Nash and Nash
[2009] FMCAfam 766
•20 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NASH & NASH | [2009] FMCAfam 766 |
| FAMILY LAW – Parenting – time child is to spend with father – mother’s inability to foster a relationship between child and father – psychological abuse – child’s wishes – parents’ inability to communicate – interim or final orders – property – modest assets – wife seeking to keep the former matrimonial home – whether cohabitation on foot – consent for superannuation in property pool – just and equitable order – wife’s need for spousal maintenance – husband’s ability to pay spousal maintenance – duty to disclose financial documents – future earning capacity of the husband. |
| Family Law Act 1975, ss.60B, 61DA, 65DAA(1), 60CC, 79, 75(2), 4AA, 72, 74, 75(3), 81 |
| Archbold, In the Marriage of (1984) 9 Fam LR 798 C v B [2005] FamCA 94 CDJ v VAJ (No. 1) (1998) 197 CLR 172; [1998] HCA 67 Chang v Su (2002) 29 Fam LR 406; [2002] FamCA 156 Clauson, In the Marriage of (1995) 18 Fam LR 693 C v C (2005) 33 Fam LR 414; [2005] FamCA 429 DJM v JLM (1998) 23 Fam LR 396; [1998] FamCA 97 Ferraro, In the Marriage of (1992) 16 Fam LR 1 Goode v Goode (2006) 36 Fam LR 422; [2006] FamCA 1346 Gould & Gould (2007) FLC 93-333; [2007] FamCA 609 Grabar, In the Marriage of (1976) 2 Fam LR 11,581 Hickey, In the Marriage of (2003) 30 Fam LR 355; [2003] FamCA 395 Kannis & Kannis (2002) 30 Fam LR 83; [2002] FamCA 1150 Larvin & Larvin (No.2) [2009] FamCA 475 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92 Mitchell, In the Marriage of (1995) 19 Fam LR 44 Murkin and Murkin (1980) FLC 90-806 Nutting, In the Marriage of (1978) FLC 90 - 410 Patterson, In the Marriage of (1979) FLC 90 – 705 Pavey, In the Marriage of (1976) 10 ALR 259 PS & MA [2005] FMCAfam 486 R (Children’s Wishes), In the Marriage of (2002) 29 Fam LR 230; [2002] FamCA 383 Scott, In the Marriage of (1994) 17 Fam LR 420 Scott v Stauder (unreported, judgment delivered 20 November 1996) Tait & Densmore [2007] FamCA 1383 Todd, In the Marriage of (No 2) (1976) 9 ALR 401 Vasser v Taylor-Black (2007) 37 Fam LR 256; [2007] FamCA 547 W v W (1997) 21 Fam LR 343 |
| Applicant: | MR NASH |
| Respondent: | MS NASH |
| File Number: | SYC 5800 of 2008 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 20, 21, 22 July 2009 |
| Date of Last Submission: | 22 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2009 |
REPRESENTATION
| Counsel for the Father: | Ms Gillies |
| Solicitors for the Father: | Thurlow Fisher Lawyers |
| Counsel for the Mother: | Mr Harrison |
| Solicitors for the Mother: | Slattery Jurd & Company |
ORDERS
All previous parenting orders be discharged
That the parties are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the child [X], born in 1999
That the child live with the mother, Ms Nash.
That the child spend time with the father, Mr Nash, on a gradual basis as follows:
From 20 October 2009
(a)From 10am to 8pm on every second Saturday starting 24 October 2009;
(b)From 10am to 6pm on every second Sunday starting 25 October 2009;
(c)During the December/January school holiday period the first 3 Saturday’s of that period from 10am to 8pm starting 26 December 2009 and the first three Sunday’s of that period from 10am to 8pm starting 27 December 2009.
(d)From 1:00pm to 6:00pm on Christmas Day.
From 20 January 2010
(e)From 9am to 8pm on every second Saturday starting 30 January 2010;
(f)From 9am to 6pm on every second Sunday starting 31 January 2010;
(g)During the April school holiday period the first Friday, Saturday and Sunday of that period from 10am to 8pm starting 9 April 2010.
From 20 April 2010
(h)From 9am to 8pm on every second Saturday starting 24 April 2010.
(i)From 9am to 6pm on every second Sunday starting 25 April 2010; except on Mother’s Day Sunday 9 May 2010.
(j)Every second Friday from the conclusion of school until 8pm starting 30 April 2010.
(k)During the July school holiday period the first Friday, Saturday and Sunday of that period from 10am to 8pm starting 9 July 2010.
(l)On the child’s birthday from 2pm to 8pm.
(m)During the September/October school holiday period the first Wednesday, Thursday Friday and Saturday of that period from 10am to 8pm starting 29 September 2010.
From 20 October 2010
(n)From 9am Saturday to 6pm Sunday on every second weekend starting 23 October 2010.
(o)Every second Friday from the conclusion of school until 8pm starting 29 October 2010.
(p)During the December/January school holiday period, from 9am Saturday to 6pm Sunday on the last three weekends of that period starting 8 January 2011.
From January 2011 Onwards
(q)From the conclusion of school Friday to the commencement of school Monday every second weekend starting 4 February 2011.
(r)From the conclusion of school Wednesday till the commencement of school Friday starting 9 February 2011.
Except as provided in the orders above, for one half of each gazetted New South Wales school holidays as agreed between the parties but failing agreement being the second half in 2011 and each alternate year thereafter and being the first half in 2012 and each alternate year thereafter;
From 9.00a.m Christmas Eve until noon on Christmas Day in 2010 and each alternate year thereafter and from 2.00p.m on Christmas Day until 5.00p.m on Boxing Day in 2011 and each alternate year thereafter;
Except as provided above, on the child’s birthday as follows:
(a)If the birthday falls on a school day, from after school the evening prior to her birthday until the start of school the day of the birthday in years ending in an even number and from after school on her birthday until the start of school the next day in years ending in an odd number;
(b)If the birthday falls on a weekend or school holiday when the child is not spending time with the father for four hours from 9.00am to 1.00pm.
If Father’s Day falls on a day when the child is not spending time with the father from 9.30am to 8pm each year.
At such other or alternate times as agreed between the parties.
Pursuant to section 13C of the Family Law Act 1975 the father must within 7 days contact Relationships Australia (1300 364 277) or UNIFAM (02 8830 0777) to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a parenting orders program.
Both parties must attend the appointment at any reasonable location nominated by Relationships Australia or UNIFAM and complete the assessment.
Relationships Australia or UNIFAM must be provided with a copy of this judgment.
If assessed as suitable and Relationships Australia or UNIFAM nominates counselling, mediation including child inclusive mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
Both parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Both parties to share equally the costs of the program.
The father shall provide [X] with a mobile telephone and sufficient credit to make and receive telephone calls.
The father may communicate with [X] on her mobile telephone at all reasonable times, but not more than three (3) times a week.
Both parties shall facilitate the child communicating with the other parent by telephone whilst she is in their respective care should she express a wish to do so.
For the purpose of changeover, and where changeover will not take place at school, the mother shall deliver the child to the father at the McDonalds Family Restaurant at [omitted], at the commencement of each period and the father shall return the child to the mother at the McDonalds Family Restaurant at [omitted] at the end of each period.
Both parties notify the other in writing of any change of address or telephone contact numbers including mobile telephone numbers no later than twenty one (21) days prior to any proposed change, including the full details of the new address or telephone number.
Both parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Both parties are hereby restrained from:
(i)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing.
(ii)Discussing any proceedings between the parents in the presence or hearing of the child or permitting any other person to do so.
That within 90 days of the date of these orders the wife pay to the husband by way of property settlement the sum of seventy six thousand seven hundred and forty-four ($76,744.00) dollars.
That simultaneously with compliance with Order (23) herein the following occur in relation to the former matrimonial home situated at and known as Property E, NSW being the whole of the land contained in Certificate of Title Folio Identifier Lot [omitted][“the home”].
(a)The husband shall do all acts and execute all such documents as are necessary to transfer to the wife the whole of his right, title and interest in the home.
(b)The wife discharge the loan secured by way of mortgage on the home as at the date of payment in its entirety.
and thereafter the wife indemnify and keep indemnified the husband in relation to the mortgage and other outgoings on the home.
That simultaneously with compliance with Order (23) the parties shall also discharge the personal loan that stands in their joint name with the Commonwealth Bank of Australia namely loan account number [1] in its entirety.
That from the date of order, the Wife continue to meet the mortgage instalments on the home as and when they fall due.
That from the date of order the wife meet all other outgoings in relation to the home including but not limited to the council rates, water rates and utilities.
In the event the wife fails to comply with Order (23) herein or fails to discharge the home loan in accordance with Order (24) herein by the due date, the husband and the wife shall forthwith do all things necessary to effect a sale of the home to be sold by private treaty at a price agreed between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale the proceeds to be distributed in the following order and priority:
(a)In payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
(b)In adjustment of rates and other outgoings in accordance with usual conveyancing practice;
(c)In discharge of the loan secured by way of mortgage registered on the title of the home;
(d)In payment to the wife in the sum of $24,622.00
(e)In payment to the husband of 35% of the balance then outstanding.
(f)In payment to the wife of the balance.
In the event the home has not been sold by or before a date three (3) months from the date Order (28) becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the home upon the following terms:
(a)The auctioneer shall be a real estate agent;
(b)The reserve price shall, unless agreed between the parties, be as proposed by the auctioneer;
(c)Upon completion of the sale the proceeds shall be distributed in accordance with Order (29) herein.
That pending the transfer of the husband’s interest in the home, or the date of sale of the home in accordance with these orders, the wife shall have the exclusive right to occupation of the home.
Within 21 days of the date of these orders the wife shall make available to the husband or the husband’s nominee the following items;
(i)Family Crest
(ii)Chandelier
(iii)Framed picture of girl and dog
(iv)Antique Phone
(v)2 Antique side tables
(vi)Antique cigarette stand
(vii)Grey Briefcase
(viii)Record Collection
(ix)Gym set and equipment
(x)Tools
(xi)Clothes
The husband is declared the sole legal and beneficial owner of the 2002 Nissan Pulsar motor vehicle registration number [I].
Within 21 days, the Husband must do all acts and execute all documents to transfer to the wife the registration and all the right, title and interest in the Nissan motor vehicle registered number [U].
Within (2) months of the date of these orders, and in the event the wife is able to locate the photo albums, the wife shall deliver to the husband’s solicitors photographic copies of the family photo albums, pictures of the father’s family and the children.
Except as otherwise provided for in these orders each party is declared to be the sole beneficial owner of any property standing in their possession as at the date of these orders. This includes, but is not limited to, any bank account, superannuation fund, shares, stocks, debentures, chattels or real property.
Except as otherwise provided for in these orders each party is declared to be responsible for any debt standing in their sole name as at the date of the making of these orders.
The husband pay spousal maintenance in the sum of $50.00 per week until 12 July 2017.
IT IS NOTED that publication of this judgment under the pseudonym Nash & Nash is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5800 of 2008
| MR NASH |
Applicant
And
| MS NASH |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to an application made by the applicant father for parenting orders in relation to the child [X] (‘[X]’) born in 1999. In essence, the applicant has sought orders for him to spend increased time with [X], including overnight time. The respondent mother has sought, amongst other things, orders that the child spend time with the applicant each Wednesday from after school until 8:00pm during school terms and on two out of every three Saturdays from 9:30am to 8:00pm.
The parties in this matter also have competing applications in respect of property interests pursuant to s.9 of the Family Law Act 1975 (Cth) (‘the Act’).
Background facts
The applicant father, Mr Nash (‘the father’), was born in 1964 and is currently 45 years old. The respondent mother, Ms Nash (‘the mother’), was born in 1967 and is currently 41 years old. The parties married in 1989. Until separation at the beginning of 2008 the parties had been together approximately 19 years. They have two children - [Y] born in 1991 and [X], the subject of the proceedings with respect to parenting orders. [Y] is 18 years old and is not subject to the parenting proceedings.
The children currently live with the mother in the former matrimonial home in Property E. The maternal grandmother, Ms P, lives in a granny flat at the rear of the property.
The father left the matrimonial home on or about April 2008 after commencing a relationship with Ms D. The father and Ms D met in March 2007 at [omitted]. A more intimate relationship between the father and Ms D did not start until, in or about, February 2008.
Since leaving the matrimonial home the father claims to have been living over two residences, at his brother’s house in [A] and at Ms D’s residence in [D]. Ms D has one son, [Z], who is 16 years old and lives with Ms D in [D].
The children’s relationship with their father has deteriorated as a result of the parties’ separation in 2008. Since leaving the matrimonial home the father’s time with his daughters has been limited. He now has no on-going contact with his daughter [Y].
On 9 September 2008, the parties agreed on a parenting plan at the Family Relationships Centre at [B]. This allowed for the father to spend weekend time, including overnight time, with [X].
On 24 September 2008, an incident occurred at the [P] Hotel between the parties. Both the incident and its aftermath are relevant to these proceedings and I will provide further details later. This event appears to have contributed significantly to a further breakdown in the relationship between the father and his daughters. He was issued with an Apprehended Violence Order (AVO) for the protection of the respondent as a result of the incident, at [B] Local Court on 2 October 2008.
On 3 October 2008 the father filed his initiating application in this Court seeking both parenting and property orders. On 10 October 2008, the parties agreed by consent that, inter alia, the child spend time with the father each Wednesday evening and specific dates on the weekend.
Further orders were made by Federal Magistrate Sexton on
3 November 2009 which provided for the father to spend time with the child each Wednesday evening and two out of three consecutive Saturdays on a rotating basis. Those orders noted that [X] was not spending overnight time with the father and encouraged overnight time to commence as soon as possible but as agreed between the parties with the assistance of C. In accordance with those orders, the father and [X] attended counselling sessions at Centacare [B] between November/December 2008 and May 2009. The mother did not attend the counselling sessions, despite the orders of Federal Magistrate Sexton.
The matter came before me for a three day final hearing on 20 July 2009.
The evidence
At the hearing the father relied upon the following material:
a)His Affidavits sworn 25 February 2009 and 10 July 2009;
b)His Financial Statement sworn 25 February 2009; and
c)Affidavit of Ms D sworn 10 July 2009
The mother relied upon the following material:
a)Her affidavit sworn 26 June 2009;
b)Her financial statement sworn 26 June 2009;
c)Affidavit of Ms P sworn 26 June 2009; and
d)Affidavit of Ms B (the mother’s sister) sworn 28 October 2008
The father, the mother, Ms D and Ms P attended the hearing and were examined and cross-examined. Ms B was not called and was not required for cross-examination. The family report writer, Ms Rachel Brace, attended the hearing for cross-examination.
Parenting
The issues in dispute in relation to the parenting of [X] are broad. At hearing, the only issues the parties were able to agree upon was that there should be equal shared parental responsibility for [X] and that the child spend time with the father on father’s day and Christmas.
The father originally sought orders for a week about arrangement, however following the recommendations of the family report writer and the evidence provided by her in cross-examination the Minutes of Order was amended to include a more graduated regime as follows:
a)That the child live with the father each Wednesday from the conclusion of school until 8:00pm and from each Saturday from 9:30am till 8:00pm. This was essentially similar to the arrangements in effect at the time of final hearing.
b)Following that two month period, the child spend time with the father during school terms on a two week cycle so that the child stays with the father from after school Friday to the commencement of school Monday during the first week and after school Wednesday to the commencement of school Thursday during the second week.
The mother sought orders that the child have no overnight time with the father. This was premised on the fact that the child had expressed a very clear view that she did not want to spend overnight time with her father.
The family report writer – Rachel Brace
A family report was prepared dated 16 July 2009 by Ms Rachel Brace. Interviews were carried out by Ms Brace on 25 June 2009 with both parties, the maternal grandmother, [Y] and [X]. Further interviews were carried out on 7 July 2009 with the father, Ms D and [X]. On
9 July 2009 Ms Brace spoke by telephone to [X]’s school principal,
Mr G, and her school teacher, Ms R.
I accept to a large extent, the evidence provided by the report writer in relation to the child’s relationship with both her parents. Her observations of [X] with her mother and father were consistent with the other evidence before me.
The family report writer noted:
[X] appeared relaxed and comfortable in the presence of her mother, sister and maternal grandmother. When with them she laughed, joked, initiated conversation and joined in their conversations. She was observed to seek to be in close physical proximity to her mother whenever her mother was available to her…[X] identified her mother, sister and maternal grandmother as her most important source of support and comfort and as the people who can make her feel better if she feels angry or sad.
And further:
Observations of [X] and her mother indicate that they share a close and loving relationship. This sense of connection with her mother appears to make her particularly sympathetic and sensitive to her mother’s needs and feelings, especially in relation to her parents’ separation and the current parental dispute.
In contrast, the report writer expressed concern about the child’s relationship with her father. She noted that on the first day of interviews there was minimal communication or interaction between [X] and her father despite the father interacting with [X] in a warm and appropriate manner. On the second day of interviews the report writer noted that a sense of comfortableness and familiarity had grown between [X] and her father and that there was no indication that she was fearful or anxious, especially in less formal surroundings.
The report writer expressed concern about the quality of the existing parental relationship and the effect it was having on [X]. She gave detailed evidence of the continuing parental tensions, poor parental co-operation and difficulties in communication.
The report writer noted that the on-going conflict between the parties presented an array of problems and challenges for [X]. I agree that both parents lack any insight as to the effect of their behaviour on their daughter and that this is having a negative impact on her.
Some of the examples provided by the report writer of the parties’ lack of insight were:
a)The parties’ inability to effectively communicate at changeover at the police station and the parties limited insight as to how this might affect [X];
b)The parties’ inability to effectively resolve the issue at the [P] Hotel on 24 September 2008;
c)The fact that both parties attribute the conflict in the parental relationship and the difficulties in communication to the other party;
d)The parties’ inability to negotiate and present a united front to [X];
e)The father’s lack of understanding of his daughter’s needs when she spends time with him. The report writer noted that the father needed to realise that one-on-one time with his daughter without Ms D present would be beneficial;
f)The father asking the child questions such as “are you happy to hear from me” on the telephone added pressure to the child’s experiences with her father;
g)The mother’s lack of flexibility around changing arrangements to meet [X]’s needs on particular occasions;
h)The mother informing [X] of the issues present in the parental relationship, including the AVO and the father wanting to sell the house. The report writer agreed that this might paint the mother as a victim and negatively impact the child’s perception of her father.
The report writer expressed concern that [X]’s emotional regression and her increased dependence on her mother may be a response to continual and direct exposure to the obvious tension in her parent’s relationship. She stated that this could be affecting the child’s relationship with her father.
The report writer went on to say that even if the mother was encouraging [X] to have a relationship with her father, the non-verbal messages the mother sends can be every bit as powerful as those being verbalised.
…it is not just words, it is the tone in which things are delivered, it is the manner, it is the non-verbal communications that are just as important as the verbal communications…
The report writer stated that [X] could be picking up on these non-verbal messages and that they may be influencing her views and her attitude, without her even being aware of it.
The report writer also stated that [X]’s inability to express to the mother that she is having a good time with her father could be a result of her loyalty to her mother and not wanting to upset her or loose the emotional security that the maternal family provides. Ms Brace stated that [X] not being able to express how she feels adds to the challenges she faces in her day-to-day life.
Given this, the report writer stated that it is not surprising that [X] answers in the negative when she is asked if she wants to spend more time with her father. Her sense of loyalty to her mother, sister and maternal grandmother prevail, especially in circumstances where the child is aware that none of these women have a relationship with her father.
The report writer’s evidence was that the mother, the maternal grandmother and [Y] needed to actively encourage and positively support a relationship between [X] and her father and that if this does not happen there could be long term detrimental effects on the child. The report writer conceded that any inability to foster a relationship between [X] and her father could amount to a form of abuse that the child needed to be protected from.
To help in this process, the report writer agreed that the mother would benefit from counselling, specifically relating to her own personal issues with regards the marital breakdown as well as a parenting course to help her deal with some of the issues she confronts with [X]. The report writer noted that the mother may gain some confidence in applying strategies that can be used to help manage [X]’s behaviour.
Perhaps the most contentious issue arising from the report writers evidence was that she did not initially, in her report, recommend any overnight time for [X] with the father and recommended that the child spend time with her father each Wednesday from after school until 7:30pm and each Saturday from 9:30am until 8pm, on father’s day and at other times as agreed between the parties.
When asked whether the child needed increased time with her father, away from the mother’s household so that she could form an independent view about her relationship with her father the report writer stated:
She is going to have to move through this current developmental stage because developmentally she is at an age where that sense of morality about somebody’s wrong[doing] or who is at fault, that things are either one way or the other [is still present]…
I agree that the child still feels immense hurt at the breakdown of her parents’ relationship and that there is a degree of blame attached to her father’s actions around the time of the marital breakdown and events following. No doubt, these feelings will continue until the right supports are put in place to help the child work through these emotions so that she might better understand the change that is going on around her.
I also accept that if [X] were to sense that the emotional security that she gains from her mother and her maternal family were to be threatened, then this would cause [X] a lot of damage.
After extensive cross-examination on this point, the family report writer agreed that she would be willing to change her recommendations if the right safeguards were put in place. She stated:
…there does need to be some therapeutic intervention for this family if [X] was to be expected to spend, I guess, overnight times or substantial and significant time with her dad because I think there needs to be some supports for [X] and some supports to help the parents possibly develop some insight into their own behaviour or reflect on what their own behaviour may be doing to their daughter and what that might mean for her and to help them work on how they relate to one another. That is what I am trying to say and I believe if that was able to happen and both parents were deemed to have the capabilities or the capacity to change what they are doing, with the right supports and the right structure, then that is a completely different scenario for [X] and would change maybe the type of parenting arrangement that she could cope with and that might work for her…
The report writer noted that if the Court were to find in favour of overnight time for the father, this should be implemented on a graduated basis and that therapeutic support be put in place for [X] including a parenting orders program. The report writer advised that there needed to be a suitably qualified person involved in the process on a therapeutic level to monitor [X]’s development, to determine how she is coping and to determine whether she is ready for increased time. The report writer also reiterated that for a graduated regime to be effective the parents must attempt to present a united front.
I have taken into consideration, and place significant weight on the family report writer’s evidence in this regard. In particular, I note the need to give [X] some “breathing space” and to move forward in a careful and graduated way.
Legal principles
The legal principles which govern this case are set out in Part VII of the Act. Most importantly, s.60CA provides that the best interests of the child are the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:
… to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
(emphasis added)
The principles underlying these objects are:
… that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court may make a parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters set out in s.60CC(3).
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both parents; and secondly, the need to protect the child from physical or psychological harm; from being subjected to, or exposed to, abuse, neglect or family violence. Considering that both parties insinuated physical and/or psychological harm against the child, these are very important considerations and I give them much weight because they are primary considerations and reflect the objects of the Act as set out in s.60B.
The Full Court in Goode v Goode (2006) 206 FLR 212 summarised the structure and effect of the decision making process in Part VII of the Act:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
There is a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for that child; s.1DA (1). This presumption does not apply if I find that there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence; s.1DA(2). In the event that I do find that a parenting order should be made for equal shared parental responsibility, I must also consider whether the child spending equal time with each parent is in the child’s best interests and is reasonably practicable; s.5DAA(1)(a) and (b). In the event that I do not find that it is in the child’s best interests for the child to spend equal time with each parent, then I must consider ordering that the child spend ‘substantial and significant’ time with each parent, again with the best interests of the child in mind; s.5DAA(2).
Application of the law to the facts
The primary considerations
The benefit to the child of having a meaningful relationship with both of the child's parents
Both parents were involved in the care of the child during the marriage, although it was disputed to what degree. The mother still enjoys a close, loving relationship with [X]. The father’s relationship with [X] is far more problematic. The mother stated that the father was not an interested father (at least in relation to [X]) although he loved her and wanted to have input in her life.
I accept the father’s evidence that he did have a meaningful relationship with his daughter before separation. The father provided the following response when asked in cross-examination whether the mother was the primary care-giver of [X]:
She probably had a little bit more time than I did, but in saying that, sir, I can tell you that a child of her age goes to school most of the time during the day Monday to Friday. On Saturday my wife works. And then on Saturday I would spend - I would take [X] to tennis lessons. I would also take her to the park and spend the whole of the day with her, including time during the evenings when my wife was at work either assisting in homework or during daylight hours playing out in the backyard and doing regular father-daughter relationship activities
Since separation the child has lived with the mother, although [X] has spent time with the father on a regular basis. The child’s relationship with her father has clearly been affected as a result of the breakdown of the marital relationship and the events on 24 September 2008. However, I am confident on all the evidence that this relationship is capable of being restored.
As stated by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 a meaningful relationship or meaningful involvement “is one which is important, significant and valuable to the child”. Further, as stated by Cronin J in Tait & Densmore [2007] FamCA 1383:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
It is important to note the recent Full Court authority in McCall & Clark [2009] FamCAFC 92 where Bryant CJ, Faulks DCJ and Boland J stated that a “prospective approach” should be taken in determining the benefit to a child of a “meaningful relationship”:
We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents.
There can be no denying that the father is an important figure in the child’s life. The benefits that the child can experience by having a relationship with him are extensive, and are different to those the child enjoys with her mother. The types of activities that the father engages in with [X] at the moment are appropriate and demonstrate an eagerness on his part to make amends. I have no reason to believe that this will change in the future.
The father provided evidence of engaging in physical activities such as tennis, swimming, going to the park and water skiing with [X]. The father also has taken [X] to a games arcade and shopping on numerous occasions. I also note the father’s failed attempt at taking his daughter to karaoke.
There was also evidence that of the father trying to make [X] feel as comfortable as possible in his care.
There is no doubt that this relationship was of significance to the child, and that with the appropriate support structures in place, it can be restored. The current reluctance of the child to engage in this relationship is understandable, though I am confident that this expressed reluctance will gradually subside. As noted by Cronin J in Larvin & Larvin (No. 2) [2009] FamCA 475:
The Court cannot manufacture a relationship but rather, give the parties and a child every possible opportunity to commence, resume or develop such a relationship.
Having regard to the objects of the Act, and all the evidence, I am confident that the orders I have made will provide for this to happen.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The issue of harm to the child was raised by both parties in this matter. It was the father’s case that the mother’s inability to foster a relationship between himself and [X] constituted a form of long-term psychological abuse. I will deal with this later under s.60CC(3)(c) although I note that harm is to be dealt with as a primary consideration.
It was the mother’s case that the father had caused harm to the child as a result of the incident at the [P] Hotel and the events following on
24 September 2008 and that this had impacted significantly on the child’s relationship with her father.
There was considerable evidence in regard to this incident, however I will not go over it in detail.
What is important is that the incident would not have occurred had the father simply told the mother that he was taking the child to the [P] hotel to join the karaoke night. The mother was under the impression that the father and [X] were simply going to McDonalds for dinner.
The mother claims that she tried to call the father’s mobile telephone twice when she heard [X] was at the pub. The father claims his mobile telephone was on, that he had full reception and that he never received any telephone calls from the mother.
The mother drove to the [P] Hotel and states that she walked up to the table where [X] was sitting and said: “[C]ome on bubby [sic], let’s go”. Ms D, who was alone with [X] at the table at the time, claims the mother said “You do not bring her into a pub” and that the mother then physically removed [X] from the hotel.
The parties did not engage in any form of communication during this time or in the immediate lead up to it. The father’s evidence was that the mother had walked straight past him to get to the table where Ms D and [X] were sitting and had made no attempt to talk to him about her concerns. In cross-examination the mother conceded that “I maybe should have said something to [Mr Nash], but as far as that goes, that’s about it.” The mother stated she had no other regrets about the night.
The father then followed the mother and [X] to the mother’s car. He recalled the child looking upset and distressed. At the car, the mother claims the father screamed at her “You have no right to take her” and that “You are a fucked mother”. The father claims to have said “You have no right to walk in and take her she was about to sing Karaoke”.
The father then followed the mother and [X] back to the former matrimonial home. He states he wanted to make sure [X] was ‘OK’. Once at the home the father knocked on the door approximately 6 times before trying to open the door with his keys. The mother claimed she held the lock with her hand to prevent the door from opening. The father then proceeded to kick in one of the glass panels on the door. The father recalled [Y] and [X] screaming and the maternal grandmother threatening to call the police.
The mother accepted that it was out of character for the father to show any sign of violence and that he had never behaved in this way before.
Despite this an Apprehended Violence Order was taken out by the mother against the father. On 2 October 2009 the father agreed to the AVO at the [B] Local Court and stated in evidence that this was to try and minimise the problems between the mother and himself.
This incident highlights the extent of the communication breakdown between the parties and their inability to put their differences aside in the best interests of their children.
I find that this incident clearly affected [X]’s relationship with her father in the sense that it has undermined the child’s trust and confidence in her father.
I am also mindful and accept that this was an isolated event. The mother herself stated that it was out of character for the father to behave in this way. In any event, violent behaviour in front of the child, however “out of character” is quite simply unacceptable.
I have had regard to the evidence provided by the report writer and the mother detailing the nightmares the child has suffered as a result of this incident and I will refer to these in more detail later in the judgment.
In conclusion, there is no indication that the child needs protection from any on-going physical or psychological harm at the hands of the father and I am confident that another such incident is unlikely.
Further, I note that the [P] Hotel does host kids nights (Exhibit A3) and that orders restraining the father from taking the child to any hotel or other licensed premises are not necessary. I note the child has attended licensed premises before.
Additional considerations
(a) Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The child expressed very clear views to the report writer about what she wanted in relation to future parenting arrangements. The child initially said to the report writer that she would like to be able to “only see Dad when I want to not because I have to”. She wanted to see her father “not all the time [and] not so early in the morning”. The reason for this was that she said that she’d “rather stay at home with Mum” and “I miss Mum when I’m with Dad”. When asked about sleeping over at the father’s house, [X], stated “I don’t want to sleep over, I have nightmares”. The child went on to state that she would be “very very very very very very very upset” should the Court order her to spend more time with her father than she currently does. [X] noted that things would be “a bit better if [Y] was seeing Dad too”.
Given that [X] has clearly stated a view of what she wants in relation to future parenting arrangements between her parents and has fervently expressed a view as to how she would feel if those views are not adopted by this Court, I place significant weight on them. Having said that however, I have also had regard to the fact that [X] is only 10 years old and that her views may be influenced by her sense of loyalty to her mother; In the Marriage of R (Children’s Wishes) (2002) 169 FLR 243.
The mother also maintains that the child had expressed very clear views to her about having to spend time with the father. The mother states that on numerous occasions the child has remarked “Why do I have to go and see Dad, I don’t want to have to go and see him” and “Why do I have to go and see Dad? I don’t want to go with him! I don’t want to see Ms D! I hate going there! Why do I have to go when [Y] doesn’t have to go?” This view was said to have been expressed over and over by [X] to the mother and featured consistently throughout the mother’s evidence. Again, I place weight on the child’s views, but balanced by the child’s age and her sense of loyalty to her mother.
(b) The nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)
The child’s relationship with her mother
The child’s relationship with her mother is undoubtedly close. There is evidence provided by the mother, the maternal grandmother and the report writer detailing the connection they share and I accept that evidence. The report writer noted in her report that the child “seemed particularly guarded in her responses about her mother of whom she seemed very protective and loyal”.
The father did raise some concerns about the nature of the “co-dependent” relationship between [X] and the mother. The father expressed to the report writer a view that the mother-daughter relationship as it currently stands is impacting negatively on the child’s overall development, particularly her social development.
One observation that the father did raise, and which I find quite concerning, was the fact the child and the mother had shared the same bed from April 2008 through to February 2009 immediately following the breakdown of the parties’ marriage. I note that Federal Magistrate Sexton in November 2008 made an observation to the mother that the child should not be sharing a bed with her, especially in circumstances where the child was showing such dependence on her mother. In cross-examination it was revealed that the child continued sleeping in the mother’s bed until February 2009, four months after Sexton FM had urged the mother to stop this practice.
Although the mother did concede that it was unhealthy for the child to be sleeping in the same bed as her, she outlined the difficulties she had experienced getting [X] back into her own bed, this included moving [X] out of the granny flat at the rear of the property and back into the main house.
If anything, I find that this demonstrates the mother’s inability to appropriately deal with the child and her demands and highlights a need for the mother to attend a parenting program to help her set and maintain boundaries for [X].
I find that [X] has a very strong relationship with her mother who has shown herself to be a loving and caring parent. No doubt this relationship has been strengthened by the sudden departure of her father as deposed by Ms P. This child is clearly frightened and confused and sees her mother as a stable and reliable figure in her life. The mother is however clearly still hurt by the manner in which the father left the relationship and this in turn, is having a further adverse effect on [X].
The child’s relationship with her father
The child’s relationship with her father was heavily contested at trial.
The father’s evidence
The father believes that [X] generally enjoys her time with him and that she mostly behaves normally, laughing and joking with him. The father tendered into evidence a photo album containing photos of the time the father and [X] have spent together (Exhibit A2). The child appears to be happy and even playful in the photos. Ms D provided further evidence of particular occasions when [X] has been in her and the father’s company and where the child appears happy and relaxed, including shopping, water skiing, and playing games at the Galaxy Entertainment Centre.
The father states that the child’s mood and behaviour change dramatically before and after changeover occurs. This includes the child acting differently when the mother is present at changeover. The father states that at the [R] Police Station [X] becomes aloof and clings to her mother although this quickly changes once the mother has gone. The father states that things have improved as he spends more time with [X] and that she now opens up as soon as they walk around the corner of the police station and the mother is out of sight.
Ms D also provided evidence to this effect stating that [X] was increasingly affectionate with her father as she spends more time in his company. Ms D had observed [X] laughing and joking with her father on many occasions.
However, the father also provided evidence detailing the difficulties he has experienced with [X] since the parties’ separation in early 2008. He noted that he calls [X] on her mobile telephone almost everyday and that the child is consistently dismissive of him. This includes the child telling the father that she does not want to speak with him. Ms D stated in evidence that she has heard these telephone conversations and that [X] is abrupt and discourteous. Ms D maintains that this is inconsistent with what she has observed when [X] and her father spend time together. The orders limit the father’s communication with [X] by telephone as there is no evidence the daily telephone communication is beneficial to their relationship.
The father also provided evidence that [X] refuses to let him help her with her homework saying things like “Mummy helps me with that” and “Mummy is Mummy and you are just a person”. I note the report writer’s evidence that it is beneficial to children if both parents are involved in supporting their education and I can see no reason why the child has taken this stance with her father in respect of homework.
The father acknowledges on-going difficulties between him and [X]. When asked in cross-examination the reason their relationship had broken down the father responded:
I believe that Ms Nash has not been supportive of the relationship between [X] and myself
The father’s evidence attaches significant blame on the mother for not taking reasonable steps to support his relationship with his daughter. He stated that [X]’s up and down behaviours and unprovoked mood changes were a result of this and that if the mother did not take a more active part promoting his relationship with his daughter then it would be in peril.
The father went on to acknowledge in cross-examination, after further prompting, that other factors, such as the incident on 24 September 2008, the breakdown of the family unit and the communication breakdown between the parties had also contributed to the deterioration of his relationship with his daughter. I note that he provided similar reasons for the breakdown in his relationship with [Y].
Having said that, the father seemed to lack insight as to the effect of his departure on his daughter’s and their need to adjust to changed circumstances.
Evidence was also provided by the father and Ms D stating that the child becomes physically ill and on a couple of occasions has vomited just before changeover. The father states that this is after [X] becomes very emotional. There was also evidence from the report writer in conversation with [X]’s school teacher, Ms R, where it was revealed [X] had been vomiting at a swimming carnival earlier this year. The mother on the other hand has not observed the child becoming physically ill in the lead up to changeover. These observations are of concern.
The father’s counsel stated that the reluctance the child demonstrates towards spending time with her father is a direct result of the conflict she senses at changeover rather than any specific aversion the child has to spending time with her father. The report writer ascribed some merit to this proposition stating:
I think a lot of the behaviours described by both parents and [X] relate to the conflict that exists between them and the nature of their relationship and the tension that comes to the forefront [of [X]’s mind] when they are in close proximity to one another, such as changeovers.
I find that the hostility at changeover is having a negative impact on [X]. Her express dislike of spending time with her father appears on the evidence to be caught up in the confusion caused by her parent’s separation and the on-going conflict between them. I also find on the evidence provided by the father, Ms D and the report writer that the child is able to enjoy her time with her father despite the fact she feels unable to communicate any positive feelings towards her father to her mother.
The mother’s evidence
The mother acknowledges that [X] loves her father and that the father is a “good dad” and that it is important for [X] to have a relationship with him. The mother’s concern is that the child’s time with the father is having a negative impact on her. She states that on every occasion that [X] is due to see the father she has difficulty encouraging [X] to go and that she has been told over and over by [X] that she does not want to see him. This sometimes results in [X] hiding and refusing to get dressed and according to the mother, [X] also throws tantrums, throwing things around the room and breaking toys. The report writer noted that this might be considered extreme behaviour for a child of [X]’s age.
On this point, the maternal grandmother gave quite compelling evidence outlining the change in [X]’s behaviour and mood each time she was due to spend time with her father:
I’m there with her 24/7, I can see the change in the child when she knows she is going to be spending that time with her father and Ms D. As I say it’s going to take this child time to get over the fact that one day her father was there, the next day he was gone, and I think this is why she has been so clingy to her mother.
I found Ms P to be a reliable and insightful witness whose evidence I found truthful. She stated that [X] now accepts that she has to see her father on Wednesdays and Saturdays and that deep in her heart [X] knows her father loves her. She stated that over time [X] will be able to say to her mother “Can I see Dad” though she needs time to overcome the trauma that she has experienced.
The mother also expressed concern for the child’s safety and welfare especially if the child ran away from the father’s house as she had threatened to do if she were made to spend overnight time with him. The mother claims that [X] has told her “I am not staying with Dad. If you make me I will run away.” The mother claims to have used her best efforts to encourage the child spending overnight with the father though she has not been able to convince her.
The mother maintains that the child has had nightmares about her father. She says that on 13 October 2008 the child woke at 4:00am crying and stated that she had dreamt the father had entered the house with Ms D and that the father stabbed the mother and that Ms D had stabbed the dog. Again, on 15 October 2008, the mother claims [X] woke up crying and said that she had had a nightmare; “Daddy came to the house and smashed the glass door. He stabbed you and then grabbed me and put me in the car. He drove down the road and he had something in his hand and he was using it to cut my hand”. The mother maintains she held [X] until she went back to sleep. Again, I think it is important the mother is provided with some assistance as to how to deal with these situations better.
The mother provided evidence that the child does not enjoy the time she spends with the father and Ms D. This was largely speculative based on her observations of [X] being distressed and sad before and after spending time with the father and on what [X] says to the mother about her time with the father and Ms D. In cross-examination the following exchange took place between Ms Gillies, counsel for the father, and the mother:
When she's with her Dad, do you speak to her about the sorts of things that she does with him?---No. It depends. I always just say, "What did you do with Dad today?" and - yes, basically.
What sort of things does she tell you that she does?---Sometimes she says she goes to the park, sometimes she says she's done nothing.
Does she tell you that she enjoys herself?---No.
Does she tell you that she was miserable the whole time?---No.
Does she tell you she was unhappy the whole time?---No.
Does she ever say to you that she's enjoyed any of those activities?---No, not really. No.
Does she tell you that she's had fun?---No.
Is it your perception that she's not having fun with her Dad?---Yes.
40 Do you think that she spends the time being quite uncomfortable with him?---Yes.
That she's not having any enjoyment at all during the course of her days with him?---No, I wouldn't exactly say that.
Well, if she's not telling you that she's not enjoying herself - - -?---Well, she tells me she's not enjoying herself. That doesn't mean she's not having a great time throughout the day. She tells me she's not having a good time, so that's my conclusion, that she doesn't have a good time.
Does she tell you why she doesn't have a good time when she's with herDad?---No.
Does she make any complaints about things that are happening at his home?---Yes.
What sort of things does she say to you?---She doesn't like it when Ms D's there.
What else?---That she just doesn't want to be there.
You say she throws tantrums and all sorts of things because she just doesn'twant to spend time with her Dad?---Correct.
She just dislikes it that much?---Yes.
(emphasis added)
The report writer also noted that [X] had expressed to her that she was not enjoying the time she spent with her father, especially when Ms D is present. The report writer went on to state that “despite her complaints about him, [X] was able to talk of enjoying accompanying her father to the park, of going to the movies together and playing card games”. Again, I refer to the photo album tendered into evidence [Exhibit A2] which detail at the very least that the child is enjoying some time in her father’s care.
What this evidence indicates is that the child is clearly torn between her parents. She is unable to express any positive thoughts to her mother about the time she spends with her father, even if they are occurring. This was highlighted by the child not telling the mother about the Hannah Montana decorations in her bedroom at Ms D house. The report writer stated in cross-examination that:
Those types of problems and challenges and behaviours are also very indicative of children that are aware and exposed to parental conflict. That ability of simply not to mention Mum when they are at Dad’s or to mention Dad’s when they are at Mum’s. It is a very difficult situation for children to be in.
Interestingly, the child was able to express a degree of enjoyment to the report writer in this regard.
The mother also expressed the view that part of the reason the father had brought proceedings for time with [X] was to get back at the mother for not selling the house and not because he wanted to spend time with his daughter. She stated that he was not an interested father, although he loved [X] and wanted to have input in her life. The mother conceded that the father has had on-going involvement in the child’s life each Saturday for the last two years relating to [X]’s tennis lessons, although did not concede anything further.
The family report writer noted that both parents presented quite different accounts of their involvement with [X] and [Y].
Interestingly, [X] indicated to the family report writer her feelings about this, the report writer stating:
…she felt that, at times, she was not of as much interest to or fully in the mind of her father, who, from her perspective, was often focused on or distracted by other things in particular [Y] and her swimming.
The father stated that although he was actively involved in [Y]’s swimming, he was also interested in and actively supported [X] at school, in her extra-curricular and home based activities. Attached to the father’s affidavit and marked annexure A was a letter from [omitted] Tennis Academy detailing the father’s involvement with [X] during 2006 and 2007 at her Saturday morning tennis lessons.
Although the nature of the relationship may not be like the one between the mother and [X], it is a relationship of meaning in [X]’s life.
I note [Y] expressed love, hurt and upset towards her father. I note she also described him as a “good dad” and that she misses him, although she is just “not ready” to see him yet.
I find that the father is a “good dad” and that he loves his children.
I accept the evidence of the report writer that despite [X]’s sensitivity and protectiveness towards her mother, she is able have a good time with him in certain situations. All in all, I find that with the right procedures in place, the child’s relationship with her father has the capacity to rebuild over time.
Ms D’s evidence
Ms D provided evidence concerning her relationship with [X]. She referred specifically to time spent at the Galaxy Entertainment Centre where she recalled [X] asking her to play games and to watch her play games. Ms D recalled the child’s mood change when she was told it was time to go home and that [X] became quite and withdrawn. Ms D stated the following:
[X] if you are unhappy that we have to go home, you know that it is all ok and you don’t have to tell anyone about everything that you did today. Its ok for you to just say that you just had fun. Do not be worried about anything. I’m not telling you to lie [X], especially to your Mummy.
Ms D stated that from her observations she believed [X] had enjoyed the majority of the day and that she may have felt uncomfortable that she had been having a good time with her father.
Ms D also provided specific examples of the time [X] had spent with herself and the father at [Z]’s swimming carnival, water skiing and shopping and noted that [X] had enjoyed her time with them. Ms D also stated that [X] is friendly and openly communicative with her and that they do colouring together, talk about music (such as Hannah Montana) and that [X] generally enjoys herself.
It was argued by the mother that [X] does not like Ms D. According to the mother [X] has said to her “I don’t like Ms D. I am not going to talk to her” and “She always tries to hold my hand and kiss me. She has told me that it is ok to lie to you”.
I find that Ms D is genuinely trying to build a relationship with [X], but perhaps [X] is not ready for Ms D to play any significant and certainly not any “parent like” role in her life. The report writer also noted [X]’s complaint that she “is always tries to be my mum”.
I note Ms D’s eagerness to be involved in [X]’s life and her attempts to rebuild a relationship between the father and his daughters. The restrictions placed on the father as a result of the AVO have required Ms D to take a more active part in the father’s children’s lives. I note specifically Ms D going to [Y]’s work to drop off her birthday present, dropping off [X]’s mobile telephone at the former matrimonial home and attempting to speak to the mother on the telephone. All of these encounters seemed to have been met with some resistance.
On the evidence, I am comfortable with the child spending time with Ms D while in the father’s care, although I note the report writers evidence that it might be beneficial for the parent/child relationship if some time was spent independently of Ms D. I agree with this observation.
(c) The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
One of the main points of contention in this case was the mother’s willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and her father given that relationship had broken down since the parties’ separation in early 2008 and the events in September of the same year.
The mother’s close relationship with her daughter made it almost imperative that she provide that type of support for [X].
It was clear on the evidence, however, that the mother still struggles with the father’s decision to cease their relationship in early 2008. According to the mother, the father’s decision to end their relationship came “out of the blue” although she professed to the family report writer that she had “moved on”. The maternal grandmother Ms P however stated that the mother’s hurt at the moment was too raw and from her point of view the mother was currently unable to overcome any animosity that might exist between the parties. The report writer noted also, that even throughout the interviews on 25 June 2009 the mother found it difficult to acknowledge or to directly communicate with the father.
Counsel for the father made submissions to the effect that the mother has not done everything in her power to encourage and facilitate a relationship between himself and [X]. There were various examples provided including:
a)The mother’s refusal to attend counselling following the parties separation;
b)The mother’s refusal to take part in a parenting program to help her deal with [X]’s reluctance to see her father;
c)The mother’s inability to say “hello” to the father at changeover, despite being encouraged to do so by the report writer;
d)The mother’s refusal to move changeover away from the [R] Police Station;
e)The mother communicating to the child that her father wanted to sell the house;
f)The mother communicating to the child that she had an AVO against her father; and
g)The mother’s refusal for the child to spend time with the father on father’s day, the father’s birthday and around Christmas time to see the Christmas lights. The father ended up instructing his solicitors to facilitate this time and with little success. (Annexure E of Father’s Affidavit 10 July 2009).
Because of this, it was submitted that the child needs extended periods of time away from the mother’s household, in her father’s company, to ensure that the child’s relationship with her father can be nurtured.
The mother argued that she verbally encourages [X] to see her father and to maintain a relationship with him. She says things to [X] like “It’s important that you see your father. Dad loves you very much” and “Dad loves you very much. I know he wants you to stay overnight with him so that he can spend more time with you. Why won’t you do it?” The mother maintains that since first court orders on 10 October 2008 she has encouraged [X] on a weekly basis to spend overnight time with father. In response to her requests [X] simply says “I am not staying with Dad! If you try and make me I will run away”. There was extensive evidence provided to this effect and there can be no doubt [X] is capable of making a judgment as to the sincerity of her mother’s occasional positive remarks.
Ms P also provided evidence stating that she had heard the mother encouraging her daughter to spend time and to have a relationship with her father. Ms P’s evidence was that she also tells [X] that her father loves her and that she needs to have a relationship with him.
Unfortunately though, the mother’s actions speak louder than words.
Firstly, the mother concedes that she did not attend counselling with the father and/or [X] during the course of these proceedings as ordered by Sexton FM on 3 November 2008. Those orders were put in place so as to facilitate a means by which the mother could deal with [X] and to help the mother mend her relationship with the father so they could both move forward. When asked in cross-examination why she did not attend the counselling sessions the mother simply answered “Don’t know”. She made no arrangements to facilitate this process. This is of great concern.
Secondly, the mother conceded that she still feels it necessary for changeover to happen at a police station even though she is not afraid of the father. The reason why she kept changeover at the police station was because it was stipulated in the AVO. When asked by counsel for the father whether she thought the police station sent a message to her daughter that her mother needed protection, the mother said “Yes, I suppose so.” The mother also agreed that the police station could possibly be an unpleasant place for [X], although she doubted that the child felt so. The mother refused to concede that her behaviour at changeover at the police station demonstrated to the child that conflict still existed between parties.
The mother also accepted that the father had begun to say “hello” to her at changeover and that she does not, and does not want to have to, acknowledge him. This is despite recommendations made to both the parties by the report writer that the parties need to acknowledge each other in front of the child to help the child deal with the stress of changeover. When asked what message this would send to [X], the mother replied: “She knows why I don’t speak to him after the incident in September”. It was put to the mother that her behaviour at changeover sends a message to [X] that there is still immense conflict between her parents and that the child is essentially being asked to choose between them.
The fact that the mother had also openly spoken to [X] about the AVO against her father and the father’s intention of selling the family home and making them move is also of concern. Conversations like this to a 10 year old girl, still dealing with the separation of her parents, appear entirely inappropriate and directed at turning the child against her father.
Counsel for the father also sought to highlight the mother’s inability to promote a relationship between [X] and her father, in the lead up to, and following their counselling sessions. Given that the father and [X] attended counselling each Wednesday between 4:00pm and 5:00pm it was the father’s evidence that in early 2009 the counsellor recommended that the father pick the child up from school and bring the child to counselling himself so that they might have more time together before the counselling session. This proposition was refused by the mother in correspondence from her solicitors annexed to the father’s affidavit sworn 10 July 2009 and marked annexure “F”. The mother states that she spoke to the counsellor about this and it was put to her only as a suggestion and that in any event, [X] did not want her father picking her up from school.
There was also evidence regarding the mother’s insistence on picking the child up from counselling at 5.00pm only to drop her off at the police station 15 minutes later for the father’s time with the child to commence. Pursuant to court orders of 3 November 2008 the father’s time was from 5.15pm until 7.30pm on Wednesday evenings. The mother’s reasoning for this was that the orders stipulated the father’s time and that the child was upset when she realised that the mother was not going to be collecting her from counselling and taking her to the police station. Eventually the mother relented on this point and the father’s time with the child commenced following the counselling sessions.
Ms D has observed the mother at changeover “hugging [[X]] constantly, not letting [X] go and pulling her back towards her if [X] made an attempt to move away”.
Counsel for the father raised with the report writer the possibility that the mother’s refusal to foster a relationship between the father and [X] constituted a form of psychological abuse and something the child needed to be protected from.
As stated by the Full Court of the Family Court in Vasser v Taylor-Black (2007) 37 Fam LR 256 the relevant principles to be applied in cases of asserted unacceptable risk of any kind are found in the High Court decision in M and M (1988) 166 CLR 69; (1988) FLC 91-979 where it was stated:
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
I find that the mother has been unable to put aside her own (understandable) hurt in order to foster a relationship between [X] and her father other than in a superficial way. The mother’s actions have certainly not helped [X] and I agree with the report writer that this may have resulted in a risk of emotional harm to the child.
The child is under considerable emotional strain and has been largely left to deal with the relationship she has with her father without her mother’s (or anybody’s) full support.
Having said this, I am not satisfied that the [X] is subject to any long-term psychological risk. The emotion that comes with any relationship breakdown is understandable and I accept Ms P’s evidence that the hurt is still “raw” in the mother’s case. Despite this, I am satisfied that the mother is capable of moving forward (especially with counselling support) and that her attitudes toward the father will soften with time and that both parents will begin to understand how both their actions have negatively impacted on their daughter and move forward.
Further, I am satisfied that the orders I have made in relation to the parenting orders program will help the parents understand the effect that their conflict is having on [X] and help the mother overcome the obstacles she currently faces with the child. I am also satisfied that with on-going counselling the parties will be able to work at rebuilding some kind of amicable relationship and that the father’s relationship with [X] will be restored.
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
[X] currently lives at the former matrimonial home with her mother, maternal grandmother and her sister [Y]. [X] identified to the report writer that these three women are the most important source of support and comfort in her life.
The report writer noted that it will take the child some time to integrate and come to terms with the changes that are already occurring in her life. I accept that the child is currently under considerable stress and has become dependent on the mother, the maternal grandmother and her sister for support. I accept the report writers evidence that if [X] were to sense, “that the emotional security that she has for her mother and her maternal family were to be threatened, then that is going to cause a lot of damage.”
I am also mindful of the evidence of Ms P who stated quite clearly that she was of the view overnight time with the father would traumatise [X]. She said that the child needed time to adjust to what is happening and that any change in the child’s time with her father should be “very gradual”. She reiterated the fact that the child felt safe and secure in her home as that is the environment she has known all her life. She went further to state that taking the child out of that environment for overnight time would have a traumatic effect on her. Ms Gillies for the father questioned whether the child had spent overnight time at a friend or other family member’s house and whether that had been traumatic for the child. Ms P answered that the child always wanted to return to her mother.
Clearly it is unrealistic for the father to expect [X] to suddenly spend overnight time with him except after a long-term graduated basis, and at least later than two months. I find that it is not in her best interests for there to be any immediate adjustment to the time she spends with her father and the evidence clearly demonstrates that the child needs time to rebuild the trust and confidence she once had with her father. In all the circumstances, I am confident that the orders I have made will serve the child well in what will be a lengthy re-adjustment phase.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The mother provided evidence detailing the difficulty she has convincing [X] to see her father. The orders I have made will hopefully help the mother in this regard.
At the moment, the parties live in close proximity and there should be no difficulty or expense in the child spending time with each other.
I note however that the father relies upon Ms D to provide a place for him and [X] to spend time together. I also note the father’s evidence that he hopes to establish a home of his own.
(f) The capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
I accept that both parties, outside of the on-going conflict between them, are able to provide for the emotional and intellectual needs of the child.
I also find the maternal grandmother has the capacity to provide for the child’s needs and is a constant source of support in the child’s life.
Ms D presented as a caring person. I accept that she has the child’s best interests at heart and will do her best to support [X], if [X] spends time with her whilst in the father’s care.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The family report writer noted that [X] presented as “a very shy, reserved but generally pleasant young girl”. She noted in cross-examination that she was “very immature” for her age.
She also provided evidence from [X]’s school principal and her classroom teacher indicating there were no concerns with regards [X]’s overall progress including her social development. They noted that despite being reserved, quite and shy, she is popular within her group of friends and mixes appropriately with her peers.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parents demonstrated love and affection for [X].
I have dealt with the lack of communication and conflict on the part of both parents at length elsewhere in the judgment. I note the evidence provided by the father concerning a telephone call made to the mother about [X] taking medication in his presence on 6 June 2009. The mother did not come to the phone or return the father’s call, leaving [X] in the position of messenger. The mother’s refusal to communicate with the father again highlights a lack of understanding on her part of the responsibilities that come with bringing up a child (especially when the child’s health is in question). I find this indicative of the mother’s inability to put aside her own differences with the father in the best interests of her daughter.
Spousal maintenance
The wife has a claim for on-going spousal maintenance in the amount of $200 a week.
In all the circumstances of this case and given the modest asset pool of the parties, I do have concern as to the wife’s capacity to support herself adequately, as well as the husband’s ability to pay spousal maintenance.
To determine this issue, I must first consider the threshold test in s.72 of the Act having regard to the factors outlined in s.75(2) before the power in s.74 may be exercised. Section 72 states that:
A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether by reason of having the care and control of a child, by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason, having regard to any relevant matter referred to in subsection 75(2).
The first question I must satisfy myself in relation to a claim for spousal maintenance is whether the wife is able to support herself “adequately”, given that she has the on-going care of [X]. I note that the word “adequately” is not to be determined according to any fixed standard, and reference must be made to the matters referred to in s.75(2), especially paragraphs (a), (b), (g), (j), (k) and (n) of s.75(2): In the Marriage of Mitchell (1995) 19 Fam LR 44.
The meaning of “adequately” in s.72 has been considered in many cases. In In the Marriage of Nutting (1978) FLC 90-410 Lindenmayer J said that while standard of living during the marriage was relevant, “adequately” imports a standard of living which is reasonable in the circumstances. In addition to this and where possible both spouses should continue to live after separation at the level which they had previously enjoyed: In the Marriage of Patterson (1979) FLC 90-705. I note that this may not always be possible.
The wife’s financial statement sworn 26 June 2009 states that she has a weekly income of $958.00 a week.
It must be noted however, that part of the wife’s income is derived from social security and I am prevented from taking this into account; s.75(3) of the Act. This is an important provision, given the wife currently receives $127 a week from a family tax benefit.
The maternal grandmother’s “board” of $100 is income as it is derived from the wife’s assets. I therefore take the wife’s income to be approximately $830 a week (including child support).
The wife claims her weekly expenses total $1,247.00 a week.
It was the husband’s case that the wife has managed to get by adequately since separation and that there was no evidence before me to indicate otherwise. I note that the wife’s credit card statements indicated that she was not making up for any shortfall in income by using available credit.
It was also submitted on behalf of the husband that I should not accept the expenses detailed in the wife’s financial statement these they are inaccurate.
On the evidence provided, I accept the figures the wife has provided in relation to food, electricity, telephone, petrol, clothing/shoes, entertainment, pharmaceutical, gifts, books and hairdressing as reasonable in all the circumstances.
I do not accept the following figures provided in the wife’s financial statement:
a)Household Supplies – $100 a week
I find the wife’s allocation of household supplies to be excessive. She stated in evidence that “it could be for anything” and later in
re-examination that it was for cleaning agents, toilet paper, toothpaste and tooth brushes and things for the pool like chlorine and salt. I accept that these expenses could relate to many things, however, I find that $100 a week is excessive and should be limited to $50 a week.
b)Motor Vehicle Maintenance – $50 a week
The wife conceded that this figure was “most probably” not true.
I note that the car is a 1993 model and may need repair now and again. I reduce that figure to $30 a week.
c)Education Expenses - $40 a week
The wife stated that [X]’s school fees are $25 a year and [Y]’s TAFE fees are in the vicinity of $400. Additionally, there are text books, stationary and excursions. The wife stated [Y]’s text books were $25-30. I reduce that figure to $20 a week.
I accept the husband’s submissions that the claimed expenses of the wife in relation to [Y] should be reduced because she is working part-time and is earning between $200 and $300 a week. I am mindful of the wife’s evidence that she is now reducing her hours due to TAFE commitments. I will reduce those expenses provided for [Y] ($204.00) by only 50% given [Y] will still live in the house and will require her mother’s on-going assistance in relation to many of these items. I have not included the reductions provided for above in this assessment. That is a further reduction of $102.
I am also mindful of the maternal grandmother’s evidence that she is able to contribute more to the household once her pension increases. Given the grandmother has sole occupancy of the granny flat at the rear of the property, I am of the opinion that an extra $50 a week is reasonable in the circumstances.
Having regard to all the evidence, I have reduced the wife’s total expenses to a figure of $1005 a week.
The wife conceded that she has lived “adequately” since July 2008 without any assistance from the husband (including making all mortgage repayments on her own). I note the following exchange took place between the husband’s counsel and the wife in relation to this issue during cross-examination:
Yesterday I asked you some questions in relation to your financial statement. We went through the exercise where we added up the weekly expenses that you say you have and they added up to $1247. Do you remember that?---Yes.
I went through with you your earnings and they amounted to $958?---Yes.
And I asked you how it was that the shortfall of $289 was being met. Do you remember that?---Yes.
You were going to give some thought to that over lunch yesterday and presumably you did that?---Yes.
How is it, madam, that you're managing to service the shortfall between what you say your expenses are and what you say your income is?---Also, there's family support; I get that too.
That's the family tax benefit?---Yes.
That's $127 a week?---Yes.
If I can ask you to accept from me that you've included that in the figure of $958 per week. What you've disclosed your income as being is your gross wages of about $704 a week?---Yes.
Dividends from some shares of about $2 a week?---Yes.
Family tax benefit of $127 a week?---Yes.
About $25 in child support?---Yes.
And $100 from your mother each week?---Yes.
That adds up to $958?---Yes.
Your expenses are $1247, you say. So, again, how are you funding the shortfall?---I don't know, the money's there. I don't know.
You see, I'm going to suggest to you that the only way that you could be doing that is if, in fact, you've overstated what your weekly expenses are. Do you agree with that?---I don't know.
The Wife went on to state:
Yes, I don't know. The money's just there. I mean, I don't - I don't know. It's - it's there, I've - I've done it.
You've got a Visa card, haven't you?---Yes.
That's with the Commonwealth?---Yes.
When you've done your financial statements over time, you've been obliged to put in the amount of your liabilities. That's right?---Yes.
I'm going to suggest to you that, in your financial statement sworn in June 2009, you told his Honour, or you told the Court, that there was a balance of about $6000 on that Visa card. Do you remember that?---Yes.
That's about right, isn't it?---Yes.
I'm also going to suggest to you that that was approximately the balance of that particular credit card in February 2009, when you swore your financial statement then. Do you agree with that?---Yes.
Certainly, when you swore your financial statement in October of last year, you'd also put in an estimate there that your credit card was about $6000?---Yes.
So the balance stays around about that level, doesn't it?---Yes, I just - - -
And you've got no other credit cards, have you?---No.
And no other loans, except for the personal loan with the Commonwealth Bank that's held jointly with your former husband?---Yes.
That's right?---Yes.
You've got no other sources of income, you say, other than those that are listed in the financial statement that I've taken you through?---Yes.
You tell his Honour that you meet your various obligations each week?---Yes.
And that you manage to do that?---Yes.
Given the adjustment I have made to the wife’s weekly expenses I note there is only a weekly shortfall of less than $50 a week.
The wife’s inability to resolve how she had reached certain figures is of concern, repeatedly answering “I don’t know” and “it could be anything” to many questions put to her in cross-examination. This detracts from her credibility as a witness in relation to her financial affairs. I understand that the wife’s financial commitments many ebb and flow over time, and that estimates are often difficult to determine. However, the wife demonstrated no ability to explain how these figures were reached. Without receipts or any other evidence to substantiate her claims, it is difficult to determine their accuracy.
I have had regard to what is reasonable in the circumstances of this family and have made adjustments accordingly.
I have had regard to the fact the wife is only 41 years old and is in good health. I have also had regard to the fact she has been in gainful employment most of her life in the same industry. Her employment appears secure. I have also found that the wife works as much as she can and has made significant financial and non-financial contributions to the family.
As noted above, the wife is not earning a significant amount of money and there was no evidence put before me regarding the wife’s capacity to work further hours. Given that she has the on-going care of [X] and also [Y] living with her it appears unlikely that she will be able to significantly increase her working hours. I note that in the future the husband will be spending substantial and significant time with [X] and that this may lessen the wife’s expenses to a limited extent.
I have had regard to the orders I have made pursuant to s.79 of the Family Law Act1975 (Cth). The wife will effectively retain $267,898.00 worth of assets. This includes the former matrimonial home, her current superannuation entitlement (which will appreciate with time), her shares, a 1993 motor vehicle, the household contents and her current bank balance. In In the Marriage of Clauson (1995) 18 Fam LR 693 the Full Court explained the interrelation between an order under s.79 and a claim for spousal maintenance pursuant to s.74:
The result of the s 79 order may be such that the applicant for maintenance can no longer be described as being “unable to support himself or herself adequately” because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support.
Although the wife is on one view receiving a substantial part of the property pool it is illiquid in that it is almost totally tied up in the house which the wife is anxious to keep and which provides accommodation for [X] and herself (together with [Y] and the maternal grandmother). There does not appear to be anything readily saleable if the wife needs additional cash; W v W (1997) 21 Fam LR 343. Even if the former matrimonial property were sold, the wife will have to purchase another dwelling with all the associated expenses. Given her employment in [P] and the fact she and [X] have lived in that area all her life, and that the home is an important part of [X]’s security, such a course would not seem desirable if it can be avoided.
I think it is also important to note the wife’s evidence in relation to the question of the standard of living the wife enjoyed before separation. It was the wife’s evidence that before separation she was living on $280 a week. She stated that the whole of her wage went into a joint bank account and that the joint bank account was then used for paying off the mortgage, regular bills, such as municipal rates, water rates, motor vehicle registration expenses, the car loan, and other bills.
She stated the husband received cash in hand from his employer and would give the wife $280.00 a week cash for “housekeeping” and “family purposes”. This included food, groceries and petrol (including cigarettes). It was unclear if any other items fell under “family purposes” or how the husband then used the remaining money from his salary each week.
Despite the fact that I have found the wife to have met all her financial obligations each week since separation, and that parts of her evidence seemed problematic, I am not convinced having deducted the wife’s pension entitlement from her income (pursuant to s.75 (3)) that she is able to support herself adequately into the future. As stated by Nygh J in Murkin and Murkin (1980) FLC 90-806:
In my opinion the issue is not whether the wife is receiving adequate funds, but whether she is able to support herself adequately ie. Whether she can generate funds from her own resources or earning capacity to supply her own needs. A women who is dependent on payments of social security benefits, voluntary payments by a former husband or by friends and relatives in not able to support herself. She has to be supported by others…
I am also not satisfied on the evidence that the orders I have made pursuant to s.79 of the Act would of themselves defeat the wife’s application for spousal maintenance.
I now wish to turn to the husband’s capacity to pay.
The husband’s evidence was that he currently has debt in the amount of $24,000.00 owing on a Members Equity loan that was used to consolidate his credit card debts. Since taking out the loan the husband claims to have $8,600.00 owing on his Westpac Mastercard and $2,500.00 owing on his Commonwealth Mastercard.
The husband was served with a notice to produce dated 6 July 2009 requiring him to produce documents set out in the Schedule. The notice to produce was tendered into evidence and marked (Exhibit R1). A bundle of documents was tendered into evidence (Exhibit A1). Counsel for the wife made a submission that the documents produced were not in full and did not cover all documents required in the Notice to Produce. The husband maintained that the he only kept current credit card statements and does not have any other documents in his possession. The husband also claimed that he only received the notice to produce the Friday before proceedings commenced and did not have time to accumulate further documentation (I note the letter from Slattery, Jurd & Company was dated 6 July 2009).
What was contained in the tendered documents was a Commonwealth Bank Mastercard statement in the amount of $2,013.76 (for the period 18 May 2009 to 20 June 2009) and Members Equity Bank statement on his personal loan in the amount of $26,811.95 (for the period 28 August 2008 to 31 December 2008). No current statement was provided in this regard. I further note that statements from the husband’s Westpac Mastercard account were called on at trial, but no documents were produced.
I also note that the husband’s most recent financial statement at trial was sworn 28 February 2009 and that a letter was sent to solicitors for the husband on 15 July 2009 asking them if they would be filing an updated financial statement (Exhibit R6).
Although there were no submissions made to me in relation to disclosure I think it is important to address this issue given the limited evidence on hand relating to the husband’s debts. This is important in determining his current capacity to pay.
The Full Court in Gould & Gould (2007) FLC 93-333 (Bryant CJ, Finn & Boland JJ) referred to an earlier Full Court (Nicholson CJ, Buckley & Kay JJ) decision in Kannis & Kannis (2002) 30 Fam LR 83, where the Court said:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute.
The Full Court also made reference to Callinan J’s observations during a special leave application in Chang v Su (2002) 29 Fam LR 406 where his Honour stated:
It does not matter what the principle might said to be, a court has to do the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings the court can make
The decision of Justice Ryan in PS & MA [2005] FMCAfam 486 also sheds light on the way the Court is to with issues of non-disclosure:
In proceedings in the Family Court [and doubtless other Courts too] in relation to financial matters there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto;
The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party;
The obligation is not created by the rules or practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled;
If there is a deficiency in the practice adopted for the purpose of making such a disclosure mere compliance with the requirements of the relevant rule, if deficient, is not enough;
If there is non-disclosure, in the relevant sense, then the failure to disclosure [sic] undermines the whole process of adjudication of the proceedings in relation to financial matters;
A finding of non-disclosure may, in appropriate cases, depending upon the circumstances, result in the other party being granted, without more, the relief sought
Finally on this point, in the Full Court in Kannis & Kannis (2002)
30 Fam LR 83 stated that “…[i]n those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.”
When asked why he had not maintained documents relating to his financial circumstances when those documents would be relevant to court proceedings relating to the wife’s spousal maintenance claim the husband simply replied that he “only kept current statements”.
Furthermore, the actual reason for the husband’s debt is un-known. He stated that it was largely due to day-to-day expenses:
I spent about $2000 on a replacement of a gearbox for the vehicle. Child support alone I've probably spent about a few thousand dollars up until this present day, and that is also up to date today
He went on to state:
Unfortunately after separation I was a little distressed at the time and I spent money unwisely on myself and I regret doing that…I am not much of a cook so therefore I was buying food to eat out all the time…and probably went out and drank a little too much as well, but expenses also include a lot of fuel costs in travelling from [A] to [M], mobile phone bills, normal expenses.
The husband also has two debts owing to Ms D in the amount of $5,104.00 and $720.00 respectively which I accept.
It was submitted to me that the husband also has legal fees in the vicinity of $30,000.00 which I also accept given the circumstances of this case.
The lack of disclosure on the part of the husband is of concern. I accept on the evidence in his financial statement that he had debts of approximately $34,000.00 as at February this year, though it is hard for me to determine the nature of his debts at present. In any event, I do not see how those debts could have been significantly reduced even if they were restructured in some way. He has limited income at present ($428 a week) and no assets to speak of that could be used to reduce his current liabilities.
I note that pursuant to s.79 of the Act the husband will receive a lump sum payment in the amount of $76,744.00. After paying his debts (and his legal fees) the father is left with very little in the way of liquid assets. He will have some money, his car, some furniture and his superannuation.
I have found on the evidence that the wife cannot adequately support herself, however such an order can only be made to the extent that the father is “reasonably able to do so”: s.72(1). I now wish to turn to s.75(2) which outlines the factors I am allowed to take into account in making such a determination.
The husband is 45 years of age and has many years in employment ahead of him. As already discussed, he will have limited assets as a result of these proceedings and has a number of debts that will eventually need to be repaid.
I note in his financial statement sworn 28 February 2009 the husband claims his weekly expenses to amount to $330.00 a week including food, telephone, petrol, car maintenance, clothing and shoes, entertainment and hobbies, chemist, books and magazines, gifts, hairdressing and counselling. I accept that these average weekly expenses are accurate. He will also be making minimal payments off his credit cards and bank loan.
It is hard to see on the evidence that the husband will have much surplus available to meet the wife’s need for spousal maintenance at present.
However, the husband has said that he is currently working in employment where his income is substantially less than prior to separation and I have made findings above that the husband will return to work, in whatever capacity, after these proceedings.
I note once more, that I have reference to s.75(2)(o) which provides that I may consider “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”
I think the issue of the husband’s future capacity for employment goes directly to the issue before me; does he have capacity to pay?There is Full Court authority in DJM v JLM (1998) 23 Fam LR 396 where it was stated that the issue of a parties’ capacity to earn more is more likely to be taken into account in making property orders than when assessing what a respondent is reasonably able to pay. However, it was found that ultimately that question turns on the judge's discretion in light of all the circumstances of the case.
Given the small difference in the remuneration of the parties in the event the husband returns to full time work, I did not think it appropriate to make any adjustment in the wife’s favour pursuant to s.79 of the Act. The question of his earning capacity in the context of a spousal maintenance claim however, is quite different, as it goes directly to his ability to pay.
I note the decision of In the Marriage of Scott (1994) 17 Fam LR 42 where the Full Court said:
[B]eing unemployed and without income is not of itself necessarily an answer by a parent to an application for child maintenance. The circumstances in which the parent became unemployed or without income, the reasons for it, the nature of his/her previous employment and the efforts (if any) which he or she has subsequently made to obtain employment are all relevant matters for consideration by the court in deciding whether the parent has any and what earning capacity such as to justify an order for child maintenance. Even in the absence of any current income or earning capacity, a parent may be required to pay maintenance for his/her children if he/she has property or financial resources which are or ought reasonably to be available for that purpose. It is ultimately a question of fact, in each case, whether an unemployed parent with no particular qualifications or skills for employment could not be held, at least in times of high unemployment such as currently exists in this country, to have a current earning capacity sufficient to support an order for maintenance unless he/she has recently given up, without good reason, secure remunerative employment, or unless, having become involuntarily unemployed, he/she has made no reasonable efforts to obtain employment for at least a significant period of time.
The above passage was applied by Kay J in Scott v Stauder (unreported, judgment delivered 20 November 1996) with respect to underemployment:
“the passage from Scott can be read, on the facts of this case, as not only referring to ‘unemployment’ and being ‘without income’ but to ‘under employment’ and being with ‘less than adequate income’. If I read that into the passage it reads effectively that in some circumstances an underemployed parent may be held to have an earning capacity or financial resources sufficient to justify an order that he or she contribute to the support of his children and that being underemployed and without adequate income, is not of itself necessarily an answer by a parent to an application for child maintenance.”
Although those authorities are with regards to child support, I am conscious of the comments of the Full Court in DJM v JLM (1998) 23 Fam LR 396 wherein the Full Court stated:
Child support and child maintenance orders are governed by legislation which emphasises and prioritises the obligation of parents to support their children and seeks to ensure that the level of financial support is to be measured according to the parent’s “capacity to provide financial support”.
Property adjustment orders have far less focus and are arrived at on the basis of what is “appropriate” after weighing up many competing factors. Spousal maintenance is governed by a test of what is proper having regard to the reasonable ability of the liable spouse to meet the needs of the other.
In our view there can be different answers to the same question about earning capacity depending on which head of power is sought to be exercised.
A judge might reasonably say that a parent should be working longer hours or in more lucrative employment to meet child support obligations. A spouse is only required to support the other spouse to the extent that he or she is reasonably able to do so. This requirement does not impute the same degree of compulsion about it that the child support and child maintenance tests express. Thus a parent may be required or expected to work long hours or at more than one job if the parent has the capacity and opportunity to do so, and if the children need greater support than they would receive if the parent was only to work shorter hours. At the same time it might not be reasonable to expect an estranged spouse to avail himself or herself of such opportunities so as to provide maintenance for the other spouse. In the latter case it is a question of what is reasonable in the circumstances.
What is reasonable is a matter for the judicial officer’s discretion based on the individual circumstances of each case: DJM v JLM (1998) 23 Fam LR 396.
The husband was receiving $53,000.00 per annum prior to his hours being reduced. Presumably, he will return to this level of earning once the economy improves and once his commitments become clear.
There is nothing in the orders I have made which would prevent the husband working full time. In the event his current employer is unable to increase his work hours, I see no impediment to him taking on extra work of some nature to supplement his income whilst his hours are reduced.
On the other hand, I have found that the wife has no capacity to earn extra money. She has the on-going burden of supporting the family. I also note the husband’s child support commitments.
The husband does not appear from his evidence to have any major expenses beyond running a vehicle and repaying debt. I note Ms D’s evidence that she is covering a lot of the household expenses at the moment, including food and rent. This may change in the future but presumably if it does the husband will by then be in a better position. The husband will not have any significant expenses in relation to time with [X] (or [Y]).
Having regard to all the evidence, I find the husband’s liability for spousal maintenance should be fixed at $50 a week up until [X] turns 18 years of age.
I am mindful of Counsel for the husband’s submission concerning s.81 of the Act. That section states the court is required as far as practicable to make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. However, given the lack of funds available at the present time it is not practicable to make orders as to a lump sum payment.
I certify that the preceding three hundred and thirty-four (334) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: Steven Taylor
Date: 20 October 2009
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