NEW & GILPIN
[2013] FCCA 987
•27 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEW & GILPIN | [2013] FCCA 987 |
| Catchwords: FAMILY LAW – Parenting – young child – wife intends to move from (omitted) to Melbourne – husband seeks primary care of child in (omitted) – family violence – property settlement – modest asset pool – contributions – relevant s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Regulations |
| McCall & Clark (2009) FLC 93-405 Mazorski v Albright (2007) 37 Fam LR 518 G & C [2006] FamCA 994 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MR NEW |
| Respondent: | MS GILPIN |
| File Number: | MLC 2958 of 2012 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 25 & 26 July 2013 |
| Date of Last Submission: | 26 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 27 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stewart |
| Solicitors for the Applicant: | Beswick Foulkes Family Law |
| Counsel for the Respondent: | Ms Sweet |
| Solicitors for the Respondent: | Cahill & Rowe Family Law |
ORDERS
Parenting Orders
That all extant Orders in respect of the child X born (omitted) 2008 (“X”) be discharged.
That the applicant husband and the respondent wife have equal shared parental responsibility for X.
That X live with the wife.
That X spend time and communicate with the husband as follows:
(a)Each second weekend commencing 30 August 2013 between Friday at the conclusion of the school day when appropriate or at 4.00 pm if X is not at school until Sunday at 6.30 pm but once X commences full time school then extending to Monday at 6.30 pm in the event of a long-weekend or a non-school day for X or as otherwise agreed between the parties form time to time;
(b)Each Wednesday between 4.00 pm (but from conclusion of school when X commences full time school) until 6.30 pm or such other times as agreed between the parents;
(c)For a period of five nights in the September 2013 Victorian Gazetted school holidays as agreed between the parties but failing agreement then from Friday 13 September at 4.00 pm until Wednesday 18 September at 6.30 pm (being in any event the husband’s weekend with X).
(d)During the Victorian Gazetted summer school holidays in 2013/2014 for two periods each of five days with the first period to commence at 5.00 pm on Boxing Day and conclude on 31 December at 6.30 pm and the second period to incorporate what would otherwise be the husband’s weekend time with X and on a “weekend” at the choice of the husband;
(e)Thereafter for one half of the each Victorian Gazetted term school holidays as agreed between the parties but failing agreement then from the first Friday at 4.00 pm until the second Saturday at 6.30 pm and on a week-about basis during Victorian gazetted summer school holidays;
(f)That the Orders allowing for weekend time and Wednesday time between X and the husband be suspended during all school holidays from and including the first term holidays 2014;
(g)That in any event, X is to spend time with the wife between 5.00 pm Christmas Eve and 3.30 pm Christmas Day in 2013 and in each alternate year thereafter and between 3.30 pm Christmas Day and 5.00 pm Boxing Day in 2014 and in each alternate year thereafter;
(h)That in any event X is to spend time with the husband between 3.30 pm Christmas Day and 5.00 pm Boxing Day in 2013 and in each alternate year thereafter and between 5.00 pm Christmas Eve and 3.30 pm Christmas Day in 2014 and in each alternate year thereafter;
(i)That should Mother’s Day fall in a weekend on which X is with the husband then such time is to conclude on the Saturday at 5.00 pm;
(j)That if Father’s Day fall on a weekend on which X is not with the husband then X is to spend time with the husband between Saturday at 5.00 pm until the Sunday at 6.30 pm;
(k)Such other times as agreed between the parties from time to time.
That the husband not consume any illicit drug during any period that X is with him pursuant to these Orders or for any periods of twelve hours prior to X coming into his care and the husband be restrained from bringing X into contact with any persons who he believes, or reasonably should believe, to be under the influence of any illicit drug.
Property Orders
That within 60 days of the date of these Orders the wife transfer all her right, title and interest in the following to the husband absolutely:
(a)The former matrimonial home situate at Property B in Victoria;
(b)All personalty and chattels in the possession of or under the control of the husband as at the date of these Orders;
(c)The balance of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders but subject to these orders;
(d)The husband’s Ford motor vehicle
That contemporaneously with the transfer of the Property B property referred to in Order 6 hereof the husband pay to the wife a lump sum of $165,337.
That contemporaneously with the transfer and vesting Orders in Order 6 hereof the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(a)All personalty and chattels in the possession of or under the control of the wife as at the date of these Orders;
(b)The balance of the parties joint bank account holding proceeds of sale of the property in (Property L);
(c)The balance of the account held by the parties and referred to as “X's Account” as at 30 December 2011;
(d)The balance of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these Orders.
That each party be solely responsible for, from the date of transfer or vesting, any liabilities attaching to any of the assets to be retained by that party pursuant to these Orders.
That there be a superannuation splitting Order as follows:
(a)The Court allocates, as required by s.90MT(4) of the Family Law Act 1975 a base amount of $15,000 of the interest of the applicant husband Mr New in (omitted) Superannuation fund to the respondent wife, Ms Gilpin;
(b)Pursuant to s.90MT(1)(a) whenever a splittable payment becomes payable in respect of the interest of Mr New in the (omitted) Superannuation fund, Ms Gilpin shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction in the entitlement Mr New would have had in the Australian Super superannuation fund but for this Order.
(c)The wife is directed to serve a copy of these Orders on the Trustee of the (omitted) fund (“the trustee”) within 14 days of these Orders.
(d)If no objection is received from the Trustee and no application is made by the trustee to vary such Orders within 21 days after service of these Orders, then these Orders take effect and become binding on the Trustee 28 days after service.
(e)Paragraph 10 of these Orders has effect from the operative time.
(f)The operative time for the purposes of this Order is 4 business days after the expiry of the time specified in paragraph 10(c) of these Orders.
(g)Having been accorded procedural fairness, the Trustee is bound by these Orders to observe the Trustee obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001.
(h)The respondent make, file and serve an Affidavit of Service of these Orders upon the Trustee within 7 days of service being effected.
(i)Each party do all such things and sign all documents necessary to give effect to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym New & Gilpin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2958 of 2012
| MR NEW |
Applicant
And
| MS GILPIN |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the parenting arrangements for the parties’ one child, X, born (omitted) 2008 (aged five years) and alteration of the parties’ property interests. Given there are property proceedings and for sake of consistency I will refer to the parties as “the husband” and “the wife”.
The husband is the applicant. He seeks an order that X live primarily with him. He did, however, in his evidence regularly espouse “fluidity and flexibility” for the child between the parents. By the end of the evidence, I gleaned that his quest to be the primary live-with parent was a reaction to the wife’s wish to move with X from (omitted) to the eastern suburbs of Melbourne and for herself to assume primary parent status. His application, however, proposes that the wife spend time with X each second weekend from Friday afternoon until 9.00 am on Monday plus for an evening meal each Wednesday, together with one week in each of the school holidays.
The asset pool for consideration is a modest one. The husband proposes that he retains the former matrimonial home. The wife does not take issue. On the basis that the wife also concedes that an outstanding HECS debt that she brought into the marriage be quarantined from the property pool, the husband proposes that the wife receive 55 per cent of that net pool. He does so on the basis of acknowledging a superior contribution by the wife but says that there should be no adjustment on account of factors under section 75(2) of the Family Law Act 1975 (“the Act”).
The wife seeks an order that X live primarily with her. She proposes that they live in inner eastern Melbourne with her new partner, Mr C. There has been regular reference in the document and at procedural hearings of this matter being a “relocation case”. The evidence suggests that (omitted) is approximately one hour travel by road or rail from Melbourne. It is serviced by freeways and regular trains. Whilst it is reasonable to conclude that an equal time arrangement for X between her parents would be impractical with the husband living in (omitted) and the wife living in Melbourne, this is not, in my view, a parenting matter where a potential relocation of a primary parent will severely impact on the regularity, frequency and nature of a child’s relationship with the remaining parent. In any event, the wife says that if an order is made preventing X’s move from (omitted) then she herself will remain in (omitted). Mr C gave evidence that he too would move to (omitted), although his preference is to live in Melbourne.
The wife proposes a staggered regime of time for X with
the husband, starting with limited time on alternate weekends but progressing over time to full weekends, as well as Wednesdays for an evening meal.
The wife’s case summary document indicated that she sought an order for sole parental responsibility of X. She had retreated from this position by the time of the final addresses.
The wife seeks a property settlement whereby there be a 70 per cent distribution of the net pool of assets to her and 30 per cent to the husband. She argues that she should receive a loading of 10 per cent on account of superior contributions made by her or on her behalf. She says that she should receive a further 10 per cent adjustment on account of the relevant section 75(2) factors which favour her, with particular reference to her proposal that X live primarily with her and some discrepancy in earnings or earning capacity.
Background
The husband is 34 years of age. The wife is 31. Their relationship commenced in 2003 and they purchased property together during their courtship. They married and commenced cohabitation on (omitted) 2005.
X is the only child of the parties or either of them. She is now five years old and attends kindergarten and will be commencing year 1 at primary school in 2014.
Both parties work in Melbourne. The husband is (omitted) at the (omitted). The wife works for a (omitted) and currently four days per week.
The wife has re-partnered with Mr C. He is also a (omitted) and was an acquaintance of the husband prior to the parties’ separation. He does not have children, has not been married, and has not lived in a domestic relationship prior to him taking up with the wife. Mr C lives in rented share-house accommodation in (omitted). He and the wife intend to obtain alternative accommodation in the inner eastern suburbs of Melbourne and such that is suitable for their anticipated family unit and including X.
The parties separated on or about 23 December 2011. The wife says that there were issues of family violence during that week and historically during the marriage. The husband makes vigorous and consistent denials. The police were involved in the final separation and the wife obtained an ex parte intervention order at the time of separation.
Both parties continue to live in (omitted). The wife and X have use of the former matrimonial home. The husband lives with his parents. The extended families on both sides live in (omitted). The evidence suggests that by reason of the parties’ employment in Melbourne, the maternal and paternal grandmothers have played a regular and helpful role in caring for X.
The wife has directed allegations of drug use at the husband and, in particular, his brother who for a period lived in the husband’s household. The husband denies his own drug use and, in my view, minimises the wife’s allegations in respect of his brother.
Various interim orders have been made. On 15 May 2012 an order was made whereby X spend time with the husband each Tuesday and Thursday between 4.30 pm and 7.00 pm and each Saturday from 1.00 pm until 6.00 pm. Those orders were made after a contested interim hearing. The wife had unsuccessfully sought an order that the husband’s time with X be supervised. The husband’s time with X was amended by an order of 23 November 2012 so as to continue the Tuesdays and Thursdays but the weekend time alternate Saturdays between 1.00 pm and 6.00 pm and in the other week from Saturday at 10.00 am until Sunday at 12.00 noon thereby introducing overnight time.
The matter had been listed for trial on 6 May 2013. That date was vacated after the wife raised the issue of her moving to Melbourne. The trial proceeded over two days on 25 and 26 July 2013. Both parties were represented by counsel at the hearing. The Court also had the assistance of two family reports from Dr W, psychologist, although Dr W was not required for cross-examination.
The issues
The major issue between these parents is the regime of X living with and spending time with each of them. The wife’s proposed move with X from (omitted) to Melbourne is at the crux of this issue.
The wife raises issues as to the husband’s capacity to care for X, with specific reference to allegations of family violence and drug use.
The husband raises issues as to the wife’s stability and questions the longevity and commitment of her relationship with Mr C, arguing that a breakdown in that relationship will be likely to result in further changes and moves for X.
The dispute between the parties in respect of financial matters is fundamentally as to the weight to be attributed to the wife’s contributions and her claim for an adjustment on the basis of section 75(2) factors.
The evidence
The husband relied on his trial affidavit and financial statement filed
20 April 2013. He adduced evidence from his mother, Ms V, whose affidavit was filed on 1 May 2013. Ms V was cross-examined.
The wife relied on her trial affidavit filed 29 April 2013 and her financial statement filed 2 January 2013. Her mother, Ms S, gave evidence with an affidavit filed 29 April 2013.
The law – children’s matters
Pursuant to section 60CA of the Act I am to have X’s best interests as my paramount consideration in determining parenting orders.
Section 60B of the Act gives the structural framework to my determination. That section sets out the objects and principles of part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA provides for a presumption of equal shared parental responsibility for children, which means all the duties, or powers, responsibilities and authority which, by law, parents have in relation to their children.[1] Such responsibilities are usually manifested in the long-term and important decisions for children, such as education, religion, medical procedure and the like.
[1] Section 61B
The presumption under section 61DA does not apply if the Court has reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in family violence, within the definition in the Act, or abuse of the child or another child who, at the time, was
a member of the parent’s family or the other person’s family.[2]
[2] Section 61DA(2)
Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to exercise equal shared parental responsibility.[3]
[3] Section 61DA(4)
If the presumption applies and is not rebutted or if the Court determines that an order for equal shared parental responsibility is appropriate, then a mandatory pathway of statutory and intellectual consideration applies. Firstly, the Court should consider whether an order for the child to spend equal time between his or her parents is both in the child’s best interests and reasonably practicable.[4] If the answer to either of those questions is in the negative then the Court turns to consider whether the child spending “substantial and significant time” with each parent is both in the child’s best interests and reasonably practicable.[5]
[4] Section 65DAA(1)
[5] Section 65DAA(2)
The Act at section 65DAA(5) provides assistance in defining the concept of “reasonably practicable” in directing the Court to have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
“Substantial and significant” time is defined in the Act[6] as:
(a) The time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
[6] Section 65DAA(3)
(b) The time that the child spends with the parent that allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
It is obvious then that matters involving the relocation of children or even the putting of distance between parents’ homes can impact on determinations as to their best interests in the sense of spending equal time or “substantial and significant time” between parents and also as to the reasonable practicality of the parents’ proposals.
Although I remain unconvinced that this matter has the characteristics of a “relocation case” in its usual form, the principles that have evolved from many years of dealing with such matters remain relevant. They can be summarised as:
a)That “relocation” is not a special category of parenting matter. That is, the Court must still make orders which it determines are in the best interests of the child. The fact of an anticipated relocation is just one of numerous matters to be considered in reaching such orders;
b)The child’s best interests is the paramount but not the only consideration;
c)
In its application of section 65DAA and particularly, section 65DAA(5), it is appropriate for the Court to canvass
the advantages and disadvantages of a proposed relocation
of a child;
d)
Neither party bears an onus to establish that either a relocation
or a continuation of a status quo will best promote a child’s best interest;
e)A party seeking to relocate a child need not show compelling reasons to do so;
f)The Court should consider a parent’s right of freedom of movement, but such consideration must defer to the child’s best interests;
g)As is the case with any parenting matter, subject to affording procedural fairness, the court is not restricted to a choice between the competing proposals of the parties.
Consequently, the crux and focus of my determination as to parental responsibility and to X’s parenting and living arrangements is the child’s best interest. In determining those best interests I am obliged to reference a number of statutory considerations in respect of the proposals of the parties and the probative evidence. There are two primary considerations set out in section 60CC(2) of the Act and numerous additional considerations in section 60CC(3). There is, however, no hierarchy of importance and each consideration must be attributed weight in respect of the evidence.
The two 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.
A recent amendment at section 60CC(2A) stipulates that the court is to give greater weight to the consideration in subparagraph (b) in the weighing and balancing process.
The additional considerations are numerous and, in many ways, pragmatically connected to the evidence. They are each set out below, and in respect of that evidence.
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents
The Act itself does not give a definition of the term “meaningful relationship”. However, the Full Court in McCall & Clark[7] has adopted with approval the views of judges at first instance and, in particular, Brown J in Mazorski v Albright[8], where her Honour considered a number of synonymous adjectives for the word “meaningful” such as “significant”, “important”, and “of consequence”. Her Honour saw the notion as being a qualitative, rather than quantitative, one. That is the success or significance of a relationship is not measured in days, hours or minutes. It is the quality of the relationship that gives it meaning and benefit.
[7] (2009) FLC 93-405
[8] (2007) 37 Fam LR 518
Further, Bennett J in G & C[9] saw the inquiry as being a prospective one. That is, the court is to make orders which assist the relationships to be maintained and flourish into the future. In doing so, however, the court must examine the current state of such a relationship.
[9] [2006] FamCA 994
All of the evidence suggests that X has a good, bonded and successful relationship with each of her parents. To their credit, this has been achieved despite the acrimony in the parents’ separation and the limited time that X has spent with her father in the interim. I note, however, that such time has been regular and frequent which I assume has contributed to the good relationship between father and daughter.
It is the task for the court, therefore, to determine orders which, subject to X’s best interests, assist in continuing the valuable relationships that she has with each of her parents. In doing so I consider the age of the child, the current nature of her relationships with her parents, and issues of regularity and frequency. It must be remembered, however, that whilst this is a “primary consideration”, it is just one amongst many which I must balance in making a determination that is ultimately in X’s best interests.
In Champness & Hanson[10] the Full Court observed:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had
a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court
to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit
is established, it must still be weighed along with all of the other relevant factors…
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[10] [2009] FamCAFC 96 at 103
The wife raises family violence as an issue. I must according to the legislation give this consideration emphasis and weight. I note, however, that the wife does not seek to place any restraints or safety conditions on X’s time with the husband. She does not seek an order for supervision of the child’s time with the husband. My understanding is that the wife’s proposal to stagger X’s time with the husband is based simply on the child’s age. She does not argue that her own parenting capacity is compromised by the allegations of violence she makes against the husband.
The wife’s affidavit is extremely critical of the husband. The content is dominated by her allegations of physical and emotional violence. She particularises a number of allegations. She alleges that there have been threats made to kill her. She has obtained intervention orders. She deposes to a breach by the husband and subsequent conviction. Copies of email communications were tendered to me which corroborate such breaches.
I have had the benefit of seeing and hearing both parties give evidence in court. I remain unconvinced by the husband’s almost blanket denials of the allegations against him. I am satisfied that an incident
of violence precipitated the final separation in late December 2011.
I have had the advantage of email communication between the parties in the weeks following the intervention order which obliged the husband to leave the home. His initial failure to inquire of the wife as to the reason for the ex parte intervention order does not sit well with his claims that it was unjustified, or even the implication that his removal from the home and the relationship was a part of some collusion or conspiracy by the wife and her current partner. The wife withstood cross‑examination as to her evidence in respect of domestic violence. Her evidence was clear, consistent and particularised. Where there are issues of credit between the parties in this respect, I prefer the evidence of the wife.
Nevertheless, whilst such family violence is abhorrent and difficult
to justify in any circumstances, I must consider its relevance
in determining the parenting orders for X. Whilst it is reasonable to expect that there might have been some exposure of X to such issues in the home, there is no evidence that her relationship with the husband has been negatively impacted. Similarly, the wife does not seek specific restraints or conditions in respect of X’s time with the husband.
Additional considerations
Section 60CC(3)(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
X is just five years of age and cannot be expected to have formulated or rationalised any views or preferences as to her living arrangements. She was, however, seen on two occasions by Dr W. In the first family report of November 2012, Dr W observes X thus:
37.X presented as being a happy, talkative (although a little shy with the writer), well adjusted, and reasonably intelligent girl, who appeared happy to talk to the writer about her parents; but who seems to be stuck in the middle between the ongoing conflict and petty and immature behaviour of her parents.
38.It should be noted that X seemed extremely confused during her interview, and based on what she reported, it seems that she might have been told to say certain things to the writer by both parents.
…
41.The writer talked to X about the differences between the truth and a lie, and she seemed to understand, and then she reported that it was untrue that her mother yells at her when she mentions her father, as the father claims. X also reported that her father thought her mother was a bad mummy, whilst her mother though he was a good daddy. However, she also seemed quite sure that her mother didn’t want her to see her father, and that she didn’t like it when she had fun with her father either; but then she reported that this is what her father tells her. However, she then reported that her mother does get a little upset if she tells her she has a good time with her father.
42.X also reported that she didn’t want to see her father, but this seemed to be because she believed that her mother didn’t want her to; although she reported that she does have fun with her father; although she again said that her father asks her lots of questions about her mother.
The second report was prepared some eight months later, in July 2013. Dr W’s observations are recorded as follows:
42.X presented in a similar way as the last time, except she appeared to be much more careful about what she said to the writer this time around.
43.When asked about her parents, X reported that she lives with her mother and she sees her father, and she likes spending time with her father. She reported that whilst her mother likes her father, her father doesn’t like her mother, and she stated that she knew this because her father yells at her mother, and she stated that he did when they were together. X was very sure that her father doesn’t like Mr C, “because he thinks he’s a gypsy … Daddy says I should live with him (the father) … I think I shouldn’t … I like living with mummy … because I like playing with her.”
44.X reported that her father asks her questions sometimes about her mother, and he gets upset sometimes about what she (X) says (or how she answers his questions); and she reported that her mother does not ask her questions about the father. She stated that she lives with her mother in her house, but her grandmother looks after her after kinder when her mother is at work, and also before kinder. She stated that sometimes Mr C looks after her and sometimes her grandmother when her mother is at work and sometimes her father.
Whilst this child is too young and immature to formulate views which should be given any weight, Dr W’s unchallenged evidence is enlightening as to the efforts of each of these parents to manipulate the child’s views. Their lack of insight into the probable and long term emotional effect on X is profound.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
X is in many ways a fortunate young girl. By reason of her parents living in (omitted) and both working in Melbourne, X has had her grandmothers and members of extended family regularly in her life. She has been looked after before and after school by her grandmothers. Nevertheless, on the evidence before me, the wife is the primary attachment figure for X. The husband’s repeated claims from the witness box that X’s “primary parent” is her grandmother do not have substance and perhaps again show Mr New’s lack of understanding of the importance of quality within relationships, rather than simply adding up hours and minutes. X’s comments to Dr W suggest a primary attachment to the wife. This is not, however, to understate the nature of the relationship that she has with the husband. It is clearly a familiar and comfortable one. She shares her time with the husband with their extended family. She has therefore had the benefit of much input and love from various generations of family.
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child
The evidence does not relate to this consideration to any great degree.
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child
The evidence does not relate to this consideration to any great degree.
Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living
The husband argues that there would be a negative impact on the child if the wife was permitted to move to Melbourne with X. He cites the regular and available contact for X with him and the extended families on both sides. He also expresses concern as to the longevity of the wife’s current relationship and suggests that she would return to (omitted) if that relationship failed and thereby causing a further change for X.
It should be remembered, however, that X will be commencing school in 2014. This will be an important milestone for her. She will rapidly socialise and develop new relationships and interests. Within this context, any arrangement like the current one, which involves
a number of changeovers each week for X between homes, could only be continued if the parents demonstrate the extraordinary level
of cooperation, communication, trust and respect needed to make such an arrangement workable. If these traits are absent then X’s best interests, in any event, and wherever she lives, might be best served by her having one home base and dedicated time with the other parent but with the present number of changeovers being reduced. Also within this context, Melbourne and (omitted) are only about an hour apart. Both parents work in Melbourne and commute to (omitted). I have already found that X has a comfortable and bonded relationship with each of her parents. I expect that her move into full-time school will be the most significant change for X within the next twelve months or so. As against such a background, I am confident on the evidence before me that she would be able to cope with and continue her relationship with both her parents whilst establishing a primary home with one of them.
Section 60CC(3)(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
Should both parents remain living in (omitted) then there would be the opportunity for X to have frequent time between her parents and with other family members, subject to her overall best interests. There may also be the opportunity for spontaneity within those relationships. There might be an opportunity for each parent to both participate in her school activities although, of course, they both work in Melbourne. Conversely, if X was to live with the wife and to attend school in Melbourne as the wife proposes then this may, in fact, be more convenient for the husband in attending her school than if X is at school in (omitted).
If both parents continue to live in (omitted) and work in Melbourne then they would inevitably need to enlist continued child care assistance. The wife’s unchallenged evidence is that she would reduce her hours so as to work only school hours if X is to live with her in Melbourne and hence the need for such regular child carers might be alleviated.
Similarly, if X was to live with the wife in Melbourne then there might be opportunity for the husband to spend time with X in after-school hours without having first to return to (omitted).
Overall, however, there are some practical advantages and disadvantages in each of the proposals of the wife living in (omitted) or the wife living with X in Melbourne. On either scenario though, there would be opportunity for the husband to spend out of school time and weekends with X.
Section 60CC(3)(f) – the capacity of each of the child‘s parents and 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
The trial affidavits of each of the parents are equally striking in their criticism of the other. The husband criticises the wife for leaving the relationship. He criticises her for taking up with Mr C. He suggests that she does not prioritise X’s important relationships over her own. On the other hand, she criticises the husband for his brother’s drug use and history. She criticises him for alleged family violence. She makes criticisms of the husband himself as to alleged drug use; although not on the same scale as his brother. It is surprising then that a close reading of both affidavits does not show any specific or particularised criticisms by them of the capacity of each to parent X over and above the personalised criticisms. This is again apparent in the orders that each seek for X’s time with the other. Rather, these affidavits emphasise the high degree of residual animosity and the difficulty for each of them in extracting themselves from their marriage. It seems on a pure reading of the affidavits that in many ways X is peripheral to these inter-personal relationship difficulties. For instance, the wife seems to concede the husband’s capacity when she proposes orders inter alia whereby X spend a block period of three nights with the husband in the forthcoming September school holidays, and for five nights in the summer school holidays extending to one half of such holidays. She does not propose to attach any conditions. She does not seek restraints. Similar observations and comment can be made in respect of the husband’s proposals.
The evidence does, however, suggest that the capacity of each of these parents is compromised by their lack of insight into the child’s emotional needs. Dr W makes it clear that each has involved X in these proceedings.
The capacity of each of the parents is enhanced by the availability and willingness of various family members to assist. That assistance will not be so readily available should the wife and X live in Melbourne although the wife would adapt her work hours to be more available for X in out of school hours.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The evidence is that this child has an extremely close and active relationship with her extended families. I have no doubt that his would continue whether the wife lives in (omitted) or an hour away in Melbourne.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
An overriding tenor in this matter is the difficulty that each parent has in reconciling the needs of their child with their own needs and desires to move on with their lives. The husband understandably wants his daughter “on tap”. She has always been available to him. She has been in close proximity to extended family. He wants to continue living in (omitted). Any move of X, even the short distance to Melbourne, will cause him some inconvenience. He perceives unfairness or injustice in such a proposal. These emotions, however, are primarily of self-interest. His overly critical affidavit and evidence from the witness box is indicative of his perception of unfairness, but entirely out of context and balance with his apparent altruism in offering “fluidity and flexibility” and unconditional time for X with the wife.
Similarly, the wife was at pains to express what she “wants”. She wants to move to Melbourne and pursue her new relationship with Mr C. She no longer wants to live in (omitted). She wants X to spend alternate weekends and a couple of hours on Wednesday evenings with the husband because this would be more convenient for the wife. She favours the preferences of her partner, Mr C, rather than those of the husband as to where she should live. She too is overly critical of the husband as to his behaviour and attitude whilst also offering block periods of unconditional time for X with him.
All of these emotions are understandable and probably inevitable for parents who are trying to balance their commitments to a child with other relationships and lifestyle choices. The Act, of course, obligates me to have the child’s best interests as my paramount consideration.
In doing so, however, I cannot neglect a parent’s right to freedom
of movement and an independent and happy life post-separation. There are many options worthy of consideration that can properly and adequately serve children’s best interests in the balancing process which must, of course, prioritise the child’s interests.
I also have had the advantage of an affidavit from the wife’s partner,
Mr C. He gave evidence and was cross-examined. He presented as committed to the relationship with Ms Gilpin yet the husband urges me to consider whether or not that relationship will last. Mr C was cross-examined as to his own lack of experience of domestic relationships and the care of children. Nevertheless, I can only rely on the evidence as it stands and my own observations of Mr C in the witness box. Speculation is generally of little probative assistance in family law matters. Mr C also demonstrated understandable traits of self-interest. He wants to live in Melbourne rather than (omitted). He says that it would not be “ideal” for him to live in (omitted). He has work and outside interests in metropolitan Melbourne. It would be inconvenient for him to move to live in (omitted). Significantly, however, he said that he would do so if the Court was to make Orders which obligate X, and therefore the wife to live in (omitted). To my mind, this shows an admirable commitment to his relationship with Ms Gilpin and his acknowledgement that she brings with her into their relationship ongoing obligations to her daughter.
The evidence before me and, in particular, the email communications between the husband and the wife, together with the husband’s evidence from the witness box, leads me to conclude that he has understandable difficulties in dealing with the separation. His entreaties of reconciliation went unreciprocated. The nature of his separation with his wife entering into a relationship with his own acquaintance must have been difficult for him. It remains, however, for these parents to separate their own residual difficulties from their obligations to care for and best interests of X.
Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
I am satisfied on the balance of the probabilities that there was family violence between these parties leading up to their separation.
I generally accept the wife as a witness of the truth in this regard and repeat that her evidence was clear, consistent and particularised.
She withstood cross-examination. The husband was not so impressive a witness. He admitted in cross-examination that there was tension in the household at the relevant times. The police were involved and intervention orders were obtained. The content and tenure of the email communications immediately post-separation and the making of the intervention order do not sit well with the husband’s claims of ignorance as to the background to and the trigger for the separation, involvement of the police, and the making of an intervention order. The husband consented to a final intervention order in May 2012 but without admissions as to the allegations.
Section 60CC(3)(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.
The husband claims that an order permitting the wife to be primary parent of X and to live in Melbourne creates an unknown that may lead to further litigation. He says that a relationship with Mr C is in its early days and is untested. Conversely, orders in the terms that the husband has proposed would see the wife and Mr C living in (omitted) contrary to their preferences and with their likely consequent grievances inevitably pointed at Mr New. The capacity of these parents then for co-operative and respectful co-parenting will be severely tested and with prospects then of further litigation.
Discussion and conclusions
I am satisfied that X’s best interests are served by there being
an order for equal shared parental responsibility between these parents. I have made findings that there is family violence in the terms of the broad definition in the Act between these parents. As such, the presumption does not apply. Nevertheless, despite the difficulties in coming to terms with the end of their relationship and the elements
of self-interest that I have noted, I also observe these parents as loving and committed to their daughter. They have both been active in her care. They both very much want to be involved in all aspects of her life. The husband needs to accept that his relationship with the wife
is over. He will come to terms with her moving on to a new relationship. Each will eventually move forward with a more positive outlook. Within this context, they have much to offer X and both should contribute to important decisions in her life.
The residual difficulties that I refer to, however, currently remain the dominant emotions with these parents. I am satisfied that the wife was the victim of family violence in the particulars set out in her affidavit.
I am satisfied that the husband remains bitter as to the nature of the wife separating from him. The overwhelming theme of mutual criticism in the affidavits is demonstrative of the present lack of ability
to communicate and co-operate to the necessary degree in order
to make an equal shared care arrangement practical or workable. They have not yet managed to separate their own feelings for each other from the objective responsibilities they have for care of X. The cooperation required to successfully co-parent on an effective basis is not apparent. Dr W’s comments and observations of X being the subject of inappropriate questioning by each parent is forceful evidence of this conclusion. At paragraph 64 of her first report, Dr W opines:
In short, regardless of who might have been X’s primary caregiver in the past, interviews and observations revealed that she now sees her mother has [sic] her primary caregiver and attachment figure; and at her age and stage, it is important to prioritise this attachment to ensure it is a positive and secure one; as psycho-emotional development depends a great deal upon continuous, predictable, emotionally-available care giving, as this shields the child from overwhelming and unsafe experiences, and enables them to form organised attachments, and supports them to develop their capacity for self-regulation and growing autonomy.
Moreover, secure attachments have been shown to have a positive effect on social, emotional and mental development; and if she is provided with the securing stability of one primary home now, with her primary caregiver and attachment figure so that she has a secure attachment; then it is more likely that she will be able to move forward to more of a shared-care arrangement much quicker in the future.
I am of the view that X’s best interests are served by living primarily with the wife. She has done so since separation in December 2011. The intervening period is a substantial and significant time in the life of a five year old. Dr W’s conclusions as to this child’s attachments are significant and forceful. There is little or no challenge to the wife’s capacity to parent X.
The husband has undoubtedly been a regular and continuous figure
in X’s life although the interim orders and the arrangements prior to that have limited the quantity of time between them. The husband’s evidence from the witness box, however, gave concerns as to his insight into and understanding of the nature of the concepts of attachment and primary parent. He vigorously argued the relationship between X and her grandmother as being X’s primary relationship. This misunderstands the fact of a grandparent caring for a child regularly and the attachments that will form for a child to a primary parent. Matters such as these argue against any equal time regime in that the prospects of mutual and consistent cooperative parenting between these two parents seem slim at least at this stage.
I must consider now the regime of time between X and the husband within the context of the wife being the primary parent and the wife’s preference to live in Melbourne. I stress that I do not consider this to be a relocation case in its true sense. The distance between (omitted) and Melbourne is only one hour. Travel is not onerous, whether it be by car or train. Importantly, both parents work in Melbourne but have lived in (omitted). Further, X will be moving on to full-time school in 2014. This will be an important milestone and assist her socialisation. Ironically, it may be that the parents’ involvement in X’s school would be made easier if she attends a Melbourne school. I also take into account the wife being happy and comfortable in her role as primary parent and, in a sense, her relative right to freedom of movement. Frankly, given the fact that the parties both work in Melbourne, that X will be attending full-time school from 2014, and my finding that an equal time arrangement is not in the child’s best interests, there can be little argument against the wife living in Melbourne with X. This child needs stability in a home base as emphasised by Dr W. There will still need to be quality time for X with the husband which is best accommodated on weekends. There will be opportunity for these weekends to be punctuated by weekday time which, in any event, would occur after work and after school. This can occur just as conveniently and efficiently in Melbourne as it could in (omitted). I do not propose to restrict the wife’s residence with X to (omitted).
The wife proposes a staggered and increasing but conservative regime for X spending time with the husband. She makes numerous allegations in respect of the husband’s behaviour, but not of his capacity. She makes allegations in respect of drug use and abuse by the husband’s brother. However, the brother no longer lives in the same home as the husband. She makes allegations in respect of the husband being violent towards her. These are historical matters and have limited probity, particularly given the orders that the wife proposes and any need for protective orders can be achieved efficiently through injunction such as preventing the husband’s drug use during times that X is in his care. Such an injunctive Order is appropriate to protect the mother’s role and her confidence as primary parent and given the evidence in respect of the husband himself and his brother in respect of drug use or claimed drug use. I am confident that the fact of separation will serve to protect the wife herself from any repeat of family violence. The allegations do not extend to direct danger to X.
I had the advantage of seeing and hearing both grandmothers give evidence. Not surprisingly, they were both partisan to their own child’s case. I harbour some concerns in respect of the paternal grandmother, and simply cannot accept her ignorance as to the drug-use history and including hospitalisation of her son, A. Her credit suffers accordingly. She is, however, clearly an important person in X’s life. The husband lives in the grandmother’s home and there are no concerns, on the evidence, as to any direct safety aspects for X in that home. As such, I see no reason why X’s relationship with her father and the grandmother should proceed on the conservative regime suggested by the wife. When challenged during cross examination, the wife responded that she simply doubted whether X would ‘cope’. Whilst such an attitude in a young mother of an only child is understandable and not uncommon, she must develop a trust and confidence in X being in the care of the husband and his extended family. An unreasonably conservative and restricted time regime will not necessarily assist her in gaining such confidence. However, X soon is of school age. Social relationships will develop quickly for her, together with her own self-confidence. She is familiar and apparently comfortable in her father’s home and with his family.
I am of the view that X spending each second weekend with her father from Friday afternoon until Sunday evening is appropriate and
in her best interests. She should also be able to spend time
on weeknights with the husband. Such occasions will be limited in actual time but still of great value to both the child and the husband if occurring frequently. I think X’s best interests would be served by these times happening on an evening each week. As yet, however, she is young and such time will be limited by her school commitments and the husband’s work hours. If he has some flexibility in his work hours then Mr New should be able to collect X from school in 2014 and return her to the wife at 6.30 pm. If his work hours do not permit him to do so then there should be a collection time as agreed between the parties.
I accept Dr W’s recommendations at paragraph 76 of her report and in respect of school holidays, as follows:
It is also recommended that holiday time be introduced, possibly in the September 2013 school holiday period, whereby X spends time with her father for half of all school holidays, but for no more than five nights at a time in this first holiday period, and then no more than a week at a time thereafter.
Property
The wife seeks 70% of the net property pool and the husband proposes that the wife receive 55%.
The property is modest in value. The major asset is the unencumbered former matrimonial home with an agreed value of $285,000.00. The parties each have a motor vehicle and the evidence suggests that the wife’s vehicle is of slightly higher value. The husband has superannuation entitlements of $58,992.00. The wife’s superannuation is $25,530.00. The wife seeks a splitting order in respect of the husband’s superannuation in her favour with a base amount of $15,000.00. The husband proposes the same order.
On the evidence before me I find the property pool to be the following, and by consent, I exclude the wife’s outstanding HECS debt.
| Property B | $285,000.00 |
| Remaining proceeds of sale of Property L | $7764.00 |
| Account held in X’s name (at separation | $5393.00 |
| Husband’s motor vehicle | $2000.00 |
| Wife’s motor vehicle | $4000.00 |
| TOTAL | $304,157.00 |
| Superannuation | |
| Husband’s (omitted) Super | $58,992.00 |
| Wife’s (omitted) Super | $25,530.00 |
| TOTAL | $84,522.00 |
| TOTAL PROPERTY (INCLUDING SUPERANNUATION) | $385,386.00 |
There was a no forensic testing of the values of the motor vehicles. I conclude their limited values from the affidavit and financial statements in evidence before me.
The wife’s evidence is that “X's Account” which totalled $5393.00 as at December 2011 has now been exhausted but that she had the use of these monies. Given that she has been in employment during that period of time, I am satisfied that these monies should be added back to the pool in that there is no specific evidence of reasonable use post-separation.
Having determined the property pool, I must now decide if it is appropriate or just and equitable between these parties to make orders for alteration of property interests. Their major asset is the former matrimonial home. They own that property as joint tenants. They agree that the husband should retain that property in any settlement. They differ in their arguments as to the weight to be attributed to various contributions to the property pool and to the relevant section 75(2) factors. In all the circumstances I am of the view that it is just and equitable and appropriate to make orders to alter the property interests of the parties.
I must then consider the relevant contributions pursuant to Sections 79 (4)(a)-(c) of the Act. After determining any appropriate alteration of interests on account of contributions, I then consider whether any further adjustment of interest is necessary on consideration of the relevant factors under section 75(2) of the Act.
The wife’s parents contributed a sum of $18,600.00 towards the deposit on the former matrimonial home. That contribution was made in 2003. I am satisfied that a further sum of approximately $10,600.00 was advanced by the wife’s parents to pay for stamp duty and legal expenses. The husband suggested that these monies or a part thereof had been repaid. However, his evidence in the witness box was vague and uncertain and I prefer that of the wife that the advancement was a gift made by her parents.
The parties worked substantially through the course of the relationship. Further assistance was given by the wife’s parents to mortgage payments. A vacant block was bought and sold during the relationship. Further investment property was purchased Property L in 2009. The property was sold in 2012 and the mortgage of the former matrimonial home was discharged.
Both parties contributed to the care of X subject to their own work commitments and with the assistance of family members. X has lived with the wife since separation although they have done so in the former matrimonial home which is unencumbered.
The contributions by the wife’s parents must be given some weight given the length of the marriage and the relatively modest property pool. Those contributions are directly traceable to the major asset of the parties’ being the former matrimonial home. In all of these circumstances and considering all contributions, I am of the view that a loading of 5% of the property pool in favour of the wife in respect of the tangible assets of the parties is appropriate. I note both parties seek orders whereby there be a split from the husband’s superannuation entitlements in favour of the wife the base amount of $15,000.00 which would bring the wife’s superannuation entitlement to approximately $40,500.00 and reduce the husband’s to approximately $43,900.00. I consider a splitting order in these terms to be appropriate given the relatively modest accumulations in the funds and the delay until they crystallise.
I must also consider the relevant section 75(2) factors. Both parties have the capacity for employment and there is no great discrepancy between their earning capacities. The orders that I make will see X living primarily with the wife although I expect that the husband will contribute a reasonable amount to X’s financial needs from a Child Support Assessment. The orders will impose a requirement for both parties to adequately accommodate X although a greater responsibility of her care will fall on the mother. I note that the mother intends to continue with her employment albeit at a reduced level at least whilst X is young. There will be a consequential reduction in her income. I also note that the mother has re-partnered and intends to form a family unit with Mr C who is also in full time employment and with the benefit of his income to that family unit. In all the circumstances, I am of the view that should be a further loading to the wife of 5% on account of the relevant section 75(2) factors which mainly reference her primary care of X. That adjustment will again be in respect of the tangible assets only.
I am satisfied, therefore, that it would be just and equitable for the tangible assets of the parties to be divided as to 60% to the wife and 40% to the husband. I calculate those tangible assets to be $304,157.00. The wife’s entitlement is 60% or $182,494.00. The husband’s entitlement is 40% or $121,663. The husband will retain the following:
| Property B | $285,000.00 |
| (omitted) Ford Motor Vehicle | $2000.00 |
| TOTAL | $287,000.00 |
The wife will retain:
| the balance funds from X’s account at separation | $5393.00 |
| her motor vehicle | $4000.00 |
| monies held in trust | $7,7764.00 |
| TOTAL | $ 17,157.00 |
I calculate, therefore, there will need to be a cash adjustment of $165,337 from the husband to the wife. The orders will provide in the alternative for the sale of the home, if the husband does not wish to retain it.
I am satisfied that orders in the above terms would be just and equitable given the history of the marriage and the current circumstances of each party, the pool of property, and the husband’s desire to retain the home.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 27 August 2013
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Procedural Fairness
0