REARDON & REARDON
[2019] FCCA 2273
•20 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REARDON & REARDON | [2019] FCCA 2273 |
| Catchwords: PROPERTY – Consideration of notional add-backs. |
| Legislation: Family Law Act 1975 (Cth), ss.4; 60B; 60CA; 60CC; 61B; 61C; 61DA; 65DAA; 65DAC; 75; 79 |
| Cases cited: AMS and AIF (1999) 24 Fam LR 756 |
| Applicant: | MS REARDON |
| Respondent: | MR REARDON |
| File Number: | TVC 1164 of 2016 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 31 January 2019 & 1 February 2019 & 5 February 2019 |
| Date of Last Submission: | 5 February 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 20 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | Hooper Family Lawyers |
| Respondent in person |
ORDERS
That all previous orders be discharged.
That the husband and the wife have equal shared parental responsibility for the children namely, [X] born … 2005 (“[X]”), [Y] born … 2007 (“[Y]”) and [Z] born … 2010 (“[Z]”) (collectively known as “the children”) and make decisions jointly with respect to major long term issues including but not limited to:
(a)The children’s education;
(b)The children’s cultural upbringing;
(c)The children’s health;
(d)The children’s name; and
(e)Changes to the children’s living arrangements that would make it significantly more difficult for them to spend time with either parent.
That the children live with the wife.
That the children spend time with the husband each alternate weekend from after Friday to before school Monday.
That in relation to the children’s school holidays at the end of terms 1, 2 and 3, unless otherwise agreed in writing between the parents, the children spend time with the husband for the second half in each even numbered year and the first half in each odd numbered year and with the wife for the first half of each even numbered year and the second half in each odd numbered year.
That in relation to the children’s school holidays at the end of term 4, unless otherwise agreed in writing between the parents, the children spend time with each parent in a week about arrangement commencing with the husband in first week of each odd numbered year and with the wife in the first week of each even numbered year.
To remove any doubt, the children’s school holiday time commences at 5pm on the children’s last day of school and concludes at 5pm the day before school returns.
To remove any doubt, the time referred to at orders 3 and 4 is suspended during the children’s school holidays
That unless otherwise agreed between the parents the children spend time with the husband and the wife on special occasions as follows::
(a)On Christmas day:
(i)In odd numbered years, the husband shall spend time with the children from 9:00am on Christmas Eve until 3:00pm Christmas Day and the wife shall spend time with the children from 3:00pm Christmas Day until 5:00pm Boxing Day; and
(ii)In even numbered years, the wife shall spend time with the children from 9:00am on Christmas Eve until 3:00pm Christmas Day and the husband shall spend time with the children from 3:00pm Christmas Day until 5:00pm Boxing Day;
(b)Father’s Day, if the children are not spending time with the husband, from 5:00pm on the Saturday immediately before Father’s Day until 5:00pm on Father’s Day;
(c)Mother’s Day, if the children are not living with the wife, from 5:00pm on the Saturday immediately before Mother’s Day until 5:00pm on Mother’s Day;
(d)Children’s Birthday:
(i)In the event the birthday falls on a school day, the parent who does not have care of the children, will spend time with the children from after school until 7:30pm;
(ii)In the event the birthday falls on a non-school day, the parent who does not have care of the children will spend time with the children from 2:00pm until 7:30pm.
(e)Parent’s Birthday:
(i)In the event the parent’s birthday falls on a non-school day and that parent does not have care of the children on that day, the children will spend time with that parent from 9:00am on the parent’s birthdays until 7:30pm.
(f)To remove any doubt, the time provided for in this order supersedes any time referred to at orders 3, 4, 5 and 6 above.
The parents shall facilitate telephone calls requested by the children to the other parent at all reasonable times and at least every Monday and Wednesday from 5:30pm to 6:00pm.
That unless otherwise agreed between the parties, changeovers that do not take place at the children’s schools shall take place at Suburb G McDonald’s.
That the husband refrain from:
(a)Denigrating or criticising the wife to the children or allowing any third party to denigrate or criticise the wife within the presence or hearing of the children;
(b)Discussing with the children these proceedings (save and except for the effect of the terms of these orders in so far as the orders affect the children); and
(c)Consuming alcohol whilst the children are in his care.
That the wife refrain from:
(a)Denigrating or criticising the husband to the children or allowing any third party to denigrate or criticise the husband within the presence or hearing of the children; and
(b)Discussing with the children these proceedings (save and except for the effect of the terms of these orders in so far as the orders affect the children).
That each party be at liberty to take the children outside the Commonwealth of Australia on the following conditions:
(a)That such travel take place during their regular or holiday time with the children, unless otherwise agreed between the parents;
(b)That the travelling parent will provide the other parent with 90 days’ notice of such intended travel and provide the non-travelling parent with a copy of the itinerary for the trip and a copy of return air-tickets for all three children; and
(c)The travelling parent will provide a contact number to the non-travelling parent so that the non-travelling parent can contact the children at least once per week whilst they are overseas.
That for the purposes of the overseas travel, the parents will ensure the children have current Australian passports, and for this purpose, the following is to occur:
(a)In the event a child or children do not have a current Australian passport, the wife will prepare an application to apply for or renew an Australian passport and provide same to the father to sign;
(b)The husband will sign and return the application within 14 days of receiving the application;
(c)The parties are to equally share in the costs of the children’s passports; and
(d)The wife will hold the children’s passports.
That the parents facilitate the children with the following extra-curricular activities whilst the children are in their care:
(a)Instrumental lessons for all three children;
(b)Sports for [Y] and [X]; and
(c)Australian Football League (AFL) for [Z].
That in the event the children wish to engage in a further extra-curricular activity in addition to the ones listed at order 16 herein, the parents will discuss with the other parent the proposed activity they wish to enrol the children in and in the event that a parent does not agree with the enrolment, the parents are not required to facilitate the children attending upon such activity whilst the children are in their care. To remove any doubt, this does not prevent one parent enrolling the children in an extra-curricular activity to partake in whilst the children are in their care.
That this order is sufficient authority for any school at which the children attends to give each parent information about the children’s educational progress and other school related activities and supply each parent with copies of school reports, photographs, certificates and awards obtained by the children at the requesting party’s cost and both parties are at liberty to attend any school events such as parent/teacher interviews, sports carnivals or productions.
That these orders are authority for any treating medical practitioner, specialist or dentist to release the children’s medical information to each party and for this purpose both parties shall as soon as reasonably practicable, and at least at the next changeover, inform the other of any medical condition, health issue or illness suffered by the children whilst the children is in their care and the name and contact number of any practitioner upon whom they have attend with the children.
That the parties keep each other informed of any email contact details, telephone numbers and residential address within 24 hours of any such change.
That within 7 days of the date of these Orders the proceeds of sale from the property located at H Street, Suburb J, currently held in Statewide Conveyancing Solicitors Trust Account be distributed as follows:
(a)The wife receive the sum of TWO HUNDRED AND TWENTY SEVEN THOUSAND TWO HUNDRED AND TWENTY-NINE DOLLARS ($227,229); and
(b)The husband receive the sum of ONE HUNDRED AND NINE THOUSAND AND EIGHTY DOLLARS ($109,080).
That the wife retain as her absolute property and the husband relinquish any right, title and claim (if any) in and to the following:
(a)The credit balance of any account in the wife’s name;
(b)The wife’s motor vehicle;
(c)The wife’s superannuation entitlement;
(d)The motorbikes and 4 wheelers currently in her possession;
(e)The wife’s sewing machines;
(f)The wife’s furniture, jewellery, chattels and personal effects; and
(g)Except as provided for herein, any other property or interest in the wife’s name including but not limited to insurance policies in which the wife is the proposer or taken out over the life of the wife.
That the husband retain as his absolute property and the wife relinquish any right, title and claim (if any) in and to the following:
(a)The credit balance of any account in the husband’s name;
(b)The husband’s superannuation entitlement;
(c)The husband’s motor vehicles;
(d)The husband’s trailer;
(e)The shipping container and everything inside;
(f)The tractor and ride-on mower;
(g)The husband’s tools, furniture, chattels and personals effects;
(h)Except as provided for herein any other interest in the husband’s name including but not limited to insurance policies in which the husband is the proposer or taken out over the life of the husband.
That except as provided for herein, the husband and wife each be responsible for liabilities incurred in their name including all borrowings, personal loans, and credit card facilities and shall indemnify and keep indemnified the other against any liability that may occur in respect thereof.
That the husband and wife each do all acts and things necessary including signing all necessary documents so as to give full force and effect to the provision of these orders and in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so by the other party, then a Registrar of the Federal Circuit Court of Australia, be hereby appointed, pursuant to Section 106A of the Family Law Act 1975, to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Reardon & Reardon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
TVC 1164 of 2016
| MS REARDON |
Applicant
And
| MR REARDON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of three children, [X] aged 14, [Y], 12 and [Z] who is 9 years of age are unable to agree as to their future parenting arrangements. They are also in dispute as to their property settlement following the breakdown of their marriage.
Since the parties separated in 2016 the children have lived primarily with the applicant, Ms Reardon. In her Outline of Case document filed for the final hearing, she sought orders that would see the children’s living arrangements with her continue but would also see a reduction in the time they spend with their father from five nights a fortnight to two. The respondent, Mr Reardon, in his Outline of Case document, sought orders that would see the children living with each of their parents in an equal shared care arrangement.
In relation to the property proceedings the wife sought orders that would see her receive $270,000 in cash from the $336,309 currently held in trust from the sale proceeds of a property at H Street, Suburb J as well as orders for her to retain the property and superannuation currently held by her. Under her proposal the husband would retain the items he currently has in his possession or control and receive the remainder of the sale proceeds. The husband on the other hand contended for an overall equal distribution.
Throughout this judgment I will refer to the applicant as the wife and the respondent as the husband. I mean no disrespect in doing so.
Brief Background
The husband is 52 years of age and the wife 51. They commenced living together in 1989, initially in the Suburb K area where the wife was employed as a public servant. The husband was working as a tradesman at that time. They married on … 1993 and have three children, [X] born … 2005, [Y] born … 2007, and [Z] born … 2010.
During their relationship the parties lived in various parts of Queensland taking up different employment opportunities. In 2010 they moved to Town W where the wife was employed as a public servant and the husband as a professional for a major company. They separated on 24 June 2016 with the wife and children moving into alternate rental accommodation. At or soon after separation the wife told the husband she planned to move back to the Suburb K area with the children to be close to her family. He opposed this move. At this time the children were not spending any overnight time with the husband as the wife was concerned about his excessive use of alcohol. She asked him not to consume alcohol whilst the children were in his care but he would not agree to this request.
The wife filed her Initiating Application on 4 November 2016. When the matter came before the court on 13 February 2017 the parties reached interim consent orders which provided for the husband to commence overnight time with the children from Friday to Sunday each alternate weekend and one overnight in the off week. This time was subject to an order that he not consume alcohol whilst the children were in his care and twelve hours prior. He was also ordered to produce a copy of his health plan.
The matter returned to Court on 10 July 2017. With the benefit of a family report the parties reached detailed interim consent orders. The wife and children were permitted to relocate within 30km of the Suburb AA area. Upon the husband’s relocation to Brisbane, the children would spent time with him from Thursday to Tuesday each alternate week and for half of the school holidays. The husband’s time was subject to him not having a blood alcohol level in excess of 0.05%. The parties agreed to mediate their property dispute and agreed to also discuss the possibility of a future equal time arrangement for the children.
By August 2017 both parties had moved to the Suburb K area.
An updated family report was ordered on 16 October 2017 however the husband did not attend the interviews. He later claimed to have no knowledge of the interview dates. When the matter returned to court for trial call-over the parties were ordered to attend a second mediation for their property dispute which was ultimately unsuccessful. In June 2018 an updated family report was ordered to enable the husband to be interviewed.
At the time of the final hearing the wife remained employed as a public servant. [X] and [Y] attend a High School also in the local area. The wife remains living in the Suburb K area nearby to her parents who assist her when needed. The husband was living with his mother around fifteen minutes’ drive from the wife’s residence and was unemployed. He had plans to obtain his own accommodation but intended to remain living in the same area.
Evidence and Material relied on
In support of her case the wife relied on:
a)Her Amended Initiating Application filed 16 January 2019;
b)Her affidavit filed 16 January 2019;
c)The affidavit of Mr M filed 16 January 2019; and
d)Her Financial Statement filed 16 January 2019.
The husband relied on:
a)His Amended Response filed 23 January 2019;
b)His affidavits filed:
i)23 January 2019;
ii)4 April 2018;
iii)4 April 2017; and
iv)6 February 2017.
c)His Amended Financial Statement filed 25 January 2019.
Leave was granted during the proceedings for the husband to also rely on a written statement from his mother, Ms A which was marked exhibit F1. When Ms A, was called to give evidence she swore that the contents of that statement were true and correct.
The Court also had the benefit of three family reports. Two by Ms L dated 2 March 2018 and 6 September 2018 and an earlier report by Ms N dated 2 May 2017. A number of documents were also tendered into evidence[1].
[1] List of Exhibits
During the trial each party was cross-examined as was Ms A and Mr M. The family report writer, Ms L, also gave oral evidence and was cross-examined. Each party impressed as wanting to give their evidence as truthfully as they could however it became clear that the husband was minimising the extent of his reliance on alcohol. I was not necessarily persuaded that he was attempting to be dishonest but rather he lacked insight into the extent of his own conduct.
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. I will address the relevant evidence in my separate considerations of the parenting and property applications however to avoid repetition the evidence referred to in the property application should also be read with the evidence set out in the parenting application.
Parenting Application
Since separation the children have lived primarily with their mother and there is no dispute that she has been their primary care giver. The current operative parenting orders made on 10 July 2017 provide for the children to spend time with the husband from 5:00pm on Thursday to 5:00pm on Tuesday each alternate week. The children currently spend half of each school holiday with each parent. This arrangement has been in place since the parties relocated to the Brisbane area.
The wife’s case before the court was that the children’s time with the husband should be reduced from five nights per fortnight to two nights being, Friday to Sunday, whereas the husband’s case was that the children should be living in an equal time arrangement with each parent. When the wife’s counsel was making his submissions he invited the court to find that there were significant risk of harm issues in relation to the children spending long periods of time with their father and said that the court may come to a more restrictive view than the wife’s case.
The parties sought a number of orders in similar terms that were not in contention. In summary the parties were largely in agreement that:
a)The parents have equal shared parental responsibility;
b)That children spend half of the school holidays at the end of terms 1, 2 and 3 with each parent;
c)That children spend time with both parents on Christmas Eve and Christmas Day alternating yearly;
d)The children spend time with each parent on their birthdays and special occasions such as Mother’s Day and Father’s Day;
e)Orders be made for the non-denigration of either party;
f)Orders be made authorising each parent to access educational and medical information with respect to the children; and
g)That changeovers that do not take place at school occur at the Suburb G McDonald’s.
In relation to the school holidays in December and January the wife sought an order that the children spend two one week periods with the husband being the first and last weeks of the holidays. The husband however wanted the children to spend half school holidays with each parent.
Issues
The significant issues that dominate this case are:
a)Whether the husband’s alcohol consumption adversely effects his ability to appropriately care for the children thereby placing them at a risk of harm in his care.
b)Whether the husband’s mental health issues compromise his ability to appropriately care for the children thereby placing them at a risk of harm in his care.
c)Whether the wife has influenced or coached the children to report negatively on the husband to the family report writer.
Legal Principles – Parenting Applications
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of the child as the paramount consideration.[3]
[2] S.60B
[3] S.60CA
In AMS and AIF his Honour Justice Kirby held: [4]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[4] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[5] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] S.61DA
[8] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[9] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[10] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[11] A major long-term issue in relation to a child means an issue:
[9] S.61B
[10] S.61C
[11] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[12]
[12] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[13] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[14]
[13] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[14] S.65DAA(2)(c) & (d)
Determining the best interests of the children – the s.60CC considerations
The court is required to determine the children’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships[15]
[15] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
It is clear from the evidence that each of the children have a close and loving relationship with each of their parents. Neither party suggested that they would not benefit from continuing their relationships. The wife’s case to reduce the husband’s time with the children was based on her perception that there were real and significant risk of harm issues relative to the husband’s ability to appropriately care for the children rather than any issues in relation to the children’s relationship with him.
The wife’s case would see a reduction in the children’s time with their father and the husband’s case would see a reduction in the children’s time with their mother. Despite this, I am satisfied given the already strong relationship the children have with each parent and taking into account they are older children they would be able to continue to maintain and benefit from their relationship with each parent under either proposal. The children would also be able to continue their relationships with extended family on both sides.
Risk of harm[16]
[16] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Apart from some harassing messages sent by the husband to the wife earlier in their separation, which the wife reports have stopped, there are no family violence issues.
The relevant risk of harm issues relate to the husband’s alcohol consumption and the management of his mental health. In determining the current level of risk it is important to consider the history of the husband’s use of alcohol.
The husband acknowledged that during the relationship he went through periods of heavy alcohol consumption. He told Ms L he had been consuming on average three bottles of bourbon per week. Both parents agreed that the level of his drinking was a significant stressor between them and contributed to their separation.
The wife gave evidence that the husband was drinking every night in 2015 and incidents of social binge drinking were increasing. She said that he would say to her that he could not sleep without the assistance of alcohol. The wife told Ms L communication was difficult due to the husband’s intoxication at home and their relationship began to suffer. She said he would pass out most nights due to his alcohol consumption. It was at around this time the husband was advised by his endocrinologist to reduce his drinking to assist his diabetes.
In early 2016 the wife accused the husband of being an alcoholic and the parties attended upon his doctor multiple times. They also attended marriage counselling where the wife said she tried to address the husband’s alcohol use. During cross-examination it became evident that the wife’s frustration with the husband had led to her asking that there be no alcohol in the house shortly before they separated. He was offered the opportunity to cease drinking or the marriage would end. The husband said that after receiving advice from his doctor, Dr O, he began to reduce his drinking to three nights a week at this stage.
The medical records from Dr O indicated that the husband had told her that prior to May and June 2016 he was drinking half a bottle of bourbon four nights a week but had managed to reduce his drinking to three nights. He had attempted to go one week without alcohol but had been unsuccessful. At one 9:00am appointment with Dr O, the wife commented that she could still smell bourbon on the husband. The parties separated shortly after these events in June 2016.
A few weeks after the parties separated, the wife through her solicitor wrote to the husband with an offer for the children to spend time with him on alternate weekends from Saturday morning to Sunday afternoon subject to him not consuming alcohol whilst the children were with him, that the children have their own bed and all three children spend time together. The children had not been spending any time with the husband after separation. The husband refused this offer. In cross-examination he said that he received legal advice to refuse the offer as it would set a precedent in future proceedings. It was put to him that he refused because he could not abstain from drinking for even one night but he rejected that proposition. As a result the children did not spend overnight time with their father until February 2017. I am satisfied that the husband was not prepared to refrain from using alcohol because he feared he would not be able to do so. I have no doubt spending time with the children was important to him but he did not accept the wife’s conditions because he believed that he would not be able to comply with them.
In September 2016 the parents argued in front of the children in relation to them spending overnight time with the husband and his alcohol consumption. They each made reports to the police and the wife’s solicitors wrote to the husband on 20 September informing him they held instructions to commence proceedings. The solicitors wrote to the husband again in November that year requesting information with respect to any treatment he may have undertaken to assist reducing his alcohol consumption and for him to undergo a Carbohydrate-Deficient Transferrin (“CDT”) test. He provided the wife’s solicitors a letter from Dr O dated 11 October 2016 in which she said:
“I do not believe he could be classified as an alcoholic, as he can abstain and showed no withdrawal symptoms, however he was a heavy drinker and he still does binge drink on occasion. There are no other health concerns of note and his diabetes is under control. He assures me never [sic] drinks to excess when his children are with him.”
Despite the request made by the wife’s solicitors and being aware that the issue of his alcohol consumption was an important aspect of the case he has never undertaken a CDT test. When challenged on this he said that he could not afford to do so. When it was put to him that at the time of the request he was receiving income protection payments, he maintained his position that he could not afford it.
Ms L interviewed the children on 28 February 2018 and noted comments made by them regarding the husband’s alcohol consumption. [X] noted that “The Court said he can’t have alcohol, but he has been”. [X] spoke to Ms L about travelling to “Bottle Mart” with his siblings and waiting in the car while his father went inside. He noted seeing his father drink alcohol with Coke each night. [X] did not hold concerns about his father’s presentation when drinking but commented that he hears his father making drinks when he goes to bed.
[Z] only reported to hearing from his mother that his father “drinks a lot when we are not with him…and Court says he has to stop drinking when we are with him…stop drink as much.”
[Y] commented extensively on the husband’s drinking. In order to preserve the context of her comments I have below quoted paragraphs 54 to 59 of Ms L’s report dated 21 March 2018:
54. [Y] provided a rather lengthy description of how her father can be angry, and gave examples of this (usually when her brothers misbehave). She said her father either smacks her brothers, sends them to their room or make “threats”, but she could not explain what she meant by this.
55. In the course of [Y]’s description about her father getting angry, namely at her brothers, she claimed that after he sends everyone to their room, “he’ll sometimes get a drink”. After stating this, [Y] was worried about her father learning she had disclosed this. She was concerned about her father thinking she thinks he drinks too much, but she confirmed she did actually think this.
56. [Y] said her father drinks “a lot of Bourbon…two to three, a lot of cups of Bourbon.” She said she was aware it was Bourbon as she has seen the bottle in the cupboard, and she reported after each night, the quantity in the bottle is less.
57. [Y] explained how she hears him make the drink, noting she was aware Bourbon bottles have corks, and she hears her father taking the cork off the bottle and putting ice in his glass. She said she hears this every night.
58. [Y] told me she was woken twice to her father falling over and she has found him on the floor with a painting on him, the last occasion being approximately a month prior to his assessment. As she attempted to explain her observations, [Y] expressed confusion about her father’s explanation about how he had fallen over.
59. [Y] said she removes the painting from her father, and she said he thanks her and directs her back to bed. She said she then hears her father prepare another drink, “I still hear the cork.”
Counsel for the wife canvassed the children’s comments with the husband. The husband acknowledged that the children were aware he should not be drinking or at least limiting his consumption. However he believed their comments about making drinks before bed had “been put to them” and the wife was coaching them. He denied they had ever seen him drink heavily including during the relationship when they went to bed very early. When questioned about the painting incident with [Y] the husband asserted that he had slipped on water. He reject the proposition he was intoxicated and [Y] had to help him off the ground. He further stated that he had never fallen over due to alcohol or passed out. Whilst the husband accepted [Y] had told the report writer about the event he claims any inference drawn that he was effected by alcohol was due to coaching and manipulation by the wife. This view extended to [Y]’s comments that she was concerned about his drinking and would like him to stop.
All three children described a similar morning routine to Ms L. They would wake, make themselves breakfast, prepare their own lunches and wake their father to drive them to school. [X] is quoted in Ms L’s report as saying:
“we do everything, We make our lunches, our breakfast, sometimes dinner, but I don’t mind that…Dad usually sleeps in, so on school days, we get everything ready, we wake him and he then takes us to school.”
[Y] described a similar experience to [X]. She stated her father usually sleeps in until 8am before they wake him and that they are usually late for school.
Counsel for the wife questioned the husband about the routine in his household and suggested that this routine occurred as he is too affected by alcohol to wake and assist the children. The husband rejected this assertion and the comments by [Y] that the children we often late to school, again saying the children were coached. The Student Profiles tendered[17] do not show any references to the children being late to school. The attendance records for all three children were very good.
[17] Exhibits M6, 7 & 8
On 2 July 2018 the husband was charged with low range drink driving. Queensland Police documents tendered as Exhibit M5 show that the husband was subject to a roadside breath test at 3:55pm returning a reading of 0.054% BAC. He told the police that he had consumed four bourbons between 2pm and 3:30pm at his home that day. He pleaded guilty at the Suburb G Magistrates Court on 20 August 2018 and his license was suspended for one month.
The wife and children were driving along the same road on the day the husband was charged and identified his car on the side of the road near the random breath site. She later drove past the site again and saw the vehicle remained roadside. The wife’s solicitors wrote to the husband on three occasions being 30 July 2018, 15 August 2018 and 23 August 2018 requesting information as to whether he had been charged with a drink driving offence. He did not respond to any of this correspondence. However the wife identified his name on a court list for the Suburb G Magistrates Court and thereafter a subpoena to the Queensland Police was issued. The husband denied receiving any of this correspondence regarding the incident. In cross-examination he was also asked if he had spoken to Ms L about the charge. He could not recall if he had or whether the incident was before or after the report. He did not tell the children about his charge. I note that the husband’s interview was held on 29 August 2018. Nine days after his court appearance. During Ms L’s cross-examination she confirmed after referring to her interview notes that the husband had not raised this incident with her.
In her evidence the husband’s mother confirmed that she had sent two emails to Dr P, the husband’s treating psychiatrist on 9 February 2017 and 13 July 2017.[18] In the email dated 9 February 2017 Ms A wrote “in desperation” to her assist her son. She noted she believed the husband had several addictions requiring treatment including alcohol, cigarettes, online gaming and coffee coupled with anxiety. She stated:
I feel extremely uncomfortable writing to you, but am desperately concerned about Mr Reardon’s mental condition and am prepared to risk my relationship with him to assist in his recovery.
Mr Reardon consumes a half litre of bourbon with diet/caffine free coca cola every night. He begins drinking between 5 -6 p.m. every evening except when he has to take his children back to their mother at 7 p.m. He will never drive if he has had a drink. This drinking continues non-stop until about 11 – 11:30 when he goes to bed. I have noticed over the past stressful month that some nights the drinking exceeds 500mls per night.
[18] Exhibits M1 & M2
Six months later Ms A provided further update to Dr P in her email dated 13 July 2017. She stated:
I find Mr Reardon in a seemingly better space than earlier in the year, however, I am very distressed to find he is drinking even more heavily than previously.
…Last night he was falling down drunk after drinking over 700mls of bourbon and this is a nightly average. Mr Reardon is an alcoholic and it appears that neither he nor his doctors are dealing with this problem. I beg you to please assist him to get help with his drinking. His other addictions I have already told you about.
Mr Reardon will lose the custody rights he has just been granted of 5 consecutive nights in 14, unless he stops drinking. I never wish for his children to see him in the state he was in last night.
I am also concerned that the many drugs he is on could not possibly be effective given the huge amounts of alcohol he consumes nightly. My experience of people in the same situation as Mr Reardon is that they have been helped only by undergoing detox and rehabilitation. I also understand after speaking with Counselling Service that Mr Reardon has to want to cease drinking as well as ending his other addictions...
At the time of the hearing the husband was living with Ms A in a town house. She gave evidence of having established a routine with him of having a drink together every evening around 5:00pm. She said that he would have one or two drinks. Although she described the husband as an alcoholic she also gave evidence that since he has been in Brisbane she has not seen him “blind drunk” or “passed out”. She was adamant that he did not otherwise drink during the day.
That husband told Ms L in August 2018 that he was consuming a bottle of bourbon in an average week. When cross-examined he said he did not want to give up drinking and he did not accept that he was an alcoholic. He said he was currently drinking three to four standard drinks two to three times per week. Although he may drink more on special occasions and he no longer consumes bourbon. He said he was drinking wine instead as this helps him to monitor his alcohol intake.
When I take all of the evidence into account I have come to the conclusion that despite his admission to drinking excessively when in the relationship, the husband has attempted to minimise his more recent use of alcohol. He is aware of the importance of this issue in the proceedings and in my view was hopeful of presenting a more positive picture for the court’s consideration. I accept his honesty in saying that he did not want to give up alcohol altogether but his drink driving conviction just six months prior to the final hearing leaves me with little confidence that his evidence was an accurate recollection of his level of consumption. The children’s comments to the report writer have also been an important consideration in my assessment of the husband’s drinking. Although I have not been persuaded that the wife has actively coached the children in this regard I am satisfied she has discussed with them her concerns about the level of the husband’s drinking. Accordingly the children are alive to this issue between the parents and have been vigilant for evidence of his drinking. When I take into account the history and the children’s comments I am satisfied that the husband’s consumption of alcohol has at times been excessive and on at least two occasions this has occurred when the children have been in his care notwithstanding the order restraining him from drinking alcohol during those periods.
The question that arises out of that finding is whether the level of the husband’s drinking poses an unacceptable risk of harm to the children. The wife quite rightly is concerned about potential harm to the children as a consequence of the husband’s drinking. The pre-separation history has no doubt influenced her thoughts in this regard. When faced with the evidence of his drinking in more recent times and his drink driving conviction, it is not surprising the wife has taken a very strong view. There is however no evidence of any harm having been caused to the children as a consequence of the husband’s drinking since separation. [X] who is 14 did not hold any concerns as to his father’s presentation when drinking. Although [Y] has had to help the husband up on two occasions there has been no actual harm caused. Although [Y] complained to the report writer that the husband could get angry she did not give any examples of behaviour that would give rise to a finding that he has harmed the children. The real risk in this case is the potential for the husband to not be able to attend to a child if something was to happen, such as a medical emergency, when he is adversely affected by alcohol. Fortunately both [X] and [Y] are older children who would be able to assist should something arise. Whilst it is not a child’s responsibility to take on the role of a parent, in the context of assessing the level of potential risk, I am satisfied their ability to assist their father is a relevant and ameliorating factor. Overall I am satisfied that there are risk of harm issues related to the husband’s drinking but that the risk is not an unacceptable one. Having said that, despite his non-compliance, I am satisfied the restraint on the husband drinking when the children are in his care should be maintained to minimise any risk.
Another issue raised in these proceedings was whether the husband’s mental health issues and his management of them place the children at any risk of harm. I will address this issue in more detail when I consider parental capacity but I am satisfied that there is no evidence to find that the husband’s health has placed the children at a risk of harm nor is there sufficient evidence to find that there is potential for an unacceptable risk of harm in this regard.
The children’s views[19]
[19] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
In the family report released 21 March 2018 [X] was reported as being an engaging, articulate, and animated young person. He described living with his mother as ‘fun, really good.” He said if there was anything he would change about his time with his mother he would like to spend “a little more time”…”maybe an extra half day” with her. His reasoning seemed to be associated with spending less screen time at her house rather than at his father’s. He described living with his father as “laid back”. The report writer noted:
[X] was opposed to spending less time with his father as proposed by his mother. He thought spending only weekend time with his father was “kind of short, and I still like seeing him.” [X] stressed he liked the current structure of time he spends with each of his parents, and he only sought a little more time with his mother if he was made to make any changes to the current parenting regime.
[Y] presented to the report writer as an engaging, articulate and amiable young person. She described living with her mother as:
“…always good; always fun; always doing things. I never get a day to relax at home, but I like that we do something fun each day.”
She described living with her father as fun but added that the children spent too much time on screens and didn’t really do much. She told the report writer that her father did not always take her to her extra-curricular activities which put her in an awkward position when she next attended. She also said that she had to seek out her mother to help her with her hair. She initially said she was happy with the current structure of time but when pressed she said that she wouldn’t mind if she spent less time with her father.
[Z] who was only 7 years and 8 months lacked concentration when interviewed by the report writer. He described living with his mother as “good” because he got to see her and the dog. He did not like it when his mother got mad with him for being messy. He did not want to make any changes. He thought living with his father was “really good”. He liked the food that the husband cooked. There was nothing he disliked about living with his father and wanted to spend more time with him. The report writer noted:
[Z] said he would feel “very angry and annoyed” if he spent less time with his father, and said this was because “I wouldn’t be able to have fun with him. I wouldn’t be able to see him.”
When I take into account the views of the children I am satisfied that the children enjoy, and want to continue to have, a relationship with both parents. Whilst [Y] would like to spend more time with her mother [Z] would prefer to spend more time with his father. [X]’s preference was only for a little more time with his mother. I find that all children would be content with a continuation of the current arrangement.
The report writer, in her report released on 21 March 2018, opined that the children were not of an age where they understood the consequences of decisions akin to their wishes. Ms L said that although [X] was nearing adolescence she considered him to be emotionally young for his age and that there was a naivety about him. In her later report, released 7 September 2018, she said the children would be distressed by any reduction in their time with the husband and despite her earlier comments about their level of maturity she saw no strong reason to cause them distress. Although I accept the opinion of Ms L as to the children’s level of maturity, I am persuaded to give the views of each of the children some weight given they expressed their lived experience with their parents. Having said that, their wishes alone will not be the determinative factor in this case.
Practical difficulties[20]
[20] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Given the parents live in close proximity to each other and the children’s schools there is no practical difficulty or expense related to any spending time with and communication arrangements.
Parental capacity and responsibility[21]
[21] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
The court is required to consider the capacity of each of the parents to provide for the needs of the children including their emotional and intellectual needs. I have no concerns as to the wife’s ability to meet the children’s needs. The husband’s alcohol consumption was covered when considering the risk of harm issues but is also of relevance under this consideration. I will not repeat what I have said above other than to say that the husband’s level of alcohol consumption has the potential to compromise his ability to meet the needs of the children especially if something was to go wrong of a night which is when he mostly consumes alcohol.
The husband is also reliant on medication that impacts his capacity. He has suffered from depression and anxiety for a number of years and experiences anxiety attacks from time to time. He told the report writer that he can experience up to three episodes in a week. He has been medicated with Lorazepam, a Benzodiazepine medication for over two years. He said this medication, whilst beneficial, makes him tired. He gave evidence of getting up to take the children to school and then returning home to bed on some occasions. Although the children have been left to get themselves ready for school, including the making of their own breakfasts and lunches, I am not satisfied there is sufficient evidence to find that the husband’s health has compromised his parenting of them to a detrimental extent. His parenting is not as hands on as the wife’s. The wife presented as quite rigid in her expectations of parenting so it is not surprising she is concerned about the husband’s capacity. Even if I were to share the wife’s views, on the evidence I cannot be satisfied that the husband’s issues compromise his capacity to the extent that the needs of the children are compromised. Having said that however the wife is clearly better able to meet the needs of the children.
The husband did not give the same attention to the children’s attendance at extra-curricular activities as the wife did. It was difficult to determine if his lack of enthusiasm was based on his dispute with the wife or a general view that the children should not be engaged in many activities. Clearly [Y] is disappointed in the husband’s attitude. If the children were living with their mother I am satisfied she would ensure they attended their extra-curricular activities. The wife proposed two orders that would ensure the children continued in their current extra-curricular activities but that the parties conferred before any further activities were arranged. I am satisfied those orders are child focused and that they also take into account the need to not make any further unilateral decisions that would impact on a child’s time with the other parent.
Presumption of Equal Shared Parental Responsibility
I am satisfied that the presumption of equal shared parental responsibility applies and note that neither party seeks a sole parental responsibility order. It will be appropriate to make an order for equal shared parental responsibility notwithstanding the difficulties experienced by the parties in communication.
Consideration of Equal Time or Substantial and Significant Time
Having indicated that I will make an order for equal shared parental responsibility, I must consider whether it would be in the children’s best interests and reasonably practicable for them to live with the parents in an equal time arrangement. The husband seeks such an order, the wife opposes it.
When I consider all of the evidence I am not satisfied that such an arrangement would be in the children’s best interests. Although they live in close proximity to each other and neither parent is intending to move, there are a number of factors that would suggest that any equal time arrangement would fail. Firstly the parties have real difficulties in communicating particularly about the day to day matters such as extra-curricular activities. With children living in two households it is essential the parents are able to freely communicate and be flexible with arrangements especially when something special happens at school or if a child has left a piece of sporting equipment or book at the other house. The style of parenting between the two homes is also different with the husband taking a more relaxed approach when compared to the wife who manages the children’s time, especially their screen time. Whilst on the one hand differences in approach can help children learn that not everything needs to be done the same way it can lead to confusion. When children are aware of conflict between the two households the different approach can also add to tension for them. That would certainly be the case here. I have concluded that reducing the children’s time with their mother and increasing their time with the husband to achieve an equal time arrangement would not be in their best interests.
Having arrived at that view I am then required to consider the children spending substantial and significant time with the parents. Since separation the children have lived primarily with the wife but have been spending substantial and significant time with their father as they have been with him on school days, weekends and during school holidays. The children live with the husband from Thursday afternoons to Tuesday mornings each alternate week. Under the wife’s proposal his time would reduce by three days to Friday afternoons to Sunday afternoons. This is a significant reduction in the children’s time with their father. One of the factors influencing the wife’s proposal is her concern that the children are not attending extra-curricular activities and have to get themselves ready for school of a morning. Although I have found that there is insufficient evidence to find that the children have been late to school I accept the wife, who is a public servant, is of the view that they do turn up late. Regardless of that, there is no doubt that the husband remains in bed whilst the children get themselves ready for school of a morning.
In her first family report, Ms L did not have the benefit of interviewing the husband but concluded that the court should consider two possible pathways being either the wife’s proposal or a continuation of the current arrangements depending on the court’s findings as to which would have the least harmful effect on the children. In her second report after speaking with the husband she concluded that the current arrangement should continue with some minor amendments regarding the children’s involvement in extra-curricular activities. During cross-examination, after having been made aware of the husband’s history of alcohol consumption and drink driving conviction, she said that the issues surrounding the husband’s alcohol consumption and history of anxiety attacks lent more towards the wife’s proposal. She qualified her comments to say they were based on the court finding a risk of harm in the husband’s care in relation to his alcohol consumption.
When I weigh all of the issues canvassed above I have come to the conclusion that the children’s time with the husband should be reduced. Although I have not found there to be an unacceptable risk of harm in relation to the husband’s drinking, there remains the potential for problems with his care of the children over time by virtue of his difficulty abstaining from alcohol for long. I am satisfied that shorter periods of time would minimise any issues arising. The wife sought a reduction to two nights a fortnight being from after school on Friday to Sunday afternoons. She was partly motivated by a desire to ensure the children get to school on Monday morning without any difficulties. Whilst there is some validity to her argument, I am satisfied that reducing the children’s time from five nights to two nights would not be in their best interests and that they would also be disappointed by this.
I find that the wife is able to provide a more stable household for the children and they would benefit from being with her during the school weeks but that they should spend a whole weekend with their father each fortnight. On balance I am satisfied that the children should spend time with their father from after school Friday to before school Monday and will order accordingly.
The wife also sought an order that during the end of year school holidays the children only spend two one week periods at the beginning and end of the periods. I am not satisfied that is in their best interests. Under her proposal the children would end up spending a four week block with her, subject to Christmas Day arrangements. This is too long away from spending time with their father. The husband’s proposal however would see two three week block periods. Whilst this may be a common arrangement, given my findings about the length of time the children spend with their father I am satisfied that the long holidays should be spent in a week about arrangement given they will be spending a week with each parent during the mid-year holidays. Although this means that unless they can reach an agreement to the contrary, neither parent will be able take the children away for more than a week at a time, in all of the circumstances I am satisfied that this desirable outcome must give way to the benefit for them spending time with each parent without being away from the other parent for a long period of time.
Property Application
Legal Approach – Property Proceedings
In determining property proceedings the court is firstly required to identify according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property that is available for distribution between them. It is then necessary to determine whether it is just and equitable to make an order altering the parties’ interests in the property. If so satisfied the court must then consider the contributions made by each of them under the various s.79(4) considerations before looking at their future needs by reference to the s.75(2) factors. [22]
[22] S.79(2) & (4), Stanford [2012] HCA 52. See Hickey & Hickey & Commonwealth (2003) FLC 93-143, 30 FamLR 355 for approach prior to the High Court decision in Stanford
The property of the parties
At the commencement of the hearing I requested the parties to prepare a joint table of assets and liabilities. This became Exhibit C1. Although the parties agreed on the inclusion and value of many items there remained disputes about a number of items. I will address each dispute with respect to the specific item or notional addback. All other assets and liabilities not discussed below can be taken as agreed by the parties and accepted by me.
Given the position taken by the parties it is necessary to consider how property that no longer exists can be considered in determining a property adjustment order. It is open to the court, in appropriate circumstances, to exercise its discretion and notionally add back into a pool of assets for distribution funds that no longer exist. The adoption of that course will depend on the facts of each case. The Full Court of the Family Court in AJO & GRO[23] summarised three categories of such cases:
a)Where the parties have expended money on legal fees[24];
b)Where there has been a premature distribution of matrimonial assets[25]; and
c)Where a party has by a course of conduct reduced the value of an asset or where the party has acted recklessly, negligently or wantonly with the matrimonial assets effectively reducing their value.[26]
[23] (2005) 33 Fam LR 134 at p144, (2005) FLC 93-218 at p79,617
[24] DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816
[25] Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569
[26] Kowaliw (1981) FLC 91-092; (1981) 7 Fam LR N13
In Kowaliw[27] Baker J held that if a party carries out a course of conduct intended to reduce or minimise the value of matrimonial assets or acts “recklessly, negligently or wantonly” with those assets then such conduct and the economic consequences that follow may be taken into account when considering the provisions of s.75(2)(o).
[27] (1981) FLC 91-092 at p76,645; (1981) 7 Fam LR N13
The aim in adding back notional assets or considering conduct pursuant to s 75(2)(o), is to ensure that a just and equitable outcome is achieved. In Grier v Malphas[28] the plurality[29] said:
[128] ……… So-called “addbacks” are the “exception and not the rule”.[30] Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back.[31]
[129] As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting.[32] However, when significant sums of money are said by one party or the other to have been “wasted”[33] or to amount to a unilateral “premature distribution of property”[34] and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.
[28] (2016) 55 Fam LR 107.
[29] Murphy and Kent JJ.
[30] Cerini & Cerini (Sub nom C & C) [1998] FamCA 143 at [46].
[31] See, for example, Browne v Green (1999) FLC 92-873 and Gollings and Scott (2007) FLC 93-319.
[32] See, for example, Norbis v Norbis (1986) 161 CLR 513; Brandt & Brandt (1997) FLC 92-758; Ferraro and Ferraro (1993) FLC 92-335.
[33] In the sense in which that expression is used in Kowaliw and Kowaliw (1981) FLC 91-092 and the cases which have followed it.
[34] Townsend and Townsend (1995) FLC 92-569, and the authorities which have followed it.
Their Honours went on to say:
[131]……… the evidence discloses a very significant disparity in the sums expended by the parties and that her Honour did not address that disparity or examine the purposes for which the money was used. We repeat that this is a matter of discretion and could have been done either by “adding back” or, as has been suggested as often preferable by decisions of the Full Court, by reference to s 75(2)(o).[35]
[35] See, for example, Browne v Green (above); Shimizu & Tanner [2011] FamCA 271, per Bryant CJ and Kowaliw (above).
I will address the disputed items below mindful that the aim in exercising my discretion is to achieve a just and equitable outcome for the parties.
Offset Account redraw
The husband invited me to find that a sum of $11,500 that was withdrawn from the parties’ mortgage offset account by the wife should be treated as an addback to the pool and ascribed to her side of the ledger. When the parties separated in June 2016 they had approximately $22,000 in their mortgage offset account. In October 2016 the wife withdrew $11,500. Her evidence was that she made the withdrawal because the husband had been repeatedly drawing significant funds himself. At the time the husband was receiving a monthly income protection payment of $8,374 paid directly into the offset account. The wife was concerned that the husband was withdrawing more than this payment each month. The following withdrawals were made by him:
a)July 2016 - $10,000;
b)August 2016 - $12,000;
c)September 2016 - $10,516; and
d)October 2016 - $10,272.
Through her solicitor she made multiple requests for the husband to cease withdrawing from this account. Given his refusal to do so she asked the bank to freeze the account but this request was declined. She then decided to withdraw the $11,500 leaving enough in the account to meet the next mortgage payment and she began paying half of the mortgage payments. The funds were placed into a separate account and were expended over time on the purchase of fridge and general living expenses. Her evidence was that the husband had fallen behind in child support and at one stage was $7,000 in arrears.
The husband conceded he was asked multiple times to stop drawing from that account. He said he withdrew funds to pay his child support debt before the wife withdrew the $11,500.
The crux of the husband’s argument was that the funds came from his employment and therefore belonged to him. It is clear though that the husband was withdrawing sums greater than his income. When I take into account the funds were expended on day-to-day living expenses for the wife and the children and the withdrawal was made only four months after separation I will exercise my discretion and decline to add the sum back into the pool.
Vehicle addbacks
Both parties invited me to find that sale proceeds from vehicles acquired by the other party during the relationship and sold by them post separation should be included in the pool. Whilst at the same time seeking to have their sale proceeds excluded.
The wife purchased a Motor Vehicle BB in approximately 2006 or 2007. She could not recall the purchase price of the vehicle. She sold it in 2017 for $14,000 or $15,000 and used the funds for day to day living expenses.
The husband sold a Motor Vehicle Q vehicle in November 2017 for $10,000. He received two payments of $5,000 for the vehicle on 29 November 2017 and 11 July 2018. The wife argued this figure should be treated as an addback because there had been a lack of disclosure by the husband surrounding the expenditure of these funds. She further invited the court to find that he had wasted funds by the purchase of alcohol, cigarettes and online gaming. In response the husband gave evidence that he used these funds to pay bills, child support and day to day living expenses.
I am not persuaded to add either of the sale proceeds back into the pool as I am satisfied that they have each disposed of a vehicle and I accepted that the sale proceeds have been used for day to day living expenses.
Specific items
The husband sought to add $5,150 worth of equipment to the pool that he says the wife took from the H Street, Suburb J property. Specifically an industrial dust extractor, generator, spray rig and fishing gear. The wife denied taking the equipment claiming she did not have a key to the shed where it was stored. She did concede she had in her possession the spray rig which was designed for use with a four-wheeler. I accept her evidence. I have no evidence of the existence, location or value of the remaining items and will therefore exclude them from the pool.
The husband sought a value of $7,000 be ascribed to the four-wheeler and the wife sought $3,000. The wife said that her value incorporates the value of the spray rig as it was specifically bought to fit and be used on the four-wheeler. She explained that she adopted the value of $3,000 as this was the value adopted by the husband in his affidavit filed 6 February 2017. She wanted to avoid the cost of obtaining a valuation. Notwithstanding his evidence, the husband sought an alternate value on the morning of trial having been directed by me to prepare Exhibit C1. He did not give any evidence to support a higher value. I will accept the wife’s value of $3,000.
The parties were in dispute as to the value of the wife’s sewing equipment. The wife contended for a value of $5,500 and the husband for $15,000. The wife has two embroidery machines. The first was purchased after [Z] was born and the wife set up a business. She said she paid the first machine off very quickly and then bought the other machine which was also paid off through the income from her business. The machines were purchased for $7,500 each second hand but with minimal use. She has a sewing machine bought for $1,500 to $1,800 and other tables and equipment of no significant value.
Her solicitor wrote to the husband on 13 December 2018 stating that the wife was adopting a value of $5,000 for these items and in the event he disputed these values the parties should obtain a joint valuation. The husband denied receiving such correspondence until a few days before trial. Attached to this correspondence is a quote for purchase invoice said to be from Store R in Suburb CC. The wife said she reached a value of $5,500 using this quote. The husband disputed this value but offered no evidence or argument to the contrary. I am left therefore with the wife’s value as the best evidence. I will adopt her value.
Credit card debt
The husband sought that a debt with respect to his Commonwealth Bank credit card be considered a joint liability. As at 23 January 2019 the outstanding balance was $8,370. The husband gave evidence that this debt was accumulated post separation, primarily to cover rental payments. He did not produce evidence to establish the debt notwithstanding the wife’s solicitors requesting his statements. Given the debt was acquired post separation and the husband’s failure to make full disclosure in relation to this debt I will exclude it from the pool.
Husband’s car loan
The husband sought for a car loan liability of $4,512 to be added to the pool of liabilities. Simply no evidence has been put before me establishing the existence of the loan and details thereof. Requests for disclosure went unanswered. The onus was on the husband to establish his case and he has failed to do so. In light of this I will not include the liability in the pool.
Loan from Wife’s Father
The wife asserted that in November 2015 the parties received a loan of $15,000 from her father, Mr M. She sought for these funds to be classified as a loan and added as a liability to be included in the pool. The husband conceded $15,000 was given to the parties but disputed it was ever a loan requiring repayment. Mr M gave evidence of having given the parties sums of money or paid bills on their behalf throughout their relationship. He said the only sum that was given as a loan was the $15,000 in 2015.
The wife said the husband had no contact with her father regarding the loan but the parties themselves discussed it. She claimed she had a telephone conversation in which her father said, or words to the effect:
“Would it help if we put some money into the bank account until you return to work when you can pay us back”.
The wife couldn’t recall if her father used the word “loan” but said the intention was for it to be paid back upon the sale of the H Street, Suburb J property or her return to work. No money was repaid as the parties separated shortly after her return to work. She said she offered to repay her father after separation but her parents told her to get back on her feet financially first. She said her parents were willing to wait until the conclusion of these proceedings before they request repayment. At the time of separation the wife received another loan from her father in the sum of $2,000 to go towards her rental bond, some rent and food. This loan has been repaid by her. It was the wife’s evidence that her parents would often give their children monies at the same time but this $15,000 was different as her brother did not receive any money from her parents at this time.
I also note that the wife’s father has bought the house in which the wife is currently living. She is paying rent of $550 a week to her father under a two year lease and intends to buy the property at market value.
The evidence is clear that Mr M did not have any discussion with the husband about the terms of any loan and there is no written agreement. When I take into account the lack of any direct communication to the husband, the lack of any written agreement coupled with a long history of financial generosity from Mr M to the parties I am not persuaded that the $15,000 was loan requiring repayment. I will therefore exclude this figure from the pool.
Outstanding dental bills
The wife sought that outstanding dental bills totalling $3,400 with respect [X] be included in the pool. From April 2018 to January 2019 the wife attempted to discuss [X]’s dental issues with the husband. Numerous correspondence went unanswered by him until he finally replied in January 2019 and suggested he could not afford the bill. The wife is liable for this debt and has been paying the fees herself but I am satisfied it is appropriate to include it in the pool.
Conclusion as to Pool of Assets and Liabilities
I find from the evidence that the financial position of the parties is as follows:
| ASSETS | POSSESSION | VALUE |
| Matrimonial home sale proceeds held in Trust | Joint | 336,309 |
| Household furniture | Joint | Divided |
| Tools | Husband | 7,000 |
| Tractor | Husband | 5,000 |
| Ride-on Mower | Husband | 2,000 |
| Motor Vehicle S | Husband | 20,000 |
| Shipping Container | Husband | 2,000 |
| Trailer | Husband | 500 |
| Motorbikes and four-Wheelers | Wife | 3,000 |
| CBA A/c:… (as at 9 November 2018 | Husband | 8 |
| ANZ Account … (as at 9 November 2018) | Wife | 707 |
| ANZ Account … (26 October 2018) | Wife | 28 |
| CBA Account … (17 October 2018) | Wife | 2 |
| Sewing Equipment | Wife | 5,500 |
| Motor Vehicle T | Wife | 34,500 |
| Jewellery | Wife | 480 |
| TOTAL ASSETS | $417,034 |
| LIABILITES | ||
| ANZ Credit Card (as at 15 May 2018) | Wife | Nil |
| Lease Payout ( as at 19 December 2018) | Wife | 42,018 |
| [X]’s dental fees | Wife | 3,400 |
| TOTAL LIABILITIES | $45,418 |
| SUPERANNUATION | ||||
| Super Fund U. … (As at 22 November 2018) | Wife | 464,390 | ||
| Super Fund U. … (As at 22 November 2018) | Wife | 1,876 | ||
| Super Fund U Client No: … Accumulation (As at 22 November 2018) | Husband | 104,313 | ||
| Super Fund U – Defined Benefit (As at 22 November 2018) | Husband | 182,966 | ||
| Super Fund V: … | Husband | 133,555 | ||
| TOTAL SUPERANNUATION | $887,100 | |||
| Assets | 417,034 | |||
| Superannuation | 887,100 | |||
| Liabilities | 45,418 | |||
| Net Position | $1,258,716 | |||
Although I have for the purposes of ascertaining the pool, separated the superannuation from the other assets in the table above, given the lengthy marriage and the modest position of the parties when they commenced their relationship I propose to determine the matter on the basis of a single pool.
Is it just and equitable to alter the property interests?
In Stanford[36] the majority held:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[36] [2012] HCA 52
I am satisfied that it is appropriate in this case to alter the property interests of the parties in light of the demise of their marriage and the fact that the maintenance of the current legal ownership of their property would not afford them justice and equity.
Contributions
I now turn to the assessment of the parties’ contributions having regard to the provisions of s.79(4)(a) to (c):
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
The parties’ relationship spanned some 27 years and can be considered lengthy. At the commencement of the relationship neither party had any significant asset or liability. They were both earning modest incomes.
Soon after the relationship commenced the wife purchased in her own name a block of land in a Brisbane suburb and arranged for the construction of a home using $3,000 from her own savings and a first homeowner’s grant of $5,000 along with a mortgage taken out in her own name. When this property was sold in 2003 the parties purchased land in H Street, Suburb J in the sole name of the husband. The sale proceeds from the Brisbane property was used for the deposit and a mortgage was obtain to complete the purchase and construct a home on the land.
The parties were able to progress their careers and incomes by undertaking tertiary education throughout the relationship and by moving to various parts of the state to obtain employment.
The wife worked as a public servant until a week before [X] was born in … 2005 and returned to work in … 2006. When [Y] was born the wife cared for the children from … 2007 to … 2008 before returning to work until [Z] was born in … 2010. In … 2010 the husband was offered employment in Town DD with a significant wage increase that enabled the parties to afford the wife remaining at home as a fulltime homemaker and parent.
The parties had comparable incomes in the early years of their relationship although for a period of three years, 1994-1996, the husband studied for his degree full time whilst the wife worked. When the wife became a public servant in 1999 her income exceeded that of the husband until about 2008 but in 2010 the husband obtained a highly paid job earning approximately $200,000 a year. The wife left her employment to be a stay at home mother until she returned to part time employment in 2016 a couple of months prior to their separation.
The wife gave evidence of being primarily responsible for being the homemaker throughout the relationship although she gave the husband credit for sharing the cooking duties. The husband on the other hand was very critical of the wife’s contribution in this regard. The husband asserted that the wife contributed “very little” towards the last six years of their relationship. His evidence was that while he was the primary income earner and working long hours he would return home to then cook, feed and assist the children nightly. He gave evidence:
“Ms Reardon, for our entire married life, showed very little interest in anything which resembled housework or cooking, the only area she managed effectively was washing clothes”
The wife on the other hand painted a picture of her making a significant contribution as homemaker. She said that she looked after the garden, and attended to the children and their activities. According to her the cooking was a joint effort: if one cooked then the other cleaned. She gave evidence that she baked and prepared frozen meals for the children and the husband. She was also able to use her hobby skills to create income for the family through her side business.
I did not accept the husband’s evidence in this regard. He clearly holds a great deal of resentment towards the wife and this has clouded his ability to give her any credit. I preferred the evidence of the wife as to her contributions.
Throughout the relationship the parties were recipients of the generosity of the wife’s parents. The evidence would suggest that they received approximately $60,000 by way of gifts over the length of the relationship.
Each party contributed financially throughout their relationship and each made contributions as homemaker and parent. Although the husband earned a significant income in the latter years of the relationship he was able to obtain his tertiary qualifications when the wife was working. Taking into account the similar modest positions of the parties at the commencement of the relationship, their contributions both financial and as homemakers and parents along with the indirect financial contributions made by the wife’s parents I assess their contributions during the relationship as equal.
Both parties submitted that they made the greater contributions after separation with the significant issue being the payments of the mortgage until the H Street, Suburb J property was sold in April 2018. The mortgage payments were interest only during this period. The wife conceded that between June and October 2016 the husband was solely responsible for the mortgage repayments but her evidence was that she made half of the repayments thereafter. The husband alleged the wife only made six payments towards the mortgage in the 18 month period. During cross-examination on 1 February he was challenged by counsel for the wife and was unable to provide any documents in support of his claim. The wife called for him to do so.
When the matter resumed on 5 February he tendered two documents in answer to the wife’s call. Exhibit F2 was a document prepared by him purporting to tally mortgage repayments by each party from 22 July 2016 to 28 April 2018. According to the document the first mortgage contribution by the wife occurred in April 2017 with no other payments made by her after December that year. This of course was a document prepared by him rather than a corroborative statement from the bank. He said that the statements had been deleted from his internet banking and when he approached the bank directly he was told there would be a delay.
The second document Exhibit F3 is a “1st Half Rates & Water Notice” from the Region F Council for the period 1 July 2016 to 31 December 2016 requiring payment of $863.69. Hand written on the document is “Paid C/C Phone 25/10/16”. This document had not previously been disclosed.
Counsel for the wife took issue with the contents of Exhibit F2 and the husband was re-called to give evidence. At this time Exhibit M11, a mortgage transaction statement was put to the husband. This exhibit clearly demonstrated that the wife had been making mortgage repayments in November, December, January and February. The exhibit only recorded transactions until February 2017. The husband was challenged about how he could have constructed Exhibit F2 and omitted the wife’s payments given Exhibit M11 was from his own disclosure documents and available to him. He said he must have done so in error. What Exhibit M11 also shows is the husband withdrawing the funds deposited by the wife, often within a few days of the deposit.
Ultimately I preferred the wife’s evidence with respect to the mortgage repayments. The wife clearly began contributing in October 2016 until at least February 2017 where the documented evidence ends. In light of the husband poor recollection of payments or the possibility that he withdrew the wife’s contribution to bolster his on case makes his evidence hard to accept. I find that the wife contributed half of the mortgage repayments from October 2016 to April 2018.
The husband was also challenged with respect to Exhibit F3. Counsel for the wife suggested to the husband that he had failed to disclose the credit card statements for the credit card used to pay the water rates. The husband denied this stating that he had fully disclosed but he was unable to produce the documents at the hearing. There was however no dispute that the wife did not make this payment. I accept there would have been bills paid by the husband towards council rates, water rates, power and sewage treatment. The amount of the payments cannot be quantified given the husband’s failure to produce all of the relevant documents.
Whilst I accept he would have made these payments, I also take into account the wife had to re-establish herself in a rental home with the children whereas the husband initially had the benefit of staying in the former matrimonial home provided by his employer. Overall I am satisfied that the post separation contributions should be assessed as equal.
Section 75(2) factors
Having determined the contribution elements the court is required to have regard to the provisions of section 75(2).
I am satisfied that the parties are of a similar age. The wife is in a better state of health than the husband and is in full time employment. The husband suffers anxiety attacks and has now been unemployed for a number of years. Counsel for the wife conceded that there should be an adjustment on the husband’s side of the ledger in that regard. If it were not for the husband’s health, given his education and previous work history, he would have been in a position to earn a higher income than the wife, but I do not have confidence he will be able to do so at least for a few years.
In accordance with the parenting orders that I propose to make, the wife will have the primary care of the children and is likely to be sole income provider for them given the husband’s unemployment. She is unlikely to receive much by way of child support from him. This warrants an adjustment in her favour.
Although the wife submitted that I should make an adjustment in her favour pursuant to s.75(2)(o) for the husband’s failure to fully disclose the dissipation of his funds post separation I am not satisfied that justice and equity would be achieved by doing so.
When I balance the competing adjustments, I am satisfied that the overall adjustment should favour the wife. I would assess that at five percent.
Are the Orders proposed just and equitable?
Taking into account my assessments of contributions as being equal and the future needs requiring an adjustment of 5% to the wife the overall property adjustment order should see as close as possible a division of 55% to the wife and 45% to the husband. However, it is important to step back and assess whether in all of the circumstances the orders proposed to be made are just and equitable.
I propose to make orders that would provide for the parties to retain those items in their possession and/or control as set out in the table at paragraph 102 above. This would see the need for the funds in trust to be divided $227,229 to the wife and $109,080 to the husband. I am satisfied that such a division is just and equitable as between them.
For these reasons I will make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 20 August 2019
C1: Table of Assets & Liabilities
F1: Written Statement from Ms A
M1: Email dated 9 February 2017 from Ms A to Dr P
M2: Email dated 13 July 2017 from Ms A to Dr P
M3: Letter dated 17 August 2018 from Dr B to Dr C
M4: Letter dated 15 March 2018 from Dr B to Dr C
M5: Qld Police subpoena records
M6: D School for [Y] 1 January 2018 to 31 December 2018
M7: D School for [Y] 1 January 2017 to 31 December 2017
M8: D School for [Z] 1 January 2018 to 31 December 2018
M9: Suburb E Medical Practice notes dated 8 September 2017
M10: Suburb E Medical Practice notes dated 4 September 2018
F2: Appendix 2: House costs from separation to sale
F3: Region F Council 1st half rate and water notice
M11: Commonwealth Bank Homeloan statement 22 September 2016 and 22 February 2017
F4: Father’s written submissions
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Costs
-
Remedies
0
6
2