RICHEY and MORTY
[2017] FCWA 113
•19 SEPTEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RICHEY and MORTY [2017] FCWA 113
CORAM: O'BRIEN J
HEARD: 14-16 AUGUST 2017
DELIVERED : 19 SEPTEMBER 2017
FILE NO/S: PTW 5847 of 2015
BETWEEN: MR RICHEY
Applicant
AND
MS MORTY
Respondent
Catchwords:
PARENTING - Where by virtue of family violence the statutory presumption of equal shared parental responsibility does not apply - Where it is nevertheless in the best interests of the children for the parties to have equal shared parental responsibility - Consideration of equal time.
PROPERTY SETTLEMENT - Where the parties have no realisable assets of significance - Where the husband retains responsibility for liabilities remaining after the sale of the home following separation - Where the husband has superannuation entitlements greater than those of the wife.
CHILD SUPPORT - Where there is no evidence to support the proposed order for a departure from administrative assessment.
Legislation:
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr R Bannerman
Respondent: Self-Represented Litigant
Independent Children's Lawyer : Mr G Athanasiou
Solicitors:
Applicant: Bannerman Solicitors
Respondent: Self-Represented Litigant
Independent Children's Lawyer : Ferrier Athanasiou & Kakulas
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Richey] (“the husband”) and [Ms Morty] (“the wife”) are unable to agree the parenting arrangements to be made for their children, [Child A], born [in] 2009, and [Child B], born [in] 2010 (“the children”).
2The parties are also unable to agree on appropriate orders to finalise their financial relationship.
Background
3The husband is a 32 year old [mechanic]. The wife is 38 years old and is not presently employed outside the home.
4The parties began living together in 2008 and were married on 28 November 2009. They separated on 3 October 2014 in circumstances described in more detail later in these reasons.
5Both parties have re-partnered. The wife is married to [Mr Morty]. They live in a large home on a 10 acre property which is adjacent to a property occupied by other members of Mr Morty’s family. The wife’s daughter from a previous relationship, [Child C] who is aged 13 lives equally with her father and the wife on a week about basis. The husband lives in rented accommodation with his partner [Ms K] and their daughter [Child D], who was born in 2017.
6There were two separate violent incidents shortly after the parties separated. Notwithstanding that, they were able to enter into an agreed arrangement whereby the children initially lived with the wife during the week and with the husband on the weekend.
7After a short period the parties changed those arrangements by agreement so as to enable the wife to spend weekend time with the children. An arrangement was put in place whereby the children spent each alternate weekend with the husband and stayed with him overnight each Tuesday.
8In January and March 2015, the wife raised concerns about Child B. While she maintains that she did not at any time directly accuse the husband of acting inappropriately towards Child B while she was in his care, the suggested inference to be drawn from each concern raised was that Child B had been exposed to possible sexual harm in one incident and physical harm in another.
9The husband commenced proceedings on 26 March 2015. He sought equal shared parental responsibility for the children and a care arrangement whereby the children would spend eight nights per fortnight with the wife and six nights per fortnight with him. He also proposed specific orders in relation to holidays, special occasions and the like.
10The wife filed her response on 6 May 2015. She too sought orders for equal shared parental responsibility. She sought orders for the children to live with her, and that they spend time with the husband each alternate weekend from after school Friday until before school Wednesday, such that the children would spend nine nights a fortnight with her and five nights a fortnight with the husband. She also sought orders in relation to school holidays and special occasions.
11It will be seen that in the early stages of litigation the dispute between the parties was narrow.
12As the proceedings progressed, the financial dispute between the parties emerged and they each sought orders for alteration of property interests. The financial orders sought by each of them at trial are outlined later in these reasons.
13On 11 May 2015 interim orders were made for the children to live with the wife and spend time with the husband each alternate weekend from 2.50 pm on the Friday until the commencement of school the following Wednesday, and such other times as might be agreed including during school holiday periods and special occasions. Orders were also made for the parties each to have telephone communication with the children when they were in the care of the other. An interim order for equal shared parental responsibility was also made, and assumes some importance in the context of later events.
14The arrangements for the children set out in those orders remained in place at the time of trial. Accordingly, for over two years the children’s routine has involved them spending nine nights per fortnight in the care of the wife and five nights per fortnight in the care of the husband.
15The parties attended a case assessment conference on 21 August 2015. At that conference, the husband proposed that the children spend one additional night per fortnight with him and the wife proposed that the interim arrangement remain in place.
16Both parties described the dynamic between them as being difficult. Neither criticised the parenting capacity of the other, and the Family Consultant recorded that both stated that they held “no concerns about any risk of harm to the children related to the mental health, drug and alcohol use, or family violence of either party”.
17In October 2015 the wife filed an application seeking to change the children’s school and to reduce the husband’s time with them. In his response, the husband sought that the children remain at their then current school and that his time with them increase to a shared care arrangement. Those interim competing proposals were determined by the court, and orders were made for the children to change schools, for the existing term time arrangement for their care to remain in place, and for them to spend one half of summer school holidays with each parent on a week about basis.
18Shortly thereafter, an application for a violence restraining order against the husband was brought by the wife on behalf of Child C. In due course that application was resolved on the basis of the husband and his mother giving undertakings without admission whereby they agreed not to communicate with, attempt to communicate with, or approach Child C.
19On 20 January 2016, and notwithstanding her earlier evidence and statements to the Family Consultant, the wife filed a Form 4 Notice of Child Abuse or Family Violence and supporting affidavit. In those documents she made reference to the incidents which took place shortly after separation and to what she alleged were more recent confrontations between her and the husband and members of his family. In particular, she referred to an alleged incident at the children’s school on 9 December 2015.
20In her affidavit in support of the Form 4, the wife also alleged for the first time in the proceedings that at the time of separation the husband was using methamphetamines.
21As a result, orders were made for the appointment of an Independent Children’s Lawyer (“ICL”) and for the parties to undergo drug testing.
22In April 2016, the wife amended her application to seek financial orders, and to seek a reduction in the time spent by the children with the husband.
23In June 2016 orders were made for the appointment of a Single Expert Witness (“SEW”) and Jean-Pierre Menagé, an experienced social worker, was appointed.
24The SEW published his initial report in November 2016, recommending that the children live on a week about basis with each parent.
25Matters were not able to be resolved, and the case proceeded towards trial. Shortly prior to trial, an updated report was obtained from the SEW in which his earlier recommendation was confirmed.
Relief sought by the parties
26At trial, the husband sought equal shared parental responsibility and that the children live equally with each parent on a week about basis. He proposed that arrangements be made to ensure that to the extent possible the children live with the wife at times when Child C is in her care. He proposed that that arrangement should apply both during school term and school holidays, subject to certain specific arrangements proposed for various special occasions. He sought orders for regular telephone communication between the parties and the children, the exchange of information between the parties and the attendance by both parties at special events.
27The husband also sought injunctions restraining the parties from denigrating each other in the presence or within the hearing of the children, and injunctions restraining the wife from taking the children out of the State of Western Australia, changing their schools, or taking them to any specialist medical appointment, counselling or psychological assessment without his consent.
28He proposed financial orders requiring the wife to pay him the sum of $6,500.00 within 30 days and to make a further payment to him equivalent to what he described as “half of the shared debt as at separation” within six months. He otherwise proposed that each party retain their own property and superannuation, and responsibility for their own liabilities.
29The wife sought orders whereby parental responsibility would be “apportioned” as to 80 per cent to her and 20 per cent to the husband. She proposed that the children live with her, and that during school term they spend time with the husband each alternate weekend from 3.00 pm on the Friday until 8.30 am on the Monday. She proposed that that arrangement continue throughout the school holidays, but with the children also spending one continuous week with the husband during the Christmas school holidays each year. She also sought orders in relation to special occasions, the exchange of information and injunctions restraining each party from denigrating the other in the presence of the children.
30The orders sought by the wife in relation to alteration of property interests were expressed by her in the following terms:
(a)Half of [the husband’s] Superannuation; and
(b)$6,830.00 cash payment for the [Car A].
31The wife also sought under the heading “Child Support” an order that the husband “pay an extra $140 per week to cover costs related to private health, school fees, school uniforms, school supplies”.
32At an interlocutory hearing on 24 July 2017 I drew to the wife’s attention the requirements of the Family Law Act 1975 (Cth) (“the Act”) in relation to superannuation splitting, and in particular the requirement that notice of any proposed superannuation splitting order be given to the trustee of the relevant fund. At trial, she acknowledged that no such notice had been given.
The wife as a self-represented litigant
33The husband was represented by counsel at trial. The wife was self-represented.
34At the commencement of the trial I spent some time explaining to the wife the steps that I was required to take to ensure that procedural fairness was afforded to both parties. I informed her of the manner in which the trial was to proceed, the order of calling witnesses and her right to cross-examine. I explained to her the importance of cross-examination and the likelihood that any relevant and factual evidence which she did not seek to challenge on cross-examination would be accepted.
35I explained to both parties the principles by which child-related proceedings are conducted. I ensured that the wife understood that the usual rules of evidence were not to be applied. I outlined the procedures relevant to the hearing, and that if a change in the normal procedure was requested by the husband or the ICL, I would consider whether there was any serious possibility of such change causing her any injustice, in which case I would explain the position to her and ensure that she was aware of her right to object to that proposed course.
36I also discussed with the wife my obligation to attempt to clarify the substance of her submissions so as to ensure that I properly understood her case as she wished it to be put. I had alerted her at the status hearing on 2 August 2017 to the need for her to address how she would envisage her proposed allocation of parental responsibility working in practical terms. I took care to explain various matters to her throughout the course of the trial. I had earlier confirmed that she had received the handbooks produced by the court for the assistance of self-represented litigants; in that manner, her attention was drawn to the law to be applied by the court in determining the issues at trial.
37I am satisfied that the wife understood the information which I gave her. She had no hesitation in asking me questions when she felt the need. She had clearly done her best to prepare carefully for trial and I am satisfied that the hearing proceeded in a manner which afforded her procedural fairness.
The evidence at trial
38At a status hearing, I ordered the parties to confer as to whether the financial proceedings should be conducted as a child-related proceeding pursuant to Pt VII of Div 12A of the Act. At the commencement of the trial they confirmed that they had agreed that the proceedings should be conducted in that manner.
39The husband relied on the following affidavits at trial:
(a)his trial affidavit filed on 27 February 2017 in relation to parenting matters;
(b)his separate trial affidavit filed on 24 March 2017 in relation to the financial case;
(c)his financial statement filed on 7 August 2017;
(d)affidavit of his partner Ms K filed on 27 February 2017;
(e)affidavit of his mother [Mrs PR] filed on 27 February 2017;
(f)affidavit of his sister-in-law [Ms KR] filed on 27 February 2017; and
(g)affidavit of his friend [Ms AK] also filed on 27 February 2017.
40Ms KR and Ms AK were not required by the wife to present for cross-examination and their evidence was accordingly unchallenged.
41Mrs PR was required by the wife to present for cross-examination. Unfortunately, she became seriously ill very shortly prior to trial and was unable to attend. The wife did not suggest that her absence was for anything other than genuine and unavoidable reasons, but properly submitted that her unavailability for cross-examination should impact on the weight to be attributed by me to her evidence. For the reasons which follow, I am satisfied that the evidence from witnesses who were available to be cross-examined was more than sufficient to enable me to properly determine what parenting orders are in the best interests of the children. Mrs PR’s affidavit did not contain any evidence in relation to the financial dispute between the parties. Accordingly, I make it clear that in reaching my determination I have placed no weight on her evidence.
42The wife relied on the following affidavits at trial:
(a)her trial affidavit filed on 21 March 2017;
(b)her financial statement filed the same day;
(c)affidavit of her husband Mr Morty filed on 21 March 2017; and
(d)affidavit of her mother-in-law [Mrs Morty] filed on 21 March 2017.
43The wife had also filed for the purposes of trial an affidavit of her sister-in-law [Ms CM]. At the commencement of the trial she advised that she no longer sought to rely on that affidavit. Nevertheless, Ms CM attended court and observed the trial for significant periods.
44Both Mr Morty and Mrs Morty were required by the husband to present for cross-examination. Mrs Morty attended court in person. Mr Morty [was travelling within] the State for work the day before the trial, but was available for cross-examination by telephone.
45The ICL relied on two affidavits of the SEW annexing his reports. He also called the children’s treating psychologist [Ms M] to give evidence pursuant to a subpoena.
46Counselling memoranda prepared by the Family Court Counselling and Consultancy service were in evidence, as were documents produced by the Department of Communities and the Western Australia Police pursuant to orders made earlier in the proceedings. Various documents produced under subpoena were also tendered into evidence, including the file of Ms M.
Observations as to the oral evidence at trial
47The husband was cross-examined at some length by both the wife and the ICL. In general, he was matter-of-fact and direct in his answers. While some of his responses in relation to financial matters and in particular details of his borrowings from his parents were not entirely clear, and it would appear that some of his disclosure was less than adequate, he made admissions against interest and was never evasive in his responses. He was firm and clear in his denial of various allegations made against him, without reacting angrily to them. He spoke warmly of the children, and had no difficulty or hesitation when asked by the ICL to identify positive aspects of the wife’s parenting. I found him to be an honest witness.
48Ms K was an impressive witness. She answered questions directly, openly and honestly. She was relaxed and polite when being cross-examined by the wife, who in turn conducted her cross-examination in an entirely appropriate manner.
49The wife was cross-examined at some length by counsel for the husband and the ICL. Her evidence was in a number of respects unconvincing. When being questioned about a violent incident shortly following separation, when she punched the paternal grandmother in the face, she was unimpressive and unrepentant. Her explanation of her reports to the Department of Communities and the Police, in which she was at pains to say that she did not directly accuse the husband of anything, were unconvincing yet almost defiant.
50There were marked inconsistencies in her evidence given at various stages in the proceedings.
51Where the accounts of the parties of factual matters within the knowledge of each of them differed, I preferred the evidence of the husband.
52With some notable exceptions, and acknowledging the difficulty in assessing the demeanour of a witness who participates in a hearing only by telephone, Mr Morty appeared to endeavour to give his evidence in a straightforward manner. He was, however, cautious in his choice of words when questioned about arguments he might have with the wife in the presence of the children, appearing to seek to minimise them. He initially sought to assert that questions asked about his financial circumstances were “none of [the questioner’s] business” but then answered those questions without apparent hesitation when required by me to do so.
53His evidence to the effect that the husband was a user and supplier of methamphetamines was unconvincing, unsupported by any other evidence, and contradicted the evidence given by the wife earlier in the proceedings.
54Mrs Morty gave her evidence in an argumentative manner, even after appropriate directions from me. It also became apparent during cross-examination that a good deal of her evidence-in-chief was entirely hearsay, notwithstanding the impression created by her affidavit that it was not. While I do not suggest that she was intentionally dishonest in her evidence, it was clearly coloured by the strong views which she holds. I am unable to place any weight on her evidence.
55The SEW gave his evidence in an appropriately professional and considered manner.
56Ms M also gave her evidence in a considered and professional manner, although it did raise a number of concerns as outlined further below.
The law – parenting case
57In deciding whether to make a particular parenting order, I am required to regard the best interests of the children as the paramount consideration. I must be guided by the objects of the Act and the principles underlying them.
58Section 61DA of the Act provides for a rebuttable presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or another relevant child, or family violence.
59The phrase “reasonable grounds to believe” is not unimportant. The legislation does not require that abuse or family violence be proven for the statutory presumption to be displaced; it is sufficient for there to be reasonable grounds to believe that a party has engaged in abuse or family violence.
60Relevantly, the term “family violence” is defined in s 4AB of the Act to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.” Section 4(1AB) contains the necessary definition of “family member”.
61If the presumption in favour of equal shared parental responsibility applies, it may still be rebutted by evidence which satisfies the court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility. If the presumption does not apply, the court must still consider, albeit from a neutral starting point, whether an order for equal shared parental responsibility is in the best interests of the children.
62If an order for equal shared parental responsibility is to be made, I am required to consider whether the children spending equal time with each of their parents would be in their best interests and whether such an arrangement would be reasonably practicable. If so, I am required to consider making such an order.
63Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent I am required to consider whether spending substantial and significant time, as that term is defined in the Act, with each parent would be in their best interests and reasonably practicable. If so, I am required to consider making such an order.
64In determining what is in the children’s best interests, I am required to consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues as joined by the parties will inform a consideration of the relevance of each of the considerations in the individual case.
The presumption of equal shared parental responsibility
65It is common ground that there were two separate violent incidents involving the parties shortly after their separation. It is also common ground that there have been no subsequent violent incidents and neither party suggests that the other has engaged in abuse of either of the children or any other relevant child.
66The parties separated on 3 October 2014, when the wife informed the husband by text message that she “needed space” and asked that he leave the home. While in her trial affidavit the wife said that on that day the husband “made it very clear he was done in our marriage”, under cross-examination she acknowledged that the relationship ended at her instigation. On 12 October 2014 the husband returned to the home to collect some clothing. The children were not present. While at the home, the husband saw what he thought was clothing belonging to Mr Morty in the master bedroom. While the wife denies that the clothing was Mr Morty’s, or that they were in a relationship at that point, she admitted that they had “gone on a date” the previous evening, and the police incident report from the same day describes Mr Morty as her “new partner”.
67The wife alleges that the husband became angry and that he threw a drawer at her and pushed her into a wall. The husband admits becoming angry, but denies throwing anything at the wife or pushing her. The Police incident report records “nil allegations of assaults”.
68I find that the husband did not assault the wife as she alleges.
69That said, it is common ground that the husband took a baseball bat from the carport and smashed windows on Mr Morty’s car. The Police were called and spoke to all parties. A 72 hour Police order was issued, and the husband was advised that he would be charged by summons. He was subsequently convicted of damaging property and fined $1,000.00.
70There is no question but that the husband’s actions were both inappropriate and violent. It is fortunate that the children were not present. That said, Mr Morty was not at the relevant time a member of the wife’s family (as that term is defined in the Act) regardless of the precise status of their relationship at that point. The Police report also records that the wife was not frightened, and that she did not suggest that the husband had previously hurt her or the children, behaved in a coercive fashion, or made threats.
71The incident on 12 October 2014, accordingly, was not an incident of family violence such as to displace the presumption of equal shared parental responsibility.
72The second incident occurred on the evening of 15 October 2014. The parties had agreed that they would meet at [a restaurant] in [Suburb A] to spend time together with the children. The wife and children attended, accompanied by Mr Morty, and the husband attended in the company of his parents [Mr JR] and Mrs PR.
73The Police incident report records that the parties became involved in a verbal argument about the children, that Mrs PR attempted to calm the wife as she became verbally abusive and that the wife then punched Mrs PR “to the facial area several times with a clenched fist” before being restrained by the husband and his father.
74The Police attended at the restaurant to speak to the wife and Mr Morty. The report records the wife as having told them that she attended the bar with “her new partner Mr Morty, her ex-partner, [the husband], and his parents and the kids”. She said that “all had been drinking when an argument broke out” and that she punched Mrs PR once but could not otherwise remember what had happened. She told the Police that everyone was hitting one another and she was not sure who threw the first punch. Mr Morty told the police that the husband had punched him, and that he had retaliated in self-defence.
75The entire event, which reflects poorly on all concerned, took place in the presence of the children.
76The wife’s evidence at trial in relation to the incident was unimpressive. She was evasive when it was put to her that she had described Mr Morty to the Police as her new partner; I conclude that she did so. She eventually admitted that she had become verbally abusive and that Mrs PR had tried to calm her down. She initially denied punching Mrs PR “several times” and purported not to recall whether she had struck Mrs PR in the face, while eventually admitting that she threw the first punch.
77As a result of the incident, the husband was convicted of disorderly behaviour in public and aggravated assault. The wife was convicted only of disorderly behaviour in public, after Mrs PR refused to provide a statement as she “only attended the Police station so she could have the incident recorded”.
78Counsel for the husband submitted that, notwithstanding the violent nature of the incident, it did not meet the definition of family violence contained in s 4AB of the Act. That submission was based on the proposition that the relevant behaviour did not “coerce or control a member of the person’s family, or cause the family member to be fearful”.
79While that submission may well be accurate in relation to those family members who are adults, it cannot sensibly be suggested that the children, who were only metres away and witnessed the entire event, were not fearful. It is accordingly unnecessary for me to determine whether, had the incident taken place in the absence of the children and had they never become aware of it, the definition of family violence would have been met.
80I conclude, accordingly, that the statutory presumption of equal shared parental responsibility does not apply in this matter.
81That said, for reasons which appear below I have concluded that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The consideration of equal time, and if not equal then substantial and significant time, must be undertaken as mandated by s 65DAA.
The primary considerations
82It is common ground that the children have meaningful relationships with each party, and that it is to their benefit that those relationships be maintained. That said, the wife alleges that the children are anxious before going to stay with the husband, and that their behaviour is “strained and requires counselling” after returning.
83Neither party, of course, has first-hand knowledge of the behaviour of the children in the care of the other. The husband and his witnesses, including those who were not required for cross-examination, described the children as being well-behaved and comfortable in the care of the husband. The wife and her witnesses describe Child A in particular as being badly behaved in the care of the wife, and the audio recording made by the wife and presented into evidence by her is, to put it mildly, consistent with that description.
84While the wife would attribute that behaviour on the part of the children to anxiety at the prospect of seeing their father, or being unsettled on return from his care, the evidence does not support such a conclusion. I note further that a striking feature of the audio recording made by the wife was the seemingly measured and cold manner in which Child A used profanity to describe Child B, and the almost entirely passive response of the wife to that conduct. It seemed not only that Child A used profanity for effect, or to seek to provoke a response as distinct from being distressed, but also that the wife’s lack of response was consistent with an awareness on her part of Child A’s intent.
85In his first report, the SEW when asked to assess the relationships of the children with each party and other significant people said:
My impression is that [the] children are equally well attached to both parents, and enjoy spending time with each of them. This perception is founded on neither of the children making disclosures of any inappropriate experiences in the care of either parent, serious enough to adversely affect the good attachments they seem to have with both [parents]”.
86That opinion was confirmed in his second report, and he noted that “there was no trace of any ambivalence from either [child] about spending time with [the husband]”. He went on to express the view that the husband is “substantially better able than the mother to promote the relationship between the children and the other parent”.
87The file notes prepared by Ms MN at the time of her numerous separate sessions with both children were in evidence, and I have reviewed them thoroughly.
88For the most part, the direct reporting by the children to Ms M about their time spent with the husband, and their interactions with him and with Ms K, was positive. On occasion, negative comments were made but they were not of any apparent significance. The reporting of the children when seen alone generally stood in contrast to the reporting of the wife when she spoke to Ms M at the start of the relevant session.
89I have no difficulty in concluding that both children have meaningful relationships with both parents. The only significant obstacles to the maintenance of those relationships appear to be the acknowledged difficulties the parties have in communicating with each other, the negative attitude of the wife towards the husband, and the apparent propensity of the wife to expose the children to that attitude whether intentionally or otherwise.
90I am required to consider also the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
91The husband does not suggest that the children will be abused or neglected in the care of the wife. Some concerns are raised about exposure of the children to loud and aggressive arguments between the wife and Mr Morty. In his updated report, the SEW noted that:
… [Child A] informed me that she is sometimes saddened and made anxious by [Mr Morty’s] manner of relating to [the wife], which the child described as being abusive.
For example, she alleged [Mr Morty] calls [the wife] a fat bitch, and plays computer games while expecting [the wife] to do all the chores in their home, which she said incited arguments between [Mr Morty] and her mum, that cause [Child A] to feel worried.
In my view, the children are at greater risk of being exposed to aggression in their mothers than father’s care.
92That said, the husband’s only other criticisms of the wife’s care of the children relate to her attitude towards him, and her transmission of that attitude to the children, and to what he would regard as being the associated issue of her taking the children for psychological counselling both without his input and in circumstances where he would regard that counselling as both unnecessary (in Child B’s case) and potentially unhelpful.
93The wife’s position in relation to the question of whether the children need to be protected from a risk of harm in the care of the husband is somewhat less clear.
94In her case information affidavit sworn on 6 May 2015, the wife raised no concerns about the children’s welfare in the care of the husband. The emphasis in her affidavit was in relation to her perceived need for the children to have stability in their routine, and on communication difficulties between the parties. She answered “no” to each question which asked whether she considered the children to be at risk, or held any concerns about substance abuse.
95That affidavit was sworn:
(a)after the two incidents of violence which occurred shortly after separation;
(b)after the wife would say she was aware of drug use on the part of the husband in the period leading up to separation;
(c)after the wife had taken Child B to a doctor following a visit with the husband, expressing concern at a rash around the child’s vagina; and
(d)after the wife had taken Child B to the Police (rather than to a doctor) when she noted bruising around the child’s neck after time spent with the husband.
96In her papers for the Judge, the wife did not assert that the children were at risk of any physical harm in the care of the husband. Rather, she referred to what she would assert as being the children’s wishes, and her view that they would be made more anxious by being required to spend more time with the husband. In her evidence at trial she distanced herself from her actions in relation to Child B’s rash and bruising, emphasising that she had “never accused [the husband] of anything, but had only raised concerns”.
97The Police incident report of 9 March 2015 records that the reported bruising to Child B’s neck was “barely visible” and that Child B was unable or unwilling to disclose how it occurred. Child B made no disclosures and was noted as being “generally a happy normal four-year-old”. When asked by Police if she liked going to her father’s house she “immediately nodded yes”. The wife acknowledged not having spoken to the husband about the matter prior to coming to Police.
98In evidence, the wife acknowledged that an entirely innocent explanation for Child B’s bruising subsequently emerged.
99The expressed concern regarding Child B’s rash did not lead to any substantiation of harm, and the subpoenaed notes of the doctor record that when he subsequently discussed the matter with the wife she raised no new concerns.
100The parties attended a case assessment conference on 21 August 2015 at which the consultant recorded that:
Both parties stated they hold no concerns about any risk of harm to the children related to the mental health, drug and alcohol use, or family violence of either party.
101The consultant further recorded that the only concern raised by the wife about any risk of harm to the children arose from her concern that while in the care of the husband they might be brought into contact with the wife’s brother [Mr GK], who she alleged used illicit drugs and manufactured home-made firearms.
102Importantly, during cross-examination of the husband by the wife the following exchange occurred:
[HIS HONOUR]: Am I right in my understanding that, and you should tell me if I’m not, that you do not suggest that the children are in any harm in his care.
[WIFE]:Not in that matter, back in those days, no.
[HIS HONOUR]: What about now?
[WIFE]:Not entirely, no.
[HIS HONOUR]: So what is your position? Because it’s important and it needs to be put to him squarely... are you saying that the children are at risk of physical harm in his care?
[WIFE]:Not physical harm, no your Honour.
[HIS HONOUR]: So what harm do you say they’re at risk of?
[WIFE]:Just verbally, mentally.
103I conclude that the children are not at any risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence while in the care of either party.
The additional considerations
104The husband says that the children have expressed positive views about their time with him, their relationships with him, Ms K and Child D, and their wish to spend equal time with each parent. He says that the children are of sufficient maturity, and their wishes have been expressed with sufficient consistency, to indicate that their views should be afforded some weight.
105The wife says that the children have expressed negative views about their time with the husband and their relationships with both him and Ms K. She says that they show reluctance to leave her to spend time with the husband, that they both become anxious at the prospect, and that their behaviour suffers on their return. She says that they have expressed the clear wish to spend less time with the husband.
106The SEW addressed the issue of the children’s views and wishes in each of his reports.
107In his first report, he made the following observations:
There were some signs in my interviews with the children that the mother may have influenced their views. For example, the children expressed widely different preferences in their first and second interviews with me; aligned each time with those of the parent who’d brought them to my office. In the first interview, which [the wife] transported the children to, [Child A] and [Child B] both asserted they wanted to spend less time with their father, reducing the present contact arrangements to one weekend a fortnight with him, which is precisely what [the wife] is recommending. In their second interview, which their father brought them to, both children asserted they wanted to spend equal time with each parent. My concern [the wife] might have influenced the views the children expressed in their first interview with me is also shaped by both children making identical and specific recommendations about the time they’d like to spend with [the husband], which aligned perfectly with [the wife’s] recommended spend time arrangements. Moreover, neither of the children were able to give plausible explanations about why they’d like less time with [the husband].
108He noted also that Child A asserted that it was the husband who started the fight at the restaurant, expressing the view that the wife “has been influencing the children’s recollections of and stories they tell about this and other matters”. As noted above, at trial the wife acknowledged that it was she who threw the first punch.
109In his second report, the SEW noted that:
On both occasions that I have met with the children, they have appeared delighted in their father’s care. This is manifestly incongruous with [the wife’s] impression they dislike spending time with [the husband] and want less contact with him then presently occurs. Each time I’ve met [Child A] and [Child B], not only have they appeared overjoyed in their father’s care, notwithstanding evidence referenced in my initial report that their mother is prone to denigrate [the husband] to them, but expressed a firm commitment to spend equal time with each parent.
110He described the children as being “overjoyed” with the husband’s new home. He said:
From meeting the girls at their new home with [the husband], which I did in preparing this update, I can sincerely disclose rarely finding children appearing happier than [Child A] and [Child B] seemed in their father’s and stepmother’s care. They were laughing, seemed excited, happy and confident. I find this significant, as it is demonstrably inconsistent with the demeanour I’d expect the children to display, if [the wife’s] concerns about their welfare in [the husband’s] care were warranted.
111I acknowledge that the wife made it clear both at earlier hearings and at trial that she is critical of the SEW, and apprehends a bias against her in his report.
112I note, however, that the file notes produced by Ms M record independently that on 27 July 2017, in the context of discussing school holiday arrangements Child B told her that she was to spend five days with the husband and nine days with the wife and that she wished “it were even to be fair to everyone”. Ms M’s notes of various sessions with Child A record Child A describing her time with the husband in positive terms. When cross-examined by the wife, Ms M expressed a clear opinion that both children were sufficiently mature to understand both the concept and implications of an equal time arrangement.
113I accept the evidence of the SEW as to the views and wishes expressed to him by the children, and as to his observations of their relationships with the husband and Ms K.
114While some concerns have been raised by Child A in particular as to her perception that Mr Morty behaves in a verbally aggressive manner towards the wife, and the explanations of the wife and Mr Morty in their evidence appeared to acknowledge, albeit with some reluctance, their propensity to engage in loud arguments, I accept their evidence that the children’s relationship with Mr Morty is largely positive.
115The evidence also supports conclusions that the children have positive and valuable relationships with their step-siblings, and various members of the extended families of each party.
116I am required to consider the extent to which each party has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with them and to communicate with them.
117In this case, any failure on the part of the husband to participate in making decisions about the children since the parties separated has arisen almost exclusively because of active steps taken by the wife to deny him the opportunity to do so.
118The wife admitted, for example, giving clear instructions to the staff at [a psychology clinic] to the effect that no information whatsoever about the children’s attendances for counselling was to be provided to the husband even if requested. She maintained those instructions in the face of the interim order for equal shared parental responsibility. Her explanation for doing so, that she was concerned that the husband would take steps to falsely change her contact details as held by the psychologist if he knew the counselling was taking place, was entirely unconvincing.
119It was also directly contradicted by the evidence of the psychologist. During Ms M’s evidence the following exchange occurred:
[HIS HONOUR]: So at the moment are you prevented from meeting with dad because mum engaged you and hasn’t given you her agreement?
[MS M]:Yes.
[HIS HONOUR]: For what reason?
[MS M]:She said that she didn’t want him to have that knowledge and – yes, asked us not to speak to him.
[HIS HONOUR]: So the reason she gave you for not speaking to him was that she didn’t want him to have information about your counselling of [Child A]?
[MS M]:Yes.
[HIS HONOUR]: Was that the only reason she gave you?
[MS M]:Yes.
120The wife has clearly met her obligations to maintain the children. Notwithstanding some criticism that was levelled at him in relation to the timing of assessed child support payments, so too has the husband. The wife’s criticism of the husband for not contributing to the expenses associated with the children’s counselling, in circumstances where she first actively sought to conceal the fact of that counselling from him and subsequently ignored his objections to it, is misplaced.
121The effect of the change to the children’s circumstances proposed by the husband is, in my view, likely to be positive. The evidence supports a conclusion that the children’s time with the husband is beneficial to them, and that they are happy and secure in his care. Importantly, it also supports a conclusion that increasing that time so that it is equal with the time the children spend with the wife is likely to help counteract in a way that is meaningful from the children’s perspective the negative impressions of the husband conveyed by the wife. It can only be hoped that the conclusion of the proceedings will also lead the wife to a conclusion that a greater acceptance by her of the importance of the husband’s role in the children’s lives will be to their benefit, and that she might act on that conclusion.
122There are no relevant practical difficulties or expenses of significance associated with the children spending time with either parent.
123Both parties have an appropriate capacity to provide for the needs of the children, including their emotional and intellectual needs. The only concern in that regard arises from the matters already canvassed in relation to the wife’s attitude towards the husband, and the impact of exposure to that attitude on the emotional well-being of the children. I note in that regard that both parents have completed the “Mums and Dads Forever” course offered by Anglicare. At the conclusion of the trial I was invited by the ICL to consider ordering counselling or participation in further courses by both parents; regrettably, there was insufficient information about the nature, content and availability of relevant courses to enable orders sensibly to be made.
124There are no specific matters relating to the maturity, sex, lifestyle and background of the children or the parents which are relevant to the matters to be determined.
125Other than in relation to the matters already canvassed regarding the communication difficulties between the parties, and the wife’s attitude to the husband, both parties have demonstrated an appropriate attitude to the children and to the responsibilities of parenthood. The matters already canvassed have influenced the wife’s actions in taking the children to counselling, which the husband would assert was either unnecessary or at least excessive; that in turn raises some concern as to the priority placed by the wife on achieving her desired result on the litigation, and the use to which she has put the children in that pursuit.
126The issue of family violence has already been addressed earlier in these reasons. There is no present family violence order in force, the application of the wife having been dismissed on the basis of an undertaking given by the husband.
127Both parties agree that it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the children. They agree in that regard that if an order for the children to spend equal time with each parent is to be made, it would be appropriate for handover to pivot around the end of the school week to avoid potential for confrontation or misunderstanding, and for the cycle of weeks to be established so as to give the children the opportunity to live with the wife during weeks when Child C is with her.
Conclusion – the parenting case
128I conclude that it is in the children’s best interests for the parties to have equal shared parental responsibility for them and I propose to make an order to that effect.
129I conclude further that it is in the best interests of the children to spend equal time with each parent. I agree with the shared view of the parties that such an outcome is best achieved by a week about arrangement, continuing both during school terms and school holidays, subject only to some special occasions and with handover taking place on a Friday afternoon.
130The parties agreed that the children should have the opportunity to communicate regularly by telephone with each parent while in the care of the other, and that it is also in the children’s best interests for mutual non-denigration orders to be made.
131The husband sought orders restraining the wife from involving the children in any psychological counselling or non-urgent medical treatment (other than of a routine nature) without his consent. At the conclusion of the trial, to her credit, the wife agreed that it was appropriate for an interim order in those terms to be made pending the delivery of my judgment. To his credit, the husband agreed that it was appropriate for him to meet with Ms M to discuss the children and properly inform his view as to whether they should continue counselling with her, and orders were made accordingly.
132The husband’s expressed concerns are understandable. By the time of trial, Child A had attended some 34 sessions with Ms M, each immediately preceded by a meeting with the wife at which selective information was provided. As already noted, the husband was actively excluded by the wife from the process. In addition, over the husband’s firm objections Child B was taken by the wife to see Ms M for therapy or counselling on 17 occasions, notwithstanding Ms M’s clearly expressed view that the child was happy, doing well, and had no need for therapy or counselling.
133I do not propose to make orders specifically restraining the wife from engaging the services of Ms M as was initially suggested, particularly as the husband through no fault of his own has not had the opportunity to reach a properly informed view as to whether ongoing counselling might still be of benefit to Child A. I do, however, propose to make orders restraining both parties from involving the children in counselling or seeking other than entirely routine or urgent medical treatment for them without the consent of the other. I regard that as being both consistent with the proposed order for equal shared parental responsibility, and helpful to the efforts which the parties need to make to improve their communication in circumstances where the children will spend equal time with each of them. For the same reason, I propose to make a number of orders about exchange of information, communication and the like.
The property case
134Understandably, the parenting case occupied most of the attention of the parties at trial. Nevertheless, their competing applications in relation to financial matters remain to be determined. As will be seen, it is common ground that the financial circumstances of the parties at the time of the separation were very difficult, and that while there has been some progress towards recovery from those circumstances, they remain modest at best.
The law – the property case
135The court has a wide discretion conferred by s 79(1) of the Act. That discretion is to be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets, or responsibilities for liabilities, are or should be different from those determined by common law and equity.
136The court must be satisfied that it is just and equitable to make an order adjusting existing property interests, including equitable interests. That requirement is readily satisfied in most cases, including this one. Both parties sought orders to alter existing property interests. They are no longer living in a marital relationship and neither proposes ongoing common use of property.
137In determining what orders will be just and equitable, the court’s power is not confined by any “steps” or “stages”, let alone a prescribed sequence of such. Having said that, the court will satisfy the legislative requirements if it identifies and values (to the extent the evidence permits) the existing legal and equitable interests of the parties in property, identifies and quantifies their liabilities, assesses their contributions to the property (including any property which has ceased to be owned by them), assesses the factors in s 79(4)(d) to (g) of the Act, and considers whether the proposed orders are just and equitable.
138The court is required to consider the respective contributions of the parties holistically over the whole period to trial. There is no requirement (legislative or otherwise) for that assessment, or the entitlements of the parties, to be expressed in the form of percentages, nor is a strict mathematical or accounting approach required. That point is not unimportant in the particular circumstances of this case, for reasons which will become apparent.
The present legal and equitable interests of the parties in property
139At the commencement of the trial, a schedule of present assets and liabilities was tendered by counsel for the husband.
140That schedule is reproduced below.
Item
Description
Value
Husband’s
Value
Assets
1
Car (H)
$3,000.00
2
Husband Super
$77,000.00
3
Wife Super
$7,290.00
4
Furniture held by Husband
$1,500.00
5
Bank account for Husband
$420.00
6
Boat (gift from parents)
$1,200.00
TOTAL ASSETS
$90,410.00
Item
Description
Value
Husband’s
Value
Liabilities
1
Mortgage (JT)
$37,930.00
2
Debt to Parents (H)
$28,995.00
3
Legal fee Debt to Parents (H)
$24,000.00
4
Lion Finance (H)
$3,417.00
TOTAL LIABILITIES
$-
$94,342.00
TOTAL NET POOL
-$3,932.00
141After being given a further opportunity to inspect the husband’s disclosure documents, the wife confirmed that her position in relation to the matters set out in the schedule was as follows:
(a)she accepted the accuracy of the values attributed to the assets and superannuation;
(b)she accepted the accuracy of the amount attributed to the debt still outstanding in relation to the home loan which had been secured against the property which has been sold;
(c)she accepted the accuracy of the amount attributed to the debt to Lion Finance;
(d)she accepted the accuracy of the amount attributed to the husband’s asserted debt to his parents for payment of legal fees, but contended that she should not bear any direct or indirect responsibility for that liability; and
(e)she disputed both the existence and the amount of the asserted debt to the husband’s parents in relation to a failed business enterprise, which the husband asserted was as a result of a decision taken jointly by the parties, and of which she claimed to have no knowledge.
Contributions of the parties
142At the commencement of cohabitation, the wife had a motor vehicle and some modest chattels. It was common ground that the motor vehicle was owned subject to a loan, and that the debt was almost equal to the value of the vehicle. The husband also asserted that the wife had a debt to Telstra, which she disputed; for reasons which will become apparent nothing turns on the resolution of that dispute.
143On the husband’s case, at the commencement of cohabitation he owned a home unit in [Suburb B] (“[Property A]”) with modest equity, a motor car, a small parcel of shares in publicly listed companies, and tools and chattels.
144During the course of the relationship, the husband’s shares were sold and the proceeds applied for the benefit of the parties. The financial circumstances of the parties became increasingly difficult, and they fell into arrears in relation to the home loan secured by mortgage against Property A. While each would blame the other for those circumstances, the evidence does not support a conclusion that either party should bear more responsibility than the other for the state of their finances.
145Property A was sold under instructions from the bank prior to the parties’ separation. After application of the proceeds of sale, the shortfall still payable to the bank was just over $68,800.00. The loan which had been secured by mortgage had been taken out by the husband prior to cohabitation, and was in his sole name. On his evidence, which was not seriously disputed, he has since separation made payments of just over $37,000.00 towards that debt, reducing it to the amount which it is agreed remained owing at the time of trial.
146At the time of separation, the parties also had various credit card debts. The husband has made payments totalling some $8,338.00 towards those debts since separation.
147Car A, owned by the parties at separation was sold by the husband, after its registration was allowed to lapse, for $4,000.00. The debt to Esanda associated with the car stood in an amount of just over $10,000.00 prior to separation; Esanda received the proceeds of sale of the car, plus various other payments from the husband. Under cross-examination, and when presented with documents to verify the wife’s assertions, the husband readily acknowledged that the wife had made payments of approximately $6,830.00 in relation to that debt since separation.
148It is common ground that during the course of the relationship the husband was the primary breadwinner and the wife was primarily responsible for domestic tasks and the care of the children. Neither party suggests that either received any significant indirect financial or non-financial contributions from members of their family, other than the assistance provided to the husband by his parents post separation.
Treatment of certain liabilities
149The husband asserts that a debt of just under $29,000.00 remains owing to his parents in circumstances where they loaned that sum to the parties to enable them to purchase a small business package through which customers would be sold prepaid access to adult internet sites. The wife denies all knowledge of the transaction and the business, and there is no documentary evidence to assist in the determination of that issue.
150To the extent it is necessary, I prefer the evidence of the husband. I found his evidence generally to be preferable to that of the wife and I assess his credibility more favourably than hers.
151That said, my finding in that regard does not impact on my view as to what is a just and equitable result as between the parties overall. The wife does not suggest that the money in question did not come from the husband’s parents to the parties, nor does she suggest that anything of value has been retained as a result. She does not suggest wanton or wasteful financial conduct on the part of the husband, beyond her more generalised attributions to him of blame for their financial predicament.
152Equally, the evidence supports a conclusion that the husband has since separation prioritised payments to reduce the debts owed to commercial lenders ahead of repayments to his parents. It appears also that his parents have at least acquiesced in, if not actively consented to or encouraged, that approach.
153I find that the amount in question is owed by the parties to the husband’s parents. I find further that it is likely that the husband will try to meet his obligation to repay his parents when he is able to do so, but that his parents accept that there would be no utility in pursuing repayment more aggressively than they have to date.
154I accept the husband’s evidence as to the amount he owes his parents in respect of borrowings from them for the purposes of paying his legal fees. If, however, in the exercise of my discretion I was to approach the determination of what order is just and equitable in all the circumstances by the expression in percentage terms of any entitlement the wife may have, it would clearly be inappropriate to include the husband’s liability in relation to legal fees in the calculations which would necessarily follow from that approach. The wife cannot appropriately be required to effectively subsidise the husband’s legal costs other than on the basis of an order made pursuant to s 117.
Matters for consideration pursuant to s 79(4)(d) to (g) inclusive
155There is no evidence to suggest that the parties are in other than good health.
156The husband works full-time earning approximately $62,500.00 per annum. His partner Ms K is presently not working, as she is occupied full time with the care of their infant daughter. Ms K’s financial circumstances were not otherwise explored at trial, although I infer from questions asked of the husband in cross-examination that Ms K owns a motorcar subject to a loan, and a home of some description, also subject to a loan. The husband’s evidence was that Ms K’s car loan is met primarily from benefits she receives from Centrelink, and that her ex-partner services the home loan.
157The wife is not presently working. While it was suggested on behalf of the husband that she will have the capacity to do so particularly when orders are made for the children to spend equal time with each parent, there was no evidence available to me to enable an assessment of her earning capacity. Her husband Mr Morty works full-time earning approximately $120,000.00 per annum. There was otherwise no evidence as to his financial circumstances.
158Pursuant to the orders I propose to make, the parties will equally share in the care of Child A and Child B. The husband will also have additional responsibilities towards Child D, and the wife will have additional responsibilities towards Child C.
159There was very limited evidence as to the commitments of each of the parties necessary to enable them to support themselves and their children. It is sufficient to observe that the financial circumstances of both parties remain modest and difficult, and that it is common ground that they enjoyed only a very modest standard of living both during their relationship and immediately after separation.
160The husband is presently entitled to very limited government benefits. By virtue of Mr Morty’s income, the wife is not.
161There is no evidence to suggest that any order I might make for alteration of property interests would affect the earning capacity of either party, nor the ability of any creditor of either party to recover relevant debts. There is also no evidence as to the extent to which either party has contributed to the income or earning capacity of the other, nor to suggest that the duration of the marriage has affected the earning capacity of either of them. Both parties wish to continue in their role as parents, and there is nothing to suggest that the financial orders to be made will affect their ability to do so.
162The husband is paying child support as assessed. While the proposed changes to the arrangements for the children will likely effect a change in the child support assessment, I am satisfied that he will continue to comply with any new assessment and that in any event the question of child support does not affect a determination of what orders as to property are just and equitable in the circumstances of this case.
163The parties did not enter into any binding financial agreement between themselves, and there is no evidence to suggest that either has entered into such an agreement with their new partner.
Conclusion as to the property case
164As already noted, there is no legislative or other requirement for the assessment of matters relevant to the exercise of discretion to be expressed in percentage terms. In the present case, in my view any attempt to do so would be both artificial and unhelpful.
165Neither party retains realisable assets of any real value. Both have superannuation entitlements; the husbands are significantly higher than the wife’s. That said, both parties are young and their ability to access their superannuation entitlements will not arise for many years. There was no evidence to support any argument that either might be able to take advantage of hardship provisions to access superannuation in the short term.
166Leaving aside the husband’s debt to his parents related to legal fees, I am satisfied that the other remaining liabilities are appropriately to be taken into account as being the joint responsibility of the parties, notwithstanding the wife’s assertion that she “received no benefit” from the husband’s ownership of Property A and accordingly should bear no responsibility for the shortfall on the debt secured by mortgage against it.
167The husband has made a significant contribution post separation by his efforts to pay down debts which were outstanding at the end of the relationship. While the wife has had the primary care of the children since separation, the children have spent significant time with the husband and he has paid child support as assessed. I acknowledge also that the wife has made some contributions to liabilities post separation.
168The husband proposes that the wife should pay him a cash sum reflective of equal responsibility on her part for the liabilities as they stood at the date of separation – effectively, that she should pay him back for her share of the payments he has made towards those liabilities since separation, and share equally in them going forward. The difficulty with that proposition is that there is no apparent source from which the wife could make such a payment, and no evidence to suggest that she will be in a position to do so in the future.
169The wife proposes that the husband should take on responsibility for all the liabilities, make a cash payment of just over $6,800.00 to her, and that his superannuation should be split equally between the parties (presumably on the basis that she would retain her own superannuation in its entirety). The difficulties with that proposition are that there is no apparent source from which the husband could make the proposed cash payment even were it justified, the evidence does not support a contention that the liabilities should be treated as if they are the exclusive responsibility of the husband and effectively excluded for the purposes of calculating the wife’s entitlement, and that notwithstanding having been alerted by the court to the need to do so, the wife had by the time of trial taken none of the steps necessary to enable a superannuation splitting order to be made.
170The liabilities for which the husband is presently responsible and which are properly to be taken into account as between the parties total some $70,300.00. His superannuation, which will remain inaccessible to him until he retires, has a value of approximately $77,000.00. Coincidentally, the wife’s superannuation which is equally inaccessible to her has a current value of approximately $7,300.00.
171The only assets of the husband other than in the form of superannuation are a motor vehicle with an agreed value of $3,000.00, furniture with an agreed value of $1,500.00, and a [boat] with a value of $1,200.00 recently gifted to him by his parents. He otherwise has $420.00 in the bank.
172The wife has in her possession modest chattels to which no values were attributed at trial.
173In my opinion, the only just and equitable outcome achievable in the property dispute between the parties will see each of them retain their own chattels and superannuation, and the husband retain responsibility for the liabilities. I propose to make orders to reflect that outcome.
The law – child support
174The court has the power to make an order to depart from the provisions of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”) relating to administrative assessment of child support for a child. The power to make such an order is discretionary, but it is a highly structured discretion. It requires the court to first consider whether one or more of the grounds of departure set out in s 117(2) is established, then (if so) consider whether it is just and equitable within the meaning of s 117(4) to make a particular order, and to consider whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order.
175The establishment of one or more of the grounds for departure of itself requires the establishment of “special circumstances”. While that term does not lend itself to precise definition, it is clear that the intention of Parliament was that the court will not interfere with the result reached by application of the administrative formula in the ordinary run of cases; the facts of the individual case must establish something which is special or out of the ordinary, setting it apart from other cases.
The child support case
176As already noted, the wife sought an order that the husband pay an additional amount of child support to reflect an equal contribution by him to various expenses she claims on behalf of the children, including most significantly the expenses associated with their counselling.
177The entirety of the wife’s evidence in relation to that aspect of her application, apart from that contained in her financial statement, was set out in seven paragraphs of her trial affidavit. She attributed amounts to what she would say are the expenses associated with the children’s health insurance coverage, school fees, school supplies and uniform, and counselling. She also claimed an expense of $50.00 per year for Child B’s [medical condition]. She gave evidence of annual expenses totalling $6,880.00, of which she attributed $4,640.00 per annum to counselling expenses.
178In short, the wife led no evidence to establish the threshold requirement of special circumstances, nor any individual ground for departure from what would otherwise be the administrative assessment of child support. Even had she met that threshold requirement, the evidence was insufficient to support a conclusion that the orders sought would be just and equitable, and otherwise proper.
179I decline to make the orders sought.
Proposed orders
180Subject to any submissions as to form, I propose to make the following orders:
1.All previous parenting orders be and are hereby discharged.
2.[Mr Richey] (“the Applicant”) and [Ms Morty] (“the Respondent”) have equal shared parental responsibility for the children, [Child A], born [in] 2009, and [Child B], born [in] 2010 (“the children”).
3.Subject to paragraphs 4 and 5 of these orders, unless otherwise agreed, the children live equally with each party on a week about basis, with handovers to occur on Fridays as follows:
(a)if it is a school day, the children shall be dropped at school by the party caring for them and collected from school by the other party; and
(b)if it is not a school day, handover shall occur at 4.00 pm at [Place A] in [Suburb C].
4.If practicable, the children’s time with the Applicant pursuant to paragraph 3, shall coincide with the time that the Respondent’s child [Child C] spends with her father.
5.The children’s time with each party pursuant to paragraph 3 be suspended to allow them to spend time as follows:
(a)with the Applicant from 5.00 pm on the day before Father’s Day to 5.00 pm on Father’s Day;
(b)with the Respondent from 5.00 pm on the day before Mother’s Day to 5.00 pm on Mother’s Day;
(c)with the Applicant from 2.00 pm to 8.00 pm on Christmas Eve and 1.00 pm to 5.00 pm on Christmas Day every year;
(d)with the Respondent from 8.00 pm on Christmas Eve to 1.00 pm on Christmas Day each year; and
(e)on the children’s birthdays, they shall spend time or communicate with the party with whom they are not living as follows:
(i) if it is a school day, an additional phone call; or
(ii)if it not a school day, from 5.00 pm on the day before the birthday until 12.00 noon on the day of the birthday.
6.Each party may telephone the children while they are in the other party’s care on Mondays and Thursdays between 5.00 pm and 6.00 pm.
7.Each party be restrained and an injunction is hereby granted restraining them from denigrating or speaking ill of the other party, or allowing other persons to do so, in the presence or within the hearing of the children.
8.The parties shall keep each other advised of their telephone numbers, with such numbers to be used for the sole purpose of communicating in relation to the children.
9.The parties shall keep each other advised of their residential addresses and advise as soon as known of any changes.
10.The parties do all things necessary to authorise the children’s school/s to provide to the other party copies of all school reports, newsletters and other information regarding the children’s school activities.
11.The children’s school/s shall be provided at all times with the contact details for each party in case of emergencies.
12.Each party be entitled to attend all school functions, sports carnivals and other school events which parents are usually invited to attend.
13.Each party be entitled to obtain directly from any school or health professional attended by the children, copies of any report, notice or other relevant verbal or written advice affecting the education, health and welfare of the children. For this purpose, the parties shall notify each other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
14.Each party be restrained and an injunction is hereby granted restraining them from removing the children from the State of Western Australia without the written consent of the other party, which consent shall not be unreasonably withheld. For this purpose, the parties shall give at least four weeks’ notice of their intention to travel with the children outside Western Australia, and shall provide the other party with an itinerary including the contact details for accommodation.
15.Each party be restrained and an injunction is hereby granted restraining them from changing the children’s school/s without the written consent of the other party.
16.Each party be restrained and an injunction is hereby granted restraining each of them from taking the children or either of them to any specialist medical appointment or any appointment in connection with any counselling or psychological treatment or assessment without the prior consent of the other party.
17.The parties shall immediately notify each other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children when the children are in their care, with such notice to include the name of the hospital, medical facility and/or treating practitioner.
18.The Applicant’s interest, if any, in the following vest in the Respondent:
(a)any chattels in the possession of the Respondent;
(b)any money standing to the credit of the Respondent in any bank or other financial institution; and
(c)the Respondent’s superannuation.
19.The Respondent’s interest, if any, in the following vest in the Applicant:
(a)any chattels in the possession of the Applicant;
(b)any money standing to the credit of the Applicant in any bank or other financial institution; and
(c)the Applicant’s superannuation.
20.Each party be solely responsible for any debt or other liability in that party’s name.
21.The Applicant indemnify the Respondent and keep her indemnified in relation to any liability of the parties to the Applicant’s parents.
22.All outstanding applications and responses otherwise be and are hereby dismissed.
23.The Independent Children’s Lawyer be discharged with effect from 30 days after the date of publication of these orders.
24.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
25.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
I certify that the preceding [180] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
19 September 2017
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