PATIL & PATIL
[2009] FMCAfam 1135
•27 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATIL & PATIL | [2009] FMCAfam 1135 |
| FAMILY LAW – Parenting – father acknowledged being violent and abusive towards mother and children – father has attended various behavioural change programs – whether father has changed. FAMILY LAW – Property – just and equitable division of pool. FAMILY LAW – Spousal maintenance – wife worked in retail industry for |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 72(1), 74(1), 75(2), 79, 79(2), 79(4) |
| Hickey v Hickey (2003) FLC 93-143 |
| Applicant: | MS PATIL |
| Respondent: | MR PATIL |
| File Number: | MLC 11563 of 2008 |
| Judgment of: | Riley FM |
| Hearing dates: | 7, 8 & 9 October 2009 |
| Date of Last Submission: | 9 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | John Werner |
| Solicitors for the Applicant: | Rigoli Lawyers |
| Counsel for the Respondent: | Andrew Combes |
| Solicitors for the Respondent: | Lampe Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Lino Marchetti |
| Solicitors for the Independent Children’s Lawyer: | David Stagg Tonkin & Company |
ORDERS
Parenting
THE COURT ORDERS BY CONSENT THAT:
All previous parenting orders be discharged save for paragraph 6 of the orders made on 22 June 2009 (which required the parties to attend a post-separation parenting course).
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the children, [X] born [in] 1997 (“[X]”) and [Y] born [in] 2001 (“[Y]”).
THE COURT ORDERS BY CONSENT THAT:
[X] and [Y] live with their mother.
THE COURT ORDERS THAT:
[X] and [Y] spend time and communicate with their father as follows:
(a)each alternate school term weekend from after school or 3.30pm Friday until 6.30pm Sunday commencing 27 November 2009 and recommencing on the first weekend of each school term;
(b)for one week in each of the school term holidays by agreement and failing agreement from 10.00am on the first Saturday to 10.00am on the second Saturday of the holidays, unless the father gives four weeks notice in writing to the mother that he is unable to take leave from work at the relevant time;
(c)for up to two weeks between 1 January and 20 January each year at times to be nominated in writing by the husband at least four weeks prior to the conclusion of term 4 the previous year;
(d)on Christmas Day:
(i)from 6.30pm on 24 December 2009 until 3.00pm on
25 December 2009 and each alternate year thereafter;(ii)from 3.00pm on 25 December 2010 until 6.30pm on
26 December 2010 and each alternate year thereafter;(iii)the father’s time shall be suspended as follows:
A.from 3.00pm on 25 December 2009 until 6.30pm on
26 December 2009 and each alternate year thereafter;B.from 6.30pm on 24 December 2010 until 3.00pm on 25 December 2010 and each alternate year thereafter;
(e)(i) the father be at liberty to telephone the children from 6.30pm to 7.00pm each alternate Sunday and each Monday and Wednesday, with the mother to do all things to facilitate the telephone call between the father and [X] and [Y], and provide privacy to the father and [X] and [Y] by the mother leaving the room during the telephone call;
(ii)the mother shall allow [X] and [Y] to ring the father at all reasonable times.
(f)such other and further times as may be agreed by the parents from time to time.
Changeover take place at school on Fridays, if applicable, during school term and otherwise at the [omitted] car park, [H].
THE COURT ORDERS BY CONSENT THAT:
Each party as soon as practicable notify the other of any illness or injury sustained by [X] or [Y] whilst in that person’s care and provide details of treatment and medication to the other.
Each party notify the other of any change of address and telephone numbers within 48 hours of such change.
The mother authorise the school that [X] and [Y] attend to enable the father to obtain copies of school reports, school records, photographs, extra curricular notices and any other information provided by the school in relation to [X] and [Y] and the father be permitted to attend parent teacher nights and any other occasions where parents are normally invited.
The production of these orders to the school shall constitute proof of the said authority.
The mother provide and the mother and father forthwith implement and exchange a communication book at changeover for child focused information to be passed between the parents.
All medical and health decisions be made in consultation, via the communication book, by the parties and each party shall keep the other informed of all health reports, examinations and appointments in relation to [X]’s and [Y]’s physical and psychological health.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y] or either of them, and from permitting any other person so to do.
The father is restrained from abusing or physically disciplining by assaulting [X] and [Y] or either of them, and from permitting any other person so to do.
THE COURT ORDERS THAT:
The mother is restrained from abusing or physically disciplining by assaulting [X] and [Y] or either of them, and from permitting any other person so to do.
The mother and father be restrained from moving [X]’s and [Y]’s place of residence further than 20 km from the [H] area unless by written consent from the other party or order of the court.
THE COURT ORDERS BY CONSENT THAT:
Each party shall have his or her time suspended on Mother’s Day or Father’s Day as applicable from 10am until 6.30pm on the day.
Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parties attend family counselling to attempt to deal with their issues relating to the care of [X] and [Y] and that:
(a)the family counselling occur at an organisation nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia; and
(b)the parties attend at the organisation at such times as are requested by the organisation.
The appointment of the independent children’s lawyer be discharged with effect 30 days after the making of these orders.
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
Property
THE COURT ORDERS BY CONSENT THAT:
The former matrimonial home situated at and known as [H]Property H (the real property) be forthwith sold by public auction or as otherwise agreed between the parties on such terms and conditions as agreed and failing agreement as determined by the selling agent who shall be appointed by the parties within 14 days, and failing such appointment shall be nominated by the President of the Real Estate Institute of Victoria.
Upon the sale of the real property the proceeds be applied as follows:
(a)firstly, in payment of the costs of sale;
(b)secondly, in discharge of all mortgages, water rates and outstanding land rates and taxes;
(c)thirdly, in discharge of the $21,000 Visa Card debt in the name of the husband;
(d)fourthly, in discharge of the $1,000 Coles Myer card debt in the name of the husband;
(e)fifthly, in discharge of the $1,000 debt to Ms J;
THE COURT ORDERS THAT:
The balance remaining from the sale of the real property be divided as follows:
(a)65% to the wife;
(b)a further payment of $10,000 to the wife;
(c)the remainder to the husband.
THE COURT ORDERS BY CONSENT THAT:
Pending the completion of the sale:
(a)the wife shall have sole occupation of the real property;
(b)the husband shall pay all mortgage repayments and all rates and taxes on the real property; and
(c)neither party shall encumber the real property without the consent in writing of the other.
The husband do all necessary acts to transfer to the wife at the expense of the wife all his right title and interest in the parties’ Ford Laser motor vehicle.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975, Mr Patil, is a member spouse of the Superannuation Fund [company omitted] Group Superannuation Fund A (“the superannuation fund”).
The trustee of the superannuation fund do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes available to Mr Patil from his interest in the superannuation fund that Ms Patil is entitled to an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001, using a base amount of $93,498 and there is a corresponding reduction in the entitlement of Mr Patil had these orders not been made.
For the purposes of the order 25:
(a)the base amount to be allocated to Ms Patil in the superannuation fund is $93,498; and
(b)the operative time for this order is four days after the making of this order.
Unless otherwise specified in these orders and save for the purposes of enforcing any moneys due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife, subject to paragraph 28);
(b)moneys standing to the credit of the parties in any joint bank account are to become the property of the husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate if hereby expressly severed; and
(f)each party be solely responsible for any personal debts in his or her name.
The following items are to be retained by the wife, except those marked with an asterisk, which are to be retained by the husband:
Lounge Lounge Suite Coffee Table 108cm Television DVD/VCR Display/Bookcase Ornaments/Collectibles Kitchen Dining Suite Refrigerator Microwave Pots/pans/cutlery etc Bedrooms 1 QS Bed & Mattress 1 bunk bed, desk, drawers 1 single bed & mattress Clothing TV * Rumpus Room Corner TV & Display Unit Corner sofa with bed * PS2, Wii, Nintendos PS2 etc games Other Toys, DVDs 68cm TV * Study Computer Computer Desk/chair Treadmill * CD’s/DVD’s/V.Camera Laundry Washing Machine Hallway/Linen Pictures/tables/ornaments Linen & Towels Garage Ladder * Lawn Mower * Wipper Snipper * Makita Drill Set * Wheel Barrow * Sander * Other Tools * Bikes x 2 Suitcases
The husband may collect the chattels marked with an asterisk in order 28 hereof on the following basis:
(a)the husband must provide the wife with not less than 14 days notice in writing of the date and time at which he proposes to collect the chattels;
(b)the date shall be a Saturday afternoon and the time shall be between 2.00pm and 4.00pm and not otherwise;
(c)the wife shall leave the chattels in the garage and leave the garage unlocked;
(d)the husband shall collect the chattels and depart the premises with as much expedition as reasonably possible; and
(e)if, within two calendar months, the husband fails to collect the chattels in accordance with this order, the chattels become the absolute property of the wife.
The application of the wife filed on 22 December 2008 otherwise be dismissed.
Spousal Maintenance
THE COURT ORDERS THAT:
The application for spousal maintenance is dismissed.
AND THE COURT NOTES THAT:
These orders finally determine the financial relationship between the parties save for child support.
IT IS NOTED that publication of this judgment under the pseudonym Patil & Patil is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11563 of 2008
| MS PATIL |
Applicant
And
| MR PATIL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is application for parenting orders in respect of [X] born [in] 1997 and [Y] born [in] 2001, and an application for division of property and spousal maintenance. The mother and father married [in] 1994 and separated on 15 November 2008. The father was the breadwinner. The mother did not work outside the home after [X] was born.
THE PARENTING APPLICATION
Background
Since separation, [X] and [Y], who are 12 and eight years old respectively, have lived with their mother and spent limited time with their father. Orders were made by consent on 8 January 2009 that [X] and [Y] spend four hours each alternate Sunday with their father under the supervision of his cousin’s daughter, Ms H. On 16 February 2009, the supervisor was changed to the father's cousin, Ms J. A family report was prepared by Ms T and released on 27 May 2009. In accordance with that report, orders were made on 22 June 2009 by the court that [X] and [Y] spend unsupervised time with their father every Sunday between 10am and 5pm.
The father acknowledged that he had been violent towards [X] and [Y] and their mother during the marriage. The parties disputed the severity of the violence and the degree of verbal and other abuse.
On 27 June 2008, the father signed a protective undertaking with the Department of Human Services (“DHS”) pursuant to which he undertook:
a)not to threaten, intimidate or hit the children;
b)not to expose the children to physical or verbal violence between the parents; and
c)to access the services available to him and be guided by their recommendations.
The parents separated on 15 November 2008. On 20 November 2008, the [W] Magistrates’ Court made an intervention order against the father by consent and without admissions for the protection of the mother, [X] and [Y]. The intervention order will expire on
19 November 2009.
Since separation, the father has undertaken a postseparation parenting course, a parenting skills course and an anger management course. The father says he has now changed. He claims that he has not been violent or abusive towards the children or the mother since separation. The mother was unable to point to any particular incident of violence or abuse towards the children since separation. She said the father had approached her car at changeover and she felt intimidated. The mother maintained that the children would not be safe with their father unless he is supervised.
[X]'s school report for semester 1 of 2009 described him as functioning below the expected level in most areas despite very good to excellent work habits. He was assessed as having a mild high frequency bilateral hearing loss and it was recommended that he continue to wear a hearing aid at school. In March 2007, a psychological assessment found that [X] was in the borderline range with a particular weakness in his working memory index.
The family report in relation to [X] indicates that he has a shy and gentle manner and wears glasses. He has been bullied at school and found it hard to make friends. Prior to separation, his father assisted him with his homework.
[Y]'s school report for semester 1 of 2009 indicates that he was functioning at about the expected standard in all areas and his work habits were very good. He was assessed in July and August of 2008 to have a mild delay in his receptive language and a severe delay in his expressive language and in his total language score. It was recommended that [Y] have ongoing speech therapy.
A paediatrician, Dr M, in a report dated 29 May 2008 described [Y] as a seven year old boy with encopresis. A psychological assessment in July 2008 showed that [Y] was functioning in the low to average range with particular difficulty with verbal comprehension.
Dr M on 29 May 2008 referred [X] and [Y] to a psychologist “for ongoing management of poor school performance, anxiety issues and social/family problems.”
Neither [X] nor [Y] have ever had a sleepover at a friend's house. [X] has been on school camp twice and has had a sleepover at school. [X] and [Y] have not had overnight time with their father since separation.
The proposals of the parties
The mother sought sole parental responsibility and the father and the independent children's lawyer sought that the parents have equal shared parental responsibility. The mother sought orders that [X] and [Y] only spend supervised time with their father. The father and the independent children's lawyer sought orders that [X] and [Y] spend alternate weekends with their father from after school on Friday to 6.30pm on Sunday. Otherwise, the parties consented to various orders, most notably that the mother attend a postseparation parenting course and the parents engage in therapeutic counselling.
Ms J’s evidence
Ms J swore an affidavit on 10 June 2009. Her evidence was not challenged and I accept it. Ms J said:
4.That I observed Mr Patil’s time with the children to be a happy, positive experience for the two boys and Mr Patil. They are happy and greet him joyfully and there is a lot of talking between the four of us. We have planned many and varied activities for the boys and Mr Patil joins in those activities and the children enjoy this.
5.That I have not heard the boys make any statements that would indicate to me they were afraid of Mr Patil or not enjoying their time with him.
6.That I have observed Mr Patil’s relationship with the boys to be close and loving and they respond very warmly and spontaneously with him.
7.That during the time the boys have been with Mr Patil I have noticed they enjoy coming to my home and that they have asked on several occasions if they could stay overnight.
8.That I am aware that Ms Patil has made various allegations of matters occurring or not occurring during Mr Patil’s time with the children. As to those various allegations I say:
a.I have always supervised the contact and have had the children within eyesight or hearing distance save for obvious occasions when either they or I go to the toilet,
b.I have not heard Mr Patil use obscene language around the children,
c.On one occasion at the conclusion of contact Mr Patil approached Ms Patil to give her the remaining zucchini cake that he had baked himself for the children. I was standing a distance of no more than 20 paces away when this occurred and had a clear sight of what occurred. Ms Patil remained seated in her car. Mr Patil did not “stand in her space” nor did he stare at her in threatening manner nor make any threats regarding the conduct of these proceedings to her. In fact when Mr Patil did not get a response from Ms Patil he simply gave the cake to the boys, helped them into the back seat of the car and return to me,
d.Mr Patil has not consumed any alcohol during the time when the children have been with him nor has he grabbed [X] and forcibly held him against his will,
e.It is alleged that Mr Patil put a length of rope around his neck simulating hanging and said to the children word to the effect “look I’m hanging myself, ha ha, your mum wouldn’t like that”. No such incident occurred. I had suggested to Mr Patil that we erect a stirrup swing in my backyard for the children to play on. I recall that [Y] was on the swing with his arms wrapped around the rope and his head hanging forward and his tongue out pretending to be hanging. He sought [X]’s attention who laughed. I heard Mr Patil respond words to the effect that they were not to be silly and that their mother would not like that,
f.It is alleged that Mr Patil created a scene at a café by yelling at the children. Although [Y] was at the time being fussy regarding the ordering of food and Mr Patil said words to the effect that his mother could feed him, he did create a scene and did not yell at the children. The children were not intimidated nor embarrassed,
g.It is alleged that Mr Patil attempted to hide [X]’s green folder relating to the characters Mario and Luigi. This is incorrect and at a later contact occasion [X] confirmed to me that he has the folder with the material.
The family report
In the family report, Ms T said in relation to the mother:
23. She presented as a softly spoken woman who was pleasant and cooperative while also demonstrating considerable anxiety. She expressed significant distress and became emotionally overwhelmed several times during the day.
…
29.She was unable to accept that there needed to be some form of parental communication between her and the father….
30.She interpreted everything the father does in the worst possible light and possibly, out of proportion. …
…
34.When given feedback about the children's positive reactions to their father and to the possibility of them spending unsupervised and/or more time with him, the mother became inconsolable. She said she was devastated and found it impossible to contain her distress. The family consultant was concerned enough to contact the mothers solicitor and the ICL as to the mother's condition.
35.The mother was affectionate and responsive to the children and joined in their activities. The children were somewhat restrained in their demeanour and the family unit did not demonstrate particularly good communication.
Ms T said in relation to the father:
37.He presented in a quiet, cooperative and agreeable manner.
…
40.The father admitted to having hit the ball lease on a few occasions and when asked, said it had always been with an open hand and that he had been fully in control. He said those occasions had been related to the boys being nasty or physical with each other as well as being unresponsive to his strong verbal attempts to stop their abusive behaviour.
41.He said he now understood that hitting is not an option and said he was prepared to do a parenting course to learn better strategies for dealing with discipline and boundary issues. He said he would never hit the children now.
…
44.In relation to the mother, he described her as a good mother and said he basically trusted her care of the boys. …
…
48.The father admitted to pushing the mother in response to her frustrating him and to his part in the altercation between them at separation but felt that she has blown it totally out of proportion.
…
58.The father demonstrated a gentle, friendly and chatty approach with the boys. He was actively involved with them, and responsive to their activities. Some physical reserve between them was noticed although the father was warm and encouraging.
59.The father brought various activities for the boys as well some lunch in case it was required.
60.The father demonstrated a positive and appropriate manner with the boys.
Ms T said in relation to the supervisor, Ms J, who is the father's cousin:
56.Ms [J] has observed the relationship between the father and the boys and described it as very comfortable with no signs of the boys’ fear or apprehension. She commented they have asked if they could stay longer on several occasions.
57.Ms [J] was assessed as a sensible, mature woman who would not accept an unsafe situation for the boys.
In relation to [X], Ms T said that he had a shy and gentle manner and some learning difficulties. Ms T said further:
64.[X] said he was happy at school but that he sometimes experienced bullying problems from other children. He said he found it hard to make friends but had made friends with some of his younger brother's friends.
66.He referred to how his father used to help with his homework and that both parents took him to school.
67.Initially [X] said he wanted his time with his father to remain the same, however, later he said he would like to spend more time with him. There were indications that he felt caught between his parents’ conflict as well as the need to side with his mother. For example, he commented that “Mum and dad don't match … but I match with dad.”
In relation to [Y], Ms T said:
70.When asked about his father [Y] replied that he “kind of” likes his father but that he was afraid his father might hit his mother.
71.[Y] was reluctant to comment on his preferences for spending time with his father and agreed he preferred ‘the judge to decide’ because that would be easier for him.
72.Both boys presented as quiet, shy and gentle. Neither was particularly articulate and both were barely able to respond to questions during their interviews.
73.There was some indication they have been influenced, possibly indirectly, by their mother’s views because they used similar terms as she did in relation to the father. For example, they talked about their father being alright except when “he gets silly” (a term the mother used on several occasions about the father’s behaviour).
74.They said they wanted Ms J (Ms [J]) to stay there because the father “might hit, swear or do silly things”. They said they had seen their father hit their mother and that he had hit them too.
75.According to the mother, both boys have been seeing a psychologist and the court might be assisted by a report from that person.
76.When observed with the mother, the children were observed to play quietly with muted and minimal chatter while they shared activities.
77.When observed with the father, there was no evidence of anxiety, fear or apprehension of any kind towards him. They gave him shy smiles and were happy to see him. They were chatty and warmly responsive towards him and spontaneously played interactively with him.
In her evaluation and assessment, Ms T said:
78.The situation for this family has spiralled to the extent that the children’s time with their father has been reduced to a minimal amount. The fact that there is no direct communication between the parents has exacerbated the situation.
79.It is clear that for some time the parents’ relationship was fraught and that the mother experienced apprehension in relation to the conflict between her and the father.
80.It is also clear that there were some instances where the father’s frustration and anger resulted in his inappropriate disciplining of the children.
81.The father said that since then, he has come to realise and admit his mistakes and demonstrated some understanding of his inappropriate behaviour.
82.The mother continued to express her concerns about her and the children’s safety from the father’s anger and it was evident that she interprets the father’s actions and behaviours in the worst possible light.
83.The family consultant considered that her reaction during the report interviews to the feedback about the children’s response to the father was out of proportion and queried the need for a psychiatric assessment as to any underlying psychological problem.
84.A report from her psychologist might also be helpful.
85.The father’s relationship with the children was assessed as loving and positive and he indicated that he wanted to continue and develop his parental role as far as he was able.
86.While he admitted some inappropriate behaviour during the marriage, both in relation the children and the mother, the family consultant assessed that he was not likely to continue that behaviour, particularly since he was no longer living in that unsatisfactory relationship.
87.It is important for the father to learn alternative discipline strategies, particularly given the ages and temperament of both boys. They need both parents’ love and protection with appropriate boundaries, rather than harsh disciplinary measures.
88.The children indicated a level of concern about their father’s behaviour, however it was assessed as likely that they were strongly influenced by their mother’s views in relation to that. Certainly, the observed interaction between the children and their father reflected a positive and happy relationship and there was no indication of any level of apprehension between them and their father.
89.A report from the children’s counsellor/psychologist might be helpful to the court as additional information
90.The family consultant was nevertheless satisfied that it was appropriate for the father to spend time with the children on an unsupervised basis. For the time being, that was likely to take place at Ms J’s home with additional outings.
91.It would be helpful for the father to commence a parenting course (to learn about discipline strategies and other parenting issues) and for the mother to attend a Parenting after Separation course (that would assist in developing her insight about common post separation parenting problems) as soon as possible.
92.It would also be helpful to the court for both parents to undertake a psychiatric assessment to ascertain whether there are any underlying psychiatric or psychological issues that need to be addressed.
Ms T recommended that:
95.It is recommended that the children continue to live with the mother.
96.It is recommended that the children spend time with the father without supervision on one day per week eg each Sunday until the defended hearing, following which, unless there is evidence to the contrary, and after the parents’ completion of their respective courses, on alternate weekends Friday after school until Sunday 6.30pm – pick up from school and return to a contact centre would be advisable.
97.For the final hearing, the court will be assisted by psychiatric assessments of both parents, to be prepared by the same psychiatrist as well as a report from the children’s psychologist.
98.It is recommended that the mother complete a Parenting after Separation program and that the father complete a Parenting course.
The family consultant's oral evidence
In oral evidence, Ms T was asked about the anxiety that the mother said [X] and [Y] felt before and after spending time with their father. Ms T considered that their anxiety was largely a result of [X] and [Y] feeling concerned about their mother rather than themselves. Ms T said that [X] and [Y] were acutely aware of the conflict between their parents and did not want to upset their mother.
Ms T said that the communication book proposed by the mother was fine in theory. However, Ms T emphasised that communication books must be used only to communicate matters of fact and must not be used to criticise the other parent, even indirectly. She said a useful guide to what is acceptable to write in a communication book is what it would be acceptable for the children to see, although, of course, the parents should ensure that the children do not see the contents of the communication book. (Another useful guide is to only write things in the communication book that would seem entirely factual, courteous and focused on the children’s needs if the communication book were ever to be read to the court.)
Ms T said that it was really important for the benefit of [X] and [Y] that the mother commences and completes a postseparation parenting course. Ms T considered that the mother might always feel that she could not trust the father. Notwithstanding that, Ms T considered that the mother needed to accept that the father is an important and positive part of her children's lives.
Ms T noted that the father had admitted to being violent towards [X] and [Y] and their mother during the course of the marriage. However, Ms T noted that the father had done courses in postseparation parenting, parenting skills and anger management. Ms T considered that the father now understood that violence towards children is inappropriate. She said that she was satisfied herself that the father had changed.
In her written report, Ms T said that the mother had reported to her that she would prefer that [X] and [Y] had no direct contact with their father. It was put to Ms T in cross examination that she had misunderstood the mother who gave oral evidence that she had actually told Ms T that she preferred that [X] and [Y] had no unsupervised contact with their father. Ms T was quite firm in her evidence that the mother had told her a number of times that her actual preference was that [X] and [Y] would have no direct contact with their father but that the mother proposed supervised time because her lawyers had told her it was the minimum that the court would order.
I prefer Ms T’s evidence on this matter. She appeared to have a clear recollection of the conversation. She has no reason to misstate the mother's position. The mother has every reason to deny that she prefers that her children spend no time with their father. The mother appeared in the witness box to be less than full and frank in her answers and to be trying to give a particular impression of herself.
Ms T considered at paragraph 73 of her report that the children had been influenced by their mother, especially as they used some her language, such as the phrase “gets silly”. In her oral evidence, the mother claimed that she had picked up that expression from [X] and [Y], rather than the other way round. Again, I prefer Ms T’s perception. It seems to me to be consistent with the considerable latent conflict between the parents, the fact that [X] and [Y] spend the vast bulk of their time with their mother and the mother's personality.
It is very unfortunate for [X] and [Y] that the mother will not acknowledge that she is influencing them against their father. It is setting them up for a very troubled adolescence.
Ms T said that, when she observed [X] and [Y] with their father, they showed no indication of being fearful of him. However, Ms T said that [X] and [Y] were worried about how their mother would cope when they were with their father.
Ms T said that the parents’ inability to communicate with each other could put [X] and [Y] at risk particularly when they become teenagers. Ms T noted that they already had some difficult behaviours. She said it was very much in the children's best interests that their parents could communicate with each other so that they could present a united front to deal with any issues that confronted [X] or [Y] and so that the parents would know such basic things as where the children were sleeping when they were out at night. At present, Ms T said it would be ideal for [X] if his parents could act jointly to assist him with the bullying he is suffering at school.
Ms T said that being violent towards children made them frightened and anxious and taught them that force is the way to get what you want. She said violence, and verbal abuse, undermine children’s sense of self-esteem, and sense of capacity to influence outcomes.
The psychiatric report
A psychiatric report on both parties was prepared by Dr A. He spoke to a psychologist, Ms P, who had treated the mother in and around April 2009. Ms P reported to Dr A that the mother had experienced an eating disorder in response to her own mother's controlling and negligent approach to parenting. Ms P told Dr A that the mother appeared to have moved from one abusive environment with her own mother to another with her husband. Ms P reported that the mother had limited insight and tended to report difficulties in a somewhat melodramatic manner.
Dr A also referred to a report from another psychologist, Ms F, who had seen the mother between October 2007 and August 2008. Ms F diagnosed the mother with a major depressive disorder which had resolved by August 2008. Ms F made a report to the Department of Human Services regarding the father's treatment of the children.
Dr A considered that the mother had an adjustment disorder with symptoms of depression and anxiety. He said that she had dependent personality traits, a long standing history of anxiety and possibly an eating disorder at least in the past.
Dr A noted that the father acknowledged using physical punishment to discipline [X] and [Y]. Dr A said that the father now accepted that there are better ways of disciplining the boys than resorting to physical punishment as he often had.
Dr A considered that the father had an adjustment disorder with depressed mood. Dr A considered that the father’s personality traits and choice of partner suggested that he was more controlling in the relationship than he admitted.
Dr A considered at the time of the report, which was dated
29 September 2009, that the father did not appear to recognise:
·the inappropriateness of calling the children derogatory names;
·the detrimental effect on the children of witnessing domestic violence;
·that pretending to hang himself may be very distressing for the children.
However, Dr A concluded that:
my assessment[s] of the parents … do not suggest that the violence in the marriage or their underlying personality traits and/or psychiatric problems are such as to preclude either parent from being actively involved in the lives of their children.
It is important to point out to both parents the harmful effect on children of ongoing conflict between parents after separation. The challenge is to put their own differences aside and to find ways of parenting cooperatively in the interests of the children.
Dr A was cross-examined to little effect. However, he did say that, once the court has determined the arrangements for children, parents are sometimes able to put their differences behind them.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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 60CA of the Act provides that:
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.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
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).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear that [X] and [Y] benefit from having a meaningful relationship with their mother. She is and always has been their primary carer. [X] and [Y] also benefit from having a meaningful relationship with their father. Ms T assessed [X] and [Y]’s relationship with their father as loving and positive. During the marriage, the father looked after the children a good deal, subject to his full-time work commitments. He frequently took them out on weekends, without the mother, as she often slept late. The father also helped [X] and [Y] with their homework, which is discussed in more detail later.
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
This is a major factor in the present case. The father acknowledged that he was violent and abusive to the mother and the children during the marriage but disputed the severity of it and said that in any event he had changed. Ms T accepted from her assessment that the father had changed.
Dr A's report dated 29 September 2009 specifically noted that the father did not appear to recognise:
· the inappropriateness of calling the children derogatory names;
· the detrimental effect on the children of witnessing domestic violence;
· that pretending to hang himself may be very distressing for the children.
The reference to the hanging was perhaps no more than hypothetical, given Ms J’s evidence that the father had never pretended to hang himself in front of the children. However, Dr A's evidence was unchallenged. It perhaps means that Dr A found the father to be insensitive generally to events that could be very distressing for children.
In view of Ms J's evidence, there was no suggestion at the trial that the father had mistreated [X] or [Y] after separation. However, the mother claimed that the father intimidated her by approaching her in the car at changeover on 15 March 2009. The father said that he was merely wishing to give her, for the boys to eat at home, some of a zucchini slice that he had made. I accept that evidence, especially as it is supported by the unchallenged evidence of Ms J.
However, I also accept that the mother could well have genuinely felt intimidated by the father approaching her at changeover. After the violence during the marriage, it is only to be expected that there would need to be a certain period in which the father was not at all threatening or abusive towards the mother before she would be able to feel safe in his presence.
As to the violence during the marriage, by way of example, the mother said that in July or August 2008, the father grabbed her by the hair and punched her hard in the back three or four times. The father denied this. He said that he just grabbed the mother and moved her away from him.
The mother said that when she was pregnant with [X], the father kicked her near the groin. The father said that the mother was invading his space and he did not kick her as such but pushed her with his foot while he remained in bed.
The mother said that on 15 November 2008, being the day of separation, the father grabbed her by the hair, pushed her to her knees, and hit her two or three times hard in the back. The police were called and the father was bailed to appear at [W] Magistrates’ Court on
20 November 2008, when the intervention order previously described was made. The father denied the mother's version of events.
The mother said that the father was frequently verbally abusive towards her in the presence of the children. She said he would call her a “fucking bitch” and such things in the presence of the children. The mother said that in early 2008, the father charged towards the house holding a tennis ball as though he was going to throw it at the mother. She said that she pulled back from a window just as the father slid it shut horizontally in her face. The mother said that [X] screamed at his father, saying “You could have cut Mum’s head off!” The mother said that the father then went to the beach for a while. After he returned, she said he kicked the door of the dishwasher, slammed it shut and sent plates flying.
[X] described the relevant weekend in his school diary as follows:
I did my homework. My Mum and dad Were fighting a Lot My dad Slamed the Window on Mum. and dad Went to the beach. When dad came bake When I was Waching Looneytunes Mum and dad Was still fighting DaD smashed some things.
The father acknowledged that he had hit [X] hard on the back and left a mark. The mother took a photograph of [X]'s back. It is exhibit JP-1 to the mother's affidavit sworn on 13 February 2008. It shows redness on his back. The father said that the photograph was taken only a few minutes after the event in question. He said that the redness had completely gone away after 10 minutes.
The father acknowledged that [X] and [Y] frequently fought each other and during the marriage he frequently dealt with their misbehaviour by hitting them.
The mother reported an incident when the father had taken the children to the beach and smacked [Y] after he wet his pants. She said that [Y] wanted to go home but the father refused, and made [X] and [Y] stay the beach for another two hours. The father said that [Y] had only partially wet his pants and they actually enjoyed their time at the beach. In relation to this incident, the father showed a total lack of insight into the humiliation a child might feel being a public place after wetting his pants.
The mother claimed that the father frequently verbally abused the children. By way of example, the mother said that in 2008, after [X] woke the father up, the father yelled at [X] calling him a “fucking cunt”. The mother said that the father on approximately 20 October 2008 called [X] a “retard”. The father claimed that he had called [X] a retard in a joking way.
I am unable to imagine any way in which it could be funny to call one's child a retard. Overall, I consider that the father has tried to minimise his violence and abuse towards his children and their mother. I particularly note that the father was asked whether he felt guilty about his treatment of his family. He said, “A little bit”. He was asked whether he felt ashamed. He said, “Not really. I have moved on since then.” The father needs to realise that it is easier for the perpetrator of violence and abuse to put it behind him than it is for his victims.
I note that the mother’s psychologist, Ms P, said that the mother was inclined to be melodramatic. She denied that. However, within minutes, she said that she had nearly died after taking Prozac. There was no medical evidence to that effect. I consider her claim to have nearly died to have been an example of her inclination to melodrama.
Nevertheless, I accept the mother's evidence in relation to her allegations of violence and abuse during the marriage. It is supported by the involvement of DHS, [X]'s entries in his school diary, various contemporaneous reports to psychologists and Dr A and the action of the police in removing the father from the house on 15 November 2008 and bailing him to appear in court on 20 November 2008. For his part, the father gave misleading evidence about going to DHS “voluntarily” after the incident at the beach, and having no legal advice at the intervention order hearing. The father seemed to be less than an entirely truthful witness.
On the other hand, there is no evidence of violence or abuse towards the mother or the children since separation. On the contrary, the father described how he recently responded to [X] and [Y] fighting. He said that he let them calm down, and then, while making a cake with them, discussed the need for them not to punch each other.
I am troubled by the evidence of Dr A set out in paragraph 38 above. However, on balance, and particularly in view of the evidence of Ms J and Ms T, I am satisfied that the father has understood that he should not hit the children in order to stop them hitting each other or for any other reason. I am also satisfied that the father understands that verbal abuse of the children is damaging for their self-esteem and long-term well-being.
In view particularly of the evidence of Ms J and Ms T, I am satisfied that there is not an unacceptable risk that the father would physically or verbally abuse [X] or [Y] if they were to spend time with him from after school on Friday to 6.30pm on Sunday in alternate weeks. I consider that for this period of time, the father could control his temper and behave properly towards his children. I consider that having only one changeover a fortnight where the parents need to have any contact with each other makes it very likely that changeovers will take place smoothly.
However, the father should understand that if he slips up, the matter is very likely to return to the court with whatever consequences are appropriate in the circumstances.
The father said that the mother had also smacked [X] and [Y] on occasion. It was not suggested that the mother had been as brutal as the father. I accept the father’s evidence that the mother had smacked [X] and [Y]. It seems to me that in this family, smacking, hitting, punching and physical fighting were all regarded as more or less normal. Such actions are, of course, deplorable.
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
The family report at paragraphs 67, 70 and 71 states that:
67.Initially [X] said he wanted his time with his father to remain the same, however, later he said he would like to spend more time with him. There were indications that he felt caught between his parents’ conflict as well as the need to side with his mother. For example, in he commented that “Mum and dad don't match … but I match with dad.”
70.When asked about his father [Y] replied that he “kind of” likes his father but that he was afraid his father might hit his mother.
71.[Y] was reluctant to comment on his preferences for spending time with his father and agreed he preferred ‘the judge to decide’ because that would be easier for him.
I consider that some weight should be given to [X]'s views as he is
12 years old.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The relationship between [X] and [Y] and their mother is mostly good although there are some qualifications. [X] and [Y], according to
Ms T, felt the need to protect their mother. Dr A described her as having a dependent personality. This was illustrated by her as saying that she did not know how to drive to certain places because no one had shown her how to get there. It did not seem to have occurred to her to use a map.
It would be extremely unfortunate for [X] and [Y] if the mother began to depend on them. They are children and should be able to depend on their mother.
In the family report, the relationship between [X] and [Y] and their father was described as positive and happy. Ms J described the relationship as close and loving and said [X] and [Y] responded very warmly and spontaneously to their father. Ms J said that [X] and [Y] enjoy coming to her home and they have asked several times if they could stay overnight. This evidence was unchallenged and I accept it.
[X] and [Y] appeared to have a good relationship with Ms J. Most of their other relatives live in Tasmania and they see little of them.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The father described the mother as a good mother. He is clearly willing and able to facilitate and encourage a close in continuing relationship between [X] and [Y] and their mother.
The mother, on the other hand, is highly resistant to [X] and [Y] having any relationship with their father. When Ms T told the mother that [X] and [Y] had reacted positively to their father, and Ms T raised the possibility of them spending unsupervised and/or more time with him, Ms T reported that the mother became inconsolable. Ms T reported that the mother was devastated and found it impossible to contain her distress. Ms T was concerned enough to contact the mother’s solicitor and the independent children's lawyer and refer the mother for a psychiatric assessment.
The mother’s expressed position is that [X] and [Y] should only spend supervised time with their father even though she well knows that
Ms T and the independent children's lawyer support [X] and [Y] spending alternate weekends unsupervised with the father. However, the mother’s preferred position goes beyond that. She told Ms T that she would prefer that [X] and [Y] had no direct contact with their father.
The mother is giving every indication that she would be a “no contact parent” if she could. I can only conclude that the mother is not willing and able to facilitate and encourage a close and continuing relationship between [X] and [Y] and their father.
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:
(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
The only proposed change in [X] and [Y]'s circumstances is that they would spend alternate weekends with their father rather than every Sunday. This would involve two overnights per fortnight. I consider that [X] and [Y] certainly old enough to cope very well with overnight time with their father. Most children of [X]’s age, and many children of [Y]'s age, would have had many sleepovers at friends’ homes. The effect of the proposed change would be to deepen [X]’s and [Y]'s relationships with their father.
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
The parents presently live reasonably close to each other. As long as they remain in the same area, there is no particular practical difficulty or expense in [X] and [Y] spending time with their father.
Section 60CC(3)(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
As parents, we all have strengths and weaknesses. Sometimes, the weakness of one parent in a particular area is offset by the strength of a child's other parent in the same area.
In the present case, during the marriage, the father helped the children with their homework. [X] and [Y] are in the average to low range academically. The father has a Bachelor of Science in [omitted] while the mother was educated to year 10 level. Her counsel emphasised, particularly in connection with the spousal maintenance application, that the mother has below average intelligence. Both children stand to benefit from their father being actively involved with their school work. The father has a much greater capacity than the mother to provide for [X]'s and [Y]'s intellectual and academic needs.
The mother said that [X] has a tutor. That is no doubt beneficial. However, there is a world of difference between a tutor and a parent who personally values education and who takes an active interest in a child's academic development.
The objects of the Act (as set out in s.60B(1)) include:
(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.
[X] and [Y] clearly need all the help they can get to achieve their full potential academically. Both parents have a duty to promote to the best of their ability [X] and [Y]'s academic development. Subject to the other considerations that are discussed below, that may mean that the mother has a duty to allow the father to spend enough time with [X] and [Y] for him to be able to help them academically.
Certainly in the past the father lacked insight into [X]’s and [Y]'s emotional needs. However, it seems that the various courses that the father has undertaken have given him a reasonable level of insight into the feelings of other people.
The mother is able to provide for [X]’s and [Y]'s emotional needs except to the extent that she makes them feel that they need to worry about her and be protective of her. As discussed above, it would be harmful for [X] and [Y] if she became dependent on them rather than being a capable and independent parent for them.
Otherwise, both parents are able to provide for the needs of the children.
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
There is nothing specific to mention in relation to this factor.
Section 60CC(3)(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;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has a tendency to minimise the effect of his violence and abuse on the children. Otherwise, and except for the matters previously mentioned, both parents have a good attitude to the responsibilities of parenthood.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This matter has been discussed above.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
This matter has been discussed above.
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
In general terms, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to [X] and [Y]. However, the overriding objective must be to make the order that is in [X]’s and [Y]’s best interests, as their best interests are presently perceived.
There are two proceedings that are foreseeable in relation to [X] and [Y]. One will arise if the mother fails to comply with orders for [X] and [Y] to spend time with their father. The other will arise if the father physically or verbally abuses [X] or [Y]. Both parents should understand that if they fail to comply with court orders, they are likely to be brought before the court and for the matter to be dealt with appropriately. Both parents should understand that, if the court deems it fit, the court might fine or imprison the relevant parent, change the amount of time that [X] and [Y] are to spend with the relevant parent, or, indeed, change the parent with whom [X] and [Y] are to live
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
I do not consider that there are any other relevant facts or circumstances in this case.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a)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; and
b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have largely been addressed previously. The father is paying child support as assessed.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
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.…
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.
In this case, the presumption of equal shared parental responsibility does not apply because the father has abused [X] and [Y] and has engaged in family violence. Nevertheless, the independent children's lawyer supports the father's application for equal shared parental responsibility. The mother seeks sole parental responsibility.
Taking into account all of the relevant matters, I consider that equal shared parental responsibility should apply in this case. Although the parents at present have no ability to communicate with each other, it is very important for [X] and [Y] that they develop such an ability as soon as possible. Ms T explained to the court that, as [X] and [Y] enter their teenage years, it will be of critical importance for their parents to be able to communicate with each other about issues facing [X] and [Y]. On any view, [X] and [Y] are vulnerable and need support from as many sources as can be mustered.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or holidays; and
(b)the time the child spends with the parent 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.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must 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.
The father does not seek equal time in this case. The time that he seeks includes part of one school day in alternate weeks. That is, the order that the father seeks, with the support of the independent children's lawyer, involves the father collecting [X] and [Y] from school on alternate Fridays but not delivering them to school on any day. This would not normally be regarded as falling within the definition of substantial and significant time.
It seems to me that it would not be in [X]’s and [Y]'s best interests, at least at this stage, to spend more than alternate weekends with their father. I consider that it is likely that he would be able to apply all that he has learned in the various courses he has attended, and exercise the required self-control, if [X] and [Y] spend no more than alternate weekends with him.
The mother argues that even alternate weekends would be too much. However, I consider that [X] and [Y] stand to benefit a good deal from spending alternate weekends with their father. They have a happy and positive relationship with him and he has a lot to offer them. I accept that the father has changed enough to mean that alternate weekends do not represent an unacceptable risk to [X] and [Y]. There will be orders accordingly.
The father sought orders that changeover take place at school on school days and at [omitted] car park, [H], on other days. The mother was agreeable to changeover at the [omitted] car park, but opposed [X] and [Y] spending any time with their father that would require a changeover on school days. In accordance with the orders previously indicated, there will be changeovers on school days. It is obviously desirable that any such changeovers occur at school, to minimise contact between the parents. There will be orders accordingly.
The father also sought an order that [X] and [Y] communicate with him by telephone between 6.30pm and 7pm each alternate Sunday and each Monday and Wednesday. I consider liberal telephone contact with their father to be in [X]’s and [Y]’s best interests. Telephone contact helps to maintain the relationship, obviates any residual risk of physical abuse and reduces the possibility of any verbal abuse. There will be orders accordingly.
The father sought an order that the mother be restrained from moving the children’s place of residence more than 20km from the [H] area except with the written consent of the father. The mother did not oppose that order but asked that it be mutual. The children are well established at their school. It goes to year nine and then feeds into a senior school. I consider that it is in [X]’s and [Y]’s best interests that neither parent unilaterally moves their residence without the written consent of the other. There will be an order accordingly.
The father also sought an order that each party should have his or her time suspended for at least three hours as agreed on [X]’s and [Y]’s birthdays to enable each party to spend time with [X] and [Y] and, in default of agreement, from 3.30pm until 7.30pm. I do not consider that this order is in the best interests of [X] and [Y]. Given the history of the matter, the fewer changeovers the better. It is preferable that the parent with whom [X] and [Y] are not spending time celebrates their birthdays with them on the first occasion when they would otherwise be with that parent.
The mother sought an order that the father be restrained from abusing or physically disciplining by assaulting [X] or [Y]. The father consented to that order but sought the same order against the mother. She did not oppose that order, but nor did she consent to it. She said there was no evidence that she had ever hit the children. That is not so. The father did in fact give sworn evidence that the mother had hit the children. In any event, it seems to me that there is no harm in restraining a person from engaging in unacceptable conduct, even if that person has not engaged in that conduct in the past. There will be orders accordingly.
THE PROPERTY APPLICATION
The parties sought a division of their matrimonial assets. They agreed on the identity and value of their principal assets and that the matrimonial home would have to be sold and the proceeds divided between them. In addition, the parties agreed that:
a)the husband would transfer to the wife his interest in the parties’ Ford Laser, which the parties valued at $1,000;
b)the husband’s superannuation fund would split the husband’s superannuation entitlement of $189,996 between the husband and the wife, such that the wife would be allocated an amount of $93,498, and the amount of $96,498 would remain for the benefit of the husband;
c)the wife would retain her superannuation entitlement of $3,000;
d)their chattels would be divided between them.
The parties agreed that the wife and children would remain in the matrimonial home and the husband would pay all outgoings pending the sale. The parties agreed that the proceeds of sale of the matrimonial home would be applied as follows:
a)firstly, in payment of the costs of sale;
b)secondly, to discharge the mortgage and any land and water rates and taxes;
c)thirdly, to discharge credit card debts totalling $22,000 in the name of the husband, but incurred for the benefit of the parties;
d)fourthly, to repay a joint debt of $1,000 to Ms J;
e)fifthly:
i)a certain percentage to the wife;
ii)an additional $10,000 to the wife; and
iii)the balance to the husband.
The wife argued that she should receive 75% of the proceeds of the sale of the house and the husband argued that she should receive 60% of the proceeds of the sale of the house.
The wife argued that she should receive from the husband’s share an additional $13,000 as capitalised spousal maintenance calculated at the rate of $91 per week for three years. On my calculation, $13,000 is approximately $83 per week for three years.
In relation to the chattels, the parties agreed on their identity and how they should be distributed. However, they did not agree on the value of the chattels or adduce any evidence about their value. The husband submitted that the court should act on the basis that the wife would have all of the necessary furniture and effects to furnish a house while the husband would not. The chattels are as follows, with the items to be retained by the husband marked with an asterisk:
Lounge Lounge Suite Coffee Table 108cm Television DVD/VCR Display/Bookcase Ornaments/Collectibles Kitchen Dining Suite Refrigerator Microwave Pots/pans/cutlery etc Bedrooms 1 QS Bed & Mattress 1 bunk bed, desk, drawers 1 single bed & mattress Clothing TV * Rumpus Room Corner TV & Display Unit Corner sofa with bed * PS2, Wii, Nintendos PS2 etc games Other Toys, DVDs 68cm TV * Study Computer Computer Desk/chair Treadmill * CD’s/DVD’s/V.Camera Laundry Washing Machine Hallway/Linen Pictures/tables/ornaments Linen & Towels Garage Ladder * Lawn Mower * Wipper Snipper * Makita Drill Set * Wheel Barrow * Sander * Other Tools * Bikes x 2 Suitcases
The issues for the court to determine are:
a)the relative contributions of the parties;
b)the allowance in favour of the wife for s.75(2) factors; and
c)spousal maintenance for the wife.
The legislation
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interests of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under subs.75(2) of the Act are as follows:
(a)the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
The four step approach
In Hickey v Hickey (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related 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 the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.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. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (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 ….
STEP 1: The asset pool
Assets and liabilities
The parties agreed that the asset pool was as follows:
Former matrimonial home $325,000
1990 Ford Laser $1,000
2002 Commodore $5,000
Chattels to be divided equally
Husband’s shares net less CGT $9,000
Liabilities:
Mastercard $21,000
Coles Myer $1,000
Ms J $1,000
Wife’s superannuation $3,000
Husband’s superannuation $189,996
There is also a mortgage of $160,000 on the matrimonial home, leaving an equity of $165,000. Deducting the $23,000 from that figure for liabilities as stated in the aide memoir, leaves $142,000. From that figure, there needs to be deducted the costs of sale and so on, and the $10,000 to be paid to the wife.
The net effect is that the parties have agreed that the wife will have:
a)a share of the proceeds of the house unknown
b)the Ford Laser $1,000
c)cash $10,000
d)chattels unknown
e)superannuation $96,498
The parties have agreed that the husband will have:
a)a share of the proceeds of the house unknown
b)the Holden Commodore $5,000
c)shares $9,000
d)chattels unknown
e)superannuation $96,498
Financial resources of the parties
It was not suggested that the parties had any financial resources available to them other than their income earning potential.
STEP 2: Contributions
Initial contributions
The parties commenced cohabitation in February 1992 and were married on 19 February 1994. The husband gave unchallenged evidence which I accept that at the commencement of the relationship, he had a car, some furniture and $10,000 in superannuation. He also said that the wife had no assets of significance and superannuation of about $3,000.
Contributions during the marriage
The husband worked during the marriage [in the Information Technology Industry]. The wife worked [in the Sales Industry] until about 1996.
In 1993, the husband received an inheritance of $18,000 from his father’s estate and the wife received an inheritance of $3,000 from her mother.
The parties bought a unit in 1994 for $98,000. The husband gave unchallenged evidence which I accept that he contributed $10,000 of his inheritance to that purchase. Additionally, the father’s mother contributed $15,000 which was repaid to her when the unit was sold in 1998.
[X] was born [in] 1997 and [Y] [in] 2001. The mother was their primary carer. She did not work outside the home after [X]’s birth. The father continued to work full time as a [omitted]. His current salary is about $1,743 per week or about $90,000 per year. The father assisted with the care of the children when he was not working.
In 1999, the parties bought the matrimonial home for $175,000. They had a $45,000 deposit. In 1994, the parties bought a 1990 Ford Laser and in 2005 they bought a 2002 Holden Commodore. The husband has had the benefit of certain employee share schemes with the [omitted]. It seems that some shares were sold from time to time and the proceeds were used for family purposes. The husband has retained shares with a net value of about $9,000.
Contributions post separation
Since separation on 15 November 2008, the mother has continued to be the primary carer of [X] and [Y]. The father has spent time with [X] and [Y] only on Sundays.
The mother has remained in the matrimonial home and the father has paid the mortgage of about $333.50 per week, child support of about $300 per week and utilities for the matrimonial home of about $91 per week. The father is living at his cousin’s house and is paying board of $200 per week.
Contribution based entitlements
The husband submitted that the contribution based entitlements were 10% in his favour. The wife submitted that they were equal.
Even allowing for the changing value of money, the father made a fairly modest additional financial contribution early in the relationship. The value of that initial contribution has become negligible in the
15 years or so since it was made.
The father has earned well above average wages. Meanwhile, the mother has been a homemaker and parent. That value of that contribution should not be minimised. All in all, I consider that the contributions of each of the parties to their asset pool to have been equal.
STEP 3: The other factors: s.75(2) etc
The wife is 41 years old and the husband is 40 years old. The wife has a history of an eating disorder and depression but is currently well. The husband has a mild hearing loss which does not significantly effect him.
The husband earns about $90,000 a year. The wife receives a newstart allowance of $245 per week, family tax benefits A and B of $93 per week, and child support of $308 per week, making a total of $646 per week.
The property of the parties is to be determined in this proceeding. Neither has any financial resources other than their property and their income earning potential.
The husband has the physical and mental capacity to continue to earn about $90,000 per year. The wife has about 13 years of experience in the retail. She has not worked outside the home for about 13 years.
The wife submitted that the retail industry has changed greatly in the last 13 years, particularly with the advent of the GST and online banking. The wife also submitted through her counsel that she is not particularly intelligent.
There was unchallenged evidence that the wife spent a good deal of time particularly at night on the Internet. I take that as an indication that the wife is able to learn and apply new technology.
The wife also submitted that she would be competing with prospective employees who are 20 years younger than her. I do not consider that the wife’s age is any barrier to her finding employment in the retail industry. Obviously, some [omitted] shops are directed to the youth market and might prefer young employees. Others are directed to a more mature market and might prefer older employees.
I consider that the wife has the physical and mental capacity to resume work in the retail industry. I would expect that she would earn somewhat less than average wages.
The wife has the lion’s share of the care and control of [X] and [Y] who are 12 years old and eight years old respectively.
It was not suggested that either party has any financial commitments other than the need to support themselves and their children. Both parties have the basic financial commitments for food, accommodation, clothing and health care. The father is paying the children’s school fees.
As mentioned previously, the wife is entitled to a newstart allowance and family tax benefit A and B.
The standard of living that is reasonable for the parties in all the circumstances of this case is about average for separated couples. The father earned a good deal more than average wages but the mother earned nothing. Overall, their standard of living while the marriage subsisted was about average.
It was not suggested that either party wished to undertake a course of education or training.
It was not suggested that any proposed order would have any effect on the ability of a creditor to recover the creditor’s debt, except to the extent that it was agreed that all the liabilities of the parties would be discharged.
The wife has contributed to the husband’s income, earning capacity and property by caring for their children while he worked.
The marriage lasted about 15 years. The wife did not work for most of the marriage. To that extent, it could be said that the marriage has affected her earning capacity.
The wife said that she intended to return to full time work in the foreseeable future.
Neither party is cohabiting with another partner.
The terms of any property order are to be determined in this proceeding.
The husband is providing about $300 per week in child support to the wife. He is in stable employment. It is anticipated that he will continue to pay child support as assessed.
There are no other facts or circumstances which the justice of the case require to be taken into account.
There is no financial agreement that is binding on the parties to the marriage or either of them.
None of the proposed orders will affect the earning capacity of either party to the marriage.
The children’s orders provide for [X] and [Y] to spend 12 nights a fortnight with their mother.
STEP 4: What order is just and equitable
In view of the matters that have been agreed between the parties, it seems to me that it would be just and equitable for the wife to receive 65% of the proceeds of sale of the house. This reflects her lower earning potential than the husband, and her role in being the major carer for [X] and [Y] for many years into the future. There will be orders accordingly.
SPOUSAL MAINTENANCE
The wife sought spousal maintenance.
Section 72(1) of the Act provides that:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The matters referred to in sub-s.75(2) of the Act are set out above and were considered in the context of the property application. I rely on that consideration for the purposes of the spousal maintenance application as well.
By virtue of s.75(3) of the Act, the court is required to disregard the wife’s entitlement to Centrelink benefits. The court is required under s.74(1) of the Act to take into account the specified matters and then make such order as it thinks proper.
I consider that the wife is able to support herself adequately. She acknowledged that she intends to return to work soon. She acknowledged that [X] and [Y] could attend before and after school care if need be. The wife has experience in retail sales and, I expect, could soon become a valuable member of a sales team.
It was submitted on the wife’s behalf that she needed her income to be supplemented with support from the husband for three years while she re-establishes herself. However, there is no proper basis for that submission. The parties have been separated for almost one year. The husband has supplemented the wife’s income during that time by paying the mortgage and utilities. I consider that the wife could well have used the last year to prepare herself to join the workforce. In addition, the property division in this case takes into account the differential between the parties’ respective earning capacities. The application for spousal maintenance will be dismissed.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 27 November 2009
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