife would better fulfil that role than the Husband. While I believe that the orders which I will make in this matter should provide finality, there will clearly be circumstances in the future where given that the parents, on their own submissions, wish for continued joint parental responsibility, there will be issues that need to be determined in relation to the children and the capacity of these parents to be able to reach agreement is one about which the Court continues to have concern.  

Property issues

Relevant legal principles

1. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) sets out the Court’s powers in determining applications for a property settlement.

2. Section 79(1)(a) provides:

   (1)In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property;

3. Section 79(2) provides:

   (2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

4. Section 79(4) sets out the matters which the Court must take into account:

   (4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

5. In Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener)[63] the Full Court of the Family Court of Australia set out the preferred approach to be adopted by the Courts in property matters involving a four-step approach which includes:

   a)Identifying the property, liabilities and financial resources of the parties at the date of the hearing;

   b)Identifying and assessing the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c);

   c)Identifying and assessing the relevant matters in ss.79(4)(d), (e), (f) and (g) and s.75(2); and

   d)Considering the effects of those findings in order to resolve what order is just and equitable in all the circumstances of the case.

   [63] Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

The assets

1. At the time of separation the major asset of the parties was the marital home with a joint valuation of $1,275.00.00. There were also some [Q] shares owned by the Husband and some [B] shares owned by the Wife. The Wife has a Citroen motor car valued at about $12,000.00 and the Husband had two Peugeots valued at $10,000.00 and $2,000.00 respectively. The household contents of the parties have a joint valuation of roughly $10,000.00.

2. The only matter in issue in relation to the joint assets is the question of [C] Pty Ltd, the vehicle through which the Husband runs his [omitted] service. Various valuations were given on the receivables owed to that entity however the figure which I consider to be the relevant one for the purposes of this exercise is the amount owed to [C] Pty Ltd at the time of separation which has now been quantified at $22,875.00. I will deal with how this should be treated later in this judgment.

3. The liabilities of the parties are agreed to be an ANZ investment loan with a current debt of $167,000.00 and the Wife’s HECS loan with a current debt of $9,772.00.

4. The ANZ investment loan consists of the balance of the following:

   ·At the time of the separation, the marital home was unencumbered and there was about $55,000.00 that the parties had in savings.

   ·There was also a taxation debt owed by the Husband of around $83,000.00.

   ·The current investment loan debt represents that $83,000.00 plus $50,000.00 odd dollars that the Husband spent on renovations and $100,000.00 which the Wife drew down from the loan in August 2011 minus the $55,000.00 that had previously been there in savings and any amount which the Husband otherwise contributed to the payment of that loan.

5. The superannuation assets of the parties consist of:

   ·The Mill Family Superannuation Trust which had an estimated value of $1,001,384.00 at the date of trial;

   ·The [E] Pension Fund in the Husband’s name with a balance of $37,761.00;

   ·The [W] Pension Fund in the Husband’s name with a value of $197,572.00;

   ·The Wife’s [U] Fund valued at $10,000.00; and

   ·The Wife’s [E] Pension Fund valued at $72,731.00.

6. The Husband claims as add backs

   ·The $100,000.00 withdrawn from the investment loan account by the Wife;

   ·Interest on that amount which he calculates at $6,760.00; and

   ·An amount of $7,500.00 which he says the parties agreed would be paid to the Wife as a loan to assist her in establishing a new house at the time of separation.

7. The treatment of the add backs was a considerable issue in terms of the valuation of the assets and liabilities of the parties.

8. At the time of the separation the Husband says it was agreed that he would remain in the marital home, the reasons for this being that:

   ·The house was partly through having some work done on it and was not in a lockup state;

   ·He was in a better position to supervise the building project; and

   ·He was in a better position to pay the mortgage.

   The Wife’s income is roughly $51,000.00 per annum and the Husband is earning on average $210,000.00 per annum.

9. The Wife moved into rental accommodation for which she was paying $2,200.00 per month. She suggested at the time that the Husband should contribute towards her rent an amount of $1,500.00 being half of the market rental for the marital property. The Husband did not concede to this but instead offered her an amount of $1,200.00 per month which she accepted. In July 2011, he gave her notice that he would be discontinuing to pay her that amount and in response she drew down $100,000.00 from the ANZ investment loan. The Husband also says that at the time of separation he advanced her an amount of $7,500.00 which they agreed at the time would be regarded as a loan. It is not disputed that of the $100,000.00 withdrawn by the Wife, $60,000.00 has already been paid by her by way of legal expenses and a further $19,000.00 has been placed in her solicitor’s trust account for that purpose.

10. The Husband’s evidence was that he had been billed approximately $27,000.00 by his solicitors of which he had paid about $22,000.00 but that that amount did not include the expenses of the trial.

11. The Wife submits that the Court can treat the amount drawn down by her in several ways. It can be characterised as:

    ·A part-property settlement;

    ·It can be added into the pool and adjusted as between the parties;

    ·Part of the draw down could be regarded or dealt with as spousal maintenance; and

    ·Part of it might be regarded as a Barro order.

12. The Wife submits that the Court should take into account that the Husband has retained occupation of the marital home throughout the entire period and that the Wife has been out of the home paying rent which over a 21-month period has amounted to something in excess of $46,000.00. At the same time the Husband has paid some $55,000.00 on effecting renovations to the house. It is not clear as to whether all of that was essential or to what extent that amount was agreed and whether it has or has not affected the value of the property as agreed between the parties.

13. The Wife accepts that the taxation debt, which is reflected in the figure currently owing in the liabilities of $167,000.00, clearly relates to income earned during the relationship and is properly included in the asset pool. The Wife also seeks that included in the asset pool are the [C] Pty Ltd receivables at separation. That is put on the basis that if you include the taxation debt without including the accrual of income to meet it, that it would be an unfair treatment of the debt.

14. In relation to the amount drawn down by the Wife, the Wife further submits that this was necessary in order for her to pay her legal expenses. The Husband on the other hand since the separation has been able to pay a significant amount of his legal expenses out of his own income and has also been able to make a payment of $50,000.00 into his own superannuation.

15. The Husband submits that if the Court is going to take the receivables into account, then that amount should be discounted as it is income which is subject to taxation. On the issue of add backs, the Husband seeks that:

    ·The $100,000.00 drawn down by the Wife,

    ·The interest on that $100,000.00; and

    ·The $7,500.00 loan

    should all be added back.

16. Even if the Court was not to consider that to add all of that back was reasonable, the Husband’s submission was that at least the $80,000.00 for legal fees should be clearly added back into the property pool.

17. Taking all of the matters put to me into consideration in relation to the asset pool and the question of add backs, I am prepared to add back into the pool the $79,000.00 which the Wife has taken from the loan account and used to pay for her legal fees. The rest of the $100,000.00 plus the $7,500.00 I am prepared to regard as spousal maintenance. I do this particularly in the context of the failure of the Husband to continue to contribute towards the Wife’s rent after August 2011 and the quite clear disparity in their incomes and capacity to pay rent and the fact that he has had the use and enjoyment of the marital home throughout all of the relevant period.

Assets	$
Property C, [C]	1,275,000.00
[Q] Insurance Shares (Husband)	71,616.00
[B] Shares (Wife)	34,680.00
[C] Pty Ltd (Husband)	22,875.00
Add backs
Withdrawal from Loan	79,000.00
Total	1,483,171.00
Liabilities	$
ANZ Investment Loan	167,000.00
HECs Loan	9,772.00
NET ASSET POOL	1,306,399.00
Superannuation	$
Mill Family Superannuation Trust	1,001,384.00
[E] Pension Fund (Husband)	37,761.00
[W] Pension Fund (Husband)	197,572.00
[U] Fund (Wife)	10,000.00
[E] Pension Fund (Wife)	72,731.00
Total	1,319,448.00

Contributions

1. It is conceded by the Husband that the Wife came into the relationship with more assets than he did although there is some dispute as to the exact quantum of the Wife’s contribution. The Husband further contends that the Wife’s initial contribution has been eroded during the course of the marriage having regard to his financial and non-financial contributions throughout. The Husband says that he was the primary income earner throughout the marriage and that is not contested. Up until July 2001 the Wife worked in various capacities and then ceased full-time employment until she returned to work in May 2009. She is currently earning an income of approximately $51,000.00 per annum before tax.

2. The Husband concedes that prior to the Wife returning to part-time study that she undertook the majority of the household and parenting responsibilities. However he contends that once she commenced to study, he was equally involved in the care of the two children including the sharing of the responsibility for putting them to bed at night, taking them to play group and on outings. Given the length of the marriage and the contributions of both financial and non-financial made by both the Husband and the Wife, I am prepared to accept that the contributions should be regarded as equal and essentially both Counsel conceded that was the appropriate approach.

Section 75(2) factors

1. The Husband and Wife are both aged in their 40s. They have a number of years of work and a capacity to continue to generate income. Both of them are in good health. The Husband has re-partnered and is living in a de facto relationship with Ms H. The Wife has not re-partnered. The Husband concedes that there is a disparity in the earning capacity of the parties however he disputes that the disparity is as great as the Wife contends if child support payments are taken into account. The Husband further contends that the Wife is capable of earning a greater income than she is currently earning.

2. The Wife contends that the Husband is capable of earning a substantially greater income than she is able to and that the income of his de facto partner, Ms H, at around $52,000.00 per annum should also be taken into account as a contribution to that household. The Wife emphasises that her income is some 25% of that of the Husband’s. She contends that having changed careers only a few years ago she is not in a position to earn in excess of what she is currently earning and that she has arranged her working hours in order to maximise the time that she can spend with the children.

3. The Husband contends that the s.75(2) factors would justify a minimum adjustment in the Wife’s favour and suggests that an appropriate adjustment would be 2.5% of the net non-superannuation asset pool. The Wife contends that given her needs and the far lower potential she has to improve both her income and her future superannuation that the adjustment to her should be significantly greater. In particular, should the Court accept her proposals in relation to the future parenting arrangements, then she would have a greater responsibility for the children as well going into the future.

Conclusions – Parenting

1. The starting point in considering any parenting application lies in the provisions of s.60CA of the Act, that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.

2. Further, where a parenting order provides for equal shared parental responsibility for the child, s.65DAA(1) requires the Court to consider whether the child spending equal time with each parent would be in their best interest and reasonably practicable. Where the Court does not make an order under s.65DAA(2), it must consider whether spending substantial and significant time with each parent would be in their best interest and reasonably practicable.

3. The parties have agreed that they should continue to have joint parental responsibility for the two children of the marriage. This means that they will be required to make decisions jointly about major long-term issues, to consult with the each other, and to make a genuine effort to reach agreement.

4. I have the strong impression that what the Husband has in the past regarded as ‘agreement’ by the Wife has effectively been her conceding and given his own reluctance to concede such major decisions, as for example the school the children attend, may become difficult issues for them to resolve.

5. [X] and [Y] have been through quite a lot in the past two years. The separation of their parents must have come as a shock to them and their father’s almost immediate re-partnering and introduction into their lives of Ms H and [Z] could not have been easy despite the Husband’s view that it was a smooth transition.

6. While by the time Ms S saw them over a year later, the children had become used to the new arrangements, in my view both the Husband and Ms H exhibited a lack of sensitivity in failing to consider the possible impact on the children of the Husband’s desire to ‘move on’ so quickly.

7. Further, the Husband impressed me, from the evidence and his own demeanour, as someone who was not used to being disagreed with and who did not react well to their views being disputed. Ms A, a trained professional, found the full force of the Husband and Ms H difficult to deal with. I am sure that two young girls would find it even harder to contradict their father. As they become adolescents this will become a bigger issue.

8. Some of the concerns raised by the Wife were trivial and she may have been over-protective of the children in contrast to the Husband’s wish for them to be more independent. She appeared however to be more ‘in tune’ as Ms S put it, with them and their needs and spoke about them with some insight.

9. Despite the Husband’s belief that the current arrangements are working, I am satisfied that he is not capable of the type of collaboration necessary for such an arrangement to provide the best support for these children. I therefore do not consider an order for equal time to be in their best interests.

10. I see no point in putting off to another day the decision about where the children should predominantly live. While I can see some benefits in phasing the changes, the children have already had one significant change in the arrangements in February and a graduated change may simply be more confusing for them.

11. I am satisfied that the children would cope well with a 10/4 arrangement and that this would give the Husband substantial and significant time with them. This would involve the children spending each Thursday night with their father and one weekend in every two, from Friday after school until 5.00 p.m. on the Sunday.

12. I am satisfied that this would afford the children the benefit of having a primary base with the Wife and enable the Husband to have regular and significant time with the children and to arrange his work and travel to ensure his ability to devote his time to them when they are in his care.

13. The children deserve some finality and it is my intention that the orders I make will provide this until the children are old enough to make arrangements for themselves.

Conclusions – Property

1. I am satisfied that in determining the assets of the marriage, the $22,875.00 in receivables owed to [C] Pty Ltd as at the time of the separation should be included. I accept that there should be some balancing of this against the tax liability of the Husband which is accepted as a liability of the parties to the marriage.

2. I am also prepared to accept an amount of $79,000.00 as an add back from the amount withdrawn from the investment loan account by the Wife. I am not prepared to allow for interest to be taken into account on that amount and I characterise the balance of $21,000.00 plus the $7,500.00 as spousal maintenance based on the needs of the Wife and the relative financial positions of the parties.

3. It is not possible to assess the value of the $55,000.00 worth of renovations done by the Husband post-separation or the necessity for such. It is apparent that the Husband used moneys in the joint account to pay for these, in part at least, and it is not possible to unscramble the $167,000.00 currently owed to the ANZ Bank to account for:

   ·The amount spent on renovations,

   ·On paying the Husband’s tax liabilities; and

   ·On the $100,000.00 withdrawn by the Wife.

   On that basis the $167,000.00 will be accepted as a joint liability of the parties.

4. On my calculations, the total non-superannuation assets therefore amount to $1,483,171.00. The total liabilities amount to $176,772.00 leaving a net asset pool of $1,306,399.00

5. The total superannuation comes to a figure of $1,319,448.00 although the parties have agreed to value the total superannuation as at 30 June 2012 and effect an equal split. The most appropriate way to do this would be via the Mill Family Superannuation Trust of which they are joint trustees.

6. It is clear that superannuation represents about half of the total assets.

7. In determining an appropriate split of the non-superannuation assets the Court needs to consider primarily the s.75(2) factors.

8. Both parties are in their forties and are in good health. They are both capable of gainful employment although the Husband has a considerable advantage over the Wife in terms of his earning capacity. As a result of these orders, the children will live predominantly with the Wife and she has already – prior to the separation – tailored her working hours to provide for time with them. Neither party has any duty or need to maintain anyone except for themselves and the children of the marriage.

9. The Husband currently resides in the marital home and the Wife in rental accommodation. It is reasonable that she would want to house herself and the children in an appropriate house located close to their school.

10. The marriage was of a fairly long duration during which time, after the birth of the children, the Wife devoted herself to their care and later to part-time study and work.

11. The Husband has re-partnered. His new partner has a comparable income to the wife’s.

12. I am satisfied that the Wife should receive a margin for the s.75(2) factors. As there is agreement that the superannuation should be split on a 50/50 basis, any such adjustment will need to come from the non-superannuation assets. If the Wife receives 60% of the non-superannuation assets, this would give her about 55% of the total asset pool.

13. I am satisfied that this is a just and equitable outcome.

14. Taking into account the $79,000.00 already advanced to the Wife and the value of the shares she will retain, this would require the Husband to pay to her a total of $670,160.00 should he wish to retain the marital home. In the event that he does not wish to do so, or is unable to raise the loan needed to pay the Wife within 30 days, the house is to be sold and the amount of $670,160.00 minus 40% of costs associated with the sale is to be paid to her from the proceeds.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Whelan FM

Associate: 

Date:  8 August 2012