MIRTZ & MIRTZ
[2010] FMCAfam 197
•25 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MIRTZ & MIRTZ | [2010] FMCAfam 197 |
| FAMILY LAW – Property settlement – contribution – s.75(2) factors – deferred order for sale sought – jurisdiction to order deferred sale – discretionary factors relevant to order for deferred sale – gambling allegations. FAMILY LAW – Parenting – equal shared parental responsibility or sole parental responsibility – contact with father – father with psychological issues. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B,72, 74, 75, 79, 80, 81, 114 |
| Best (1993) FLC 92-418 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. |
| Applicant: | MR MIRTZ |
| Respondent: | MS MIRTZ |
| File Number: | WOC 446 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 10 November 2009 |
| Date of Last Submission: | 10 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maurice |
| Solicitors for the Applicant: | DGB Lawyers |
| Counsel for the Respondent: | Mr Bell |
| Solicitors for the Respondent: | Rita Thakur & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Falloon |
| Solicitors for the Independent Children’s Lawyer: | Williamson Isabella |
ORDERS
Parties have equal shared parental responsibility for the Children [X] born [in] 1993, [Y] born [in] 1994 and [Z] born [in] 2006.
Each party shall be responsible for making decisions concerning the day to day care, welfare and development of the children during the periods that the children are in his/her care respectively.
The Children live with the Mother.
The Child [Z] spend time with the Father from today’s date until the end of November 2010 as follows:
(a)Each Wednesday from 3pm until 7pm;
(b)In week one on Saturday from 10am until 7pm;
(c)In week two on Saturday and Sunday from 10am to 7pm;
(d)In week three on Sunday from 10am to 7pm;
(e)In week four the [Z] is to remain with the mother on the weekend;
(f)At other times as agreed.
From 1 December 2010 to 31 December 2011 the Child [Z] spend time with the Father as follows:
(a)In week one, on Wednesday from 3.00pm to 7.00pm and on Sunday from 10.00am to 7.00pm; and
(b)In week two, from 10.00am on Saturday to 4.00pm on Sunday; and
(c)In week three, on Wednesday from 3.00pm until 7.00pm and Saturday from 10.00am to 7.00pm.
From 1 January 2012 the Child [Z] spend time with the Father as follows:
During School Terms:
(a)In week one, on Wednesday from 3.00pm to 7.00pm and on Sunday from 10.00am to 7.00pm; and
(b)In week two, from 6.00pm on Friday to 7.00pm on Sunday; and
(c)In week three from 6.00pm Friday to 7.00pm on Saturday;
(d)In week four the Child is to remain with the mother.
(e)At other times as agreed between the parties.
During School Holiday Periods:
(f)For one week in the New South Wales school holiday periods at the conclusion of Terms One, Two and Three as agreed between the parties but failing agreement from 2.00pm on the middle Saturday of the relevant school holiday period until 2.00pm on the final Saturday of the relevant school holiday period.
(g)For two weeks in each New South Wales Christmas school holiday period at the conclusion of Term Four as agreed between the parties but failing agreement as follows:
(i)From 11.00am on 26 December until 4.00pm on 9 January in each odd numbered year; and
(ii)From 4.00pm on 2 January until 4.00pm on 16 January in each even numbered year.
(h)Provided that if the Father is unable to obtain leave from his employment to facilitate the block periods of time with [Z] during school holiday periods, the Father is to notify the Mother.
(i)At other times as agreed between the parties.
Unless otherwise agreed by the parties [Z] shall live with each parent during the following times and any other order providing for time contrary to this order is suspended to provide for this order:
(a)With the father from 4pm 24 December until 11am 25 December in 2010 and in each even numbered year thereafter;
(b)With the father from 11am 25 December until 11am 26 December in 2011 and in each odd numbered year thereafter;
(c)With the mother from 4pm 24 December until 11am 25 December in 2009 and in each odd numbered year thereafter;
(d)With the mother from 11am 25 December until 11am 26 December in 2010 and in each even numbered year thereafter;
(e)With the mother from 6pm on the Saturday immediately before Mother’s Day until 6pm Mother’s Day; and
(f)With the father from 6pm on the Saturday immediately before Father’s Day until 6pm Father’s Day.
Each party shall ensure that on [Z]’s birthday the party who does not have [Z] in his/her care spends time with her for a minimum of two (2) hours commencing and concluding at times agreed between the parties but failing agreement between the parties between the hours of 4pm and 6pm if a school day and between the hours of 9am and 1pm if a non-school day.
Each party shall ensure that on each of the party’s birthdays the party who does not have [Z] in his/her care spends time with the children for a minimum of two (2) hours commencing and concluding at times agreed between the parties between the hours of 4pm and 6pm if a school day and between the hours of 9am and 1pm if a non-school day.
If the periods of time the father spends with [Z] commences at the conclusion of school the father is to collect her from school at the commencement of his time and if the father’s time with [Z] concludes at the commencement of school the father is to deliver [Z] to school at the conclusion of his time with her, otherwise the mother is to deliver [Z] to the father’s place of residence at the commencement of the father’s time with her and the father is to deliver [Z] to the mother’s place of residence at the conclusion of the father’s time with her.
That the Court notes that the father seeks no orders with regard to [X] and [Y] spending time with him on the basis that he proposes to arrange for them to spend time with him in accordance with their wishes.
Each party is to provide such consents and such authorities as may be necessary from time to time to:
(a)Allow the provision to the other party or to a medical practitioner of any medical report concerning any of the children;
(b)Enable the other party to communicate with any of the children’s places of education and obtain all information and copies of documentation from such place of education as the party may request in relation to any of the children;
(c)Permit the other party to attend any of the children’s places of education for any special event or at other reasonable times;
(d)Permit the other party to discuss with any of the children’s teachers or other relevant persons involved in the education of the children the relevant child’s performance.
The parties shall be at liberty to attend at any of the children’s places of education for the purpose of attending any activity or occasion routinely attended by parents and for the purpose of discussing the child’s progress with the relevant person.
That parties shall be at liberty to attend at any of the children’s extra-curricular activities routinely attended by parents.
Each party shall ensure the children attend all of the extra-curricular activities the children may participate in from time to time when the children are in his/her care and the party who is spending time with the children at the time of the relevant activity occurring is to be responsible for the children to and from the activity.
The parties are to have reasonable telephone communication with the children at all times.
Each party is restrained from denigrating the other party in the presence or hearing of the children and is to use their best endeavours to ensure that no other person denigrates the other party in the presence or hearing of the children.
Each party is restrained from discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
Each party is to keep the other party informed of their residential address and telephone numbers, including a landline telephone number if available, and notify each other of any change to same within forty-eight (48) hours of the change occurring.
Each party is to contact the other party as soon as practicable should any of the following events occur while the children are in their care:
(a)If any of the children become seriously ill;
(b)If any of the children are hospitalised;
(c)If any of the children are involved in an accident resulting in injury or injuries requiring medical attention.
The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows:
(a)The parties shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General or;
(b)The parties shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of one or more of the children or of one or more of the parties, each party is to take the following steps;
(a)The parties shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney general or;
(b)The parties shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
That the wife pay to the husband by way of alteration of property interest the amount of $61,367.
Upon the wife’s compliance with Order 23 the husband shall transfer to the wife his entire right title and interest in the parties’ jointly owned former matrimonial home known as and situated at Property K, NSW being the whole of the land contained in Certificate of Title Folio Identifier [omitted] and upon such transfer the wife shall indemnify the husband and forever keep him indemnified against any outgoings in respect of the home including the payment of rates, taxes, insurance payments and mortgage repayments.
Simultaneously upon the husband’s compliance with Order 5 the wife shall refinance into her sole name the mortgage loan secured on the property.
That the husband shall relinquish any interest he may have in the wife’s motor vehicle Hyundai Excel [registration omitted].
That the base amount allocated to Ms Mirtz the non-member spouse in these proceedings out of the interest held by Mr Mirtz (DOB 1966) in First State Super is $50,000.00.
That pursuant to paragraph 90MT(1)(a) Family Law Act 1975, whenever the Trustee of the First State Super makes a splittable payment from the interest held by Mr Mirtz Member no: [omitted] the Trustee shall pay to Ms Mirtz or her administrators, executers, beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement Mr Mirtz would have had in First State Super but for these Orders.
That Order 11 have effect from the operative time and the operative time shall be deemed to be two (2) weeks from the date when these Orders are served upon the Trustee.
That this Order binds the Trustee of First State Super.
That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:
15.1All personal property now in his/her respective possession or control
15.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively
15.3All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to this Order, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
If the wife has not paid the sum of $61,367 to the husband within
60 days of the date of this Order, interest shall accrue on the said sum at the rate being the interest payable from time to time by the Greater Building Society on a cash management account having a balance of $60,000.
If the wife has not paid the sum of $61,367 to the husband in accordance with these Orders by 1 December 2010 the former matrimonial home is to be sold as follows:
(a)That the parties forthwith do all things and sign all documents necessary to cause the matrimonial home to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee.
(b)That in the event the matrimonial home is not sold by private treaty within a period of 10 months after the date of these Orders, then the parties forthwith do all acts and things necessary including executing all documents necessary to cause the property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement at a reserve price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee.
(c)That the parties shall do all acts and things reasonably necessary to facilitate the sale of the matrimonial home including, but not limited to, by making the key(s) available, allowing inspection of the matrimonial home at all times reasonably requested by the Agent or Auctioneer and ensuring that the matrimonial home is in a neat and clean condition at times of inspection.
(d)That in the event the matrimonial home is listed for sale by public auction the parties shall do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the sale of the matrimonial home by public auction and in particular:
(i)Place the matrimonial home with the Auctioneer for sale by public auction at the earliest possible date;
(ii)Execute all documents requested by the Auctioneer for the sale of the matrimonial home by auction;
(iii)Instruct the Auctioneer that the reserve price unless otherwise agreed is no less than the value as determined by the valuation;
(iv)Pay to the Auctioneer any sums requested for advertising expenses in relation to the auction;
(v)Give such instructions to the Solicitor for the preparation of an appropriate contract and other documents as are necessary for the sale of the matrimonial home by auction;
(vi)Attend at the auction sale of the matrimonial home and negotiate with the highest bidder in the event that the reserve price is not reached;
(vii)Accept the advice of the Auctioneer as to the acceptance of a price less than the reserve price.
That upon the parties accepting an offer to purchase the matrimonial home or upon the sale of the property by auction the parties shall forthwith do all things necessary to complete the sale of the matrimonial home and to disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent’s commission and advertising expenses and legal expenses relating to the sale;
(b)Discharge of the Mortgage to the Bank of Western Australia Limited;
(c)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee;
(d)In payment to the Husband of $61.367 together with interest accumulated in accordance with these Orders;
(e)In payment to the wife of the balance then remaining.
That as from the date of this Order and pending sale of the matrimonial home the wife shall be solely responsible for and pay all outgoings in relation to the matrimonial home including, but not limited to all regular instalments in respect of the mortgage, all statutory rates and charges, all utilities including electricity and gas, house and contents insurance, water rates, council rates as and when they fall due and the wife shall hereby indemnify and keep indemnified the husband in respect of such payments.
The joint tenancy in the former matrimonial home is hereby severed, and the parties hold their interest in the said property as tenants in common in the percentage share calculated in accordance with the following formula where:
H = Husband’s share as tenant in common
CMV= Current market value of the home at the relevant time
I = Interest payable to the husband in accordance with these Orders
W = wife’s share as tenant in common
H = 61,376 + I
CMVW = CMV – H
CMV
IT IS NOTED that publication of this judgment under the pseudonym Mirtz & Mirtz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 446 of 2008
| MR MIRTZ |
Applicant
And
| MS MIRTZ |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for property settlement, and in addition for parenting orders. The applicant is the husband. He is 43 years old. The respondent is the wife, who is 42 years old. They have three children, [X] who is 17, [Y] who is 15, and [Z], who is aged 3 years, 9 months. The children currently reside with the mother.
The parents commenced cohabitation in either 1985, or 1988 – nothing turns on this. They married in February 1989 in [P], but then moved to [U] later that year, and returned to [P] in early 1991. They both commenced employment at about that time. In 1994, they purchased a home at [N] where they lived for some time, but in 1996 they moved to [B], to be closer to where the husband was then working. The wife was also able to find work in the area. In 2001, they sold their home at [N] and purchased what is now the former matrimonial home at Property K.
In relation to the property settlement, the husband seeks orders that, in effect, provide him with 37.5 percent of the net matrimonial assets including superannuation and thus provides to the wife 62.5 percent. He asserts that contribution up until the date of separation, which was in late 2006, to be equal. He acknowledges that there are considerations under section 75(2) of the Act operating in favour of the wife which would result in her having a further 12.5 percent of the available assets.
The wife’s perspective in relation to property settlement – so far as I am able to discern it from the evidence and the submissions made on her behalf – is that she should receive 70 percent of the net property assets including superannuation, with the allocation between superannuation and non-superannuation assets geared towards achieving a result whereby she would be able to retain the former matrimonial home, which she and the children continue to occupy.
On her behalf, it is asserted that apart from matters of gambling, contribution at the date of separation would be equal. She asserts there is a further five percent adjustment in her favour for post-separation contribution made by her. She further asserts that there should be an adjustment under section 75(2) of 15 percent. It was clearly an important part of the wife’s case that she either be able to retain the former matrimonial home, subject to the mortgage of course - or alternatively that its sale be deferred until the end of 2010, thus providing a stable household for the family, but particularly for [X] the eldest child who will be sitting for the higher school certificate in 2010.
One of the issues in this case is the nature and extent of psychological problems that the husband has experienced in the past, and whether such problems continue to date, and the impact of this on his parenting capacity. Even he concedes that this is an issue.
The competing proposals in relation to parenting matters can be summarised as follows: the father seeks an order for equal shared parental responsibility but the mother and the Independent Children’s Lawyer seek sole parental responsibility. It is common ground between all parties that the children should live with their mother. The father asks the court to make no orders for the boys to spend time with him, and that this should be decided on the basis of their wishes. The mother and the Independent Children’s Lawyer propose that orders should be made for all of the children, irrespective of their age.
One of the major issues in this case is how much time the youngest child, [Z], should be spending with her father. He proposes that until June 2010, his contact should continue to be daytime only. He then proposes that from June to September 2010 that the daytime contact should be supplemented by one overnight during two separate weeks, during the month. From October 2010 onwards, he proposes that there be daytime contact, one overnight during one week of the month, and two overnights during another week of the month. He also proposes orders for school holiday time once [Z] commences school, as well as orders for special occasions.
The mother’s proposal for contact orders is that until November 2010 there should be daytime contact only. From December 2010 to December 2011, the daytime contact should be supplemented by one overnight during one week each month. Thereafter, from January 2012, the contact should be as agreed.
The Independent Children’s Lawyer’s proposal involves regular daytime contact: that [X] spend time with his father in accordance with his wishes; that [Y] spend time with his father each alternate weekend from Saturday to Sunday; and that from April 2011, there be further time as agreed between the parties. One of the most contentious aspects of the Independent Children’s Lawyer’s proposal, supported by the mother, is that she should have, in effect, a veto over contact should she become concerned about the father’s condition.
On 5 December 2008, I made interim orders for the parents to have equal shared parental responsibility; for the children to live with the mother, and for them to spend time with their father each Wednesday from 3 to 7; in week 1 on Saturday from 10 am until 7 pm; in week 2 on Saturday and Sunday from 10 am until 7 pm, and in week 3, on Sunday from 10 am to 7 pm. During remaining weeks, the children would stay with their mother on the weekend. These orders were implemented and it seems common ground between the parties have worked well with only minor problems, and continue to be in effect to date.
In the context of setting out the competing proposals for parenting arrangements it is convenient to set out the recommendations of the Family Consultant who was engaged to prepare the Family Reports in this matter. Dr Hollingworth prepared two reports, one dated 9 January 2009, and a later one dated 24 July 2009. In her later report she explains that she remains of the view expressed in her first report that there was no benefit in changing the current arrangements for the children to spend time with their father, and indeed there may be risks in allowing extended or unfettered contact should the father’s mood deteriorate under stress. In addition, she felt that [Z] was not ready for sleepovers. She preferred the mother’s proposal to delay sleepovers until [Z] is ready to separate from her overnight, and she felt in general terms that 2011 would probably be a better year to start this transition than 2010. Whilst this will be dealt with in more detail below, it would be fair to say that Dr Hollingworth had significant ongoing concerns about the father’s emotional state.
The evidence in this case consisted of affidavits by the mother and the father and the two Family Reports aforesaid. Both parents and the Family Consultant gave oral evidence and were cross‑examined. A quantity of subpoenaed material was tendered in evidence.
Issues
There is an issue in relation to whether there should be an order for sole parental responsibility or equal shared parental responsibility. In addition there is an issue as to whether I should make orders for the older boys, or no orders at all. The major issue is what order should be made in relation to [Z], particularly given her young age, the comparatively limited contact that she has had with her father since separation, and the issues that are raised about the father’s psychological health and whether it presents some form of risk of harm to [Z] and the boys. In terms of the detailed orders, I will need to consider whether to implement the form of veto that is proposed by the Independent Children’s Lawyer, and supported by the mother.
In relation to the property settlement aspect of this case, a number of relatively minor issues arise about the constitution of the pool of assets and I will deal with this below. I will need to deal with the gambling issue, presumably in the context of assessing contribution both at the time of separation and later. In addition, I will need to assess whether the section 75(2) adjustment in this case is the 15 percent proposed by the wife, or the 12.5 percent proposed by the husband. I will need to consider the possibility of deferring the sale of the home.
I recognise that, in the normal course, reasons for judgment would deal with the parenting case first, and then the property case. In this case, I am satisfied that it doesn’t matter which approach is adopted, because of the very limited issues raised in the parenting case that would impact on the assessment of contribution and future needs in the property case. Accordingly, after setting out the applicable law, it is more convenient to deal with property issues.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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 child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a 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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomenon in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The wife raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Property matters
I find the property pool to be as follows:-
| Asset | Value | |
| 1 | Property K (joint) | $395,000 |
| 2 | Hyundai Excel (wife) | $500 |
| 3 | Nissan Pathfinder (add-back husband) | $18,000 |
| 4 | Superannuation (wife) | $10,732 |
| 5 | Superannuation (husband) | $113,252 |
| TOTAL ASSETS: | $537,484 | |
| Liabilities | ||
| 6 | Bank West mortgage | $130,000 |
| Net Asset Pool | $407,484 | |
| Total Superannuation Assets | $123,984 (30%) | |
| Total Net Non-Superannuation Assets | $283,500 (70%) |
A number of issues were raised by each party in the evidence, and in their submissions. The wife initially sought the inclusion as a liability in the balance sheet of a debt incurred for legal fees. She subsequently withdrew this during her counsel’s submissions. I believe this was an appropriate decision to make. The husband submitted that there should be an add-back of savings that the wife had at the time of separation but I decline to do so. The circumstances of this case indicate that whatever savings she may have had at the time of separation were used for the reasonable living expenses of the wife and three children. Whilst I am satisfied that the husband made, during the post‑separation period, contributions by way of support which were meaningful and proportionate to his own financial circumstances, there is no evidence that would justify adding back these funds.
There was a dispute between the parties about the value of the household contents and personalty left in the former matrimonial home. The husband asserted that it had a value of at least $5000, but the wife asserted that its value was no more or less than the items that the husband himself took from the home. There was no valuation evidence advanced by either party. The husband’s counsel submitted that I should make an order, either for the sale of these items, or for its distribution in specie, using a pick a pile method. In the circumstances of this case I will do neither. This is a modest asset pool and the financial circumstances of this family both now, and during the marriage, were modest. There is evidence to indicate that the husband did take certain items from the home on separation and in the post‑separation period. It would cause considerable unnecessary expense, let alone inconvenience, for the parties to have to sell the items in question, or to divide them in specie. It is probably the case that a significant proportion of these items belong to or are used for the purposes of the children anyway. In these circumstances, I decline to make any order in relation to these items for sale, distribution, or even to include their value in the balance sheet.
There is an issue between the parties about the add-back of item 3 in the balance sheet, the Nissan Pathfinder. The evidence indicates that the husband traded in this vehicle for a much cheaper vehicle and then retained $6,000 for his own purposes. He says that he used this money for his reasonable living expenses. The evidence indicates otherwise. He was referred in cross‑examination to a credit union statement, which indicated that the $6,000 in question was received on 7 November 2007. He says the money was used for reasonable living expenses. A close examination of the withdrawals from the account in question after the deposit of $6,000 creates a completely different picture.
Firstly, the $6,000 in question raised the balance in this account to $6,001.32 on 8 November 2007. By 28 November 2007, 20 days later, the balance had reduced to $4.96. An examination of the debit entries indicates that the husband took a holiday to the Northern Territory and spent hundreds, if not thousands of dollars, for that purpose. The nature and the frequency of the withdrawals over the rest of the month are almost impossible to reconcile with his assertion that they were used for reasonable living expenses. For example, he withdrew $600 in cash on 16 November, $300 on 17 November, $200 on the 19th, $400 on the 20th, $800 on the 21st, $300 on the 23rd, $200 on each of 25, 26 and 27 November. The wife asserts that the husband was a gambler during the marriage and that, in all likelihood, a substantial part of these transactions relating to gambling. As it turns out, and for the reasons that I set out below, I find that the husband did engage in gambling activities during the course of the marriage.
I find that the withdrawals of the $6,000 are, at least in part, consistent with expenditure for gambling. For example on 21 November there were two separate withdrawals of cash from the [omitted] Golf Club, totally $800. In the circumstances I categorically reject the husband’s assertion that he used the $6000 for reasonable living expenses. The most just and equitable way to deal with the sale of the Nissan Pathfinder is to add back into the property pool the amount he received for the same, namely $18,000. I accept the wife’s evidence about the circumstances of this sale, in preference to that of the husband. It was unnecessary, and in my opinion constitutes a premature distribution of the assets of the parties.
Finally, in relation to the asset pool, the husband asserts that there should be included as a liability a credit card debt that existed at the time of separation and which he has been servicing since then. He asserts it was a joint debt, incurred for joint living expenses.
I do not agree. Firstly, the onus of proof was on him to produce the relevant credit card statements to establish that it was in fact used for living expenses. He has failed to do so. Secondly, and as I have foreshadowed above, I make findings in this case that the husband regularly gambled moneys. The wife asserts that his gambling activities were, at times, financed through the credit card in question. It is more likely than not that this is the case. In the circumstances, I decline to include this as a liability.
I note, therefore, that the total net asset pool amounts to $470,484, approximately 30 percent of which is made up of superannuation.
Contribution
Doing the best I can to understand the wife’s case, she asserts that contribution as at the date of separation should be assessed as being equal, save for considerations of the husband’s gambling activities. The husband says that contribution at separation should be assessed equally. The only issue is the gambling. The wife’s affidavit contains extensive evidence about the husband’s gambling activities throughout the course of the marriage. It was clearly a problem for them.
For all practical purposes the wife was not substantially challenged about this evidence and, in any event, to the extent she was I accept her evidence over that of the husband. The husband did not deny that he gambled during the marriage but my strong impression of him, particularly in cross-examination, was that he sought at all times to minimise the extent of the gambling activities that he undertook.
The real challenge in this case is not whether or not the husband gambled, but to try to quantify the extent of the gambling. The wife made an attempt to do this by an examination of banking records and the linking of withdrawals at certain venues, particularly the [omitted] Golf Club and the [omitted] Hotel. I must say it was very hard to understand her evidence. It is unclear, for example, whether the aide memoire provided by her counsel meant that the husband had gambled $18,867, or a total of $35,833, or some other amount.
Any attempt that the wife made to quantify the extent of the husband’s gambling activities has not succeeded. I am satisfied that the husband was a problem gambler, that this was a major problem in the marriage, and that the wife in no way contributed to his gambling. I accept that it is a negative contribution, or that the wife’s contribution was rendered more arduous as a result of his gambling, or alternatively that there has been a premature distribution of assets as a result of his reckless gambling activities. The difficulty the court has, however, is of quantifying the same. It is a matter that I take into account in the assessment of contribution generally. I recognise that another alternative is for me to take it into account as a section 75(2)(o) factor.
The other issue about contribution is the wife’s claim for post-separation contribution. It is now over three years since separation took place. The husband, who currently earns $884, currently pays about $135 per week by way of child support. The wife, who earns $740 per week, mostly from Centrelink benefits, but also from the husband’s child support, spends at least that amount each week, and services the mortgage in the sum of $300 per week, as well as pays all the outgoings on the property.
Until February 2008, the wife concedes that the husband was paying into the account out of which the mortgage and credit cards were paid, between $500 and $800 per fortnight. I am satisfied that the husband did what he could under the circumstances and no submission was put to me that he could have reasonably done more. However, whilst the wife has paid the mortgage she has enjoyed the benefit to her and the children of continued occupation of the former matrimonial home and, under these circumstances, I’m not prepared to allow a further adjustment in her favour for post-separation contribution.
In reaching a conclusion about contribution, because of the difficulties in quantifying the nature and extent of the husband’s gambling activities during the marriage I have decided to treat this as a section 75(2)(o) consideration rather than to reflect it in a finding as to contribution. In all the circumstances a finding of equality of contribution as at the date of the hearing, is the just and equitable one.
In relation to the future needs considerations under section 75(2), the wife seeks 15 percent, and the husband concedes 12.5 percent. There is no need for a detailed analysis in the circumstances of this case. The husband frankly recognises the need for an adjustment in favour of the wife by stating that it should be at 12.5 percent. I have made findings about gambling and already characterised the same as either a negative contribution, or a contribution rendered more arduous by the wife, or a section 75(2)(o) consideration. I believe that the most appropriate categorisation for the unquantified gambling activities of the husband, and its impact on his family, is to treat it as a section 75(2)(o) consideration.
In the circumstances of this case a total section 75(2) adjustment in favour of the wife quantified at 15 percent is, I believe, just and equitable. There is no question of her needs but the reality is that the children are older, save for [Z]. The wife has an earning capacity which is modest, but is yet to be realised and which should increase her income when it is realised. Moreover, it can hardly be said that the husband’s income is a substantial one, though it is certainly greater than that of the wife. In all the circumstances a total adjustment of 15 percent is appropriate on the facts of this case.
Conclusion about property
Having regard to the above the wife is entitled to 65 percent of the net matrimonial assets. This would provide a gross entitlement to her of $264,865, and to the husband of $142,619.
Just and equitable
Two issues arise in this regard. Firstly, the apportionment of the wife and husband’s entitlement as between superannuation assets, and non-superannuation assets. Secondly, the question of whether, in all the circumstances of this case, the sale of the former matrimonial home ought to be deferred till at least the end of this year, to enable stability in the home for the wife and children whilst [X] completes his higher school certificate.
The orders sought by the wife clearly reflect her desire to attempt, if possible, to retain the former matrimonial home, and in the alternative if this is not possible, to defer its sale as aforesaid. On this basis she asks for a super split of the husband’s superannuation so that she receives $50,000. By contrast the husband seeks the superannuation to be split in proportion to, presumably, the final split allocated in the property settlement. On this basis the wife would receive 70 percent of the total superannuation or $76,000 approximately out of his super fund (taking into account the wife’s own superannuation). The difference between the parties in this regard is not significant in a theoretical sense, but its implementation has significant practical implications for the wife, and potentially makes the difference between being able to keep the former matrimonial home, or having to sell it at some stage.
Both the husband and the wife are very young in terms of when they might receive their superannuation entitlement. The husband has a greater earning capacity than the wife, at least for the time being, and thus has the greater opportunity to accumulate superannuation. It was no part of his case that his housing needs were pressing, where it is a fundamental part of the wife’s case that she should at least be given the opportunity to retain the former matrimonial home, and to postpone its sale (if that be required) for the longest period possible to accommodate the needs of the children. In all the circumstances of this case, I see no prejudice to the husband in making the order sought by the wife about super split. Accordingly, I will make the super splitting order sought by her which will give her a super split out of the husband’s fund of $50,000, as well as the further $10,732 she has in her own name. If the wife retains the motor vehicle, the former matrimonial home, and the mortgage, this means her entitlement would be $326,232. In order to achieve the 65 percent she is entitled to, she would have to pay the husband $61,367. I’m not sure, on the evidence before me, that that is achievable, but the orders I make will provide her a reasonable opportunity to do so.
In the event that she is not able to make this payment to the husband I will proceed to consider whether the sale of the property should be deferred, and if so, for how long.
A possible deferred sale of the home?
The wife seeks an order that if she is not able to pay to the husband the $61,367 referred to above within the time frame set in these orders, the requirement for sale of the home be deferred until at least the end of 2010 at which time the oldest child [X] will have completed his higher school certificate examinations. On her behalf is it submitted that, in the circumstances of this case, the disruption that would be caused to [X]’s education and studies at an important time for him, by the preparation for sale, listing for sale, and actual sale of the home and relocation, warrants a deferral of the sale. On behalf of the father it is submitted that it would not be just and equitable to him to have the sale deferred. The father’s counsel raises issues about jurisdiction to make such an order. The issue of a possible deferred sale, even for a period as little as one year, raises some potentially important issues for the parties.
At the outset it needs to be recognised that orders will be made, and reasons for judgment published, in March 2010. In the normal course I would provide to the wife 60 days to make payment to the husband, failing which interest would accrue in the usual manner and the property would need to be listed for sale. This means that the earliest date for the listing for sale of the home would be May 2010. I take judicial notice of the fact that the higher school certificate examinations will have been finalised by the end of November 2010, and thus the wife’s concerns would be addressed by a listing for sale in December 2010. The period in question, therefore, is only seven months.
Whilst this is a comparatively short period of time, it has quite serious practical impacts for this family. For the wife and the children it provides residential stability. For the children it might provide educational continuity. By contrast, for the husband it postpones the opportunity for him to use the capital sum to which he is entitled under s.79 for his own purposes, whether that be to re-accommodate himself by purchasing his own property, renting or spending the money. In the period of eight months anything could happen to the value of the home, or the circumstances of the parties. For example, the value of the home might increase, or it might decrease. Interest rates might increase, thus adding to the cost to the wife of retaining the home. The parties might form relationships and take on new and additional responsibilities to maintain others. A decision about deferring the sale therefore involves prognostication about the future in circumstances where all that is reasonably known relates to the present and past. That in itself is not a reason to decline to make the order, but it emphasises the need to be cautious.
The question of jurisdiction to make an order for deferred sale of the home is quite fundamental. Is it a parenting order under Part VII, or a property or maintenance order under Part VIII, or an injunction under Part XIV? Is there some other source of power?
An order for deferred sale of the family home is not an order under Part VII of the Act. The only possible source of power is s.68B, and I am not satisfied that this was intended to cover this particular situation. There is no issue in this case about “the personal protection” of a child or parent for the purposes of s.68B(1)(a) and (b). There is no basis for “restraining a person from entering or remaining in” the home for the purposes of s.60B(1)(c) and (d). The injunction power in s.68B cannot be moulded to meet the needs of the children in this case for stability and continuity of accommodation. It is somewhat ironic that in a case where perhaps the strongest arguments in favour of a deferred sale are based on the best interests of the children, Part VII of the Act offers no assistance.
In Part VIII of the Act, there are at least two possible sources of power. An order for deferred sale could be made under s.79 of the Act, on a final basis and on an interim basis. Section 80 Contains more than adequate general powers to facilitate this. In the present context an order for deferred sale is sought as part of a final order under s.79, and not as part of interim orders under s.79(6). Interim orders do not present the same difficulties about variation as present for final orders. The ability to vary the order becomes an important consideration if the deferred sale is for a considerable period of time. On the facts of the present case the period is modest and one would hope that the scope for significant change is moderated. If the period were longer, however, s.79A may present a real obstacle to varying the order because of the relatively high threshold it sets. Thus s.79 does provide jurisdiction to order a deferred sale of the home, provided all of the other requirements of the section are met. The difficulty in subsequently varying this order is a major consideration if the period of deferral is long (and is highlighted eg by cases such as Mullane (1988) 158 CLR 436), but this is not a major issue in this case.
There are a few early examples of the Family Court ordering deferred sales of family homes. In Kemp (1976) 2 FamLR 11,289 the Full Court overturned the trial judge’s order for sale of the family home and equal division of the sale proceeds, replacing it with an order for sale postponed for eight years. The reasons seemed to be based on the needs of children. In Petta (1970) FLC 90-608, the Full Court only interfered with an order for deferred sale and occupancy by reducing the period of delay from when the youngest child attained 21 to 18. In Pertsoulis (1980) 6 FamLR 39 Pawley SJ deferred the sale of a house until the child turned 18 or became self-supporting. As the child was 16 at this time, the period of deferral would have been relatively short. A common feature of these cases was the willingness of the court to consider the needs of children, albeit in the context of s.79 proceedings. Of course s.75(2) picks up the needs of children but in an indirect manner because this section is primarily concerned with the needs of a spouse who might also be the parent of a child.
The second possible source of power for a deferred sale could be the maintenance powers in ss.72, 74 and 75. The general powers of the court in s.80 also assist in this regard. Whilst it is not a big issue in this case as the period of deferral is less than a year, the advantage of jurisdiction based on the maintenance powers in Part VIII is that such orders are much easier to vary under s.83. There is thus no reason in principle why an order for deferred sale might not be expressed in terms of provision of maintenance where all the requirements for maintenance are satisfied.
One advantage of relying on the maintenance power rather than the property settlement power under s.79 is that s.81 does not apply. The submission can be made, and was in fact made in this case, that an order for deferred sale was inconsistent with the stated duty in s.81 to end financial relations between the parties. However the section itself circumscribes this duty to being “as far as practicable”. Thus, as Fogarty J said in Crapp (No 2) (197) 35 FamLR 53 at 80, s.81 “is in the nature of an exhortation to the courts”. In Kemp the Full Court permitted an order for deferred sale notwithstanding an argument based on s.81. In Dench (1978) FLC 90-469 the Full Court stated that s.81 is not itself a head of power. In Best (1993) FLC 92-418 the Full Court said at 80296:
…the clean break concept may have been taken to extremes in the past and requires careful consideration in the light of changing economic and social circumstances and values and the benefit of experience over the past decade or so.
Another possible source of power is found in Part XIV of the Act and specifically s.114(1) and (3). The order for deferred sale would thus be characterised as an injunction. The cases dealing with the circumstances when exclusive occupancy should be granted include Davis (1976) FLC 90-062, Page (1981) FLC 91-025 and Fedele (1986) FLC 91-744. Each of these cases have a distinct child-focus, but their context was different to the present. In those cases the injunctions were granted pending the outcome of s.79 proceedings, whereas here the relief sought is as part of the final orders under s.79.
I am satisfied that there is jurisdiction for me to make the order for deferred sale sought by the wife. In circumstances where the period of deferral is modest – less than one year – I believe the soundest jurisdictional basis is s.79 and s.80. The issue then becomes whether I should make this order. The husband argues that the order is not just and equitable from his perspective. The justice and equity to the husband can only be considered in the context of the justice and equity to the wife. There are competing interests and needs here. The wife’s needs and interests have already been articulated. Her needs clearly extend to the children. The husband will be deprived of his cash entitlement for a period of months, but in circumstances where his own financial evidence indicates that he has a substantial surplus of income over expenses, he lives in stable and affordable rental accommodation, and has had stable employment for four years now. Compared to the wife his short-term needs are not as great as that of the wife, and his long term needs are only comparable to hers. The period of deferral is relatively short. I accept that he will miss out on the interest he would earn on $61,367. It is appropriate that interest accrue on this amount from 60 days after the making of this order. However the interest should not be the penalty interest rate prescribed by the Act. The husband refers to an account he has at the Greater Building Society. The interest that is payable on the money is the interest rate payable from time to time on a cash management account at the said institution.
Thus, if the wife cannot pay to the husband the sum of $61,367 within 60 days of these orders, interest will accrue on this amount a the rate stated, until settlement of the sale of the home. The wife may elect to sell the home at any time but must list the property for sale no later than 1 December 2010. In the meanwhile, the respective interests of the husband and wife in the home are declared to be in the proportions allocated to them in these reasons for judgment as reflected in the orders I will make. I understand the wife’s evidence to be that she has been paying all of the outgoings on the home. It is appropriate that she continue to do so.
Parenting matters
The first issue is whether I should make the order for sole parental responsibility sought by the mother and the Independent Children’s Lawyer, or an order for equal shared parental responsibility as sought by the father. The starting point of my consideration is to recognise that section 61DA creates a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. Of course, 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. That is not the case that was advanced by the wife, or the Independent Children’s Lawyer. However, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. I’m not quite sure what this evidence is. Whilst, on the one hand, it is perfectly obvious, and freely conceded by all parties, that communication between the parents is difficult, but it nonetheless exists. Moreover, and in circumstances where there is already an interim order for equal shared parental responsibility, the wife when given the opportunity could not give one single example of any difficulties experienced in decision-making or the consultation which is a concomitant with that. I further note that in her response, filed in 10 September 2008, the wife indicated that she agreed to an order for equal shared parental responsibility. She could point to no circumstances that have changed since then. On this basis, there is no reason to change the existing order for equal shared parental responsibility, and there is no evidence before me to suggest that it should not apply because of matters going to the best interests of the children.
The next issue is whether I should make any orders for the boys. The father’s proposal is that there be no orders with regard to the boys spending time with him on the basis that he proposes to arrange for them to spend time with him in accordance with their wishes. Even the Independent Children’s Lawyer agrees that [X] is content to spend time with his father based on his wishes. Indeed, doing the best I can, it seems that the only reason why the Independent Children’s Lawyer seeks an order for [Y] to spend time with his father each alternate weekend is because [Y] said that to the Family Consultant. I appreciate that I need to recognise the views that he has expressed, particularly given his age. However, I also need to take into account the realities of this case, as well as experience in this jurisdiction. [Y] is 15 years old. Even if I made an order in terms of that proposed for him by the Independent Children’s Lawyer, I would have to recognise his autonomy to act as he pleases. Moreover, in the particular circumstances of this case, and given some concerns I have about the father’s psychological state, if I make the order, but [Y] chooses not to comply, I think there is greater risk of precipitating an emotional crisis for the father than there is if I make the order sought by the father, and it turns out that the level of contact is not what he had hoped it would be. These same considerations apply in declining to make the orders sought by the mother in relation to the older two boys. Indeed, there is an even stronger case for not making the order sought by the mother because it would potentially stifle their views about contact.
The fact is that both boys enjoy a good relationship with their father, I am reasonably satisfied that the mother will not do anything to obstruct their contact with him, and it is the father’s own desire that there be no orders for them. In the circumstances, no order will be made.
The real issue in this case is what orders to make in relation to [Z]. Here, there are a number of important issues. She is very young and appears to have spent no overnights with her father. She was but a baby at the time of separation. The issues about the father’s psychological state are, I accept, issues that create a particular vulnerability for [Z] that does not exist for the boys because they are better able to protect themselves.
Before referring to the evidence of the Family Consultant I make this observation. I am satisfied that the facts on which the Dr Hollingworth relies as the basis of her conclusions are in fact correct. It is the father’s own evidence, for the most part, that is the basis of Dr Hollingworth’s report. The facts in question were not disputed by the father, or on his behalf, and in most cases were disclosed to Dr Hollingworth by the father, or conceded in cross-examination. The only observation I make about the father’s evidence in court, at this point, is that he clearly sought to minimise the impact of these events on the rest of his family.
In Dr Hollingworth’s first report dated 9 February 2009, she formulated the case as follows:
55. The key reason for concerns about increasing time spent with the non-resident parent in this case are risks posed by
· the father’s emotional dysregulation and previous self-harm threats/attempts
· [X]’s emotional vulnerability to his father’s moods and “spousification”
· [Z]’s young age
Father’s emotional state/self-harm threats
56. Although Mr Mirtz expressed remorse about his previous self-indulgent behaviour in expressing his emotional distress to children, (particularly [X]) this does not convince me the problem has been addressed at source. For a parent to tell children about marital unhappiness is a very significant boundary violation and an attempt to reverse family caretaking roles. To have done this (on repeated occasions) enacts narcissistic self-absorption. From the history it appears to me that Mr Mirtz’s response to stress is emotion-focussed rather than problem-focussed. In the marriage and during the separation he apparently expressed his feelings unrestrainedly, as though his rights to emotional self-expression eclipse the rights of all other participants. The letters Mr Mirtz writes to his ex-wife also enact a boundary violation, and disrespect for her right to self-determination given that she has now officially declared herself unavailable as a source of nurturance for him. Mr Mirtz may be sincere in his realization that his lack of emotional self-restraint has been harmful to others in the family. But how wide-ranging is the effect of this epiphany?
57. In over thirty years professional experience as a counsellor and psychotherapist I have noticed that change does not come easily. Mr Mirtz’s close relationships were previously characterised by narcissistic self-absorption and he responded to stress by tension-reduction activities (gambling, substance abuse) or threats of self-harm when his usual coping strategies failed him in extremis. He was locked into a pattern of behaviour by his learned limitations. He may have been recently forced to make some changes, because the pain of staying the same was worse than the pain of doing something differently. However, it is too soon to tell how extensive and how enduring these personal changes are. In particular, the “love letters” Ms Mirtz described made me feel sceptical about the extent to which Mr Mirtz has increased his capacity for empathy,
58. Empathy could be thought of as having three aspects: 1st cognitive, 2nd emotional and 3rd behavioural. Perspective-taking enables us to consider how another thinks or feels. The emotional aspect of empathy means valuing the other’s welfare. We can take action based on our understanding of another’s perspective. Con men display the 1st and 3rd aspects, clumsily “kind” people the 2nd and 3rd and those capable of accurate empathy (e.g. sensitive parents) combine all three.
59. On the basis of our discussions at interview, I would rate
Ms Mirtz’s capacity for all three aspects of empathy as good- in fact she probably overvalues the emotional welfare of others to her own detriment. At the interview (in a situation of low parenting stress) Mr Mirtz displayed some capacity for all three aspects and Ms Mirtz also reported some encouraging signs that his ability to perceive and respect the views of children has improved. However, history indicates that, when Mr Mirtz is flooded by strong emotion, his parental empathy can be very poor. Furthermore, his comments to me at interview and his “love letters” to Ms Mirtz suggest that, with regard to his wife, his ability for acting in ways which respect and value her perspective (2nd and 3rd aspects) his empathic capacity remains poor.
60. Mr Mirtz told me his suicide threats were never serious. If this is an accurate self-report, this speaks of his tendency to coerce others to meet his emotional needs which bodes poorly should he despair again about some future setback. If he is dissembling or deceiving himself, then there is reason to be concerned about self-harm, should he despair again about some future setback (e.g. he is forced to accept Ms Mirtz will never reconcile with him.) Two points are pertinent here.
61. Firstly I am aware of no comprehensive psychiatric or psychological evaluation which has produced a plausible explanation for Mr Mirtz’s long-standing problems with impulse control (gambling, drugs, emotional dysregulation). Ms Mirtz reported cycles of mood swings over a period of > 17 years (which Mr Mirtz did not report). He may or may not fulfil diagnostic criteria for a DSM-IV Axis 1 diagnosis but it is clear Mr Mirtz is prone to serious psychological decompensation under stress. When patients are seen by mental health professionals only at times of acute stress, and do not frankly self-disclose, it can be hard for the clinician to see the whole pattern and how it repeats. People with relapsing mood disorders may have periods of apparent well-being when they strike others as basically rational. People with personality disorders may present well in public when not in crisis.
62. Secondly, it must be remembered that very little is known about fathers who kill themselves and their children post-separation. One Western Australian study of fathers who killed their children and themselves yielded no insights about common diagnoses: because for the most part these men had no history of treatment. Furthermore, in most of these cases the mothers’ concerns about harm to their children had not been taken seriously. In the present state of our knowledge, a father who has threatened or attempted self-harm must be considered a risk to himself and his children, until such time as he is given a clean bill of health by a mental health professional after a documented period of effective psychotherapy.
63. That does not seem to have happened yet. Mr Mirtz has engaged in some sessions of psycho-education and supportive counselling (e.g. he reports 6 sessions with Dr B and notes from RA refer to sessions he attended). Mr Mirtz’s rather dismissive accounts of counselling interventions did not convince me that he had addressed intrinsic characteristics compromising his stress-hardiness and reflective function. It is unlikely that psychotherapy could produce significant and lasting change in cases of longstanding, hard-to-treat conditions (such as personality disorder) in less than 12-24 months year ( i.e. >50 to >100 sessions).
On the basis of the case formulation set out above she made the following recommendations:
63. There is no obvious human benefit from changing the current arrangements for the children to spend time with their father, and there may be risks in allowing extended or unfettered access should Mr Mirtz’s mood deteriorate again under stress. Accordingly the following recommendations are made:
64. Accept the mother’s proposal.
65. Provide discretion for Ms Mirtz to refuse contact on any child’s behalf, if she becomes concerned about her husband’s emotional state or suicide risk. The court may wish to decide whether ordering sole parenting responsibility is the best way to obtain this outcome.
66. If the father’s mood deteriorates and/or he become emotionally dysregulated all visits from children should cease and not resume until he has had treatment and received a clean bill of mental health. Discharge notes after a brief admission during a mental health crisis or psychological evaluations conducted for occupational purposes do not count as a “clean bill of mental health” for this purpose.
Dr Hollingworth’s second report was largely confirmatory of the first report (see, for example, paragraphs 31 and 32). At paragraph 33 she makes the following observation about the father’s emotional state:-
33. History indicates that, when Mr Mirtz is flooded by strong emotion, his parental empathy can be very poor. Several observations at interview contribute to my continued scepticism about the extent to which Mr Mirtz’s parental reflectiveness has improved. As noted above, I thought he was rather blasé about the impact of a house move during [X]’s HSC year, unimaginative about the cumulative effect of changes the children might be asked to contend with in the coming year and incurious about [Z]’s emotional responses to the assessment situation.
In the context of the concern about [Z]’s young age Dr Hollingworth states at paragraph 36:
[Z] is probably still too young for sleepovers with her father, particularly given the developmental regression with regard to independent sleeping and bladder control, which has happened since the last assessment. [Z] is still too young to manage on her own, if a difficulty arose when she was sleeping over with Dad. [Y] and [X] might feel obliged to share [Z]’s sleepovers, which reduces the flexibility of the arrangement for them.
In this regard it is necessary to understand that the mother had disclosed to Dr Hollingworth at paragraph 13 of the second report that after the last family assessment meeting [Z] had regressed in that she was sleeping in her mother’s bed, and also had regressed with regard to toilet training. Whereas [Z] wore nappies at night and had been continent during the day, she had gone back to wetting her pants during the day. This is clearly what Dr Hollingworth meant in paragraph 36 when she refers to [Z]’s “developmental regression”.
Dr Hollingworth makes the following observations at paragraphs 37 and 38:-
37. Given that, to date Ms Mirtz has facilitated the children having a continuing relationship with their father, there seems to be no real necessity for Mr Mirtz to seek these parenting orders - particularly if, as he claims, he is willing to increase time spent with [Z] at a pace which suits the child’s readiness. The boys are at the age where they should be free to directly negotiate time spent with Dad according to their study, social and sporting priorities. [Z] is too young to deal so directly with her Dad. When [Z] is sleeping in her own bed and can pass a night away from her mother without distress, I believe Ms Mirtz would agree to a sleepover providing that she was assured Mr Mirtz’s mood was stable, he was not drinking and he could manage his emotions well enough to enact parental diligence and sensitivity.
38. It is still too soon to tell if Mr Mirtz is equipped to manage life stressors (including normal parenting stress) without misusing substances, becoming depressed or losing self-control. In the past, (even as recently as February 2009, according to Ms Mirtz) when Mr Mirtz has become emotionally distressed he has behaved as though his need for relief from suffering eclipses the needs of all other family members and thus excused him from his parental duty of care. Overall my assessment of s60cc issues remains unchanged from January 2009.
Accordingly she makes the following conclusions and recommendations:-
63. I remain of the opinion expressed in the previous report 9th January 2009, that there is no benefit in changing the current arrangements for the children to spend time with their father, and there may be risks in allowing extended or unfettered access should Mr Mirtz’s mood deteriorate under stress. [Z] is not ready for sleepovers. [X] may feel obliged to accompany her if sleepovers begin any time soon, which would be a burden on him, especially in his HSC year (which for teaching purposes starts term 4, 2009). The children need to settle into an assured pattern which will hold at least until the end of 2010. Accordingly my recommendations are:
64. Prefer the mother’s proposal to delay sleepovers until [Z] is ready to separate from Mum overnight (with guidance form psychologist/counsellor, if in doubt). 2011 would probably be a better year to start this transition than 2010.
65. Provide discretion for Ms Mirtz to refuse contact on any child’s behalf, if she becomes concerned about her husband’s emotional state, sobriety or suicide risk. The court may wish to decide whether allocating sole parenting responsibility to the mother is the best way to obtain this outcome.
66. If the father’s mood deteriorates and/or he becomes emotionally dysregulated all visits from children should cease, until he has had treatment and received a clean bill of mental health. Discharge notes after a brief admission during a mental health crisis or psychological evaluations conducted for occupational purposes do not count as a “clean bill of mental health” for this purpose.
67. If the parents bring this matter before the court again (e.g. if they are still in dispute when [Z] 2011 when [Z] is five) then a Ch.15 report should be ordered to provide a full assessment of both parents (personality, psychiatric symptomatology). It may be preferable if the evaluation of psychological function was conducted by a suitably experienced clinical psychologist, who could use results of standardised measures to augment clinical judgment.
The Independent Children’s Lawyer was very critical about the father’s lack of insight, particularly in relation to [Z], but also generally in relation to the older boys. The first example of this is evident in paragraph 20 of Dr Hollingworth’s second report which states:-
We discussed the fact that due to the cost of protracted legal proceedings, it may transpire that the family home (in which
Ms Mirtz and the children currently live) will need to be sold. He said this was Ms Mirtz’s fault for refusing the fair offer of financial settlement he had previously made. Given that next year is [X]’s Year 12, I asked Mr Mirtz if he were worried about the impact on the children if they were forced to move house in mid 2010. I also raised my concerns about the number of stressors and life transitions which might be happening all at once if, for example, a regime of overnight visits began for [Z] around the same time as a residential move, against the background stress which every family experiences when a child is doing Year 12.
Mr Mirtz was sanguine about the children’s adaptability. He said that other children had adjusted to such changes. He made it clear he would be willing to work towards overnights at [Z]’s pace, especially if she showed distress about separating from her mother ( e.g. crying in the night).
Another example is referred to in paragraph 23 of the second report where Dr Hollingworth records that after she spoke to [Z], [Z] went back to the playroom so that Dr Hollingworth could speak to the mother. Shortly thereafter [Z] had an “accident”. The father commented that it was unusual for her to poo her pants although she sometimes wets them. Dr Hollingworth states: “Seemingly, he did not link this accident with [Z] having just spoken to me about emotive topics.”
The Independent Children’s Lawyer submits that yet another example of the father’s lack of insight is found in his own affidavit at paragraph 51. In order to understand this incident it is necessary to reproduce all of paragraph 51:-
On Saturday 14 February 2009 I was spending time with the children and [Z] and I were sitting on the lounge reading books together. All of a suddenly [Z] said to me words to the effect, “You have been means to my Mum”. I then said to [Z] words to the effect, “Who told you that”? [Z] then said to me words to the effect, “My Mum. You’re not allowed to live with us anymore. You have your own home.” When [Z] said this to me I felt upset. [X] was also present when [Z] said this to me and he appeared to become concerned and anxious. [X] said to me words to the effect, “I don’t know where she got that from”. I am aware of the current parenting Order which restrains me from discussing my emotional needs or emotional state of mind with the children. I was unsure about whether or not I could discuss my feelings with [X]. I decided that it was best for the children to go home to their Mum’s for the rest of the day. I phoned Ms Mirtz at about midday and said to her words to the effect “[Z] has said to me that I have been mean to you. I feel a bit upset. Maybe it is best that I bring the children home”. Ms Mirtz said to me words to the effect, “yeah okay, that’s fine, bring them home”. Although I was feeling a little bit upset I was not in tears.
It is interesting and concerning to note that the father felt he had to terminate his time with the children based on the words that his then not yet three-year old daughter said to him. I agree with the Independent Children’s Lawyer that it does reflect lack of insight on the father’s part, but also raises concerns about his parenting capacity and his possible ongoing fragile emotional or psychological condition.
It is important to note that, despite all of these concerns raised about the father, and about [Z]’s ability to handle overnights,
Dr Hollingworth agreed that there was not one example of the father’s neglect, threatening or abusive behaviour, drinking alcohol or consuming drugs, when the father was with the children in the post-separation period. Dr Hollingworth agreed that all interactions between the father and the children are, at the very least, amiable. She conceded that there were clear affectional bonds between the children and the father, but would not concede that there was attachment, particularly in the case of [Z].
In cross-examination, however, Dr Hollingworth did concede that there was no evidence of a risk presented to [Z] from the father. She emphasised that even in a world where there is lots of sub-optimal parenting, the father in this case could not self-regulate prioritising his needs, above that of his children. She described him as failing in terms of sensitive parenting.
Having regard to Dr Hollingworth’s evidence, and the evidence of the mother and father, it is very hard for the court to ignore her recommendation that overnights between [Z] and her father should not commence until 2011. This conclusion seems to be partly because of matters relating to [Z], and partly matters relating to the father.
So far, I have approached my analysis of these matters in general terms, without reference to the considerations set out in ss.60CC (2) and (3). It is hard to go beyond the very methodical approach that
Dr Hollingworth adopts about the section 60CC factors at page 24 of her first report, and page 15 of her second report and I adopt those, subject to the following matters. I do not think that any of the primary considerations are relevant on the facts of this case. However, I do believe that the nature of the father’s relationship with [Z], the likely effects on her of moving to overnight at this time, and lingering concerns I have about the father’s capacity to meet [Z]’s needs, all justify a conclusion that there should not be overnight time until 2011.
There are a number of matters, however, where I do not agree with Dr Hollingworth and cannot accept her recommendations in this regard. For example, insofar as she was suggesting that no orders were needed in this case, I disagree. It is quite possible that what
Dr Hollingworth meant to say in her reports was that no further orders were needed. I record, however, that the nature of the relationship between the parents, and the fact that the father had to actually file an application before me in order to secure contact, are factors that justify the need for making an order.
I also cannot accept Dr Hollingworth’s recommendations at paragraphs 65 and 66 of her second report. In effect, Dr Hollingworth recommends that the mother be given discretion to refuse contact if she becomes concerned about the father’s emotional state. Moreover, she recommends that if the father’s mood deteriorates that all contact should cease until he has been properly evaluated. Counsel for the father strongly submitted that giving the mother the veto, so to speak, was an invitation for further litigation and was a guarantee that contact would only occur when the mother considered it appropriate. He submitted that there were plenty of examples from the evidence of the mother’s own sub‑optimal parenting, a matter that was at least implicitly recognised by Dr Hollingworth. I must say that I agree in this regard, particularly in terms of the mother’s failure to protect the children from becoming involved in the litigation.
Whilst I agree, of course, that there is a need to protect the children from a deterioration in their father’s psychological and emotional health, I don’t think that the mother should be placed in the gatekeeper role in this regard. If a matter occurs that justifies revisiting whether the orders that I propose to make are in the best interests of [Z], then the matter should be relisted before me, or another Federal Magistrate. I will give leave to do so. Until then, the mother must be as obliged to comply with these orders as the father is, subject only to the reasonable excuse defence available in contravention proceedings. I prefer to proceed on this basis, rather than on the basis suggested by Dr Hollingworth, and advanced by the Independent Children’s Lawyer.
This case, like all parenting cases, involves a significant degree of prognostication that is based on past events, some of which have clearly not reoccurred. Like all parenting cases, decisions are being made on the basis of an analysis of events relating to a family at one particular point in time, either past or present. The very nature of families is that they change and thus, for example, [Z] will go through developmental stages which are hard to anticipate and reflect in these orders. All the court can do under the circumstances is to make an educated guess, based on the available evidence, about what appropriate contact arrangements for [Z] will be, particularly after she commences school. In drafting these orders, I will proceed conservatively, particularly in terms of facilitating overnight time with her father. It follows that school holiday periods need to be approached with a degree of conservatism as well. What I have certainly ruled out as being quite inappropriate is any order that states that increases in contact depend on the consent of the mother alone. Of course, the parents are free to vary the proposed orders if they both agree.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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