Rayhill & Rayhill
[2021] FamCA 459
•6 July 2021
FAMILY COURT OF AUSTRALIA
Rayhill & Rayhill [2021] FamCA 459
File number(s): LNC 687 of 2019 Judgment of: MCGUIRE J Date of judgment: 6 July 2021 Catchwords: FAMILY LAW – CHILDREN – Application by husband seeking orders to formalise an existing arrangement whereby he spends time with children week about – Application opposed by the wife – Where the wife alleges that the children were subjected or exposed to a risk of harm by reason of family violence in the care of the husband – Where the children have a meaningful relationship with both parents – Orders that children live with the wife and spend substantial time with the husband
FAMILY LAW – PROPERTY – Application by husband seeking orders that he receive 60 per cent of the parties’ net tangible assets and an equalisation of their superannuation entitlements – Application opposed by the wife – Where wife seeks a 50/50 per cent division of the tangible property pool – Where wife proposes a splitting order from her superannuation entitlements to the husband which would give her a greater than 50 per cent of the current joint superannuation entitlements of the parties and based on her superannuation post separation contributions in circumstances where she has continued in employment whereas the husband has not – Add-Backs – Orders made in circumstances where the court is satisfied it is just and equitable to do so whereas the husband receive 55 per cent of the net property and wife receive 45 per cent – Orders that husband receive 48.5 per cent of the parties total superannuation entitlements
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC(2) and (3) Cases cited: R & R Children’s Wishes (2000) FLC 93-000
H v W (1995) FLC 92-598
Galea v Galea (1990) 19 NSWLR 263
Jones v Dunkel (1959) 101 CLR 298
Aleksovski & Alekovski (1996) FLC 92-705
Stanford v Stanford (2012) 247 CLR 108
Phillips & Phillips (2002) FLC 93-104
Dickons & Dickons [2012] FamCAFC 154
Williams & Williams [2007] FamCA 313
Pierce & Pierce (1999) FLC 92-844
Jabour & Jabour (2019) FLC 93-898
Number of paragraphs: 130 Date of hearing: 13 & 16 April 2021 Place: Hobart Counsel for the Applicant: Mr Kitto Solicitor for the Applicant: James C Kitto Counsel for the Respondent: Ms Trezise Solicitor for the Respondent: Andrea Trezise Counsel for the Independent Children’s Lawyer: Mr Murray Solicitor for the Independent Children’s Lawyer: Murray & Associates ORDERS
LNC 687 of 2019 BETWEEN: MR RAYHILL
Applicant
AND: MS RAYHILL
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
PARENTING
1.The parents have equal shared parental responsibility for the children X born … 2007, Y born … 2009 and Z born … 2012 (‘the children’) provided that the wife have sole parental responsibility for all medical or psychological issues in respect of the children or any of them, provided that prior to making any appointment for the children or any of them with any medical practitioners or other health professionals, that the wife first advise the husband and consult with him as to the need for such appointment and then to prudently provide the husband with the names and addresses of such professionals and appropriate authorisation for the husband to meet with those professionals.
2.The children live with the wife.
3.The children spend time and communicate with the husband as follows:-
(i)During school terms fortnightly on Thursday from the conclusion of school (or 4.00pm if not a school day) until Monday at the commencement of school (or 5.00pm if a public holiday or a student free day), such to commence the second Thursday from the date of these orders;
(ii)For one half of each term school holiday being the first half of such holiday from the conclusion of school on the first Friday until 12.00 noon on the second Saturday;
(iii)On a week about basis during the summer school holidays with changeovers to take place on Fridays at 5.00pm and to commence on the first Friday of such holidays in 2021 and in each alternate year thereafter and commence on the second Friday 2022 and each alternate year thereafter;
(iv)At such other times including special days and variations of the above as agreed between the parties from time to time;
(v)The time between the children and the father fortnightly from Thursdays until Mondays be suspended during any period of school holidays;
(vi)By reasonable telephone or other media communication provided that the children have reasonable telephone or other media communication with the wife during their time with the husband; and
(vii)Changeovers for the children between the parents which do not occur at the children’s schools then take place outside the T Store or such other venue as agreed between the parties from time to time in writing.
4.Each of the parents be and are hereby restrained by themselves or their servants or agents from inflicting physical discipline/corporal punishment on the children or any of them.
5.Each of the parents be and are hereby restrained by themselves or their servants or agents from discussing the issues canvassed in these Court proceedings and/or providing the children with access to any of the documents filed in these proceedings, save and except for explaining the fact of the orders herein to the children and for these purposes IT IS REQUESTED that the Independent Children’s Lawyer meet with the children as soon as practicable after the handing down of these Reasons so as to explain the orders to the children.
6.The wife be given leave to provide a copy of the Family Report dated 22 March 2021 to any psychologist, therapist/counsellor engaged in respect of the children or any of them, provided that the contents of such report not be further disseminated.
7.That should the wife determine that the children or any of them require psychological counselling/therapy or similar intervention by any behavioural scientist, and conditional upon the wife’s compliance with these orders set out above, the parties be equally responsible for the costs of such consultations/therapy.
8.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 Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
9.Within twenty eight (28) days of the date of these orders the husband shall:-
(i)pay to the wife a lump sum of $319,651.65;
(ii)transfer and/or vest his right, title and interest to the following to the wife absolutely:-
(a)the property situate at B Street, C Town in Tasmania;
(b)the wife’s Company D shareholdings;
(c)the wife’s motor vehicle 1;
(d)the balances of all bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders;
(e)all personalty and chattels in the possession or under the control of the wife as of the date of these orders;
(f)the wife’s superannuation policy and entitlement with Super Fund 1 but subject to these orders.
(g)the motor vehicle 2 currently in the possession of the wife but registered in the name of the husband.
(iii)Be solely responsible for and indemnify the wife in respect of the following:-
(a)Any and all liabilities attaching to any of the assets retained by the husband pursuant to these orders including but not limited to CBA mortgage secured by the properties at 2 E Street, F Town and B Street, C Town both in Tasmania and for these purposes within twenty eight (28) days of the date of these orders the husband obtain a release for the wife from any liability under the said mortgage;
(b)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone.
10.That contemporaneously with the payment referred to in order 8(i) hereof, the wife shall:
(i)Transfer and/or vest all her right, title and interest in the following to the husband absolutely:-
(a)the property situate at 4 E Street, F Town in Tasmania;
(b)the property situate at 2 E Street, F Town in Tasmania;
(c) the balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders including any joint savings account held with the wife;
(d)
the husband’s motor vehicle 2;(e)all plant and equipment valued by G Valuers for the purposes of these orders;
(f)any and all livestock in the possession or control of the husband as at the date of these orders;
(g)all personalty and chattels in the possession of or under the control of the husband as at the date of these orders; and
(h)the husband’s superannuation policy and entitlement with Super Fund 1.
(ii)Be solely responsible for and indemnify the husband in respect of the following:-
(a)any and all liabilities attaching to any of the assets retained by the wife pursuant to these orders;
(b)any and all liabilities incurred by the wife since separation in either joint names or the wife’s sole name.
11.That within twenty eight days (28) days of the Capital Gains Tax (“GST”) liability being struck in respect of the sale of the property at H Street, J Town, New South Wales the husband shall:
(a)Pay the CGT liability; and
(b)Provide the wife with documentary evidence as to the CGT liability and payment of that liability.
12.That within a further twenty one (21) days the husband and wife shall reconcile the payment of the CGT liability referred to in these Orders and in accordance with the percentage distribution of the tangible property pool.
13.That paragraphs 12 to 17 (inclusive) of this Order are binding on the Trustee of Super Fund 1, member number 711861428 (‘the Fund’) and it is declared that this Orders is made in accordance with s 90XT (1)(a) of the Family Law Act 1975 (Cth).
14.That pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) the base amount allocated to the husband Mr Rayhill (‘the husband’) out of the interest of the wife Ms Rayhill (‘the wife’) in the fund is $160,451.85 (‘the base amount’).
15.That in accordance with s 90XT (1)(a) of the Family Law Act 1975 (Cth) whenever the Trustee of the Fund makes a splittable payment from the interest of the wife in the fund the husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (‘the Regulations’) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
16.That this Order have effect from the operative time and the operative time is the fourth (4th) business day after the day on which the final sealed Orders are served upon the Trustee.
17.That until the Trustee of the Fund have effected the splittable payment in favour of the husband pursuant to Order 14 herein the Trustee of the said Fund, the wife, her personal representatives or any other persons acting on her or their behalf be and are hereby restrained from disposing of all or any amount payable to the wife and/or her personal representatives received by or held in trust for the benefit of her or them.
18.That a sealed copy of these Orders be served by the solicitors for the husband upon the Trustees of the fund within fourteen (14) days of the date of this order.
19.That pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rayhill & Rayhill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
These are both parenting and property proceedings. The husband Mr Rayhill (‘the husband’) is the applicant in an application filed on 19 September 2019. The wife Ms Rayhill (‘the wife’) is the respondent in the proceedings. There are three children of the parties’ relationship being, X born in 2007 (aged 13 years), Y born in 2009 (aged 11 years) and Z born in 2012 (aged 9 years) (‘collectively the children’).
The husband seeks an order that the children live in a week about arrangement between the parents which is a continuation of the status quo which has operated under interim orders since December 2019. At the time of interviews for a family report in late February 2021 the husband’s position was that the children should live with him during all week days and with the wife on all weekends. He has since moved from that position.
The wife’s position as at the interviews for the family report in February 2021 was that the children live with her and spend five nights per fortnight with the husband. In her case summary document for this trial, the wife’s position had moved to the children spending three nights per fortnight during school terms with the father being fortnightly from Friday afternoon until Monday morning. The wife then moved to a position of four nights per fortnight for the children with the father and by the time of cross-examination by the Independent Children’s Lawyer she was again conceding that the children should live five nights per fortnight with the father. At all times the wife has advocated orders that equalise the children’s time with the parents during school holidays.
The husband argues for orders that he receive 60 per cent of the parties’ net tangible assets and an equalisation of their superannuation entitlements. He argues for loadings on account of superior contributions and for s 75(2) of the Family Law Act 1975 (Cth) (‘the Act) factors which he says favour him.
The wife, herself, initially sought a 60 per cent distribution of the property pool in her favour. She now argues a 50/50 per cent division of the tangible property pool. Her case summary document proposes a splitting order from her superannuation entitlements to the husband of $150,000 which would give her greater than 50 per cent of the current joint superannuation entitlements of the parties and based on her superior post separation contributions where she has continued in employment whereas the husband has not.
BACKGROUND
The husband is 52 years of age and the wife is 44 years.
The parties commenced a relationship in November 1998 and commenced cohabitation in June 1999. They married in 2006 and separated on 13 June 2019.
At separation the wife removed herself and the children from the parties’ home in Tasmania and went for a week or so to family in New South Wales. She then retained possession of the children, but permitted upon her return for the children to spend time with the husband for a couple of hours one day per weekend conditional upon the wife supervising such time.
The husband brought an initiating application in September 2019 and an interim hearing conducted in December 2019 resulted in consent orders for the children to live in an equal time arrangement between the parents.
The husband is tradesman, but has not worked in his trade substantially since approximately 2009. The evidence is that the husband lost his employment due to circumstances arising from the global financial crisis. The parties then agreed that the wife would continue in the workforce in her profession and that the husband would assume a ‘house husband’ role. This continued until the parties’ separation in June 2019.
In December 2004 the parties relocated from New South Wales to live in Tasmania.
In September 2015 the wife moved with her employment to S Town, in the Northern Territory. The family also moved within a couple of months.
In February 2016 the Northern Territory Child Protection Authorities intervened with this family alleging that the husband had assaulted the children, X and Y. The children were removed and placed in foster care for approximately three months. Criminal charges were brought against the husband. The matters eventually resolved with the children being returned to the parties and both the criminal and Child Protection applications were eventually resolved on Undertakings.
The family returned from the Northern Territory to Tasmania in November 2018.
The parties separated in June 2019 and a divorce order was granted on the wife’s application in July 2020.
An order was made for a family report with interviews taking place on 24 February 2021. The report was released on 22 March 2021.
The wife now lives in rented accommodation at K Town in Tasmania. She has had possession of the parties’ property at C Town in Tasmania, but has commenced and not yet finished renovations to that property which has remained vacant effectively since separation. The husband remains resident in and has possession of the parties’ other two properties at F Town in Tasmania.
The wife asserts that the husband has re-partnered with Ms L. The husband denies that this is the case and says that he and Ms L share his home in a platonic relationship. Ms L did not provide an affidavit and was not called to give evidence by either party in these proceedings.
There is no evidence before me that the wife has re-partnered in any sense of support or dependency.
PARENTING – ISSUES
There are issues between the parties as to:
· The veracity and voluntariness of the children’s preferences as to their living and parenting arrangements;
· The wife raises issues about the parenting capacity of the husband and in particular in respect to his insight and commitment to attending to the children’s medical issues;
· A question generally as to whether the children’s best interests are served by a continuation of an equal time arrangement between the parents where practicality is not an issue, but where the parents arguably bring different parenting styles and role models;
· Issues of family violence raised historically and, on the wife’s case, more recently, with reference generally to the husband’s propensity for family violence and for corporal punishment, but in circumstances where the wife herself concedes that she has previously utilised corporal punishment; and
· The relationship between the parents themselves including their mutual criticism and antagonism together with a lack of communication and positive co-operation in respect of parenting the children.
RELEVANT LAW - CHILDREN
Section 60CA of the Act provides that I am to have the best interests of X, Y and Z as my paramount consideration in determining their living and parenting arrangements. I determine those best interests by referencing the parties’ proposals and the probative evidence to the numerous primary and additional considerations in s 60CC(2) and (3) of the Act against a context of s 60B which sets out the objects and principles of the legislation as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The factors under ss 60CC(2) and (3) are more pragmatic in their referencing and operation and include matters such as the children’s views; the nature of the relationship of the children with their parents; issues of family violence; the capacity of the parents to attend to the children’s needs; and the attitude to the responsibilities of parenting.
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children. That concept is usually defined in practical terms as the obligations of parents to make important long term decisions for their children in matters such as education, religion, medical procedure and the like and to be contrasted to the usual more mundane day-to-day decisions that parents habitually make for their children.
The presumption of equal shared parental responsibility does not apply if the Court is satisfied that the children have been exposed to family violence or abuse. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the children’s best interest for the parents to exercise equal shared parental responsibility.
In the matter now before me, both parents and the Independent Children’s Lawyer (‘ICL’) join in asking me to make orders for equal shared parental responsibility, but in the case of the ICL and the wife, that the wife ultimately have the responsibility for making decisions of a medical therapeutic nature subject to first putting the husband on notice to her proposals.
The significance of the presumption of equal shared parental responsibility or same being ordered is that the Court is then required to enter into a statutory and intellectual pathway of consideration being firstly, as to whether the children spending equal time between their parents is both in the children’s best interests and reasonability practicable. If the answer to either of those questions is in the negative then the Court turns to consider whether the children spending ‘substantial and significant time’ between their parents is both in the children’s best interests and reasonably practicable. ‘Substantial and significant time’ is defined in s 65DAA(3) of the Act as including time for children with a parent on both weekends and week days and time which allows children and parents to be mutually involved in each other’s activities. Relevantly, the husband argues for orders for equal time for the children between the parents, whereas the wife argues for orders fitting the definition of substantial and significant time.
THE EVIDENCE – PARENTING
Both parents gave evidence by affidavit and were cross-examined extensively, including by the ICL. Notably, the husband did not adduce evidence from either Ms L who is a resident in his home with the children and, according to him, plays some role in the children’s day to day lives. Nor did he adduce evidence from his mother who has been resident in his home since December 2020 and who also plays a role with the children. Significantly, the wife raises issues in her affidavit alleging that the husband’s domestic violence propensity has extended to assault on his own mother (the paternal grandmother). The husband did not call his mother to rebut that evidence, in a matter where the husband’s propensity for family violence of physical, emotional and coercive type is prominently at issue.
The wife adduced evidence in affidavits from Mr and Ms M. They are leaders at her church. They are predictably positive and complimentary of the wife and her interaction with the children. Their evidence is otherwise of limited probity.
The wife also adduced evidence from Ms N. Ms N’s affidavit was sworn 3 March 2021. She is a member of the wife’s church and is also complimentary of the wife’s parenting.
I had the opportunity to observe the husband be cross-examined for well over one day. In many ways he was not an impressive witness. His demeanour was, at times, difficult to understand. He presented as a strong and assertive personality with a commanding presence, but at times appeared detached, self-deprecating, or even disinterested as for instance repeatedly simply stating in a resigned fashion that he would accept the advice of any qualified person in respect of his children although seemingly, at the same time having little acceptance of the need for such advice. I shared the impression of the husband as observed by the Family Consultant at [28] as follows:
[The husband] aged 52 years appeared a confident man with a large presence and a loud voice. [The husband] did not too (sic) directly answer questions even when asked several times in different ways. [The husband] was repetitive and displayed unrefined thinking and behaviour. Upon the Family Consultant starting the teams meeting, [the husband] was unable to see the Family Consultant but could be seen pretending to snort something while his female companion was setting up the teams meeting, presumably as a joke. [The husband] further displayed what appeared to be obstructive behaviour during the interview, refusing to give information, grandstanding and engaging in other behaviours such as purposeful ambiguity and mocking when passing on information. The Family Consultant had to explain the purpose of obtaining information such as knowing the impact of [Ms L’s] employment on household routines before [the husband] would provide the information. [The husband] continuously referred to [the wife] as “my now ex-wife” or my “wife” and only referred her to (sic) by name once or twice throughout the interview.
The husband frequently prevaricated in his responses in cross-examination. He gave long rambling responses whilst deflecting from the question. Overall, his demeanour appeared to be affected rather than natural although his motivation for being so escapes me. I did, however, detect residual strong anger and perhaps ongoing grief from the demise of his marriage which, on the evidence, was not at his instigation.
In Court, the wife was a far more impressive witness than the husband. She was open and candid in her responses. She appeared child focused. Overall she seems to have moved on further than the husband from the marriage breakdown. Nevertheless, her evidence overall is also problematic. The wife conceded being deliberately dishonest to a Court appointed psychologist during the Northern Territory proceedings in relation to Child Protection matters regarding the children. The wife’s affidavit material was also shown by cross-examination to be misleading or indeed factually incorrect in a number of instances. Consequently, the possibility of her evidence being selective and catered towards her own ends remains a distinct one.
THE FAMILY REPORT
The Court had the great benefit of having a family report prepared by Ms P, Family Consultant (‘the Family Consultant’) and dated 22 March 2021. The report was prepared after interviews and observations with the parties and the children in February 2021. The Family Consultant gave evidence and was cross-examined. The Family Consultant’s recommendations, adhered to by her in her evidence in Court, are set out at [112] of the report and following thus:
112.It is recommended that the parents share parental responsibility but that [the wife] be given permission to engage all three children in therapeutic intervention as she deems necessary.
113.It is recommended that should there be no other new information to the contrary and (sic) [X,] [Y] and [Z] live with (sic) in an equal time, week about arrangement between [the wife] and [the husband].
114.It is recommended an order ensuring no physical discipline of the children by either parent be put in place.
115.It is recommended an order preventing discussion of the court proceedings with the children be put in place.
116.It is recommended that [X] be engaged in therapeutic intervention with a service such as the Australian Childhood Foundation or Headspace.
117.It is recommended that [Y] is engaged in an educational program designed to assist her in articulating emotion such as Inside Out 4 Kids.
118.It is recommended that [Z] undergo a psychological assessment to determine any attachment or functioning issues and then engage in any therapeutic treatment recommended in the assessment.
119.It is recommended that both parents engage in a Post Separation Parenting Program and consider the use of a parenting app to ensure necessary communication between them takes place.
120.It is recommended [the husband] engage in a program such as the Caring Dads Program to support his future behaviour and approach to parenting and relationships.
121.It is recommended that [the wife] engage in therapeutic supports to assist her in managing her experiences of the relationship and co-parenting of the children.
122.It is recommended that school holiday time and special occasion time be shared. It is considered that additional school holiday time during the summer holidays for both parents allow for regular travel to New South Wales.
The Family Consultant’s recommendations are supported by her conclusions at [111] where she says:
It is considered that given the week on, week off arrangement is currently not having a significant detrimental impact on the children, it should be maintained. The children would likely be better supported in this arrangement if they are supported therapeutically to ensure there emotional wellbeing and development of their emotional intelligence. …
The Family Consultant recognises the thrust of the wife’s argument for primary care of the children at [110] where she observes:
[The wife’s] proposal that the children spend five days with [the husband] and the other nine with her appears to have value in terms of mitigating the possible future impacts of [the husband’s] authoritarian parenting style on the children. It would also reduce the impact of [the husband’s] negative views towards [the wife] and allow the children to have a broader experience of relationships and parenting. [X] in particular is likely to benefit from the more consistent more emotionally attuned approach to parenting than appears to be provided by his mother which helps him understand his experiences of ADHD as well as past history of abuse. …
Further at [109] the Family Consultant notes issues with the husband’s proposals when she says:
[The husband’s] proposal that he provide care during the school week and [the wife] have the children on weekends appears designed to minimise [the wife’s] role in the children’s life and allow [the husband] to retain control over the children’s broader development.
… [The husband’s] parenting style appears to be based on his own traditional values rather than an understanding of child development and relationships or of the children’s individual needs.
Significantly in a matter where the Court is to determine whether or not the children’s best interests are served by an equal time arrangement, the Family Consultant recognises at [108]:
[The wife’s] allegations of current psychological abuse and control of the children by [The husband] is concerning. While there may not be significant evidence of this risk; the observation confirmed that the children do act significantly differently in [the husband’s] care and the two eldest children’s interviews raised concerns. [The husband] does have a strong presence and a concrete view about how the children should be raised and behave. Parents with a pattern of coercive control in family violence behaviour can have an authoritarian parenting style, be intolerant and struggle with managing age appropriate behaviours and boundaries as well as providing responsive parenting. They can also present as undermining of the children’s other parental and significant relationships. It is likely that [the husband] does have this style of parenting and that as the children age if their interests or behaviours deviate out of [the husband’s] expectations he may struggle with parenting them. This does not appear to prevent [the husband] having an affectionate relationship with the children however undermines their ability to have a deeper emotional connection with him. …
The Family Consultant notes the mutual allegations of family violence including of the physical, controlling and coercive type.[1] The Family Consultant had the advantage of interviewing the children and observing them with each of the parents. She describes Y as presenting well in terms of her self-esteem and confidence and that she appeared to be thriving in the current care arrangement and in her schooling. It was evident to the Family Consultant that Y may have been inappropriately involved in the adult disputes currently before this Court and may be favoured in the father’s household over the boys therefore giving Y a form of alignment with her father and also a sense of being the ‘mother’ or ‘female’ role model in the father’s home.
[1] Paragraph [105] of the family report 23 March 2021.
The husband denied favouring Y or indeed permitting her to assume any such roles in his household.
The Family Consultant described X as presenting as an immature 13 year old and lacking self-confidence. She notes that X has previously experienced physical abuse at least in the circumstances of him being removed from the family unit by the Northern Territory Child Protection Authorities in 2016. X also suffers a diagnosis of ADHD and is prescribed Ritalin. The Family Consultant senses from X’s demeanour aspects of anxiety, and social isolation.
The Family Consultant reported X as being somewhat ambivalent to and accepting of the current family arrangements and dynamics.[2] Y appeared more effusive than her older brother but reported the current regime as ‘fair’ but that she would miss one or other of the parents if one become her primary carer. Z at 8 years of age did not engage with the Family Consultant and the evidence is that he was similarly unengaging of the ICL.
[2] Paragraph [67] ibid.
At [102] of the family report the Family Consultant evaluates the children as follows:
All three children presented as well presented and well cared for. Both [X] and [Y] engaged well with the family consultant however both children gave the impression of being used to interviews and presenting themselves to adults in a particular manner, their presentation was suggestive that they may not feel comfortable to openly share their feelings. [X] and [Y] reported as managing well at school, they have their own particular interests and a number of friends. They both naturally reported feeling that the current arrangements are suiting them, however from the children’s manner it appears likely that were this (sic) not the case, the children would be reluctant to be honest about these feelings. [Z’s] behaviour and presentation appeared unusual and suggestive that he was also attempting to conceal his feelings and was overwhelmed by the situation. It was not possible to fully assess [Z] given his unprovoked anger towards the Family Consultant however given the likely trauma base to his behaviour it would appear he would benefit from a psychological assessment and then any recommended therapeutic input.
Despite the concerning issues set out above from her report and confirmed in her evidence in Court, the Family Consultant concludes that a continuation of the equal time arrangement which has run since December 2019 should be ordered. She rationalised this recommendation in Court as firstly, being consistent with the children’s views and secondly, given its apparent success for the children despite what are obviously her concerns as to the father’s propensity for violence and his authoritarian parenting style together with a lack of openness from the children. In her report and in Court, the Family Consultant also suggested that any orders placing the children into the primary care of the wife may ultimately be problematic and at [110] she says:
… However [the husband] may struggle to tolerate any arrangement that places [the wife] in the position as primary carer given his self-identification as such, and his possible responses to such a situation to rebalance a changed power dynamic would likely undermined the benefits of any increased time with [the wife].
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both of the children’s parents;
The children currently live in a week about arrangement between their parents albeit with many differences in parenting personalities and in parenting style. Their relationships with each of the parents are well established. The question for the Court is whether those relationships are ‘successful’ or ‘meaningful’ to their full extent?
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to or exposes to, abuse, neglect or family violence;
Amendments to the Act stipulate that the Court is to place ‘greater weight’ on this consideration. In the matter now before me, these issues assume significant consideration and importance. The wife alleges that the husband has a propensity for violence, anger management issues and an authoritarian parenting style. The wife says that the husband continues to hold and display negative views towards her and expose the children to those views. She says that the children have historically been subjected to excessive discipline including assaults by the husband and that the same have continued. In her trial affidavit at [58] –[61] the wife deposes:
[58]I am concerned that the boys, particularly [X] and [Z] continue to be subject to physical discipline in [the husband’s] home.
[59]On 15 December 2020 the children were returned to me after time with their father. [X] had a clear hand slap mark /bruise on his leg. Annexed and marked with the letter “K” is a photograph I took of the injury. None of the children could provide any explanation as to what had occurred.
[60][Y] has often said to me that nobody is able to hit the boys in her father’s home other than her. [Y] said she is allowed to discipline the boys.
[61]I am concerned that the bruise that I saw on [X’s] leg on 15 December 2020 appeared to be a bruise left by a hit from a female hand.
Although the wife concedes that corporal punishment was common in the household up to the removal of the children by Child Protection, Northern Territory in 2016, the tenor of her evidence is also that she herself was subject to physical, emotional, coercive and/or controlling family violence at the hands of the husband.
The wife’s affidavit at [47] further deposes:
On 21 March 2021, the children returned to me from spending time with [the husbane] with the youngest child [Z], telling me ‘dad hit me across the side of the head’. As I responded that that was not an appropriate thing to do [Y] stated ‘good one, [Z]’. Now she will tell her lawyer. [The husband] has denied that he has hit [Z].
In her trial affidavit at [32] the wife deposes:
My marriage with [the husband], for most of its duration, very difficult. [The husband] is a very strong, domineering and controlling person. The children and I were subject to family violence by [the husband] on almost a daily basis. I felt too intimidated and under his control to be able to stop his behaviour. [The husband] was also verbally and emotionally demeaning of me throughout our marriage.
The husband concedes that he has previously used corporal punishment on the children. He denies that this continues. He denies family violence of any type towards the wife. He says that he has completed courses and programs aimed at improving his insight, understanding and practice of parenting and disciplining the children. He has completed a Parenting Orders Program. He has attended six counselling sessions with Q Services. He has enrolled in a Caring Dads Program.
The family report deals with the allegations of family violence in its broad definition and notes at [19]–[20] the following:
[19][The wife’s] allegations that [the husband] was physically abusing, controlling, intimidating and demeaning toward her throughout their relationship.
[20][The husband’s] allegations that [the wife] was controlling of household finances and there was (sic) aspects of coercive and controlling behaviour perpetrated towards him.
At [32] the Family Consultant reports … [the husband] ‘now understands as [the wife] exerting a lengthy campaign of coercive control over him.’ [The husband] also reports [the wife] being ‘verbally abusive’ to him.
The Family Consultant in her report observes [the wife] to be of a quiet demeanour and presenting as reasoned and thoughtful in her responses but appeared ‘meek in her manner and passive in her tone/way of speaking’.[3]
[3] Paragraph [41] the family report 23 March 2021.
At [44] of the report the Family Consultant states:
[44][The wife] reported that the relationship was marred by Family Violence, initially physical but that overtime he exerted psychological control of her to the point she views herself as being “brainwashed”. [The wife] reported that [The husband] would push her against walls, hold her by the neck, slap and whack her. [The wife] reported at work she would be hiding marks and ‘made herself small’ so no one noticed her. [The wife] indicated that (sic) night before X’s (sic) birth there was an incident where [the husband] physically held her on the floor holding her down by the shoulders and yelled in her face resulting in her waters breaking. [The wife] reported that when [X] was a newborn she locked herself in the bathroom to hide from [the husband] and he broke the bolt to open the door. [The wife] reported at this point she considered leaving [the husband] even though [X] was very small. [The wife] indicated that [the husband] made her believe that she couldn’t leave, as she had no support network and he told her no one would believe her about the family violence. [The wife] reported that overtime her self-esteem was reduced to the point where she no longer considered leaving.
[45][The wife] reported that [the husband] would imply that she was weak, belittle her in front of his friends, force her to apologise, threaten her to comply sexually and denigrate her in all areas of her life professionally, sexually and as a mother.
…
[The wife] reported that [the husband] needed to know where she was at all times and would question her if she came home late.
…
[The wife] indicated that before they left her and the children ‘walked on eggshells’.... [The wife] reported she was constantly bullied about the way that she did things, to the point where [X] would join in.
…
[46][The wife] reported [X] has also been subject to physical abuse by the husband there was “many instances” across [X’s] life. [The wife gave an example of when [X] was in a highchair, [the husband] pushing his face into his food then pulling him up by the hair resulting in [X’s] hair coming out. [The wife] also re-counted an incident in the Northern Territory where [X] sustained a split lip and facial bruise trying to avoid being hit by [the husband]. [The wife] reported that prior to them leaving [the husband], he would take [X] into another room to discipline him so [the wife] could not see what he was doing. [The wife] reported the way [X] has been treated means the he “blames himself” for everything and believes that he is a “bad person”. [The wife] reported as a result she has to manage his discipline very carefully and show him unconditional love.
At [58] of the family report, the Family Consultant reported thus:
[The wife] has made allegations that [the husband] is violent to his mother whom he currently resides with. [The wife] also believes that [the husband] is also in some intimate relationship with [Ms L] despite his assertion she is just co-habiting with him. [The husband] has strenuously denied being violent towards his mother.
On an evidentiary basis it is notable that, although the husband’s mother continues to reside with him in Northern Tasmania, she did not provide an affidavit or give evidence to corroborate his denials such being put to his notice as long ago as the family report. Similarly, the husband did not call evidence from Ms L who continues to live in his home.
None of the children gave any direct evidence to the Family Consultant of being subjected to physical violence at the hands of the husband. The demeanour of each of the children, however, and in different ways, was of concern to the Family Consultant. The youngest child, Z, rejected any attempts at engagement with the Family Consultant. At [102] the family consultant opines:
[102]… [X] and [Y] engaged well with the Family Consultant however, both children gave the impression of being used to interviews and presenting themselves to adults in a particular manner. Their presentation was suggestive that they would not feel comfortable to openly share their feelings. [X] and [Y] reported managing well at school, have their own particular interests and a number of friends. They both naturally reported that the current arrangements are suiting them, however from the children’s manner it appears likely that were this not the case, the children would be reluctant to be honest about these feelings. [Z’s] behaviour and presentation appeared unusual and suggestive that he was also attempting to conceal his feelings and was overwhelmed by the situation. …
[103]X present as an immature 13 year old and who is lacking self-confidence. …
Y was observed with presenting well in terms of her self-esteem and confidence. The family consultant was concerned however, with Y’s effusiveness about her father, but gave the Family Consultant the impression of being involved in or overhearing adult conversations in relation to views about her mother’s (the wife’s) parenting.
In her conclusion as to family violence, the Family Consultant at [105] opines:
[The wife’s] allegations of physically abusive and controlling behaviour by [the husband] is suggestive of a coercive, controlling dynamic. [The husband] was unable to give enough detail in relation to his allegations about [the wife] to suggest the same. Rather [the husband] appears to have reported financially abusive behaviour by [the wife] towards him. While there is limited evidence to support [the wife’s] account of the nature of the relationship there are aspects of [the wife’s] situation that could be consistent with understood patterns of coercive and controlling family violence, including the age difference of [the husband] and [the wife] at the time of the relationship commencement, the geographical isolation of their family networks and [the husband’s] use of physical discipline on the children. Also [the husband’s] presentation and behaviour in the interview with the Family Consultant appeared suggestive of controlling behaviour and attitude issues were also noted by Territories NT. Exposure to one of their parents seeking to control the other through manipulation or aggression can impact on children’s emotional development, their understanding of relationships and their feelings of safety and wellbeing.
Section 60CC(3)(a) any views expressed by the children and the weight to be accorded those views given their ages and levels of maturity;
Although 8 years of age at the time of the family report interviews, the youngest child, Z did not engage in any way with the Family Consultant and hence did not provide any views as to his living and parenting arrangements. This reluctance is of itself concerning as to this young boy’s mental health. X and Y both stated a preference for continuing the existing week-about arrangement. The question for the Court however, is as to the veracity of those stated preferences in circumstances were the Family Consultant maintains concerns as to the husband’s coercive and controlling personality. I refer again to [102] of the family report detailed above. The 13 year old, X is described as lacking self-confidence. He also suffers a diagnosis of ADHD and has previously experienced physical abuse which the Family Consultant says may have long lasting effects on his mental health including issues of anxiety, social isolation, anti-social behaviour and impact on cognitive development all of which may be factors impacting on the veracity of his views and preferences. Further, at [104] the Family Consultant suggests Y, with higher self-esteem and self-confidence, may be favoured in the husband’s household and with a consequent blurred hierarchy where she may be involved in the discipline of her brothers. Significantly, the Family Consultant recommends courses of therapeutic intervention and/or psychological assessment for all three children.
Section 60CC(3)(b) the nature of the relationship of the children with each of their parents;
X and Y were both reported as being positive in respect of each of their parents. They were observed as being relaxed, comfortable and happy in the company of the wife and similarly with the husband.
The Family Consultant harbours some views, shared by the wife, that the relationship between the husband and Y may have blurred hierarchical boundaries with Y being favoured in the husband’s household and also assuming some adult female role model attitudes and functions. The Family Consultant’s observations and opinions at [108] are pertinent:
[The wife’s] allegations of current psychological abuse and control of the children by [the husband] are concerning. While there may not be significant evidence of this risk: the observations confirmed that the children do act significantly differently in [the husband’s] care and the two eldest children’s interviews raised concerns. [The husband] does have a strong presence and a concrete view about how the children should be raised and behave. Parents with a pattern of coercive, controlling family violence behaviours can have an authoritarian parenting style, be intolerant and struggle in managing age appropriate behaviours and boundaries as well as provide responsive parenting. They can also present as undermining of the children’s other parental and significant relationships. It appears likely [the husband] does have this style of parenting and as the children’s age if there interests or behaviours deviate out of [the husband’s] expectations he may struggle with parenting. This does not appear to prevent [the husband] having an affectionate relationship with the children however undermines their ability to have a deeper emotional connection with him. It would be of benefit were [the husband] to attend a parenting program more engaged in therapy designed to develop his understanding of healthy relationships and increase his attunement to the children. The Caring Dads Program may be an appropriate form of support.
Section 60CC(3)(c) the extent to which the children’s parents have taken, or failed to take, the opportunity in making decisions about long term issues in relation to the children and to spend time and communicate with the children and the extent to which each of the children’s parents has fulfilled or failed to fulfil the parents obligations to maintain the children;
For reasons that were not explored in evidence, and where the husband is not employed but the wife is in full time remunerative employment, the wife does not appear to be assessed to contribute child support. I assume, therefore, there is a tacit agreement between the parents that each will financially support the children during the week that the children are in that parent’s care.
There are residual concerns, particularly with the husband, in respect of some long term issues for the children. Specifically, there has been inconsistency in the provision of Ritolin for X. The wife at one stage provided a text or email and then sent the medication box setting out the dosage. The husband says he did not receive the medication box, but for some unknown reason did not pursue this with the wife. The husband appears to leave the administration of the medication to X himself and the husband’s evidence in Court in respect of this issue was blasé and at times almost disinterested. Generally, the husband gave emotionless responses along the lines of boldly accepting any advice in respect of the children and again showing an air of indifference and detachment. I remain unsure as to whether this demeanour in the witness box was natural or affected? This seems to have resulted in X taking different dosages in each household for a period.
On the evidence before me the wife appears to have been far more engaged in matters of the children’s long term needs including X’s diagnosis of ADHD.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children from any separation from either of their parents;
Superficially the indications are that the children are settled in and content with the week-about arrangements between their parents. The Family Consultant has concerns in respect of the husband’s response should the children be moved to live primarily with the wife. She says that the husband may struggle to ‘tolerate’ any arrangement which places the wife in the position of primary carer given his self-identification with this role and that ‘possible responses to such a situation to rebalance a change to power dynamic would likely undermine the benefits of any increased time with Ms Rayhill.[4] Whilst in the witness box the husband showed something of a detached attitude to the proceedings generally and an almost resignation as to any result, the Court is mindful of the concerns of the Family Consultant in respect of the husband’s alleged history of coercive and controlling behaviour and hence any reactions to orders that do not accommodate his ambitions.
[4] Paragraph [110] the family report 23 March 2021.
On another level, the changes in the children’s circumstances contemplated by the wife’s application would be minimal. The children would still spend frequent and substantial time with their father. They would still go to school at times from their father’s home. However, the change contemplated by the wife’s application would be more than a subtle one for these children where it would provide them with an understanding of a home base and a primary parent in circumstances where they currently live equally between their parents, but where those parents are significantly different in attitude, personality and parenting style together with being almost functionally non-communicative and non-coperative.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time and communicating with a parent;
This consideration is not relevant here.
Section 60CC(3)(f) the capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs;
Both parents provide adequately for the physical needs of the children, although I note that the wife is in a superior financial position having employment as a professional whereas the husband has not and does not seem to be pursuing employment in his trade as an electrician. On the face of it, it would seem that the wife is able to provide in a superior way to the children’s financial needs than is the husband.
I maintain some concerns, after the taking of evidence, in respect to the husband’s commitment and insight into some important factors for these children and specifically their medical needs. X suffers a diagnosis of ADHD. He is prescribed Ritalin. The husband says that he effectively delegates the administration of the medication to X himself which may or may not be reasonable for a 13 year old. Of equal concern, is the husband’s attitude and lack of willingness to communicate with the wife in respect of medical matters. I repeat that the wife sent the husband a message stating that she was enclosing the medication box and hence of the dosage of the medication to be administered to X. The husband said he did not receive the box. Significantly, having received the message he did not pursue this with the wife. This has resulted, at least for a period, in X taking different dosages of his medication in the husband’s home than he does in the wife’s home. Whilst there does not appear to have been any detriment on this occasion to X, such issues could be of considerable impact. Again, the husband’s demeanour and attitude in the witness box when confronted with such a potentially dangerous situation for his son was one of the abject disinterest.
Further, should there be continued corporal punishment and/or anger management issues in the husband’s household then, as identified by the Family Consultant, this could have a significant effect on the psychological and emotional welfare of the children. The understanding, insight and capacity of the husband therefore to refrain from this form of discipline is a consideration here in circumstance where the wife maintains that the children present to her on returning from the husband with evidence of continuing corporal punishment.
Section 60CC(3)(g) the maturity, sex, lifestyle and background of the children and each of the children’s parents;
This consideration is not specifically relevant and is dealt with in other considerations.
Section 60CC(3)(h) if the children are Aboriginal or Torres Strait Islander;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents;
These parents received in 2016 what I assume was a confronting reality as to parenting behaviours. The children were removed from their parents care for some months by the Child Protection Authorities in the Northern Territory. Whilst both parents admit a degree of culpability in these events, the question for the Court is whether there has been a material and insightful change in each of their attitudes towards the discipline of the children and in addressing their psychological and emotional needs as noted by the Family Consultant?
The evidence generally and the husband’s demeanour in the witness box leaves me with considerable concerns as to his attitude in respect of the wife and hence it’s impact on the parenting of these three children. Casual comments made by the husband in the witness box are highly suggestive of residual anger at the demise of his marriage and continuing blaming of wife who, on the evidence, was the instigator for the separation. The Family Consultant suggests that the husband may have imbued and involved Y, at least, with his own views.
The husband’s attitude in not pursuing communication with the wife with respect to X’s medication dosage remains of real concern and perhaps indicative of more long ranging and entrenched attitudinal problems.
Section 60CC(3)(j) any family violence involving the children or a member of the children’s family and family violence orders; and
These matters have been dealt with in detail in these Reasons.
Section 60CC(3)(l) whether it would be preferable to make the orders that would be least likely that would lead to the institution of further proceedings in relation to the children.
All parenting orders made in these Courts are prospective in their operation and therefore contain unknown and speculative variables. The current and past evidence is indicative of the likely success of parenting orders moving forward.
Whilst both the ICL and the Family Consultant recommend a continuation of the current status quo of the week-about arrangements, they both appear to do so with reservations. All of the evidence is highly indicative of these three children suffering various forms of emotional impact from their parents’ separation and from the divergent parenting styles both before and after separation. The Family Consultant recommends therapeutic intervention for each of the three children. The Family Consultant also suggests that the children may not have been totally forthright in expressing their views and preferences. The behaviour of the youngest child, Z towards the Family Consultant is particularly concerning and notably was repeated when he was introduced to the ICL. As such the status quo itself brings current and potential difficulties which may lead to further litigation as these become manifested in the parents’ behaviour and the children’s responses. To the contrary, the status quo of an equal time in a week-about arrangements appears to have worked satisfactorily in many ways for these children. The parties live in relatively close proximity and the children, X and Y, seem settled and are achieving well in their schooling, although the husband’s own evidence raises concerns as to some isolation and social difficulties for X.
FINDINGS AND CONCLUSIONS
This is a complex parenting matter with issues of credit, parenting style and family violence to the fore. I note that both the Family Consultant and the ICL recommend a continuation of the status quo from December 2019 of a week-about arrangement. Each, though, make those recommendations with some equivocacy. The Family Consultant’s comment at [110] that the husband’s potential negative responses to any orders other than those sought by him is of concern and seem to have had some influence on the Family Consultant’s recommendations, but should not in any way be determinative of my consideration.
I should also be mindful of the impact on the children of making any orders that are contrary to their own preferences. These are not young children. X and Y are able to formulate and express their own views and while their relationships with each of their parents is in many ways delicate then I should be mindful of the impact on them and those relationships of any orders contrary to those preferences.[5]
[5] R & R Children’s Wishes (2000) FLC 93-000 and H v W (1995) FLC 92-598.
Any consideration of the children’s views and preferences must take into account whether they are actually and emotionally voluntary statements and are properly informed, and are mature and/or rational. In this respect, the parenting styles, personalities and attitudes of each of the parents can be and are relevant. I repeat however, the concerns expressed by the Family Consultant at [102] where she observed the children as not being comfortable in openly sharing their feelings.
In contested litigation such as this and where issues of credit between the parties assume considerable importance in the making of necessary findings, the Court has the distinct advantage of being able to see and hear each of the parties and their witnesses give evidence. In Galea v Galea[6] Kirby ACJ considered the advantages available to trial judges including the following:
a)Hearing the evidence in its entirety;
b)Hearing and seeing all evidence in context, chronologically and logically advanced;
c)Having time during adjournment and during the running of the case to reflect upon the evidence and to weigh against all other evidence whilst fresh;
d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)Observing body language, sometimes important for interpreting communication.
[6] (1990) 19 NSWLR 263.
It is a crucial function of the judge to assess the veracity of the parties and the witnesses in trials and in this sense in these Courts to assume a role of juror as the determiner of fact. In addition to the factors set out above, the Court has benefit of directly hearing and considering any inconsistences or contradictions in the evidence of a party or witness and also the demeanour and attitude of that witness. The Court is cognisant, however, of the pitfalls of giving too much credence solely to demeanour when considering the evidence of parties and witnesses. The Court is not oblivious to the circumstances of trials where those giving evidence are likely to be nervous and restrained unless they fall into error or accidental disclosure and where, in parenting matters such as that now before me, personal and historical facts often resurrect with some embarrassment to all concerned and where personal and private matters are canvassed in an open court. As such, it would be dangerous indeed to arrive at findings of fact simply by reason of credit on the observation of demeanour.
The husband was not a good or convincing witness. His demeanour and responses in the witness box were at times perplexing. He showed signs of extreme passiveness, but what may be better described as passive/aggressive. I am satisfied from his evidence that the husband maintains a high degree of animosity and anger towards his former wife. On the evidence before me, including historical fact and his demeanour, I consider him to still carry anger management issues and despite what he says is a greater insight into the needs for the children and the ramifications of corporal punishment. As such, and on the balance of probabilities, I find merit in the wife’s evidence, not substantially challenged in its particulars, of a marriage whereby she endured coercive and controlling behaviour perpetrated by the husband and, I expect family violence in its physical forms. I find little or no merit in the husband’s claim that he was subjected to ‘financial coercive behaviour’ at the hands of the wife. His claims were not particularised and not pursued in cross-examination of the wife. I am not satisfied on the evidence and from my observations of them that the husband has appropriately acknowledged or addressed what seems to be a propensity for physical responses. It is notable that he did not adduce evidence from his mother to corroborate his denials of physical violence on her. The evidence is that she is readily available. There is no explanation for the failure of her to give this important corroborative evidence of his denials and it follows that inferences are available to me under Jones v Dunkel[7] and where there is an issue as to the current propensity of the husband to inflict violent responses on the children and as recently as March this year, I do draw such an inference that the honest evidence of his mother may not have assisted or corroborated the husband’s evidence.
[7] (1959) 101 CLR 298
I am satisfied that these children have been subjected to physical violence at least in the form of corporal punishment, such that has gone over and above any ordinary notions of appropriate corporal punishment. The intervention of the Northern Territory Department of Child Protection is self-explanatory. The evidence which caused that intervention is, on its face, justifying. The wife’s more recent accusations of the children being subjected to violence in the husband’s home, and as recently as March of this year, were not successfully challenged or at all.
I accept that the wife, herself has inflicted corporal punishment on the children whilst most probably not in the spontaneous way of the husband in circumstances where there has been evidence of facial bruising. I maintain some concerns as to the veracity of the wife’s evidence generally including selective evidence in her affidavits and what she concedes to be dishonest statements to a court psychologist in the Northern Territory. I do, however, accept the wife’s evidence generally that she was overborne by the personality, attitude and control and/or coercion of the husband and with a desire to be reunited with her children where again her evidence is consistent with my general observations of the husband and those of the Family Consultant.
I find on the evidence that the husband remains embittered towards and non-communicative with the wife. The incident involving the misunderstanding and lack of communication in respect of X’s medication could have had more serious ramifications for the child. This is an example of where the wife is prepared to prioritise the children’s needs and, where appropriate, communicate with the husband but without reciprocity by him. These are not factors which are indicative of the traits needed for a successful, equal time arrangement where the experts coming before these courts are almost unanimous that a high degree of communication, co-operation and prioritising of children’s needs are fundamental and necessary requirements.
I accept that X and Y make statements of their preferences to continue the ongoing equal time arrangement. I am not satisfied on the evidence, however, that these statements are completely voluntary but must be seen within the context of propensity for controlling and coercive behaviour in the husband including, in this case, attempts to attract the support and loyalty of these children by informing the children that the wife was the instigator of the separation. Further the observations of the Family Consultant of the children with the mother are not suggestive of any negative response should they be placed in her primary care in accordance with her application.
I am not satisfied on the evidence that the husband has acted in the children’s best interests in the sense of financially supporting them. The wife has continued full time employment during the period from December 2019 where the orders provide for a week-about arrangement. She has appeared to do so successfully. The husband, on the other hand, concedes that he has made little or no attempt to pursue employment and therefore the wife offers greater financial support for the children.
In conclusion and where I find that the husband has not fully addressed the errors of his past behaviour in respect of family violence and where I find he retains a propensity for such behaviour, together with a problematic, non-communicative, mistrusting and conflictual relationship between the parents I am not of the view that a continuation of the equal time arrangement for the children is in these children’s best interests. At the risk of repetition, the incident in respect of the husband’s non-communication with the wife resulting in different administration of X’s medication is demonstrative of more general problems.
It might be said that the orders proposed by the wife whereby the children spend block periods or effectively a long-weekend with the husband each fortnight offer little difference than the current arrangement. The subtleties are, however, important where these children might understand that they have a primary parent and a home base and where that parent being the wife is more attuned to and has a superior record of attending to the children’s medical and emotional needs where X does suffer a diagnosis requiring medication and attention and Z’s behaviour towards the Family Consultant leaves unresolved concerns as to his emotional welfare.
I propose to make orders in the terms of the wife’s application that the children live primarily with her and they spend a block period of four nights with the husband each fortnight during the school term. In doing so I note the equivocacy of the wife’s proposals, but importantly my reasons above as to the importance of stability of a home base for the children given the particular traits of these parents and the problematic interpersonal relationship between these parents. Despite my reservations, but where X and Y are of or near teenage years, I will accept the wife’s proposal that time remain equally shared during school holidays. I see such orders benefiting the children turning their school weeks by reason of more stability of parenting style where some continuing social issues are evident, but which will continue a high frequency relationship for them with the father and allow him involvement in education and similar within the definition of “substantial and significant time” in the Act.
The evidence easily satisfied me of the need for injunctive orders preventing the infliction of corporal punishment on these children and from further imbuement of the children in the parental dispute and particularly in these proceedings.
For all of the reasons set out above I also maintain concerns as to the issue of parental responsibility. Certainly, the presumption of s 61DA does not apply given the factual platform in these proceedings. The question of whether such an order is then in the children’s best interests is a conundrum. There are many factors that argue against equal shared parental responsibility. I have found that the husband is dominating, coercive and controlling in his behaviour including towards the wife. There is little or no communication between the parents and I am not confident of prospects of improvement in the near future. There is a manifest inability to cooperate including in important factors such as the administration of medication. Nevertheless, each of the parties, Family Consultant and the ICL all advocate an order for equal shared parental responsibility perhaps with the rider that the wife be ultimately responsible for matters of physical and emotional and/or psychological health concerning the children. These children have and should understand their parents as being contributors toward the important decisions in their lives. Superficially, each of the parties has the ability to discharge these obligations, but I retain concerns as to the husband’s ability to separate and prioritise the children’s needs over his residual animosities towards the wife. On balance, I will accede to the position of the parties, but where the wife will ultimately retain the responsibility for making decisions of a medical and/or psychological nature for these children, but only with notification to and in consultation with the husband and where it is appropriate for the parents to share the costs of such consultations or therapy.
PROPERTY
At the commencement of the trial both parties were seeking 60 per cent of the tangible assets. The husband proposed superannuation splits so as to give equality of the entitlements of the parties, whereas the wife proposed a split from her superannuation entitlements of $150,000 giving, on current entitlements, the wife’s remaining entitlement of $326,684 and the husband an entitlement of $287,359. The wife’s argument is that such a split would effectively provide an equality of their entitlements as at the date of separation. This is in circumstances where the wife has continued to contribute to her superannuation since separation, but the husband has not. By the end of the evidence, the wife through her counsel proposed a 50/50 division of the net tangible assets.
The husband argued for a loading on account of both contributions and s 75(2) factors. Firstly, he argues that he had significantly greater assets than the wife at the commencement of cohabitation in 1999, specifically being equity in a property at H Street, J Town, New South Wales which was sold in January 2021, where the husband argues a “gold bar” type argument in that the parties did not live in the property; the wife visited on only one or two occasions; and no capital improvements were made to that property, and impliedly relying on the comments of His Honour Kay in Aleksovski & Alekovski[8] in a separate judgment although agreeing with the majority stated:
In my view whether the capital sum was acquired early in the marriage, in the midst of the marriage or late in the marriage, the same principles apply to it. The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital. A party may enter a marriage with a gold bar which sits in a bank vault for the entirety of the marriage. For 20 years the parties each strive for their mutual support and at the end of the 20 year marriage, they have the gold bar. In another scenario they enter the marriage with nothing, they strive for 20 years and on the last day the wife inherits a gold bar. In my view it matters little when the gold bar entered the relationship. What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements.
[8] (1996) FLC 92-705
The wife concedes the husband’s superior initial contributions, although perhaps not in quantum. However, the wife argues that this was a long relationship with a myriad of contributions including the bringing of three children in to the world and that the loading for the husband’s initial contribution should be ‘minimal if any’, given the plethora of other contributions of various types during the course of the relationship, but also with some argument that the wife has made superior post-separation contribution by way of the increase in her superannuation entitlements.
RELEVANT LAW – PROPERTY
Matters of property alternation and settlement are provided for in s 79 of the Act.
The Court is first to establish the legal and equitable interests of the parties and each of them in property. ‘Property’ includes assets, liabilities and financial resources. Superannuation is to be ‘treated as property’ for the purposes of this process although superannuation is obviously not ‘an asset’ in the usual sense in that it cannot be immediately crystallised. The Court may consider the property on a “one pool” approach inclusive of the tangible assets, liabilities and superannuation or alternatively on a “two pool” approach separating the considerations of the tangible and superannuation pools.
It is generally accepted that the relevant date for establishing the makeup of the property pool and the attributing of value to the elements of the pool is at the date of the trial.
The High Court in Stanford v Stanford[9] revisited and emphasised s 79(2) of the Act in that the Court is mandated to firstly determine whether it is just and equitable to make any orders altering the equity of the parties. This is a determination to be made in the particular circumstances of the parties and the property and not one to be simply conflated with later considerations of contribution.
[9] (2012) 247 CLR 108
In the matter now before me, the parties are the joint registered proprietors of three valuable parcels of real property. Their relationship was a long one. The evidence is that the marriage has irretrievably broken down. There are three children of the relationship. In all of those circumstances, I am easily satisfied that it is just and equitable to enter into the consideration of altering the property interests.
After establishing the contents and value of the property pool, the Court then considers the contributions by and on behalf of the parties to the acquisition, maintenance and improvement of that pool. Contributions may be of a direct or indirect financial type or of a non-financial type including as homemaker and parent.
After making findings as to contributions and assessing the weight to be given to the various contributions the Court then turns to consider whether there should be any further adjustment to either of the parties from the property pool on a consideration of the matters set out in s 79(4)(d)-(g) including any of the relevant factors in s 75(2) of the Act.
Permeating this entire process is the notion of justice and equity and the Court is required to consider whether its proposed orders are just and equitable in themselves not simply by reason of the mathematical process of contribution and s 75(2) factor considerations.[10]
[10] Phillips & Phillips (2002) FLC 93-104.
THE PROPERTY POOL
Although contentious at the beginning and during the course of their evidence, to their credit, the parties had agreed the property pool and valuations by the time of final addresses as follows:
Assets 4 E Street, F Town, Tasmania $350,000 2 E Street, F Town, Tasmania $550,000 B Street, C Town, Tasmania $400,000 Joint savings account (husband) $398 Add-back – wife’s withdrawal from joint offset account June 2019 $145,327 Wife’s bank balance $11,000 Wife’s Company D Shares $84,481 Wife’s motor vehicle 1 $13,900 Motor vehicle 2 (husband) $650 Husband’s CBA accounts (x2) $871,726 Items of plant and equipment valued by G Valuers at F Town (husband) $92,190 Livestock at value (husband) $8,915 Total Assets $2,528,587 Liabilities CBA mortgage – 2 E Street, F Town $285,079 CBA Variable Rate Personal Loan (wife) $26,894 CBA Visa Card (wife) $1,218 CBA MasterCard (husband) $4,179 Capital Gains Tax (estimated to be $107,000) $107,000 Total Liabilities $424,370 Net Tangible Assets $2,104,217 Superannuation Wife – Super Fund 1 $476,684 Husband – Super Fund 1 $137,359 Total Superannuation $614,043 TOTAL NET PROPERTY POOL $2,718,260
Capital Gains Tax will be struck on the sale of the J Town property. The husband’s preliminary advice from his accountant is that the figure will be approximately $107,000. The parties have agreed that my orders will quarantine a sum of $107,000 and should the amount struck for capital gains tax be less than this figure then the residue will be divided according to the percentage division of the net tangible assets herein. Alternatively, should that figure be greater than $107,000 then the parties will then also be responsible proportionally. The husband will have the responsibility to pay this debt once it is crystalised.
CONTRIBUTIONS
The parties agree that the wife entered the relationship with minimal wealth. The wife disputes the husband’s contention that her existing HECS debt was paid by him at or around the date of the commencement of cohabitation.
The husband’s evidence in respect of his own financial situation in 1999 being the year of commencement of cohabitation is contradictory, ambiguous and in many ways unsatisfactory. At [15] of his trial affidavit the husband deposes:
I had in excess of $165,000 in assets at the time of co-habitation which included the following:-
(a)H Street, J Town in NSW;
(b)Plant and Equipment and Tools;
(c)Term deposits with the Commonwealth Bank and the R Credit Union;
(d)Motor Vehicles x 2;
However at [59] of the same affidavit the husband deposes:
As stated above I had in excess of $165,000 in assets plus a unit in NSW (emphasis added) together with a mortgage at the time of commencement of cohabitation whereas [the wife] virtually had no assets and was in debt at that time.
This apparent ambiguity was not clarified during the evidence. The task for the Court is not a precise mathematical one. As such, I am prepared to accept that the husband had wealth in excess of $165,000 including some equity (but without information of any particularity) in the property at J Town in 1999. That property was sold for $760,000 in January 2021.
In the early years of the relationship both parties contributed by way of their employment. In about 2009 and at the time of the global financial crisis, the husband was made redundant from his employment. He made some attempts at self-employment, but from that time on was essentially a ‘house husband’ whilst the wife continued in her employment. The evidence is that this was an agreement reached between the parties and their contributions must be viewed accordingly. Whilst the wife then took periods of leave around the years of the children’s births, the husband also assumed a greater homemaker and parent role in the subsequent years and when the wife returned to her employment. There were no other unusual injections of finance into this relationship and consequently, in accordance with the long line of authority, I consider the parties’ contributions during the course of the relationship to be equal.
In the first 6 months following separation the wife had almost sole care of the children, but put herself in this position unilaterally. Since the consent interim orders of December 2019, the children have lived in a week-about arrangement between their parents. I assume, therefore, that each parent has financially supported the children during those alternate weeks, although I note that the husband has remained unemployed whilst the wife has continued in her employment albeit without any assessment of child support payable to the husband. Arguably this sits as a form of financial contribution by him at least circumstantially, although the rationale of him not perusing child support assessments was not explored.
I also take into account that in the approximately 2 years since separation, the wife has continued to contribute to her superannuation entitlement through her employer contributions. The husband has remained out of the workforce.
In respect of the net tangible property pool of the parties, the major dispute is in respect of the weight, if any, to be given to the husband’s initial contributions. This, of course, was a lengthy relationship of some 20 years duration. Whilst being careful not to ‘quarantine’ the consideration of any particular asset or to deal with the pool on any form of ‘asset-by-asset’ basis, the nature of the asset being the J Town property is relevant. Firstly, it is real property. The husband owned it at the commencement of the relationship and it was not sold until January 2021. The parties agree that there were no capital improvements made to the property during its ownership. They agree that the wife had no direct contribution to it and, in fact, visited on no more than 1 or 2 occasions. There was, of course, significant capital gain over the 21 plus years of its ownership which sits substantially now in the total wealth of the parties.
Nevertheless, this contribution by the husband must also be viewed within the context of the myriad of other contributions including financial and non-financial as well as direct and in-direct contributions, made by parties during the course of a lengthy relationship toward the entirety of the property pool.
Within the context and particular traits of the husband’s initial contribution I note and rely on the comments of the Full Court in Dickons & Dickons[11] as follows:
24.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. …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.
25.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.
26.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.
[11] [2012] FamCAFC 154.
Interestingly, the Full Court in Williams & Williams[12] with a bench including Kay J, who gave the above mentioned separate judgment in Alekovski,[13] opined that the consideration of the value of an initial contribution at the commencement of cohabitation without looking at the value it realised or at the time of the trial might be incorrect, although it remained important to weigh and balance all of the contributions by and on behalf of both parties.
[12] [2007] FamCA 313.
[13] (1996) FLC 92-705.
Further and in respect of the consideration of substantial and initial contributions, the Full Court in an earlier decision in Pierce & Pierce[14] stated in respect a trial judge awarding 55 per cent of the assets to the husband on the basis of a substantial initial contribution in a 10 year relationship:
In our opinion it is not so much a matter of erosion of contribution but a question as to what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home.
[14] (1999) FLC 92-844.
In Pierce the Full Court allowed the husband’s appeal from a trial judge division of assets 55/45 per cent and awarded the husband 20 per cent on the basis of his greater initial contributions.
Significantly, however, a recent decision of the Full Court in Jabour & Jabour[15] suggests some caution for trial judges in this consideration and particularly the above mentioned earlier judgment in Williams where their Honours say at [43]:
We consider that the decisions in Baker & Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of the myriad of other contributions which each of the parties have made during the relationship.
[15] (2019) FLC 93-898.
The wife says she has made improvements to the C Town property albeit through a personal loan. The husband argues that on 13 June 2019 the wife withdraw $145,327 from a joint CBA offset account. The wife has accepted this as an ‘add-back’ in the property pool. However, the husband says that this had a negative impact of the parties’ finances by way of lost interest or accrued interest on the home loan itself (see paragraphs 62, 23, 68 and 69 of the husband’s trial affidavit). I have no precise figures and indeed it is not my task to conduct some detailed financial audit of this marriage. I do however, take these matters into account.
On reflection and consideration of the various Full Court authorities, I am of the view that a consideration of the myriad of contributions here, including the husband’s initial contribution with its particular characteristics within the and context of a relationship of some 20 years, and the current nature and value of the property pool, should result in there being a loading to the husband 5 per cent of the net tangible property pool.
I consider the superannuation entitlements of the parties separately and adopt a ‘two-pool’ approach. Again, this is a lengthy relationship. I take into account the roles of parties during their relationship which by mutual agreement saw the wife continuing in the work force and the husband contributing as a homemaker and parent. The husband’s contributions should be given appropriate weight accordingly. The wife has, however, continued to contribute to her superannuation directly in a financial sense since separation some 2 years ago. The husband’s contributions generally towards the family have continued. However, I am of the view that the wife’s financial contributions post separation together with her own contributions to the children and the family are deserving of some weight. I take into account the wife’s annual income hence the probable contributions post separation. I am of the view that the parties’ superannuation entitlements should be divided as to 51.5 per cent to the wife and 48.5 per cent to the husband on account of contributions.
SECTION 75(2) FACTORS
The husband also argues for a further 5 per cent loading from the net tangible property pool in his favour on account of the consideration of the relevant s 75(2) factors. Specifically, the husband says that he remains out of the workforce because of the agreement between the parties reached in around 2009 whereby he would assume the role of ‘house husband’. The wife continues in her employment with an income of around $100,000 per annum. The husband, does, however, have trade qualifications. His affidavit and his evidence in Court was not persuasive or indeed satisfactory as to what if any attempts he has made to obtain employment except for some minimal casual work. Notably, the children have lived in an equal shared care arrangement between the parties for now some 18 months since the December 2019 interim consent orders. The wife has continued her employment, but has been able to discharge her responsibilities for the care of the children on a week about basis. Relatively, therefore, it might be expected that the husband could and should have pursued some employment given his qualifications and experience.
The orders that I make will have the children living primarily with the wife. Realistically, however, those same orders will oblige each of the parties similarly in respect of the provision of accommodation and facilities for the children. Further, and even given my comments as to the husband’s failure to explore his employment capacity the wife’s qualifications as professional might reasonably bring her a potentially greater income than the husband if he were to return to the workforce. In all of those circumstances, I am not inclined to make any adjustment to either parties of the s 75(2) factors.
CONCLUSION
Consequently, after consideration of the property of these parties on a ‘two pool’ basis and of their contributions and the relevant s 75(2) factors, I am of the view that the net tangible property pool be divided as to 55 per cent to the husband and 45 per cent to the wife and the superannuation entitlements be divided as to 51.5 per cent to the wife and 48.5 per cent to the husband.
The parties agree a distribution of their assets and liabilities. The net property pool on my calculations has value of $2,104,217. This provides for an estimate of the liability for CGT yet to be crystalised. The husband will receive 55 per cent of the net property or a value of $1,157,319.35. He will retain the property at 4 E Street, F Town ($350,000) and the property at 2 E Street, F Town ($550,000) together with savings in the joint account ($398) and his CBA accounts ($871,726), the motor vehicle 2 ($650) together with plant and equipment ($92,190) and livestock ($8,915) giving him gross assets of $1,873,879. He will retain liabilities being the CBA mortgage secured by F Town (-$285, 079) his CBA Master Card (-$4,179) and the CGT (-$107,000) being a total of (-$389,258) giving him net property of $1,477,621. Consequently I calculated he must therefore make a cash adjustment on the wife $320,301.65.
The wife will retain the C Town property ($400,000), the add-back being the amount withdrawn from the joint offset account by the wife in June 2019 ($145,327), her bank balance ($11,000), her Company D Shares ($84,481), the motor vehicle 1 ($13,900) being a total of $654,708, but less the CBA loan (-$26,894) and CBA visa card (-$1,218) totalling $28,112 giving her net assets of $626,596. Forty five per cent of the net property pool entitles the wife to $946,897.65 leaving a cash adjustment of $320,301.65.
The husband will receive 48.5 per cent of the parties’ total superannuation entitlements which the parties agree sits at $614,043. The husband’s entitlement would be $297,810.85. He currently has his own entitlement of $137,359 and I therefore calculate a splitting from wife’s fund of $160,451.85.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 6 July 2021
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