Mitchell and Blake

[2014] FamCA 13

FAMILY COURT OF AUSTRALIA

MITCHELL & BLAKE [2014] FamCA 13

FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – With whom the children communicate – Where two of the children have demonstrated the ability to make their own choice – Where the youngest child is the subject of the orders.
FAMILY LAW – PROPERTY – Value of property
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Just and equitable – Future needs – Where the mother has the care of three children under the age of eighteen.

Family Law Act 1975 (Cth) ss 90SF(3), 90SM

APPLICANT: Ms Mitchell

RESPONDENT: Mr Blake

INDEPENDENT CHILDREN’S LAWYER: Leisa Toomey

FILE NUMBER: BRC 4201 of 2010

DATE DELIVERED: 17 January 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 19 and 20 September 2012 and

REPRESENTATION

FOR THE APPLICANT: Ms Mitchell in Person

FOR THE RESPONDENT: Mr Blake in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Farr of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Schultz Toomey O'Brien

Lawyers

Orders

Parenting Orders

1. That all existing parenting orders are discharged.

1. That the Mother has sole parental responsibility for the child, E born … September 2000 (“the child”), but shall inform the Father in writing whenever she makes a decision about any major long-term issue in relation to the said child.

1. That the child shall spend time with the Father:

   (i)From after school on Friday until 6:00 pm on Sunday evening each alternate weekend during school term, commencing on the first Friday afternoon of each school term;

   (ii)During school holidays at such times as are agreed between the Father and the child, E.

1. That the child spending time with the Father pursuant to paragraph 3 of these Orders is to be facilitated by the Father collecting the child at the commencement of such time and returning her at the end of such time to the Mother with collection being from school on the Friday afternoon during school term and collection and return being at Hungry Jacks Restaurant, Town A at all other times.

1. That the child shall be at liberty to communicate with each of her parents by telephone or email whenever she wishes to, whichever parent she is with at the time, and each of the Mother and the Father shall take all steps to ensure that the child is able to do that, including by ensuring that she is given privacy when she does.

1. That each parent shall keep the other parent informed as to their current residential address and telephone number and shall inform the other parent, in writing, of any change to those details within 48 hours of any such change.

1. That notwithstanding any other term of these Orders, the Father shall be entitled to attend at the child’s school on any occasion or for any event at which he is welcome by the administration of that school and shall be entitled to receive from the administration of that school any information that the administration of the school determines appropriate to give to him about the educational, social and cultural development of the child and the Father shall be entitled to show these Orders to the administration of that school as he may determine necessary.

1. That each parent is restrained from:

   (i)        Using physical discipline on the child;

   (ii)       Assaulting the child;

   (iii)Being under the influence of any illegal drug whilst the child is in his or her immediate care;

   (iv)Consuming alcohol to the point of having a blood alcohol concentration in excess of the amount permitted for lawfully driving a motor vehicle in Queensland, whilst ever the child is in his or her care;

   (v)       Denigrating the other parent to or within the hearing of the child.

1. That the Mother shall continue to attend upon medical health practitioners on a regular basis for the monitoring of her physical and mental health and she shall undertake any further treatment, including the taking of medication, prescribed for her by those practitioners in order to ensure her good health.

1. That the Independent Children’s Lawyer shall speak to the child, by telephone if the ICL so chooses, and shall explain to the child the making of these Orders and their effect in respect of her and after the ICL has done that she is discharged.

Property Adjustment Orders

1. That Brisbane solicitor, Mr Peter Sheehy, is, subject to his acceptance of this appointment, appointed as trustee for the sale of the parties’ real property situated at B Street, Town C via Town A in the State of Queensland, more properly described as Lot … on RP … (hereinafter referred to as “the Town C property”) and, upon his acceptance of this appointment, the Town C property shall vest in him on the said trust for sale which he may cause to be effected by such means as he shall determine.

1. That each of the parties, the joint registered proprietors of the Town C property, shall fully co-operate with Mr Peter Sheehy and any real estate agent, valuer, auctioneer or other person appointed by Mr Peter Sheehy to assist him in his duties as trustee for the sale of the Town C property, including by abiding by any reasonable request of any such person unless otherwise ordered by this Court.

1. That upon the settlement of the sale of the Town C property, after the discharge of the mortgage liability secured by the said property, the net proceeds of sale are to be applied as follows:

   (i)To pay all the costs, commissions and expenses of the sale, including the reasonable professional costs and outlays of the trustee, Mr Peter Sheehy subject to any further order of the Court;

   (ii)To pay any legitimate adjustments on the settlement such as outstanding local authority rates and charges;

   (iii)The balance to be retained by Mr Peter Sheehy in his trust account to be paid out to the parties in accordance with the balance of these Orders.

2. That the net property interests of the parties against which the distribution of the proceeds of sale of the Town C property is to be calculated shall consist of the following:

   (i)The balance of the sale proceeds of the Town C property retained by Mr Peter Sheehy in his trust account pursuant to paragraph 13 (iii) of these Orders;

   (ii)The Toyota … motor car in the Father’s possession valued at $14,000;

   (iii)The household contents in the Father’s possession valued at $6,000;

   (iv)The adding back of the amount by which the mortgage debt owed to Heritage that was discharged on the settlement of the sale of the Town C property was actually in arrears of what it would have been as at the date of settlement had the Father paid all principal and interest instalments on that liability as they fell due in the period between separation from the Mother and the date of settlement of the sale of the property;

   (v)The adding back of the amount by which the amount of rates and charges owing to the Town A Regional Council in respect of the Town C property as at the date of settlement of the property exceeded the sum of $662.74;

   (vi)The deduction of the $2,000 joint credit card liability of the parties as at the date of separation;

   (vii)The deduction of the Lion Finance debt of $32,018.

1. That by way of property adjustment as between the parties, Mr Peter Sheehy shall pay to the Wife from the balance proceeds of the Town C property held in his trust account pursuant to paragraph 13(iii) of these Orders, a sum equal to 60 per cent of the total net sum calculated in accordance with paragraph 14 of these Orders and he shall pay the balance to the Father or at his direction.

1. That the Father shall indemnify the Mother and keep her indemnified against any liability for the joint credit card debt of $2,000 that existed as at their separation and for the Lion Finance debt and any other debts in his or their joint names, including any incurred in the course of any of the businesses that they ran during the course of their relationship whoever those debts may be owed to.

1. That the Mother shall indemnify and keep the Father indemnified against any liability for any debts incurred in her name since their separation whoever those debts may be owed to.

1. That the Father shall retain as his sole property absolutely free of any claim by the Mother the Toyota motor vehicle in his possession and the household furniture and contents in his possession.

1. That the Mother shall retain as her sole property absolutely free of any claim by the Father any motor car and other chattels in her possession.

1. That a copy of these Orders and Reasons for Judgment shall be forthwith sent by the Court to Mr Peter Sheehy who shall have liberty to inspect the file and to read any affidavit or other document contained on the file and shall notify the Court by email to the Associate to Forrest J as to his acceptance or refusal of the appointment as trustee for sale pursuant to these Orders.

1. That the Court shall immediately notify the Mother and the Father of Mr Sheehy’s acceptance or refusal of the appointment upon receipt of same from him and, if Mr Sheehy refuses the appointment the matter will be listed again before his Honour Justice Forrest at a time and date to be fixed and notified to the parties for consideration of who otherwise should be appointed as trustee for sale of the Town C property.

2. That there be liberty to apply to the Court for further orders facilitating the orderly sale of the Town C property granted to Mr Peter Sheehy in the event that he accepts the appointment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Blake 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 BRISBANE

FILE NUMBER: BRC 4201 of 2010

Ms Mitchell

Applicant

And

Mr Blake

Respondent

REASONS FOR JUDGMENT

1. Ms Mitchell (‘the Mother”) and Mr Blake (“the Father”) began to live together in Brisbane in a de facto marital relationship in or around 1989. A few years later, they bought a piece of land near Town A and built a family home on it, into which they moved. They had five children, K, S, P, J and E who were born between 1991 and 2000. They ran a couple of small businesses from their home over the years. Those businesses never made much money but the family made ends meet.

2. In December 2009, the couple separated. The Mother left the home and has lived away from that property ever since. The Father remained in occupation of the home and, it is presumed, still does to this day.

3. The couple have been in high conflict ever since they separated: conflict about their parenting relationship; and conflict about finalising their financial relationship. The Mother commenced parenting orders proceedings in the Federal Magistrates Court (as it then was) in 2010.  She sought orders that the two youngest children, who were 11 and 9 years old respectively at that time, live with her.  Her application was opposed by the Father.

4. On 29 July 2010, orders were made, upon the recommendation of a Family Consultant, that all of the children live with the Father and that the parties attend upon a psychiatrist for assessment and the preparation of a report. An Independent Children’s Lawyer was also appointed and she organised for a family report to also be prepared by a psychologist.

5. The matter was back before the Court on 15 November 2010. On that day, on the recommendation of the family report writer, orders were made that introduced a parenting regime over a couple of months that led up to the two youngest children living in an equal shared care arrangement on a week about basis with each parent from the beginning of 2011.

6. The matter was back before the Court on 30 August 2011, a further family report having been prepared by the psychologist earlier that year. On that day, the matter was listed for a final trial in October 2011 and save for an order that the Mother not leave the children in the unsupervised care of her then partner, no change was made to the existing parenting arrangements.

7. Another family report, the third by then, was prepared in October 2011. The report writer recommended that the youngest child, E, live with her mother and that J, who by then had of his own volition gone back to living full-time with his father, be given the option (at his choice) of spending time with his mother on alternate weekends and in school holidays.

8. The Mother then amended her application to include property adjustment orders and when the matter came on for trial on 2 November 2011, it was transferred to this Court for hearing with further interim orders being made that provided for the youngest child, E, to live with the Mother; the boys, S and J, to live with the Father and to spend time with the Mother as they wished; and that no order be made directed at the child, P.  By this time, the eldest child, K, had well and truly reached adulthood and was no longer subject to the Court’s jurisdiction to make parenting orders.

9. The matter came before me for trial on 18 and 19 July 2012. Each of the parents appeared without legal representation. The ICL was represented by counsel.

10. The evidence established that the child, S, who was 17 years of age at that time, was living away from and independently of the parties and that he had himself become a father at that time. No orders were sought by either parent in respect of S.

11. The evidence established that the child, P, who was 15 years of age at that time, was living with his father but that there was an enormous amount of conflict in his relationship with his father and some serious emotional difficulties being experienced by the boy. The boy had recently posted on his Facebook page an expression of desire to seriously harm himself. This same boy had already previously poured methylated spirits over his head and face and threatened to set himself on fire with a cigarette lighter he held in his hand during an episode of conflict with his father.

12. The evidence established that the child, J, who was 13 years of age at that time, was living with his father but also experiencing a large number of emotional problems.

13. The evidence established that the child, E, who was 11 years of age at that time, was living with her mother at the time and also being subject to an enormous amount of emotional turmoil.

14. At the trial, the Mother did not seek a parenting order that J or P live with her, but the Father still sought an order that the child, E, live with him. He also sought property adjustment orders that effected a 70/30 division of their modest property interests in his favour. The Mother certainly did not agree that would be a just and equitable outcome. She left it for the Court to determine what was.

15. It was an extremely difficult trial. The Mother and the Father, unrepresented as they were, had no idea how to present their respective cases to the Court. The Mother was voluble and unrestrained, displaying significant, fluctuating emotional extremes. The Father also displayed personality traits of inflexibility, a strong need for control and a distinct lack of empathy and insight. Each party cross-examined the other. Having the responsibility of presiding over that gave me a window into the world that the five children of this relationship would have had to endure in negotiating their way around this extraordinary parental relationship.

16. I also heard oral evidence from the psychologist who had prepared the three family reports from 2010 to 2011 and I read the psychiatrist’s assessment of the parties.

17. At the end of the trial, I was determined to make orders that simply confirmed the parenting arrangements that were already in place, that is, that provided for P and J to continue to live with their father and to spend time and communicate with their mother as they wished, and for E to continue to live with her mother and to spend regular time with her father and brothers. So as to consider the matter a little further, particularly the property adjustment dispute, I reserved my decision.

18. Whilst my judgment was still reserved, the Father filed further affidavits and then a Contravention application. The matter was before me again on 8 April, 2013 and on that day, I ordered the reopening of the proceedings and for the Father’s affidavits to be admitted as evidence in the proceedings with the Mother also being given leave to file a further affidavit which she did.

19. The new evidence relevantly revealed that the Mother had moved in late November 2012 from the home in which she and E were living in Town A after a very serious incident of violence had taken place in the street arising out of conflict between the persons the Mother and E were living with and other residents in the street. The Mother and E had moved to another home that the Mother rented on rural land outside Town A. Most relevantly though, that new evidence, about which there was no dispute, revealed that the couple’s son, S, by then also an adult, had moved back to live with the Mother and E on that property and also that in early 2013, the other two boys, P and J, had both of their own volition, at different times, also chosen to move from their father’s home to live again with the Mother and their other siblings. At that time, those two boys were 16 and 14 years old respectively.

20. I listed the Father’s Contravention application for hearing on 27 August 2013. On that day, I found with respect to at least one of the alleged contraventions, that the Mother had contravened an order without reasonable excuse. In all of the circumstances, I determined that the appropriate orders to make as a consequence were orders that required both of the parents to attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs. I was quite satisfied that no other parenting orders were required to be made at that point in time.

21. The boy, P, is now 17 years of age. The boy, J, is now 15 years of age. They have clearly demonstrated a capacity to make their own decisions as to which parent they wish to live with and to act upon such decisions. I am satisfied that they determined to move away from their father and to live with their mother because of conflict in their relationships with their father. I am quite satisfied that each of those boys has the capacity to make his own decision now about what contact he will have with his father and what time he will spend with him. I am confident that if either boy determines not to live with his mother anymore, for whatever reason, that he will act on such a determination.  I do not consider it in the best interests of these boys to make any parenting orders with respect to either of them and I will discharge all existing parenting orders relating to them.

22. As to the child, E, who is now 13 years of age, I have not changed my mind about her parenting arrangements. I consider that it is in her best interests to continue to live with her mother, even more so now that her brothers have determined themselves to move out of their father’s home and into their mother’s home. However, whether they were there or not, I consider that she should continue to live with her mother. That was the ultimate recommendation of the psychologist who had done the three family reports in 2010 and 2011 and she maintained that position under cross-examination from the Father during the trial.

23. The Father pressed a number of issues at the trial and in the further hearings after the trial as to why the child should be living with him. He pointed to things like the Mother’s history of marijuana use, the instability in her housing arrangements since separation, the exposure of the child to the risk of physical and emotional harm such as in the incident of violence that took place outside the home in which they were living in the second half of 2012, as relevant to the determination.

1. Interestingly, just as the family report writer had sensed through her interviews of the Father, I, too, got a sense that the Father’s motivation in getting orders from the Court that all of the children live with him, had a lot to do with a perception that he held that it would assist him in obtaining the greater share of the property division that he was seeking to obtain, and a lot less to do with his views of the Mother’s parenting capacities. In this regard, the family report writer observed in her first report that the Father had not expressed concerns about the mother’s parenting ability, having previously conceded that she had been a competent parent.

2. I am satisfied that the Mother had been the parent who provided the majority of the parenting to E during the parents’ cohabitation, whilst the Father devoted himself to running their business. The family report writer’s recommendations were also based on her assessment, which I accept, that E’s emotional attachment was primarily with her mother, who, she also opined, could best meet her developmental needs, particularly at this point in E’s life. I accept that opinion too.

3. Although I was troubled by the Mother’s use of marijuana, which she conceded had endured over many years, and I did not believe her assertions given at the trial that she had recently given it up, I did consider that she was very mindful of the need to shield her children from her use of the drug and its effect on her. I do not consider it to be a determinative factor in this case that would mandate a parenting order that E go back to live with her father. I will, however, make an order restraining her from being under the influence of illegal drugs whilst E is in her immediate care.

4. Whilst I accept that the Mother had lived in several homes since the separation and that she moved again even after the trial was concluded and may very well have had to move again since then, she herself put this relative instability down to her financial circumstances that have prevented her from doing anything other than living in share accommodation or rental arrangements. It is hoped, even anticipated, that with the property adjustment orders that I will make in these proceedings that the Mother’s financial situation will improve so that she can maintain a little more residential stability in the future, but, again, I do not consider that the fact that the Mother has had several different homes in the last few years is determinative of these proceedings in the Father’s favour. The evidence establishes that the Father is also going to have to look around for alternative accommodation with the sale of the former family home that will be required by the property adjustment orders. The immediate future of his living arrangements appears no more stable than the Mother’s.

5. I am satisfied, on the evidence, that a terribly shocking incident of violence occurred outside the home in which the Mother and child were living in November 2012. The Father had every right to be concerned for the welfare of E in those circumstances, made less than clear to him by the parties’ inability to be able to communicate amicably about matters. However, I do accept the Mother’s evidence that she acted quite protectively of the child on that occasion, making sure that she was safe inside the home, taking her away from that home as soon as she could and moving out of that home to another home soon thereafter. This was appropriate parenting in the circumstances and demonstrates that the Mother, despite her personality vulnerabilities, is able to put her daughter’s welfare foremost.

6. I accept the Mother’s evidence that the Father has an inflexible approach to interacting with her and with respect to his parenting. I am satisfied that this inflexibility has been a big contributor to the apparent breakdown of his relationship with his teenage sons. I do not expect that the prospects for his relationship with the young teenager, E, would be much better if I was to order that she go back now to live with her father. I will not be doing that.

7. I do consider that it is important for E’s development into adulthood that she does continue to communicate with and to spend time with her father at this stage of her life. Unlike her older brothers, I do not think E is yet at the age where no order at all should be made for her to communicate with and spend time with her father. I will make an order that provides for E to continue to spend time with her father from after school on Friday to 6:00 pm on Sunday each alternate weekend during school terms and for such time as may be agreed between the Father and E during her school holidays. I will order that she can communicate with her father by telephone or email at her discretion and that her Mother must ensure that she has that capacity. I will make similar provision for her contact with her mother when she is with her father. I will also order that the ICL explain this part of the orders to E before she is formally discharged from that role.

8. Finally, in respect of the parenting dispute, I am quite satisfied that it is not in the best interests of E for her parents to share parental responsibility for her. They cannot communicate reasonably and civilly with each other at all. The evidence in this case demonstrates that conclusively. I am satisfied, having regard to their personalities and all that I have read and seen in this case that they will not be able to do so, at least whilst this child is still a child. It is not in the child’s interest for an order to be made that requires them to have to jointly reach decisions about the major long-term issues with respect to the child where I am satisfied that they just cannot and will not be able to do that.  I will make an order that confers sole parental responsibility for the child on the Mother but I will order that she notifies the Father of any decision she makes in respect of major long-term issues in respect of E.

The Property Adjustment Proceedings

1. There is no dispute that the Mother and the Father lived in a “de facto relationship” within the meaning of that term as defined in the Family Law Act. There is also no dispute that it lasted for around 20 years and ended after 1 March 2009. Accordingly, this Court has jurisdiction to make property adjustment orders as between these two parties pursuant to s 90SM of the FLA. I am quite satisfied that property adjustment orders in this case are required in order to do justice and equity between the parties. They have a property registered in their joint names the disposition of which they cannot agree upon. Each party argues for property adjustment. There is nothing about the facts of the case that persuades me that adjustment orders are not required. 

2. The property of the parties against which they agreed that appropriate property adjustment orders are to be made is:

Property at Town C via Town A	Registered in the names of the Father and the Mother	Value said to be $255,000
Toyota motor vehicle	In Father’s possession	Value $14,000
Household contents	In Father’s possession	Value $6,000
Sub-total	$275,000
Less liabilities
Mortgage debt to Heritage secured over Town C property	Approximately $49,000
Rates owing in respect of Town C property at separation	$662.74
Joint credit card debt at separation	$2,000
Liability to Lion Finance at time of trial	$32,018
Net Total	$191,319

1. As to those assets, the Father read an affidavit attaching a valuation of the real property conducted by a valuer as at 1 March 2012. The Mother said she thought the property was worth more than that, more like $300,000. That said, I accept the valuer’s opinion evidence.

2. The Toyota motor vehicle and the household contents in the Husband’s possession were the only other items of property that the parties agreed existed and about which there was no issue as to the value to be ascribed to them.

3. As to the mortgage debt secured over the property, it was said to have been about $53,000 at separation. The Father was apparently paying that mortgage debt whilst occupying the property after separation but at some point apparently stopped paying it. Evidence I gave the Wife leave to file and rely upon at one of the hearings that took place last year, satisfies me that the Father did stop paying the mortgage. I find that he did that after he realised, following one of the earlier hearings, that the property was probably going to have to be sold to provide for property adjustment in this case. I consider it appropriate and just and equitable to order that any amount that the mortgage debt is in arrears by at the time of the settlement of the sale of the property is to be deducted from the Father’s share of the sale proceeds otherwise determined pursuant to the orders that will be made. That determination is best given effect to by an “add-back” to the notional property pool when the amount is determined.

4. Additionally, there is evidence that satisfies me that the couple owed rates on the property of $662.74 as at the time of their separation. However, since then the evidence establishes that the Father has not paid any rates on the property as and when they have fallen due. At 21 March 2013, the outstanding rates were $7,770.39. At the trial, the Father conceded that he would be solely responsible for all of the outstanding rates beyond those owed at separation. I consider that appropriate and just and equitable in the circumstances. Accordingly, the orders I make will also provide for those to be deducted from the Father’s share of the sale proceeds otherwise determined pursuant to the orders that will be made. That, too, is best given effect to by an “add-back” to the notional property pool when the amount is determined.

5. The Mother and Father agreed that the joint credit card debt of $2,000 that existed at separation should be taken into account in determining the appropriate orders. The Mother did not agree that the Lion Finance debt of $32,018 should be taken into account. She attempted to mount an argument that it was the sole responsibility of the Father. I did not entirely understand her argument, but, in any event, was satisfied, as she asserted a lot of it was business debt that arose out of the business that the parties conducted up to separation, that it is appropriate to take it into account in determining the appropriate orders to be made.

6. Accordingly, the net property interests of the parties against which appropriate property adjustment orders are to be determined are likely to be worth somewhere around $191,000 but will be further affected by any costs of sale of the real property and the additional liabilities that would come off the sale proceeds for which the Father is to be solely responsible.

7. As to contributions, there is dispute between the parties as to the contribution each made to the deposit that was put on the Town C property when it was first purchased. It is agreed the Mother contributed funds from a property division from an earlier relationship, but the Father says that he contributed savings towards it as well on an equal footing.

8. The Mother’s evidence was that she received approximately $20,000 in that property division in 1993. They bought Town C for $37,800, using her money for the deposit and to purchase a caravan that was placed on the property that they stayed in when visiting the property until they built the house there and moved into it.

9. The Father did not challenge that evidence in cross-examination, merely asserting at some point in his submissions that he put just as much into it from his savings. On balance, I accept the Mother’s evidence. However, as that event occurred very early in the relationship that then lasted 20 years and produced five children, I have to be mindful not to give it too much weight in assessing the contributions each made throughout their relationship.

10. The parties had five children. The Mother principally cared for them throughout the relationship. They operated a couple of small businesses that the Father managed principally, but in which the Mother also assisted from time to time as she could. The businesses did not generate much income and the family received low income family assistance from the Commonwealth during their relationship.

11. The Father received a very modest inheritance from his late mother’s estate towards the end of the relationship and that was used towards purchasing a jet ski that the family used.

12. After separation, the Father continued in occupation of the former family home, paying mortgage instalments until he ceased doing that in 2013. He also undertook some limited maintenance and renovations to the home which I consider to be a contribution by him. The couple have each contributed to parenting the children since separation.

13. On balance, I assess the contributions of the Mother and the Father to equal each other out in this case and, having regard to those contributions alone, I would consider a notional equal division appropriate.

14. However, I am also required to consider other matters pursuant to s 90SM(4)(d)-(g) such as the matters set out in s 90SF(3), in so far as they are relevant, child support that has been provided by a party or that a party might be liable to pay in the future and the impact upon earning capacity of the parties that any proposed order might have.

15. Most relevant of all, I consider to be the fact that the Mother now has all three children who are under 18 living with her. The youngest child is 13 and is likely to have to be provided for by the Mother for a few years yet. The Mother has no real earning capacity. She was only educated until very early in her teens, is virtually illiterate and has devoted herself to parenting for most of her adult life, only ever working in the last 20 years in the family business, answering calls and doing some administration tasks. Her personality, as I observed it, is such that I consider she would find it extremely difficult to obtain any form of paid employment. She can only really look forward to continued receipt of social security financial assistance and interest earned on the money she receives as a result of these proceedings for income support. She is almost 45 years of age.

16. The Father, at the time of the trial, was not working either. He had hurt his back and informed the Court that he would be having some surgery on his back. There was no medical evidence adduced by him though. He was not running the businesses any more, as I understood the evidence, but indeed he assured the Court that he was resourceful and possessed a good work ethic, such that he was confident that he would be able to find some form of gainful employment in the future. He is 51 years of age at present. Whilst he did not receive any child support from the Mother whilst the children lived with him, he has not been able to pay her any for the time that he has been out of work and for as long as he remains out of work, the Mother cannot expect to receive any child support from him either.

17. I am satisfied,  having regard to the relatively small amount of property that there is to divide up between the parties, that the matters I have just considered justify a 10 per cent further adjustment in favour of the Mother. Accordingly, I determine that a division of their property interests as to 60 per cent to the Mother and as to 40 per cent to the Father will be the basis of appropriate property adjustment orders that are just and equitable.

What are the appropriate Orders?

1. On a net pool of something around $191,000, the Mother would be entitled, on a 60/40 division in her favour to receive an amount of around $114,600.  The Father informed the Court that although he wanted to be able to retain the property, he had learned that he only had capacity to refinance the debt to the limit of $100,000, and that included the refinance of the existing mortgage debt of $49,000 and the amount he would have to pay the Mother. Clearly, he cannot do that and the property will have to be sold.

2. I am not satisfied that leaving the sale of the property in the hands of the Father and the Mother will achieve success. I do not expect either of them to get satisfaction in the process or the outcome if I do that. Similarly, putting the sale in the hands of one of them alone is just as likely to be productive of unhappiness, dissatisfaction and lack of success. I asked the couple why an independent trustee for the sale of the property should not be appointed in these circumstances and neither argued strongly against the proposition. Accordingly, I consider that the appropriate thing to do in this case.

3. The Brisbane family law solicitor, Mr Peter Sheehy, is a very experienced, trusted and reliable solicitor who has acted, on the appointment of the Court, as trustee for the sale of businesses and real properties on many occasions in the past. Although no consent to the appointment as trustee for the sale of this property has been filed in the Court by Mr Sheehy, I consider it appropriate to appoint him as trustee to sell the parties’ property in this case and to distribute the funds to them in accordance with my orders. Of course, I will make the order appointing him conditional upon his acceptance of the role in this case, and I will further order that he be provided with a copy of these reasons for judgment and that he is at liberty to inspect and read the Court file in the matter if he considers it necessary to understand any of the background of the matter. If Mr Sheehy refuses to accept the appointment, the matter is to be relisted before me for further consideration as to who should be appointed to the role. Mr Sheehy’s reasonable professional fees incurred in performing the role, if he accepts it, will be payable by the parties out of the proceeds of sale of the property. I will make ancillary orders that I consider appropriate.

4. Finally, the Father asked the Court to make orders that the Mother pay for repairs to some rings that belonged to his late mother that he retains. He blames the Mother for their need for further repair work as he alleges they were not properly repaired by a jeweller she apparently engaged to do some work on them at some point during the relationship. I do not consider that the Father has discharged the evidentiary burden upon him to persuade the Court that such an order is appropriate. I will make no such order.

5. For all of the above reasons, I make the orders that are set out at the commencement of these reasons. I consider the property adjustment orders to be made to be appropriate and, in all the circumstances of the case, just and equitable as between the parties.

6. I apologise to the parties for the length of time it has taken me to consider and deliver judgment in this matter. I appreciate the additional concern and anxiety this delay will have caused them both over and above that which they were already experiencing through their relationship conflict and involvement in litigation, particularly without legal representation. The responsibility to hear and determine so many other cases in this Court over the last year or so is what I attribute the delay to. I understand that will give the parties little comfort. It is only hoped that receipt of this judgment now will give the parties the opportunity to move on with their lives with less conflict and in a more productive and child focused manner.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 January 2014.

Associate: 

Date:  17 January 2014