Neal & Neal
[2022] FedCFamC2F 857
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Neal & Neal [2022] FedCFamC2F 857
File number: MLC 12631 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 July 2022 Catchwords: FAMILY LAW – parenting and property dispute – Mother seeking to relocate to regional city with children – parenting and property orders made and reasons reserved. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61DA, 65DAC, 75, 79, 80, 90SM, 102NA, 117
Cases cited: Bevan & Bevan (2013) FLC 93-545
Fox v Percy (2003) 214 CLR 118
Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Keskin & Keskin and Anor (2019) FLC 93-932
Norbisv Norbis (1986) FLC 91-712
Stanford v Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 148 Date of last submission/s: 31 May 2022 Date of hearing: 9-11 May 2022 Place: Melbourne Counsel for the Applicant: Mr A Felkel Solicitor for the Applicant: Mulbridge Lawyers Counsel for the Respondent: Mr C Allen Solicitor for the Respondent: Marcou And Associates Pty Ltd ORDERS
MLC 12631 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NEAL
Applicant
AND: MR NEAL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
Parenting orders
1.All extant parenting orders are discharged.
2.The Applicant Mother, Ms Neal (‘the Mother’), and the Respondent Father, Mr Neal (‘the Father’) , have equal shared parental responsibility for the children, X born in 2010 and Y born in 2013 ('the children') save as provided herein.
3.The Mother have sole parental responsibility for all matters relating to;
(a)the enrolment and commencement of the children attending a school in City B nominated by the Mother; and
(b)the decision or decisions as to which school the children attend in City B; and
(c)the Mother keep the Father properly informed of the matters of 3(a) and 3(b) above.
4.The children live with the Mother.
5.The children spend time and communicate with the Father as follows and provided the Father will be in substantial attendance, then:
(a)Until the Mother moves the children's residence to City B, in accordance with the orders of 3 July 2018 and the Mother provide no less than 3 days’ notice in advance of the day such move will occur.
(b)From when the Applicant Mother moves the children's residence to City B, each alternative weekend; and
(i)provided the Father is able to collect the children from school and has provided no less than 14 days’ notice in writing, text message or email to the Mother, then from and commencing from as soon as practical from the conclusion of school on the Friday, and
(ii)otherwise and in default of agreement in writing, text or email, from and commencing at 6:30 PM on Friday until the following Sunday, or Monday if the Monday is a non-school day, at 6:30 PM (in daylight saving) Australian Eastern Daylight Time (Summer) or until 5:30 PM in winter or Australian Eastern Standard Time (Winter) and in the same rotation of weekends as in place at this day.
(c)The June/July 2022 school holidays continue pursuant to the arrangements already in place.
(d)For one half of each school term holiday, and in default of agreement in writing text or email, for the second half in the years ending with an even number and the first half years ending in an odd number; and
(i)in default of agreement in writing text or email, the first half to commence from the last day of school at 6:30 PM and to conclude on the middle day at 6:30 PM in daylight saving time and 5:30 PM in winter or Eastern Standard Time; and
(ii)From the end of third term holidays in 2022, in default of agreement in writing text or email, the second half to commence from the middle day at 6:30 PM and to conclude on the day before school resumes at 6:30 PM in daylight saving time and 5:30 PM in winter or Eastern Standard Time; and
(e)For one half of each long summer school holiday, and in default of agreement in writing text or email, for the second half where those holidays commence in a year ending in an even number and the first half where those holidays commence in a year ending in an odd number; and
(i)in default of agreement in writing text or email, the first half of the long summer school holiday shall commence at 12:00 PM on the day after the last day of school term and conclude at 12:00 PM on the middle day; and
(ii)in default of agreement in writing text or email, the second half of the long summer school holiday shall commence at 12:00 PM on the middle day after the last day of school term and conclude at 12:00 PM on the day two clear days before the first day of school term with such days to be calculated as being included in the Mother's time of half of those holidays; and
(f)by electronic face time communication on at least one occasion in each week and in default of agreement in writing text or email, each Wednesday evening at 7:00 PM with the children to be provided with privacy for the call.
(g)at such other times as agreed between the parties in writing text message or email; and
(h)Notwithstanding any provision in these orders, in the event Father’s Day falls on a weekend the children are not otherwise spending time with him then the children spend time with him as agreed in writing, text message or email and in default of agreement, from 5:30 PM the evening before Father’s Day until 5:30 PM on Father’s Day AND Notwithstanding any provision in these orders, in the event Mother’s Day falls on a weekend the children are not otherwise spending time with her then the children spend time with him as agreed in writing, text message or email and in default of agreement, from 5:30 PM the evening before Mother’s Day until 5:30 PM on Mother’s Day.
(i)on the occasions of school holidays when the children are spending time with the Father, the Mother have electronic face time communication with the children on at least one occasion in each week and in default of agreement in writing text or email, each Wednesday evening at 7:00 PM with the children to be provided with privacy for the call.
6.Unless collected from school in accordance with these orders and unless otherwise agreed in writing, text message or email, changeover for the purpose of the Father’s time shall take place to and from the McDonald’s Service Centre Town C, on the D Highway.
7.The Mother be and is restrained from seeking the Father's contribution to school fees and/or seeking an increase or variation in child support payable by him on account of the school fees of the school she has chosen.
8.Each parent, their servants and agents be hereby restrained by injunction from denigrating or disrespecting in any way the other parent or members of the other parent’s family or household in the presence of or within the hearing of any one of the children of the marriage.
9.That the Mother and the Father both be permitted to obtain all information, school reports, notices or electronic communication parents are usually provided with and to attend all school activities including school concerts, school plays, excursions, parent teacher interviews and the like normally attended by the parents.
10.That the parties shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and or location.
11.That each party authorises the other party to obtain medical records from any treating health care professional of the children.
12.That each party shall notify the other within 3 days of any change to residential address, telephone number, email or other contact details.
Property orders
13.That the parties forthwith do all acts and things and execute any necessary document to cause and provide that the funds held on trust for the parties by the Mother's solicitors (in the sum of approximately $83,811.37) be divided as follows:
(a)$5,000 on account of costs relating directly and indirectly to the allegations concerning the Country E Bank account; and
(b)The balance paid to the Father, and the Father bear, and indemnify the Wife against, any taxation liability relating to the interest earned on the funds held in that account.
14.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action and save for choses-in-action against each other) in the possession of such party as at the date of these Orders;
(b)Each party to be solely liable for and indemnify the other party against any and all debts in such party’s name, including any liabilities which may encumber any asset to which that party is entitled to pursuant to these Orders;
(c)Monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is held;
(d)Each party forego any claims that may have to any superannuation benefits belonging to or earn by the other;
(e)Insurance policies remain the sole property of the owner named thereon; and
(f)Any joint tenancy of the parties with each other in any real or personal estate is hereby expressly served.
15.All extant applications are otherwise dismissed.
16.Reasons hereby remain reserved.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Neal & Neal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
In this matter the Mother had a reasonably urgent need to relocate her and the children’s home and wished to start the children at a new school at the start of the next school term. Following a three-day hearing, but after reflection and consideration of the evidence and the parties’ submissions, I determined that the children should live with the Mother and she should be permitted to move the children’s home as she wished to. Detailed reasons had not been finished and shortly before the start of the next school term, on 1 July 2022, I made orders and reserved my reasons. These are those reasons.
The matter involved a dispute about parenting and property orders between the Mother, Ms Neal born in 1982 (‘the Mother’) and the Father, Mr Neal born in 1979 (‘the Father’). There are two children of their relationship; X, born in 2010 and who is 11 years old and Y born in 2013 who is 8 years old. The relationship between the Father and the Mother broke down around November 2016, on the Father’s case, or early 2017 on the Mother’s case.
I had to answer two questions: the first was with which parent the children should live now that the Mother cannot complete her professional qualifications by working in the area where she now lives. She wanted to move with the children to a regional city sufficiently far away from where the Father lives, as to necessitate a change in the existing court ordered spend time arrangements. The Father sought the children live with him. The second question is whether, and how, I was to divide funds from the sale of a block of land previously registered in the Father’s sole name.
I found that both parents care deeply for the children and have much to contribute in different ways as parent.
BACKGROUND
The Father was born in Country E, is highly educated, works in the technology industry and is aged 43. The Mother was born in Country E, is highly educated, and works as a health care professional. The Mother lives with the children. The Father has re-partnered and has his child, F, now 3 years, living with him and his partner.
The parties met in the United Kingdom where each was then studying. The Mother completed her health care studies in the United Kingdom in 2009. The parties married in Country E in 2010 and their eldest child was born in the United Kingdom in 2010. In 2011 the Mother returned to the United Kingdom for professional exams and the parties’ eldest child, then a baby, remained in Country E with the Father for about two months. The parties separated in 2011 and for a time the Father did not spend time with the child. The parties reconciled in late 2012 and in 2013 the parties made application for what is described as the Skilled Regional Family Sponsored Visa to migrate to Australia. The parties’ second child was born in Country E in 2013 and then in early 2014 the parties migrated to Australia pursuant to the Skilled Regional Sponsored Visa scheme.
In 2014 the Mother travelled to Sydney for the purpose of undergoing her Australian professional exams and the children remained for some five weeks with the Father. In 2014, the Father obtained employment in Australia and the following year, in 2015, the Mother obtained employment as a health care professional in training at a hospital in Victoria. The Father remained living in Melbourne and visited the country town where the Mother and children lived on weekends. In November 2016 (just before or just after separation) the Father took up employment in the City G and the Mother remained in employment as a health care professional at the same hospital in Victoria. The Father alleges that separation occurred at about the time soon after his move to the City G and the Mother alleges it did not occur until the following February, in 2017. The Father remained working in the City G for about a year or 10 months after either version of the date of separation.
THE FINAL HEARING
The Final Hearing commenced 9 May 2022. The Father was represented by counsel, Mr C Allen, who was briefed by the lawyers appointed pursuant to the section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) scheme. The Mother was represented by counsel, Mr A Felkel. The final hearing proceeded over 9, 10, and 11 May 2022.
Documents Relied Upon
The Mother relied on the following documents:
·Second Amended Initiating Application filed on 29 March 2021;
·Financial Statement filed on 6 May 2022;
·Trial Affidavit of the Mother filed on 21 June 2021;
·Affidavit in reply of the Mother filed on 13 July 2021;
·Supplementary Trial Affidavit of the Mother filed on 17 July 2021;
·Supplementary Trial Affidavit of the Mother filed on 29 October 2021;
The Father relied on the following documents:
·Amended Response to Final Orders of the Father Mr Neal filed 5 July 2021;
·Amended Financial Statement of the Father Mr Neal filed 6 May 2022;
·Outline of Case of the Father Mr Neal filed 6 May 2022;
·Trial Affidavit of the Father Mr Neal filed 30 November 2021;
·Affidavit of Ms H filed 5 July 2021;
·Affidavit of Dr AN filed 12 July 2021;
·Affidavit of Dr AN – Addendum filed 14 July 2021;
·Notice of Child Abuse Family Violence or Risk of Mr Neal filed 1 March 2021.
Both parties relied on the Family Report dated 3 June 2021 and the Addendum to Family Report dated 14 July 2021.
Exhibits Tendered
Exhibits tendered through the Mother’s evidence were as follows:
·M1 10 May 2022 Email exchanges dated 18 March 2021 “Subject: Re: NEED A LOAN”.
·M2 10 May 2022 Bank statement for CBA Account ending in …91 dated 27 June 2021.
·M3 10 May 2022 Email dated 22 October 2020 “Subject: Condolence”.
·M4 11 May 2022 Wife’s bank accounts at or about separation.
·M5 11 May 2022 Wife’s tax debts as at Hearing – balance $44k.
·M6 11 May 2022 2021 financial statements J Pty Ltd.
·M7 11 May 2022 Mother’s other CBA account #...29 (Predecessor to …31).
·M8 (post hearing) The Mother’s bank statements of numerous accounts covering
the period from October 2016 until after separation in February 2017.
Exhibits tendered through the Father’s evidence were as follows:
·F1 11 May 2022 Table of disclosure.
·F2 11 May 2022 Appendix B – page 13 of the appendix bundle (Purchase of K Street).
·F3 (post hearing) The Father’s bank statements of numerous accounts covering
the period from October 2016 until after separation in February 2017.
Witnesses
The Mother and Father were both cross-examined. The Mother’s case also included the evidence of Mr L (‘Mr L). Mr L is the Executive Trainee – Legal at the Bank M, Country E who provided evidence that the impugned Country E bank account never existed.
Summary of the Mother’s case
The Mother’s parenting case was that:
·the Father was coercive and controlling in the relationship;
·the Father scared or intimidated the children and that the children were reluctant to spend time with him;
·that if the Father undertook further counselling then, when she moved, he should see the children for one night over night on each alternate weekend; and
·that the Mother should have sole parental responsibility.
·her intended move came about because, for the purposes of her visa arrangements, the city where she had been working (nearby to Suburb N but not in greater Melbourne) would no longer be regarded as “regional” and it was necessary to relocate her employment to a regional city.
·that the recommendations of the family report (set out later) should be followed.
When pressed as to what her case was if the children were not permitted to move, her position was that she would not move without the children. When pressed by me as to what arrangements were in the children’s best interests if they did not move to City B with her, her position was that the existing arrangements, where the children lived more days and nights during school term with her rather than with the Father (a 5/9 plus half holidays), should continue to apply. This was not an alternative case in the legal sense of that concept but rather assisting the court what should happen if, disastrously for her, she would not permitted to relocate the children’s residence to where she wanted to live and work.
Her property case included that:
·she had made a direct and indirect contribution to the deposit paid by the Father (about $14,000) for the land purchased in his name shortly before separation but no other direct contribution;
·the Father had acted in contravention of the February 2021 restraining order and from the balance of the deposit of the land sold had diverted the sum of about $11,000 to his own purposes being to another of the Father’s controversial creditors relating to the funds to purchase the now sold block of land.
·the Father had not provided full and frank disclosure but she had; and
·that the controversial Country E bank account record, produced by the Father to corroborate a claimed debt, was not genuine and that no such bank account or debt ever existed.
·her other assets acquired post separation should be regarded as hers and either excluded from consideration or regarded as being solely contributed to by her and not relevant when the provisions of section 75(2) of the Act was considered. This was initially, and in outline of case (for each final hearing), said to be consistent with or in reliance on the principles of the authority of Norbisv Norbis (1986) FLC 91-712;
and so she should retain most of the sale proceeds of the block of land and all her own assets/equity therein.
Summary of the Father’s case
As to the property orders, the Father sought that he retain the whole of the proceeds of sale of the second Suburb O block (discussed later) on the basis that the all of the direct contributions to the purchase of that block had been made by him and that the project of the purchase of the block had been because of his efforts, that it was his project. He also argued that the Mother had a significantly higher income than his, had significantly greater assets and that she had further assets not properly disclosed in the proceedings arising from her frequent transfers of significant sums of money to and from her accounts to 3rd parties during the relationship and since.
As to the parenting orders, the Father’s primary case was that I should not permit the Mother to relocate the children’s residence and that the existing orders, which provided for a shared care arrangement, but not an equal shared care arrangement, with the children living more days and nights during school term with the Mother than with him (a 5/9 plus half holidays), should continue to apply. His case asserted that if not permitted to relocate the children’s residence the Mother may not relocate to take up, or continue, her employment in a regional city some, 1 hour and 15 minutes to 1 and a half hours travel away, without the children. His case was that the Mother had available to her alternative employment rather than the work in a regional city that she was said was necessary for her to comply with her Visa and professional obligations.
Alternatively, he said that the Mother was free to relocate to the regional city as she wanted to but that if she chose to, the children should live primarily with him and the children spend as much of the time that he now spends with the children with the Mother as would be practical in that circumstance. His position was, or appeared to be, that the reverse of the existing orders could apply.
I pressed as to what orders he sought in the event that the Mother was permitted to relocate the children’s residence to the regional city as she sought. It was clear that the Father found it difficult to contemplate or get his head around such a circumstance and found it difficult to assist with the practicalities of such arrangements as would be necessary. He and his counsel made clear that this was not an alternative case but very much merely a recognition that he was being requested by me to assist with what should happen if his primary and/or alternative case was not successful. With that qualification, his position was that he should spend time with the children each alternative weekend from Friday evening until Sunday evening, but with the changeover being at a railway station close to where he intended to live and not very far from the outer Melbourne suburb where he now lived. It was clear that the Father regarded such a circumstance as a disaster for him.
His case included;
·that he, not the Mother, had been the victim of family violence and coercive behaviour;
·that the Mother did not support his relationship with the children;
·that the sibling relationship with the children and child of his relationship with his new partner, F, was significant and needed to be protected and promoted by no less than the existing amount of time the children spent with him;
·that it would be damaging to the children to yet again change schools;
·that the practicalities around changeover and the time that the Mother sought would be very difficult for him to accommodate as, although living in an outer Melbourne suburb, he worked in another regional city about an hour travel by motorcar away from where he now lived;
·that there were real advantages for the children for them living mostly with him rather than the Mother.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118, a High Court case concerning the skid marks of a Kombi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
Standard of proof
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) ('the Evidence Act') which states as follows:
Section 140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It was necessary to look carefully at the events that unfolded by reference to contemporaneous records of communications and events. For example, the detail of the email communication between the parties in 2007 about the medical procedure (-2, page 50 of 124, to Father’s affidavit of 30 Nov 2021), text message communications between the parties in late 2016 and early 2017 and the 3 July 2018 “final order” made by consent, to determine facts rather than attempt to determine disputes upon only general impressions or credit findings (see: Fox v Percy (2003) CLR 118).
The competing applications and subject matter relates to the welfare of young children. An allegation of coercing another person to undergo a medical procedure against his or her will (as there was in this case) is a matter of the utmost gravity and I took that and the contemporaneous communications into account in considering what findings can and should be made on the evidence.
PARENTING CASE: THE APPLICABLE LAW
Best interests
In deciding what particular parenting order to make the best interests of the children is the paramount consideration, see section 60CA of the Act.
I considered the matters described in the Act as primary considerations and additional considerations. In doing so I take into account all of the evidence including those parts I have recited in these reasons as "significant events".
I applied and took into account the whole of Part VII of the Act. I applied sections 60CA, 60CC(1) -(3), 61DA, and took into account the obligations of section 65DAC. Those provisions are as follows (notes omitted):
Section 60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
…
Section 61DA Presumption of equal shared parental responsibility when making parenting orders.
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
…
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
SOME SIGNIFICANT EVENTS AND CONTROVERSIES
Separation
The date of separation appeared to be very important to the parties in their respective cases.
The Father alleges separation should be regarded as being on or about 1 December 2016. The Mother alleges separation was on or about 1 February 2017, that is just a few weeks before she applied for an intervention order. The Father merely asserted in affidavit that he “now” regards separation as 1 December 2016. There is substantial text message and email communication between the parties at the time of separation in evidence. The Father did not point to any communication or event where an intention to separate or to no longer live as a married couple was communicated by him to the Mother, or she to him, at the time he sought that I find separation occurred. The Father’s case as to the date of separation was inconsistent with the text message communication between the parents. Those text messages and communications were consistent the Mother’s case as to the date of separation.
I found that the separation occurred on the date alleged by the Mother, that is early February 2017, because her account is consistent with the contemporaneous communications between them. Determining that issue had little impact on either the parenting or property orders I made. It is clear the parties expected it to.
One parent, then the other, moves to Suburb N after separation
In April 2017, that is shortly after separation occurred, the Mother moved to Suburb N, an outer suburb of Melbourne. The Mother did not inform the Father of the move, or consult him about the new school that the children were enrolled in, before the move. He remained working in the City G until he also moved to Suburb N at the end of that year, that is about seven months after the Mother’s move to that suburb. The Father’s move to that suburb meant he lived close to where the children lived and went to school and enabled a shared care or substantial and significant time arrangement to be put in place. On the evidence there was no other reason for him to move there.
First proceedings and Final orders
Shortly after moving from the City G to Suburb N, the Father issued proceedings. Those proceedings concluded when final orders were made by consent in this Court, as it then was, on 3 July 2018 (the 2018 Final Orders) and those orders are significant and were as follows:
BY CONSENT, THE COURT ORDERS ON A FINAL BASIS:
1. That the parents have equal shared parental responsibility for the children.
2.That the children [X] born [in] 2010 and [Y] born [in] 2013 (“the children”) live with the Mother and spend time with the Father every alternate weekends from 10:00am Saturday to 5:00pm Sunday for a period of six months and thereafter;
3.That the children spend time with the Father every alternate weekends from conclusion of school Friday to 5:00pm Sunday until [Y] completes Grade 1 and thereafter;
4.That the children spend time with the Father every alternate weekends from conclusion of school Friday to commencement of school Monday, or Tuesday if Monday is a public holiday.
5.That once [Y] completes Grade six, the parents consider the children spending equal time each home.
6.That the children spend time with the Father each Wednesday from conclusion of school to 7:00pm for a period of six months, thereafter from conclusion of school Wednesday to commencement of school Thursday.
7.That the children have phone or Skype contact with the Father each Tuesday and Thursday evenings at a time agreed between the parents.
8.That the children spend half of all school holidays with each parent on week about basis until [Y] completes Grade 2, after which they spend time with each parent in first and second half blocks over the long summer break.
9.That consideration be given for the children to attend important religious events with each parent including when the children are in the care of the other parent.
10.That the Father pay the Mother the sum of $8,423.50 presenting half of the tuition, childcare, extra mathematics classes ([P Classes]) and other school expenses that the Mother has paid for the current academic year.
11.That both parties communicate in a respectful and non-hostile way at all times.
12.That each parent, their servants and agents be hereby restrained by injunction from denigrating or disrespecting in any way the other parent or members of the other parent’s family or household in the presence of or within the hearing of any one of the children of the marriage.
13.That the Mother and the Father both be permitted to attend all school activities including school concerts, school plays, excursions, parent teacher interviews and the like normally attended by the parents.
14.That the parties shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and or location.
15.That each party authorises the other party to obtain medical records from any treating medical practitioners of the children.
16.The parties are hereby restrained from arranging or delivering the children for counselling at any counselling service or any medical or dental specialist or allied health professional without the consent of the other in writing or save in the event of a medical emergency or normal consultation with a general practitioner.
17.That each party shall notify the other within 7 days of any change to residential address, telephone number, email or other contact details.
18.Each parent be permitted to travel with the children interstate during the long-term summer holidays for a period not exceeding four (4) weeks provided that:
(a)Full itinerary together with copy of flight details, airplane tickets and contact details are provided to the other parent no less than one (1) month prior to the anticipated travel date;
(b)The other parent does not unreasonably withhold his/her consent for the said travel to take place; and
(c)The other parent shall receive make up time with the children for any travel time that the children spends with the travelling parent that impinges on the time that the other parent would have had with the children.
BY ORDER OF THE COURT:
19.That the father shall supervise the children’s time with the grandparents and ensure their welfare is not put at risk.
AND THE COURT NOTES:
A.That the Mother and the Father to equally be responsible for the tuition fees and all other educational fees.
B.That the parties intend these orders shall as far as practicable finally determine the children and parental dispute between them and avoid further proceedings between them.
Those orders can be described as a “5/9 plus half holidays” arrangement. Depending whether the observer’s glass is half full or half empty, those 2018 orders (‘the 2018 Final Orders’) provided, during school term, for the children to spend 5 of each 14 nights of school term with their father or to spend some time with him on 8 out of each 14 days and for him pick up or collect them to or from school on six out of each 14 days of school term, but with the parents each having an alternative weekend with the children. It must be noted the orders also provided that from when the youngest child completes grade 6, the parents should consider moving to a regime of equal shared care.
Further Proceedings
Despite having final orders and both living close to the children’s school, peace did not break out on those plains outside Melbourne. The Father’s unhappiness and the parties’ conflict was such that on 2 March 2019 the Father brought a Contravention Application alleging that the Mother had contravened orders the 2018 Final Orders. That application was heard by another Judge and all extant applications were dismissed later in 2019. However, the precedent of the Court, rather than the parties themselves, sorting out their disputes about the children had been set and the parties were to follow that course to the day I made orders.
The first final hearing listing
The matter first came before me on Monday 19 July 2021 for final hearing. Both parties were represented by counsel. The Father had sworn a Trial Affidavit on 5 July 2021 and at paragraph [127] deposed the following:
…
Loans acquired
127.As stated in my affidavit above, I received USD$7,500 as a loan from [Mr Q] and USD$20,000 from [Mr R] for our move to Australia. I have located evidence to support the receipt of funds from [Mr R]. Now produced and marked with the letters “-5” is a copy of a now closed [Bank M] statement from 1 March to 31 March 2014 showing USD$20,000 loaned from [Mr R].
(emphasis added)
Two days before, on Saturday 17 July 2021 the Mother swore an affidavit about the allegation about the USD$20,000 loan from Mr and the annexed Bank M statement (a bank in Country E). According to the Mother at paragraph 4 of said Affidavit, she had:
4.… [E]ngaged [S Law Firm], legal practitioner in [Country E] to write to [Bank M] to confirm the authenticity of the bank statement provided to this Honourable Court by the Respondent Father …
She had also engaged solicitors in Country E to obtain a declaration from a Country E court to the effect that the alleged account could not be validated. Those proceedings were without notice to the Father and without a contradictor. On 8 July 2021, the Bank M wrote to S Law Firm stating:
…
Kindly be informed that the supposed account number ([…78]) is incorrect and cannot be validated. Hence we cannot confirm the genuineness of the attached statement of account …
…
(emphasis added)
The Father’s counsel objected to reliance on the late filed affidavit. The letter exhibited to the Mother’s late filed affidavit purporting to show the non-existent bank account was inadmissible, at least in the property case. In that context the Mother’s counsel made application for an adjournment, which was opposed, but granted.
The then current family report recommended that parents undertake therapeutic counselling and reportable family therapy. Neither parent sought such interim orders at the time of the adjournment. I adjourned the final hearing to Monday 21 February 2022 and made the following orders:
THE COURT ORDERS THAT:
1.All extant applications be adjourned to the Federal Circuit Court of Australia at Melbourne on 21 February 2022 at 10:00am Final Hearing (with an estimated hearing time of 3 days).
2.The Applicant Mother file and serve any further material by 4:00pm 29 October 2021.
3.The Respondent Father file and serve any further material by 4:00pm 30 November 2021.
4.Costs be reserved.
Communication difficulties
When the matter returned to me for final hearing on 21 February 2022, the matter was once again unable to proceed due to the following reasons:
·The Father was no longer legally represented, and due to the serious allegations of family violence and coercive and controlling behaviour, I made a section 102NA of the Act order preventing the Father from personally cross-examining the Mother himself; and
·There were allegations of limited compliance with the parties’ duty of financial disclosure; and
·There were no expert valuations or agreed values of the properties owned by the parties filed.
I made orders in relation to those issues and adjourned the final hearing, again, to 9 May 2022 for an estimated 3 days. The extant family report recommended counselling and reportable family therapy. Neither parent sought such orders on this adjournment.
The Mr R debt and the impugned Country E bank statement
The Father had previously sought to have included in the asset pool as a liability was he said was his debt to Mr R. Mr R was not on affidavit or called as a witness and no explanation was provided. Shortly before the third and last listing for final hearing before me, and after the Mother had applied to have the Country E bank employee be available for cross-examination by video link, the Father indicated that he no longer sought to rely on or allege the Mr. R debt. The Mother relied upon documents and made Mr L of the Bank M of Country E available for cross examination anyway. No objection was made to that. The purpose appeared to be to demonstrate that the impugned document was false and to prove the mendacity of the Father in producing the impugned document both as to his allegations in the property case and generally.
It was put to the Country E bank employee that he had made, or might have made, a mistake when investigating the relevant bank account. Because the witness was careful in evidence and gave evidence he had checked and re-checked the records of the bank in his capacity as an employee of the bank by checking both the account number and name of the account holder, I accept his evidence. I do not find he was mistaken. I find there never was such a bank account. The only inference available in that circumstance is that Father produced that document knowing it was not genuine. I make that finding after carefully considering the evidence and section 140 of the Evidence Act. Hence I look carefully at all and any of the evidence the Father gives.
Communication difficulties
The Mother alleges, and I accept, that the Father simply stopped using the ‘App’ and became difficult to communicate with from September 2020. In the period from October to December 2020, the Father travelled overseas for the good reason of his grandfather’s funeral. However, he did not inform the Mother and attempted to arrange for the children’s time to continue with his household while he was overseas. The Mother rectified the situation with the assistance of the Police. To have proceeded in this manner shows a lack of insight by the Father into the positions and consequences of all concerned.
The change in the Mother’s employment situation
The Mother’s evidence included the following:
3. For the assistance of the Court, I provide the following:
a. The Act means the Health Insurance Act 1973;
b. [AB]’s means international [health care] graduates;
c. [V Model] means the [V] Model;
d. DPA means Distribution Priority Area;
e. [governing authority];
f. [governing body;
g.[governing body]).
A TRAINING REQUIREMENTS:
4. Section 19AA of the Act:
a.[Health care professionals] who are permanent residents or citizens of Australia must become vocationally recognised. [Health care professionals] become vocationally recognised by getting a qualification in a specialty that is recognised in Australia.
b.Section 19AA of Australia's Health Insurance Act 1973 enforces this rule by law.
c.Under 19AA, you can’t get a Medicare provider number if you are a permanent resident or citizen of Australia, and you are not:
•recognised as a [member of a professional body]
•recognised as a [health professional] by the [relevant authority]
•recognised as a [member] by a [relevant governing authority]
•on an approved program
d.If a [health care professional] does not hold [qualifications], they can provide services covered by Medicare if they are on a section [program] approved training or workforce program.
e.Section 3GA of the Act permits [health care professionals] who are subject to s19AA to provide professional services that attract Medicare benefits through placements on approved workforce or training programs.
f.I am currently working to obtain such registration in my chosen field, which is [health care].
5. Section 19AB of the Act
a.International graduates are restricted in where they can work in Australia and access Medicare benefits.
b.Section 19AB of Australia's Health Insurance Act 1973 sets out the rules for international graduates and these restrictions.
c.Under 19AB, a [health care professional] must work in a DPA if they’re a [health care professional], or a District of Workforce Shortage (DWS) if they’re a [non-health care professional], for at least 10 years. The 10 year period is also known as the 10 year moratorium.
6.training towards becoming a [health care professional] or who are a [health care professional] are required to work in a DPA location that is between 2 and 7, for the duration of their moratorium.
7.A DPA is where the level of health services available to the local community does not meet national service benchmarks, considering Medicare data, [medical] workforce, population demographics and socio-economic status. An area is automatically classified as a DPA when it is classified as 2 to 7 or the area is in the [City G]. Annexed hereto and marked with the letter “-1” is a true copy [V Model] map classification and fact sheet obtained from the Department of Health website on 6 July 2021.
8.In addition to the location restrictions provided by Section 19AB, I am required to work under supervision until I have completed my [qualifications]. I am currently enrolled, and have be so enrolled since 2015, in the [T Program] with [the governing authority] working towards [qualifications]. Annexed hereto and marked with the letter “-2” is a true copy [T Program] participant guide.
9.I first commenced employment as a [health care professional] in Australia in 2015, in [Town U] Victoria being [V] area at that time.
10.In 2018, I commenced employment as a [contractor] Health care professional with [W Centre] in [Suburb Z] (“[Suburb Z] practice”) at which time [Suburb Z] was classified [V Model]. My contract of employment is valid until November 2022. Annexed hereto and marked with the letter “-3” is a true copy of my contract with [W Clinic].
11.In July 2019, due to Australian Government Department of Health boundary changes, [Suburb Z] was reclassified to [V Model] as indicated in my annexure -1. Due to the reclassification of [Suburb Z] from [V Model] 2, to [V Model 1], I am no longer able to continue my employment as a [health professional] with the [Suburb Z] practice beyond the expiry of my contract being November 2022, as it will not be renewed as neither the practice, my patients nor I would have access to Medicare Benefits. This would make it impossible to earn an income and render me unemployable to any prospective employer not within an [V MODEL] 2 to [V MODEL] 7 area.
12.My only option to continue employment as a [health care professional] would be to work as a hospital [health professional]. Working as a hospital [health professional] is not something I wish to do as:
a.I would be ineligible to continue with the [T] Program with the [governing authority].
b. I would have no prospect of ever becoming a [medical professional]; and
c.It would involve shift work and seriously affect my capacity to care for the children.
…
15.I accepted the employment offer at the [City B] practice to secure a contract in a DPA in a prime location close to Melbourne. If I had passed up the opportunity offered by the [City B] practice and waited until closer to the end of my current contract, I would have had to accept any position available outside an [V MODEL]1 area. This may have necessitated me taking a position in an isolated or remote area and most likely in an area far removed from Melbourne. Accordingly, I say it was vitally important I accepted the [City B] practice offer to enable secure employment which would allow me to continue working towards becoming a medical professional of the [governing body] and apply for specialist registration.
…
18.I am dismayed that the issue of my employment requirements has become an issue in these proceedings as I say the Husband is and has always been fully aware of the restrictions that apply to overseas trained [health care professionals] in terms of working location as outlined above. I say this particularly as the following facts have been always known to the Husband:
…
e.The Husband’s stepsister Ms AC also a [health care professional], works in [City AD] and is subject to the same restrictions under the Act.
[emphasis added at paragraph 11.]
That evidence was not challenged. I accept that evidence.
Soon after the attempt to have the children cared for by his partner while he was overseas, on 7 January 2021 the Mother informed the Father of her plans to move by email. The email described the existing court orders as “guidelines” and was as follows:
…
[Mr Neal],
Good evening. This is to inform you that I will be moving from [Suburb N] to [regional city] effective 5th April 2021 because I have secured a new training position at a facility over there. This has been a difficult decision but I have no choice if I am to complete my training.
I will continue to work with you so that we can follow the guidelines stated in the court orders.
Please don’t hesitate to contact me with any questions or concerns.
…
(emphasis added).
The tone of the communication on the Mother’s part shows no insight into the inevitable feelings of disappointment the Father would feel and the interruption of the children’s time with the Father’s household, including with their brother F. The Father had moved to where the Mother had moved for the purpose of living near the children and the parties had agreed upon and implemented a shared care arrangement.
The tone of the reply communication on the Father’s part shows no insight into the conundrum and difficulty for the Mother that the change of the “regional area” would cause for her and the children. The parents had together worked long and hard for the purpose of each of them obtaining professional qualifications and most recently for the purpose of the Mother obtaining her professional qualifications in her chosen area. It was unrealistic and hard hearted of the Father to respond as he did.
The Family Report
The family report dated 3 June 2021 was prepared when the report writer interviewed the Father first, then the Mother, then the children on 14 April 2021. On the same day the report writer observed the Father with the children first and then the Mother with the children. There was also an additional phone call on 28 May 2021 between the report writer and the Mother. By the time of the final hearing more than a year had passed since the report interviews and observations.
The family report writer was not requested to be available for cross-examination and was not cross examined. The report writer made the following recommendations:
a. That [X] and [Y] live with the mother.
b.The parties have equal shared parental responsibility for the children, conditional upon the parties engaging in therapeutic counselling.
c.If the father does not engage in counselling, consideration is given to the mother having sole parental responsibility and communicating with the father about significant parenting matters.
d.The father refrains from any threats to the children in the aftermath of this court hearing. If there is any indication of such threats, consideration is given to the father’s time being reserved until the completion of therapeutic counselling.
e.The parties engage in reportable family therapy with a recommended counsellor …
f.The children spend time with the father each weekend either on a Friday from 5 pm until Saturday 5 pm, or from Saturday 5 pm until Sunday 5 pm.
g.It is recommended that the mother is permitted to relocate to [City B], and the children are enrolled in the school nominated by the mother.
h.That permission is provided for the release of this report to the counsellor.
i.The parties attend mediation after the family completes therapeutic counselling with a view to an increase in the father’s time.
j.Alternatively, if the father does not comply with the recommendations, that the mother brings the matter back to court and at such time, consideration is given to the appointment of an Independent Children’s Lawyer.
One of the significant matters the report writer appeared to rely on was the coercive behaviour of the Father and the allegation put to the report writer about the Mother’s medical procedures back in 2007 and how that played a role in the family report considerations.
The report writer opined:
…
15.The mother reported a history of family violence characterised by psychological and emotional abuse, such as making demeaning comments. She also described his control of their finances, which she initially accepted as a cultural norm. She also reported him pressuring her into two terminations.
…
22.The mother reported family violence during the early stages of the relationship. She alleged psychological abuse to undergo medical procedures against her will after the father begged her to have two terminations. Despite further pressure, she did not terminate the pregnancy with [X].
…
35.She reported that [X] was not eager to spend time with his father. He withheld information about what happened at his father’s home. [X] confided that his father told him he would be punished if he discussed what happened in his home. [X] was always wary about raising issues, fearful about the consequences.
36.[X] had raised concerns about some of his father’s comments. He did not want to tell his father about his female friends. His father had told [X] that he had girlfriends at [X]’s age and would teach [X] how to be a man. She tried to put [X] at ease, encouraged him to be resilient, and focus on being a child.
…
38.The mother was concerned about the impact of the father’s behaviour on [X]’s emotional wellbeing. [X] would ask to sleep in her bed, and recently had stopped eating for a week. The mother took [X] to the GP, who had considered referring him for counselling.
39.The mother raised concerns about [Y] spending extra time with the father. She had received reports from [Y]’s teacher that [Y] was often sad and crying in class. [Y] told the teacher that she was sad because she missed her mother when she went to her father’s house. The mother had supported her by buying a soft toy as a source of comfort and offering her a special holiday.
40.The children have been responsive to the possibility of relocating. She was committed to ensuring as smooth a transition as possible. She was aware that they would miss their friends and was committed to them maintaining contact.
41.The mother was concerned that the father’s partner had made detrimental comments about the relocation. The children reported that she had told them that they would never see their friends again if they moved to [City B].
42.The mother reported that the father had not fully engaged in a co-parenting relationship. They had communicated via an App, but he had not reciprocated since September 2020. The current means of communication was via email. The mother was particularly concerned about his lack of response to the recent concerns with [X]’s behaviour. She also reported that the father had blocked her phone number when she tried to call him and when [Y] tried to communicate with her.
45.The mother was particularly concerned that the father had not communicated about leaving the children in his partner’s care. She also disagreed with the father’s proposal that if he went away for work, the children would spend time with his partner. On one occasion, he had delegated responsibility to his partner to collect the children from school without advising her that he was overseas. The school contacted the mother, stating that the father’s staff was there to collect the children. The partner avoided disclosing that the father was away.
46.The mother felt helpless about supporting the children with the issues with their father. She was very concerned about the father’s parenting style and the harm caused to the children. She did not believe he was responsive in attending to the children’s needs. By way of example, he had not participated in the most recent parent-teacher interviews for the children. Her attitude was to “co-parent in peace” and remain child-focussed.
…
57.The father described [X] as an intelligent and obedient child. He and [X] have a close relationship and was pleased that [X] confided in him when needed. He had recently told him about getting involved in a fight at school. The father offered advice and believed it was helpful. The father said that [X] enjoyed spending time and was always excited during visits. [X] gets on very well with his younger brother.
58.The father described a very close relationship with [Y]. He described their quality time spent chatting and preparing shopping lists. He said that she struggled to make friends and was quite shy. He was concerned about her adjusting to a new school environment due to her introverted nature.
…
63.Post separation, the mother demonstrated her capacity to engage in co-parenting. She had tried direct communication with the father and later reverted to indirect methods such as an App and emails. Her focus was on promoting the children’s relationship with their father. Regarding the challenges, she was intent on building their resilience to cope with the different parenting styles.
64.The father reported his commitment to set aside past conflict and focus on the children's best interests. However, there were many examples to indicate that he was uncooperative in his co-parenting. These included his pervasively negative view of the mother, hindering his capacity to engage in respectful behaviour.
…
68.Regarding time spent with his father, [X] shrugged his shoulders and said he only wanted to spend “a bit” of time. He later mentioned that he felt unhappy that his father limited his access to television, whereas he had fewer restrictions with his mother. He was also non-responsive regarding his feelings about video call contact with his father. He described quality time playing Monopoly with his father and enjoyed writing his own stories about heroes. His preference was to spend time with friends when with his father.
69.[X] referred to the father’s partner as auntie [Ms H]. He was non-responsive about his relationship with her, but he was very animated, describing his close relationship with his brother [F]. He said that he enjoyed playing music and jumping with him on the bed. They share a room, and if [F] cries, [X] tries to settle him. He mentioned that his sister use to sleep in his father’s bedroom, but not anymore.
70.[X] was not sure if he liked spending the extra night with his father. He was convinced that his sister was not happy with the arrangement. He said that she cried at school and told [X] how she felt. He said that she wasn’t upset at their father’s house and just played.
…
72.[X] said that he felt okay about moving to [City B]. His mother had reassured him that he could still visit his friends. [X] was also excited that his new school had a pool as he wanted to do more swimming. He was not upset about moving further away from his father. He wanted to continue spending time with his father but for shorter periods. He anticipated that he might have activities that would prevent him from spending more time with his father.
…
77.[Y] also described positive experiences spending time with her father. She said that it felt “nice” visiting him. She liked playing Monopoly and watching television. She could not identify anything that made her feel sad spending time with him. She did not mention spending time with “auntie [Ms H]” but detailed her joy playing with [F]. She said that she slept in her room but occasionally slept in her father’s bed. She also slept in her mother’s bed and liked it when her mother hugged her.
78.[Y] said she did not like spending the extra night at her father’s house, as she missed her mother. She had not been able to share these feelings with anyone.
…
81.The father brought a game of Monopoly, and the children were delighted to play with him. He nominated [X] as the banker, which appeared a familiar role. The father assisted both children with any challenges. The father guided [Y] when she did not understand aspects of the game. [Y] got sidetracked playing with stickers and was happy giving them to the father and [X]. The children were very dynamic and appeared very relaxed with the father. [X] was very competent with his arithmetic and was assisted by the father when needed. The father also guided [Y] with basic mathematics, and she responded well to his praise. She reciprocated by helping him when needed.
82.The children were observed with the mother in the waiting room. She offered them a variety of stimulating activities. The children were very engaged and very comfortable in their mother’s company. The mother, too, was animated and was praiseworthy of their achievements.
…
85.There were, however, psychological vulnerabilities, that raise concerns about the father’s parenting capacity. If the mother’s account is reliable, his authoritarian parenting style was characterised by high levels of control, enforcing behaviours through threats of punishment. Whether this parenting style is consistent with the father’s culture or reflects his attitude, it demonstrated his lack of insight into the children’s needs. From reports, he appeared to lack responsiveness to supporting them through the transition to increased time, such as offering a more flexible regime of phone contact and fostering consistency with activities between their homes. [X]’s access to inappropriate online movies was suggestive of inadequate supervision, which caused him significant harm.
86.The father’s behaviours have also impacted his capacity to develop a co-parenting relationship. His avoidance of information exchange and collaboration were barriers. His failure to advise the mother of [X]’s significant health issues was highly problematic. Furthermore, appointing parental responsibilities to his partner without informing the mother was a significant concern.
…
88.As the primary caregiver, the mother has been responsible for attending to the children’s care needs. Both children appeared to have a strong bond with the mother, and any disruption to their attachment would be highly detrimental to their developmental needs.
89.The children have experienced significant periods of absence from the father, which has impacted the relationship. They both appeared to enjoy quality time but were reticent about increased time. The conditions that contribute to their security and emotional well-being in spending time with the father are cooperative, child-focussed, and flexible co-parenting.
90.[X] presented as a child with emotional security in the care of his mother. There were vulnerabilities associated with spending time in the father’s care, as indicated by deterioration in his eating and sleep regime. [X] appeared ambivalent about the current arrangements but was cautious in expressing his views.
91.[Y] also presented with emotional vulnerabilities associated with the increase in time with the father. During the session, she expressed her ambivalence about the current regime and missing her mother. Reports of [Y]’s somatic symptoms and marked changes in her behaviour by school staff when spending time with her father indicated emotional harm.
[emphasis added]
The following events were not disputed. At the time of at least one of the impugned medical procedures the Father was in Country E and the Mother in the UK and they were in email communication. The Father said he learned of this allegation when he read the family report.
The Father denied the impugned medical procedures allegation and annexed an email chain (-2 to his affidavit filed 30 November 2021) between the parents shortly before one of the impugned medical procedures. That email chain was not challenged or qualified in any cross examination of the Father. That email chain is the only evidence of any communication about the medical procedure between the parents. The communication shows the Father, in 2007 and affectionate terms, urging the Mother to reconsider going ahead with the procedure. The Mother responds, also in affectionate terms, showing her intention to proceed with the procedure. The unchallenged email communication is inconsistent with the allegation, made in an apparently reliable manner, to the family report writer.
The Mother was not cross examined about the allegation or the contemporaneous emails.
The medical procedure allegation was not made on affidavit. The Father was not cross examined about it. The allegation was made to the family consultant in circumstances where the Father could not bring contemporaneous communications (such as the emails) to the family consultant’s attention. The Family consultant referred to it in assessing the parties and the children’s relationships many years later.
In these circumstances I do not, on the balance of probabilities, find that the Father perpetrated psychological abuse to cause the Mother to undergo medical procedures against her will. I do not find, on the balance of probabilities, that the Mother was untruthful when making the allegation. However the seriousness of the allegation, the manner in which it was made, and the contemporaneous communications that on their face are inconsistent with it, cause me to be cautious about accepting the Mother’s evidence about her long past trouble with the Father.
The Mother’s evidence of the children’s relationship with the Father included a complaint about lack of medical care in 2019 (see -10, page 84 and 85/96). The contemporaneous email communications show that the Father informed the Mother of the incident on the day and sought her advice as to the child’s usual medical practitioner. Two days later the Mother replied to criticise the Father for failing to addend a Hospital Emergency department.
The Mother’s case was critical of the Father’s style of parenting. It is important to note that the 2018 Final Orders (made at a time when Y had not yet started school) provided for an increase in the children’s time with the Father on an alternate weekend, after 6 months and then again when Y completes Grade 1, an increase from Friday after school to Sunday at 5.00pm to Friday after school until Monday morning, that is an additional night.
Early 2021: the tumult
The parties evidence is silent about that change and the family report only touches on it, but I infer (Y being in Grade 2 at the time of the family report), that Y completed Grade 1 at the end of 2020 and the new three-night alternate weekend would have come into place at the start of the 2021 school year.
The start of the 2021 school year was a tumultuous time for this family. The Father had issued property proceedings in the context of the Mother maintaining a caveat over his interest in the second Suburb O block in July 2020, so that dispute was troubling the parents. The attempt to have the children attend for time while the Father was overseas had only just occurred in late 2020. The Mother had sent the Father the ‘fait accompli’ court orders are ‘guidelines’ and ‘we’re moving’ email in January 2021 and the Father had not recognised the conundrum for the Mother of the change of ‘regional’ regulation. The Mother’s proposed move was discussed with the children. Urgent proceedings were listed and heard in February 2021. The Family report was ordered on 10 March 2021 and interviews arranged for April 2021. So the parents were well engaged in their next disputes. I am unable to find that the children were entirely protected from the rising tensions between the parents over money and over where the children would live.
With all that going on the Mother deposes to a number of events:
36.On 19 March 2021, I was informed by [Y]’s teacher, [Ms AE] that [Y] appears often sad and crying in class. I was informed by the teacher that [Y] has confided to her that she misses me when she goes to her father. Annexed hereto and marked with the letter “-5” is a true copy of the email I received from [Ms AE].
37.I spoke to [Y] and she confirmed the same thing she said to her teacher and further stated that their step-mother has told them that they will not see their friends again if they move to [City B].
38.On 17 June 2021, whilst in the car, [X] was visibly upset and started crying. When I asked him what the problem was, he said that when he was in his father’s home over the weekends, the father was playing with his half-brother, [F], and when he approached to playing with them, the Respondent said to him that he will not be playing with him again since he tells the mother whatever happens in the house.
39.My email to the Respondent on 14 January 2021 was an attempt to resolve the parenting issue, however, it appeared that the Respondent’s only intention is to engage in further litigation and use all sort of ways and means to control my life with the sole purpose of making my life miserable.
It is clear that the Mother interpreted this as the child missing her Mother when she goes to her Father, although that is not what the email says. Whether this unhappiness on Y’s part was an adjustment to the then newly implemented longer weekend was not explored by the parents before me.
The report of the Father withholding interaction with X as punishment over him discussing events in his Father’s household with his Mother is concerning.
However, at the time of the eventual hearing, in the following May of 2022, no further incidents were alleged and the Mother, when pressed, sought that if she was not permitted to relocate, that the existing 5/9 and half school holidays continue. The reductions of this to one night overnight was pressed if the Mother moved.
Because of those circumstances and the observations of the children’s interactions, as at April 2021, by the report writer, I concluded that the children had been for some time enjoying their time in each household notwithstanding their closer and primary attachment with their Mother.
Parental responsibility
I refer to the provisions of section 61DA of the Act cited earlier in these reasons, that is I must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. I must apply the presumption unless it does not apply or is rebutted by evidence that satisfies the Court that it would not be in the child's interests for the parents to have equal shared parental responsibility.
The presumption does not apply "if there are reasonable grounds to believe that parent… has engaged in family violence". The provision is silent as to who is to have such belief for the presumption not to apply. Paragraph 123 of the explanatory memorandum states as follows:
123.New subsection 61DA(2) states that the presumption will not apply if the court reasonably believes that a parent of a child…
(emphasis added)
Hence it is clear that the intention or purpose of the provision relates to the belief of the Court or the Judge.
The test of section 61DA(2) for when the presumption does not apply is a different one to be applied to other factual findings in the case which must be pursuant to section 140 of the Evidence Act. In this case I have unequivocal and repeated allegations of each parent. This is clearly an allegation of family violence within the meaning of section 4AB of the Act.
Notwithstanding that I have not found either parent’s allegations proven in accordance with section 140 of the Evidence Act, I find that there are reasonable grounds to believe that a parent in this case has engaged in family violence. Hence I find that the presumption does not apply in this case.
The parties had agreed to an order for equal shared parental responsibility in the 2018 Final Orders. The evidence raises the question of whether the parents can comply with the obligations of section 65DAC. The Father has long protested against contributing to private school fees over and above the usual assessed child support. The Mother has for some years borne solely the substantial private school fees of the school she chose without consultation when she moved to Suburb N while the Father lived in the City G The Mother seeks that she alone be responsible for the choice of school when and if she moves and made it crystal clear she does not intend to call on the Father to contribute to school fees over and above the usual child support.
Parental responsibility deals with major long term issues. Section 4 of the Act defines major long term issues as follows:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
I do not have any evidence of any potential dispute between the parents about major long term issues other than potentially the choice of school if the children move with the Mother. It is in the children’s interest that both parents have responsibility for decisions about major long term issues.
I was not satisfied that the Father will promptly cooperate with requirements to enrol the children in the new school required by the move and chosen by the Mother. In that circumstance I determined that the Mother should have sole responsibility for choice of school and all necessary arrangements when she moves, but otherwise the parents should have equal shared parental responsibility.
Primary Considerations
The following headings relate to the full extent of the factors set out at section 60CC (2) to (3) (a)-(m) of the Act.
Benefit of the children having a meaningful relationship with both parents
The interviews for the family report were undertaken in April 2021 and the recommendations made in June 2021. The Mother sought the very limited time for the children with the Father recommended by the family report. All of the evidence of the children’s fear of their father was of events before mid-2021. In the event the Mother was not able to move she sought that the existing arrangement of substantial and significant time continue. In cross examination it was clear she supported the recommendation of a one night alternate weekend for the children and the Father because she hoped the children would be involved in activities of a Saturday at the new school. The 2018 Final Orders were predicated on the children having a meaningful relationship with both parents.
In all the circumstances I found that there was and is a significant benefit to the children of having a meaning relationship with both parents.
The need to protect the children from physical or psychological harm.
I have considered the allegations each parent makes against the other. There is no evidence of the children’s child care or school having concerns about either parent’s care of the children. I do not find evidence to satisfy me that the children are in need of protection from harm in either parent’s care.
Additional Considerations
Any views expressed by the child
The children are aged only 11 and 8. Their views about their living arrangements reflect being involved in discussions with a parent rather than their own independent views. However, the children will be happy to live with their Mother and start at the new school. I place only a little weight on their views.
Nature of relationship of with each of the child’s parents and other persons
The children have a close and appropriate relationship with the Mother. They have a primary attachment to her. This is unsurprising as they have lived with her for most of their lives, including on her own for the almost year when the Father lived in the City G The children’s relationship with the Father is important to them but not as close as that with the Mother. I refer to and adopt the observations of the report writer about the children’s relationships with each of their parents. I also repeat and adopt paragraph 84 of the family report cited above.
The children have an appropriate relationship with their sibling, now 3 year old F, the child of the Father and his partner Ms H. Ms H was not on affidavit or called as a witness, nor was she interviews by the family consultant. I did not have any evidence or submission to suggest it was not appropriate that the children spend time with her.
Extent each parent has taken or failed to participate in decisions or spend time
Both parents have taken every opportunity to participate in decisions and spend time with the children. The Father lived in the City G for almost a year, in an attempt to get ahead financially. He then moved to where the Mother had moved to with the children.
Extent to which each fulfilled obligations to maintain the children
It is to the credit of the Mother that recognising her higher income earning capacity and her own attraction to what she sees as the benefits of private education that she now seeks to be solely responsible for those very substantial fees. The fees will be even greater at the new school when she moves. Since mid-2020 the Father has paid child support as assessed and appears to be up to date.
Likely effect of any changes in the children’s circumstances
The changes the Mother sought would have significantly reduced the extent of the children’s time in their Father’s household including time with their father and sibling F. With a move to City B, because of the distance, the existing shared care 5/9 arrangement cannot continue. Because of the history of this matter including the provisions of the 2018 Final Orders and because of the observations of the family report writer of the children’s relationship with their father, I am satisfied that the Father’s relationship with the children is close enough and strong enough to not only endure, after the move by the Mother, but will continue to deepen and add to the children’s lives.
The practical difficulty and expense of spending time
If the Mother moved, both parties sought a Town C Service centre changeover. Neither party sought or contemplated being there on a Friday evening, although I discussed this during the hearing. The distance or travel time for each party on a Sunday or Friday evening is such that the travel, after a day’s school or work, will not be easy, but is doable for parents and children. I drafted the orders so that the Father may, if able, attend the new school to collect the children. It is hoped he does so at least on occasion. It will be in the children’s interests if the Father is able to find a way to support the Mother’s interest in the education provided by the new school.
Capacity of each of the child’s parents to provide for the needs of the children
Because of the provisions of the 2018 Final Orders and the detailed observations of the family report writer as to the children’s relationship with each parent, I was satisfied that both parents have the capacity to provide for the children’s needs.
Maturity, sex, lifestyle and background (including lifestyle, culture and traditions)
Both parents were born in Country E and have been educated to a high level internationally. Whether the children move with their Mother or remain I am satisfied the children will have the benefit of their Mother’s cultural heritage and also their Father’s cultural heritage as well as the benefit of the parents’ tradition of higher education.
Attitude to the children and to the responsibilities of parenthood
Each parent has substantial criticism of the other’s parenting. The parents appear to have different parenting styles. Because of the provisions of the 2018 Final Orders and the observations of the nature of the relationships between the parents and their children I was satisfied that each parent had a sufficiently appropriate attitude to the responsibilities of parenthood. I also had regard to the circumstance that for sound financial reasons the Father moved to work in the City G, intending to leave the Mother with the great bulk of the responsibility for the day to day care of the children. I also had regard to the fact that the Father moved to the same area as the Mother for the purpose of living close by to where the children lived and went to school.
Any family violence and any family violence order that applies
In all the circumstances I was not persuaded on the balance of probabilities of the allegations of family violence made by either parent. That such allegations have been made and in the circumstance that I cannot exclude such events on either parties’ account is a serious matter and potentially serious for the children if exposed to any family violence.
Order that would be least likely to lead to further proceedings
The recommendations of the family report writer (referred to above) and the orders sought by the Mother provide for arrangements conditional upon the Father completing counselling and for reportable family therapy. Implicit in that is the concept of satisfactorily completing counselling. Were I persuaded to follow that path, interim orders would have been appropriate. Otherwise the issue would simply be left hanging and the question lingering, “satisfactorily according to who?” Neither parent pressed for reportable family therapy. The Father has undertaken counselling on four occasions between August and October 2020. The Father completed a nine-hour parenting after separation program on 21 October 2021. I was concerned at the continuance of these proceedings and decided that this family needed finality.
Because of the provisions of the 2018 Final Orders and the extent to which the parties had followed them, the observations of the family consultant of the children’s relationships with each parent (in April 2021) and the absence of further allegations of insensitive parenting over the last year, I determined that the orders for the Father’s time and for parental responsibility should not be conditional upon further counselling, or satisfactory completion of family therapy.
Any other fact or circumstance that the court thinks relevant
On one view this case was what is regarded as a “relocation” case. The law is settled that a parent does not have to prove a good reason to move the children’s residence, rather the whole of Part VII of the Act must be applied to what is a decision about competing applications about where the children will live. In this case, through circumstances not of her choosing, the Mother has a strong and powerful reason to move. The parents had for many years worked towards the Mother obtaining those qualifications. The Father should have contemplated that matter from the Mother’s and the children’s perspectives. He did not.
CONCLUSION
In the High Court of Australia case of Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518 (‘Stanford’) the majority stated some fundamental propositions about section 79 proceedings. Section 90SM(3) mirrors section 79(2) and so Stanford is applicable in this case.
In Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation. The parties had become physically separated due to the ill-health of one of them and that party being in residential care and the other remaining in the matrimonial home. The proceedings for the party in ill-health were conducted by a case guardian who was also the beneficiary under the will of that party.
The Family Court of Western Australia had made an order for a property settlement that would have necessitated the sale of the former matrimonial home where the husband continued to reside. For 37 years prior to the wife moving to a nursing home, the parties had made their matrimonial home in a house registered in the husband's name.
The wife’s expenses in accommodation were being met and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties. The wife's case guardian was a daughter from her previous marriage. The husband appealed to the Full Court of the Family Court of Australia and before the conclusion of that appeal the wife died.
In the High Court the husband’s argument that there was no power in the circumstances to make a property settlement order was dismissed and the case turned on whether, considering section 79(2), it was just and equitable in to make a property settlement order at all, and whether section 79(8) of the Act, which relates to the continuation of proceedings after the death of the parties, had been complied with.
The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all (and also that section 79(8) had not been complied with). This was so despite 37 years of marriage and contribution by the wife. Section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately and first. The result of the High Court's order was that the property settlement order as originally made was dismissed with costs.
Apart from the general observations about section 79 the High Court also observed that community of ownership arising from marriage has no place in the common law and that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
The majority observed at [37]:
[37]First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property... The question posed by s 79(2) (and/or section 90SM(3)) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
The majority continued at [41-42]:
[41]The fundamental propositions that have been identified require a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interest during the continuance of the marriage.
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship... And the assumption that any adjustment of those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4) (and/or section 90SM(3)).
In this case it is common ground that the parties no longer have, and will not have in the future, the common use of the major asset of the parties, the jointly owned former relationship home.
In addition to those considerations each party here contends that it is just and equitable that I make section 90SM(4) property alteration orders. Because of those matters I find that it is just and equitable to make property alteration orders in this case.
In Stanford the High Court did not go on to comment upon how section 79(4) should be applied where it was just and equitable that a property alteration or settlement order be made. Stanford was not concerned with the nuts and bolts of how section 79(4), or section 90SM(4), was to be applied in the ordinary run of cases, to the extent there is such a thing.
In this case, both parties sought section 79 orders and they will no longer have the joint use of the property where the 5% deposit was from joint funds. In those circumstances I found it just and equitable to make a section 79 order.
The preferred approach
In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (‘Keskin’) the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre Stanford “preferred approach” as to the how the nuts and bolts of section 79(4), and hence section 90SM, fitted together.
In Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39] (‘Hickey’) the Full Court, in setting out what the case law revealed as the “preferred approach” to the determination of an application under section 79 of the Act, referred to four inter-related steps, including that “the Court should identify and assess the contributions of the parties within the meaning of sections 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties”. The Full Court did not purport to elevate the preferred approach as being mandatory, as was observed by a later Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 at [61]- [63], [72]. However, adoption of that preferred approach is a means by which many of the mandatory factors in section 75(2) of the Act, in particular paragraph (b) – the income, property and financial resources of each of the parties; paragraph (ha) – ability of a creditor to recover debt; paragraph (n) – the terms of any proposed order under section 79 of the Act; can be considered, as these must be considered, in determining any adjustment pursuant to section 75(2) of the Act. Conversely, if the preferred approach is not adopted there must be a means discernible from the reasons to identify that these relevant mandatory section 75(2) factors have been considered, and how they have been brought into account, in the making of any section 75(2) adjustment...
That preferred approach set out at [39] of Hickey is as follows (citations omitted):
[39]The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Lest it be said there is a conflict between the High Court’s disavowal of “entitlement” to a section 79 order by mere separation and/or section 79(4) contribution on the one hand, and the use of the word “entitlements” in the Hickey passage cited above I regard the use of that word in the above context as synonymous with “assessment.” I will have regard to what I find to be the contribution based assessment rather than entitlement.
The division or adjustment of property acquired over the parties’ lifetime is a serious, stressful and emotionally intense legal matter. Many family lawyers find that failing to have regard to the preferred approach in negotiations, mediation or litigation (including submissions) is likely to widen the areas of dispute and make resolution by agreement more difficult and often results in a party, or both, merely seeking what he or she simply wants or regards as fair from his or her point of view.
The preferred approach assists me in making a principled and orderly determination of the parties’ property dispute and the parties helpfully addressed me about those matters.
The two Suburb O blocks, the caveat and the sale
On 4 October 2016, that is shortly before separation on either parties account, the parties had jointly paid a deposit and executed a contract for the purchase of a residential block of vacant land at the Melbourne suburb of Suburb O (the first Suburb O block) “off the plan”, that is subject to the issue of the individual title when the balance of the purchase price would be payable. Suburb O was on the side of Melbourne closest to the regional town where the Mother and the children lived at that time. The deposit was $17,675 and paid from the parties’ joint account. The Mother also contributed some funds from her income to that account. The account can be properly regarded as the parties’ joint savings. The joint account at the time of the payment only held a little over $17,000.
About a month after the purchase (9 November 2016) the parties experienced what the Mother described as “buyers’ remorse” and so the parties requested the vendors to release them from the contract. They were so released and on 9 November 2016 the deposit of $17,675 was returned, but to one of the Father’s accounts (NAB #...81).
Soon after, in late November, the parties identified another block of land that they wished to purchase, also in Suburb O (the second Suburb O block) and also “off the plan”. The 5% deposit on this second block was $14,450 and was paid from the Father’s NAB #...81 account on 28 November 2016. Hence, the deposit for the second Suburb O Block was paid from the $17,675 refunded from the first Suburb O block. The Mother executed the contract on 3 December 2016 and the Father paid the deposit. Subsequently, nearly a year later, on 17 October 2017, the Mother executed a direction to the conveyancing agent to proceed with the purchase in the Father’s sole name. It was not disputed that after separation any expense relating to this purchase was paid by the Father. At one point there were some negotiations, but never an actual agreement or mutual understanding, that in return for the Mother’s cooperation the block of land would be held on trust for the children.
Hence the Mother had made a small direct contribution to the purchase of the second Suburb O block by cooperating with the purchase, ultimately in the Father’s sole name, and by the application of joint savings of the family to the 5% deposit. Separate from the joint account both parents held a number of bank accounts in their own name. Both parties moved their own funds from account to account, and I find for the legitimate purpose of assisting their savings and maximising their interest return on those savings, frequently. The only interest in real estate that the parties held at the time of separation was the contract for the purchase of the second Suburb O block including the deposit paid and the contractual obligations between vendor and purchaser.
There is no evidence before me as to the value of the second Suburb O block as at the date of its purchase or as at the date of separation, about three months after the purchase on the Mother’s account. On the evidence before me, because the parties had been looking at the market of that type of property in that area at that time just prior to the purchase of the second Suburb O block, and the second Suburb O block being an arm’s length transaction, I find that the value of the parties’ equity in the second Suburb O block and/or in the contract of purchase of the second Suburb O block was about what had actually been paid: the deposit of about $14,000.
Until final address the parents never turned their submissions or evidence, either sufficiently or at all, to what was the actual asset and debt position of both parties, including the joint account and the interest in the second Suburb O block and all of the multiple bank accounts that each held at the time of separation, now many years ago, until the last day of the hearing before me. At that time, for the purpose of ascertaining what orders would be just and equitable in accordance with section 79 of the Act, I requested that both parties produce to the Court and to each other all of their respective bank accounts and the joint account for the period from October/November 2016 until February 2017. After I reserved they did so. Those bank statements are now marked as ‘Exhibit M8’ being the Mother’s bank statements produced by the Mother and ‘Exhibit F3’ being the Father’s bank statements produced by the Father.
The issue of that 5% deposit paid continued to trouble the parties.
Soon after the 2018 Final Orders, in September 2018, the Mother lodged a caveat over the title to the second Suburb O block. Soon after that the Mother purchased property at Suburb AF. The Father’s evidence included:
Sale of the [Suburb O] property
163.I was unable to build on the [Suburb O] property because I was unable to obtain a loan from [Bank AG] to build a home on the land. My broker, [Mr AH], from [Bank AG] advised that the bank’s reason for declining the loan was that there was a defect on the title. I was not aware at this time but subsequently learned that [Ms Neal] had lodged a caveat on the [Suburb O] property. I lost my deposit of $20,000 to [Company AJ] for this build.
164.It was not financially viable for me to continue to pay for all outgoings to maintain the [Suburb O] property if I was unable to build on it. …As such, I decided to sell the [Suburb O] property in March 2020. The [Suburb O] property was listed for sale on or about 19 March 2020.
165.On 24 June 2020, I entered into a Contract of Sale for the sale of the [Suburb O] property. The purchase price was $385,000. Settlement was due on 31 August 2020.
166.I instructed [AK Conveyancing] to act as my conveyancer. They informed me that there was a caveat on the [Suburb O] property that had been lodged by [Ms Neal]. I was not aware of the caveat until this time. I am aware and believe that the conveyancer contacted [Ms Neal] in relation to the caveat and she directed them to her lawyer to discuss the removal of it for settlement.
167.I requested that [Ms Neal]’s lawyer remove the caveat and they advised that [Ms Neal] wanted to retain 60% of the total amount of $385,000. I explained that this wasn't possible as there was a mortgage owing and costs associated with the sale of the land. I tried negotiating with [Ms Neal]’s lawyer to no avail.
168.Given settlement of the sale of the [Suburb O] property was imminent and I could not reach an agreement with [Ms Neal], I issued proceedings seeking that [Ms Neal] remove her caveat and for a final property settlement between us.
Transfer of the [Motor Vehicle 1] and jointly owned chattels
169.On 6 April 2017, [Ms Neal] emailed me and requested that I transfer the ownership of the [Motor Vehicle 1] to her. I actioned this as soon as possible and transferred the [Motor Vehicle 1] to [Ms Neal]’s name within the week.
170.[Ms Neal] retained possession of all of our jointly owned chattels and furniture at separation. I had to purchase some nominal furniture and white goods at my sole expense post separation. They now hold a nominal value.
That evidence referred to above was not contradicted or challenged and, save where it refers to borrowing from any non-bank source, I accept it.
Rapid market increase
The vacant land purchased by the Father and that purchased by the Mother rapidly escalated in value after separation.
Shortly before the start of the FYE2021, that is 18 June 2020 the Mother purchased her second property, a vacant building block in a City B suburb. The FYE2021 was a financially successful one for the Mother. The Mother’s tendered financial statements showed gross fees earned of $447,235 with a combined salary and profit before tax of $253,000 for the FYE2021 (and see M6).
STEP ONE: Identify property & liabilities at hearing
I did not accept the Father’s assertions about debts to Ms AC or any other disputed debt because of my finding about the Country E bank account. I did not accept his assertions that money passing back and forth between the Mother and associates or friends amounted to an asset. The Mother was not cross examined upon her assertion that she was indebted to Ms AL for $30,000 and Ms AM for $15,000 although neither creditor was called as a witness. Although these debts were not admitted I accept the Mother’s evidence about them notwithstanding the lack of the usual corroboration. Using the Father’s outline of case as a draft joint asset statement it became clear enough, upon inquiring, that items 1-10 & 14-19 were agreed as to value, and ownership and the respective mortgage balances were eventually agreed.
The Mother’s case sought only to deal with the proceeds of sale of the second Suburb O block and to put aside her other substantial assets.
I determined it is appropriate to put aside the motors cars and the finance debt that goes with them for each parties’ motor cars purchased after separation. I disregard bank accounts with less than $1,000. The Mother’s company through which she conducts her practice had cash on/in accounts of a total of about $44,000, but likely taxation liabilities of an equivalent amount, and hence I put those two matters, the cash and the tax debts, to one side.
Although eventually largely agreed, I determined the assets pool to be as follows:
1. Proceeds of the second [Suburb O] Block on trust $85,618
2. Father’s ‘keep’
a. Part property (from proceeds) $12,500
b. Balance of deposit taken by Father $11,809
c. Father’s Motor Vehicle 2 $4,000
Total $28,309
3. Father’s half equity in building block purchased with partner
Agreed value (50%) $165,000
Mortgage debt (50%) (145,000)
Father’s equity $20,000
4. Mother’s equity [Suburb AF] Property
Agreed value $525,000
Mortgage debt (388,320)
Equity $136,680
5. Mother’s equity [City B] Suburb Block
Agreed value $385,000
Mortgage debt (167,185)
Equity $217,815
6. Mother’s share portfolio $ 44,825
7. Mother’s ‘keep’
a. [Motor Vehicle 1] $4,000
b. Bank acc’s #[...]79,#[...]39,#[..18] $4,500
c. Jewellery & Accessories $10,000
d. Centrelink debt (6,522)
e. [Ms AL] & [Ms AM] debt (45,000)
Total Mother’s bits and pieces (33,022)
8. Total non superannuation assets $500,225
9. Father’s superannuation $ 34,710
10. Mother’s superannuation $ 52,725
The non-superannuation asset pool can be summarised as follows:
Proceeds of the second Suburb O Block on trust
$85,618 17.1%
Father’s Building block equity & keep
$48,309 9.65%
Mother’s property equity, shares and keep
$366,298 73.22%
Total assets
$500,225 100%
In this case it is also instructive to look at the assets of the parties at the time of and immediately after separation. In an attempt to find a common date for all accounts I have used entries as close as practical to the end of January 2017 and avoiding double counting as funds were moved between accounts and are rounded to nearest whole dollar. The parties did not deal with which of them kept the proceeds of the joint account but because the Father was more active at that time in depositing money to the joint account (depositing $3,000 as late as 24 Jan 2017, it appears he was still depositing the bulk of his earnings to the CBA #...31 joint account) I have inferred and determined that he kept the proceeds. The post-hearing bank accounts sent in demonstrate the following:
Mother’s accounts:
NAB #[…]49 not included: opened 31 Mar 2017
NAB #[…]28 31 Jan 2017: $3,452 (page 7 of M8)
WBC #[…]79 31 Jan 2017: $ 59 (page 21 of M8)
WBC #[…]39 31 Jan 2017: $2,942 (page 35 of M8)
ANZ #[…]62 31 Jan 2017 $9,101 (page 39 of M8)
Total available: Mother’s accounts $15,554
The Father’s accounts contained in F3 demonstrate as follows:
Father’s accounts:
NAB #[…]81 31 Jan 2017: $ 1 (page 10/51 F3)
CBA joint acc #[…]31 31 Jan 2017 $370 (page 20/51 F3)
CBA Mcard #[…]84 9 Feb 2017 (2,012) (page 29/51 F3)
WBC #[…]27 31 Jan 2017 $312 (page 33/51 F3)
WBC #[…]44 31 Jan 2017 $0 (page 37/51 F3)
Creditline #[…]03 21 Jan 2017 (1,620) (page 50/51 F3)
Total available: Father’s accounts (2,929)
Joint $ applied to 2nd [Suburb O] Block $14,450
Net of assets of Father at separation $11,501
To the sum available to the Father, and noting the Mother retained the contents of the former matrimonial home and the parties’ Motor Vehicle 1, should be added the $14,450 applied from the joint account (the previous November 2016) for the 5% deposit of the second Suburb O block.
STEP TWO: Section 79(4)(a), (b) & (c) contribution
In this case the Mother had built up a significant earning capacity as a health care professional during the marriage. After separation, she was able to apply that earning capacity to acquiring some shares and equity in two real estate properties while also caring for the children. I found that the Mother should be regarded as making the overwhelming contribution to her assets that total $366,298 plus superannuation of about $52,000. The bulk of the equity comes from the Mother having the foresight and income to be able to acquire two pieces of real estate that appreciated rapidly. The Father has made a very small indirect contribution by his role in the marriage as the Mother acquired her earning capacity. The equity comes from the rapid market increase post separation.
I found that the Father should be regarded as making the overwhelming contribution to his assets and the balance of the second Suburb O Block proceeds. The Mother should be regarded as making a small contribution via her contribution to the joint savings of the $14,450 deposit paid. However the property was in the Father’s sole name and he was responsible for all payments associated with that property.
In this case it may not be appropriate to express overall contribution in percentages. If it is, the Mother’s assets are about 73% of the combined pool of assets. It suffices to say that overall the Mother should be regarded as making a significantly greater contribution to her assets and/or to the combined assets.
STEP THREE: Section 75(2) factors
The major matters here are the disparity in the parties time needed to care for the children, the disparity of assets and also of income. The children will live predominantly with the Mother. She will solely have the burden of the significant school fees. She will receive modest child support from the Father. The Mother’s income will be much larger than the Father’s (about $97,000 against $250,000). At the end of the STEP TWO contribution exercise the Mother has been found to have contributed overwhelmingly to the $366,000 or so of her assets and the Father to about $133,927 of assets, if the whole of the remaining proceeds are treated as his contribution.
I also take into account that as consequence of the lodging of the caveat the Father lost his $20,000 deposit paid to build a house on the second Suburb O Block. In the circumstances of what each party had at separation and the property the Mother was able to acquire post separation, the caveat should never have been lodged, or if properly lodged, the claim for the Mother to keep her $366,000 of non-super assets and get 60% of the remaining proceeds of the block, given the parties earning capacities was outside the bounds of possibility and should have been abandoned at an early stage.
I did not find that any further adjustment was warranted on account of section 75(2) factors.
STEP FOUR: Just and equitable and conclusion
In all of those circumstances and because of the parents respective contributions, largely post separation, and the evaluation of section 75(2) factors, I found that it was just and equitable that the whole of the proceeds of sale of the second Suburb O Block should be paid to the Father, who had been the sole registered proprietor. Neither party sought a superannuation payment split and I found it was just and equitable that each parent retain the superannuation each has earned, notwithstanding the Mother is likely to end up with more superannuation due to her post separation work and greater earning capacity.
Costs of the Country E bank account
At each listing the Mother made it clear that she should be compensated for costs relating to the Country E Bank Account episode. The Father did cease to rely on it late in the piece but the Mother was put to unnecessary expense in dealing with it.
Section 117 of the Act governs costs and is as follows:
Section 117 Costs
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Note 1: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 1), see paragraphs 69(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021 .
Note 2: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 2), see paragraphs 192(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021 .
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In the circumstances of a small asset pool and the Mother seeking costs of the Country E account episode, at all points I determined to deal with this matter rather than require the parties to return to Court after reasons were delivered. The Father was entirely unsuccessful in his attempt to prove that debt and has dishonestly put the account forward knowing it was not genuine. I also took into account that the caveat should never have been lodged and the Mother’s claim for 60% of the sale proceeds should have been seen as unreasonable. I expect that the Mother’s out of pocket expenses in attending to the Country E account investigation are likely to exceed $5,000. I took into account the parents financial circumstances as determined by the section 79 orders. However, in all the circumstances I found that a sum, partly by way of compensation and partly to mark the appalling behaviour of the Father in putting the document forward at all, of $5,000 was appropriate to be paid to the Mother from the assets the Father would otherwise retain.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associates:
Dated: 15 July 2022
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