Mullins & Lien
[2022] FedCFamC2F 1062
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mullins & Lien [2022] FedCFamC2F 1062
File number(s): ADC 1430 of 2019 Judgment of: JUDGE BROWN Date of judgment: 17 August 2022 Catchwords: FAMILY LAW – Children – parenting arrangements for two children aged 8 and 6 – where the parties have no capacity to co-parenting and solve problems – whether a change in arrangements would be in the children’s best interests –father seeks a shared care arrangement – allegations of family violence perpetrated by the father – where the children have been exposed to family violence – coercive and controlling behaviour – assessment of risk
FAMILY LAW – Property – property settlement – marriage of 7 years – modest asset pool – assessment of contributions – superannuation – splitting order under s 90XT of the Family Law Act 1975 (Cth) – considerations of just and equitable
Legislation: Evidence Act1995 (Cth) ss 140, 144
Family Law Act 1975 (Cth), Part VII, VIII, VIIIB, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68B, 68LA, 75, 79, 90XC, 90XT, 102NA, 114
Family Law (Superannuation) Regulations 2001, Div 2, p 6
Federal Circuit & Family Court of Australia (Division 2) (Family Law) Rules 2021 r 6.06
Superannuation Industry (Supervision) Regulations 1994
Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth).
Cases cited: Astor & Astor [2007] FamCA 355
B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bartel & Schmucker (No 3) [2012] FamCA 1094
Bevan & Bevan [2013] FamCAFC 116
Black & Kellner (1992) FLC 92-287
Briese & Briese (1986) FLC 91-713
Clauson & Clauson (1995) FLC92-595
Clauson v Clauson (1995) 18 Fam LR 693
C & C (2005) 33 Fam LR 414
Eaby & Speelman (2015) FamCAFC 104
Ferguson & Ferguson (1978) FLC 90-500
Ferraro v Ferraro (1992) 16 Fam LR 1
Fox v Percy (2003) 214 CLR 118
H v W (1995) 126 Fam LR 788
Hickey & Hickey (2003) 30 Fam LR 355
Horrigan & Horrigan [2020] FamCAFC 25
In the Marriage of JG & BG (1994) 18 Fam LR 255
In the Marriageof Patsalou (1994) 18 Fam LR 426
Mullins & Lien [2020] FCCA 3176
Jurchenko & Foster (2014) 51 Fam LR 588
Lee Steere & Lee Steere (1985) FLC 91-626
SHL & EHL [2006] FamCA 1287
L & L [2003] FamCA 40
Luciano & Luciano [2000] FamCA 401
Magas & Magas (1980) FLC 90-885
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Pierce & Pierce (1999) FLC 92-844
R & R: Children’s Wishes (2000) 25 Fam LR 712
Re: K (1994) FLC 92-461 at 80,774
Russell & Russell (1999) 25 Fam LR 629
Russell & Russell and Anor [2009] FamCA 28
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Waters & Jurek (1995) 20 Fam LR 190
Watson & Ling [2013] FamCA 57
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 442 Date of last submissions: 8 June 2022 Date of hearing: 10, 11 & 12 November 2021 and 23 & 24 May 2022 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Pascale Legal and FJS Lawyers Counsel for the Respondent: Ms Smith Solicitor for the Respondent: The Law Offices of Elizabeth Temnoff Counsel for the Independent Children’s Lawyer: Mr Hemsley Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia ORDERS
ADC 1430 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLINS
Applicant
AND: MS LIEN
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
17 August 2022
THE COURT ORDERS THAT:
Children’s Matters
1.All previous orders are discharged.
2.The mother shall have sole parental responsibility for the children X born in 2014 and Y born in 2015 (“the children”) PROVIDED THAT in the event that the mother is required to make any significant decisions in respect of the children, she shall advise the father by email of same and the father shall have seven (7) days thereafter within which to provide his views on the decision and the mother shall take those views into consideration when making that decision.
3.Both parties shall ensure the children remain enrolled at the A School and no party shall change the children's enrolment without the written consent of the other party.
4.The mother shall within seven (7) days advise the father of all medical appointments attended by the children and shall authorise the father to speak with any medical practitioner or allied health professional who sees the children.
5.Both parties are restrained, and an injunction is granted restraining each of them from removing or attempting to remove or causing or permitting the removal of the said children from the Commonwealth of Australia until 27 October 2025 being the date when the child Y turns 10 years of age.
6.The said children shall live with the mother.
7.The said children shall spend time with the father as follows:
(a)From the conclusion of school on Thursday to the commencement of school on the following Monday (or Tuesday if a public holiday) of each alternate weekend with the first such period to commence on 18 August 2022 PROVIDED THAT these orders shall be suspended during the period of the school holidays and shall recommence on the first Thursday of each new school term.
(b)For the first half of all short school holidays from the conclusion of school to 5:00pm on the Saturday of the middle weekend provided that the children shall be with the mother for the balance of the holidays.
(c)On the first week of the long school holidays and each alternate week thereafter PROVIDED THAT the children shall be with the mother for the balance of the school holidays subject to the following conditions:
(i)The father's time shall commence on the last day of school;
(ii)The father's time shall end at 5:00pm on the Saturday, a week thereafter;
(iii)Each handover thereafter shall be on the following Saturday at 5:00pm;
(iv)The children shall be with the mother for the period from 5:00pm on the last Saturday of the long school holidays until the commencement of the first day of the new school year;
(v)This order shall be suspended with no further adjustment for the following provisions for Christmas Day.
8.The children spend time with each of the parties for the following special occasions:
(a)The father shall have care of the children from 3:00pm on 23 December to 3:00pm on 25 December of each even numbered year with the children to be with the mother in that same cycle from 3:00pm on 25 December to 3:00pm on 27 December.
(b)The mother shall have care of the children from 3:00pm on 23 December to 3:00pm on 25 December of each odd numbered year with the children to be with the father in that same cycle from 3:00pm on 25 December to 3:00pm on 27 December.
(c)With the father on Father's Day from 9:00am to 5:00pm PROVIDED THAT the children shall be with the mother from 9:00am to 5:00pm on Mother's Day and all other orders shall be suspended for that time.
(d)It is noted that these orders make no provision for Easter, the children's birthdays and the parent’s birthdays and that the parties shall accept that these events shall fall where they may.
9.The children shall be at liberty to telephone either parent, while they are in the care of the other upon any reasonable request to do so.
10.All handovers not taking place at the children's school shall occur at the Suburb B Police Station.
11.The parties shall communicate via SMS or email and all such communications shall be limited to matters pertaining to the care, welfare and development of the children.
12.So as to facilitate the preceding orders, each party shall keep the other informed as to their residential address, mobile telephone number and email address from time to time and shall notify the other within 14 days of any change to same.
13.Both parties shall be at liberty to attend all school, sporting and extra-curricular activities that a parent would ordinarily attend.
14.Both parties shall be at liberty to obtain any school reports, newsletters notices or the like from each child's school which a parent would normally receive provided that they shall do so at their own expense.
15.On a without admission basis, both parties shall be restrained and an injunction granted restraining each of them from:
(a)Drinking alcohol to excess 24 hours before the children come into his or her care or whilst the children are in his or her care;
(b)From abusing, denigrating or criticising the other parent in the presence of the children, or from allowing any other person to do so;
(c)From discussing these proceedings or any allegations or issues raised in these proceedings or any other proceedings with the children, or in their presence, or from allowing any other person to do so; and
(d)Publishing any information from these proceedings or any issues or allegations raised in these proceedings on any form of social media.
16.The father be restrained from and an injunction granted restraining him from:
(a)Attending at the mother's residence without her prior written consent;
(b)From obtaining any medical treatment for the children other than in the event of an emergency without the prior written consent of the mother.
17.The father shall within fourteen (14) days of the date of these orders give to the mother all of the children's baby photos for her to copy at her own expense within six (6) months from receipt of same and those baby photos shall thereafter be returned to the father.
18.The appointment of the Independent Children’s Lawyer is discharged.
Property Orders
19.Within twelve (12) months of the date of this Order the husband pay the wife the sum of EIGHTY THOUSAND, ONE HUNDRED AND FORTY SIX DOLLARS AND THIRTY ONE CENTS ($80,146.31) together with interest as calculated hereunder:
(a)After thirty (30) days of the date of this Order, interest shall accumulate at the cash bank rate on any unpaid sum to the wife until both the principal cash sum and interest have been paid in full.
20.Pending payment of the cash settlement sum in paragraph 19 herein, the husband is solely liable for and indemnifies the wife against the following outgoings in and about the property located at C Street, Suburb D (“C Street, Suburb D property”):
(a)Instalments and money due under the Commonwealth Bank mortgage;
(b)Rates and water;
(c)Any land tax assessed;
(d)The cost of all reasonably necessary repairs and maintenance to the structures and/or buildings located on the real property;
(e)The premiums for the continuation of current insurance policies on the house and contents located on the real property;
(f)Utility expenses including but not limited to gas, electricity and telephone usage.
21.Should the husband default in the cash settlement sum in paragraph 19 herein and associated interest accumulated and/or should the husband default in meeting the expenses outlined in paragraph 20 herein (and should such default continue for a period of 30 days), the C Street, Suburb D property shall be listed for sale and the following shall apply:
(a)the husband and the wife shall do all acts and things and sign all necessary documents to list for sale by private treaty the C Street, Suburb D property and for that purpose the following shall apply:
(i)With such real estate agent as agreed between the parties and failing agreement as nominated by the Secretary of the Real Estate Institute of South Australia;
(ii)The list price of the C Street, Suburb D property shall be such amount as agreed between the parties and failing agreement within 14 days the list price will be as nominated by the real estate agent;
(iii)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the C Street, Suburb D property for sale including making the key readily available, allowing inspection of the C Street, Suburb D property at all times reasonably requested by the agent and ensuring that the C Street, Suburb D property is clean, neat and in good order at the time of inspection by any prospective buyer;
(iv)The parties shall each pay to the estate agent one half of any sums requested for advertising or sale expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;
(v)The Contract of Sale shall provide for completion within 30 days after the date of the contract or any other time period as agreed by the parties;
(vi)The proceeds of sale of the C Street, Suburb D property shall be paid in the following manner and priority:
A.To discharge any registered mortgage/s against the C Street, Suburb D property;
B.Any other encumbrance affecting the property including rates, taxes and other reasonable expenses;
C.To meet all reasonable costs of sale, including payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
D.Payment of the conveyancing costs and outlays relating to the sale, including reimbursement to a party for any advertising or sale expenses as contemplated in these Orders (if applicable);
E.Either the sum of $80,146.31 to the wife together with interest on this sum calculated pursuant to the provisions of order 19(a) hereof or 40% of the remaining sale proceeds whichever sum is the greater;
F.The balance to the husband.
22.Should the husband fail to place the C Street, Suburb D property on the market for sale, or fails to sign any documents necessary to place the C Street, Suburb D property on the market for sale within 14 days of any request in writing from the wife, the wife be at liberty to apply to the Court for enforcement orders on short notice.
23.In accordance with s 90XT(4) of the Family Law Act 1975, a base amount of EIGHTY THREE THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS AND THIRTY EIGHT CENTS ($83,760.38) is allocated to the wife out of the husband’s interest in his Super Fund H.
24.In accordance with s 90XT(1)(a) of the Family Law Act 1975:
(a)The wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The entitlement of the husband in the Super Fund H (or the entitlement of such other person who becomes entitled to receive a payment out of husband’s superannuation interest) is correspondingly reduced by force of this Order.
25.The trustee of the Super Fund H (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and
(b)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Super Fund H.
26.This Order has effect from the operative time and the operative time commences the day upon which this Order is made.
27.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the wife shall do all such things and sign all such documents as may be necessary; including but not limited to exercising the wife’s request in accordance with the SIS Regulations for the retention of the non-member spouse interest in the Super Fund H.
28.The Court notes:
(a)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)Any payments from the husband’s superannuation interest in the Super Fund H made after the trustee has created a new interest in the wife’s name in the Super Fund H are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mullins & Lien has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The parties to these proceedings are Mr Mullins[1] and Ms Lien.[2] The case relates to final parenting arrangements for the parties’ two children and how their matrimonial assets and superannuation are to be divided between them.
[1] Hereinafter referred to as “the father” or “Mr Mullins”.
[2] Hereinafter referred to as “the mother” or “Ms Lien”.
The proceedings have occupied some five days of sitting time, most of which was consumed with the father’s evidence. He presented as a reactive person, who was uncomfortable with being in court. It is also his case that he suffers from a significant level of depression, which restricts his capacity to work.
The mother, notwithstanding that English is her second language, gave evidence with a far greater facility. She presented as a reasonable but weary person, who wanted to end the long-standing conflict between her and Mr Mullins in a sensible and rationale way. She did not appear to me to be greedy or out of touch with reality, merely wanting to move on and to receive her proper financial entitlements.
The major issues in the case concern whether there should be what is commonly called an equal time arrangement for the parties’ two children, which the father seeks or whether the children should live more with their mother, as she proposes.
Inter-twined with this issue is how the parties are to be conferred with parental decision making responsibility. The father seeks the parties be equally and jointly conferred with parental responsibility for their children. The mother’s perspective is that such an outcome simply will not work, given the father’s dismissive attitude towards her and his inability to curb the expression of his negative feelings for her.
The parties are of extremely modest means. Their relationship was one of around seven years in duration. The mother came into the relationship with nothing of significant value. The father came into the relationship with a home, which he had owned for many years, which remains subject to a mortgage. After a long period in the workforce, he has a modest amount of accrued superannuation; the mother has none.
Essentially, the father asserts that his financial contributions, both before and after the parties’ marriage, must be regarded as being the most important factor in the case. In addition, it is his position that, although he was employed during the parties’ relationship, and in the years beforehand, his mental health precludes him from being employed, both now and for the indefinite future.
From the mother’s perspective, issues to do with her prospective financial needs must come to the fore in how the court resolves the financial issues. She points to the fact that she is the likely primary carer of two young children and is a person with limited skills, who has a migrant background and speaks English as a second language.
In these circumstances, the case presents no ready or obvious solution but rather the very real prospect that, in order to satisfy the mother’s claim for an equitable share of marital capital, the former family home will have to be realised, which will result in the father being deprived of his long standing home.
For obvious reasons, such an outcome has been the source of great anguish and emotional distress for the father. It his position that it would represent a grave injustice to him, if the home has to be sold, given that he owned it at the outset of the parties’ marriage and it is registered in his name alone.
This understandable reaction has led him to approach the case, in my view, with a sense of both denial and bewilderment, which has made it extremely difficult for him to engage with the process in a proactive way. The chief manner in which this reaction has manifested has been in his apparent unwillingness to provide any evidence regarding his mental health and what he asserts have been numerous attempts to secure employment, as well as to provide documents regarding his finances.
Up until after the evidence in the case had been completed and I had provided him an ultimatum, he refused to allow a qualified valuer entry to the home to undertake its valuation or provide details of the amount owing on the relevant mortgage. This has made the conduct of the proceedings extraordinarily difficult.
These reasons for judgment are directed towards resolving the parenting controversies between the parties and ending their financial relationship with one another. In respect of the parenting issues, the court’s guiding star is the best interests of the children concerned; in respect of financial matters, it is what is just and equitable in all the circumstances.
Background
As their names suggest, the parties have very different cultural backgrounds. The father was born in Adelaide in 1973. The mother was born in City J, Country K in 1989.
The parties were introduced, at a distance, by a relative of the mother, who lives next door to the father, in Adelaide, sometime in early-2011. Thereafter, the parties corresponded over the telephone and internet and arranged to meet, in Country K, in April of that year. After 9 days, they became engaged.
Subsequently, the father successfully applied for a spousal visa from the Australian authorities. The visa was granted in 2011, which authorised the mother’s entry to Australia in 2012. They married, in Adelaide in 2012.
The parties are the parents of two children, both boys – X (“X”) born in 2014 and Y (“Y”) born in 2015 (“the children”). The mother became an Australian citizen in 2021. She now speaks and reads English well, due to her diligence in attending English lessons. She gave evidence in the proceedings with the assistance of an interpreter, but it is clear to me that she understands English well.
One of the central evidentiary issues in this case concerns the nature of the parties’ relationship. The mother categorises it as one marked by the father’s controlling attitude towards her, which was characterised by him restricting her access to money, subjecting her to tirades of angry abuse; and generally being dismissive and denigrating of her. It is her case that these attitudes persist up until now and render any possibility of the parties having a shared care or equal time regime for X and Y both impractical and contrary to their best interests.
The father asserts that he has been malignly described by the mother and he can only be properly described as a loving and attentive husband and parent. In this context, he has deposed as follows:
I say that our marriage was loving and we enjoyed each other’s company. It seemed to me that the Mother was as happy as I was.
I conceded that our relationship was not perfect and the Mother and I occasionally argued. However, I would consider that these arguments were typical of a married couple. These arguments were over typical household disagreements and never escalated to violence.[3]
[3] See Affidavit of Mr Mullins filed on 3 November 2021 at [24]-[25].
In this context, the father specifically denies ever being verbally or emotionally abusive towards the mother. He asserts that she has, in effect, made up her criticism of him to secure a tactical advantage in these proceedings, both in terms of parenting and financial objectives and to secure advantages from the domestic violence and related agencies.
There is no controversy that the date of the parties’ final separation was 19 February 2019. On this date, whilst the father was at work, the mother packed some things for her and the children and left the parties’ former family home located at C Street, Suburb D (“the C Street, Suburb D property”), in the father’s motor vehicle. She drove to the children’s kindergarten, where staff helped her to get in touch with a domestic violence service.
It is the mother’s case that the previous evening, the father had come home from work in a bad temper, which had led him to subjecting her to a further episode of verbal abuse, in the presence of the children, which later escalated to physical violence involving her being assaulted by the father banging her head on a wall, whilst placing her in a head lock. From the mother’s perspective, this incident was the final straw and made her realise the marriage between the parties was untenable.[4]
[4] See Affidavit of Ms Lien filed 8 November 2021 at [71].
From the father’s perspective, the mother has grossly exaggerated what happened in order to pursue her own agenda, particularly in regards to her financial advancement. He alleges that the catalyst for the argument of 18 February 2019 was the fact that the mother had not attended to the necessary household tasks, whilst he had been at work, nor done the dishes, which caused him to remonstrate with her about what he considered her excessive attention to her mobile phone. He denies any violence on his part, alleging it was the mother, in fact, who hit him, rather than vice versa.[5]
[5] See Affidavit of Mr Mullins filed on 3 November 2021 at [55]-[58].
The mother and children stayed overnight on the evening of 19 February 2019 with the paternal grandmother, who at the time was well disposed to the mother. Later, the mother returned the father’s motor vehicle to the C Street, Suburb D property, whilst the father was out.
Over the course of the next few days, a domestic violence service assisted the mother to find secure, safe and hidden accommodation for her and the children and provided her with some basic necessities. The mother had little money and applied for Centrelink benefits. She wished to conceal her location from the father, on her case, because she was frightened of him.
In late-March 2019, the mother noticed that $1,081.00 had been withdrawn from her bank account by the father, which at the time, represented her entire worth. The father acknowledges that he took the money but denies he did so with any intent to exert control over the mother.
Rather, he asserts it was an act driven by his desperation and designed to get the mother to make contact with him, as he was frantically worried about her and the children, whom he had not seen for some weeks by then. It is his case that the parties’ separation came as a complete shock to him.
Against this extraordinarily difficult background, the mother, with the assistance of police, applied for a family violence order against the father, which was granted on 22 May 2019.[6] It did not include the children.
[6] See Annexure 2 to affidavit of Ms Lien filed 8 November 2021.
The police, who arranged the family violence order and served the application on the father, informed the mother that the father wished to see the children. As a consequence, on her own motion, the mother texted the father with a proposal that he spend time with the children on each weekend from 4.30 pm Friday to 4.30 pm the following Sunday, with handover to be at a police station in the city. The father accepted the proposal and the arrangement began on 17 May 2019.[7]
[7] See Affidavit of Ms Lien filed 8 November 2021 at [85]-[86].
It is Ms Lien’s position that how she behaved on this occasions is emblematic of her attitude to the whole case. Essentially, she is a reasonable and child focussed parent, who has always been open to the children having a relationship with their father, in challenging and difficult circumstances.
It is apparent that since this date the father has spent time with the children on a regular basis. As will be detailed in due course, this process has been fraught with all manner of difficulty, which I am satisfied emanate largely from the father rather than the mother. This too is a central evidentiary issue in the case.
The father commenced the proceedings on 11 April 2019, seeking orders in respect of X and Y only. He sought that he and the mother be conferred with equal shared parental responsibility and the children live with each of their parents on a week about basis. This remains his position.[8]
[8] See Initiating Application filed 11 April 2022.
The mother responded to this application on 10 July 2019. It is her position that the children love their father, and he loves them, and as such, she wishes the children to have a meaningful level of relationship with him. Despite this being her view at the present time, and almost certainly for the indefinite future, it is also her case that the parties themselves have no prospect of ever having any form of viable co-parenting relationship because of the fathers’ disparaging view of her and his inability to restrain himself from hectoring and badgering her.
In these circumstances, it is her position that, as the parent who has always been the children’s primary carer, she should be conferred with sole parental responsibility for them. In these circumstances, she initially proposed that the children live with her and spend every second weekend and one night of the alternate week with their father. She also advanced proposals for the children to spend time with their father, on special occasions and during school holidays for three nightly blocks, which in her view was commensurate with their respective ages and level of development.
The case came into court, for the first time, on 3 June 2019, by which time the father had spent several weekends with the children. The initial regime of time was formalised on 10 July 2019, at which stage the parties were referred to a reportable child dispute conference, with a Family Consultant, Ms E. This conference took place on 18 November 2019.
The mother reported to Ms E her view that the father had been financially controlling of her and had issues with managing his anger. In this context, she asserted that it was her perception that the father expected her to comply with his wishes as he had brought her to Australia.[9] The father denied these allegations.
[9] See Child Dispute Memorandum by Family Consultant Ms E dated 19 November 2019.
At this stage, the mother also indicated to Ms E her view that the father did not have a history of being patient with the children and, when stressed, was prone to shout at them.[10] She was also concerned that the father was likely to speak negatively about her to the children.
[10] See Child Dispute Memorandum by Family Consultant Ms E dated 19 November 2019.
In these circumstances, the mother was not in favour of the children having anything other than three-night blocks of time with their father. The mother was also concerned that X was beginning to show signs of aggression at school, which she attributed to him modelling his behaviour on that of his father.
It is common ground between the parties that the father has been previously married and has a child from his earlier marriage. The child is Mr L, who was born in 2002. Mr L used to spend time, with his father, whilst the parties’ marriage was intact. However, he has ceased to see his father and the mother asserts that she has been concerned about the father’s negative and derogatory attitude towards Mr L’s mother.
The parties agree that X has some issues with speech and language delay. He is also overweight. It is the father’s position that the mother has not provided an appropriate diet for the children and is unsupportive of them engaging in appropriate sporting activities. For her part, the mother disputes these allegations. It is her case that she has worked hard with X’s school to rectify his speech issues and helps him with his speech exercises, at home.
At the stage of the initial family dispute resolution conference, Ms E assessed the parties as having little effective communication.[11] At this early stage, the parties were apparently unable to agree on kindergarten/school arrangements for the forthcoming year. She recommended that a more comprehensive family report be prepared.
[11] See Child Dispute Memorandum by Family Consultant Ms E dated 19 November 2019.
In the context of the parties’ differing views about the nature of their relationship, with one another, Ms E provided the following direct observation of the manner in which the father interacted with the mother:
As the father walked through the waiting room where the mother was, he said loudly, in the hearing of both the family consultant and the mother, “It would be different if she had ever worked a day in her life!” His inability to control himself verbally in the court setting in front of the family consultant who was assessing them, raised concern as to his level of self-control and what he might say around the mother and in front of the children.[12]
[12] See Child Dispute Memorandum by Family Consultant Ms E dated 19 November 2019.
After having initially retained a solicitor, on 25 June 2019, the father became unrepresented.[13] The case returned to court, on 25 November 2019, after the release of Ms E’s report. On this occasion, an order was made for the preparation of a Family Report. The case was also fixed for final hearing on 28 & 29 September 2020. A notation to the orders drew attention to the application of the provisions of section 102NA of the Family Law Act 1975 (Cth)[14] to the proceedings.
[13] See Notice of Withdrawal filed 25 June 2019.
[14] Hereinafter referred to as “the Act”.
In general terms, section 102NA prevents a party to family law proceeding being personally able to cross-examine a former spouse in cases involving allegations of family violence. In particular, the court is authorised to prohibit a party cross-examining a spousal witness personally, if any of the following criteria are satisfied:
·Either party concerned has been convicted of or charged with an offence involving violence or a threat of violence to the other party;
·A family violence order (other than an interim order) applies to both parties;
·An injunction has been made under section 68B or 114 of the Act for the personal protection of either of the parties concerned; or
·The court makes an order prohibiting such cross-examination, which it may do so on its own initiative or on the application of a party to the proceedings concerned.
In addition, the court’s order of 25 November 2019 drew attention to the fact that an unrepresented party, affected by an order made under section 102NA, could apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for legal assistance to enable any necessary cross-examination, otherwise prohibited by the section, to be funded and undertaken by an appropriate legal practitioner, on his or her behalf.
The Family Assessment Report was completed by Ms F. She has qualifications in social work and has been a Family Consultant, providing reports for this court, since 2006. Her report was released to the parties on 14 September 2020. In her report, Ms F noted as follows:
At the conclusion of the assessment concern did remain as to the parties’ high level of acrimony and the children’s ongoing risk of exposure to conflict, both directly and indirectly. It appeared evident that the parties had made no improvements to their post-separation relationship since engaging in the CDC with Consultant Ms E and nor was the Consultant left with any confidence that this would improve over time.[15]
[15] See Family Report of Ms F dated 14 September 2020 at [74].
Whilst acknowledging it was the court’s function to make findings of fact regarding the parties’ competing claims as to the nature of their relationship, Ms F did not consider that shared parental responsibility was a viable option for the parties. In these circumstances, she was in favour of retaining the then current arrangements for the children’s care.
Much of the time allocated by the court its management of the parties’ case during 2020 (and indeed 2021) was taken up with its attempts to resolve the acerbic controversies between the parties regarding which school(s) the children should attend and how school holidays and particularly special occasions, such as Easter, should be managed.
It was a source of some grievance to the father that the mother initially wished to keep the location of her accommodation secret from him. In these circumstances, whilst she had limited transport, she enrolled X to attend at School A, which is proximate to her home but approximately twenty three (23) kilometres from where the father lives. In these circumstances, he wished X, and in time Y, to attend G School, which is close to where he lives.
Ultimately, I determined that both children should attend School A until the final hearing.[16] In addition, I attempted to make orders, which I thought were clear in their regulation of the children’s time with their father, particularly when the children should be returned to their mother’s care during school holidays and prior to the start of any relevant school term.
[16] See Mullins & Lien [2020] FCCA 3176.
In this context, it is the mother’s position that the father has been querulous and difficult to deal with and has intentionally misconstrued orders, leading to him over holding the children. In addition, it is her position that he has been secretive about his own personal arrangements, particularly involving him travelling to Country K to pursue a relationship there, leaving her to have to pick the slack, without notice, regarding care arrangements for X and Y.
The mother ventilates these concerns in the context of her assertion that the father has scant regard for her role as the children’s primary carer. I consider, from the evidence available to me, that there is validity to the mother’s concern in this regard. Sadly, the father has no capacity to empathise with the mother’s situation and, as exemplified by his comments to Ms E, it is my finding that he continues to regard Ms Lien with a significant degree of condescension.
When he commenced these proceedings, the father deposed that he was employed as a Manager for Employer M, a position which he had held for 7 ½ years, on a full time basis.[17] During his cross-examination, he indicated that he had been employed in the service industry for approximately 25 years and was extremely experienced in all aspects of the business, including the provision of quotes. His salary was approximately $60,000.00 per annum.
[17] See affidavit of Mr Mullins filed 11 April 2019 at [58].
The effect of Mr Mullins’ evidence was that he had managed a large workforce at Employer M and was well versed in every aspect of the business. The impression his evidence was undoubtedly intended to provide was that he was an extremely valued employee and remained so.
In May of 2020, the father filed an affidavit which indicated that he had been unlawfully dismissed from this position on 8 November 2019 and, as a consequence, had been forced to apply for Centrelink benefits. He foreshadowed that he would be seeking to amend his application to include orders for the settlement of matrimonial property. At the time, he continued to be self-representing.
As previously indicated, one aspect of the case which has presented difficulties for the court has been in regards to what the mother has characterised as the father’s lack of disclosure. She does not accept that he has not engaged in some form of paid employment in recent times or is unable to secure work for himself. Essentially, she asserts that he has elected to withdraw from the conventional workforce in order to defeat her claim or avoid the prospect of the former family home having to be sold.
In this context, I have been concerned that there was some level of disconnect between Mr Mullins’ current circumstances and how he has described his previous experience in the workforce. In addition, one of the issues, which the case threw up, was Mr Mullins’ capacity to borrow. For obvious reasons, Mr Mullins was likely to be more favoured as a potential mortgagor if he was likely to be able to return to the workforce sooner rather than later.
An issue, in turn, which was likely to be illuminated by any prognosis provided by either his general medical practitioner or any treating mental health professional regarding his health and it implications for employment. As a consequence of these concerns, I have constantly indicated to Mr Mullins the need for him to provide documentary evidence in support of his contentions regarding his medical incapacity and his fruitless attempts to obtain work.
The mother has been legally aided through the proceedings. On 29 May 2020, she indicated to the court that she would be applying for legal aid to either respond to or bring her own application in respect of financial issues.
On this date, other orders were made in respect of the children spending time with the father on X and Y’s respective birthdays; on Father’s Day; and during the mid-year school holidays, in blocks of three nights at a time, which was the mother’s preference, but not the father’s. At this time, it also became apparent that delays had arisen in respect of the preparation of the Family Report, previously ordered.
On 17 August 2020, the father filed a statement of his financial circumstances but did not delineate what final orders he sought in respect of the division of property. By this time, the mother had lodged a caveat on the former family home, which was registered in the father’s name and had been in his sole ownership at the time the parties commenced their relationship.
The mother filed an Amended Response on 13 September 2020. In this document, she proposed that she receive a cash sum, from the father, representing 50% of the net value of his interest in the C Street, Suburb D property and she be allocated 50% of his superannuation entitlements. One of the major reasons that these proceedings have been much protracted has been Mr Mullins’ unwillingness to cooperate with the process of having the former family home valued or to provide information about the amount owing on the mortgage.
Given the date on which property aspects were added to the proceedings, when coupled with the delay in the preparation of the Family Report, with Ms F’s report being released (mid-September 2020) it was apparent that the date scheduled for the final hearing (28 September 2020) was unrealistic. Indeed, the father himself applied to have this trial date vacated, which occurred on 26 August 2020.
In August and September 2020 the parties attended aborted conciliation conferences. From the mother’s perspective, these had no utility because the father declined to have the C Street, Suburb D property valued or to produce documents relating to his financial circumstances. The father continued to be representing himself.
Regrettably, it was my impression that this delay, and the adding of property issues to the case, exacerbated the already significant level of tension and mistrust between the parties. In these circumstances, particularly given the ongoing disputation between the parties regarding the logistics of time spending arrangements and notwithstanding the fact that it was apparent to me that the mother was not opposed to the children spending reasonable periods of time, with their father, it was clear that the dispute between them could be characterised as one of an intractable nature.[18] In these circumstances, I determined to make an order that X and Y be represented in the proceedings independently of their parents.
[18] See Re: K (1994) FLC 92-461 at 80,774.
The children’s representative is Mr Ashley Kent of the Legal Services Commission of South Australia, who briefed a barrister, Mr Hemsley, to appear at the subsequent final hearing of the proceedings. Mr Kent is to be regarded as a party of equal importance to the parents in the case. Pursuant to the provisions of section 68LA of the Act, Mr Kent is under a statutory duty to gather and examine all relevant evidence and advocate the outcome, which he believes will best serve the interests of the children, whom he represents.
Mr Kent does not favour that the parties be conferred with equal shared parental responsibility for X and Y, as he does not believe that they are capable of making a consensual decisions in regards to them. Rather, he apprehends that there is a risk that the father will bully the mother and attempt to impose his will upon her. In addition, Mr Kent does not believe that a week about regime is either in the children’s best interest or a feasible arrangement, in practical terms.
From my perspective, one of the reasons why the current proceedings can be characterised as intractable is the fact that the father is so intent on achieving his preferred outcome in the case that he is incapable of considering any other outcome or having regard to any other person’s views in the matter, particularly those of the mother, whom he continues to hold in low regard.
These not inconsiderable difficulties have been much compounded by the dilemma created by the parties’ competing property applications, although until fairly recently, the father’s position was opaque in regards to them. The difficulty can be easily delineated but its emotional and practical consequences are undoubtedly highly corrosive and, as such, the court’s resolution of the issue has the potential to add yet more conflict to the parties’ already conflicted relationship.
The father purchased the C Street, Suburb D property in 2002, some 10 years prior to the parties’ relationship. It was the parties’ home for around 7 years, during which time the father was in the paid workforce and made all the necessary mortgage payments on the property. In these circumstances, he regards it as his sole property and any claim of the mother to it to be highly dubious.
Mr Mullins cannot be regarded as a wealthy person. It is his case that he is currently unemployed and has scant prospects of returning to the paid workforce, notwithstanding his prior good employment record in the service and repair industry. He does not have any formal skills or trade qualifications. He asserts that he cannot borrow any further on the mortgage, although he has provided no documentary evidence in support of this assertion or medical evidence in respect of his alleged incapacity to work.
For understandable reasons, he has a strong emotional connection to the C Street, Suburb D property, which has been his home for over 20 years. In addition, from his perspective, it is X and Y’s home, which he wishes to share with them. It is his case that, if the property is sold, it will be close to impossible for him to ever again become a home owner.
On the other hand, the mother is a migrant to Australia and speaks English as her second language. She too has no formal skills or qualifications, which are recognised in Australia. In addition, she has responsibility to parent X and Y. Due to the father’s unemployment, she receives limited child support from the father.
At the present time, Ms Lien has secured employment as a beauty therapist. This type of employment provides her with a modest hourly income of $27.00 per hour and is one which she can fit around her responsibilities, so far as X and Y are concerned.
Both parties assert that they have significant medical issues, which limit their employment possibilities. However, limited evidence has been provided in respect of these issues and certainly no expert medical evidence. In addition, although the father asserts that since being terminated by Employer M, he has made numerous unsuccessful job applications, he has provided no documentary evidence that this is the case. It is the mother’s position that, it is more likely than not, Mr Mullins has been working informally for cash.
It is the father’s case that he has suffered significant depression for many years, which is treated with medication. Ms Lien has deposed that she had a difficult confinement, when X was born, which has resulted in damage to her abdominal muscles. As such, it is difficult for her to lift anything heavy.
Ms Lien obtained her qualifications as a beauty therapist as a consequence of completing a TAFE course. This is the type of occupation, which suits individuals who do not speak English with fluency. In the past, she has considered seeking training as either a care worker. However, she believes that her abdominal injuries preclude her from such occupations, as she will be unable to lift children or other persons for whom she will be required to provide care.
In all these circumstances, if the evidence provided by the parties is accurate, both of them face an uncertain financial future and each of them has a pressing need for some form of accommodation security going into the future.
If the father remains unemployed, being in his late forties without significant savings and skills, he can only be regarded as being significantly disadvantaged. As such, the prospects of the C Street, Suburb D property being sold, forcing him into some form of rented accommodation, must be regarded as extremely serious.
On the other hand, the mother is living in rented accommodation. Her major source of financial support is social security. Her employment prospects can only be considered as being limited. She is currently required to provide the majority of care for the parties’ two primary school aged children.
For obvious reasons, it would be of great assistance to her if she could have access to a significant capital sum, which she could put towards securing some form of secure accommodation for herself and the children. As a consequence of these matters, the property aspects of the case are extremely problematic.
The father, in my assessment, is not well placed temperamentally to grapple with these extraordinarily difficult issues. Rather, his inclination is to ignore them in the hope they will go away or do his best to frustrate Ms Lien’s application. This state of affairs has made this difficult case, even more difficult.
On 27 November 2020, the court made a formal order, pursuant to section 102NA(2) of the Act restraining the father from being able to cross-examine Ms Lien in the proceedings. I was satisfied that it was untenable, given the issues of family violence raised in the case, when coupled with the incongruity of the parties’ respective cultural backgrounds, for the father to be able to directly cross-examine the mother. I was also fearful that he might not be able to maintain his composure, whilst doing so.
On this date the case was also re-fixed for final hearing on 10 to 12 November of 2021. One of the consequences of this order was that Mr Mullins became eligible for legal assistance pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme,[19] which he was able to secure. I was hopeful that legal advice might assist him to focus more effectively on the difficult issues, which the case had created. From my perspective, there was plenty of time in which any outstanding issues regarding the valuation of the C Street, Suburb D property could be resolved.
[19] Hereinafter referred to as the “Commonwealth Scheme”.
In anticipation of the trial, Mr Mullins’ solicitor filed a trial affidavit, on his behalf, on 3 November 2021. This included a table of assets and liabilities, all of which had estimated values, including that of Mr Mullins’ superannuation, with an industry fund, which was asserted to be $160,000.00. At this stage, Mr Mullins estimated the parties’ net pool of assets to be worth $201,000.00. He estimated the C Street, Suburb D property to be worth $360,000.00.[20]
[20] See affidavit of Mr Mullins filed 3 November 2021 at page 24-25.
The mother’s solicitor, Ms Temnoff has deposed that she that she wrote to Mr Mullins in October of 2021 requesting that he agree to a valuer being granted access to the property. It is her evidence that he did not respond.[21]
[21] See Annexure 14 of affidavit of Ms Lien filed 8 November 2021.
The first order for the valuation of the C Street, Suburb D property had been made on 27 November 2020. On 29 October 2021, the matter was re-listed on which occasion it was ordered that Mr Mullins grant access to a valuer to conduct a valuation of the property. When the trial commenced, I was informed that no value could be attributed to the property because it had not been valued.
Conduct of the Proceedings
Ms F gave evidence on the first day of the hearing. Thereafter, the bulk of the three days allocated for the trial were taken up with Mr Mullins’ evidence, particularly his extensive cross-examination by counsel for the mother and Independent Children’s Lawyer.
It is necessary for me to indicate the evidentiary standards which apply to these proceedings and provide my overall impressions of each of the parties. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[22] I have tried to reach my conclusions on credibility and reliability ‘on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events’.[23]
[22] See Evidence Act1995 (Cth) s 140.
[23] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
Mr Mullins was not an impressive witness. I found him querulous and difficult. He was obstructionist and did not answer questions directly. Undoubtedly, he is a person who has little facility with words and, as such, it was impossible not to feel sorry for him as he essentially floundered in the witness box. All in all, he did not acquit himself well and I have grave reason to doubt his credibility on central issues, particularly regarding issues of coercion and control in the parties’ relationship.
He attempted to portray himself as a capable and loving spouse and parent, who had been falsely maligned by Ms Lien. In this attempt, in my assessment, he failed miserably. He described himself, on several occasions as being a highly emotional person, who was not a cardboard cut-out. I accept that Mr Mullins is a person who does express his emotions forcefully. However, I am concerned that this includes the negative aspects of his personality, which he finds difficult to control. My impression is that he is a bully.
Mr Mullins’ view of Ms Lien is essentially negative. He regards her as poor parent and a manipulative spouse. This is most apparent in his criticisms that Ms Lien is neglectful of X’s diet and has allowed him to become obese and is not supportive of his speech therapy and education. It was close to impossible for Mr Mullins to curb his dismissive attitude towards Ms Lien in the witness box, which mirrored the manner in which he chooses to communicate with her in text messages and electronically.
In my assessment, his portrayal of her is at odds with reality and how she actually presented in court. In my view, Ms Lien is reasonable and conciliatory by nature and a loving and well-motivated parent. Certainly, I can find no evidence that she is desirous of removing Mr Mullins as an influence in the children’s lives.
Rather, what she wants is to be left alone and freed from being constantly hectored and badgered by Mr Mullins. In her own words, she has got sick of Mr Mullins keeping going on and on about what he sees as her failings as a parent. I accept that she wants to be left alone and to be able to get on with her own life.
One of the more compelling aspects of Mr Mullins’ attitude and behaviour to Ms Lien appears in a series of emails, which Ms Lien supplied to the Independent Children’s Lawyer as being indicative of the manner in which Mr Mullins chooses to communicate with Ms Lien[24] and in text messages which she annexed to her trial affidavit.[25]
[24] See Exhibit C.
[25] See Annexure “9” to the mother’s affidavit filed 8 November 2021.
On 4 July 2021, Mr Mullins indicated his view that he was unable to trust Ms Lien. He wrote as follows:
WHY cannot I see them 50/50 for the whole year??? I know because you lose money from centrelink…how deplorable…maybe different in 2 years when governments force you to work.[26]
[26] See Annexure “7” to the mother’s affidavit filed 8 November 2021.
In earlier texts, he disparages her for not providing a birthday cake for X, which is comparable in price to one which he obtained. In addition, Mr Mullins openly indicates that he will not be complying with court orders regarding handover times for the children. In my view, this is a significant aspect of the case. I am concerned that Mr Mullins has been engaged in a subtle form of mind games with Ms Lien in his withholding of the children and his disparagement of her. In particularly, I am concerned that he is intent on wearing her down emotionally so that he can get his own way.
In an email dated 12 March 2022, he upbraids Ms Lien for her continual lying; accuses her of showing off her new lounge and television to her boyfriend; and expresses the hope that she fully cleanse the premises in which she lives. On 30 March 2022, he criticises her for failing to apply moisturiser properly to the children and asserts that she gets financially compensated by the government for placing restrictions on the children from seeing myself more than the 35% of less you keep demanding for no reason???[27]
[27] See Exhibit C.
He further criticises the mother for allowing the children to have wax in their ears; for not washing Y’s school hat; and for placing the children in clothes that are too big for them. He characterises Ms Lien as having no pride in the children’s appearance. He asserts his view that the mother is moonlighting with her beauty therapist job as the children have told him that she is able to buy new furniture. He concludes his criticisms with the following: many many other issues, but will take small steps and see if you can rectify!!!
In my view, the tone of the correspondence is patronising and hectoring. I can well understand why Ms Lien would find it wearisome and want it to stop. Significantly, in my view, it also incongruent with how Ms Lien presents as a parent. Her evidence in respect of how she has attempted to help X with his speech difficulties indicate a solicitous and caring parent.
As the Independent Children’s Lawyer pointed out, if Mr Mullins was so concerned about the state of Y’s school hat, it was open to him to wash it. Ms Lien indicated that the school authorities had recommended the size of the relevant school jacket in question, so the children could grow into them. She indicated that she received many many texts from Mr Mullins and her impression was that he wanted to keep pushing at her.
Ms Lien indicated that she had no concerns about the children’s physical safety, when in their father’s care. Rather her concerns were based on what she characterised as the risk of mental injury. She deposed that she was worried about the possibility of Mr Mullins losing his temper with the children and the manner in which he spoke when he was angry. She described X as being a good boy but she was worried that he was becoming aggressive, in his behaviour, like his father. She was also concerned about the prospect of the two children being constantly exposed to his negative view of her. This was also a concern expressed by Ms F.
In my assessment, Ms Lien was a credible and impressive witness, who answered the questions put to her, notwithstanding her English deficiencies, honestly and succinctly. She did not seem intent on bad mouthing Mr Mullins. Rather, she presented as a person who wanted to get on with her life and have a normal post-parenting relationship with her former spouse. Unlike Mr Mullins she did not present as vindictive in nature.
Mr Mullins did not cope well with being cross-examined and having his assertions about Ms Lien methodically dismantled, leaving him with the appearance of a person who had bullied Ms Lien during their marriage and afterwards. On the third day of the trial, he indicated that he was unable to continue with his evidence because his mental health was in jeopardy. On this basis, the trial had to be adjourned part heard until May of 2022.
However, in the meantime, interim orders and interlocutory directions needed to be made to deal with parenting arrangements over the impending end of year holidays and to advance the property aspects of the case, particularly in respect of the outstanding valuation of the C Street, Suburb D property. Regrettably, this second aspect could not proceed due to the actions of Mr Mullins.
During the course of the hearing in November of 2021 I went to some length to explain to Mr Mullins what I regarded as the deficits in his case, particularly in regards to achieving his objective of avoiding the sale of the C Street, Suburb D home. These deficits centred on the absence of an agreed value of the property; evidence regarding the extent of the mortgage it secured; his borrowing capacity, if any; medical evidence regarding his capacity to return to the workforce; and his efforts to secure employment for himself.
On 7 December 2021, Mr Mullins’ solicitor appointed pursuant to the Commonwealth Scheme withdrew from the proceedings. The relevant Notice of Ceasing to Act informed Mr Mullins of the adjourned direction hearing of 11 February 2021. Mr Mullins did not attend the hearing date and nor did he provide any evidence as to why he did not do so.
In so doing, he replicated his earlier conduct, when he had been self-represented, of not attending directions hearing or indicating that he was unwell, without providing any supporting medical certificate regarding incapacity. My understanding was that Mr Mullins had lost confidence in the solicitor and counsel appointed for him pursuant to the Commonwealth Scheme.
The hearing of 11 February 2022 occurred electronically. Accordingly it was open for Mr Mullins to attend the hearing from his home, as he had done previously. Whether he elected to do so but chose to not to identify himself to the court is unknown to me. Regardless, on this occasion, I reiterated what I regarded as the deficits in his case but considered that I had no option other than to confirm the hearing.
On 12 May 2022, another firm of solicitors filed a Notice of Address for Service for Mr Mullins but filed no further documents. The matter was then called on for mention on 17 May 2022, the week prior to the resumption of Trial. Mr Mullins’ previous counsel Mr Roberts also appeared, apparently retained by the new solicitors. However, Mr Roberts indicated to the court he was without current instructions and it was his understanding, from what Mr Mullins had told him during the earlier hearing, that he (Mr Mullins) had no confidence in his (Mr Roberts’) advice.
Regardless of this, on 23 May 2022 after some discussion the hearing recommenced, Mr Mullins apparently elected to proceed with the remainder of the hearing with Mr Roberts being retained as his counsel. In these circumstances, the cross-examination of Mr Mullins was completed, as was the cross-examination of Ms Lien. Regrettably, a formal valuation of the former family home remained outstanding.
On 24 May 2022 Mr Roberts provided documentary evidence in respect to Mr Mullins’ superannuation, which had long been outstanding. This indicated that he had holdings, with Super Fund H, as at 30 June 2012, in an amount of $61,940.12. In addition, he provided a printout, from Super Fund H, dated 23 May 2022, which indicated his total preserved amount was $168,207.16.[28] Mr Mullins acknowledges that he accessed the fund, as he was entitled to do, to draw down the two government authorised withdrawals of $10,000.00 stemming from the pandemic emergency measures.
[28] See Exhibit D.
In addition, at this stage, Mr Roberts also provided an appraisal, which he had apparently personally obtained from a real estate agent, Mr P, which attributed a value of between $485,000.00 and $495,000.00 to the C Street, Suburb D property if some improvements were made in respect of its current presentation. The appraisal in question included the following statement: “The undersigned is not a valuer but an agent of some 30 years plus experience.” The appraisal was not acceptable to those advising Ms Lien.
It did however provide the basis for Mr Roberts’ submissions as to what was an appropriate resolution of the property proceedings between the parties. In this context, Mr Roberts quantified the net pool of non-superannuation assets to be $313,739.09; with superannuation to amount to $168,893.56;[29] totalling $482,632.65.
[29] Includes Ms Lien’s superannuation of $686.40.
On the basis that the vast proportion of this sum was introduced by Mr Mullins, it is proposed that it be divided on an approximately 75/25% basis in Mr Mullins’ favour but with the vast majority of the sum of $126,000.00 involved coming from a split of $110,000.00 from his superannuation fund, with the balance coming in cash from an undisclosed sources.
Ms Lien’s position remains unchanged. She seeks a 50% distribution of the non-superannuation assets be made in her favour; together with an equalisation of superannuation. At the conclusion of the proceedings, it was her position that given the uncertainty of the valuation of the C Street, Suburb D property, such an outcome could be achieved only through the compulsory sale of the property, regardless of Mr Mullins’ objections to such a course. In addition, at the end of submissions, no formal documentary evidence had been provided in respect of what was the amount outstanding on the mortgage.
Given Ms Lien’s rejection of Mr P’s appraisal as a basis for valuing the former family home, and in the absence of evidence regarding the mortgage balance, perhaps unwisely, I elected to give Mr Mullins a further opportunity to have the property valued and to provide evidence regarding the mortgage balance. Ms Lien indicated a willingness to pay the valuation fee, on the basis that it was subsequently approached as a joint matrimonial liability. The time limit for the provision of this evidence was stipulated to be 8 June 2022.
On 8 June 2022, Ms Temnoff produced a copy of the valuation report of Mr O, who had been her client’s preferred valuer throughout the proceedings. He valued the property at $440,000.00. I propose to adopt this valuation. Mr O’s fee for the valuation was $770.00.[30]
[30] See “Annexure 5” to the affidavit of Ms Temnoff filed 8 June 2022.
The order of 24 May 2022 finally resulted in Mr Mullins providing a copy of his home loan summary, from the Commonwealth Bank, which indicated the balance owed as at 1 January 2022 to be $188,301.34, which had been modestly reduced to $186,397.64. During this period, the statement indicates that Mr Mullins repaid the sum of $4,745.55; withdrew $459.00; which on my calculations represents an average weekly repayment rate of $204.12. This equates with his oral evidence that the monthly required payment on the mortgage is around $900.00.
I have limited evidence regarding Mr Mullins’ financial circumstances. In his Financial Statement filed on 17 August 2020, he asserts his sole source of income is social security of $300.00 per week and his weekly expenses as being $625.00. He recently provided statements of his credit card debts. Ms Lien has provided an up to date statement of her Centrelink entitlements, in contrast to Mr Mullins.[31]
[31] See Exhibit B - Centrelink Income Statement dated 17 May 2022.
This indicates her percentage care of the children concerned has been assessed as being 71%. This entitles her to a parentage payment of $693.08 per fortnight; an energy supplement of $12.00; a pharmaceutical allowance of $6.20; and family tax benefit part A of $382.48. In the other week of the fortnight, she receives rent assistance of $171.50; and family tax benefit part B of $113.54. I have no reason to believe that she is not declaring the income she is currently receiving as a beauty therapist.
However, notwithstanding Mr Mullins’ evidence that he was significantly unwell and so precluded from engaging in the paid workforce, I have received no medical evidence from him or any documentary details of his attempt to gain work. In my view, this is a significant deficit his case. In addition, I am satisfied that Mr Mullins has been obstructive in how he has elected to approach the case although whether this has been as a consequence of ignorance, fear or for some more malign motivation is unknown to me.
Legal principles Applicable
Parenting proceedings
Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[32]
[32] Family Law Act 1975 (Cth) s 60CA.
Part VII is subject to a number of principles and objects set out in section 60B. These, if you like, provide the philosophical underpinning of the Act, as it relates to decision-making so far as children are concerned. The court is obliged to ensure that a child’s best interests are served by ensuring it considers various fundamental principles. I will provide each of them verbatim:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
What is interesting to note about these various principles and objectives is the fact that it is children who have rights under the legislation and parents who have obligations and duties. In particular, the court is directed to ensure that children receive the benefits, likely to accrue to them, of having a meaningful involvement with a parent. This right must be viewed within the context of the child’s overall best interests, which consist of a number of specific considerations and factors.
The Act, picking up on section 60B, provides a specific list of matters, which the court must take into account in determining how a child’s best interests are to be served in the making of any parenting order. They are contained in section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations of which there are two and additional considerations, of which there are some fourteen in number.
The two primary considerations, set out in section 60CC(2)(a) and (b), are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In the past, these considerations were not formally ranked in regards to one another. They are now. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration”.[33] Future protective issues for a child are the court’s priority.
[33] Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth).
Accordingly, the legislature has directed the court, in respect of how a child’s best interests are to be secured, to give pre-eminence to protective concerns raised in respect of the child’s exposure to abuse, neglect and family violence.
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in section 4AB(1) of the Act. The essential elements of the definition are that the behaviour in question, to amount to family violence must coerce or control another family member.
The behaviour need not be violent, in itself, or cause fear in the person to whom it is directed. It is a definition directed towards coercion. The impugned conduct is centred on power in relationships and the use of such power to control another family member.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
•overhearing threats;
•seeing or hearing an assault;
•comforting or providing assistance to a member of the child’s family, following an assault;
•cleaning up after property has been damaged; and
•being present when police attend an incident involving an assault.
Again, these examples are not definitional of whether a child has or has not been exposed to family violence. What is pivotal is that the child concerned experiences its consequences. It is the mother’s case that X, in particular, has experienced his father behaving violently and coercively towards her. Ms F has provided supportive expert evidence in this regard.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Most usually, it occurs behind closed doors, within the private confines of a family home and the only adult witnesses available to give evidence about it are the parties to it. As such it is not open to outside scrutiny.
Accordingly, it is very often difficult, if not impossible, for there to be independent verification that family violence has occurred in a particular relationship if no relevant external authority has been engaged, such as the police. In addition, it is not uncommon for the victims of family violence to be too embarrassed to complain to authorities or to be fearful about the implications of making such a complaint. However, the court needs to be mindful that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.[34]
[34] See Eaby & Speelman (2015) FamCAFC 104 at [21] (Ryan J).
Family violence is not homogenous in its qualities and can arise in a variety of contexts. As outlined above, it is centred on issues of power and control in intimate relationships and the implication of such behaviour for children and their carers. In this context, it is well recognised, including by the legislature through the provisions of the Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[35] Not all incidents of family violence will be necessarily damaging for a child.
[35] See In the Marriage of JG & BG (1994) 18 Fam LR 255, 261 (Chisholm J).
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other parent are not appropriate psychological role models for children.[36]
[36] See In the Marriageof Patsalou (1994) 18 Fam LR 426, 428 (Baker J).
However, notwithstanding the primacy to be given to protective concerns, the court cannot overlook the benefits likely to accrue to a child from meaningfully interacting with a parent. Necessarily, the court must attempt to balance the competing claims of the two primary considerations. How this balance is to be achieved, to secure an outcome consistent, to the maximum extent, with the best interests of the child, must depend on the idiosyncratic circumstances of each case.
The aspects of a child’s life, in which a parent can be meaningfully involved, are, for obvious reasons, potentially multifarious. They include engaging in “fun” activities conducted on holidays and weekends – essentially interacting with their parents in a relaxed setting – as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, and collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
If the parties had remained married, Mr Mullins’ superannuation would have been applied to their joint support. More significantly, Ms Lien’s contributions, as a homemaker and parent, freed up Mr Mullins to remain in the paid workforce and so continue to accrue superannuation.
c) Step Three – the prospective needs of the parties
I am now required to consider the various matters set out in section 75(2), and in particular to consider whether any further adjustment should be made in favour of either party. The s 75(2) factors are mainly, but not only, prospective in nature.
Mr Mullins is 49 years of age. Other than his depression, he asserts that he enjoys good health. It is to be expected that he has the potential to be engaged in some form of productive work for the next fifteen years or so. Ms Lien is 33 years of age. All things being considered, she has a potential working lifespan of around thirty years.
In this context, the court is required to make some sort of assessment of their respective capacity to engage in appropriate gainful employment. In my assessment, this act of prognostication, which the Act requires, is extremely difficult in the present case.
Mr Mullins, after an adult life time of hard work, asserts that he is unable to find appropriate employment for himself. The evidence indicates he has both skills and experience in stores, warehouses and service and repair, which in the past has provided him with a modest but reliable income. In the past, he has been able to earn around $60,000.00 per annum.
In addition, I consider that I am entitled to take judicial notice of the fact that currently in Australia, unemployment rates are at forty years lows and there is a shortage of labour in this country.[87] In this context, the issue for the court is whether there is some idiosyncratic or subjective factor or factors, relevant to Mr Mullins himself, which are liable to render it difficult for him to return to the workforce, of which he was a part, for the past thirty years or so.
[87] See Evidence Act 1995 at section 144.
I accept Mr Mullins has suffered from depression for much of his adult life. I have not been provided with any medical assessment of his disability or prognosis of what is the likely impact of his condition on his capacity to engage in employment. I do know that it did not prevent him from working in the past and Mr Mullins himself has not indicated that his condition markedly impacts on his functioning.
Mr Mullins did not present well in court. Having said that, I acknowledge that the courtroom is a stressful environment and my impression of Mr Mullins is that he does not respond well to stress and this brings out a combative aspect of his personality. In this context, I cannot rule out the possibility that Mr Mullins’ at times bombastic and oppositional temperament may make him an unattractive employment prospect, even at times of labour shortage.
In addition, I do not know the circumstances surrounding his dismissal from Employer M. It may be the case that he will not receive any positive reference from this firm and, as such, other repair businesses, based in Adelaide, may be reluctant to take him on or know him by reputation. However, all these are conjectures on my part and Mr Mullins has provided limited evidence of his efforts to find alternative employment, of which both Ms Lien and I remain suspicious.
Ms Lien has lived in Australia for around ten years, during which period, to her credit, she has achieved reasonable fluency in English and become acculturated to life in a culture different to that of her birth. However, the fact remains, she has limited vocational skills and speaks English as a second language. As such, it seems to me to be axiomatic that she is likely to face some challenges in obtaining secure employment and whatever work she does obtain will be unskilled in nature and possibly casual.
In her affidavit evidence, she provided compelling evidence as to the physical difficulties she suffered during the births of her children. It is her evidence that she cannot lift anything heavy and this effectively rules her out for the care sector, which are the areas of employment frequently pursued by female, unskilled, migrant workers, such as herself.
In this context, I note that I do not have any expert medical evidence to support her assertions but they do not seem improbable to me. My overall impression of Ms Lien is that she is not a person who is averse to being engaged in the workforce. However, the problem she faces in this regard is a lack of suitable work, when coupled with her responsibility to parent to primary school aged children.
At present, Ms Lien’s only source of paid work is a beauty therapist, employed on a casual basis, at $26.00 per hour. This is not likely to provide her with any great employment security or any form of assured career path. As such, in my estimation, Ms Lien faces an uncertain employment history and there is a very good possibility that she will remain in receipt of social security, as her major source of income support, for the foreseeable future.
Whatever work she does obtain is likely to be both part-time and unskilled due to her responsibilities to provide care for X and Y. I also found her evidence about the logistical issues and expense of OHSC, in her circumstances, to be compelling. I accept that it is extremely difficult and expensive for her to utilise paid child care to allow her to work more hours.
I also accept that she has limited family support in this regard and to ask Mr Mullins to help is not a viable option for her given the state of her relationship with him. Interestingly, I note that he does not have the same degree of compunction, so far as she is concerned, given his decision to travel to Country K to pursue his own interests in that country on the assumption that she would be available to take up his usual time with the children in his absence.
Accordingly, I accept that the mother’s responsibilities to parent the children during the working week, as well as for extensive periods during school holidays, will adversely impact upon her employment prospects and impinge upon her capacity to provide financial support for X and Y.
I acknowledge, of course, that Ms Lien does not bear the responsibility for the financial support of the children alone. She is entitled, as she has done, to seek an assessment of child support from Mr Mullins. At present, due to his unemployment, Mr Mullins is providing only limited child support to the mother. In addition, the evidence indicates that he is not particularly amenable to providing it to her. He has challenged assessments relating to both child support and family payments in the AAT.
The weight to be attached to a child support assessment will vary in the circumstances of each particular case concerned. The court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the children concerned and whether child support is likely to be paid regularly and at an adequate rate in future. It must also not be forgotten that the payment of child support in no way compensates the main care providing parent for the loss of career opportunity and the inevitable restrictions on working hours and job choices, which the care of children, particularly young ones, usually entails.[88]
[88] See Clauson & Clauson (1995) FLC92-595 at 81,911.
In my view, these are the more significant of the applicable considerations arising under section 75(2) and, in my assessment, in combination favour the mother more than the father. Although he is older, in my view, he is likely to have the better employment prospects by virtue of his past work history and skills. He has an employment track record, in Adelaide, whilst Ms Lien does not or certainly not to the same degree. In addition, her responsibilities for X and Y significantly curtail her opportunities.
It has been said by the Full Court that the most valuable “asset” a party can take out of a marriage is “a substantial, reliable income-earning capacity”.[89] In my view, neither party has such an obvious substantial income-earning capacity. But overall, in my assessment, Mr Mullins’ capacity to earn an income, largely by dint of his previous experience, is likely to be more reliable than that of Ms Lien. In my assessment, this combination of criteria strongly favours her. On this basis, I would allow an allowance of a further 10%, on the 30% already allocated to her by virtue of contributions, leading to a 60/40% division in Mr Mullins’ favour.
[89] See Clauson & Clauson (1995) FLC 92-595 at 81,911.
In terms of what is a just and equitable outcome in the case the court must have regard to the financial implications of their respective superannuation holdings and what are the likely ramifications of any splitting of these holdings in the context of preparedness for retirement.
As a consequence of his consistent employment and the application of the Superannuation Guarantee, Mr Mullins has accrued exponentially more superannuation than Ms Lien, who has no superannuation of any relevance. However, Mr Mullins’ current balance is unlikely to be sufficient to augment significantly any pension benefits, to which he will be entitled on reaching his retirement age, unless he keeps contributing to the fund.
A large split from the fund, at this stage, is also likely to have significant implications for his standard of living when he is in late 60’s. The next decade, if Mr Mullins is able to return to the workforce, is likely to be crucial so far as this is concerned. Given his age, it would be prudent that Mr Mullins gives some regard to these issues. At the same time, I also appreciate that security of accommodation and the remission of debt are also central considerations in respect of retirement planning.
Ms Lien is in her early 30’s. As a consequence, retirement planning is far from the forefront of her mind. In these circumstances, a split from Mr Mullins’ superannuation will have no immediate consequences for her financial security. To all intents and purposes, it will have no meaning for her. On the other hand, a significant sum of cash will provide her with a measure of protection against unseen financial exigencies. It may also provide her with a nest egg, which might conceivably be used to purchase some form of accommodation for herself.
These are the type of issues which the court must balance in determining what is the fair mix of assets and superannuation, which should be conferred on the parties at the conclusion of these proceedings. For understandable reasons, both are focussed on the present rather than the future in this regard.
As such, neither finds the option of receiving more rather than less superannuation a particularly palatable option. From Mr Mullins’ perspective, the focus is on retaining the home rather than on more distant issues relating to his retirement, which is around 20 years off, given current aged pension entitlements.
The court is directed to consider a reasonable standard of living, for each of the parties concerned. This recognised one of the financial realities of separation. More often than not it inaugurates a drop in living standards for each of the parties concerned. Certainly that is the case in the present matter. As Asche SJ recognised in Magas two households cannot live as economically efficiently as one. This is obviously the case in terms of accommodation, which must be duplicated.
In this case, Mr Mullins has had the not inconsiderable benefit of being able to live in the former family home, together with all its furnishings and equipment, whilst Ms Lien has had to move into firstly emergency accommodation and then rented accommodation. It is her case that she needs some of the capital represented in the C Street, Suburb D property to allocate towards her and the children’s future needs.
The rationale of the consideration is that it is not just and equitable for any drop in living standards to be disproportionately borne by one party. However, if the property is sold, it may release insufficient equity to enable either of the parties to purchase alternative accommodation or to be comfortably housed.
This is the gist of Mr Mullins’ position. From his perspective, it would grossly unfair to force him into the rental market by the sale of the property, which he brought into the relationship many years before, particularly if it means that both parties must continue to rent. In addition, such an outcome is unlikely to be helpful for X and Y, who will be deprived of the sense of connection to a family home.
On the other hand, it also has the potential to be grossly unfair to Ms Lien for her to be deprived of her proper entitlements, according to law, because of the difficulties which their realisation will cause to her former spouse. This is the sad fact to which Asche SJ referred and cannot be used as an argument to deny Ms Lien was she is due.
Many matrimonial property proceedings, in my view, represent both a problem to be solved and a ticking bomb. The aspiration being to disarm the bomb and solve the problem the case represents with the minimum level of harm to all concerned. To achieve the optimal outcome, it is necessary for the parties concerned to cooperate and focus on the issues at hand, to avoid a cascade of negative consequences.
Regrettably, in the current matter, there has been scant cooperation. Rather, Mr Mullins has approached the case with denial and obfuscation. I can understand why this has been so but it is not been helpful to him and his case. He has presented few mechanisms as to how capital could be liberated from the C Street, Suburb D property. He has provided no evidence as to his borrowing capacity, if any. He failed to cooperate with the valuation process. More significantly, I do not consider that he has been candid about his income earning potential. Axiomatically, if he is employed, Mr Mullins is likely to have a greater capacity to borrow.
The only proposal made by Mr Mullins is that Ms Lien should receive the lion share of the superannuation so that he is only required to pay her an extremely modest amount of cash in order to avoid the sale of the home. It is Ms Lien’s position that this would be unfair to her, particularly given the fact that Mr Mullins has failed to grapple with the issue in any practical way.
In these circumstances, Ms Lien contends that she has no option other than to seek the sale of the property so she can receive her proper entitlements. She asserts that it would not be proper if she receives a disproportionate amount of superannuation in order to mollify Mr Mullins. Given that, in practical terms, superannuation is of no use to her in the short to medium term. It is also her position that it would be a fair outcome if each party leaves the proceedings with the same level of preparedness for retirement, by reference to the current superannuation holding, which each will have the opportunity to augment in future.
Section 75(2)(o) authorises the court to consider any other fact or circumstance which in its opinion the justice of the case requires to be taken into account. In Ferguson & Ferguson[90] the Full Court of the Family Court held that the provision was to be read ejusdem generis, with the other matters listed in section 75(2), which enabled the court to bring into account conduct which has an economic significance in the parties’ dealing with each other or the property in dispute.
[90] See Ferguson & Ferguson (1978) FLC 90-500 at 77,607.
In this context, I consider that I can take into account the likely financial detriment arising for Mr Mullins if he is forced off the home-owning ladder at this age. If it is possible the court should avoid the sale of the property, but only if it is satisfied that Ms Lien is not inequitably dealt with. In this context, the court should give consideration to giving Mr Mullins some reasonable amount of time to satisfy any judgment against him, which will also entail him reconsidering his employment position and exploring options to borrow.
conclusions regarding Property – justice and Equity
In practical terms, the most significant aspect of this case is the modest pool of assets and superannuation in comparison the significant current and future financial needs of the parties themselves and their two comparatively young children. As such, it is, in my view, a fiendishly difficult case, which can only provide unpalatable outcomes for those involved in it. The real danger for the court being in trying to be fair to both, the outcome disadvantages both of them.
Stepping back and viewing all the evidence, notwithstanding my serious criticisms of him, I am satisfied that it would be unfair to Mr Mullins if the court did not give sufficient recognition to the fact that, at the outset of the parties’ marriage, he owned a home and had accrued superannuation; whilst Ms Lien had no financial backing.
However, it would be fundamentally unfair to Ms Lien if the court did not recognise her contributions as a parent and homemaker. In addition, although neither party can be assured of any sort of comfortable financial future, in my assessment, Mr Mullins is likely to be better placed in this regard because of his work experience and skills, if he elects to utilise them.
In Steinbrenner & Steinbrenner,[91] Coleman J observed as follows:
Given the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.[92]
[91] See Steinbrenner & Steinbrenner [2008] FamCAFC 193.
[92] See Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] (Coleman J).
I am currently at the point in the judgment at which the court must make the metaphorical leap from words to figures or from abstractions to what is concrete. After all, it is all well and good to talk in percentages, so far as orders and outcomes are concerned, but what matters to the parties is what the orders mean to them in dollars and cents and what effect they have on their long-term plans and aspirations.
This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned. As I have previously indicated, I am well aware that Mr Mullins will perceive the sale of the home to be unfair to him and the sense of resentment this will inculcate in him is not likely to be helpful to the family overall.
In these circumstances, I have reached the conclusion that it would be fundamentally unfair to Ms Lien that she should receive the preponderance of her entitlements in the deferred form of superannuation or that her contributions should be diminished to accommodate Mr Mullins’ need. However, in my view, it would be fair to allow some moderation in the allocation of assets in recognition of Mr Mullins’ superior initial contributions and more significantly permit an extension beyond what is normally permitted to enable him to see if he can raise the sum required.
In general terms, I propose to apply the 60/40% division to the combined total of assets and superannuation to arrive at a base sum to be paid to Ms Lien. However to moderate the cash sum to be paid to her, I will allocate her 50% of the combined superannuation amount, which will be defrayed from what would otherwise be her entitlements from the C Street, Suburb D property.
40% of the combined non-superannuation and superannuation ($411,482.73) is represented by the sum of $164,593.09 and 60% by the sum of $246,889.64. An equalisation of superannuation would require a split in Ms Lien’s favour, out of Mr Mullins’ superannuation in an amount of $83,760.38.
Utilising this figure, but to bring about an overall 60/40% division, on the basis that Mr Mullins keeps the Suburb D property and all the debts, including the valuation fee, would require him to pay Ms Lien the sum of $80,146.31. I will grant him a period of time to pay this sum of twelve (12) months from the date of these orders and direct that interest attach to the sum at the cash rate set by the Reserve Bank of Australia at the date of payment as calculated from 30 days after the date of these orders to the date on which it is paid.
If the sum is not paid, by the due date applicable on 16 August 2023, the C Street, Suburb D property will have to be sold. In these circumstances, the necessary calculation will require Ms Lien to be paid a sum which recognises her entitlement to 40% of its proceeds, after selling costs; discharge of the mortgage; payment of any other outgoings; and the debts of the parties’ crystallised in the amount of $11,013.19, when the sum of $168,893.56 (the current total combined superannuation) is added from which is deducted the amount of $83,760.38.
It will be necessary to make an order requiring Mr Mullins to pay all necessary mortgage payments and other outgoings relating to the mortgage and direct that the Commonwealth Band of Australia (CBA) provide her with a copy of the relevant statement. If Mr Mullins defaults in this regard, she is granted liberty to apply to the court at short notice to have the property sold forthwith.
I acknowledge that this is a cumbersome procedure and does not represent any form of clean break between the parties vis-à-vis their financial relationship. It does however give Mr Mullins a brief period in which to see if he can obtain the comparatively modest amount required to acquire Ms Lien’s interest in the property and avoid the very great upheaval of having to find another form of accommodation for himself.
In this context, I note that the proceedings have been on foot for over three years. In these circumstances, the delay in respect of Ms Lien receiving her entitlements does not seem to me to be an inordinate one. In my view, the sum in question will provide some modicum of financial security for Ms Lien. I concede the outcome is a far from perfect one but, on balance, I am satisfied that it is a fair one.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and forty two (442) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 17 August 2022
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