MISSIAKOS & MISSIAKOS
[2013] FamCA 1023
•1 October 2013
FAMILY COURT OF AUSTRALIA
| MISSIAKOS & MISSIAKOS | [2013] FamCA 1023 |
| FAMILY LAW – PROPERTY SETTLEMENT – Where the parties have cohabitated for approximately 18 years – Where the husband had an acquired disability for the majority of the relationship – Where the husband was unable to work – Where the husband received compensation for his disability – Where the wife worked for periods during the relationship – Where the parties have three children. Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65D, 65DAC, 79 Cox & Pedrana (2013) 48 Fam LR 651 |
| APPLICANT: | Mr Missiakos |
| RESPONDENT: | Ms Missiakos |
| FILE NUMBER: | MLC | 8072 | of | 2011 |
| DATE DELIVERED: | Order made 1 October 2013; Reasons delivered 20 December 2013. |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Justice Hogan |
| HEARING DATE: | 14 – 17 January 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Marchetti of Counsel |
| SOLICITOR FOR THE APPLICANT: | Moores Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Henwood of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Stuthridge Legal |
| COUNSEL FOR THE INDEPENDENT CHLIDREN’S LAWYER: | Ms Harris of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHLIDREN’S LAWYER: | Victoria Legal Aid |
Orders
it is ordered by way of final order
IT IS ORDERED BY CONSENT BY WAY OF FINAL PARENTING ORDER:
That all previous Orders be discharged.
The children L Missiakos, born … 2000, J Missiakos, born … 2002, and P Missiakos, born … 2006, (“the children”) live with the Respondent.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children while they are in his or her care.
That the children be permitted to telephone the Applicant at all reasonable times and the Respondent do all things necessary to facilitate such telephone communication.
That the Applicant be permitted to send letters, cards and gifts to the children.
That the Respondent authorise that the Applicant receive copies of all school reports, notices, photographs, newsletters from the children’s school and do all things necessary to enable the Applicant to contact the children’s school or attend school functions and parent/teacher interviews.
That the parties ensure that the children have access to therapeutic counselling and do all things necessary to ensure they attend such counselling with the costs of the counselling to be shared equally by the parties.
That the parties use a communication book to communicate messages about the children.
That the Applicant have a support worker present at all times during any time the children spend with him, with such worker to be provided by the Transport Accident Commission.
That each party keep the other informed of all accidents, emergencies or other medical conditions relating to the children.
That each party keep the other informed of their residential address and residential and mobile telephone numbers.
That neither party be permitted to take the children outside of the State of Victoria without the written permission from the other party.
That each party keep the other informed of their respective medical conditions and advise the other in the event there is any significant change in or to their respective medical conditions.
That the Respondent continue to attend upon Dr C or such other medical practitioner as he may recommend at all such times as he reasonably recommends and follow all reasonable recommendations that he or such other medical practitioner he recommends may make.
That the Independent Children’s Lawyer be discharged on a date six (6) months after the making of this Order.
That the Independent Children’s Lawyer is at liberty to obtain from Dr C, or such other medical practitioner upon whom the Respondent attends, information limited to confirming her attendance or non-attendance upon such medical practitioners and, for the purpose of this Order, the Respondent hereby authorises Dr C or such other medical practitioner to provide to the Independent Children’s Lawyer upon request information limited to confirming her attendance or non-attendance upon such practitioner.
IT IS ORDERED BY WAY OF FINAL PARENTING ORDER
That for the purpose of implementing clause (7):
(a)within 14 days of the making of the Order, the parties do all things necessary to make an appointment for the children to attend for therapeutic counselling, for the purposes of addressing issues arising from the separation of their parents and the resumption of spending time with the Applicant, with Mr D (the psychologist recommended by the Independent Children’s Lawyer) or, if he is unavailable, such other psychologist or family therapist suggested by the Independent Children’s Lawyer;
(b)the parties shall accept the first available appointment offered by Mr D or such other psychologist or family therapist suggested by the Independent Children’s Lawyer;
(c)each party shall be involved in the therapeutic counselling process to the degree and in the manner reasonably suggested by the psychologist or family therapist for as long as the psychologist or family therapist reasonably recommends that the therapeutic counselling continues;
(d)the parties shall bear equally the costs of such therapeutic counselling;
(e)the therapeutic counselling for the purposes of addressing issues arising from the separation of their parents and the resumption of spending time with the Applicant shall continue for as long as the psychologist or family therapist reasonably recommends;
(f)the Independent Children’s Lawyer is at liberty to obtain from Mr D or such other psychologist or family therapist counsellor upon whom the children attend for therapeutic counselling, information limited to confirming their attendance or non-attendance upon such therapist and, for this purpose, both parties authorise Mr D or such other psychologist or family therapist to provide to the Independent Children’s Lawyer such information.
That the Respondent have sole parental responsibility for the major long term issues for the children with such issues to include but not be limited to:
(a)the children’s education;
(b)the children’s religious and cultural upbringing; and
(c)the children’s health.
Except in the event of an emergency involving the children, the Respondent is to consult with the Applicant about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)the Respondent shall, no less than 28 days prior to the final date by which any decision must be made, inform the Applicant in writing about the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)the Respondent shall give the Applicant 14 days to respond in writing outlining his position in respect of the matters contained in paragraph 19a above; and
(c)in the event that the Applicant responds in writing, the Respondent shall consider the Applicant’s views and response when coming to her decision; and
(d)the Respondent will inform the Applicant in writing about the final decision she has made with respect to that issue as soon as practicable after such decision has been made.
The children shall spend time and communicate with the Applicant, at all times as agreed between the parties and failing agreement as follows:
(a)for four (4) visits commencing 5 October 2013: each Saturday from 10.00 am until 4.00 pm; and then
(b)for four (4) visits commencing 2 November 2013: each Saturday from 10.00 am until 7.00 pm; and then
(c)for four (4) visits commencing 30 November 2013: each alternate weekend from 10.00 am Saturday until 1.00 pm Sunday; and then
(d)for four (4) visits commencing 25 January 2014: each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday; and then
(e)thereafter: each alternate weekend from the conclusion of school or 5.00 pm Friday until 4.00 pm Sunday;
(f)from 10.00 am until 4.00 pm on Father’s Day;
(g)in 2013 and each alternate year thereafter: from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(h)in 2014 and each alternate year thereafter: from 3.00 pm Christmas Day until 3.00 pm Boxing Day;
(i)during school holiday periods in 2014, including the school holiday period which commences in December 2014: from the conclusion of school or 5.00 pm Friday until 4.00 pm the following Tuesday; and thereafter
(j)commencing with the school holiday period at the end of Term 1 in 2015:
i.from the conclusion of school on the last day of terms 1, 2 and 3 until 4.00 pm on the middle Saturday of each school term holidays; and
ii.for the first, third and fifth weeks of the December/January school holiday period in even numbered years; and
iii.for the second, fourth and sixth weeks of the December/January school holiday period in odd numbered years.
Clause 20 (e) of this Order shall continue to operate until the conclusion of school on the last day of Term 1 in 2014 but, thereafter, its operation shall be suspended during all gazetted school holiday periods.
The Applicant shall be at liberty to telephone the children each Wednesday between 6.30 pm and 7.00 pm and the Respondent shall do all things reasonably necessary to ensure that the children are available to receive the telephone call and shall afford them privacy in their communications with the Applicant.
That unless otherwise agreed by the parties in writing, the Applicant shall collect the children at the commencement of the time they are to spend with him pursuant to this Order and:
(a)shall do so either from school at 3.00 pm or from the McDonald’s restaurant closest to the respondent’s residence at 5.00 pm; and
(b)shall notify the Respondent, no less than 24 hours prior to the collection time, of his intention to collect the children either at 3.00 pm from school or at 5.00 pm from McDonald’s.
That unless otherwise agreed by the parties in writing, the Respondent shall collect the children at the conclusion of the time they are to spend with the Applicant pursuant to this Order and:
(a)shall do so at either from the train station closest to the Applicant’s residence or from the McDonald’s restaurant closest to the Applicant’s residence; and
(b)shall notify the Applicant, no less than 24 hours prior to the collection time, of her intention to collect the children either from the train station or from McDonald’s.
That in the event that the Transport Accident Commission fails to provide a support worker to be present during the time the children spend with the Applicant, then such time shall be suspended and each party has liberty to apply to the Court for the determination of the identity of the alternative person who is to be present during such time.
Each party refrain from denigrating or making critical or derogatory remarks about the other party and any member of that party’s family to the children or in the presence or within the hearing of the children.
Each party shall do all things reasonably necessary to remove the children from the presence of any other person who makes any denigrating, critical or derogatory remarks about the other party or members of another party’s family to the child or in the presence or within the hearing of the children.
The parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings in the presence or hearing of the children save for discussions occurring within the therapeutic counselling process.
The parties be restrained and an injunction be granted restraining the parties from using physical discipline on the children at any time they are in that party’s care.
That each party use their best endeavours to ensure that no other person uses physical discipline on the children.
IT IS ORDERED BY WAY OF FINAL PROPERTY ORDER
That the property at Suburb R (“the property”) be sold forthwith, and the proceeds of sale be applied as follows:
(a)first to pay all costs, commissions and expenses of sale; and then
(b)to discharge any encumbrances affecting the property; and then
(c)to pay out NAB credit card debt in the sum of $8,500.00; and then
(d)so as to see the Applicant receive 67 per cent of the balance remaining and the Respondent receive 33 per cent of the balance remaining.
That pending the completion of the sale of the property:
(a)the Applicant have sole use and occupation of the property;
(b)the parties hold their respective interests in the property upon trust; and
(c)the parties be restrained from encumbering the property without the written consent of the other party.
That the agent to market the property for sale and the terms and conditions of sale be as agreed between the parties, and, in default of agreement, the President of the Real Estate Institute of Victoria appoint an agent to market the property for sale and set the terms and conditions of sale.
That each party do all necessary things and sign all necessary documents to enable the property to be placed on the market for sale.
That the Applicant keep the Respondent informed about the progress of the litigation overseas concerning his late father’s estate and provide to the Respondent, within seven (7) days of its receipt by him, a copy of any document relating or referring to his share of his late father’s estate.
That within 14 days of the Applicant receiving any payment from his late father’s estate, the Applicant pay or cause to be paid to the Respondent an amount which represents 33 per cent of such payment.
That:
(a)a base amount of $22,500.00 is allocated as required by s 90MT(4) of the Family Law Act 1975 (Cth), to the Applicant out of the Respondent’s interest in the AMP Superannuation Plan;
(b)that, in accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth):
i.the Applicant is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
ii.the Respondent’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the Respondent’s interest in the AMP Superannuation Plan is correspondently reduced by force of this Order;
(c)that the Trustee of the AMP Superannuation Plan (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
i.calculate in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement created for the Applicant by clause 37(b)(i) of this order; and
ii.pay the entitlement whenever the trustee makes a splittable payment out of the Respondent’s interest in the AMP Superannuation Plan;
(d)that this Order have effect from the operative time and the operative time is four (4) days after the date of service of this Order.
(e)that the Applicant shall do all things necessary, including but not limited to, exercising his request pursuant to Rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the Respondent’s interest in the AMP Superannuation Plan to a fund of the Applicant’s choosing.
(f)that the Court notes:
i.the value of the transferrable benefits from the Respondent’s interest to the Applicant’s interest as calculated in accordance with Rule 7A.12 of the Superannuation (Supervision) Regulations 1994; and
ii.pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2001 any payment from the Respondent’s superannuation interest in the AMP Superannuation Plan made after the trustee has created a new interest in the Applicant’s name in AMP Superannuation Plan as contemplated by clause 37(b)(i) of this Order are not splittable payments.
That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date, including all furniture and personal possessions and like chattels in their present possession and/or control;
(b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
That any monies held by the parties in any joint bank account be divided equally between them.
Should the same be in the Respondent’s possession at the time of the making of the Order, the Respondent forthwith return to the Applicant the keys to the property and the keys to the Applicant’s motor vehicle.
That in the event that either party fails, refuses or neglects to comply with the provisions of these Orders within seven (7) days of being requested to do so:
(a)pursuant to s 106A of the Family Law Act 1975 a Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds or instruments in the name of the party who fails, refuses or neglects to sign all necessary documents and do all acts and things necessary to give validity and operation to the said Order; and
(b)the party utilising paragraph (41)(a) above shall be at liberty to apply to the Court for any foreseeable damages caused by the default of the other party and all reasonable solicitor/client costs incurred for the purposes of enforcing this Order and proving damages.
AND IT IS FURTHER ORDERED
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS CERTIFIED
That pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Counsel to attend.
IT IS DIRECTED
That should any party seek costs arising out of these Orders, such application be made by written submission and filed and served by no later than 14 days after the delivery of Reasons for Judgment with such submission being endorsed with the fact that it has been served on the other party and any recipient of such submission have until no later than 28 days after the delivery of Reasons for Judgment to file and serve any response and such response be endorsed with the fact that it has been served on the other party and upon receipt of any such application for costs, it or they be determined in Chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Missiakos & Missiakos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC8072 of 2011
| Mr Missiakos |
Applicant
And
| Ms Missiakos |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The applicant, who was born in 1959 and is 54 years of age, and the respondent, who was born in 1968 and is 45 years of age, met in 1990. They commenced cohabitation in 1993 at which time they purchased land having a sale price of $71,000.00. The parties borrowed $64,742.00 in order to complete this purchase. The respondent is the registered proprietor of this property.
In about November 1994, the applicant received $45,000.00 as a consequence of a workplace injury. He paid $40,000.00 of this towards the reduction of the borrowings used to purchase the property.
In December 1994, the parties entered into a building contract for the construction of the former matrimonial home on the property. They borrowed funds, secured by a mortgage over the property, for this purpose. The borrowings at this stage amounted to some $193,000.00.
In 1996, the applicant was involved in a workplace accident. He suffered an acquired brain injury which has rendered him incapable of working for remuneration since that time. He was not initially capable of driving a motor vehicle. He was paid 75 per cent of his then salary by way of workers’ compensation payments. This state of affairs continued until he was paid a lump sum in 2000.
The parties married in late 1997. At this time, the respondent was working on a full time basis as a financial services professional.
In 2000, the applicant received $550,000.00 as a consequence of his workplace injury (“the workplace payout”). He also received $80,000.00 from his superannuation fund by way of total and permanent disability payout.
The parties used approximately $164,537.00 of these funds to discharge the mortgage over the former matrimonial home. They spent a total of $264,045.17 in discharging the mortgage, debts and meeting some costs. A further $30,000.00 was also released over time for living expenses. They retained the balance, in an amount of approximately $290,426.00, which they invested and used, over time, to meet household expenses.
It was also around this time that the applicant began receiving care from a personal care assistant who came to the home approximately three times a week. This care has continued over the past 12 or so years and has been provided by the same personal care assistant. Since separation, the applicant has received additional care including that associated with facilitating the children spending time with him pursuant to Court Order. He says that, amongst other things, the carer reminds him to pay bills and ensures that he takes and has available to him medication prescribed for his use.
In addition to receiving assistance from the personal care assistant, the applicant has attended at two group activities on a weekly basis since about 2000. These occur on Monday (9.00 am to 3.00 pm) and on Friday (9.00 am to 1:30 pm) and provide him the opportunity to interact and socialise with others who have suffered some sort of injury. The groups occur at different locations fairly proximate to the former matrimonial home.
The parties’ eldest child, L, who is currently nearly 13 years of age, was born in 2000. Following her birth, the respondent returned to work in 2001 and 2002 on a contract basis. Her income, together with some of the balance of the workplace payout or interest generated by its investment, was used to support the family financially.
In 2002, the parties’ second child, J, was born.
In 2004 and 2005, the respondent studied and worked on a contract basis. Again, whatever income she earned was applied to the support of the family.
By about 2005, the parties had available to them $93,160.00 from the monies received by the applicant as a consequence of his workplace injury.
In 2006, the parties’ third child, P, was born.
By about 2006, the respondent was accredited as a financial professional. Significantly in terms of his rehabilitation, the applicant returned to being able to drive a motor vehicle.
The respondent returned to work in 2007 on a contract basis and applied her income to the support of the family.
By 2009 the parties had fully expended the compensation monies received by the applicant as a consequence of his workplace injury.
On 20 June 2011, the parties separated. The applicant remained living in the former matrimonial home. The respondent and children moved to live in Town O, situated about 2 hours’ drive away. They have lived there since and the children have attended at local schools.
The respondent asserts that the separation followed ongoing incidents of domestic violence perpetrated by the applicant to which she and the children were exposed. The applicant denies engaging in any family violence against the respondent or the children.
In July 2011, the respondent applied for and obtained an Intervention Order. This Order has now expired. The respondent has not applied for its renewal.
Previously, the Court ordered that that the children live with the respondent and spend time with the applicant, with such time to be supervised at a Contact Centre located in Town O and by his personal care assistant.
The parties are agreed that the former matrimonial home will be sold. The costs associated with this are anticipated to be in the vicinity of $15,000.00. The applicant will have to find alternative accommodation once the former matrimonial home is sold. He intends, if possible, to live in the same general location.
The applicant says, and I accept, that, since separation, he has been required to learn to be more independent in that he has had to pay his own bills, cook for himself for the week and feed the children’s pets which have remained in his care. It is, I consider, axiomatic that such tasks were performed by either the respondent or the children prior to separation.
Parenting
As indicated by the form of the Order above, the parties were in agreement about certain terms of the Order. Importantly, the applicant agreed that an order should be made that the children live with the respondent.
Both the applicant and the Independent Children’s Lawyer initially raised concerns about the respondent’s capacity to care for the children, based on a belief that she may carry the genetic predisposition for Huntington’s Disease and, if this is correct, may suffer its symptoms at some stage in the future. Such concerns melt away to some extent given the applicant’s concession – which is completely understandable given the contents of the Family Report – that the children should live primarily with the respondent.
It is submitted, however, that such concerns remain pertinent to the consideration of the competing proposals about the allocation of parental responsibility between the parents and the time that it is in the children’s best interests that they spend with the applicant.
In the property part of the proceedings, the applicant seeks an adjustment in his favour consequent upon the differences in the respective earning capacities of the parties which favour him. He does not suggest that there should be any adjustment in the respondent’s favour to reflect any potential impact on her income earning capacity which might be associated with the possibility that she has a genetic predisposition for Huntington’s Disease and may suffer symptoms associated with it in the future.
Despite agreement about certain terms, the parties were unable to agree on a number of significant issues. Included within the category of matters requiring determination is the manner in which parental responsibility for the children is to be allocated. The applicant, supported by the Independent Children’s Lawyer, sought an order for equal shared parental responsibility. Despite previously seeking an order in the same terms, the respondent now sought that she have sole parental responsibility for the children. Further issues requiring determination include the extent of the time the children spend with the applicant and the manner in which this occurs and whether the children should continue to live in Town O or return to live somewhere in the ‘greater Melbourne area’.
The “reality of the situation of the parents and the child[ren]”[1] is that the applicant intends to remain living in the area in which the former matrimonial home is situated whilst the respondent intends to continue to live in Central Victoria where she and the children have lived since mid-2011. It is within this factual matrix, then, that an assessment of that time which it is in the children’s best interests that they spend with the applicant must take place.
[1] MRR v GR (2010) 240 CLR 461.
The parties differed as to the time the children should spend with the applicant. The orders sought by the applicant would see the children transition to a point where they would eventually spend substantial and significant time with him whereas the orders sought by the respondent would see them spending daytime time only with him into the future. Further, whilst there was perhaps initially some confusion about the respondent’s position, it became apparent during cross examination that her position was that such time occur on a supervised basis at the Contact Centre.
Whilst the respondent advanced this position on the basis that the children feel ‘safer’ at the Contact Centre than during the time they spend with their father in the presence of his personal care assistant, she told Dr N, as recorded in the March 2012 report that, whilst she was less confident that unsupervised time between the children and the applicant was appropriate, she did not entirely discount it.
Section 60CA of the Family Law Act (1975) (Cth) (“the Act”) provides that in making a parenting order, the Court must consider the children’s best interests as the paramount consideration. The Court’s power to make a ‘parenting order’ (as defined in s 64B of the Act) is conferred by s 65D of the Act. Section 65DA provides that the power to make a parenting order is subject to, amongst other matters, s 61DA of the Act. Thus, when making a parenting order, I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility (“the presumption”) for them: s 61DA of the Act.
The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act.
Section 61DA(2) of the Act provides that, if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of them or another child or family violence, the presumption does not apply.
Counsel for the Independent Children’s Lawyer submitted that, as a consequence of instances of physical violence which fell within the definition of “family violence”, the presumption does not apply. Counsel for the applicant submitted that a consequence of the fact that an Intervention Order has been made is that the presumption is ‘rebutted’. He further submitted, however, that it is in the children’s best interests that an order for equal shared parental responsibility be made.
Whilst Counsel for the respondent submitted that the presumption is rebutted because there is evidence by which the Court should be satisfied that it is not in the children’s best interests for their parents to have equal shared parental responsibility for them, I also understood the respondent’s case to contain an assertion that the presumption does not apply because there are reasonable grounds to believe that the applicant has engaged in family violence.
Whilst each party provided a different account of the events which transpired, it is clear that the applicant grabbed the respondent by the arms with sufficient force to cause bruising which was observed by a medical practitioner approximately a week later. The children were present and notably distressed during this event.
Even on this basis alone, I am satisfied that there are reasonable grounds to believe that the applicant engaged in family violence. I accept the evidence of Ms X, the applicant’s personal care assistant (“the personal care assistant”) that, on occasions over the years, the applicant has had difficulty in controlling outbursts of temper. I consider, in this context, a reasonable person who was the recipient of the behaviour described above would fear for or be apprehensive about her personal wellbeing or safety. I am therefore satisfied that the applicant’s behaviour as summarised above amounts to conduct that caused the respondent reasonably to fear for or reasonably be apprehensive about her personal well-being or safety.
Further, I accept the evidence of the personal care assistant that she has seen the parties argue over money and issues related to the raising of the children and that she has seen the respondent ‘verbally attack’ the applicant, push him, belittle him and “put him down”. She also said that on an occasion she had to take the applicant to the optometrist to have his glasses fixed when they were broken during an argument. Such arguments themselves are capable of being regarded as instances of family violence.
Consequently, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of the children being the paramount consideration – see s 60CA; s 65AA).”[2]
[2] Cox & Pedrana (2013) 48 Fam LR 651 at [19].
The phrase “meaningful relationship” is not defined in the Act. In McCall & Clark (2009) 41 Fam LR 483, the Full Court approved a statement of Bennett J in G v C [2006] FamCA 994 to the effect that the notion of “meaningful relationship” as used in s 60CC(2)(a) of the Act requires the Court to “evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
Further, the Full Court concluded[3] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ in s 60CC(2)(a) of the Act is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents. Whilst this is clear, it must also be remembered that “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (per Kay J, Godfrey & Sanders [2007] FamCA 102).
[3] Ibid at [119].
It is plainly in these children’s best interests to ensure that a meaningful relationship with each parent continues to develop. I consider that the respondent understands, at least on some level, that the children need an ongoing relationship with the applicant. Such relationship can be maintained as long as the children are afforded the opportunity to spend regular time and to communicate regularly with the applicant.
The respondent asserts that the children have concerns for their own safety when in the applicant’s presence and that supervision of their time with him is necessary in order to protect them from harm. She relies upon the incidents of family violence.
The respondent says that the children do not feel safe with the applicant because of his constant threats of violence directed at her and the children over the years. She also says that she left the former matrimonial home with the children on occasions because of fears for her safety in circumstances where she asserts the applicant engaged in verbal and physical abuse, manipulation, controlling behaviour and psychological violence. Whilst the applicant denies the accuracy of the respondent’s explanation for leaving the home with the children, he told Dr N, psychiatrist, at the end of January 2012 that she had left the home with the children about six occasions over 14 years staying overnight in a motel before returning.
Given the evidence of the personal care assistant as to her observations of the applicant’s occasional difficulties in controlling the expression of his anger and the evidence that the applicant likely minimised the impact on others of his behaviours, I accept the respondent’s evidence that she took the children from the home on occasions because of her fears for her safety and that of the children given the applicant’s behaviours.
I accept the personal care assistant’s evidence that she has observed a decrease in the applicant’s anger, anxiety and frustration post separation. Of course, this has occurred in circumstances where neither the respondent nor the children have been living with him in the same household.
The applicant accepts that on occasion the respondent took the children and left after calling the Police. He does not accept that this occurred because of physical violence by him or that he was verbally abusive towards the respondent. As he accepts, however, that the parties had disagreements including disagreements about finances and that, on some occasions, these arguments occurred in front of the children, I consider it quite possible that what was, to him, a “disagreement”, may well have been, to the respondent, something more serious which left her fearful on occasions.
The respondent also asserts that there have been occasions in the past where the applicant has physically disciplined at least one of the children by using a belt. She says that he has hit the children with a belt several times, gets close to them and screams and threatens them in a loud and menacing manner and has exhibited angry and threatening reactions including yelling and using abusive language. The applicant denies these allegations. He says that he has never used a belt to discipline the children.
In or about 2001, the applicant was referred to Dr G, a neuropsychologist (“the neuropsychologist”), to assist in the management of his anxiety and angry outbursts. The neuropsychologist says that he has achieved a gradual improvement over time. I accept this, but in so doing, consider that evidence of gradual improvement does not necessarily diminish or undermine the respondent’s subjective reaction to the applicant’s behaviours – especially in the context of their shared cohabitation over a significant period of time after his injury.
The neuropsychologist has never undertaken a formal assessment of the applicant. He has assumed that he has had fairly “typical” problems of a person with an acquired brain injury, namely, problems with memory and attention and some problems with higher-level cognitive skills. From his perspective, the applicant has had pretty good stability in his emotional functioning after some difficult times earlier after the separation. Of course, the perspective of a professional well used to providing support and assistance to people in the applicant’s position may be significantly different to that of a lay person, such as the respondent, with whom the applicant had lived on a full time basis.
When interviewed by Dr N, psychiatrist, at the end of January 2012, the applicant conceded “regular heated arguments” between himself and the respondent but denied engaging in violent behaviour. Dr N recorded him as being less convincing in not remembering smacking the children, reporting that he cautiously conceded smacking only a number of times but denied using a belt notwithstanding the contents of the report prepared by the Family Consultant containing contrary information from the children. Dr N considered that the applicant unconvincingly denied using a belt.
Dr N said that he gained the impression that the applicant minimised and partly denied a level of anger. He said that he may lack insight due to the frontal lobe injury he has suffered. I accept this evidence.
Whilst the applicant denied the allegations of physical and verbal abuse directed toward him, he told Mr Z that “maybe I talk too loud and she thinks I am being abusive.” Such comment provides at least some corroboration for the respondent’s assertion of verbal “abuse” directed at her and the children by the applicant.
The applicant himself accepts that during the four to six years after his injury he was difficult to live with because he was tired and frustrated as a consequence of the limitations imposed on him by his injury. By the end of this period at least the parties had two children under the age of two years. The respondent told the report writer that the applicant was difficult to live with because of the unpredictability of his behaviour in that he would lash out for no reason. I accept this evidence because it seems to me to be likely when assessed in the context of all of the evidence about the accident’s significant impact on the applicant’s functioning.
The applicant said that when he was first released from hospital he was frustrated and lost his temper easily but that over time he has improved because he has learned strategies, such as taking a ‘timeout’, to cope. I see no reason why this evidence should not be accepted. The timeout process may involve the applicant absenting himself from the home or, presumably, the place at which the argument or stressing event has taken place, for a period of 15 to 30 minutes. Whilst such a strategy is clearly understandable as a means of diffusing a difficult situation, it has the obvious consequence that the applicant would not be present to oversee or supervise the children during this “cooling down” period. Clearly, such absence provides a basis for an order providing for the ongoing presence of another adult during times the children spend with the applicant.
The applicant accepted, during cross examination, that at times, even though not intentionally, he had a tendency to lose his temper. Such admission, which I accept, corroborates the respondent’s evidence about his behaviour during their period of cohabitation after the accident and provides at least some basis for an appreciation of the child L’s apparent reluctance to spend time with the applicant.
The parties and children were interviewed by Mr Z, clinical psychologist, who authored the Family Report relied on in the proceedings. Whilst he observed the boys with the applicant, L refused to be part of the process.
Mr Z noted that both older children supported the respondent’s account that the applicant had hit the children with a belt, despite the applicant’s vigorous denials of such assertion. The applicant said that he would only smack the children with his hand on rare occasions.
Mr Z, whose evidence in this respect I accept, noted that the children had previously spoken to a Family Consultant about being exposed to the applicant’s explosive temper and being hit by a belt. Mr Z also recorded that a counsellor at the women’s refuge at which the respondent and children lived for a period immediately after separation told him that, during counselling, the children portrayed the applicant as aggressive and angry. She also told Mr Z that she had seen the applicant act aggressively when the Police escorted the respondent to the house in order to collect some belongings.
Given the children’s reporting to Mr Z and the evidence about the father’s difficulty on occasion in controlling and/or managing his behaviour whilst upset or angry or ‘heated’ on occasions, I am persuaded that it is more likely than not that the applicant has, on occasions, physically disciplined the children.
I accept the submission made by Counsel for the Independent Children’s Lawyer that it is more likely than not that the applicant downplays the level of his volatility, anger and aggression. I think it more likely than not that he has tended to underestimate the impact of verbal conflict on the children. I consider that, after the accident in 1996, the respondent has, following the birth of the children, been required to parent them in difficult circumstances – it is likely that it has, indeed, as Counsel submitted, been “a very hard road”.
In saying this, the applicant should in no way conclude that I am apportioning fault to him. It is simply a recognition of the reality of circumstances over which neither party had any control. I have no difficulty in concluding that each party did the best that they could in the circumstances they encountered.
I accept the submission made by Counsel for the Independent Children’s Lawyer that the children would not be at an unacceptable risk if they were to spend time with the applicant in the presence of an adult. I conclude that any risk posed to the children by the applicant as a consequence of his problems with emotional regulation can be met and/or addressed by the presence of an adult during the time the children spend with him.
In addition, the presence of such an adult will assist the applicant to manage the children’s behaviour – a matter I consider necessary having regard to the observations of Mr Z during the course of the preparation of the Family Report.
I consider that, given the accident’s impact on the applicant’s functioning, including, as outlined above, the necessity for ongoing support in day to day activities and some residual problems with anger management, and the respondent’s evidence that the applicant always behaved better in front of others, the presence of another adult during time the children spend with him is required to ensure that they are not exposed to such behaviours or put at risk during any time the applicant absents himself from them in order to manage his behaviours.
By their agreement that the children’s time with the applicant occur in the presence of a personal care assistant provided by the Transport Accident Commission, both parents implicitly recognise this also.
The presence of such a person will ensure that any safety concerns associated with the children’s time with the applicant are addressed. In light of the evidence contained both in the wife’s affidavit and the expert reports presented by the Independent Children’s Lawyer, I accept that the presence of another adult will provide an appropriate level of supervision which should allay any of the respondent’s fears about the children’s safety while spending time with the applicant. Given this conclusion, I am not persuaded that the children’s time with the applicant should be constrained by a requirement that it occur at a Contact Centre.
I do not accept the respondent’s position that the personal care assistant provided by the Transport Accident Commission should be a person other than Ms X, the applicant’s long-term personal carer. I found Ms X to be frank and forthcoming as a witness and experienced with the applicant’s behaviour. I consider that she would act appropriately to ensure that the children were protected from the applicant’s behaviour should this become necessary and I consider that her presence, if made possible by the Traffic Accident Commission would be likely to provide the children with the comfort of having a person known to them.
For the reasons expressed, I decline to make an order prohibiting Ms X from being the personal care assistant provided by the Transport Accident Commission in whose presence the children’s time with the father will occur.
The Family Report filed on 22 May 2012 contains details of Mr Z’s observations of the children and his opinions as to those orders which are in their best interests.
The child L, who was not then 12 years of age, told Mr Z that she was meeting with him because the applicant was mean and had smacked her with a belt and acted in other cruel ways. She reported that she believed that the respondent had tried to protect the children by moving them away from the applicant. She also reported that the applicant was always swearing and yelling and had behaved like that since she could remember. Her account to Mr Z is corroborated, at least to some extent, by the evidence of the applicant’s personal care assistant and the respondent.
L also told Mr Z that she did not want to see the applicant because she was protecting herself from exposure to his behaviour and that, if she saw him, he would smack and bruise her. She said she did not want to see him because of years of bad treatment. She said that she did not feel safe, did not want to see him, considered that he would never change and reported that she had heard his promises to change before.
L acknowledged to Mr Z that her brothers spent time with the applicant and appeared to have a good time with him. However, she said that she did not ever have a good relationship with him and was fearful that he would smack her. In addition, she was worried that he would remove the children from the respondent. This last concern can, clearly, be put to rest given the agreement of the children’s parents that they should remain living primarily with the respondent.
Mr Z considered, having spoken with L, that she was seeking a father figure in her life who treated her kindly and well, that she believed that the applicant did not want her but just her brothers and that she had a sense of loss, sadness and a feeling of missing out on something. He considered that L could not acknowledge anything positive about the applicant.
Mr Z reported that when L said, in front of her brothers, that she did not want to see the applicant, the child J became hesitant. This differed to the manner in which he interacted with the applicant during Mr Z’s observations and provided a demonstration of the manner in which L’s attitude towards spending time with the applicant could influence at least J’s desire to do the same.
Mr Z attempted to have the children and applicant interact so as to observe their behaviours. This process was interrupted by the respondent’s friend who had accompanied the respondent and children to the appointment. Unhelpfully, this friend told L that she did not have to go to spend time with the applicant in Mr Z’s presence, that she did not have to do anything she did not want to do and that no one could force or tell her what to do. The respondent did nothing to prevent this behaviour or to tell L that she expected her to participate in the process facilitated by Mr Z.
I share Mr Z’s significant concern that the respondent did nothing to admonish her friend for her expressions of disrespect and contempt about the applicant in the presence of the children. I also agree that she could well have acted differently to manage the situation in a way that minimised its impact on the children and positively conveyed to them an expectation that they interact with the father in the safety of Mr Z’s company.
The respondent’s failure to act to moderate a third party’s critical expressions, in the children’s presence, about the applicant causes concern about the respondent’s capacity to act to promote the children’s relationship with the applicant in the future.
It is difficult to determine whether L’s expressed view is independent and representative of her own feelings toward, and experiences of, the applicant or representative of the influences of others. Whilst the applicant’s personal care assistant gave evidence of an established relationship between the applicant and L prior to separation, she was, of course, not privy to the applicant’s behaviours in her absence.
It is clear that, at present, L has strongly expressed a view to spend no time with the applicant. Both her parents consider that she should receive some professional assistance in order to address her currently expressed feelings toward the applicant.
I accept that it is likely that, at present, L’s views of the applicant are linked at least in some manner to her witnessing his loud and potentially aggressive behaviours. I consider that, given that any time the children spend with the applicant will take place in the presence of a personal care assistant, there is minimal risk to L of being exposed to any physical discipline by the applicant during such time. Further, given the respondent’s evidence to the effect that the applicant is on his ‘best behaviour’ whilst non-family members are present, the presence of another adult is likely to provide her with some assurance that her father’s behaviours may be moderated.
The child J told Mr Z that the applicant had been “sometimes mean and sometimes nice”. He said that their parents had fought with words and that the conflict between them was frightening for him. J also told Mr Z that he is aware that the respondent wants him and his brother and sister to be safe. He told Mr Z that the applicant had previously smacked him with his hand and belt but it was not clear to Mr Z from his recounting as to whether this was a frequent or regular occurrence. Despite his complaints about the applicant’s behaviour toward him, J told Mr Z that he enjoyed the time with him, that it was going well, that he likes seeing him and feels safer and better seeing him in a supervised setting. Mr Z observed good interaction between J and the applicant, noting that J hugged the applicant and enjoyed receiving attention from him.
I consider it unlikely that the respondent has exposed the children generally to any negative views she holds about the applicant given this observed interaction.
The child P told Mr Z that he wanted to see the applicant. He described both of the parents in unequivocally positive terms saying that he would change nothing about them. He was not frightened of the applicant and had not been smacked by him but reported that the applicant got angry when the respondent called the Police. He said that he missed the applicant and Mr Z considered that, for P, the applicant was a source of care, nurturance, trust and security. P was seemingly unaffected by the events surrounding the separation.
Whilst the applicant expresses the belief that L’s refusal to interact with him results from the respondents’ ‘indoctrination’ of her, the fact of the two younger children’s attitude toward him, as outlined above, is suggestive that this is not the case.
Mr Z says, and I accept that, the respondent is the central figure in the children’s lives. So much is recognised by the applicant’s acceptance of an order that they live primarily with her. The applicant said, and I accept, that in the three years prior to separation, the respondent did only three days of contract work. Consequently, both parties were present for significant periods of time in the former matrimonial home and, at least in some sense, available to meet the needs of and care for the children when they were not at school.
The eldest child, L, has been resistant to spending time with the applicant since separation. However, the boys are happy to see and spend time with him. Their behaviour toward him and interactions with him are, according to the Family Report Writer, consistent with the behaviours of children of their respective ages.
L has not spent time in the care of the applicant since the separation of her parents and has not seen him on any occasions other than:
a)at the Contact Centre on 30 June 2012 – she walked toward the applicant and spoke to him through a scarf she was wearing;
b)at the Contact Centre on 14 July 2012 – she declined his request for a hug (his birthday being in the near future) but told him something like ‘maybe next time’; and
c)at the office of Mr Z for interviews for the preparation of the Family Report.
Further, in August 2012 the Contact Centre at which time was occurring, told the parties that they were not prepared to facilitate L’s interaction with the applicant because she was not willing to see him.
I accept, and it is evidenced in the reports relied upon by the Independent Children’s Lawyer, that the younger two children have continued, through the visits that have occurred, to have a meaningful relationship with the applicant since the parties separated. I see no reason why, when balanced with the safeguard of the presence of another adult, that such visits should not continue to occur and increase to a more substantial amount of time.
My concerns rest with the oldest child, and her resistance to spending time with the applicant. It is stated by the applicant, that prior to separation he had a positive role in her life, and they had a good father-daughter relationship. I accept that, from his perspective, this is likely to have been the case.
However, whether as a result of her own witnessing of the parties’ fighting or the events at around the time of separation, L has voiced concern regarding the applicant’s aggression. I accept that, regardless of intention in the matter, it is likely that the respondent has discussed her own views with L, which may well have contributed to her attitude towards the applicant.
Mr Z considered that L is obviously and significantly alienated from the applicant. He considered that, in part, she had been subject to the negative influence of the respondent. However, he also considered that, as she had witnessed the applicant’s own behaviour during the period of cohabitation, the combination of these contributed to her view that the applicant was deserving of her negativity and rejection.
Ms X, who has supervised the time the children have spent with the applicant since separation, reports that the children have enjoyed the time they have spent with him and, on occasions, have wanted to spend more time with him than the Order currently permits. I accept that the boys have not been distressed in their father’s care and have not appeared scared of him.
The respondent gave evidence that when the children returned to her care following spending time with the applicant she asked them every now and then whether they missed him. She said that they said they were happy and did not want to increase their time with him. Given the respondent’s own evidence that a few months before separation the children used to ‘miss’ the applicant when he did not have dinner with the family, I am not persuaded that any such expression by the children reflects the true position. Given the respondent’s evidence that every time the children return to her care she asks them if they feel ‘safe’ in spending supervised time with the applicant, it is not remotely surprising to me that they have refrained from expressing any desire to spend additional time with him.
Whilst there may well be a factual basis for L to have arrived at her own view of the applicant, I am not persuaded that, at her age, it is beneficial for her to spend no time with the applicant. I consider that she would, in fact, be likely to benefit from the opportunity to spend time with him, supported by the present of a third party. Such time will afford to her opportunity to appreciate, as she matures, that, whatever his past behaviours, the applicant continues to care for and love her deeply. Such time will also enable all three children, as a sib-ship, to spend time with the applicant and will not reinforce her apparent perception, referred to in paragraph 75 above, that the father seeks only a relationship with her brothers.
The respondent asserts that, historically, the applicant failed to participate in making decisions about major long term issues relating to the children. The applicant does not seriously dispute this assertion but, rather, provides, by way of explanation, the rationale that the respondent failed to include him in such decision-making and positively discouraged it by treating his suggestions in a demeaning and minimalist way. I accept that the applicant sought to be involved in matters pertaining to the children and that it is likely that, because of the impacts of the accident on his functioning, the respondent took upon herself the responsibility for making decisions about the children, and long term issues relating to them, with limited regard for the applicant’s input.
The applicant’s evidence as to the manner in which the respondent treated his attempts to be involved in decision making about the children provides a snapshot of the likely future interactions between the parties. Whether the respondent was, in fact, demeaning and minimalist is, in one sense, irrelevant – the applicant clearly perceived her reactions in this manner. Such perception by the applicant does not augur well for the parties’ future ability to engage in joint decision making about the children’s long terms issues.
The evidence establishes that, within their respective capacities, each party has fulfilled the obligation to maintain the children. Both have applied all funds available to them to the support of the family unit prior to and after separation.
I accept the respondent’s evidence that the children are progressing well in school and are settled in their current location. A further relocation of them to an unknown residence in a yet to be determined location within the ‘greater Melbourne area’ – which would be the consequence of a determination that they move from Central Victoria to live in that area - is, I consider, significantly likely to cause them further disruption and dislocation. It also carries with it the risk that the children may ‘blame’ the applicant for removing them from friends that they have made in their school communities since living in Town O. Such possibility is particularly significantly unlikely to assist the applicant in re-igniting his relationship with the child L.
If the children remain living with the respondent in Central Victoria and the applicant remains living within the same area in Melbourne, the children will have to travel approximately two to two and a half hours to spend time with the applicant. Whilst there may be some difficulty and expense associated with this, I do not consider that the duration of such travel or its associated expense is such that it will substantially affect their right to maintain personal relations and direct contact with the applicant on a regular basis. So much is, I consider, recognised by the applicant’s position in seeking, if the children remain living in Town O, the same orders as he seeks should they cease to live there as being those orders which are in their best interests. I accept that the travel involved in seeing the children has had some negative impact on the applicant but consider that this will be ameliorated by a requirement that the parents share the responsibility of transporting the children between their respective households. Further, the impact of the travel will also be reduced by a regime of increasing time which will mean that the applicant has greater periods for recovery before having to undertake travel.
The distance is not insurmountable and does not, I consider, represent a barrier preventing the children from spending more time with the applicant should that otherwise be determined to be in their best interests.
As a result of the injury suffered by him in the work accident, the applicant tires easily and needs to take “time out”. He requires a 30 minute afternoon nap, has no sense of smell and requires alarms and cut-off switches to be installed into his residence in order to provide safety. These aids are provided by the Transport Accident Commission.
The neuropsychologist said that he had no concerns about the respondent’s behaviour as a parent from what the applicant has told him during the considerable period of attendances. He also noted, in cross-examination, that the applicant had told him that both parties had made ‘negative’ comments about the other during arguments. I accept his evidence in this respect.
The applicant receives support from the personal care assistant for five hours on Tuesdays, three and a half hours on each Wednesday and Thursday and one and a half hours on Friday. In addition, following the Orders of the Court, Ms X has assisted the applicant for eight hours on Saturday to facilitate the children’s time with him. He will continue to receive whatever support is necessary to enable the children to spend time with him.
The personal care assistant attends appointments with the applicant, assists him with meal preparation, makes sure he has available to him medication he is required to take and assists with general household duties including some house cleaning and undertaking some tasks for him.
The personal care assistant confirmed that, save for her observations of him watching DVDs with them, playing computer games with them, talking with them about what they had done at school, doing some home-work and talking about and attending upon their pets, her evidence about the applicant’s participation and interaction with the children comes from what he had told her he had done with them. Should an order be made requiring the children to spend time with the applicant on weekends and during school holiday periods, they will have the opportunity to continue to engage in such activities with him.
The personal care assistant also said that when a disagreement arose between the children about activities the applicant responded by raising his voice, which she described as a loud voice. She said that the children usually responded very quickly to this and that, if they were not obedient, he had probably given them a smack at the back of the leg. Despite this behaviour, the children had not appeared avoidant of the applicant in any way.
The personal care assistant confirmed that when she arrived at the house the respondent would notify her as to the applicant’s mood. She agreed that often this ‘heads up’ was that he was not in a good mood and that following this she would talk to him to find out why. The answer to such query was that it was often that something had not gone “right” or gone the way it “should have” – that is, if it was something that had not gone the way he wanted to he would become angry. She agreed that at times it was like “walking on eggshells.” Such comment corroborates much of the respondent’s account of the reality of the cohabitation since 1996.
She agreed that the applicant dealt with his frustration of not getting his own way by shouting or lashing out with a smack when telling the children to do something. This had happened quite often when she first commenced as his care provider but decreased in frequency over time – this behaviour was currently less frequent than before. Again, this evidence corroborates some of the evidence provided by the respondent and provides further insight into L’s perception of the applicant’s parenting of her.
I accept the submission made by Counsel for the Independent Children’s Lawyer that the parties were living in a “pressure cooker.” I consider it more likely than not that this arrangement persisted for a significant period of the cohabitation.
Whilst the “pressure cooker” environment has been ameliorated as a consequence of the parties’ separation, it would, I consider, be a mistake to conclude that its effects on both the respondent and the children are likely to have ceased. I accept the respondent’s evidence that one of her concerns about an order for equal shared parental responsibility is that it may expose her to frequent telephone communication from the applicant under the guise of discussions about matters relevant to the children’s long-term care, welfare and development. I also conclude, from her evidence, that both she and the children have felt ‘safe’ since moving to live in Town O and that they have enjoyed the sense of ‘peace’ that such a move has resulted in. There is, I think, a significant risk that an order which requires the parties to communicate, by whatever means, and to reach a joint decision about issues relating to the children may seriously diminish, if not eliminate, this sense of safety and peace. Such a consequence would not be beneficial for the children.
I accept the personal care assistant’s evidence that one of the catalysts for angry and frustrated communication between the applicant and respondent was the differences in personality styles, approaches to getting tasks done and what things the children should or should not be doing. Again, such significant and inherent differences do not augur well for the future capacity of the parties to reach decisions jointly about issues relating to the children.
The respondent says that she supports the children having a relationship with the applicant as long as they are ‘safe’. The presence of another adult during their time with applicant meets this requirement and should assist the respondent in ceasing the behaviour of telling the children, at the commencement of their time with the applicant, to ‘be safe’ and asking them, at the conclusion of their time, whether they ‘feel safe’. Whilst it has not had this effect so far (given the boy’s reporting to Mr Z), a continuation of this approach has the potential to instil in the children a sense of ‘fear’ about the applicant. This would not be in any way beneficial for them as they mature and develop.
I consider the evidence clearly establishes that the respondent failed proactively to promote L’s interaction with the applicant during the course of the Family Report interviews. Whilst she did not take up the role of active participant in making derogatory comments to and about the applicant, neither did she act to restrain her friend from behaving in this manner in the presence of L and the other children. Such failure does her little credit.
However, it is, I think, significant to note that neither of the boys have made any negative comments about the applicant in the presence of the personal care assistant or during time spent at the Contact Centre. If the respondent is seeking negatively to influence them in their relationship with the applicant, or to undermine it, she has been unable to achieve this goal.
In addition, despite L expressing to the applicant that he is a violent man with whom she does not have to spend time, there is no evidence to suggest that the boys’ relationship with, and attitude toward, the applicant has been in any way negatively influenced by any exposure to such attitude.
The respondent left it to the children to ask her whether they could telephone the applicant on Christmas Day 2012 and, as noted above, failed to act to demonstrate to the children that she disagreed with her friend’s behaviour toward the father[4] during the visit to Mr Z’s office. I accept her evidence that she accepts that she could probably have handled the Christmas Day telephone call situation better. I also accept her evidence, to the effect, that, as a parent, she has to make sure that the children do the “right thing” and that she has to encourage them to see their father because he is their parent. There is nothing to suggest that the respondent has failed to comply with the terms of any Order made by the Court to facilitate the children’s time and communication with the applicant.
[4] See para 34 of the Family Report.
I am persuaded that, with the knowledge that the children’s time with the applicant will occur in the company of another adult, the respondent will not repeat this type of behaviour. I am confident that she will accept the boys’ comments to Mr Z about their enjoyment of their time with the applicant and that she will also appreciate the importance for L of not being left to conclude, wrongly, that the applicant seeks only a relationship with her younger brothers.
I accept Mr Z’s evidence that the children should spend time with the applicant given the potential that he might have to do more toward their parenting in the future. Should this eventuality arise, it can only be beneficial for the children to have a well-established and secure relationship with the applicant. I also accept Mr Z’s opinion that the children might learn to manage their parents’ deficits as they get older and may simply have to learn to live with these.
I consider that a regime of increasing time between the children and the father will afford them the opportunity to continue to form and develop their own relationships with him. I also accept that, with the assistance of the personal care assistant, the applicant will be able to meet the children’s needs during the time they spend with him. In considering the respondent’s point that the children are ‘used’ to being in her care overnight, I note that, whilst they have not had sleep-overs at any school friends’ homes, they have attended school camp which has meant they have been out of the respondent’s care overnight. I am confident that they will settle into spending more time with the applicant.
Whilst both the applicant and the personal care assistant observed the children to have presented on occasion with head lice, as “scruffy” and in ill-fitting clothes, such observations must, I consider, be considered in the context of the respondent and children leaving the former matrimonial home with none of their belongings and the difficult financial circumstances in which both of the parties and, consequently, the children have found themselves since separation. I am confident, as must the applicant be given his decision that the children be cared for primarily by the respondent, that the respondent will meet the children’s needs. I accept Dr N’s opinion that there is no doubt that the respondent is a caring, devoted and committed parent.
It is not in dispute that, despite the Order made on 23 November 2011 requiring L to attend at therapeutic counselling, this has not occurred. Whilst the applicant relies upon such non-attendance as a foundation for the submission that it demonstrates the respondent’s incapacity and unwillingness to support L in having a relationship with him, I accept the respondent’s evidence that L’s failure to attend counselling arose out of the parties’ difficult financial circumstances.
I consider that the risk that the respondent may fail properly to support the children’s relationship with the applicant can be ameliorated by making orders which compel her to make the children available for telephone communication with him on a weekly basis and by making orders which give the children the opportunity to spend time with him on an increasing basis, until such time occurs during each alternate weekend and for half of the school holiday periods.
I have had regard to Mr Z’s observations of the interactions between the applicant and the boys in formulating the regime of increasing time outlined in the orders at the commencement of these Reasons. In particular I record that he noted that the applicant found it difficult to attend to both children at once and difficult to respond to J’s emotional state when he became confused and upset. I accept Mr Z’s evidence that the applicant found it hard to manage the emotional aspects of J’s presentation and did not seek to reassure J or manage the situation for him. I accept that it is likely that the applicant may struggle to meet the children’s emotional needs and consider this to be one of the reason why, when block holiday time occurs, it occur for a duration of no more than seven consecutive nights.
I am not persuaded that the applicant’s proposal that the children move from Central Victoria to live closer to him is something which is not “child-focussed”. I accept that he understandably wishes to remain living in environs in which he has access to supports and the familiarity of ‘the known’. I am, similarly, not persuaded that the respondent’s proposal that the children remain living in the town in which they have lived since mid-2011 and continue at the same school at which they have attended since then is not ‘child-focused’.
The applicant has completed a parenting course which involved six 2¼ hour sessions. I accept the evidence that he has done so in order to supplement his parenting skills and to assist him to be able to provide for and meet the children’s needs to the best of his ability. I accept that he has, by this, demonstrated a committed attitude to the children and the responsibilities of parenthood. Such commitment is further demonstrated by the fact that he has travelled, in circumstances where such travel makes him tired, on a regular basis to spend time with the children rather than requiring them to travel to spend time with him.
The Apprehended Violence Order made, by consent without admission, on 8 July 2011 has now expired. There is no suggestion that the applicant did not comply with its terms.
I accept the evidence given by the neuropsychologist that, whilst the applicant’s attendance, on Mondays and Fridays, at group activities in which he has participated for a significant period of time, provides him with an important social experience with others who have had injuries of some sort, such attendance is probably less important now than it was previously. I also accept that the applicant is not highly dependent upon such activities which could be replaced, if he chose to live elsewhere, by participation in other activities.
The children have attended at a local school in Town O since June 2011 and, on the basis of their 2012 school reports, appear (with the exception of J who has always struggled a little) to be progressing well. I accept the respondent’s evidence that they are settled in Town O, have made friends in that community (by virtue of school and extra-curricular activities) and do not want to move.
Whilst proximity between the children and the applicant may well enable his greater involvement in their day to day lives, such result would be possible if, following the sale of the former joint residence, the applicant moved to live closer to Town O. Whilst the applicant attends on various medical practitioners, such attendance seems to occur on a monthly basis which would be possible if he decided to move closer to the children.
Whilst the respondent may well be able to find alternative accommodation closer to Melbourne following her receipt of funds from the sale of the former joint residence, I consider that it may well be that such funds are better spent providing other direct supports for the children, particularly given that, because of his inability to work for remuneration in the future, the applicant will be unable to contribute significantly to the children’s ongoing financial support in the future.
I accept that the children are well settled in Town O. I also accept that there are significant benefits to them, in terms of stability and continuity of attendance at their current school, should they continue to live in Town O. I accept that the respondent is likely to have benefitted from the ‘peace’ she describes as flowing from the distance between herself and the applicant, especially given the contrast in her function observed by Dr C who noted, when he saw her in late November 2012, that there was a radical improvement in her mental state and cognition in comparison to the first time she had attended upon him. I consider it more likely than not that, as the children’s agreed primary care provider, it is beneficial for the children to have the respondent functioning at her highest – a matter which I consider to be more likely if she continues to reside in Town O.
Whilst continued residence in Town O will have certain logistic impacts on the children’s opportunity to spend time with the applicant, I am satisfied that the benefits to the children of living with the respondent in Town O outweigh the detriments of the same. I consider that the benefits to the children of an ongoing relationship with the applicant can be achieved by ensuring that they are provided the appropriate opportunity to spend time with him. In that way, in the event that the respondent in the future manifests symptoms of the sort and nature associated with those who suffer from Huntington’s Disease, the children will have a well-established relationship with the applicant.
I find that, due to the limited amount of time the youngest two children have spent with the applicant since separation and the absence of time spent by the older child with the applicant, it is in the children’s best interests that their time with the applicant increase gradually. However, given what I consider to have been his significant presence in their lives prior to June 2011, it is unnecessary that such build up take too long.
In arriving at the regime of increasing time between the children and the applicant I have taken into account the benefits to the children of moving relatively quickly to establish the new long term regime for their time with the applicant and the impacts upon them of having to deal with such situation. I have also had regard to what I consider to be the necessity of establishing a new, consistent routine for the children. I have taken into account the impacts upon them of a transition from relatively limited time, as has been the case since separation, to periods of time which afford them greater opportunities to continue to develop a meaningful relationship with the applicant.
It is my intention that, with the assistance of the counselling that both parties agree L should participate in, L’s relationship with the applicant is rebuilt. I have no doubt that it is in L’s best interests that she rebuild her relationship with the applicant and that she be placed in a situation where she is assisted to accept and realise the benefits which will flow to her from such a relationship.
I am persuaded that the implementation of the regime of time outlined in the Orders set out at the commencement of these Reasons will ensure that the children have a safe and supported opportunity to continue to develop an ongoing and meaningful relationship with both of their parents. Further, given that the former matrimonial home is to be sold, the applicant may, in the future, decide to move to live closer to the children. If that was to occur, the impact of the travel upon the children in maintaining their relationship with him would clearly be minimised.
For the reasons outlined above I am satisfied that the Orders outlined at the beginning of these Reasons are those which are in the children’s best interests.
Parental responsibility
Counsel for the Independent Children’s Lawyer and Counsel for the applicant both submitted that the Court would be persuaded that it is in the children’s best interests that an order for equal shared parental responsibility is made.
In support of such an order, Counsel for the applicant submitted that:
a)up until the eve of the trial, the respondent had supported the making of an order for equal shared parental responsibility;
b)the change in the respondent’s position in so far as the allocation of parental responsibility is concerned demonstrates an attitude which is dismissive of the applicant and his role in the children’s lives;
c)there was no evidence to support the submission that the applicant did not have the capacity to consider decisions about long term issues relating to the children;
d)the applicant had, since separation, by his actions in travelling to Town O for the purpose of the children spending time with him, demonstrated a commitment to being involved in the children’s lives.
Counsel for the respondent opposed the making of an order for equal shared parental responsibility on the basis that the Court would not be persuaded that it is in the children’s best interests because:
a)the applicant was not capable of caring for or managing the children during the observed session for the purpose of the preparation of the Family Report and such difficulties suggest he would have difficulty making long-term decisions about issues relevant to the children;
b)prior to separation and historically, the applicant had been uninterested in matters associated with the exercise of parental responsibility and had left this to the respondent;
c) the parties are completely and significantly unable to communicate.
Counsel for the respondent further submitted that it was in the children’s best interests that the respondent have sole parental responsibility for them because she was the parent who historically had exercised such responsibility and was the parent with whom, by consent, the children would spend the majority of their time into the future.
Counsel for the Independent Children’s Lawyer submitted that an order for equal shared parental responsibility was in the children’s best interests because:
a)whilst the problem was the lack of communication between the parties, this stemmed from the respondent’s determination not to communicate with the applicant and there were methods of communication such as email which provided the means for communication without the necessity for face to face interaction;
b)both parents lacked insight such that it was preferable for the involvement of both;
c)whilst the applicant has a cognitive deficiency, the position may be that the respondent suffers from the same and/or may do so in the future;
d)such an order would prevent the respondent from excluding the applicant from any involvement in major decisions about the children; and
e)in all the circumstances, an order for equal shared parental responsibility would “cover all bases”.
The applicant said that he and the respondent had previously reached agreement as to an appropriate method to discipline L after a particular event involving the school. The fact that they were able to reach a joint approach is said to provide a further basis for a conclusion that it is in the children’s best interests that an order for equal shared parental responsibility be made.
I also understood that an order for equal shared parental responsibility was urged to ensure that, in the future, the respondent did not act as she previously had when she failed to involve the applicant in the decision about the school L was to attend or that one of the boys was to attend on a psychologist.
I have given close consideration to the submissions outlined above. Whilst there is some merit in the submission that an order for equal shared parental responsibility would provide a mechanism to deal with the potential of the respondent suffering from the symptoms of Huntington’s Disease, I consider that dealing with the children’s immediate best interests, rather than anticipating an event which may or may not occur in the future, is most important.
It is clear that the parties struggle to communicate. It is also clear that they cannot engage in face to face communication. It is clear that, historically, many of their disagreements arose out of fundamental differences in approach to a variety of matters including things which the children should or should not do.
The applicant acknowledged the need for the parties to be able to talk if an order for equal shared parental responsibility was made but did not know how this would occur. Whilst suggesting a communication book, he also criticised the respondent’s failure to use such method of communication in the past.
As noted above, the applicant clearly considers that the respondent has previously behaved dismissively toward him when he attempted to be involved in decisions relating to the household and the children. I conclude that the evidence establishes that the parties have a well-established pattern of non-communication such that the children have previously been parented in a household where the respondent has made the major decisions relevant to their long-term care welfare and development.
I consider that the evidence establishes a pattern of communication between the parties such that the applicant expresses views about a particular matter (for example, watching certain television programmes rather than going for a walk) in a manner that he does not consider critical whilst the respondent hears nothing but criticism flowing from his comments. These interactions, together with the manner in which discussions between the parties can easily spiral into arguments (as noted elsewhere) persuade me that it is likely that the parties will experience significant difficulty if they are required in the future to make decisions about the children’s long-term issues jointly.
Whilst it is always possible for parties to overcome such difficulties through effort, the limited insight each has in respect of their own contribution to such disagreements and the length of time over which such behaviours have persisted leads me to conclude that any significant change to this past pattern of communication and interaction is unlikely.
Whilst I accept that the applicant is genuinely interested in the children and seeks to be involved in making decisions about long term issues relating to them, I have reached the conclusion that an order that the parties have equal shared parental responsibility for the children is not in their best interests on the basis outlined above and because:
a)the level of parental conflict about matters relevant to the children, in circumstances where the evidence establishes that such conflict predated separation, is such that it is more likely than not that the parents will be unable to discharge the obligation imposed upon them to make decisions about a major long-term issue in relation to the children jointly: s 65DAC(2) of the Act;
b)the absence of parental communication, for whatever reason, has a consequence that it is more likely than not that, if the parents are required to exercise parental responsibility jointly, the process will come to a grinding halt;
c)the past behaviours of the applicant toward the family and its impact on the respondent’s ability to trust him and communicate with him at present is such that the parties are unlikely to be able to resolve any deadlock consequent upon them holding differing views as to the manner in which decisions relevant to the children should be made;
d)the assessed lack of insight on the part of both parties is such that the prospect of them being capable of reaching joint decisions as required by the Act is decreased rather than increased;
e)the applicant’s brain injury has resulted in him experiencing difficulties in appreciating other people’s perspectives – the personal care assistant described a circular interaction between the parties: that is, frustration expressed by the applicant caused the respondent to become upset, frustrated and angry on occasions, telling him that, because of his brain injury he had no idea what he was talking about, which in turn caused the applicant to become angry and frustrated in response.
I am satisfied, on the evidence before me, that the parties cannot now, and perhaps never could, make decisions about major long term issues in relation to the children ‘jointly’. They could not, I consider, carry out the obligation imposed on them by statute. The confluence of attitudes and likely responses as between that the applicant and respondent is such that I consider it more likely than not that, if required to reach decisions jointly, either no decisions will be made or the children will be placed within a vortex of competing views. This cannot, in my view, be something which is in their best interests.
Having regard to these and the matters discussed above during my consideration of the relevant s 60CC considerations, I am satisfied that it is not in the children’s best interests that their parents have equal shared parental responsibility for them.
I am satisfied that it is in the children’s best interests that the respondent have sole parental responsibility for them. I reach this conclusion because:
a)she is the parent with whom they will predominantly live as a consequence of the agreement reached between the parties; and
b)she is the parent who has historically and, in reality, exercised parental responsibility for the children; and
c)there is no evidence to suggest that the applicant has previously complained of any deficiencies in the manner in which the respondent has previously exercised parental responsibility in relation to the children; and
d)the applicant’s evidence revealed that he accepts that the respondent would not seek to mislead him as to the factual basis upon which she was acting in making decisions relevant to the children.
I consider that the applicant’s concern, that if a sole parental responsibility order is made in favour of the respondent she will not involve or advise him of significant decisions relating to the children, can be met by an order which requires her to consult with him prior to arriving at any decision. In this way, he will be kept informed about such matters and have an opportunity to provide input but there will be no possibility of a stalemate in decision-making to the detriment of the children.
Where should hand over occur?
The applicant seeks that, save for the first period of time with the children, hand overs take place at a half-way point as agreed between the parties. The respondent seeks that all handovers occur at a Children’s Contact Centre in Town O. The Independent Children’s Lawyer seeks that handovers occur either at the children’s schools or at a McDonald’s Restaurant equidistant between the parties’ residences.
Both parties will retain their respective motor vehicles in the property proceedings. Whilst it may be that travel is difficult for each of the parties, I consider it beneficial that the children see both of their parents participate in their transition between households.
Given that the applicant is likely to be more flexible in terms of availability than the respondent, particularly if she gains remunerative employment in the future, I consider that, unless otherwise agreed between the parties, the most practicable way for the parties to share in the transport of the children is that the applicant collect the children from Town O at the commencement of their time with him and the respondent collect them from the train station or a McDonald’s Restaurant closest to the applicant’s residence at the conclusion of such time.
Should telephone communication be prescribed?
The applicant seeks an order that he be permitted to telephone the children each Wednesday between 4:30 pm and 6:30 pm and the respondent facilitate such telephone contact, including making arrangements for his call to be returned if missed.
The respondent does not propose that there be specific orders for telephone communication between the children and the applicant at any set time during the week but instead suggests that the children be allowed to telephone the applicant whenever they wish. In a similar manner, the Independent Children’s Lawyer does not propose any specific orders for telephone communication between the children and the applicant.
I take into account that the children did not communicate by telephone with the applicant on Christmas day because they did not ask to do so and, in the absence of an order dealing with this type of communication, the respondent did not take any steps to facilitate such communication. Against this background, I consider that it is in the children’s best interests that they have the opportunity to communicate with the applicant by telephone each week.
I consider that the 2 hour time frame proposed by the applicant may well interfere with activities in which the children may, in the future, seek to participate. I also consider that it is too onerous for the children to be required to be “available” to speak with their father for a 2 hour block each Wednesday. I consider that an order which provides for telephone communication between 6:30 pm and 7:00 pm each Wednesday is that which is in their best interests because it will provide them with the opportunity to communicate directly with the applicant during periods they are not spending time with him and will assist them to continue to develop and maintain a meaningful relationship with him.
What happens if the respondent is unable to care for the children?
The applicant seeks an order to the effect that, in the event the respondent is unable to care for the children for any reason or for any period of time, the children live with him during this time.
Whilst the rationale underlying such a proposal may be understandable, I consider that it has the potential to be significantly disruptive for the children. The terms of the order sought are incredibly broad – for example, arguably it would see the children being dislocated from their current care arrangements, including their school and involvement in extra-curricular activities, if the respondent was unable through ill health to care for them for one day during the school week. This would occur irrespective of whether the respondent had put in place appropriate care arrangements so as to minimise the disruptive impact of such an event on the children.
I also consider it more likely than not that such an order may have the effect of placing the children in the midst of ongoing attempts by the applicant, through questioning of them, to find out whether the respondent had, at any time, been “unable to care” for them. This would not be beneficial for them.
For these reasons I am not persuaded that such an order is in the children’s best interests.
In the event that the respondent suffers ill health, of whatever nature and cause, which renders her incapable of caring for the children for a significant period, then, in the absence of agreement between the parties, it may be open to the applicant to apply for different parenting orders if he can then establish sufficiently changed circumstances as to warrant a further judicial consideration of the matter.
What happens if the Transport Accident Commission (TAC) will not provide a support person?
The respondent seeks that, in the event that the TAC cannot provide a support worker to be present during the time the children spend with the applicant, the parties share the cost of an independent support worker to fulfil this role.
It is clear from the correspondence provided by the TAC that the applicant is entitled to whatever support is necessary to assist him in fulfilling his parenting obligations during any time the children are to spend with him pursuant to an Order of the Court. On this basis, it does not seem to be likely that the parties will be put to the expense of providing for an “independent” support worker to be present during such time.
It clearly would not be in the children’s best interests that their time with the applicant cease simply because no provision had been made for the parties to contribute to the cost of a “substitute” support worker. However, given the parties’ current and likely future financial circumstances, I do not think it possible to determine now the manner in which such support should be funded at an indeterminate time in the future. I consider the preferable course to be to provide for the parties to have liberty to apply to the Court for further consideration of this issue should it become necessary. In this way, proper regard can then be had to each party’s current financial circumstances
Matters involving the ongoing involvement of the Independent Children’s Lawyer
The applicant seeks a number of orders which require the ongoing involvement of the Independent Children’s Lawyer. For example, he seeks an order that the Independent Children’s Lawyer:
a)be at liberty to communicate with the support worker provided by the TAC; and
b)receive from him letters, cards and gifts intended for the children and decide whether to send such communication to the children.
I am not persuaded that the best interests of the children in this matter require the continued presence of the Independent Children’s Lawyer.
Property
Both parties seek that orders be made pursuant to s 79(1) of the Act. The consequence of the parties’ separation is that there has not been and will not be thereafter the common use by them of property and, in such circumstance, it is just and equitable that a property settlement order be made.[5] No submission was made by either party to the contrary.
[5] See: Stanford and Stanford (2012) 247 CLR 108 at [42].
The parties are agreed that the former matrimonial home is to be sold.
The applicant seeks that, after its sale and the payment out of the costs associated with the same and the payment of a credit card debt of $7,000.00, the remaining funds be divided such that he receive 70 per cent of the same and the respondent receive 30 per cent of the same. He also seeks a superannuation splitting order so as to achieve an equal division of the parties’ superannuation entitlements. He seeks that the parties divide equally any monies held in joint bank accounts, that each party retain the property in their respective possession (with him retaining the contents of the former matrimonial home) and that the respondent return to him her keys to the former matrimonial home and his car.
It is submitted on his behalf that orders to give effect to this result are just and equitable having regard to his contributions during the 18 year relationship and the significant disparity, relatively speaking, in the ongoing financial positions of the parties. It is said that this is so even taking into account the respondent’s likely primary responsibility for the financial and non-financial support of the children into the future.
In order to set out the potential consequence for each party of such a determination, I have used a figure of $561,500.00[6] as representing the possible net sale proceeds which may potentially be obtained from the sale of the home. Should orders be made as sought by the applicant:
[6] Arrived at using the lower range figure for the home, less the $8,500.00 credit card debt.
a) the applicant would receive:
(i)about $393,050.00 from the sale of the home;
(ii)his car valued at $11,500.00;
(iii)superannuation entitlement of $22,500.00.
b) the respondent would receive:
(i)about $168,450.00 from the sale of the home;
(ii)her car valued at $3,000.00;
(iii)shares valued at $3,760.00;
(iv)superannuation entitlement of $22,500.00.
The respondent seeks that, after the sale of the former matrimonial home and payment of the costs associated with this, the sum of $9,000.00 be paid to extinguish credit card debt and the balance then remaining be divided between the parties equally. She opposes the making of any order splitting the parties’ superannuation entitlements and seeks instead that each party retain absolutely the interest in their respective names. She agrees that any money in joint bank accounts be divided equally but seeks that the personal property, chattels and furniture remaining in the former matrimonial home be divided between the parties ‘as agreed’.
Using the same figure for the net receipt from the sale of the home as above, if orders are made in the manner sought by the respondent:
a) the applicant would receive:
(i)about $280,750.00 from the sale of the home;
(ii)his car valued at $11,500.00;
b) the respondent would receive:
(i)about $280,750.00 from the sale of the home;
(ii)her car valued at $3,000.00;
(iii)shares valued at $3,760.00;
(iv)superannuation entitlement of $45,000.00.
Whilst initially having some minor differences as to the values to be accorded to certain items of property, the parties ultimately reached agreement as to both the property and its values for the purpose of these proceedings.
The Agreed Property Pool detailing the ownership of property and the agreed values to be attributed to the identified items is as set out below. The value attributed to the former matrimonial home is indicative only, given its agreed sale.
| ASSETS | |||
| OWNERSHIP | DESCRIPTION | VALUE | |
| 1 | Wife | Suburb R property (former matrimonial home) | E$570,000.00 - $580,000.00 |
| 2 | Husband | Husband’s car | $11,500.00 |
| 3 | Wife | Wife’s car | $3,000.00 |
| 4 | Wife | Shares | $3,760.00 |
| Total of assets | E$588,260.00 - $598,260.00 | ||
| LIABILITIES | |||
| OWNERSHIP | DESCRIPTION | VALUE | |
| 9 | Wife’s | Credit card debt | $8,500.00 |
| Net Total (non superannuation assets) | E$579,760.00-$589,760.00 | ||
| SUPERANNUATION | |||
| OWNERSHIP | DESCRIPTION | VALUE | |
| 10 | Wife | Australian Super | $3,103.00 |
| 11 | Wife | AMP | $41,159.00 |
| 12 | Wife | Asgard Super | $1,101.00 |
| Total | E$625,123.00- $635,123.00 | ||
The applicant has an interest in property overseas which he inherited following his father’s death. There is evidence that his brother is contesting their father’s Will but there is no evidence before me as to the likely outcome of such proceedings. Sensibly, the parties agreed that the applicant pay to the respondent the same percentage of the net proceeds he receives following the realisation of his father’s estate overseas as it is determined by the Court that she receive in relation to the remainder of the property of the parties.
The issue of the ‘division’ of ‘goods and chattels’ contained within the former matrimonial home was raised by the respondent in the orders sought in these proceedings. However, no goods and chattels were listed in the agreed asset pool, there is no evidence as to the value of the same, the applicant asserted (without challenge during cross-examination) that division of them has already occurred and no submissions were made in respect of this issue. In such circumstances, I am not persuaded to make any order in respect of the ‘division of goods and chattels’ as between the parties.
It is immediately apparent from the table set out above that the former matrimonial home is the only property of significant value owned by the parties or either of them. It is owned by the respondent alone. All of the applicant’s compensation monies have been spent, either in reducing the borrowings which were previously secured by mortgage over the former matrimonial home or in support of the family. Such contribution provided the family unit with the opportunity to live in an unencumbered home from the payment during the year 2000. His lump sum compensation payment also provided the source from which the parties’ financial needs were met from its receipt in 2000 until its depletion by 2009. His financial contribution to the acquisition of this asset was very significant.
Neither party had assets of any significant value at the commencement of the relationship. It is not in contention that the parties borrowed a substantial portion of the purchase price of the land on which the former matrimonial home was subsequently constructed.
Both parties have, at various times, been in receipt of Government provided funds (whether by way of parenting payment or, later, disability support pension payments). If received during the relationship, each party applied the funds to the support of the family unit as it was then constituted. If received after separation, the applicant has applied such funds for self-support and the respondent has applied such funds for her support and that of the children.
The discussion, which appears below, of the parties respective financial contributions during the relationship is exclusive of the contributions made by each of funds received by each from Government sources.
The applicant made the following financial contributions to the acquisition, conservation or improvement of the property and/or the support of the family during the relationship :
a)$40,000.00 (received by him as a consequence of a work injury): paid at the end of 1996 to the reduction of the liability secured over the property;
b)workers compensation payments received following the 1996 accident until the payment of the lump sum in 2000 in an amount of 75 per cent of his then income; and
c)the funds received as a consequence of the work accident which were used to extinguish the mortgage secured over the property and to support the family, at a rate of approximately $40,000.00 per annum, in the period from its receipt in 2000 until the funds were extinguished in 2009.
The respondent made the following financial contributions to the acquisition, conservation or improvement of the property and/or the support of the family during the relationship:[7]
[7] Exhibit A.
Summary of Ms Missiakos’ Earnings 1993-2012
Year
Amount
Year
Amount
2012
$17,026.00
2002
$7,018.00
2011
$1,804.00
2001
$14,647.00
2010
$12,016.00
2000
$58,683.00
2009
$39,517.00
1999
$42,675.00
2008
$30,623.00
1998
$45,016.00
2007
$20,103.00
1997
$39,607.00
2006
$28,572.00
1996
0.00
2005
$554.00
1995
$38,906.00
2004
$3,094.00
1994
$34,556.00
2003
$3,157.00
1993
$33,391.00
It is clear, therefore, that during the relationship the respondent earned $470,965.00 in total which she contributed to the support of the family. In addition, she is entitled, by virtue of her engagement in paid employment, to the superannuation entitlements which form part of the property of the parties.
It is clear, and not seriously contested, that, by applying the compensation payments received by him during the relationship, the applicant made a very significant financial contribution to the acquisition of the property of the parties. Proper regard must, however, also be had to the contribution by the respondent of the income referred to above, especially when proper consideration is given to the fact that, in the period following the accident, the respondent’s efforts in earning the same were, as I find it more likely to have been, juggled around the responsibility of assisting the applicant and meeting the majority of the care needs of the children.
Neither Counsel submitted that either the applicant or the respondent had made any particular non-financial contribution to the acquisition, conservation, or improvement of any of the property of the parties.
It is clear from the evidence of the neuropsychologist that the respondent’s support of the applicant in the first five years after the accident was crucial to his improvement. The applicant received assistance from the personal care assistant:
a)commencing in 2000 and until about 2002: for three hours each Tuesday and Thursday;
b)from 2002 until about 2006: for three hours each Tuesday and three and a half hours Thursday;
c)from about 2006 until 2011: for three hours each Tuesday, three and a half hours each Thursdays and one and a half hours each Friday;
d)from mid-2011: assistance has been provided on each day.
Save for this assistance, the respondent helped the applicant with any other day to day needs and I accept that the increase in his requirement for assistance after separation provides a good indicia of the level and extent of the assistance previously provided by the respondent.
Whilst the applicant relied upon the personal care assistant’s evidence in an attempt to corroborate his evidence of the care he provided to the children, it was immediately apparent that the majority of her knowledge came from things he had told her rather than her own observations. When pressed, she confirmed that she had never seen him prepare breakfast or take the children to school but said that he did prepare the evening meal. She confirmed that when she arrived at the house it was tidy because the respondent was “very particular”. The personal care assistant confirmed that, in the period from 2000 until 2011, the respondent did not undertake employment on a 9.00 am to 5.00 pm basis but attended at work for a day “here and there”. I accept her evidence in this regard.
The applicant accepts that, during their relationship, the respondent contributed, financially, by the application of income earned from both full-time and part-time work and, non-financially, via her assistance to him in rehabilitation and in providing care for the children. So much is, I think, clearly established on the evidence.
The respondent submits that, during the parties’ cohabitation, she made significant contributions of a non-financial nature. She says that, in addition to caring for the applicant, she provided primary care to the children and performed the majority of household tasks. In contrast, the applicant asserted that, in the period from 2000 to 2005, he was primarily responsible for caring for the children whilst the respondent was working or studying. He says that he assisted in preparing their breakfasts, transporting them to from school and extracurricular activities, preparing dinner and attending to washing and cleaning, albeit assisted by the personal care assistant provided by the TAC .
Whilst I accept that the applicant assisted in the running of the household and the children’s care to the best of his ability, I consider that it is more likely than not that the respondent met the majority of the children’s needs during cohabitation. I conclude that the impact of the injury the applicant suffered in the accident meant that the respondent was called upon and did undertake the majority of the homemaking and household duties as well as providing support to him. These contributions were, of course, additional to those financial contributions referred to above and occurred for the majority of the lengthy relationship between the parties.
It is clear that s 79 of the Act must be applied keeping in mind that “community of ownership arising from marriage has no place in the common law”[8] and that there is no presumption of equality.[9]
[8] Paragraph 39 of Stanford citing Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J.
[9] Mallet v Mallet (1984) 156 CLR 605.
Having regard to the matters outlined above, it cannot be concluded, nor was it submitted to the contrary, that the respondent’s contribution-based entitlement could result in anything but an allocation of the applicant’s present legal interest in property in her favour.
Taking into account the size of the pool, the length of the marriage relationship and the parties’ respective contributions in the respects referred to above, I consider that, in the particular circumstances of this case, a 60:40 apportionment of the net sale proceeds of the former matrimonial home in favour of the applicant and a 50 per cent apportionment of the respondent’s entitlement to superannuation interests reflects the parties’ respective contribution-based entitlements. In arriving at this conclusion, I have balanced his very significant financial contributions, including those made indirectly to the respondent’s superannuation interests, with the very significant contributions made by the respondent to the care of the children and the applicant in the ‘pressure cooker’ circumstances in which the parties found themselves, her financial contributions which supplemented those made by the applicant and her significant post separation contributions to the care and support of the children and to the applicant in the sense that he has remained living in the unencumbered former matrimonial home whilst she has lived in rented premises.
None of the orders proposed by either party will have any effect on the earning capacity of either party.
The applicant is 53 years of age and the respondent is 44 years of age. Both parties advance the position that, relatively speaking, they are in good health and, subject to that reservation, I accept this evidence.
The applicant is supported by the receipt of Disability Pension Payments, which he commenced to receive towards the end of 2011. Save for that which he will receive as a consequence of these proceedings, he will continue to be reliant upon such payments for his financial support into the future.
The applicant asserts, on the basis of his research on websites such as “Seek.com”, that the respondent has the capacity to earn $100,000.00 per annum. I do not accept this contention. The income previously earned by the respondent during the course of the marriage is summarised in paragraph 192. At no time, including when she was in full-time employment prior to the birth of the children, has she ever earned anywhere near the level of remuneration suggested by the applicant. Further, I accept that applicant’s evidence that the respondent worked for remuneration for only three days in the three years immediately prior to separation.
It is, however, obvious that, even accepting the potential of an income in the vicinity of about $39,000.00 (as she earned in 2009), the respondent’s future financial position is likely to be significantly better than that of the applicant. She is a qualified professional. She, unlike the applicant, will, through her efforts, be in a position to continue to add to her entitlement to superannuation. In contrast, the applicant will continue to be dependent upon the receipt of Disability Pension Payments for his financial support in the future.
Balanced against this, however, is the reality that the respondent will, by virtue of her agreed status as the parent with whom the children, aged 12, 10 and six years respectively, will primarily live, also be the parent primarily responsible for their financial support. This arises because the applicant’s circumstances are such that he is unlikely in the future to be able to make any significant contribution to the same.
In addition to this financial responsibility, the respondent will be the party who will bear the impost of the primary care of the children over a significant period of time into the future. Realistically, I consider that her capacity to utilise her potential income earning capacity is likely to be somewhat restricted as a consequence of this care. However, whilst I accept the respondent’s evidence that she intends to return to part-time work while continuing to provide the primary care for the children, I also consider that her capacity to work for remuneration is likely to increase somewhat over time as the children grow older and are more capable of being more independent.
Until the respondent obtains employment, part-time or otherwise, she is in receipt of about $630.00 per week by way of parenting payment which is available to support both her and the children.
Doing the best that I can to balance and weigh the competing considerations outlined above, I consider that an adjustment to the contribution-based entitlements of the parties of seven per cent of the net sale proceeds of the former matrimonial home ought be made in favour of the applicant.
That will lead to an overall outcome whereby orders are made effecting that the applicant receive 67 per cent of the net sale proceeds of the former matrimonial home (about $382,905.00), 50 per cent of the total superannuation assets of the parties (valued at $22,500.00) and retain his motor vehicle (valued at $11,500.00). This represents about 66.69 per cent of the total (non-superannuation property and superannuation interests) property of the parties available for consideration.
The consequence for the respondent will be that she will receive 33 per cent of the net sale proceeds of the former matrimonial home (about $188,595.00), 50 per cent of the total superannuation assets of the parties (valued at $22,500.00) and retain her motor vehicle (valued at $3,000.00) and shares (valued at $3,760.00). Considered globally, this represents about 33.31 per cent of the total (non-superannuation property and superannuation interests) property of the parties.
I am satisfied in all the circumstances of this case that it is just and equitable and appropriate to make orders to give effect to these conclusions.
I certify that the preceding two-hundred and sixteen paragraphs (216) are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 December 2013.
Associate:
Date: 20 December 2013
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Injunction
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Remedies
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Statutory Construction
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