PETROVIC & PETROVIC
[2019] FamCA 109
•1 March 2019
FAMILY COURT OF AUSTRALIA
| PETROVIC & PETROVIC | [2019] FamCA 109 |
| FAMILY LAW – CHILDREN – Final parenting proceedings – Best interests of the children – Where father perpetrated significant family violence – Where father has family violence related criminal history – Where children have had no contact with father for some years – Where consideration of impact on mother and the children of order for children to have time with the father – Where consideration of primary protective concerns – Where mother to have sole parental responsibility – Where children to live with mother – Where the children to have no time with the father. FAMILY LAW – PROPERTY – Property adjustment – Where consideration of applicable principles – Where husband remained in occupation of home for years since separation – Where assessment of contributions favours the wife – Where further adjustment to wife to reflect relevant section 75(2) factors – Where wife appointed to sell the matrimonial home – Where wife to undertake repairs to matrimonial home as reasonably advised by the listing agent – Where proceeds of sale to be divided as to 60 per cent to the wife and the balance to the husband. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 75, 79 |
| Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 Bevan & Bevan [2014] FamCAFC 19 Blinko [2015] FamCAFC 146 Chapman & Chapman [2014] FamCAFC 91 Dickons & Dickons [2012] FamCAFC 154 Goode and Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Pandelis & Pandelis [2018] FamCAFC 66 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford & Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 |
| APPLICANT: | Ms Petrovic |
| RESPONDENT: | Mr Petrovic |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Carroll |
| FILE NUMBER: | PAC | 1425 | of | 2015 |
| DATE DELIVERED: | 1 March 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 and 24 January 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harris |
| SOLICITOR FOR THE APPLICANT: | Mahony Family Lawyers |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | Mr Petrovic in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Crawford Ryan Lawyers Pty Ltd |
Orders
Parenting
That the mother Ms Petrovic have sole parental responsibility for the children B born … 2002, C born … 2005 and D born … 2010.
That the children live with the mother.
That the children spend no time with the father.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained from approaching, contacting or communicating with the children or coming within 200 metres of the children’s home, school or extracurricular activity and from harassing, molesting, stalking or physically harming or threatening to harm any of the children and it is noted that this order is an order made for the personal protection of the children to which section 68C of the Family Law Act 1975 (Cth) applies and any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm any of the children, may arrest the father without warrant.
That pursuant to section 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained from approaching, contacting or communicating with the mother or coming within 200 metres of the mother’s home or place of employment and from harassing, molesting, stalking or physically harming or threatening to harm the mother and it is noted that this order is an order made for the personal protection of the mother to which section 68C of the Family Law Act 1975 (Cth) applies and any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father by either harassing, molesting, stalking or physically harming or threatening to harm the mother may arrest the father without warrant.
By Consent: That the mother provide to the father within 14 days after receipt by her copies of the children’s end semester school report and school photos and, otherwise, advise the father promptly of any serious injury or illness suffered by the children or any of them together with details of any treating medical practitioner or hospital.
By Consent: That there be paid from the proceeds of sale of the parties’ property at Suburb P before any distribution to the parties the sum of $5,949.00 by each party from their respective share of the proceeds of sale to Legal Aid New South Wales and for the purposes of securing this payment Legal Aid New South Wales is at liberty to register a caveat or appropriate notice of this order as against the title to the said property.
Property
That the wife Ms Petrovic be and is hereby appointed Trustee for Sale of the property situate at and known as E Street, Suburb P in the State of New South Wales being the whole of the land comprised in Folio Identifier … for sale by private treaty or auction at the best price reasonably obtainable and for this purpose the said property shall vest in the trustee and the said Ms Petrovic shall do all things necessary and sign all necessary documents to sell the said property and to apply the proceeds of sale in the following manner and priority:
(a)in payment of agent’s commission, advertising and other expenses of the sale;
(b)in payment of reasonable legal costs and disbursements of and incidental to the sale;
(c)in discharge of the mortgage encumbrance secured over the said property, in adjustment of rates and taxes as provided for in the contract for sale;
(d)in payment of the wife’s outstanding credit card and other liabilities more particularly set out in these reasons for judgment at [121];
(e)in payment of 60 per cent of the balance then remaining, less the sum of $5,949.00 being the wife’s contribution to the Independent Children’s Lawyer’s costs as provided for below, to Ms Petrovic; and
(f)in payment of the balance then remaining, less the sum of $5,949.00 being the wife’s contribution to the Independent Children’s Lawyer’s costs as provided for below, to the husband Mr Petrovic.
That pending sale of the property at Suburb P the husband Mr Petrovic shall:
(a)keep the property in good order and repair having regard to the condition of the property as at the date of these orders, cooperate in all reasonable ways with requests by the selling agent appointed by the wife and/or prospective purchasers including but not limited to providing keys for access and doing all things necessary to facilitate access to the property at all reasonable times for inspection without interference;
(b)be restrained from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the property being effected;
(c)pay as they fall due and payable all mortgage payments, council rates, water rates, utilities and insurances in relation to the said property incurred prior to the date of sale and indemnify the wife from any liability for arrears of such payments with any payment pursuant to this provision payable to the wife by way of indemnity to be deducted from the husband’s share of the proceeds of sale;
(d)vacate the property not less than 21 days prior to the settlement date of the sale of the property with the wife to provide to the husband not less than 28 days’ notice in writing of such settlement date with such writing to be by way of ordinary prepaid post addressed to the husband at the said property; and
(e)that subsequent to vacating the property the husband shall thereafter remain away from the property and not enter upon the said property without the written consent of the wife.
That in the event that either party fails to execute any deed or instrument necessary to give effect to these orders the Registrar of the Family Court of Australia at Parramatta is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such of these instruments in the name of the defaulting party and do all acts and things as may be necessary to give validity to the operation of any deed or instrument necessary to implement these orders.
Liberty to apply as to enforcement or implementation of these orders by application to the Court in chambers in appropriate circumstances.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Petrovic & Petrovic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1425 of 2015
| Ms Petrovic |
Applicant
And
| Mr Petrovic |
Respondent
REASONS FOR JUDGMENT
The applicant wife commenced proceedings for property adjustment orders and final parenting orders in early 2015.
The resolution of the proceedings has been delayed by the husband’s incarceration from time to time for offences relating to domestic violence.
In her Further Amended Application filed 18 May 2018, the wife sought final parenting orders, in summary, as follows:
a)That she have sole parental responsibility for the children B born in 2002, C born in 2005 and D born in 2010;
b)That the children live with her;
c)That the children spend no time with the father;
d)That the father pursuant to section 68B of the Family Law Act 1975 (Cth) be restrained from approaching, contacting or communicating with the children or coming within 500 metres of the children’s home, school or extracurricular activity location;
e)That the father pursuant to section 68B of the Family Law Act 1975 (Cth) be restrained from approaching, contacting or communicating with the wife or coming within 500 metres of her home or place of employment;
f)That the restraining order set out above are orders for the personal protection of the children and the mother to which a power of arrest without warrant attaches pursuant to section 68C; and
g)That the wife be entitled without the consent of the husband to obtain Australian travel documents for the children and that the children be permitted to travel internationally.
In the same Further Amended Initiating Application the wife sought final orders as to property that, in summary, provided:
a)That within 21 days from the date of orders the wife do all necessary things to sell the former matrimonial home at Suburb P and that the net proceeds of sale after payment of selling costs discharge of the mortgage encumbrance secured thereon and contract adjustments be paid as to 80 per cent to the wife and the balance then remaining to the husband;
b)That pending sale the husband maintain the property in good order and condition, do all things necessary to facilitate the sale, pay as they fall due and payable mortgage payments and property outgoings, insurances and utilities and indemnify the wife from all or any liability in regard thereto;
c)That not less than 21 days prior to the date of the settlement of the sale of the property the husband vacate the property; and
d)That in the event that either party fails to execute any deed or instrument necessary to give effect to these orders the Registrar of the Family Court of Australia be appointed pursuant to section 106A of the Act to execute such of these instruments in the name of the defaulting party and do all acts and things as may be necessary to give validity to the operation of the deed or instrument.
The husband in his Amended Response filed 27 July 2016 sought final parenting orders as follows:
a)That the parties have equal shared parental responsibility for the children;
b)That the parties will both be entitled to attend all events involving the children’s extracurricular activities and teacher interviews;
c)That the child B live with the father each weekend from 3.00 pm Friday until 4.00 pm Sunday, each Monday from 3.00 pm until Tuesday 9.00 am before school;
d)That the child C live with the father each weekend from 3.00 pm Friday until 4.00 pm Sunday and each Tuesday from 3.00 pm until Wednesday 9.00 am before school;
e)That the child D live with the father each Wednesday from 3.00 pm until Thursday 9.00 am before school;
f)That otherwise the children on a rotating basis spend every Thursday with the father;
g)That the children live with the mother at all other times; and
h)That the children spend time with the father at all other times as agreed.
The husband’s Response sought no orders as to final property adjustment.
At trial the wife relied upon:
a)Her trial affidavit filed 28 June 2018; and
b)Her financial statement filed 29 June 2018.
At trial the husband relied upon:
a)His trial affidavit filed 20 August 2018; and
b)His financial statement filed 12 March 2018.
In his trial affidavit the husband expressed a wish to recommence his relationship with the children. In this regard he sought to have time with the children, C and D, in a contact centre eventually progressing to unsupervised “family days” away from the contact centre. As to the eldest child, B, he seeks that there be no order made and that the child be able to engage with him as the child sees fit.
Otherwise, as to property adjustment, the husband sought an order for sale of the parties’ home and an equal division of the sale proceeds with the wife to have the carriage of the sale.
Context
At trial the wife was aged 43 years and the husband 43 years.
The parties commenced cohabitation in 1996 and later married in 2002.
The parties separated on a final basis on 31 October 2011 and were divorced in May 2018.
The parties’ relationship was marked by significant domestic violence perpetrated by the husband resulting in various charges and periods of his incarceration as are discussed below.
The three children referred to above are the children of the parties’ relationship. They have been exposed to the husband’s violent and aggressive behaviour.
During the parties’ relationship the wife was the primary carer for the children and primary homemaker.
The husband was in employment until about 2010.
Since separation the children have continued to live with the wife who has remained their primary carer. The husband has remained in occupation of the home to the exclusion of the wife and children.
Subsequent to separation and until about December 2014, the children would often spend one night a week with the husband usually a Friday or Saturday night and occasionally some hours midweek.
The husband’s conduct
During the parties’ relationship the husband was verbally abusive and belittling towards the mother and later in the relationship became physically violent towards her.
From 2007 and thereafter the husband exhibited extreme aggression, throwing dinner plates on the floor and punching holes in the walls at the parties’ home. On one occasion he said to the wife “what would you do if I started beating you up”.
The husband’s behaviour deteriorated in that he would punch the wife in the face with a closed fist and throw household objects including furniture at the wife. The wife suffered injury including bruises and black eyes which she covered up in case anyone found out.
In May 2010 the husband attacked the wife by punching her in the face and body repeatedly while she was on the ground, he picked up a small bench and started to hit her with it. The wife rang the police who attended (Exh “F”). The husband in the police presence continued to intimidate the wife, saying “don’t say anything, think with your brain. They’re not on your side. We lose the house in two months”. The police reported that the husband’s voice was raised and he was intimidating the wife. The husband kept yelling at the wife “go inside go inside”.
The wife out of fear was un-cooperative with the police who notwithstanding obtained an Apprehended Domestic Violence Order (“ADVO”) that was in force until May 2011.
The police again attended upon the wife on 30 October 2011 at the time of the parties’ final separation. At the time of the police attendance the wife and children were in a domestic violence women’s refuge. The wife reported that she left the home after the husband threw property around a room and damaged a wall: Exh “F”.
Subsequent to this final separation the husband was seeing the children at the wife’s then premises on 13 May 2012. The husband became aggressive throwing the wife’s handbag out of the front door of the wife’s premises. He then kicked the headlights of the wife’s car and assaulted the wife grabbing her around the face with his left hand. He squeezed the wife’s face and spat in her face. The wife attempted to leave the property with which the husband jumped onto the roof of her vehicle jumping up and down causing a large indent. His conduct was in the presence of all of the children. The wife reported the incident to the police and returned to her home unit at Suburb F with the children. The wife informed the husband that she had reported his conduct to the police.
A short time later the husband attended at the wife’s premises and started to bang and hit the metal security door to the wife’s unit. The wife refused to let him in and called the police. The husband continued to bang on the door and cause the metal security door bend and in some parts to break. The husband returned to the glass security door at the entrance to the home unit premises and punched the glass security door causing large cracks to appear. The police attended and took photographs of the damage inflicted by the husband and took statements from independent witnesses. The husband was arrested and charged. A second Apprehended Domestic Violence Order was issued by the police and served upon the husband whilst he was remanded in custody.
The husband was later convicted of Common Assault and fined $500.00 and ordered to enter into a recognisance to be of good behaviour for a period of 18 months. He was, otherwise, convicted of three charges of Destroy or Damage Property and fined a total of $1,300.00: Exh “H”.
On 13 April 2013 the wife attended at a police station to report ongoing fears as to the husband’s conduct.
Subsequently, in June 2013, the husband again assaulted the wife, grabbing her by the neck and pushing her head into the wall. He held her in a chokehold and spat in her face. The wife reported the incident to the police and on 27 June 2013 the then existing Apprehended Domestic Violence Order was extended for a further period of two years for the protection of the wife and children. The order, apart from the statutory restraints, restrained the husband from entering the premises at which the wife may reside or work and from approaching the children’s school or premises at which the children may be from time to time and from approaching or contacting the wife and/or children by any means whatsoever save for family law orders.
On 30 November 2014 the husband was seeing the children in the presence of the wife. An argument ensued whilst the wife was driving and the husband slapped the wife on the right side of her face. On arriving at her home she endeavoured to exclude the husband from entry. The husband followed and whilst the wife was making a 000 call the husband ripped the phone out of the wall. Two of the children who were present ran out of the house into the rear yard and the other hid under his bed. The husband grabbed the wife with his right hand around her neck and forced her backwards over a bed. He said to her “if you call the police again I will finish you off myself.” The wife endeavoured again to make a 000 call, the husband saying “tell them everything is okay, tell them we just had an argument”. The husband left the premises and was later located by the police and arrested and charged.
A further Apprehended Domestic Violence Order was issued on 30 November 2014 for the protection of the wife and the children with a final order being made on 11 December 2014 for a period of two years in force until 10 December 2016. The husband was charged with common assault, stalk/intimidate with intent to cause fear of physical harm. He was granted bail conditional upon complying with the apprehended violence order: Exh “I”.
The husband was later convicted of two charges of common assault in late 2014 and sentenced to four months imprisonment concluding in April 2015. He was also convicted of Stalk/Intimidate with Intent to cause Fear of Physical Harm and sentenced to eight months imprisonment concluding in August 2015 with a non-parole period of four months concluding in April 2015 then to be released subject to supervision.
Subsequently, in breach of the Apprehended Domestic Violence Order made only a few days before, the husband attended at the children’s school on the morning of … December 2014. The police were called by the school and the husband was charged breaching the Apprehended Domestic Violence Order. The husband was convicted of the charge and in February 2015 sentence was deferred upon him entering into a recognisance to be of good behaviour for a period of 18 months subject to supervision by the New South Wales Probation Service and to comply with all reasonable directions of that service including directions for counselling, educational development, drug and alcohol and relationship counselling: Exh “I”.
Later in early June 2015 the child, B, reported to the wife that he thought that the husband had left a note, camera with attachments and a toy at the front door of the wife’s residence. The camera contained images of the husband and several videos. The wife was apprehensive that the husband had attended her home. The husband denied that he had attended at the home asserting that he had left the items on the front steps of his own home at Suburb P, had gone for a walk and when he returned the items had gone. He had no explanation as to how the items got to the wife’s premises. He was charged with breach of the apprehended violence order and was refused bail. The husband was convicted of breaching the apprehended domestic violence order and sentenced to a period of six months imprisonment concluding in December 2015.
As a consequence of the earlier convictions in late 2014 the husband was called up for breach of his earlier recognisance to be of good behaviour. The Department of Corrective Services Breach of Parole Report (Exh “G”) reveals that during interviews with the husband on 5, 12, 19, and 26 May 2015 domestic violence intervention was discussed. The husband indicated that domestic violence treatment would “not serve a purpose” nor would he engage in treatment if directed to attend. The husband was informed that he had been referred to the senior psychologist for case management and he stated that he did not want to see anyone in the “medical” field as it was against his own “personal beliefs”. The husband repeated these assertions in interviews on 12, 19 and 26 May 2015. Otherwise, the husband purported to agree to see a counsellor who was not a psychologist. He failed to do so. The report recommended that the husband’s parole be revoked. It was. The husband was sentenced to a period of six months imprisonment commencing in June 2015 and ending in December 2015 that ran concurrently with the then current sentence of imprisonment.
The children were mostly present during episodes of the husband’s aberrant conduct and to the wife’s observation they have been distressed and scared. They would call out to the husband for him to stop and on occasions hide in their bedrooms or run away. The child, B, has complained of being struck by his father.
The husband continues to deprecate the wife in his trial affidavit, accusing her of “financial mismanagement and lacking education compared to him” “she has no HSC, no clue about the brain”. He complains that she has used an expensive lawyer “to paint an image of me as a monster in every way”.
The husband rejects the wife’s history of domestic violence particularly in 2010 and thereafter. Indeed, he attempts to justify his behaviour by blaming the wife, notwithstanding police attendances, charges, various apprehended domestic violence orders, convictions and periods of imprisonment served by the husband as a consequence of his behaviour. The husband professed an intention to seek to have the eldest child, B, give evidence in the proceedings thus demonstrating no reflective capacity at all to consider the interests of his children.
The husband’s oral evidence at trial continued to be deprecatory of the wife, self-serving (“I believe she provoked me”), showing little reflective capacity as to the needs of the children and most importantly no insight whatsoever into the impact of his behaviour on the children.
In terms of the husband’s conduct during this period the wife’s evidence is accepted without reservation.
During 2013 and 2014 the children were agitated prior to seeing their father with the eldest child becoming withdrawn and the younger children are being visibly distressed and tearful.
Subsequent to the husband’s time with the children ceasing in December 2014 and in April 2017, the eldest child, B, and the child, C, cycled to the father’s home at Suburb P. B later apologised to his mother for doing so. Save for this incident the children have had no contact with the father since December 2014.
The wife has facilitated the children, B and C, attending counselling as a consequence of their exposure to the husband’s domestic violence within the household and otherwise. Both children have also been assisted through their school counsellor.
The mother’s present circumstances
The child, B, is progressing well at school and is presently in Year 11. The wife has some issues with his school attendance but she is seeking assistance from the school to address this issue. The child has obtained part time employment.
The child, C, is in Year 8 and struggling at school both socially (except for G Group) and otherwise. He is presently the subject of an educational assessment and the mother hopes that she will be able to afford him some tutoring assistance. The mother has obtained a referral for the child to see a psychologist.
The child, D, is in Year 4 and struggling with writing and reading at school but is in an assistance program and progressing satisfactorily.
Overall, there is some conflict between the eldest two but otherwise the children enjoy good relationships with each other. The mother has support from her sister and close friends.
The wife is presently living in rented accommodation suitable for herself and the children. She is presently working 30 hours per week with a large firm and has been in such employment for some years. She earns about $54,000.00 per year. She has no savings or investments of value.
Since separation the wife has received no financial assistance for the children.
The husband’s present circumstances
The husband had previously been employed in hospitality earning, he asserts, about $850.00 a week. Prior to trial that employment, he says, has been more limited and his income comprises it appears about $400.0 per week after tax plus net rent from the granny flat at the home of $300.00 per week. He has a superannuation benefit with Super2, details of which were not objectively forthcoming but subject to estimate only by him.
The Child Responsive Program Memorandum: Children’s Wishes
The parties and the children were seen for the purposes of family consultant interviews on 28 April 2016. As at that date the husband had had no contact with the children for about 16 months.
The family consultant identified, inter alia, key issues as being whether the children should spend time with the husband, whether they would be at risk in his care, allegations regarding the family violence, allegations regarding the husband’s mental health and psychological well-being and the impact of the poor parenting relationship on the children.
The husband, in interviews, presented with little reflective capacity as to the needs of his children and the impact on the children of his violent behaviour.
The eldest child, B then 13 years of age, presented as reserved. The child acknowledged that he had not spent time with his father in a long time attributing this to the verbal and physical fighting between the parents in the home. He said that he felt “not that good’’ about not spending time with his father. Generally, he spoke positively about his mother. The child identified to the family consultant that he would feel “happy” if it was decided he should spend some time with his father. He said he would probably feel the same as he does currently if he continued to spend no time with the father.
The child, C then aged 10 years of age, presented to the family consultant as forthright and with little emotion. He evidenced significant dislike for school but enjoyed music and sport. The child reported that he spends no time with the father and lives with his mother and that he “enjoyed that”. The child expressed significant animosity towards the father: “I hate him in every way”. He rejected that he had any positive memories of the father. The child spoke positively about the mother. He identified the poor parenting relationship between his parents and reported that his father had been “fighting” (verbally, not physically) with his mother. The child reported that he would be devastated if he was required to spend time with his father complaining that his father had slapped him and his siblings in the face at times for doing the smallest things wrong.
The child, D then aged six years of age, presented to the family consultant as sociable but somewhat nervous. He was readily engaged in discussion but by reason of his age appeared to have limited capacity to engage in meaningful discussion regarding his views. D identified that he did not spend time with the father because “we don’t like him”. The child identified the animosity between his mother and father. He evidenced his awareness that his father had been previously incarcerated. He asserted to the family consultant that he did not really like his dad and attributed this to the father “hurting me”, saying rude words and physically assaulting him such as pulling his ear, kicking him and slapping me on the back and face. The child identified a positive relationship with his mother.
The mother confirmed in her oral evidence that the children’s views had not changed and that the children asserted that they had so informed the Independent Children’s Lawyer.
The father, on interview, informed the family consultant that he had had no contact with mental health services whilst involved with Corrective Services. He said that he did not attend upon doctors but preferred alternate or holistic treatments. The father denied in interview with the family consultant that family violence had been a feature of his relationship with the mother. He denied the majority of allegations outlined by the mother and as set out above. He said to the family consultant “to me, it’s not violence until someone beat you up on the ground”.
The parties’ co-parenting relationship was considered by the family consultant. The father expressed no concerns as to the mother’s parenting or the children being at risk in her care. He reported that the mother had served him “like a king” but found it difficult when the mother’s attention had moved from him to the children. Notwithstanding the mother’s concerns the father stated “I don’t know, because I think I’m a good father”. He went on to indicate to the family consultant that the mother would not hold concerns if she were to be “calm and rational”.
In evaluation the family consultant identified that B indicated positive relationships with both parents and a desire of a relationship with the father, seemingly due to common interests. The younger children were rejecting of the father apparently largely due to the lived experiences with him. Yet all three children raise concerns that the father had behaved towards them in a manner that could be considered abusive and the family consultant recommended that these allegations be considered when determining the most appropriate arrangements for the children.
As to the question of risk if the children were in the father’s care the family consultant identified specifically allegations that had been made and concerns raised regarding family violence and the father’s psychological functioning and well-being.
The family consultant’s oral evidence
The family consultant was required for cross-examination. Her oral evidence was of significant assistance to the Court.
As to the father’s psychological functioning the family consultant said:
I formed enough of an impression at the time of the child and parents’ issues assessment that further assessment in regards to his psychological functioning would be warranted. That view has not changed upon reading his affidavit material.
The family consultant reflected that in interview the father continued to denigrate the mother, as he did in his trial affidavit. Her concern was that he would continue to do so and such would be psychologically damaging to the children that:
…could result in the total breakdown of the children’s relationship either with the mother or with the father depending on which way the children decide to align if they are unable to maintain a relationship with one parent – with both parents due to conflict and animosity between the parties.
As to the child B’s desire to see the father the family consultant said:
It may be disruptive to [B]. It is possible that permitting contact between him and his father may not be disruptive to [B], depending on the quality of that relationship and any findings made by the court in terms of risk to [B] in his father’s care. It is possible that it will disrupt the stability of his home environment with his mother. It’s possible that the father may undermine that relationship, that there may be different rules and boundaries put in place for [B], and that he may favour one parent’s rules over the other, which can make a primary care arrangement difficult, particularly if, you know, one parent is seen as more strict than the other. It could also then have an impact on [D] and [C] if [B] is spending time with the father and they’re not, both in terms of the children, not necessarily understanding why one child is allowed to spend time and the other one is not, or having some concerns if [B] is coming back and trying to influence the children to then see their father, as well. So there’s a number of factors and issues that could have a detrimental impact on the children if that arrangement is put in place…
(B) appeared to minimise physical chastisement or physical abuse, depending on the extent of the slap. And I didn’t explore that particularly with [B]. But, yes, he presented a very minimising regarding that, which raises some concerns.
The family consultants was shown the Community Corrections memo referred to above. On considering it she said:
It raises concerns in a number of areas. The first one is that it’s possible that the father refusing to engage with a psychologist or in regards to domestic violence intervention services is that it’s due to a lack of insight on his behalf as to what the issue is, why he has actually come before the courts, that his offences are of a domestic violence nature and what the implications would be, not only for the mother but also, potentially, for their children. It also then raises some concerns in terms of his willingness to take accountability for his actions, to take responsibility for his actions and to make changes in order to ensure that similar behaviour does not occur in the future. So, yes, I have concerns.
The family consultant expressed concerns that the father had not acknowledged or taken responsibility for his conduct:
It’s highly unlikely that significant sustained change would occur after counselling unless an individual was actually willing to take responsibility for their actions and actually have insight into what the issues were. Without that, I – even with counselling, without the acceptance of responsibility, I would be very, very cautious about positive change in the future.
As to B’s prospective contact with the father the family consultant opined:
Ultimately, it would – from my point of view, it would be about what the potential benefits to [B] may be of having that relationship with his father and allowing some time as he wishes to give him a realistic understanding about his father, versus the potential risk to him in his father’s care associated with any undiagnosed, unmanaged mental health problems that may be relevant, and any issues and concerns relating to domestic violence. ..
It would depend on determination about risk in the father’s care. If there is a serious concern that he – that contact with [B] will serve to undermine [B’s] relationship with his mother, to destabilise his stability in the mother’s care, possibly result in disengagement from education, challenging behaviour, defiant behaviour in the mother’s care, if there’s concerns about role modelling of aggressive or abusive behaviours towards the mother or the younger siblings, they would be the types of concerns that I would have…
. If [B’s] difficulties relating to school attendance are relating to his psychological wellbeing, the conflict between his parents, the ongoing court proceedings, which is a possibility, it really depends on what role [the father] can play in [B’s] life whether he would be seen as a positive and supportive influence in trying to establish [B] attending school and support any rules and boundaries that the mother has put in place, or whether he would seek to undermine her parenting…
I have concerns based on what is in his affidavit about him potentially undermining the mother’s parenting. I also have some concerns that his affidavit presented as quite self-focused and not focused on the children, and so I would have some concerns about his ability to provide a positive child-focused environment to the children… it’s concerning that he views her negatively and that whatever rules and boundaries she seeks to put in place for the children, because of his negative views against – about her, he would then put in other rules or boundaries as he sees fit with little consultation or regard…It concerns me that [B] would then be placed in a position of being involved in conflict between the parents and that the father is presenting the mother in a very negative light, which ultimately might make [B] feel that he has to choose a narrative or choose a side with one parent over the other as to who is to blame or who is responsible for the parental separation or any difficulties, which might be quite psychologically difficult for [B]
As to B’s capacity to make safe decisions for himself the family consultant was of the view that “I have some concerns based on the information he gave in terms of minimising his experiences in his father’s care as to whether or not he would have an understanding of what the risks may be and whether or not he would be able to prioritise his safety over a desire to please his father or to maintain that relationship at any costs.”
As to the father’s “reflective capacity” the family consultant said:
Reflective capacity in a very abridged version is a parent’s ability to reflect on their child’s experiences, on their child’s likes, dislikes and how they view the world rather than coming purely from the parent’s own point of view. There was very little demonstrated in my interview with the father in terms of his ability to focus on what the children wanted. It was predominantly about his desires for the children to participate in football, his ambitions for the children, and what he could provide to the children. And there was very little if at all in his affidavit material that varied from that. As I said earlier, it presented as quite self-focused on himself and his grievances regarding the mother, although I do acknowledge in terms of his affidavit that he hasn’t spent time with the children, so that may be a factor, but there's very little demonstration of reflective capacity in what I've seen… There's very little understanding or acknowledgement of him as to potential impact of the incidents towards the mother and subsequently that – the impact of those on the children.
The family consultant was firmly of the view that contact with the father by B would risk the child aligning with the father, be disruptive of his relationship with his mother, influence his siblings and thus undermine their relationship with the mother and indeed their relationship with him.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)…
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In this matter the wife gave her evidence in a forthright manner. She made concessions where appropriate but was still clearly distressed by the history of the relationship. The husband’s evidence was self-serving, meandering, avoidant and where he could deprecatory of the wife. He sought to justify his conduct notwithstanding his convictions and various orders made against him.
In such circumstances the wife’s evidence where there was a conflict with that of the husband is unreservedly preferred.
In this matter by reason of family violence perpetrated by the husband in respect to which there are various convictions and by reason of the best interest considerations discussed below the presumption as to parental responsibility (s 61DA) shall not apply. It is, otherwise, not in the best interests of the children for there to be equal shared parental responsibility. There will be an order for the wife to have sole parental responsibility for the children.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J as to “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The Full Court went on to say:
117.Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121.In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. (emphasis added)
The mother has been the primary carer for the children throughout their lives and, indeed, sole primary carer for the children since late 2014 when the children’s relationship with the father ended.
It is clearly appropriate to fashion orders that ensure that the children remain in the mother’s primary care and there was no issue at trial that the children will continue living with the mother.
The overshadowing issue is the impact of any relationship that the children may have with the father on the mother psychologically with such impact flowing through to parenting dysfunction and the consequent impact on the subject children and the mother’s household. The family consultant was clear that risks would flow in the event that even the eldest child had contact with the father. The evidence, otherwise, is abundantly clear that such risk is there and in the circumstances of this matter is unacceptable.
It is appropriate to fashion orders that are protective of the ongoing meaningful relationship of the children with the mother. The children presently are aged 16, 13 and nine.
Once the children are 18 years of age, particularly the eldest child, they will be required to deal with the question of any relationship with their father on an adult basis.
Overall and having regard to the evidence above and, in particular, the evidence of the family consultant, it is not in the interest of all the children to allow contact with their father.
As to the father he has, by his own conduct since late 2014 abdicated his relationship with his children. His conduct within the relationship with the mother was aberrant and reprehensible. His conduct continued unabated after separation.
Section 60CC(2)(b) – need to protect
This consideration takes priority over issues as to relationship discussed above.
In Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 the Full Court said:
[94]A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC (2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95]The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
[96]It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.
There is unequivocal objective evidence as to the husband’s aberrant behaviour and violence. Otherwise, the wife’s evidence as to his conduct within the relationship as detailed above is accepted without reservation. This protective concern is an overwhelming consideration and must be given priority over issues as to relationship as discussed above.
As a consequence as discussed above there are significant risks to the mother, her household and the inter-sibling relationships that arise from any contact between the children and their father.
The Independent Children’s Lawyer on behalf of the children supports an order as to “no time” and indeed seeks that injunctive relief be granted to protect that outcome and to protect the children and the mother: Exh “M”
The additional considerations: s 60CC (3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The views of the children as expressed historically to the family consultant and as communicated to the Independent Children’s Lawyer shortly before trial are considered above. As to the younger children there is no issue. Their views are fashioned by their lived experiences of the father within the relationship and indeed after separation. The child B expressed a wish to contact his father. However, any weight to be attached to such is overshadowed by the risk issues detailed and discussed above.
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 present nature of the relationship of the children with both the mother and father is discussed above.
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
In the background of this matter this consideration is of little consequence. The mother has been the children’s primary carer absent the father since late 2014. The father has had little or no opportunity to engage in these aspects of the children’s lives by reason of his own conduct.
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother has provided financial support for the children since separation in 2010. The father has provided no ongoing support for the children financially leaving the mother in difficult financial circumstance with accumulated debt.
The father chooses to maintain, it appears, part-time employment. The prospects of future child support are at present illusory.
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;
Currently the children have no relationship with the father. There is significant concern as to whether a change in their present circumstances to a limited relationship with the father may adversely impact on the mother’s ability within her household to cope. The father proposes a resurrection of his relationship with the children. The impact of that is detailed above. There are overwhelming risk issues.
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;
This is not a significant consideration in the context of this matter.
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;
The mother has demonstrated an appropriate capacity in this regard, in particular, for a significant period post separation after December 2014.
The father’s capacity in this regard historically was a disaster. He exposed the children to aspects of his aberrant behaviour and by reason of his own conduct and quite properly the mother’s protective concerns he has had no contact with these children since late 2014. He presents as a risk to the mother’s stability with the children and also to the inter-sibling relationships. He, as opined by the family consultant, has little or no reflective capacity as to the needs of his children. As submitted by Counsel for the Independent Children’s Lawyer he has no insight into the impact of his behaviours, he has not accepted responsibility for such behaviour and has taken no steps by way of professional intervention to seek behavioural change. Indeed, he rejected the directions of Corrective Services in this regard that occasioned his further incarceration.
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 subject children’s present circumstances are detailed above. They have various issues at school and education that are being addressed by their mother as best she can.
h)….
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
There is no doubt that the mother has struggled with this relationship and the significantly traumatic period post separation. She has at all times demonstrated an appropriate attitude to the children and to her responsibilities as a parent. The father’s conduct subsequent to separation have presented significant obstacles for her in parenting these children. She has held her family together and no doubt will do so into the future.
The father during the parties’ relationship failed to demonstrate any appropriate attitude to the children and his responsibilities as a parent by reason of his conduct. His post separation conduct led to significant periods of incarceration.
j)Any family violence involving the child or a member of the child's family;
This aspect of the parties’ relationship is discussed in significant detail above.
There is no issue as to the perpetration of family violence by the father, yet it is not appropriately acknowledged by him in his evidence giving rise to ongoing risk issues. The significance of his conduct is reflected in significant criminal penalties including incarceration imposed on him post separation.
k)If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter.
This is discussed above. Various orders were made in the context of the parties’ relationship as referred to above.
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; and
As best as can be fashioned orders will be made that hopefully will see an end to the litigation between these parties.
m)Any other fact or circumstance that the court thinks is relevant.
There is no other relevant fact or circumstance.
With the presumption as to equal shared parental responsibility not applying the Court is not required to consider orders for equal time or substantial and significant time. Indeed no such orders could be made having regard to the risk issues identified above.
Orders are to be fashioned in the best interests of the children.
The Court is conscious of what the Full Court said in Blinko [2015] FamCAFC 146:
30.Accordingly, where the Court makes no orders for time or communication because it is not persuaded that safeguarding conditions would sufficiently ameliorate the risk, again it should clearly explain the reasons for that conclusion. Looming large amongst the reasons for doing so, is because such orders will necessarily wholly prohibit the child, during their childhood and adolescence, from ever having any form of relationship with the non-resident parent, again, a potentially grave consequence. Such an outcome needs to be arrived at only after a careful evaluation of all of the other options which might work to enable the child to have the benefit of some kind of relationship with the non-resident parent, as indicated by the Objects and Principles of Part VII of the Act. Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
The father has by his conduct shown little restraint in his conduct towards the mother notwithstanding restraining behavioural orders and his incarceration. His lack of insight is simply astonishing, evidencing possibly some underlying psychological difficulty.
These children are well aware of their father and the history to which they have been subjected. B is but a short time from adulthood but at present in his senior years in high school. The family consultant expresses concern as to the risk to his stability (and that of his household) should his father reappear in his life. B can seek a relationship with his father on his own terms upon attaining 18 years.
In submissions the mother’s counsel appropriately identified some issues as to risks in the eldest child B spending time with the father: his undermining of the mother’s relationship with the children, his defiant behaviour, inappropriate role modelling, the adverse impact on sibling relationships and prospective disengagement from education. Such issues would be disastrous for the mother’s household already on fragile ground by reason of the children’s educational and other issues.
The younger children have expressed wishes that seek no time with their father and for the reasons set out above and by reason of the risks identified such an order is in their best interests.
As properly submitted by Counsel for the Independent Children’s Lawyer the father has been convicted of family violence offences and the children have been exposed to family violence. Any unsupervised time is likely to expose the children to unacceptable risk of psychological or physical harm with the only prospect of risk minimisation being professional supervision. The Court could have no confidence in the father’s capacity to comply with rules and requirements as to supervision. Further, it was properly submitted that there was little prospect of progressing from supervision to unsupervised time in an arrangement that would be safe for the mother and children.
A consideration of the background facts and circumstances and their enmeshment in the best interest considerations relating to the children as discussed above are clearly indicative of there being an order for no time. They are, indeed, indicative in the best interests of the children of orders reflective of orders proposed by the mother and supported by the Independent Children’s Lawyer.
Such orders will be made accordingly.
Property
The major asset of the parties is the former matrimonial home at Suburb P. That property is owned jointly by the parties.
As at July 2016 the Suburb P property was valued by a single expert at $1.7 million. At present the Suburb P property is subject to an outstanding mortgage in the sum of $769,000.00.
The husband alleges that his father has met loan repayments on the house mortgage since 2012. The husband’s father resides in the property with him. The husband’s father was not called to give evidence. The husband says that the property is in disrepair and seeks that he be given 12 months to repair and paint the home to bring it up to saleable condition. He then seeks a sale of the home and that the net proceeds of sale be divided equally. He, otherwise, seeks a reasonable time to move out when the property is ready for sale.
The property includes separate granny flat accommodation at the rear and that flat was rented out by the parties privately from time to time. The net rental monies after payment of outgoings and repairs were used substantially between separation and 2014 for expenses by both parties. In mid-2017 rental payments were for a period paid to the parties equally by the letting agent but shortly thereafter the wife received no rent at all. It is her understanding that rental payments were paid to the husband.
The wife since separation has incurred significant debt in being able to meet the living expenses of herself and the children in addition to paying private rent for their accommodation and purchasing furniture. She has facilitated the payment of expenses by borrowing on various credit cards that are reflected in the balance sheet set out below.
At the commencement of the parties’ relationship neither had any assets of significance. Both parties substantially during the period of cohabitation applied their income for the benefit of the family.
In 1998 the parties purchased a home unit property as joint tenants. The home unit was later sold and the equity realised of about $160,000.00 was applied to the purchase of the matrimonial home at Suburb P. The balance of purchase money was provided by way of a mortgage borrowing.
Notwithstanding the birth of the parties’ children, the wife worked at various times during the relationship until separation. The husband was employed in various menial jobs including security but was in and out of work.
The parties’ assets and liabilities
A draft balance sheet was provided at the commencement of the trial: Exh “D”.
The parties agreed that the present pool of assets comprised the following:
Assets
Joint Home at E Street, Suburb P $ NK
Wife Westpac Account $ 125.00
Wife Motor vehicle $ 5,000.00
Wife Contents/Personalty $ 10,000.00
Liabilities
Joint Westpac mortgage $ 769,000.00
Wife Westpac Personal loan $ 12,327.00
Wife Westpac Visa Card $ 13,610.00
Wife Westpac Qantas Card $ 8,718.00
Wife F Bank Loan $ 9,300.00
Wife NAB Personal Loan $ 14,391.00
Wife ANZ Personal Loan $ 11,671.00
Wife F Bank Credit Card $ 9,500.00
Wife NAB Credit Card $ 10,054.00
Wife ANZ Credit Card $ 5,000.00
Wife H Bank Credit Card $ 3,500.00
Superannuation
Wife Super1 $ 141,000.00
Husband Super2 (Husbands estimate mid-range) $ 105,000.00
As at July 2016 the Suburb P property was valued by a single expert at $1.7 million. Both parties are of the view that the value may have dropped but in any event the property by agreement is to be sold.
As to the appropriate pool for division, it is just and equitable to exclude the wife’s personalty and money at bank as being acquired in the years since separation.
Otherwise, her various debts will be included in the pool for adjustment as a consequence of them being incurred in and about the provision for and support of the children post separation in the absence of any financial support for the wife (who was obliged to pay market rent) and children from the husband. The husband having remained in the home for the last seven years.
The approach to property
The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford & Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4).
The Court in the application of s 79(2) of the Act needs to conclude that it would be unjust or unfair to leave the parties’ property rights intact.
In many cases such as the present matter, this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here both parties seek orders for adjustment of property so as to end the joint ownership of the matrimonial home.
It would, in some circumstances, be unjust or unfair to leave property rights intact where there is common ownership and discrete assets are sought by each. Such is the case in this matter and the parties both agree that their common ownership of property is to be brought to an end so as to reflect their respective contentions as to entitlement.
It is appropriate that property adjustment orders be made.
Otherwise, a consideration of s 79(4) factors as discussed below reveals it would be unjust or unfair to leave the parties’ property rights as they are.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant: (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The “pool”
The present assets and liabilities of the parties are set out above.
The pool for adjustment is also indicated above for the reasons given. It is:
Assets;
Joint Home at E Street Suburb P $ 1,700,000.00E
Liabilities
Joint Westpac mortgage $ 769,000.00
Wife Westpac Personal loan $ 12,327.00
Wife Westpac Visa Card $ 13,610.00
Wife Westpac Qantas Card $ 8,718.00
Wife F Bank Loan $ 9,300.00
Wife NAB Personal Loan $ 14,391.00
Wife ANZ Personal Loan $ 11,671.00
Wife F Bank Credit Card $ 9,500.00
Wife NAB Credit Card $ 10,054.00
Wife ANZ Credit Card $ 5,000.00
Wife H Bank Credit Card $ 3,500.00
$ 867,071.00
Superannuation
Wife Super1 $ 141,000.00
Husband Super2 (Husbands estimate mid-range) $ 105,000.00 $ 246,000.00
Contributions
In Dickons & Dickons [2012] FamCAFC 154 the Full Court said at [24] and following:
There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
In Pandelis & Pandelis [2018] FamCAFC 66 the Full Court reiterated:
24.We think it important to record that in Zyk and Zyk [1995] FamCA 135; (1995) FLC 92-644, the Full Court said it is somewhat artificial to purport to assign a percentage to a particular category of contributions....
To date of separation there is little to say that the parties’ contributions should not be regarded as equal. However, subsequent to separation the husband has occupied the home to the wife and children’s exclusion. He asserts that his father has assisted with mortgage payments those years. This has maintained the equity in the home. Yet the wife has been deprived of her equity in the home for years.
Yet the wife has had the overwhelming responsibility for the support and care of the children for the years from separation to trial absent any financial assistance from the husband.
On balance contributions favour the wife as to 55 per cent and as to the husband 45 per cent.
As to superannuation there is simply no evidence as to the parties’ superannuation entitlements at relevant dates save for the wife’s at the time of trial and the husband’s guesstimate. Neither party seeks any adjustment as to superannuation and accordingly entitlements will simply remain as they are.
Otherwise, orders sought by the parties do not impact on their earning capacity.
Section 75(2) considerations as relevant
Both parties at trial were aged 43. Neither asserts ill health.
The income and property of the parties is discussed above. The wife is capable of continuing her present employment subject to her obligations to the children. The husband works part time but the evidence is not indicative of him working to his capacity.
The wife will have the care and control of the children into the future. This is a significant consideration.
The wife has the obligation to support the children in circumstances where the husband provides no financial assistance. This is also a significant consideration
Both parties have superannuation entitlements as referred to above.
There is no child support paid by the husband since separation and there is little likelihood of any into the future. This is a significant consideration.
Orders will be made to facilitate payout of the wife’s debts incurred post separation thus being a contribution of sorts to same by the husband.
Otherwise, there are no other relevant factors.
Overall these considerations call for a further adjustment in favour of the wife. An adjustment of five per cent in her favour creates a disparity of about $80,000.00 between the parties. In the circumstances of this matter where the wife’s liabilities will be paid out of the proceeds of sale, an adjustment of five per cent is appropriate.
Overall
Overall, it is just and equitable that the home be sold, debts paid out and the balance apportioned at 60 per cent to the wife and 40 per cent to the husband. This will create an overall disparity of about $160,000.00 between the parties.
Orders will be made accordingly.
The Independent Children’s Lawyer’s costs
Both parties conceded the obligation to pay equally for the Independent Children’s Lawyer’s costs. An order will be made accordingly.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 March 2019.
Associate:
Date: 1 March 2019
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