MULLAN & PRESTON
[2019] FCCA 1129
•8 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MULLAN & PRESTON | [2019] FCCA 1129 |
| Catchwords: FAMILY LAW – De facto – dispute over length of de facto relationship – Held de facto relationship commenced in … 2011 and concluded in March 2013. FAMILY LAW – Property – dispute over property division – Held two pool approach required with mother to receive 45% of the relevant property pool acquired between parties. |
| Legislation: Family Law Act 1975, ss.4AA, 60CA, 61DA, 65DAA, 90RD, 90SM, 90SF, Pt VII, Pt VIIIAB |
| Cases cited: Anson & Meek [2017] FamCAFC 257 |
| Applicant: | MS MULLAN |
| Respondent: | MR PRESTON |
| File Number: | NCC 1851 of 2014 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 8 May 2017, 9 May 2017, 10 May 2017, 11 May 2017, 12 May 2017, 22 November 2017 and 1 June 2018 |
| Date of Last Submission: | 14 September 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 8 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tregilgas |
| Solicitors for the Applicant: | Bale Boshev Lawyers |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Hunter Family Law Centre Pty Ltd |
FINAL PARENTING ORDERS
All previous parenting orders and parenting plans are hereby discharged.
The child [X] born on … 2011 live with the mother.
The parties have equal shared parental responsibility for the child.
The parties have sole parental responsibility for making day-to-day decisions for the child when the child is in their respective care.
Unless otherwise agreed between the parties the father spend time with and communicate with the child as follows:-
(a)During school terms:-
i)Each alternate weekend from after school Friday (or 3.00pm if a non-school day) to before school (or 9.00am if a non-school day) Tuesday with such weekends to coincide with when the child’s cousin [A] is spending time with his father, the paternal uncle.
ii)In each other week from after school (or 3.00pm if a non-school day) Tuesday to before school (or 9.00am if a non-school day) Wednesday.
(b)In even numbered years for the first half of the Term 1, Term 2 and Term 3 school holidays from after school on the last day of term to 3.00pm on the second Sunday of the school holidays.
(c)In odd numbered years for the second half of the Term 1, Term 2, and Term 3 school holidays from 3.00pm on the second Sunday to before school on the first day of term.
(d)In even numbered years for the first half of the Term 4 school holidays from after school on the last day of term to 3.00pm on 8 January.
(e)In odd numbered years for the second half of the Term 4 school holidays from 3.00pm on 8 January to before school on the first day of term.
(f)In even numbered years from 2.00pm Christmas Day to 2.00pm Boxing Day.
(g)In odd numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day.
(h)From 9.00am Saturday to before school (or 9.00am if a non-school day) Monday on the Father’s Day weekend.
(i)From 3.00pm to 7.00pm on the father’s birthday and the child’s paternal sibling’s birthday.
(j)If a non-school day from 9.00am to 2.00pm and if a school day from after school to 5.30pm on the child’s birthday.
(k)Telephone communication as reasonably requested by the child.
Should the child not otherwise be in the mother’s care, the mother spend time and communicate with the child, unless otherwise agreed between the parties, as follows:-
(a)In odd numbered years from 2.00pm Christmas Day to 2.00pm Boxing Day.
(b)In even numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day.
(c)From 9.00am Saturday to before school (or 9.00am if a non-school day) Monday on the Mother’s Day weekend.
(d)From 3.00pm to 7.00pm on the mother’s birthday and the child’s maternal sibling’s birthday.
(e)If a non-school day from 9.00am to 2.00pm and if a school day from after school to 5.30pm on the child’s birthday.
(f)Telephone communication as reasonably requested by the child.
That on a school day changeover occur at the child’s school, unless otherwise agreed between the parties changeover occur at the commencement of time at Suburb B McDonalds and at the conclusion of time at Suburb C McDonalds.
That the parties be at liberty to travel overseas with the child during their time with the child provided:-
(a)The parties share equally in the costs of and sign whatever documents as required to obtain a passport and renewal of passport for the child.
(b)The child’s passport be retained by the mother and provided to the father 14 days prior to overseas travel with the father to return the child to the mother within 14 days of returning from overseas travel.
(c)That 28 days prior to departure for overseas travel the travelling party provide to the other party:-
(i)Copies of return tickets.
(ii)An itinerary setting out names, addresses and telephone numbers as to where the child will be travelling.
The parties to notify each other as soon as reasonably practicable should the child require medical attention from a health professional when the child is in their respective care.
The parties be at liberty to obtain at their own expense the child’s medical records and consult any treating health professional to obtain information as to the child with these orders being sufficient authority for that purpose.
The parties be at liberty to obtain at their own expense the child’s school records, including reports and school photos with these orders being sufficient authority for that purpose.
The parties be at liberty to attend any school events where parents are invited to attend such as sport’s days and parent teacher interviews.
Neither party shall denigrate the other party, or any relative of the other party, in the presence or hearing of the child, nor allow the child to remain in the presence or hearing of any other person acting in that manner.
FINAL PROPERTY ORDERS
Pursuant to section 90RD(2)(a) Family Law Act 1975 a declaration is hereby made that the de facto relationship between the parties commenced in … 2011 and concluded in March 2013.
As from the date hereof the mother have the sole use and ownership to the exclusion of the father the following property:-
(a)The real property at Property D in the State of New South Wales with the parties forthwith to take whatever steps are necessary and sign whatever documents are required to remove the father’s name as guarantor as named on the mortgage over Property D.
(b)The real property at Property E in the State of New South Wales (Property E property).
(c)Motor Vehicle F.
(d)Superannuation policies in the mother’s name.
(e)All other property in the mother’s name including bank accounts and personal effects.
The mother shall indemnify and keep indemnified the father against any liability in respect to the mortgage secured over the Property D property.
As from the date hereof the father have the sole use and ownership to the exclusion of the mother the following property:-
(a)The real property at Property F in the State of New South Wales.
(b)The real property at Property G in the State of New South Wales.
(c)The real property at Property H in the State of Queensland.
(d)The guitar collection.
(e)The father’s motor vehicle.
(f)Superannuation policies in the father’s name.
(g)All other property in the father’s name including bank accounts and personal effects
That otherwise each party shall indemnify and keep indemnified the other party as to any debts in their respective names, including debts owed to family members.
Within 42 days from the date hereof the father pay to the mother the sum of $99,345.
That contemporaneously upon the payment of the sum of $99,345 referred to above the parties shall do all such acts and things as are necessary and sign any such documents as are required to:
(a)Transfer to the father at the father’s expense the property at Property B in the State of New South Wales more particularly described as Folio identifier … (the Property B property).
(b)Discharge at the father’s expense the existing mortgage over the Property B property so that any further mortgage is in the name of the father only.
The father shall indemnify and keep indemnified the mother against any liability in respect to the new mortgage in the father’s name to be secured over the Property B property.
That in the event of either party refusing or neglecting to sign any documents in order to give effect to these orders then the Registrar of the Federal Circuit Court is hereby appointed to execute such documents on behalf of the defaulting party in accordance with section 106A Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Mullan & Preston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1851 of 2014
| MS MULLAN |
Applicant
And
| MR PRESTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of [X] aged 7½.
The parties are in dispute as to the future parenting arrangements for [X], the length of the de facto relationship and as to the division of the de facto property pool.
Evidence
In considering the issues regard has been had to:-
a)The material as marked on the court file.
b)Previous court orders.
c)Notices of Risk.
d)The exhibits.
e)The oral evidence of the parties and witnesses.
f)The family report of Dr J released in February 2016.
g)The written submissions of the parties.
h)Part VII Family Law Act 1975.
i)Part VIIIAB Family Law Act 1975.
j)Relevant authorities.
The parties are legally represented.
For the mother the following witnesses were called and cross-examined:-
a)The mother.
b)Mr K (the mother’s de facto partner) (Mr K).
c)Ms L (the mother’s sister) (Ms L),
I find the mother and her witnesses to be credible witnesses.
The mother’s witness, Mr M, Certified Practising Valuer, was not required for cross-examination.
For the father the following witnesses were called and cross-examined:
a)The father.
b)Ms N (paternal grandmother).
I find the father and his witnesses to be credible witnesses.
The father’s witness, Mr O, tax accountant, was not required for cross-examination.
In addition to the parties and their witnesses, the family report writer was cross-examined.
I find the family report writer to be a credible witness and give weight to the family report and her oral evidence.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Comment as to delay
In fairness to the parties comment must be made as to the significant delays which have plagued this matter since its commencement in 2014:
a)November 2016: The matter was first listed for final hearing after the completion of the family report in early 2016 but the final hearing did not proceed and the matter was listed for final hearing in March 2017.
b)March 2017. The final hearing did not proceed and the matter was listed for final hearing in May 2017.
c)May 2017. The final hearing ran over five days but remained part heard as the family report writer had not been cross-examined.
d)September 2017. The matter was listed for completion but the date was administratively adjourned to November 2017 at the request of the parties, as counsel was not available.
e)November 2017. The matter was listed for completion but could not proceed as the parties had failed to ensure the family report writer was available for cross-examination.
f)March 2018. The matter was listed for completion but that date was administratively adjourned at the request of the parties, as counsel was not available.
g)June 2018. The family report writer was cross-examined but as there was insufficient time for submissions then directions were made as to the filing of written submissions by early August 2018.
h)September 2018. The final submissions were filed.
Background
The relevant background is as follows:-
a)The mother is aged 37 and is a health care worker.
b)The father is aged 50 and is an entertainer.
c)In … 2011 [X] was born.
d)The de facto relationship ended in early 2013.
e)After separation the father spent time with the child as organised with the mother including frequent daytime periods and overnight, as illustrated by the father’s calendar entries.
f)In July 2014 the mother commenced property proceedings
g)In December 2014, the father filed his response, which included parenting proceedings.
h)In December 2014 the parties entered into interim consent orders whereby:
i)The parties have equal shared parental responsibility for the child.
ii)The child live with the mother.
iii)The child spend time with the father each Tuesday night and from 10.00am to 2.00pm each Sunday.
i)In April 2015 the parties entered into further interim consent orders whereby the father’s time with the child increase:-
i)To each Tuesday night.
ii)From 9.30am Saturday morning to 4.00pm Sunday night each alternate weekend.
j)In early 2016 the mother commenced cohabitation with Mr K (Mr K).
k)During 2016 the father was in a relationship with Ms P, a relationship that ended around September 2016.
l)In August 2016 the father completed a “Designed for Dads” course.
m)In … 2016 [Q] was born to the mother and Mr K.
n)In … 2017 [R] was born to the father and Ms P.
o)In Mid 2017 the matter proceeded to a final hearing.
Agreed orders
The parties failed to reach agreement as to agreed orders in both parenting and property matters.
Areas of determination
I will now address the three areas requiring determination:-
a)What parenting orders are to be made?
b)What was the length of the de facto relationship?
c)What division is to occur of the de facto property pool?
Parenting
Commonality of orders
Although no agreed orders were made, there is, upon reading the parties’ proposals commonality as to the following orders:-
a)The parties have equal shared parental responsibility for the child for all major long-term decisions except for medical issues.
b)Non-denigration orders.
c)Notification in the event the child requires medical attention when in the respective parties care.
d)Changeover to occur at school on a school day.
These orders are included in the final parenting orders.
Mother’s proposal
The mother is seeking the following orders:-
a)The child live with the mother.
b)The mother have sole parental responsibility for major long-term decisions as to medical issues for the child in the event the parties cannot agree to a decision after consultation.
c)The father spend time with the child as can be agreed upon in writing between the parties failing which as follows:-
i)During school terms every second weekend from after school Friday to 9.00am Monday.
ii)During school holidays in Term 1, 2 and 3 for the first week of the school holidays in even numbered years from 9.00am Monday to 5.00pm Friday and for the second week of the school holidays in odd numbered years from 9.00am Monday to 5.00pm Friday.
iii)During school holidays in Term 4 for the first half of the school holidays in even numbered years and the second half of school holidays in odd numbered years with the changeover date to be 8 January.
iv)That for the school holidays if the father is not working, then the father can upon providing at least 28 days’ notice spend an additional three adjoining nights with the child, with details to be provided if the father is proposing to travel with the child.
v)If the child is not otherwise with the father, the father spend special event time with the child as follows:-
· If the father is not working from 9.00am Father’s Day to 9.00am the following Monday.
· From 3.00pm (or after school) on the father’s birthday to 9.00am the following day.
· If a non school day from 9.00am to 2.00pm and if a school day from after school to 5.30pm on the child’s birthday.
· In even numbered years from 10.30am to 4.00pm Christmas Day.
· In odd numbered years from 4.00pm Christmas Day to 4.00pm Boxing Day.
· For four hours on the child’s sibling’s birthday provided notice is provided and does not coincide with school, extracurricular activities or child’s holiday time with mother.
d)If the child is otherwise not in the mother’s care, the mother spend time with the child as follows:-
i)From 9.00am Mother’s Day to 9.00am the following Monday.
ii)From 9.00am on the mother’s birthday to 9.00am the following day.
iii)For four hours on the child’s sibling’s birthday provided notice is provided and does not coincide with school, extracurricular activities or child’s holiday time with father.
iv)If a non-school day from 9.00am to 2.00pm and if a school day from after school to 5.30pm on the child’s birthday.
v)In even numbered years from 6.00pm Christmas Eve to 10.30am Christmas Day and 4.00pm Christmas Day to 4.00pm Boxing Day and in odd numbered years from 4.00pm Christmas Eve to 4.00pm Christmas Day.
vi)From 5.00pm Friday to 9.00am Monday each weekend during Term 4 school holidays.
vii)From after school on the last day of each term to 9.00am the following day.
viii)From 5.00pm two days before the commencement of each school term to 9.00am on the first day of each school term.
e)The parties be permitted to travel overseas with the child provided the father not be engaged in paid or unpaid employment unless otherwise agreed, with the mother to retain the passport when the child is not travelling overseas.
f)On a non-school day changeover to occur at Suburb D McDonalds.
g)That unless otherwise agreed the child is to be only taken to church and religious events conducted by the Anglican or Catholic faith.
h)That unless otherwise agreed the child is not to attend any licenced premises where the father or the paternal uncle are performing musical services.
Father’s proposal
The father is seeking the following orders:-
a)The father spend time with the child as follows:-
i)During school terms and the Term 1, 2 and 3 school holidays week about from after school Friday (or 3.00pm if a non- school day) to after school Friday (or 3.00pm if a non-school day) with such time to coincide with time he can spend with the paternal cousin [A].
ii)During Term 4 school holidays in even numbered years from after school on the last day of term to 3.00pm on 8 January and in odd numbered years from 8 January to 3.00m on the first day of school.
iii)If the child is not otherwise with the father, the father spend special event time with the child as follows:-
· In even numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day and in odd numbered years from 2.00pm Christmas day to 2.00pm Boxing Day.
· On the Father’s Day weekend from 5.00pm Saturday to before school Monday.
· From 3.00pm to 7.00pm on the father’s birthday and the child’s sibling’s birthday.
b)The child shall live with the mother at all other times.
c)If the child is otherwise not in the mother’s care, the mother spend time with the child as follows:-
i)In odd numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day and in even numbered years from 2.00pm Christmas day to 2.00pm Boxing Day.
ii)On the Mother’s Day weekend from 5.00pm Saturday to before school Monday.
iii)From 3.00pm to 7.00pm on the mother’s birthday and the child’s sibling’s birthday.
d)The child have reasonable electronic communication with each party.
e)The parties be permitted to travel internationally with the child.
f)The parties be permitted to obtain the child’s medical and educational records.
g)The parties be permitted to attend the school and school functions.
Issues
The issues for determination are:-
a)Parental responsibility for the child.
b)Whether there should be an order for equal time.
c)If not what time the father is to spend with the child.
I now turn to the law.
The law
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
But, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations and the leading authority of Mazorski v Albright (2007) 37 Fam LR, Brown J refers to such considerations as “the twin pillars”:-
a)Where the first pillar is the importance of a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, sections 61DA and 65DAA come into play, because if the child is subject to an equal shared parental responsibility order, then equal or substantial and significant amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
This distinct pathway, which applies to parenting matters when an equal shared parental responsibility order has been made, is the subject of much discussion by the High Court in MRR v GR (2010) 263 ALR at [368].
Before determining which of the primary and additional considerations are to be taken into account, comment is required as to the concerns raised by the mother.
Mother’s concerns at the family report interviews
The family report interviews took place in early 2016 when [X] was just over 4 years of age and the father had been spending time with the child (in accordance with the April 2015 interim court order) on Tuesday nights and alternate weekends from Saturday to Sunday.
The parties had also successfully arranged for the father to spend time with [X] over Christmas, Father’s Day and the child’s birthday ([11] and [12] family report).
The mother indicated during the interviews that she was supportive of the father’s relationship with [X] stating:-
a)“She feels that it very important for [X] to have a good relationship with his father” ([28] family report).
b)“Mr Preston loves [X], there’s love there, he can be quite funny” ([29] family report).
The father held no concerns as to the mother’s parenting of [X] stating:
a)“He has no concerns about” the mother’s “parenting” ([55] family report).
b)“She’s always been a great mother, [X] is a testament to the education she gives him, he knows his maths and alphabet, she’s doing lots of stuff right” ([55] family report).
The mother however raised the following concerns as to the father’s care for [X]:-
a)The mother and father “were different people with different morals and different lifestyles” ([23] family report).
b)The father has a “lack of focus on [X]” ([33] family report) and the mother “did not feel that the subject child was a priority for” the father “until more recently” ([26] family report).
c)The father’s “lack of routine for [X] and the impact that this has on the subject child’s behaviour for several days after returning into her care… settling him at bed time and waking him in the morning… [X] is also more moody, irritable, emotional and tired throughout the day and has started bedwetting which she has attributed this to his routine” ([30] family report) and how it “is having an impact on [X]’s day to day functioning, his ability to engage with others as he had missed participating in activities such as swimming as he has slept in and he has less energy and increased moodiness after staying with” the father ([32] family report).
d)The mother is seeking time arrangements that will minimise “the time that [X] spends at pubs and clubs with his father while he is working” as “she does not feel these are appropriate venues for a young child to spend any significant time as she worries about the impact of him being around people drinking and the potential for him to be unsafe in these environments” ([36] family report).
e)Because the father works on weekend nights the mother is concerned that the child “often stays with his paternal grandmother Nanny Ms N” and the mother “worries that spending time at a third residence may cause undue confusion for [X]” ([37] family report).
In respect to the concerns the family report captured the following:
a)As to bed time routine:
i)The father “confirmed… that [X] does go to bed at various times when staying with him and had gone to bed as later as 10pm” ([31] family report), explaining in cross-examination that the late night was due to one special occasion.
ii)The father said “[X] will often wake during the night and come into his bed or he will fall asleep in” the father’s “bed after reading a story and will stay there, although he did clarify sometimes he will take [X] to his own bed” ([60] family report).
iii)The father “appreciates the need for sleep routine when [X] is at school and suggested 8 to 8.30 would be appropriate” ([59] family report).
iv)The family report writer recommended “the child have a consistent bedtime, such as by 8pm, particularly as he approaches school age as sleep can have a significant impact on his mood, concentration and overall well-being” ([111] family report).
b)As to the child staying with the paternal grandmother:-
i)“[X] reported that he goes to 2 houses, his mum’s and his dad’s and that he has 2 grandmas ,grandma Ms N and just grandma’ and he likes spending time with both of them” ([77] family report).
c)As to pubs and clubs:
i)The family report writer concluded as to “concerns about [X] spending time in pubs and clubs while” the father “is working, it may be most appropriate for the subject child to be cared for by his Grandmother at these times as has happened in the past, particularly when considering the importance bed time and routine as well as minimising any potential risks associated with being in close proximity to intoxicated people” ([116] family report).
Despite these concerns the mother’s proposal was:
a)For the father to spend three nights a fortnight with the child each alternate weekend from Saturday morning to Tuesday afternoon.
b)Each other week on Monday afternoons to 6.30pm ([107] and [108] family report).
The father’s proposal was:-
a)For the father to spend five nights a fortnight with child consisting of each alternate weekend from Saturday morning to Tuesday afternoon as well from Monday morning to Wednesday morning each other week ([108] family report).
b)That the weekend time coincide with when the paternal uncle has care of [A], [X]’s cousin as “to allow [X] to play and spend time with his cousin as they are close in age and have a close relationship” ([107] family report).
During the family report interviews it was noted:
a)“[X] appeared calm talking about his parents and them living in separate houses and there was no signs of distress throughout the brief interview” ([77] family report).
b)“When asked if [X] if he had any worries, he stated ‘no not really, no” ([78] family report).
c)“[X] separated well from his mother and hugged and kissed her. There were no signs of distress or upset” ([92] family report).
d)“[X] separated well from” the father “and there were no signs of distress or upset” ([101] family report).
e)There were no difficulties observed with the parties interaction with [X] with the family report writer noting:-
i)With the mother:
·The mother “and [X] appeared to have a warm and loving relationship” ([82] family report).
·“[X] was affectionate, kissing his mum and leaning against her while they played together” ([82] family report).
·“[X] was enthusiastic and animated throughout the observation with his mother and they seemed to enjoy spending time together” ([86] family report).
ii)With Mr K:
·“[X] seemed comfortable” with Mr K ([91] family report).
iii)With the father:
·“[X] was excited to see his dad, running to hug him and sitting on his lap in the waiting room” ([93] family report).
·“[X] was chatty and seemed happy with his father” ([94] family report).
·“[X] and his dad laughed together during the observation and [X] was affectionate towards his dad, leaning against him, sitting on his lap and he kissed him” at the father’s “request” ([99] family report).
iv)With extended family members:
·“[X] talked animatedly and excitably about his love of games, music and school as well as spending time with his cousins [S], [T] and [A]” ([76] family report).
The family report writer concluded:
a)“Both parents acknowledge the importance of each other being a part of [X]’s life and they identified the positive relationship that the other parent has with the subject child” ([103] family report).
b)“It was evident in the observations between the subject child and his parents, that [X] had a good attachment to both the mother and the father” (102] family report).
c)“It is therefore important for him to maintain regular contact with both parents” ([102] family report).
Mother’s concerns at the final hearing
At the commencement of the final hearing, the mother maintained her position of three nights a fortnight during school terms (continuing in the same weekends so that time did not coincide with [A]’s availability) with block periods during school holidays (not to include weekends).
During cross-examination:-
a)In answer to the questions “Mr Preston has a good relationship with [X]” and “[X] loves you both” the mother answered “yes”.
b)In answer to the question “so if you can trust Mr Preston to be looking after him for four full days, surely you can trust Mr Preston to make sure that [X] is cared for if Mr Preston has got to go away to work for a few hours, can’t you?” the mother answered “yes, [X] will be safe”.
c)In answer to the question “you’ve brought no evidence to the court where Mr Preston has put [X] in harm’s way while he’s spending time with him, have you?” the mother answered “no. I haven’t… my concerns aren’t about safety. My concerns are about [X]’s welfare; his routine… not danger as such; physical danger”.
d)The mother said, “I guess the trust issues between us are that Mr Preston says one thing but his actions are otherwise. And Mr Preston is more than aware that I’m worried about [X]’s routine, and he has had all this time to work at it and he hasn’t made any changes. I wish I could say that he has, and I said to him from very early on, “I’d like you to have more time – more nights with [X], because it would be good for [X]; it would be good for me. But until I start seeing his behaviour improve after your visits, I can’t – I can’t let that happen”.
e)The mother still had reservations as to the paternal grandmother caring for [X] when the father was at work, even though the mother is in a similar situation where Mr K cares for the child when the mother is working.
f)The mother acknowledged that both parties had completed parenting courses.
As to what are the current issues, the following lengthy but informative exchange between the bench and the mother outlined the continued concerns of the mother:-
Judge: “What’s your main beef with dad? What do you see is problematic in dad spending longer periods of time with [X]?”
Mother: “It’s all about [X]’s behaviour when he returns from Mr Preston’s”
Judge: “But you would know in your role…that’s not uncommon for children to play up after they’ve spent time with the other parent?”
Mother: “I feel it’s more than just playing up”
Judge: “Well what have you done about it? Have you taken the child to see anyone to have that behaviour assessed?”
Mother: “No, because once he’s back in my care and he’s settled into a bit of a routine, that behaviour disappears again, so it’s a sort of a roller coaster”
Judge: “So it’s transitional behaviour which I can indicate to you, having presided for a number of years and …doing family law for tens and tens of years, that it’s not uncommon. So putting that issue aside, what are your other concerns about the father?”
Mother: “None really. It’s all – it is – it’s all about the routine. I’m genuinely worried for [X]”
Judge: “But why? But you’ve not been able to articulate why it is that you’re genuinely worried for [X]?”
Mother: “Because of the behaviour when he returns. So he’s just – it takes him days. And now that he’s at school, I am worried – I do think it affects his behaviour and how he interacts with the world and his learning capacity”
Judge: “But you’ve not worried enough to get any assistance for either you or [X] in handling that behaviour?”
Mother: “Do you mean like from a – an assessment by a paediatrician?”
Judge: “Or a therapist or counsellor?”
Mother: “I’ve also spoken to a psychologist about that. But to me it’s just… over-tired behaviour”
Judge: “But there’s no evidence?”
Mother: “There’s no underlying evidence – there’s no – sorry there’s no underlying diagnoses… it’s not been diagnosed”
Judge: “And there’s no evidence before the court about what a psychiatrist or counsellor or anyone else has had to say?”
Mother: “No”
Judge: “So what do you think the father is doing wrong when he has [X] in his care which is causing this behaviour?”
Mother: “Well my assumption is that [X] goes to bed late. I’ve got loads of messages from early on saying he went to bed late, sort of 10.00 pm, 11.00 pm, and then I believe he sleeps in with Mr Preston in the morning because Mr Preston has been up late at night as well. So then come the next night, he just doesn’t go to sleep until – honestly, he has been up until midnight on, like, so many times. But then I – I do notice a change now that [X] has started school. I notice that the Wednesday when he comes back to me, that he’s quite the opposite. He’s so over-tired. He’s – he’s a mess. So I suspect that’s because he’s still going to bed late, but he has to get up early enough for school”
Judge: “Okay. What else? So you’re worried about the hours that [X] is sleeping at dad’s place; what else?...What else is dad doing wrong?”
Mother: “There’s many things that I don’t feel are – I feel like we’ve got…”
Judge: “Well, tell me. This is why I’m giving you the opportunity… Tell me what’s wrong?”
Mother: “So there’s lots of things. Like he has – you know, he’s often returned smelling of urine – stinking of urine. I’ve asked Mr Preston about it on a few occasions and – and it has come about that he has, you know, bought some second-hand clothes for him but they haven’t been washed, so they smell of I don’t know what. His clothing is very small. He sleeps in dad’s bed which makes routine at our house really difficult. It’s very disrupting. But I – I didn’t feel those things were big enough to mention. I thought we had more… important things”
Judge: “They’re big enough for you to be restrictive in the time that you’re putting forward for the father to spend with the child?”
Mother: “No. That’s more a – that’s – that’s about routine rather than … those other things… to bed late…probably sleeping in in the morning”
Judge: “So that – all those restrictions are because of the child… going to bed late?”
Mother: “Yes. It’s significant though, and it’s significant in his behaviour, the way it shows, and I am worried about him being the best person he can be and – and concentrating at school and making friends. He’s just so combative when – when he’s tired. He doesn’t do his homework. He has missed activities before with myself, things like swimming. He has just been up so late at night, then the next morning, you just can’t wake him up, so we’ve missed activities”
Judge: “How do you know he’s up late?”
Mother: “I can only guess that from Mr Preston’s lifestyle and from having lived with Mr Preston for so many years. [X] comments as well, but I – I don’t take the comments of a five year old as being accurate”
Application of the considerations to spend time with arrangements
This is an unusual matter as I find that none of the primary considerations will assist and the majority of the additional considerations do not apply as:-
a)The child has a healthy relationship with both parents.
b)The father has a loving and meaningful relationship with [X].
c)There is no family violence or risk factors.
d)The child is too young to express a view.
e)The child has a healthy relationship with extended family members and his sibling in both the mother and father’s households.
f)The parties live very close to each other (15 minutes) and whilst changeover can be uncomfortable, there are no real concerns as to the father being able to spend time with the child.
g)As to the father’s capacity to meet the child’s needs I find the mother’s ongoing concerns are firstly historical and secondly unfounded with the mother not considering the behavioural issues of [X] significant enough to obtain any therapeutical or counselling assistance for the child.
h)I further find the mother’s current concerns are based on assumptions fuelled by her general continued lack of trust of the father and disdain as to the father’s lifestyle, with there being no independent evidence that the father’s lifestyle in any way has a negative impact on [X], a child being in good health, and doing well at school.
i)The parties embrace parenting and are actively involved in [X]’s life.
j)The father has met and continues to meet his child support commitments.
I find the only applicable consideration is the effect on [X] if he was to be removed from being in the primary care of the mother and placed in an equal shared care arrangement between the parties.
The family report released in February 2016 recommended the father spend four nights a fortnight with [X] consisting of:-
a)“From Saturday morning to Tuesday afternoon on a fortnightly basis if possible coinciding with the weekend his cousin is with his father” ([107] family report).
b)As to time in the other week, “from 9am Monday morning until Tuesday at 6.30pm each fortnight” as this would allow the father “to be a part of [X]’s day care activities which he attends on Tuesdays and Thursdays ” as the mother “ has indicated that she wanted him to be a part of [X]’s education”([114] family report).
Despite the mother’s proposal of three nights a fortnight and the recommendations of the family report, the father has not had an increase in time with [X] since the release of the family report except some block periods of no more than five to six days during school holidays.
As at the date of the final hearing the father is spending time with the child each Tuesday night and every second weekend from Saturday morning to Sunday afternoon, with such time not coinciding with when the cousin [A] is available.
The father’s proposal is for equal time.
In cross-examination the mother appeared to agree to four nights a fortnight for the father to spend time with the child consisting of three nights a fortnight from after school Friday to before school Monday on alternate weekends and one night in the off week, whether that continue to be a Tuesday night or change to a Monday night.
During cross-examination, the family report writer, who has not seen the family or the child since the preparation of the family report made the following comments:-
a)“Three days may be slightly less than would be appropriate, I think, for him to maintain a good, solid relationship with his father”
b)“There is advantages to having the block that there’s less interruption in the second week. There is also the balance of that... Is that more or less beneficial to the child if they then don’t see Dad for quite some days in a row? So it’s difficult for me to determine for you…whether it is sufficient”
c)In answer to the question “it’s fair to say, isn’t it, that if an order was made that there was to be an equal time arrangement of what you saw [X] would find that difficult to step up from a couple of nights a fortnight with his father at the moment to seven nights out of fourteen? Would you agree with that?” the family report writer responded “It would be an adjustment. Yes… he could find it difficult”.
d)“So in terms of a seven-seven arrangement, there would need to be good communication and a relationship between the parents that reflects, sort of, an amicable and child focused – that would – that would be a reasonable – if those factors are, sort of, occurring it would be reasonable to consider”
Conclusion as to spend time with arrangements
I find that it is in [X]’s best interest that the child spend five nights a fortnight with the father during school terms and half of the school holidays, as well as special event time.
I make this finding based on the following:-
a)The primary carer for [X] is the mother.
b)At the age of 7½, a child being removed from the mother’s primary care is likely to have negative consequences for [X].
c)Further, the mother, with her distrust of the father and dislike of the father’s lifestyle is not capable of facilitating an equal shared care arrangement.
d)Spending nine nights a fortnight during school term with the mother will secure the primary relationship and attachment and allow the child to continue in his relationship with the stepfather, sibling and the extended maternal family.
e)The father has spent five to six nights before with the child without incident.
f)Spending five nights a fortnight with the father:
i)Will provide the child with the opportunity to maintain and nurture the meaningful relationship with the father.
ii)Enable the father to be involved in the child’s schooling and day-to-day care.
iii)Will allow the relationships between the child and his sibling, his cousin and extended paternal family members to continue and grow.
g)Spending five nights, divided into four nights each alternate weekend from Friday to Tuesday and Tuesday night in the alternate week will provide a consistency of approach for [X]’s time with the father and eliminate huge gaps of time where the child does not see his father.
h)The mother’s concerns as to the paternal grandmother’s involvement with [X] when the father is at work is unfounded, with the child having and enjoying a loving relationship with the paternal grandmother.
i)The mother’s imposed restrictions on the father’s weekend time with the child during school is also unfounded, as is the need for every Christmas morning to be spent in the mother’s household.
j)Equal time over school holidays and time for special events will provide [X] with an opportunity to enjoy all that each of his two households can offer, as well as the joy of holidays and travel.
Orders are made for five nights a fortnight during school terms, alternating one half school holiday periods and time on special days.
Parental Responsibility
As at the date of the family report interviews the parties were agreeable to an order for equal shared parental responsibility for [X] ([10] family report).
The parties communicate via email ([13] family report):
a)With the mother reporting:
i)“She would be agreeable to this continuing” ([39] family report).
b)With the father reporting:
i)He and the mother were “amicable and communicate well” ([62] family report).
ii)“He thinks is possible to continue communicating by email” ([63] family report).
The father “would like to be a part of decision making in [X]’s life. He also reported that he is confident that they would be able to resolve any conflict together about issues such as schooling etc. if they should arise” ([63] family report).
The family report writer in recommending an order for equal shared parental responsibility ([106] and [125] family report) concluded the parties “have proposed equal shared parental responsibility of the subject child. Both parties have reported a willingness to maintain email communication with one another about schooling, health and safety issues relating to [X]. Similarly, both Ms Mullan and Mr Preston reported motivation to maintain an amicable relationship with one another for the sake of the subject child” ([104] family report).
At the final hearing, the mother is seeking orders for equal shared parental responsibility except that the mother have the final say as to major long-term decisions regarding [X]’s health due to her being “a specialist in children’s medicine” and having “more experience” than the father “in the field” of “procedures and medical attention” for children.
The mother admits in cross-examination:-
a)There have not been any medical issues for [X] where the parties have disagreed and [X] has been harmed as a consequence.
b)The father has never withdrawn his consent to medical issues.
c)There have never been disputes between the parties as to medical decisions for the child.
Conclusion as to parental responsibility
I find that that the presumption of equal shared parental responsibility applies in accordance with section 61DA(1) Family Law Act 1975 and that the presumption has not been rebutted, nor have circumstances arisen which lead to the presumption not applying.
I further find it is in the child’s best interest for the parties to have equal shared parental responsibility.
Therefore, I order the parties have equal shared parental responsibility for the child on all major long-term issues.
Equal time or substantial and significant time with father
An order for equal shared parental responsibility brings into effect section 65DAA Family Law Act 1975 which requires the court to firstly consider an order for equal time (section 65DAA(1))
As finding has been made that it is not in the child’s best interest to spend equal time with each party then the court must consider making an order for substantial and significant time (section 65DAA(2)).
Conclusion as to time
I find that the orders made reflect a substantial and significant spend time with arrangement for the child with the father as, pursuant to section 65DAA(3), the child’s time with the father:-
a)Includes weekends, weekdays and holidays.
b)Will enable the father to be involved in the child’s daily routine.
c)Will enable the father to be involved in events special to the child.
De facto relationship
Is a declaration necessary?
The parties agree that between … 2011 and … 2013 the parties were in a de facto relationship (two years).
The mother argues that in addition from … 2008 to … 2011 and from … 2013 to March 2013, the parties were also in a de facto relationship. (four and a half years).
The father is seeking a declaration as to the length of the de facto relationship.
The mother submits that as the parties have a child and their relationship was of two years then the duration of the relationship is “otiose” as a de facto relationship already exists for the purposes of the legislation citing in support the Full Court in Delamarre & Asprey [2014] FamCAFC 2018
Conclusion as to need for declaration
Upon reading Delamarre, however there is one huge distinction, in that the child in Delamarre was born in the contested period whereas [X] was born during the acknowledged de facto relationship period.
I find that whilst the length of the de facto relationship is not relevant to the determination of the existence of the de facto relationship, it may be relevant to the issue of contributions of the parties, which pursuant to section 90SM Family Law Act 1975 the court may consider in determining an alteration of property interests.
I therefore find that a declaration as to the length of the de facto relationship is required.
Length of de facto relationship
When did the de facto relationship commence?
The parties agree that they first met in … 2008 with the mother submitting that at this stage the parties commenced an “embryonic relationship” (which according to the Macquarie Dictionary, means “rudimentary; undeveloped”).
From … 2008 to … 2008, the father was overseas.
The mother maintains that their de facto relationship commenced when the parties started dating in … 2008.
The mother states, “I contend that Mr Preston and I commenced a de facto relationship in 2008. Mr Preston and I had made a commitment to one another from that time and we were spending the majority of our spare time together. I was introduced to friends and family as his ‘partner’ and we often socialised with others as a couple” ([12] mother’s October 2016 affidavit).
In cross-examination the mother explained her reasoning as to why … 2008 was the commencement date for the de facto relationship:-
a)“We were exclusively seeing each other”.
b)“Throughout that time we were in a committed relationship and we spend time with each other’s families. We did chores at each other’s homes, and that’s about it. I’m not saying any more or any less. We were in a committed relationship with each other… you know Mr Preston had paid a loan for me and I had paid it back. So there was sort of money exchanged... that’s all it is”.
i)When asked from the bench “so your belief is, because you are boyfriend/girlfriend in a committed relationship, spending some nights together, that you are therefore in a de facto relationship”, the mother replied “yes”.
The father maintains the de facto relationship commenced when the parties commenced cohabitation in … 2011.
I do not doubt that at some point (whether that was during the relationship or after the relationship ended) the mother convinced herself that the parties were in a de facto relationship from … 2008.
But as the Full Court warned in Sinclair & Whittaker (2013) FLC 93-550 (supported in Delamarre at [39]) at [65] “the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature of the relationship, while a relevant matter, cannot be determinative”.
I now turn to the law.
Section 4AA(1)(c) Family Law Act 1975 states that “A person is in a de facto relationship with another person if, having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
It is now accepted by authorities that parties are not required to live together on a fulltime basis in order for there to be a de facto relationship.
In Jonah & White (2012) 48 FamLR 562 the Full Court at [32] said “it is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a ‘couple living together on a genuine domestic basis’”
There is no formula as to what constitutes a “genuine domestic basis” and the danger in trying to have a set of rules to follow is addressed by Powell J in Roy & Sturgeon (1986) 11 FLR:
a)“With respect, it seems to me to attempt to dissect the phrase ‘living together as a husband and wife on a bona fide basis domestic basis’ into discrete elements, and then to test the facts of a particular case by reference to a test of priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which leads one to hold that a man and a woman living together as husband and wife on a bona fide domestic, which will vary from case to case” (page 274).
b)“The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship to a long merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance” (page 275).
The circumstances that may be taken into account in determining if parties are in a de facto relationship are contained in section 4AA(2) and include any or all of the following:-
a)The duration of the relationship.
b)The nature and extent of their common residence.
c)Whether a sexual relationship exists.
d)The degree of financial dependence or interdependence and any arrangements, financial support between them.
e)The ownership, use and acquisition of their property.
f)The degree of mutual commitment to a shared life.
g)Whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship.
h)The care and support of children.
i)The reputation and public aspect of the relationship.
This is by no means an exhaustive list, nor is any particular finding in relation to any circumstance necessary in determining whether persons have been in a de facto relationship. (Section 4AA(3)).
In Jonah at [33] the Full Court in reference to section 4AA(2) noted “none of the matters referred to… has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made”.
As stated in S & B (No.2) (2004) 32 Fam LR 429 at [49] and [50] “in a de facto situation, it is the party asserting the relationship that must prove cohabitation of the required quality…. The party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove the negative”.
Although the mother states that she is not the one seeking a declaration of the length of the de facto relationship, it is in reality her position, as the parties agree that as at February 2011 the parties were in a de facto relationship.
It is the mother arguing that for some two and a half years beforehand the parties were also in a de facto relationship.
The onus therefore lies with the mother to prove this.
The question then arises as to whether the mother has proven the “positive aspects” of the relationship to support the existence of the de facto relationship prior to February 2011.
Certainly the parties agree that between … 2008 and February 2011:-
a)The parties spend overnights in their respective homes, preserving their own residence.
b)The parties kept their finances separate.
c)The parties had a sexual relationship.
d)The parties socialised and went together to family events.
Conclusion as to when the de facto relationship commenced
I find however that these accepted “positive aspects” in itself do not fulfil the definition of a de facto relationship as “a couple living together on a genuine domestic basis” and that the mother has failed to establish any other positive aspects that support the existence of a de facto relationship.
I therefore find that the de facto relationship did not commence in … 2008, but in February 2011 when the parties commenced cohabitation.
I make this finding based on the following:
a)Whilst the couple met in June 2008, they did not, due to the father’s absence overseas commence dating until … 2008. As noted by the Full Court in Delamarre at [40] “a finding of a commencement date for a de facto relationship which coincides with the first meeting of the parties would seem, at least without some further explanation, to fly in the face of human experience”.
b)Although the parties spent varying times at each other’s residences, there was no commonality of residence with the mother not having a key to the father’s residence prior to February 2011 and the parties seeking each other’s permission before staying at each other’s residences.
c)The parties did not own, use or acquire common property prior to February 2011.
d)The parties were not fully aware of each other’s financial situation between … 2008 to February 2011, with the parties buying and selling property and individually having the full benefits of any windfalls from the sales, as well as their own wages.
e)Apart from the one loan, there was no financial dependence or interdependence or any arrangements of financial support between the parties prior to February 2011.
f)The parties had their own bank accounts and credit cards and did not have a joint bank account until the purchase of the Property B property in mid-2011.
g)The mother did not have a will and had not named the father as a beneficiary on her superannuation policies.
h)The mother for taxation purposes did not disclose that she was in a de facto relationship until after the parties’ commenced cohabitation in 2011. The mother’s explanation that she did not declare that she was in a de facto relationship prior to 2011 as she thought the word “spouse means by marriage” makes little sense as the mother did make such a declaration after [X] was born and where the parties were not married.
i)The evidence supports that the mother was aware that the relationship prior to cohabitation in February 2011 was one of dating as girlfriend and boyfriend, with the relationship being in its infancy and parties navigating their way through as opposed to a couple together on a genuine domestic basis as illustrated by the following social media entries:
i)2 November 2009. Message mother to father “I am concerned that I am not worth the effort for you to move from your place… I am concerned that if you aren’t making the effort before we live together then I would be living a lifetime of this lack of regard for my wants and needs… I do feel very much so that you aren’t interested in seeing me if we have had 2 or 3 nights together. This leads me to believe that we are nowhere near being ready to live together….lucky for you I feel very uncomfortable with you at my house, and prefer you not to come”
ii)2 November 2009. Message mother to father “I am all a bit confused. You have said that one day we’ll live together, but until you decide what you want to do to get a housemate. I guess if you don’t want to live with me then it doesn’t really leave us anything left… we really have nowhere to go from here… I need to spend some time alone to think… don’t write back… you have already been clear in what you want” to which the father replying, “getting someone to live with you is a big deal… I would have to make it a plan in progress and maybe set a goal date in say January”
iii)4 November 2009. Message mother to father “I am trying to decipher whether I am the only one in the world who thinks it’s abnormal to have a cyber relationship. In previous relationships have you always had the girl come to you… maybe you’ve not gone out with an independent girl b4”
iv)5 November 2009. Message father to mother “Hi there ol’ buddy,… if you ever wanna drop over for a chat, watch some TV, have a coffee, bite to eat, some intercourse let me know, I’m usually here”
v)7 November 2009. Message father to mother “sorry to realise that you are upset and disappointed today… I want you to be happy, also I still like to picture you as my girl. If you need some space, I can do that…I’ll leave it with you”
vi)8 November 2009. Message mother to father “I am sorry that you shonned me because I went out with friends… if this isn’t behaviour you want from a girl or potential girlfriend, then yo need to set a better example yourself”
vii)13 November 2009. Message mother to father “pity it’s not my boyfriend I am sharing something exciting with, rather than a total stranger bye. As much as I’d love to wait for the ‘2-3 years’ that you quoted, I am sure I can find someone else that would like to live with me”
viii)23 November 2009. Message mother to father “to think I almost changed my mind and thought I could just put up with a cheating boyfriend”
ix)26 November 2009. Message mother to father “have a read and a think about whether you can offer what I need from a relationship Mr Preston... live together, we will have to discuss it and decide where together… Make an effort to stay at my house roughly half the time… Make an effort to be involved in my life… are you willing to contribute to a relationship with me... On the paper, we were the worse couple ever”
x)3 December 2009. Message father to mother “living together is the next step...obviously if the relationship is to sustain, flirting is to cease…I was doing it without even realising what I was doing”
xi)16 February 2010. Message mother to father “we have talked about us living together for years, and we’re no closer to ANY form of actually doing so. I don’t know how or when you think this might happen”
xii)21 June 2010. Message mother to father “now you choose to keep her as your cute little fan and you won’t tell her you have had a girlfriend for 2 years… if you can’t tell her you have a girlfriend then you can’t be the man for me” with the father replying “I have told her I have a girlfriend, so sorry, I am the man for you”
xiii)17 June 2010. Message mother to father “it’s a shame they think I am just a jealous girlfriend of her rock star boyfriend”
xiv)22 July 2010. Message father to mother “I find us completely compatible… I want us living together ASAP… I think as soon as we live together most of our troubles will fall away, as we will just be there. I feel our troubles stem from not getting to see each other enough… I believe that if we moved into my house here, things could happen so much faster… I know I haven’t proposed, I want to live together for a while before that. It just seems the right way about doing that”.
xv)22 July 2010. Message mother to father “your talk of a possibility of marriage in the future is nice to hear. I do believe that if we decide to go down that path then we would sort out finer details then… I propose we both work on our own houses over the next 12 months and work towards living together in a different (NEUTRAL) home”
xvi)20 September 2010. Message mother to father “I can’t see a move happening in the too near future”
xvii)10 January 2011. Message mother to father “you have told me to take a leap of faith and stop analysing everything. We have had some VERY rocky times, and sadly I can’t say we won’t have more…am I with a partner who could support me… we’d be lucky to be living together in this year… if you’re not ready, that’s ok…”
j)Although denied by the mother ([7] mother’s October 2016 affidavit) the text and email evidence supports that the dating relationship leading up to cohabitation was a tumultuous “on again off again” with several periods of separation as illustrated by the following social media entries:
i)31 October 2009. Message father to mother “the arguments cannot continue, I want to be together with you, happy together. We have a problem that needs facing. I can’t walk away without knowing I’ve given every shot to make things work with you”
ii)2 November 2009. Message mother to father “Mr Preston, this relationship isn’t working for me because I spend 90% of my time alone, and your needs are always put ahead of mine”
iii)4 November 2009. Message mother to father “poor you, you are probably thinking ‘here we go again’… I know our time together was hard for you…I thought you should come out of it knowing it was good while it lasted. I hope you meet someone right for you soon, I am sure you will. I would rather that person be me, but attraction isn’t always enough to make things work… we just couldn’t seem to get our act together and I felt hurt and concerned that you didn’t want to seek to make it a priority… we can sort out me getting my stuff from your place soon enough. See you around the traps Singerboy”
iv)5 November 2009. Message mother to father “we used to see each other when either of us worked. You just don’t see that it’s not working. Please, please think about this over the next week and we’ll chat about it the next day we both have off. Tired of trying… I’ve layed it on the line. The next move is yours. Don’t blow it”
v)8 November 2009. Message mother to father “may see you in January next year. Let me know if you have a day or night in January you are not working. Until then I have to consider myself a single girl”.
vi)9 November 2009. Message mother to father “an opportunity is there right now to spend time with Mr Preston, do I take it yes or no? Three out of three you chose no”
vii)13 November 2009. Message mother to father “I am sorry things didn’t work out for us”
viii)15 November 2009. Message mother to her friend Ms U “I went to Mr Preston’s to try to get an explanation…. He wants us to work, but I told him I can’t forgive him, and I don’t want a life of living with someone like that”
ix)15 November 2009. Message mother to father “I am sorry it has come to this…we will never see each other again, this is just so unforgivable and I am disappointed that I didn’t know that other side of you”
x)23 November 2009. Message mother to father “you’ve just gotta go away. You are dragging me down and really bringing down my self esteem…you are lucky to have had me in your life for the short time that you did”
xi)26 November 2009. Message mother to father “tonight was the last effort and last straw. Sorry, we will go nowhere. My very, very last attempt failed miserably…Farewell Mr Preston”
xii)26 November 2009. Message mother to father “it will determine if we have a second chance together or not… you took your second chance pretty early on, you won’t get a third”
xiii)30 December 2009. Message father to mother “I was very deeply hurt by your carefree attitude to me on Boxing Day night. We weren’t an official couple then…”
xiv)30 December 2009. Message mother to father “the pain won’t stop… for six week I was a mess… you have been to the pub so many times without me. I became the girl who sat at home alone whilst their boyfriend was out having fun”
xv)18 February 2010. Message mother to father “I’m just hanging around. Whenever you’re ready to see each other again let me know….once again for the VERY last time. YOU decide in your own time what YOU want to do, and get back to me. I’ll give you a limit of one year to decide, past that I’ll be pretty sick of living alone…have a think about whether or not I am still the right person for you Mr Preston”
xvi)From February 2010 to May 2010. There is no message activity between the parties with the father stating that the parties were not together at that time.
xvii)10 June 2010. Message mother to father “unfortunately I feel quite negative about this and am concerned that we are having trouble getting along…I search for happiness, I thought I had it. I am not going to get involved in another potential argument with you, I am over it”
xviii)21 June 2010. Message mother to father “I’m NOT doing this with you again Mr Preston” with the father replying “no one else in the universe seems to think I’m the dishonest, gutter-dwelling, chauvinistic, heartless, conceited, arsehole that you seem to describe me as. My intention and life priority is to build a life with you, if you think my efforts will go unrewarded let me know ASAP”
xix)21 June 2010. Message mother to father “Ms Mullan is let down yet again… let me know when you can learn to be honest. Until then I don’t want to hear from you. This may sound sudden, but haven’t I given you enough time??”
xx)22 June 2010. The mother changed her social media status to “single” with the father stating in a message to the mother “where do I stand today?... if you are not in a relationship and you are ‘single’ let me know”
xxi)22 June 2010. Message mother to father “Mr Preston… I am disappointed to hear you are willing to just let it go by saying ‘just let me know if we’re not together anymore’”
xxii)21 July 2010. Message mother to father “Ms Mullan has tried everything and obviously we aren’t as compatable as she once thought… yet again I sit alone whilst you’re at the pub. Somehow, we are going backwards… I have really tried with you and for you…What are your priorities…See you around when you can spare a moment”
xxiii)22 July 2010. Message mother to father “I wasn’t dumping you. I am sorry if you thought it was an ‘all over’ email… I do expect you want to see me when you haven’t for the previous 5 nights”
xxiv)16 August 2010. Message mother to father “something I said obviously tipped you over the edge as you disappeared… I’ll give you a few days to digest”
xxv)16 January 2011. Message mother to father “at the moment I’d rather be alone than share my time and life with you”
xxvi)7 February 2011. Message father to mother “if our relationship can be saved I will delete the girl of your concern. If our relationship is doomed and beyond repair, I don’t see the point”.
xxvii)7 February 2011. Message mother to father “I am trying to keep the faith and hope you’ll do the right thing by me. I am nervous I have fallen pregnant and the one person who is supposed to stand by me isn’t helping the situation…I hope and pray you can put me first”
k)During 2010, the father dated other girls with the father firmly holding the belief that the mother also dated other men during this time.
l)Initially in the court proceedings the mother acknowledged that the de facto relationship commenced in February 2011:
i)In a letter written by her lawyer, Sharon Moore to the father dated 25 March 2014 “Ms Mullan informs me she was in a de facto relationship with you from early 2011, having been in a relationship from 2008”
ii)In her initiating application filed in 2014, the mother referred to the date of cohabitation being January 2011.
iii)In her amended application filed in 2016 the mother changed the date of cohabitation to … 2008 with the mother explaining in cross-examination that she later redefined her relationship in … 2008 as a de facto relationship after being “educated on the meaning of de facto” as the parties were “part-time living together”.
iv)The mother however had no difficulty in accepting that her de facto relationship with Mr K commenced when the parties started living together and not when they were dating.
When did the de facto relationship end?
The family report records “the final separation date was reported by both parties to be around February 2013, when the subject child was 14 months old” ([3] family report).
The father states that separation occurred in February 2013, although at the time he was not aware the relationship was over.
The father admits to spending time with the mother on her birthday in … 2013.
The mother maintains the separation date is March 2013 with Ms L confirming that not long after March 2013 the mother informed her that the parties had separated ([34] Ms L’s 2017 affidavit) .
Conclusion as to when the de facto relationship ended
I find that the evidence supports that the de facto relationship ended in March 2013.
Overall conclusion as to de facto relationship
I declare that the de facto relationship commenced in February 2011 and concluded in March 2013.
Property
Mother’s proposal
The mother is seeking orders whereby:-
a)The mortgage over the Property D property be discharged at the sole cost of the father.
b)The father pay to the mother $210,000 in exchange for the mother transferring her interest in the Property B property to the father.
c)The mother obtain a superannuation split of $50,000 from the father’s superannuation.
d)Otherwise each party retain all other property in their possession
Father’s proposal
The father is seeking orders whereby:-
a)The father pay to the mother $100,000 in exchange for the mother transferring the Property B property to the father.
b)The mother refinance the Property D property and remove the father as guarantor.
c)Otherwise, each party retain all other property in their possession.
Issue
The issue for determination is the division of the de facto property pool.
The law
In determining property matters consideration must be had to Part VIIIAB Family Law Act 1975.
A clear framework exists in determining property division.
The first question that must be asked is articulated by the High Court in Stanford v Stanford (2012) 293 ALR 70 at [79] and [80] is whether “it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
If answered in the affirmative, then the matter can proceed to a property division, applying the various principles.
Consideration must be given as to whether a global or asset-by-asset approach is to be adopted.
The four step process to be applied in accordance with the Full Court decision of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] which can be summarised as follows:-
a)Identify and value, as at the date of the hearing, the parties’ property, liability and financial resources;
b)Identify and assess the parties’ contributions pursuant to Section 90SM Family Law Act 1975.
c)Identify and assess the parties’ ongoing needs taking into account the relevant factors relevant under section 90SM and section 90SF; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
The question to be considered as set out in Stanford
I find that this is a matter where it is appropriate for a division of the de facto property pool to be considered as:
a)The parties were in a de facto relationship of just over two years.
b)The parties have property that is capable of division.
c)The parties are wishing to finalise the financial matters.
As the question posed by Stanford v Stanford is in the affirmative, I will now proceed through the four-step process in order to determine the percentage division.
Global/asset by asset/multiple pool approach
This was a de facto relationship of two years and one month where:
a)At the time the parties commenced dating in … 2008 each party had a comprehensive property pool.
b)During the dating period each party acquired further property.
c)After the commencement of the de facto relationship, the parties acquired a property in joint names.
d)After the de facto relationship ended, the mother acquired further property.
To understand the complex matrix of the property pool, set out below is a brief summary of property acquisitions by the parties:
a)At the time the parties commenced dating in 2008:
i)The mother had:
·An interest in a Property V property.
·An interest in a Property W property.
·Motor vehicle subject to a car loan.
·Superannuation
·Household contents and savings.
ii)The father had:
·An interest in a property at Property H (Property H property).
·An interest in a property at Property X (the Property X property).
·An interest with his ex-partner in a property at Property G (the Property G property)
·Guitar collection.
·Motor vehicle.
·Superannuation.
·Household contents and savings.
b)During the dating period between … 2008 and February 2011:
i)The mother:
·Sold the Property V property.
·Sold the Property W property.
·Acquired an interest in a property at Property Y (Property Y property).
ii)The father:
·Purchased a property at Property F (the Property F property).
c)At the commencement of the de facto relationship in February 2011:
i)The mother had:
·The Property Y property.
·Motor vehicle.
·Superannuation.
·Household contents and savings.
ii)The father had:
·The Property H property.
·The Property Y property.
·The Property G property.
·The Property F property.
·Motor Vehicle.
·Superannuation.
·Guitar collection.
·Household contents and savings.
d)During the de facto relationship between 2011 and 2013:
i)The parties purchased a property at Property B (Property B property).
ii)The mother sold the Property Y property.
e)After the de facto relationship ended in 2013:
i)The mother purchased a property at Property D (Property D property).
ii)The mother’s partner Mr K purchased a property at Property D (Property D property).
The authorities support that the global approach is the most frequently adopted approach when ascertaining the property pool to be divided.
As observed by the Full Court in Zaruba & Zaruba [2017] FamCAFC 91 [38] to [39] “in the vast majority of cases, it will appropriate to address the section 79(2) question by ascertaining the legal and equitable interest in property without making distinctions between individual assets. This is because [referring to Stanford] the ‘express and implicit assumptions that underpinned the existing property arrangements’ can be seen to apply to all of the property of the parties or either of them, including property in which the legal interest vary”.
However there are exceptions with the Full Court noting “the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and whereas here, the parties relationship has taken on quite different characteristics during the period to which the s 79 inquiry is directed”.
In the Full Court decision of Holland & Holland (2017) FLC 93-798 it is noted at [24] that the decision in Zaruba “recognise that nothing said by the High Court in Stanford calls into question what was earlier said by that court in Norbis v Norbis”.
In Norbis v Norbis (1986)161 CLR 513 it is noted “it may be possible and appropriate in many cases to determine the proportions in which property is to be divided without treating any of the assets separately, but where the interests of the parties differ, a different approach may be taken. Section 79, in particular section 79(4) refers to ‘any property of the parties to a marriage or either of them’ and that expression is sufficient to encompass both the entirety of their property and their individual interests. If the parties interest in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets”.
Holland concluded at [31] “thus, the nature of a particular interest or interests in property and when and how it was acquired, utilised, improved or preserved may be very relevant to each or all of three central questions: should a section 79 order be made at all; whether contributions should be assessed ‘globally’ or ‘asset by asset’ or by reference to two or more ‘pools’ and, what is the nature and extent of the each party’s contributions. However there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest”.
In Anson & Meek [2017] FamCAFC 257 the Full Court warned at [23] as to the “dangers of disregarding property of any type (or superannuation” when determining what is to be included in the property pool for distribution.
Conclusion as to approach
Having considered the nature of the relationship between the parties, (where the parties dated for three years and were in a de facto relationship for two years), the short length of the de facto relationship, the timing and acquisition of the property (including before the relationship commenced, before the de facto relationship commenced, during the de facto relationship, and after the de facto relationship concluded), I find that the only just and equitable approach to this matter is a multi-pool approach based on looking individually at the assets.
I find that in this matter there are two pools.
The first pool is that property to which the other party has not made a direct or indirect, financial or non-financial contribution and consists of the following:
a)As to the mother:
i)Property D property acquired by the mother in 2013. I accept the explanation of the father that the $24,000 paid to the mother to assist her in the purchase of the property was in effect a reimbursement of the contribution made by the mother towards the Property B property and that the father does not claim to have an interest in the Property D property. Steps need to be taken by the mother to remove the father’s name as guarantor from the mortgage over the Property D property.
ii)Property E property acquired by the mother’s partner Mr K in 2016. This is a property acquired post separation with the assistance of Ms L and purchased in the partners’ name.
iii)Motor Vehicle F acquired by the mother in 2012. This was purchased by the mother using the sale proceeds of the Property Y property.
iv)Superannuation. The mother had superannuation prior to the parties’ de facto relationship, which has increased since the parties separated. In the absence of accurate evidence to establish the amount the superannuation increased (if any) in the two year de facto period the parties were together, I find it is not just and equitable to include the mother’s superannuation in the property pool.
b)As to the father:
i)Property H property acquired by the father in 1989. There is no evidence to support that the mother contributed to this property.
ii)Property X property acquired by the father in 1998. Apart from February 2009 where the mother assisted in the cleaning of the property and helping measure and replace tiles as well as bring the father lunch ([13(d)] mother’s October 2016 affidavit) there is no evidence to support that the mother has made any meaningful contributions to this property.
iii)Property G property acquired by the father in 2000. Apart from internal painting of rooms by the mother during the five months stay at the property ([32] mother’s October 2016 affidavit) (where there is no evidence that this has increased the value of the property), there were no other meaningful contributions made by the mother.
iv)Property F property acquired by the father in 2009. As deposed to by the mother “this property was renovated prior to being purchased; no further renovations have taken place whilst owned by Mr Preston” ([29] mother’s October 2016 affidavit).
v)Guitar collection. There is no evidence to support that the mother contributed to the guitar collection.
vi)Superannuation. The father had superannuation prior to the parties’ de facto relationship, which has increased since the parties separated. The father’s superannuation has been excluded apart from superannuation accrued during the de facto relationship (which has been included in the second pool).
I have carefully considered the first pool and find that it is a pool that due to its nature of acquisition and non-contribution of the parties is not to be included for division pursuant to section 90SM Family Law Act 1975.
Therefore it follows that any debts associated with the first pool are the responsibility of the persons who are the owners of the property in the first pool.
It further follows that any debts acquired post separation such as loans from family members, credit card debts and Hecs debts are also not to be included in the property pool.
The second pool is that property to which the other party has made a direct or indirect, financial or non-financial contribution.
I find the second pool consists of the following:
a)The Property B property. The parties jointly acquired this property after the de facto relationship commenced in February 2011.
b)Father’s superannuation. The evidence supports that during the two year and one month de facto relationship the father’s superannuation increased by $39,000. This amount has been included in the property pool.
c)Household contents. The father acknowledges that many of his household contents belonged to the mother. The mother states that the $10,000 withdrawn from the Property B property offset account were used to acquire more household contents.
I find the second pool is the de facto property pool capable of division between the parties.
Application of the four step process in Hickey’s case
Property pool
The de facto property pool capable of being divided consists of assets totalling $237,433 that being calculated as follows:
Assets
$ Value
Property B property
465,000
Household contents (mother)
5,000
Household contents (father)
5,000
Superannuation accrued by father during de facto relationship
39,000
Total
$514,000
Liabilities
$ Value
Mortgage Property B property
276,567
Total
$276,567
TOTAL DE FACTO PROPERTY POOL
$237,433
Contributions
Initial contributions
Due to the two pool approach the issue of initial contributions is not relevant to the determination of the division of the property pool.
Contributions during the de facto relationship
When the parties commenced the de facto relationship in February 2011, the mother moved in with the father at the Property G property.
In June 2011 the father provided the mother with just under $20,000 to assist her in house repayments for the Property Y property, which the mother described as “a personal loan, which I later repaid” ([30] mother’s October 2016 affidavit).
In July/August 2011 the parties jointly purchased and moved into the Property B property for $442,000 with a mortgage of $340,000 with the balance monies obtained from drawdowns from the father’s Property H and Property X properties, causing an overall increase of $121,600 in the mortgages over the Property H and Property X properties.
The mother acknowledges that the father “contributed the required balance” to acquire the Property B property ([33] mother’s October 2016 affidavit).
In late 2011, the mother sold the Property Y property and the proceeds of around $97,000 were placed in the mother’s bank account.
During 2012, the mother paid a total of $44,000 towards the reduction of the mortgage on the Property B property.
The father maintains that $20,000 of the $44,000 was the repayment of the $20,000 to the father for the monies provided earlier in 2011.
During the relationship the father provided the mother with $3,200 to pay towards her credit card debt and the mother had access to the father’s work debit card and the credit card attached to the offset account for the Property B property, incurring expenses of some $6,000.
During cohabitation:
a)Both parties were earning an income.
b)The mother contributed to household expenses whilst the mortgage repayments, rates and insurances for the Property B property were met by the father.
c)The parties attended to improvements on the Property B property.
d)The parties shared in household chores.
e)The parties shared in caring for the child with the mother being the primary homemaker.
I find that the father made the greater financial contributions to the acquisition and preservation of the Property B property.
Otherwise, the non-financial contributions were equal.
Post separation contributions
Since separation the father has made all repayments and paid all outgoings on the Property B property and continues to live at the Property B property.
During 2013 the mother spent over $8,000 on the father’s EFTPOS card.
In July 2013 the father gave the mother $24,000 to assist the mother in purchasing a property at Property D (Property D property) for $325,525 subject to a mortgage of $288,000 where the father is guarantor for the loan.
The mother acknowledges receiving $20,000 from the “joint home loan” ([87] mother’s October 2016 affidavit) and in cross-examination acknowledged that this was a return in part of the financial contribution the mother had made to the Property B property during the cohabitation.
In 2014, the mother withdrew a total of $17,000 from the Property B property mortgage offset account, using $10,000 towards acquiring new household contents.
I find that post separation the father made the greater financial contributions to the preservation of the Property B property.
Overall conclusion on contributions
I find that overall the father is to receive a higher percentage of the property pool based on contributions due to the significant financial contributions.
I find a 70% adjustment in favour of the father and 30% in favour of the mother reflects the higher contributions made by the father.
Future needs
The mother has been the primary carer for [X] since separation
The father pays child support in accordance with assessments.
The father is 13 years older than the mother and is in relatively good health with some ailments that do not currently impact on his ability to work.
The father earns income from his employment as an entertainer, a billboard on his property and from his property investments.
The father has a healthy property portfolio.
The mother is in a new relationship with Mr K and has a child with Mr K.
Mr K is working full time and the mother is in employment.
The father acknowledges that during the de facto relationship the mother lost the opportunity to increase her superannuation contributions and was on a reduced wage.
The mother has now had a further child but has the financial support of a new partner.
In January 2016 Mr K purchased in his name only a property at Property D (Property D property) for $641,000 subject to a mortgage of $513,000 having obtained a loan of $150,000 from the mother’s sister Ms L of which half plus interest has been repaid by Mr K and the mother to repay the balance of the loan.
I find that a 15% adjustment in favour of the mother for future needs is appropriate given these factors which results in the mother receiving 45% of the property pool with the father receiving 55% of the property pool.
Just and equitable
During the proceedings, the father paid $5,000 for valuations of the real estate and mediation, with no contribution by the mother.
I find that an adjustment is to be made in favour of the father for half the costs incurred by the father for valuations and mediation.
This results in the mother receiving by way of property division assets totalling $104,345 ($237,433 x 45% = $106,845 - $2,500 = $104,345) that being made up as follows:
Cash payment by father
$99,345
Household contents
$5,000
45% share of property pool to mother
$104,345
This results in the father receiving by way of property division assets totalling $133,088 ($237,433 x 55% = $130,588 + $2,500 = $133,088) that being made up as follows:-
Property B property
$465,000
Superannuation
$39,000
Household contents
$5,000
Total assets
$509,000
Less liabilities
Cash payment to mother
$99,345
Mortgage over Property B property
$276,567
Total liabilities
$375,912
55% share of property pool to father
$133,088
I find that this represents a just and equitable division of the property pool.
The father in his proposed orders is seeking 42 days to raise the funds to pay the mother.
I find that this is a reasonable request of time.
The father is also seeking orders that in the alternative if the funds are unable to be raised then the Property B property be sold and the mother is paid from the sale proceeds.
Given the father’s extensive property portfolio and possible financial assistance from his mother, I find such a safeguard unnecessary and therefore it has not been included in the orders.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 8 May 2019
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