Plaskett and Plaskett
[2013] FamCA 1036
•20 December 2013
FAMILY COURT OF AUSTRALIA
| PLASKETT & PLASKETT | [2013] FamCA 1036 |
| FAMILY LAW – CHILDREN – Best interests of children – Whether an equal time arrangement is in the best interests of the children – Where the parties do not have a workable level of communication. FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the contributions before separation are equal – Where there is a disparity between the earning capacities of the parties – Where the husband pays nil child support for two young children and is unlikely to pay any meaningful child support into the foreseeable future. |
| Family Law Act 1975 (Cth) |
| Bevan & Bevan [2013] FamCAFC 116 |
| APPLICANT: | Mr Plaskett |
| RESPONDENT: | Ms Plaskett |
| FILE NUMBER: | SYC | 2954 | of | 2010 |
| DATE DELIVERED: | 20 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 2-5 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Rossic |
| SOLICITOR FOR THE RESPONDENT: | Rowlandson & Co Solicitors |
Orders
PARENTING
The husband and the wife have equal shared parental responsibility for each of the children K Plaskett born …, 2002 and L Plaskett born …, 2007 (“the children”).
That the children live with the wife at all times when they are not living with the husband pursuant to these orders.
That the children live with the husband as follows:-
(a)During the school term every alternate weekend from the conclusion of school Friday until commencement of school on Monday. First weekend to commence in each new school term on the first Friday in the school term if the husband has had the children with him during the first half of the school holiday period which has just concluded AND to commence on the second Friday of the new school term if the husband has had the children with him for the second half of the school holidays (or the last week in the case of the long holidays at the end of the school year);
(b)During the school term from the conclusion of school each alternate Thursday until commencement of school the next day. The first Thursday time to commence in the first week of each new school term where the husband has had the children with him during the second half of the school holidays which have just concluded (or the last week in the case of the long holidays at the end of the school year)AND is commence on the second Thursday of the new school term where the children have been with the husband during the first half of the school holidays which have just concluded;
(c)For the first half of the school holidays at the conclusion of school terms 1, 2 and 3 each year ending in an even number and for the second half of those school holidays in years ending in odd number. For the purpose of calculating when the mid-point changeover will occur in any school holiday period, school holidays will be deemed to commence at 9.00 a.m. on the morning of the day immediately following the last day of school term and shall be deemed to conclude at 5.00p.m. on the day immediately before the first day upon which the children are required to attend at school in the new school term (school holidays thus include pupil free days at the commencement of the new school term).
(i)During the Christmas school holidays commencing at the conclusion of the 2013 school year and the 2014 school holidays the children are to live with the husband on a week about basis. In the 2013 holiday period this shall commence with the husband having the second week of the holiday period as his start week and in the 2014 holiday period it is to commence with the husband having the first week of the holiday period. FROM the commencement of the Christmas school holiday period at the conclusion of the 2015 school year and thereafter the children shall live with the husband for either the first half or the second half of the Christmas school holiday period in the same rotation as applies to the other school holidays which have preceded it in that year.
(ii)Where changeovers of care of the children are required to occur otherwise than at school then such will occur at the residences of each parent. Each parent will deliver the children to the other where the children are in that parents care and are required to go to the other parent to commence time with that other parent.
(d)From 10.00am on 25 December until 3.00pm on 26 December each year ending in an even number and from 9.00 p.m. on 24 December until 9.00a.m. on 26 December in years ending in an uneven number (this order to operate irrespective of the order which operates in relation to school holidays);
(e)In the event that Easter public holiday time falls outside of school holidays in any particular year then should the Good Friday holiday fall on a weekend where the children would in the normal sequence be with the husband then he shall collect the children from school at the conclusion of school time on Thursday and shall deliver the children to the wife at 5.00.p.m. on Easter Sunday. Should the Easter holiday period fall on a weekend when the children would normally be with the wife pursuant to these orders then she is to deliver the children to the husband at 5.00 p.m. Easter Sunday and he will then deliver them to school at school time on Tuesday morning.
(i)By telephone between 6.30pm to 7pm each Tuesday and Thursday with the husband to telephone the wife’s mobile telephone number … to facilitate such telephone time;
(f) Such other time as may be agreed between the parties in writing.
The children are to spend time with each parent on each child’s birthday. If a child’s birthday falls on a school day then the children will spend from after school until 7.00 p.m. with parent who was not caring for them before they commenced school on that day. If the birthday falls on a weekend then the children will spend from 12 noon until 4.00 p.m. with the parent who was not caring for them on the morning of the child’s birthday.
The children are to spend from 6.00 p.m. Saturday until 5.00p.m. Sunday on the weekend of Father’s Day with the husband.
The children are to spend from 6.00p.m. Saturday until 5.00p.m. Sunday on the weekend of Mother’s Day with the wife.
Each party shall keep the other advised at all times of their residential address, contact telephone number and any emergency contact number.
Neither party shall denigrate the other party nor permit any third person to do so in the presence or hearing of any or all of the children.
Each party shall ensure that the other is promptly advised of any medical emergency or significant illness suffered by the children and including sufficient details to enable both parties to be consulted with respect to and be fully advised about such illness or condition and any treatment recommended or provided and both parties shall be at liberty to visit the children if hospitalised.
Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other party the children’s school attendance and progress and furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
In the event that either the wife or the husband propose to travel overseas with any of the children for any period, then at least two (2) month’s written notice must be given to the other party, providing the destinations, mode of transport, flight numbers and times of departure and return, relevant contact telephone number(s) and addresses of where the children and/or the party will be residing for the duration of the proposed travel.
That unless either party is travelling with the children outside the Commonwealth of Australia, the passports remain in the custody and control of the wife.
That the parties do all acts and things and sign all necessary documents to obtain and/or renew the children’s passports three (3) months prior to the expiry of any current passports they may have from time to time. The parties are to equally share the cost of any of the children’s passport applications. The wife is to have the carriage of preparing and lodging any such passport application.
At any time when the children are in the care of the husband, pursuant to these orders or otherwise, the husband is restrained from permitting his brother, Mr P, to be left alone with the children and the husband is to ensure the children are supervised by the himself or his mother, or another responsible adult selected by the husband, at all times while his brother is present. Further, the husband is to ensure his brother Mr P does not drive a motor vehicle, in which the children are passengers, unless the husband, or his mother, is present.
That pursuant to S.65DA (2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Facts Sheet attached hereto and these particulars are included in these orders.
The husband is to forthwith provide a copy of the parenting orders to his mother.
PROPERTY
That within 90 days the husband do all acts and things and sign all necessary documents to transfer to the wife all his right title and interest in the property situate at Suburb D in the State of New South Wales being the whole of the land contained in folio identifier … (“the property”).
Simultaneously upon compliance by the husband with order 1, the wife shall do all acts and things and sign all necessary documents to refinance the mortgage secured over the property and thereafter indemnify and keep indemnified the husband from all and any liability secured over the property.
Simultaneously upon compliance with orders 17 and 18, the husband do all acts and things and sign all necessary documents to procure in prescribed form withdrawal of caveats concerning caveats registered no. AG82… and AG84….
Simultaneously upon compliance by the parties with orders 17, 18 and 19, the wife pay to the husband the sum of $303,531.
That upon compliance by the parties with orders 17, 18, 19 and 20, the wife shall indemnify and keep indemnified the husband and be solely liable for payment of all rates, levies, utilities and insurances in relation to or secured over the property.
In the event that the wife does not pay to the husband the funds required to be paid by order 4 hereof within the time prescribed by these orders then the parties are to jointly cause the property to be sold by auction through an agree auctioneer and at an agreed reserve price. Upon a sale being completed and after payment of sale expenses, including legal costs of sale and agents commission, the proceeds are to be paid as to 47% to the husband, or as he may direct, and the balance to the wife.
Pursuant to section 90MT(4) of the Family Law Act, 1975, a base amount of $44,714.00 is allocated to the husband out of the wife’s interest in the Suncorp Master Trust – Member number ...
That in accordance with section 90MT(1)(a) of the Family Law Act, 1975 whenever a splittable payment becomes payable from the wife’s interest in the Suncorp Master Trust, Suncorp Portfolio Services Limited (“the Trustee”) shall pay the applicant husband an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations, 2001 using the base amount of $44,714.00 and that there be a corresponding reduction in the entitlement that the respondent wife would have in the Suncorp Master Trust but for these Orders.
That this order have effect from the operative time and the operative time is 4 business days after service of this order on the Trustee.
That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the husband do all such things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the wife’s interest in the Fund to a fund of the husband’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Unless otherwise provided for in these orders:-
(a)The parties are each entitled to the sole legal and beneficial ownership of all items of property including but not limited to money, motor vehicles, insurances, equities and personal effects, and superannuation benefits currently in their possession or control of each of them respectively;
(b)The parties shall each be solely liable for and indemnify the other against all liability encumbering all items of property to which each party respectively is entitled pursuant to these orders and against all liability currently in the name of each party respectively.
In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the defaulting party and to do all things necessary to give validity to such deed, document or instrument upon receipt of Affidavit evidence of such refusal or failure.
Any application for costs arising out of these orders is to be made in writing within 28 days of the date of these orders.
All outstanding applications are otherwise dismissed.
Each party has liberty to apply seek further orders to implement the orders of the court made in relation to property matters.
IT IS NOTED that publication of this judgment under the pseudonym Plaskett & Plaskett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER:
| Mr Plaskett |
Applicant
And
| Ms Plaskett |
Respondent
REASONS FOR JUDGMENT
Introduction
The case before the court is the final hearing of both parenting and property proceedings commenced by the husband in this matter. The husband was unrepresented at the final hearing although he has been represented throughout most of the proceeding. The wife has been represented throughout the whole of the proceeding.
The parties have two female children. They are K aged 10 years and L aged six years. Since the parties’ separation in February 2010, the children have largely lived with their mother and have spent time with their father pursuant to interim orders made on 30 June 2010. The husband asks the court to make orders which would see the children have equal time with each parent. The wife asks for orders which would largely perpetuate the current arrangement for the children. Should the husband be unsuccessful in having the court make orders which substantially increase the time the children spend with him he asks that his time with the children start and conclude at school times where that is possible.
Presently the husband rents accommodation at G, a Sydney suburb. The wife lives in the former matrimonial home at D, another Sydney suburb. The children attend D Public School. The residences of the parties are reasonably close to each other. Both parents propose the children continue to attend that school.
The wife is seeking property orders which would see her retain the property at D. The husband is confident he can remain renting his current residence for a number of years, although his lease will expire shortly.
As a result of some unusual symptoms experienced by the husband at about the date of separation, there were concerns raised by the wife and the Family Consultant in her report (exhibit X5) about the mental health of the Husband. The wife told the Family Consultant she did not hold fears for the safety of the children in the care of the husband, however, she did have some concerns about the husband’s mental health.
Although the Family Consultant raised a concern about the husband’s mental health, he has produced no evidence in relation to same. No single expert was sought by the wife in relation to providing a report on the husband’s mental health. The Family Consultant in her oral evidence said she did not observe any behaviour in the husband during her interviews with the parties and the children which alerted her to the possibility of any diagnosable mental illness in the husband. In the hearing there was nothing about the presentation of the husband which alerted the court to the possibility the husband may be suffering from a mental illness. As will be seen later, the husband presented in the witness box as combative on some occasions, however, this appeared to be within the bounds of what might have been expected from him in the circumstances of the case and the history provided of the conflict between the parties.
In all of the appearances the husband has made before me, he has exhibited a persona of unhappiness. He has at times exhibited what appeared to be contained anger. Again in the circumstances of this case, none of that exhibited unhappiness or contained anger caused concern and was, in context, understandable.
The husband has an acknowledged disability in the form of dyslexia. In the final hearing he sought permission to have his cousin sit at the bar table with him and assist him with the case. At least part of the husband’s need for assistance was in the reading of and understanding of documents. The husband explained to me, in his oral evidence, that his dyslexia does cause difficulty for him when he is required to read documents which are not familiar to him in their form or use of words. At the time he wanted to ask the Family Consultant questions about her report he had a document which contained prepared questions. He asked if his cousin could read out the questions for the Family Consultant to answer. I declined to allow that and, instead, I read out, aloud, his questions myself. I understood the husband had not read the questions himself as he thought he might have trouble doing so or may have been embarrassed in doing so.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The husband was born in 1965. The wife was born in 1968.
The parties commenced cohabitation in 1991.
At the commencement of cohabitation, the wife was employed at X Associates Pty Ltd. The wife says that the husband commenced employment with XX Pty Ltd in 1995. The husband says that XX Pty Ltd was created at the joint instigation of the husband and wife. The husband says that he contributed $10,000 to the business at its inception. The wife says that she presented the idea to her employers herself.
In September 1999, the parties purchased the property at Suburb D. The property was purchased for $540,000, financed with a $50,000 deposit from the parties’ savings and a mortgage with the National Australia Bank for $490,000. The wife states that her parents acted as guarantors on the loan to avoid the additional cost to the parties of mortgage insurance.
The parties were married in 2000.
There are two children of the marriage. The child K was born in 2002, and L was born in 2007.
The wife says that on 27 December 2009, the husband was arrested for shop lifting. She also says that on 11 January 2010, he was diagnosed with depression. The husband says that on 27 December 2009 he accessed the wife’s work computer and found material which he says related to the parties’ relationship.
The parties separated in February 2010. At the separation, the wife and the children moved out the former matrimonial home and moved into rented accommodation. The wife says that the husband enjoyed the sole possession of the former matrimonial home until February 2012. Orders were made on 12 December 2011 granting the wife sole possession of the house.
In July 2010, the husband was made redundant from XX Pty Ltd. The husband filed an application with Fair Work Australia, which was settled by consent in September 2010.
The wife says that on 4 August 2011, she contacted the National Australia Bank and was advised that the mortgage had not been paid since 31 May 2011. On 14 September 2011, the wife was served with a default notice by the National Australia Bank. On 8 February 2012, National Australia Bank filed a Statement of Claim in the Supreme Court of NSW in relation to the mortgage arrears. The wife says that she borrowed $18,500 from her parents to pay the amount owing to National Australia Bank in relation to the arrears on the mortgage and the legal costs.
The Issues
The parties identified the fact issues at the commencement of the hearing on 14 February as follows:
The time the children are to live with each of the parties. The husband seeks equal time. The wife seeks the current arrangement (or close thereto) continue.
The contact between the children and the husband’s brother Mr P.
Which of the parties was the primary carer for the children during the majority of the cohabitation.
Credit
The Husband
The husband was the first witness to give oral evidence in the case. He mainly answered questions which were asked of him. He did, however, display from time to time a combative approach to the cross-examination. This largely took the form of failing to answer the specific question asked, even though it was repeated a number of times. On such occasions I formed the view that he would not directly answer the question and moved the case on. The husband appeared to display stubborn determination not to answer the question even though he must have understood such a course of action could have an adverse consequence to his case.
There were occasions where I formed the view that the husband was feigning obtuseness. On one occasion I challenged him about this and he appeared to change his position, at least for a while.
The cross-examination of the husband gave rise to concern about the accuracy of some of his evidence. Propositions were put to him which he denied and then had to concede he was in error when shown documents. He was cross-examined about his assertion that he did not receive school notes of events and activities. This was something raised by the child K in her interview with the Family Consultant. There were aspects of his evidence about this topic which I did not accept. In particular his assertion that he had many attendances upon school teachers or authorities seeking that he be provided with such notices, however, this had proved unsuccessful.
Where it is necessary to do so, as I address particular issues of fact in these reasons, I will identify where I have preferred one of the party’s evidence on that particular issue.
The Wife
The wife gave her oral evidence in a straightforward and apparently honest manner. She appeared to me to give her evidence in a manner which was designed not to inflame the husband. Where it was appropriate she answered his questions with an affirmative or a negative response in single word terms.
On many occasions it was necessary for me to frame the husband’s questions in a form which the wife could understand and respond to. She appeared to tolerate that approach and address the question asked or refute the proposition put.
Whilst apparently sensitive to the husband’s position she stood firm on her answer where that was appropriate.
In his affidavit evidence the husband attempted to canvas material which went to the cause of the breakdown of the relationship. That material was not allowed on the ground of relevance. To the extent that any such material remained as part of the husband’s evidence I have not given it any weight because I consider it irrelevant.
Evidence
Each of the parties relied on affidavit material. The Court notes that while they both in their affidavits deposed to financial and non-financial contributions prior to separation, they ultimately agreed that, for the purpose of the property proceedings, their respective contributions to the date of separation should be assessed as equal. Having considered their evidence in relation to that period of time I agree with their assessment.
The husband
The husband relied on an affidavit filed on 26 July 2013 (“the husband’s first affidavit”), together with an affidavit filed in Court on 13 November 2013 (“the husband’s second affidavit”). The husband also filed his Financial Statement during the hearing and that was marked as exhibit H5 as the husband had not sworn that document.
The affidavit sworn on 26 July 2013 sets out his evidence with respect to both property and parenting issues, including evidence about the parties’ relationship, commencing from when they commenced cohabitation in 1991.
The husband asserts that, in 2009, he discovered material on the wife’s computer from which he formed the conclusion that she had engaged in an extramarital affair. The husband states that, for some time prior to this, the wife had spent a lot of time at work and little time with the children, which, he says, “caused the children distress and anxiety.” The husband asserts that when he confronted the wife about these issues she denied his accusations. He goes on to state that the wife thereafter left the former matrimonial home with the children and when he attempted to have contact with the children, she denied him this.
The husband gives evidence that, at the time of separation, he was employed as the Production Manager of XX Pty Ltd, a position which he had held for 15 years. The husband asserts that the wife was the General Manager of X Associates Pty Ltd (hereafter sometimes referred to as “X Associates”) at the time and a 50 per cent shareholder of XX Pty Ltd. The husband’s employment with XX Pty Ltd was, in his words, “terminated ‘based on redundancy’” shortly after the parties’ separation.
In relation to contributions of any kind post separation, the husband asserts that, following separation, he tried “on numerous occasions to obtain equal and shared access to the children”, however, he said the wife denied him this. With respect to the interim parenting orders made by consent in June 2010, the husband says that he agreed to these against his better judgment and “based on poor legal advice”. He asserts that the interim parenting orders have been “to the detriment of my children and significant personal loss to and pain to me as a father and the primary carer.”
In relation to an adjustment under s 75(2) of the Act, the husband asserts, inter alia, the following.
The wife has been fully employed since separation and, in the 2011/2012 financial year, earned over $200,000. He sets out other evidence about what he asserts to have been the wife’s earnings since separation.
He is employed as a co-ordinator and driver earning around $57,000 per annum based on working an 11-day fortnight and “considerable overtime”. He has tried to retrain in other areas and completed a Real Estate Agent Licence course in 2010; however, to date the husband has not been able to seek alternative employment in this area due to financial and other issues.
Since being terminated by XX Pty Ltd, the husband says he has struggled to find and maintain employment due to the need for him to be flexible because of the current arrangements for his contact with the children.
He suffers from “mild dyslexia”.
He is concerned about his future potential earning capacity given his age, the “tight labour market” and the trouble which he has had finding alternative employment.
The husband then sets out his proposals regarding housing, schooling for the children, supervision, health and extracurricular activities. The husband is seeking to have exclusive occupation of the former matrimonial home. He states that the children currently attend D Primary School and he proposes that they attend N High School. He seeks an equal time parenting arrangement. As to health, the husband asserts that the children attend D Medical Centre when in his care. With respect to extracurricular activities, the husband states that, if he had equal time with the children, he proposes to continue with their extracurricular activities, and to encourage the children to participate in other sports.
The husband states that he is concerned that the wife outsources a substantial proportion of the care of the children to other people. He asserts that he has “the desire and motivation to give real love, affection and personalised care” to the children and that, when the wife has the care of the children, the “key parenting role of providing care, love and guidance is regularly outsourced to other 3rd parties”. The husband asserts that this “affects [him] deeply”.
The husband’s second affidavit was struck out in its entirety during objections at the final hearing.
As stated earlier the husband did file a Financial Statement during the hearing. It became exhibit H5. Where necessary I will refer to that document later in these reasons.
The wife
The wife relied on an affidavit filed on 5 May 2013, together with an affidavit filed on 20 November 2013. The wife was also permitted to rely on parts of an affidavit filed by her in the Federal Magistrates Court (as it then was) on 29 June 2010. Only paragraphs 11-14, 20-31.12, 43-51, 54-58, 95 and 97 of that affidavit were read. In addition, the wife relied on the following witness affidavits of relevance to the parenting proceedings:
·Affidavit of Ms R filed on 5 May 2013
·Affidavit of Ms H filed on 6 May 2013
The affidavit sworn by the wife on 5 May 2013 sets out her evidence in relation to both property and parenting issues. With respect to property issues and, specifically, contributions post separation, the wife says that she and the children left the former matrimonial home on 24 March 2010 with little to no clothing or possessions. From then until March 2012, she lived in two rented properties, initially paying $795 per week and later paying $800 per week. The wife asserts that the husband had exclusive occupation of the former matrimonial home from March 2010 until February 2012. According to her evidence, the husband paid the mortgage repayments from March 2010 until May 2011, however, but for one final payment in December 2011, he lived at the property without paying the mortgage from June 2011 until February 2012.
In September 2011, the wife was served with a default notice from the NAB in relation to the arrears of $7,331.67 which was then owed. Following this, the wife filed an Application in a Case seeking exclusive possession of the former matrimonial home, the result of this being that orders were made by Johnson J for the husband to vacate before 24 January 2012. The wife asserts that he did not vacate until 12 February 2012 and, as a consequence, she spent over $5,000 in rent and mortgage repayments. She was then served with a Statement of Claim from the NAB in relation to the mortgage arrears and, thereafter, borrowed from her parents the sum of $18,500 “used exclusively to pay the mortgage arrears”. The wife asserts that she has not been able to repay her parents.
The wife states that when she and the children returned to live in the former matrimonial home it was in a poor state and the husband had removed all the furniture, meaning that they could not occupy it until March 2012. The wife asserts that she has paid all mortgage repayments since February 2012.
The wife gives evidence in relation to the husband’s employment by XX Pty Ltd. She says that he was made redundant in July 2010, receiving a redundancy payment of $37,785.40 and a further sum of $29,765 in or around September 2010 following the Fair Work Australia proceedings.
In relation to child support, the wife says that since separation she has been solely responsible for the children’s “school fees, uniforms, excursions and the like” as well as the children’s private health insurance. The wife’s evidence as to her payment of these expenses is as follows:
71. … I have paid the following in private health insurance premiums:
71.1 $3700 for the 2012 financial year;
71.2 $3500 for the 2011 financial year; and
71.3 $3000 for the 2010 financial year.
72. As far as the children’s school fees are concerned, I have paid the following:
72.1 2010 - $610.00;
72.2 2011 - $939.00;
72.3 2012 - $897.00; and
72.4 2013 - $1,167.00
The wife also gives evidence about the extracurricular activities which she has been financially responsible for since separation.
In relation to an adjustment based on s 75(2) factors, the wife asserts, inter alia, the following.
The parties are both in good health.
She is employed as a General Manager for X Associates Pty Limited (“X Associates”), receiving a salary of $145,000 per annum, and has a 50 per cent shareholding in XX Pty Ltd. She has no other work experience and says that her employment is dependent upon Mr X continuing in his role in the company. The wife asserts that to the best of her knowledge the husband has experience in warehouse management, Bob Cat driver qualifications and has previously stated that he is a licensed real estate agent.
The children are aged 10 and five years old. The wife says that she has “always been the primary carer of the children” and that she seeks for this to continue.
She has received “nil by way of financial assistance” from the husband for the care of the children. There is evidence however that the Child Support Agency has, at times attached to his tax refund and paid it to the wife to satisfy arrears in child support.
She does not receive any government benefits.
She has had exclusive occupation of the former matrimonial home since March 2012 and seeks to retain the property, where the children grew up. The wife states that she has the financial capacity to retain the former matrimonial home.
She seeks to continue in her role as the primary carer of the children.
She had not, as at May 2013, received any child support from the husband.
The wife set out her evidence as to the parties’ asset pool at the time of swearing her affidavit.
In relation to parenting issues, the wife asserts that she has been the primary carer for the children since she left the former matrimonial home in February 2010. She sets out her evidence as to housing, schooling, health, extracurricular activities. She also gave evidence about her concerns regarding the husband’s parenting and the current parenting arrangements.
In relation to housing, the wife seeks to retain occupation of the D property and to retain the primary care of the children. With respect to schooling, the wife states that the children attend D Primary School and her proposal is that they attend N High School (the parties both agree on that plan). In relation to supervision, the wife says that until February 2013 her sister, Ms R, collected the children from school but that since February 2013 she has had a nanny, Ms S, who assists in caring for the children in the afternoon. With respect to health, the wife asserts that the children attend a specific doctor at a family medical practice in Suburb C.
The wife gave evidence about the extracurricular activities which the children undertake and the logistics around how the children are taken to and from these activities.
The wife raised her concerns about the husband’s parenting and says that one of the biggest concerns she has is the children’s paternal uncle, Mr P. She asserts that john “has had a long history of drug (heroin) abuse” and that having him involved in the children’s lives is a “major concern” of hers. The wife also voiced her concerns about the husband taking the children with him while he is working, the husband’s mental health and the way in which, she says, he has involved the children in these proceedings.
In relation to the current interim parenting arrangements, the wife asserts that she has a number of concerns, including:
·They are difficult to implement.
·The children are irritable and tired on the Monday changeover.
·The children have been presented to her at changeovers in the same clothes that they were wearing the day before and have not had breakfast or been bathed.
·The children are often tired and, as their school demands increase, they will find it difficult to cope with the present arrangements.
·The husband does not have “an established support network”.
The wife asserts that she is able to provide a “more stable environment for the children” in terms of, inter alia, their daily routine, the logistics surrounding their schooling and extracurricular activities, preparing their meals and completing homework.
In relation to the Unifam “Parenting After Separation” course, which the parties were ordered to attend in July 2012, the wife deposes that she has complied with this order but to her knowledge the husband has not.
The affidavit of the wife sworn on 20 November 2013 sets out evidence of her post separation contributions to the welfare of the family and her post separation financial contributions. This evidence is an update to the post separation contributions set out in the wife’s first affidavit.
The wife asserts that, since May 2013, she has been solely responsible for paying for the children’s private health insurance (totalling $2,266.96) and extracurricular activities (totalling $4,802.25). She also asserts that she has paid $1,641.50 in school fees since that time.
In relation to the former matrimonial home, the wife asserts that, since May 2013, she has been solely responsible for the mortgage repayments (totalling $20,820) and for paying rates, levies and insurances (totalling $1,811.88).
As to her superannuation interests, the wife gives evidence that her interests in two superannuation funds have increased in value since separation in 2010.
In relation to child support, the wife asserts she has received two payments from the Child Support Agency, those payments being $2,014.68 on 28 May 2013 and $846 on 23 September 2013. Other than those payments, the wife says that she has “never received any financial support from the applicant on behalf of the children.”
The affidavit of Ms R filed on 5 May 2013 sets out the following evidence.
Ms R is the wife’s sister. She is a homemaker and lives about 15 minutes away from the wife. She asserts that she is “always available to assist [the wife] in looking after the children”. Ms R has five children, two of whom are, she says, “very close” to the subject children. She gives evidence that, following separation, the wife and children lived with her for some weeks. She also asserts that, in or about late 2011, she commenced assisting the wife in the care of K and L, initially by collecting K from school and by caring for L two days per week. Between 2011 and early 2013, she assisted the wife by caring for L on Mondays and Fridays, and by collecting K from school “on most days”. Ms R asserts that, since separation, the husband has been rude to her, called the wife inappropriate names and behaved aggressively. She deposes to a particular incident at the former matrimonial home in August 2010, when she says the husband’s brother Mr P was being “aggressive and threatening”. The police were called and she asserts that the husband and his brother blocked the driveway so that those present, including the police, could not leave. Ms R also gives evidence about comments the children have allegedly made to her about the husband saying negative things about the wife in their presence.
The affidavit of Ms H filed on 6 May 2013 set out the following evidence.
Ms H is also the wife’s sister. She works as a data entry operator for the same business as the wife and lives around one hour’s drive from the wife. Ms H has three children, two of whom, she says, have close or special bonds with K and L. She asserts that, since on or before separation, she has “observed unusual, erratic and aggressive behaviour” from the husband. Ms H says that, at around the time of separation, the wife told her that she was becoming scared of the husband. She also asserts that she has been present in the wife’s car and observed the husband “follow us”. Ms H gives evidence about an incident at the former matrimonial home in August 2010, during which she says the husband and his brother Mr P were “being aggressive”. She states that she has concerns about Mr P. She describes one occasion when she believed that Mr P was under the influence of drugs, and she deposes to other occasions when Mr P made late night phone calls to the husband at the former matrimonial home. Ms H asserts that the children have made comments to her about the husband saying negative things about the wife to them.
FAMILY REPORT
The Family Consultant, Ms T (“the Family Consultant”), prepared a Family Report on 17 December 2012 which was released to the parties on 21 January 2013. The Family Consultant conducted individual interviews with the husband, the wife, K and L in November 2012. She also made observations of each of the parents’ interactions with the children.
After setting out a brief background to the proceedings as at November 2012, the Family Consultant identified the key issue in this dispute as being with whom the children should live and how much time they should spend with the other parent. In addition, she identified the issues during the assessment to be:
·The husband’s mental health
·The nature of the children’s relationships with each parent
·Whether the child K’s views have been unduly influenced
·The nature of the parental relationship and their ability to effectively communicate
·Whether the children are exposed to harm in the husband’s care due to the paternal uncle’s drug history
The Family Consultant noted that the husband was raised by his mother following his parents’ separation when he was three years old. The husband told the Family Consultant that he has since had one brief (half an hour) encounter with his father when he was 18 years old. In relation to the wife and her upbringing, the Family Consultant noted that the wife said there was nothing to report.
The husband in his interview expressed a view that the wife has always been “overly involved in her career”. Despite having a nanny, he believes that he was the primary caregiver for the children prior to separation and the parent who “did ‘everything’ with the children”. He also told the Family Consultant that he believed the wife was “jealous of his relationship with the children.”
The husband said that he was diagnosed with depression following his separation from the wife. His view, however, is that he was not depressed but rather “upset and in shock”. As to his current state of mental health, the Family Consultant said:
He denied current depressive symptoms. He acknowledged that he experiences anxiety in relation to the court dispute. He denied other history of mental ill health.
The husband described communication between himself and the wife as being “hostile and difficult”. It was reported that he blames the wife for “gate keeping and preventing him from communicating with the children”.
The wife said in her interview with the Family Consultant that she does not see the husband “parent” the children but sees him as “the parent to whom the children go and do fun things.” She said that she does not feel reassured that the husband is mentally well or that he has been properly treated following his “break down”. While the wife said that she is not concerned about the children’s safety when in the husband’s care, she does have concerns about the paternal uncle and his alleged drug use; this includes a concern about the children “being around drug paraphernalia.” The wife said that she has told the children that her new partner is not a replacement for their dad.
The Family Consultant described in some depth her observations of the older child, K. While K was described as “outwardly assertive and outspoken” in the interview, the Family Consultant said that she became “visibly distressed” when talking about the effect of her parents’ separation on her. K said that she believed her parents could “share” her and L better, that the parenting arrangement can be confusing, and that it was easier when they had a nanny because she “knew what was going on”. K told the Family Consultant that she enjoys spending time with the husband, her paternal uncle (“Uncle …”) and her grandmother (“Grandma …”). It was noted that the events leading to separation remain a sad time for K, who said she misses her father.
The younger child, L, was described in the family report as “active and socially engaging” over the course of the day but “more reserved” during her interview, during which she spoke about activities she does with her parents. She indicated that she has fun with her father.
In terms of the observed interactions between the parents and the children, the Family Consultant wrote that the children’s interactions their mother were “appropriate and interactive”. It was noted that K and the husband “repeatedly kissed on the lips” and “engaged in a mutually intense stare as they hugged”, but that L “did not approach the husband and appeared somewhat bashful.” Later in the report, the Family Consultant stated that the husband and K had shown “an unusual display of affection”.
In the section headed “Evaluation”, the Family Consultant noted:
A pertinent issue in this matter is the children’s relationship and attachment to each parent. [The children] presented as delightful and friendly young girls who have a protective sibling relationship and enjoy spending time with each parent. The children would benefit from having both parents involved in all aspects of their daily life and it would promote their ongoing health and development if this was to be the case.
In relation to the husband’s concern about the wife’s alleged “emotional unavailability” towards the children, the Family Consultant said that, while the parents have different ways of displaying their affection and love towards the children, there is nothing to suggest that the wife does not meet their emotional needs.
With respect to K in particular, the Family Consultant said:
[K] appeared to be burdened by the parental separation as she struggles to come to terms with it. She is aware of the parental dispute and has not been protected from the adult issues. There is a concern about [K] becoming parentified in this situation as she presented an idealised perspective of her father and appears to be aligned with him.
Following her observations of L, the Family Consultant noted:
[L] appears to be a comparatively more resilient child as (sic) is most likely attributable to her young age at the time of separation. She does not have a recollection of memories of her parents living together and does not know any experience other than her current circumstances.
In relation to the wife’s concerns about the paternal uncle and his alleged drug use, the Family Consultant noted that there appeared to be little evidence before her to support the wife’s concerns. That said, the Family Consultant was of the view that the issue may need to be reconsidered if there is other evidence.
In relation to the husband, the Family Consultant said:
[The husband] obviously loves the children and misses them greatly. He feels that his time with the children has been significantly minimised and marginalised since the parental separation. This is particularly salient in relation to the children spending time with the maternal aunt rather than with him.
In relation to the wife, the Family Consultant said:
[The wife] continues to remain concerned about [the husband’s] mental health although she does not appear to have concerns about the children’s safety in their father’s care.
The Family Consultant assessed the wife to be the parent “most able to meet the children’s emotional, intellectual and practical needs”; this was owing to her stable long term job, her ability to financially support the children, and the support she has from family and friends. The Family Consultant said there was some concern about the husband’s ability to assist the children with homework as they progress at school.
The Family Consultant concluded that an equal time arrangement was contra-indicated in this case, but said as follows:
It is important for the children to spend significant time with their father, including some weekdays, to maintain a significant relationship with him and allow opportunities for him to partake in a range or normal activities with the children. It is essential that the time that [the husband] spends with the children includes routine as well as fun activities for the children.
In relation to the relationship between the wife and father, the Family Consultant described it as “quite adversarial and lacking in trust”. As to the husband’s desire to be reassured about the wife’s new partner, the Family Consultant described this as a “delicate issue” – that is, whether the husband is genuinely concerned about the children’s safety or wants to “interfere with and control her relationship.”
Overall, the recommendations of the Family Consultant were that the parents should have equal shared parental responsibility and that the children should live with the wife and spend time with the husband on the following basis:
Unless there is evidentiary material to suggest that [the husband] has current and ongoing mental health issues, it is recommended that the children spend time with the husband on a fortnightly cycle as follows: in week one from the conclusion of school Friday to the commencement of school Monday; and in week two from conclusion of school Thursday to commencement of school Friday.
Relevant Law
Legal principles
The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under s 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see s 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under s 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… 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.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
The above statement of law includes sections of the Act which were repealed by Act number 189 of 2011, however, those sections apply to this case as it was commenced before the amendments. In particular s 60CC(3)(c) and (k),
ss 60CC(4) and (4A) have been affected by the amendments.
evidence
In oral evidence the husband said that his mother was 80 years of age. She lives in the Northern Beaches area of Sydney. She attends at the husband’s house when he has the children so that she can supervise them on Monday morning before their mother collects them. She arrives either on Sunday night or in the early hours of Monday morning to fulfil that function.
Should the children be with the husband on a school day he proposes that he would deliver them to school at 8.30 a.m. He acknowledged that school classes do not commence until 9.20 a.m. He said that the children are supervised at school from 8.30 a.m.
The husband’s attention was drawn to paragraph 50 of the Family Report. In particular he was directed to the reported words of the child K that she would like her parents to “say Hi” to each other when they meet. He acknowledged he was aware of that statement. He was asked if he had tried to establish contact with the wife this year, to which he replied “no”.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
Each of the parties proposes in this case that the children will spend significant time with the other parent and also have telephone contact with the children on a weekly basis. Such availability in my view, when the rest of the evidence in this case is taken in to account, will provide the platform for the children to have a meaningful relationship with each parent.
(a)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This case is not one where any violence has been alleged to have been perpetrated on a child. Each has raised concern about the possibility of psychological abuse taking place while the children are in the other’s care.
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 only objective evidence of the views expressed by the children is found in the evidence of the Family Consultant. In relation to K the Family Consultant reports K expressed a view that the parents should share the children’s time equally. K expressed enjoying time with the husband and his family.
The child L is not reported as expressing any views. Given her age this is not surprising.
Although K is now 11 years of age, the weight which the Court could give to her views must be limited. I am prepared to accept that K likes to spend time with each of her parents. The Family Consultant was concerned that K was expressing views of the husband rather than her own views. The Family Consultant thought this may have its origin in K being concerned for her father’s wellbeing. Such concern can become problematic for K if it persists into the future according to the evidence of the Family Consultant. The Family Consultant said that K could be becoming parentified as she presented an idealised perspective of her father and appears to be aligned to him.
(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 Family Consultant assessed the children as having a good relationship with each of the parents. She said the children would benefit from having both parents involved in all aspects of their daily lives.
Although the wife failed to file an affidavit by her partner, she did give evidence of what she had observed of the relationship between the children and that person. She later had him give oral evidence in the hearing. I am satisfied the children have an appropriate relationship with the wife’s partner.
There was some evidence of the relationships between the children and members of each parent’s family. There is nothing in that evidence to raise any concern about any of those relationships. The wife expressed concerns about the children’s interaction with the husband’s brother as the husband acknowledged that his brother had been on a methadone program whilst recovering from heroin use.
(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;
Although the husband complained that there was a period of time between separation in February 2010 and 30 June 2010 when he was prevented from exercising time with the children, there was no complaint of moment about the provision of the children to him pursuant to the interim orders. He made complaint about some failures in relation to his phone time with the children.
(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;
This subject was focused upon by the wife who said the husband had not paid any child support of any significance for some time. Both parents seemed to agree that the husband currently enjoys a Child Support Assessment which requires him to pay NIL. He said that the parties had reached an agreement early in the separation which required each to financially support the children while they were in that parent’s care. He said there were a number of years where there was no Assessment. There then appears to be an Assessment by which the husband was required to contribute payments and failed to make the payments required. The Child Support Agency used its powers to attach two tax refund payments due to the husband and applied those sums against the husband’s liabilities. As best I could discern the Nil assessment arises from the wife’s very high income and the husband’s much lower income.
(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 changes to the children’s circumstances which would be of greatest moment is that proposed by the husband. He seeks to have orders made which share the children’s time equally between the parents. The wife seeks that the current arrangements, which operate pursuant to the orders of 30 June 2010, continue. I am satisfied that minor adjustments to those orders would have only a positive impact on the children as outlined by me with the parties during the hearing and the submissions in particular. Those changes would be to have the husband’s time with the children start and finish during school term at the children’s schools. Additionally, providing for the children to spend half school holiday times with the husband is likely to please them, especially K who is voicing a desire to spend more time with him.
(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;
In this case this is not a consideration. At this time the parties live reasonably close to each other. There does not appear to be any expense of concern in facilitating the children spending time with each parent.
(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;
Costs
Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely. Any applicant will have a further 7 days in which to file any submission or evidence in reply.
In the event that no application is filed within the time limit there will be no order as to costs.
I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 20 December 2013.
Associate:
Date: 20 December 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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