SEGNER & SEGNER
[2019] FCCA 3735
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEGNER & SEGNER | [2019] FCCA 3735 |
| Catchwords: HELD – Orders made for the parties to have equal shared parental responsibility for the children, save that the Mother have sole parental responsibility for all medical decisions relating to the child with significant health concerns – orders for the children to live week-about with each parent – order made for the parties to undertake family therapy to assist them to better communicate and effectively co-parent. FAMILY LAW – Property – the parties’ applications for a division of property – where both parties seek an equal division of the only asset for division, being funds held in a solicitor’s trust account – the Father seeks his taxation liability be paid from the funds held in trust – the Mother seeks a notional add-back to the pool being rental income received by the Father from the parties’ investment property – the Mother seeks repayment/reimbursement of expenses incurred in the course of these proceedings. HELD – Order that the Father provide proof of his taxation liability within 30 days, upon which that amount will be released to him from the funds held in trust to enable payment of that liability – order that the monies otherwise held in the solicitor’s trust account be divided equally – order that from the funds paid to the Father, an amount be reimbursed to the Mother in relation to monies expended/costs incurred in the course of these proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 79 |
| Cases cited: Vass & Vass [2015] FamCAFC 51 |
| Applicant: | MR SEGNER |
| Respondent: | MS SEGNER |
| File Number: | MLC 4698 of 2018 |
| Judgment of: | Judge Bender |
| Hearing date: | 16 September 2019 |
| Date of Last Submission: | 18 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Ms Howe |
Solicitors for the Respondent: | J A Middlemis |
| Counsel for the Independent Children's Lawyer: | Ms Mallett |
| Solicitors for the Independent Children's Lawyer: | Joliman Lawyers |
ORDERS
Parenting
All previous parenting orders be discharged.
The parents have equal shared parental responsibility for all long-term decisions to be made in relation to the children Y born … 2004 (“Y”) and Y born … 2010 (“Z”).
In relation to the child X born … 2006 (“X”):
(a)the Mother have sole parental responsibility for all decisions to be made in relation to his medical and allied health needs, including but not limited to:
(i)any treatment regimes for X in consultation with X’s treating medical practitioners;
(ii)which medication X is to be administered and the regularity with which that medication is to be administered, in consultation with and in accordance with the recommendations of X’s treating medical practitioners;
(iii)subject to order (5) herein, which paediatrician and other medical practitioners X is to attend upon; and
(b)the parents otherwise have equal shared parental responsibility for all other long-term decisions to be made in relation to X.
For the purposes of order (3)(a) herein the following shall apply:
(a)prior to the making of any medical or allied health decision in relation to X, the Mother will make a request of the Father for his input or opinion;
(b)provided that the Father gives a response within a reasonable time frame, the Mother will take this view into account in making any decision;
(c)the Mother will afford the Father an opportunity to consult with any medical or other professional involved in the relevant issue and if possible arrange for him to attend any consultations jointly; and
(d)the Mother will notify the Father of the medical or allied health decision made and, in the event that the decision made was contrary to a view expressed by the Father, shall provide him with brief written reasons as to why she has reached a contrary decision.
X’s treating paediatrician shall be Dr B and both parents shall be restrained from causing X to attend upon any other paediatrician save that the Mother may change X’s paediatrician on the advice of Dr B or in the event there is any other reasonable basis for her to do so.
Both parents follow all lawful directions from all of X’s treating medical practitioners and allied health professionals, including which medication is to be administered and the regularity with which that medication is to be administered.
Y, X and Z live with their parents as follows:
(a)during school term and subject to order (8) herein:
(i)with the Father from after school (or 3:30pm) Friday until before school the following Friday and each alternate week thereafter commencing the second Friday of Term 1, 2020; and
(ii)with the Mother from after school (or 3:30pm) Friday until before school the following Friday and each alternate week thereafter commencing the first Friday of Term 1, 2020;
(b)for one half of each school holiday period including the long summer vacation period as agreed between the parents and failing agreement as follows:
(i)with the Father from after school (or 3:30pm) on the last day of school term until the middle day of the holiday period;
(ii)with the Mother for the second half of the holiday period; and
(iii)from after school (or 3:30pm) on the first day of school term Y, X and Z return to the Father; and
(c)at such further and other times as agreed between the parents in writing.
Y, X and Z spend time with each of their parents on special occasions as agreed and failing agreement as follows:
(a)on each of Y, X and Z’s birthdays with the parent they are not otherwise living with on that date:
(i)if the birthday falls on a school day from after school (or 3:30pm) until 7:00pm;
(ii)if the birthday falls on a non-school day from 10:00am until 4:00pm;
(b)with the Father on the Father’s birthday if not living with the Father on that date:
(i)if the birthday falls on a school day from after school (or 3:30pm) until 7:00pm;
(ii)if the birthday falls on a non-school day from 10:00am until 4:00pm;
(c)with the Mother on the Mother’s birthday if not living with the Mother on that date:
(i)if the birthday falls on a school day from after school (or 3:30pm) until 7:00pm;
(ii)if the birthday falls on a non-school day from 10:00am until 4:00pm;
(d)with the Father on the Father’s Day weekend if not living with the Father on that weekend from 5:00pm the day before Father’s Day until the commencement of school Monday;
(e)with the Mother on the Mother’s Day weekend if not living with the Mother on that weekend from 5:00pm the day before Mother’s Day until the commencement of school Monday; and
(f)at Christmas:
(i)in 2019 and each odd year thereafter with the Father from 5:00pm on Christmas Eve until 2:00pm Christmas Day and with the Mother from 2:00pm Christmas Day until 5:00pm Boxing Day;
(ii)in 2020 and each even year thereafter with the Mother from 5:00pm on Christmas Even until 2:00pm Christmas Day and with the Father from 2:00pm Christmas Day until 5:00pm Boxing Day.
The parents communicate with Y, X and Z by telephone each Tuesday that Y, X and Z are not in their care between 6:00pm and 6:30pm and the other parent shall provide all reasonable assistance to enable such communication to take place.
The parents be permitted to attend all school events relating to Y, X and Z normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
If either parent receives notice of any school or extra-curricular special event (including but not limited to concerts, parent teacher interviews, excursions or camps), they shall forthwith provide the other parent with details or a copy of the notification of such event.
If either parent receives notice of a party or other special event for Y, X and/or Z which will take place while the children are with the other parent, they shall forthwith give the other parent notice of such event.
Each parent shall advise the other of any serious illness or injury suffered by Y, X and/or Z as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners
The parents and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or members of the other parent’s household to or in the presence or hearing of Y, X and/or Z and from permitting any other person so to do.
The parents attend upon Mr C for the purpose of therapeutic counselling to assist them to better communicate and effectively co-parent, with the costs of such counselling to be paid by the parents in equal shares.
For the purposes of order (15) herein, the parents provide to Mr C copies of the following:
(a)the family report of Ms D dated 24 July 2018;
(b)the family report of Ms D dated 13 April 2019; and
(c)these Reasons for Judgment.
Property
The funds held in trust for the parties by HQ Law, solicitors, be distributed as follows:
(a)the sum of $35,171.51 be transferred to the trust account of the Mother’s solicitors to be held by them on trust in accordance with orders (18), (19) and (20) herein;
(b)50% of the balance remaining be paid to the Father less $3,675.00 which is to be paid to the Mother;
(c)50% of the balance remaining be paid to the Mother plus $3,675.00 payable to the Mother pursuant to order (17)(b) herein.
By 4:00pm on 19 January 2020 (“the date”) the Father provide to the Mother’s solicitors proof in writing of the amount owing by way of his taxation liability arising from the financial years ending 30 June 2016 and 30 June 2017, including proof of the principal sum (“the amount owing”) and any penalty rates and interest that has been added thereto.
In the event the Father complies with order (18) herein:
(a)the amount owing be forthwith released to the Father from the remaining funds held on trust for the parties by the Mother’s solicitors to enable the Father to make payment to the Australian Taxation Office; and
(b)the balance of the funds held on trust by the Mother’s solicitors, if any, be divided equally between the parties.
In the event the Father fails to comply with order (18) herein by the date, the remaining funds held on trust for the parties by the Mother’s solicitors be forthwith paid to the parties as follows:
(a)$17,585.75 be paid to the Mother; and
(b)$17,585.75 be paid to the Father.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Segner & Segner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4698 of 2018
| MR SEGNER |
Applicant
And
| MS SEGNER |
Respondent
REASONS FOR JUDGMENT
Introduction
The applications before the Court relate to both parenting and property matters following the breakdown of the parties’ 16 year relationship.
At the commencement of the final hearing the Father advised the Court he was seeking orders he have sole parental responsibility for medical decisions relating to the parties’ three children Y born … 2004 (“Y”), X born … 2006 (“X”) and Z born … 2010 (“Z”), that the parties otherwise have equal shared parental responsibility, that Y, X and Z live with him and spend alternate weekends with the Mother from after school Thursday until 5:00pm Sunday, half holidays and special occasions with the Mother.
The Father also sought at the commencement of the hearing there be an order that the Mother’s partner, Mr E, be restrained from living with the Mother overnight when Y, X and Z were spending time with her.
In his closing submissions the Father advised the Court that he is now seeking orders the parties have equal shared parental responsibility for Y, X and Z and that they live week about with each of the parties. The Father also advised he was seeking no restraints on Mr E living with the Mother when the boys are in her care.
In relation to property matters, the Father is seeking orders that his outstanding 2016/2017 tax be paid from the remaining proceeds of sale of the former matrimonial home currently held in trust on the parties’ behalf and the remaining balance be divided equally between the parties. He seeks the parties each retain their superannuation as their superannuation entitlements are very similar.
At the commencement of the hearing, the Mother was seeking orders she have sole parental responsibility for X’s medical decisions and that otherwise the parties have shared parental responsibility for the three boys. The Mother otherwise proposed a shared care regime including school holidays.
At the conclusion of the evidence the Mother’s Counsel advised the Court that the Mother is now seeking she have sole parental responsibility for Y, X and Z, they live with her and spend alternate weekends from after school Thursday until before school Monday, half school holidays and special occasions with the Father.
In relation to property matters, the Mother seeks there be a notional add back to the pool of assets for division between the parties of the rental retained by the Husband from an investment property owned by the parties after separation. She also seeks reimbursement from the Father’s share of the proceeds of sale, 50% of the monies the Mother paid for minor house repairs on the former matrimonial home to ready it for sale, 50% of the Father’s share of the cost of the second report paid from the monies held in trust and her costs of $2,300 the Father was ordered to pay by Registrar Riddiford on 27 September 2018. The Mother seeks there otherwise be an equal division of that pool of assets and the Father be responsible for any tax liabilities from his share of the pool. The Mother agrees each party should retain their superannuation.
The Independent Children’s Lawyer proposes that orders be made for the Mother to have sole parental responsibility for Y, X and Z, for Y, X and Z to live with the Mother and spend time with the Father each alternate weekend from after school Thursday until before school Monday, half holidays and special occasions.
Background
The Father was born on … 1965 and is aged 54 years. It is his evidence he is currently working as a volunteer with the City F Group, the City F Church and as a mentor and is currently in receipt of a Newstart allowance.
It is the Father’s evidence he is intending to reignite his previous career as a professional. He agrees that in the 2015/2016 and 2016/2017 financial years he earned approximately $80,000 per annum from his business and had historically earned in excess of $300,000 per annum from his business. When it was put to the Father that he was likely to be able to earn $80,000-$90,000 per annum again, he responded “anything is possible.”
It is the Father’s evidence he is not currently in a relationship, although Y, X and Z all told the report writer Ms D that the Father has a girlfriend, Ms S, who stays with the Father 2-3 nights per week.
The Mother was born on … 1982 and is aged 37 years. She is employed as a professional with Employer T and earns $92,000 per annum. The Mother has repartnered and is living with Mr E. Mr E is aged 30 and employed as a labourer.
The parties commenced cohabitation in 2001 and married on … 2005.
The Mother was diagnosed with bipolar disorder when she was approximately 22-23 years of age. Her condition is fully controlled by her taking the anti-depressant Fluoxetine.
A report from her treating psychiatrist of some ten years, Dr G, dated 13 June 2018 annexed to his affidavit sworn 21 June 2018, states as follows:
“She has a history of bipolar II affective disorder. She describes episodes of elevated mood with disturbed sleep, increased libido, increased creativity and productivity, and irritability. There are also episodes of depression with low mood, reduced enjoyment, low self-esteem and anxiety, diminished motivation and tearfulness. Her symptoms tend to be mild and have only had a limited impact on her function over the years.
At the time of her last assessment (31/05/2018) she remained generally stable in her mood with no evidence of relapse of an episode to either mood pole despite her distress at the results of her recent court hearing.
Over the time that I have been involved in her care Mrs Segner has been an active player in her health care. She has re-attended frequently with concerns regarding her mental health. She has tended to intervene early in any time of stress or symptom presentation. This has led to a relatively minor need for interventions and a course of illness that been mild in its symptoms and effects.
During her time in my care she has always had a positive regard to her children. She has been at active parent. I have never had any concerns that her psychiatric condition has had a substantial impact on her parenting abilities during her frequent reviews at the clinic. I do not have any current concerns about her ability to parent as her mood state is stable.”
The Father and the Independent Children’s Lawyer did not challenge Dr G’s evidence that the Mother’s mental health is well managed and stable. Dr G was not required for cross-examination.
X has been diagnosed with major behavioural disturbances (meeting the criteria for oppositional defiant disorder, as defined by DSM-5); attention deficit hyperactivity disorder (“ADHD”), intellectual disability (full scale IQ is 63) and autism spectrum disorder. He also suffers from frequent encopresis.
X attends J School in City F, which is a school for students with disability.
X has been attending Dr B, paediatrician, sine 2014. To assist X better manage his behaviour Dr B has prescribed Ritalin. Because of the side effect of this medication, and in particular a loss of appetite, the Father with the agreement of the Mother arranged for X to see another paediatrician, Dr A, to explore the possibility of alternative medications.
It would appear from the evidence that the possible alternate medication available for X is not currently in a form he can take safely.
The Father does not give X his Ritalin on the weekends when X is in his care, so that X’s appetite returns. The Mother does not agree with this strategy.
The parties are unable to agree which of Dr B or Dr A, X should be treated by, with the Father wanting X to be seen by Dr B and the Mother wanting X to continue under Dr A’s care. At the request of the Court, the Independent Children’s Lawyer spoke to both Dr B and Dr A. Both were highly respectful of the other and both were in agreement X should be treated by only one of them.
During the marriage the Mother undertook study and obtained a degree. She has worked as a professional with the Employer T for the last eight years.
During the marriage the Father, who holds qualifications, was a self-employed professional generating income of up to $300,000 per annum.
The parties separated under the one roof on 28 April 2017 and the Father left the former matrimonial home on 14 July 2017 (according to the Mother) or 6 September 2017 (according to the Father).
After the parties physically separated, by agreement Y, X and Z remained living with the Mother in the former matrimonial home and spent alternate weekends with the Father from after school Thursday until before school Monday.
Shortly after the parties’ physical separation the Mother commenced a relationship with her now partner Mr E. Mr E has an extensive and lengthy criminal history involving dishonesty, violence, firearms and drugs. At the time the Mother commenced her relationship with Mr E he had only recently been released from gaol where he served 14 months for theft, burglary, possess prohibited weapon, trafficking ecstasy and driving offences.
The Mother and Mr E commenced cohabitation in October-November 2017.
The Father filed an Initiating Application on 2 May 2018 seeking parenting and property orders. The Father’s interim application that Y, X and Z live with him was abridged and listed on 30 May 2018.
On 30 May 2018 Judge Kirton made interim orders for Y, X and Z to live with the Father and spend time with the Mother each weekend from after school Friday until 12:00pm Sunday. Y, X and Z’s time with the Mother was conditional on the Mother not bringing Mr E into contact with Y, X and/or Z.
In paragraph (13) of her Reasons for Judgment of 30 May 2019, Judge Kirton held:
“Therefore, for the interim, until a family report is obtained and the wishes of the other children are ascertained, it is, in my view, in the best interests of the children that they do live with the father and spend time with the mother on the condition that Mr E is not present. I appreciate the need for the stability of the children’s lives, especially for X; however, the wife, by bringing Mr E into the former matrimonial home and in the daily contact with the children has created an unacceptable risk for the Court, a risk I will not accept until further investigations are undertaken.”
Judge Kirton also ordered the parties attend upon Ms D for an urgent family report.
Ms D prepared a family report dated 11 July 2018 which is annexed to her affidavit affirmed 12 July 2018 and filed 24 July 2018 (“the first report”).
In the first report Ms D describes Y as “a serious young adolescent boy” who spoke positively about both of his parents.
In relation to her asking Y about Mr E, Ms D in paragraph [72] of the first report states:
“When Y was asked if there were any positive attributes about Mr E he said, "He seems kind." Y was asked if there were any not so good aspects about Mr E and he said, "I don't feel safe with him by myself." Y was asked if this was for any reason and he said, “He was in prison not long ago.” Y was asked how he knew that and he said, "Dad found some documents and mum told me as well." Y was asked how he felt about Mr E before he knew about this and he said, "I felt safe. Mum lied to me about that. She said he was having issues with his roommates. I wouldn't feel safe because they lied to me. I wouldn't mind seeing him. I just don't want him living in the house." Y was asked if he always treated him and his brothers okay and he said, "Yes."”
Ms D reports asking Y how he had felt when he heard he was going to live with his father. Y replied it was okay, but he was “Angry at mum that she’d lied to me.”
When asked about who had done most of the caring when he was younger, Y stated “I would probably say mum.”
When asked about living arrangements, Y told Ms D that he would like to live week-about with each of his parents but stated “If Mr E was not there that would be better.” Y further explained that he would want his mother to see Mr E and that he could “come over for a little bit” but he doesn’t “want him sleeping at the house.”
Ms D then asked Y if Mr E had changed, to which he replied “If mum and Mr E had told me initially about his going to jail, and he has now changed but they didn’t, they lied.”
When discussing her interview with X, Ms D noted that he spoke positively of both parents as well as Mr E.
Ms D reports that when X was asked how he would feel if it was decided he were to live with the Father and spend time with the Mother, he said “I want to stay at mum’s house. It’s good there and I can have my pussy cats.”
X was then asked by Ms D how he felt about spending one week with the Mother and one week with the Father. X responded “No, I just want to stay at mum’s house and stay at dad’s house for two nights.”
When X was asked whether there was anything further he would like to tell the judge he responded in part “I just don’t want to stay at dad’s house anymore ‘cos he makes me do the dishes.” X was then asked whether if he didn’t have to do the dishes, would it be alright, to which he responded “Yeah I just don’t want to do the dishes ‘cos at mum’s we all do the dishes fairly.”
When discussing her interview with Z, Ms D notes he too spoke positively about the Mother, the Father and Mr E.
When asked how he would feel if it was decided that he and his brothers live with the Father and spend time with the Mother for two overnights each week, Z responded “I’d like seven days at every house.” Ms D then asked Z if he could manage if they continue the current arrangement, to which he responded “I just want seven days at every house.”
Ms D’s observations of Y, X and Z with both parents were positive.
Under the heading “Evaluation” Ms D makes the following observations in relation to the parties and the difficulties they currently have in working as cooperative parents. At paragraph [107] she states:
“107. There is a high level of conflict between Mr Segner and Ms Segner which prevents them from working as co-operative parents. It is my view they have unresolved issues from their relationship and separation which perpetuates their conflict continuing and also prevents them from developing a means of communicating as co-operative parents. When they commenced their relationship Ms Segner was young, aged eighteen while Mr Segner was aged thirty-four. This is quite a major gap given that Ms Segner was still an adolescent moving through her adolescent tasks while Mr Segner was a mature adult. Ms Segner was in a serious relationship before she had become an independent adult. It is my view that Mr Segner and Ms Segner more than likely did not develop a balanced, stable couple relationship prior to having children given the differences in their ages and in Ms Segner's stage of development so it became difficult for them to develop a co-operative parenting relationship. As Ms Segner lived through her twenties, she became a parent, she was studying and she was maturing meanwhile Mr Segner became a parent, was working and from accounts he supported Ms Segner with her studying. The early days of their relationship were good but they grew apart as they coped with the stress of managing X who was a different child who had special needs (they did not at that time realise the extent of his special needs) and may have at times been a difficult child to manage and would have required a great deal of their time.”
In relation to Mr E, Ms D states the following at paragraph [110]:
“110. One major issue of concern is whether Mr E remains a risk to the children. It is my view that Mr E tried to minimise his criminal activities, he did not appear to show remorse but tried to brush over his criminal history without taking responsibility for it. Ms Segner did not know all of Mr E's convictions and she also appeared to minimise his criminal history. While Mr E has served his sentence and should not be punished further and if he has made positive change then he should be given the opportunity to demonstrate this, but firstly he needs to take responsibility and own all he has done. Ms Segner also seemed to place the three children in circumstances where she was not cognitive of all the information and took the word of Mr E. If Ms Segner and Mr E are planning on being in a relationship then they need to be able to trust each other and not hide relevant information from the other. Ms Segner did not know that one of Mr E's charges for which he was convicted was trafficking ecstasy nor did she know what illicit drugs he has used. This in itself is very serious considering she allowed Mr E to move in with herself and the three children. It is my view that Ms Segner placed the three children at potential risk by not taking the responsibility to find out more about Mr E. They did not know each other for a long period before they started living together which would or should not be a concern to anyone else if the three children were not involved. Mr E did not know (or did not want to say, just describing his former partner as having a 'colourful past') how his children came to be living with his mother apart from child protection being involved. It is my view that Mr E should obtain more information for this Court about his children's experiences. Mr E lived with Y, X and Z for about seven months during which time from the children's accounts, it appeared that he was well-behaved with no concerns arising. Y and Z had some positive attributes about Mr E with no negative aspects about this period of time he lived with them. It was after Y heard about Mr E's criminal past that he became angry about being lied to, while Z does not understand the issues. X has no concept about the issues.”
Ms D concluded at paragraphs [117]-[118] as follows:
“117. In my view a shared care living arrangement would not be an appropriate arrangement and may be far too confusing for X disrupting him too much. If Ms Segner plans to continue living with Mr E then shared care would not work for Y, he would become angrier and resentful toward Ms Segner, which could damage his relationship with her further. Z would be fine, but as mentioned, Z wants the shared care as he wants to treat each parent equally as he is so caught in the middle of the conflict between Mr Segner and Ms Segner.
118. In regard to Y, X and Z spending time with Ms Segner, it is my view this should be alternate weekends from Thursday to the start of school Monday and the alternate Thursday from after school to the start of school Friday as well as half of all school holidays and times on the special days through the year. It is my view that Mr E should be gradually re-introduced to the children perhaps on Saturdays they are with Ms Segner then after two months on Sundays. If Y manages these times then at some stage maybe after six months, Mr E could gradually increase overnight times but if Y does not want this then he may need to have the choice of whether he stays over. The more gradual time it takes, it allows the children and in particular Y to start to trust him and it also allows Mr E more time to demonstrate he will not re-offend.”
Under the heading “Recommendations” at paragraphs [119]-[125] Ms D sets out her proposals for the way forward at that time:
“119. It is recommended that Mr Segner and Ms Segner share parental responsibilities for Y, X and Z.
120. It is recommended at this time that Y, X and Z live with Mr Segner.
121. It is recommended at this time that Y, X and Z spend time with Ms Segner as is set out in paragraph one hundred and eighteen.
122. It is recommended that Y attend a counsellor as referred by his GP on a health care plan.
123. It is recommended that Mr Segner and Ms Segner attend a post separation parenting program at an accredited agency such as a Family Relationship Centre, Relationships Australia or Catholic Care.
124. It is recommended that Mr Segner and Ms Segner use an app for their communication such as ' Our Family Wizard' or 'MyMob Connecting Families' , both available online.
125. It is recommended that Mr Segner and Ms Segner discuss with the professionals treating X (maybe start with Dr B and to include X' s school) about a regular meeting (maybe every three months) to share issues and strategies for dealing with X ' s behaviour.”
Parenting matters again came before Judge Kirton on 12 July 2018 for an interim defended hearing. Orders were made on that occasion by consent for the parties to have equal shared parental responsibility for Y, X and Z, for them to live with the Mother for each alternate week from after school Thursday to before school Monday and from after school to before school Friday in the alternate week, for half school holidays and on special occasions and to otherwise live with the Father.
Consent orders were also made for the sale of K Street, Suburb L (“K Street, Suburb L”), the investment property owned by the parties and for a single expert valuer to be appointed to value the property at N Street, Suburb M (“the former matrimonial home”).
The question of what, if any, interaction the children should have with Mr E was unresolved. Judge Kirton handed down her decision on that issue on 26 October 2018. Her Honour ordered that the Mother could bring Y, X and Z into contact with Mr E on Sundays from 8:00am until 8:00pm for a period of two months and thereafter each Saturday and Sunday from 8:00am until 8:00pm, but that she was otherwise restrained from allowing him to stay overnight in her home at any time whilst Y, X and Z were living with her.
Whilst neither party deposed to this in their trial affidavits or gave clear vive voce evidence to this effect, it is the Court’s understanding that when K Street, Suburb L was sold there were no funds remaining for division between the parties after sale costs were paid and the mortgage discharged.
The matter returned to Court on 27 November 2018 on which date further interim consent orders were made which provided for Y, X and Z to live with the Mother each alternate week from after school Wednesday until before school Monday, as well as provision for the time the children were to spend with each parent during the 2018/2019 long summer vacation.
The orders also required each parent to ensure that X was provided with all medications prescribed by his treating paediatric and medical specialists.
The orders also made provision for the former matrimonial home to be placed on the market for sale and that upon sale, after payment of all sale expenses and the discharge of the mortgage, the remaining funds be held in trust by the Wife’s solicitors save that each party was to receive $20,000 each as part property distribution.
On 29 August 2019 interim orders were made that removed the injunction that prevented Mr E from spending overnight time with the Mother when Y, X and Z were in her care. The order that each party receive $20,000 as part property distribution from the net proceeds of sale of the former matrimonial home was varied so that each of the parties received $50,000 from the funds held in trust from the proceeds of sale of the former matrimonial home as a part property distribution.
The Evidence
The Father
The Father relies on his trial affidavit sworn 22 July 2019, together with his Financial Statement sworn 22 July 2019. The Father gave vive voce evidence at the final hearing.
The Father sought to tender into evidence a document prepared by a psychiatrist, Ms O, in support of a victims of crime application lodged by the Father in August 2019 in relation to his allegations of being raped by the Mother in the latter part of their relationship.
The Father also sought to tender into evidence a letter from psychologist Mr P dated 10 September 2019. Mr P has been assisting X.
As neither of these documents were annexed to an affidavit and neither witness was available for cross-examination, the Father was not given leave to tender or rely on those documents.
In his trial affidavit and his vive voce evidence, the Father struggled to speak positively of the Mother.
In his trial affidavit he deposes to the Mother having manic moods, being very intoxicated, of acting inappropriately in social settings, of not being able to manage many tasks with the children and of aggressively waking him up very late at night and forcing him to have sex with her.
When giving his vive voce evidence the Father confirmed that he has made a statement to the police in which he alleges that the Mother raped him in the latter part of their marriage. When challenged that he had not raised this issue with psychologists seen by him immediately after separation, with the report writer for the first family report, in any of his previous affidavits filed in relation to these proceedings or to his treating general practitioners, the Father conceded that he had not done so. It is his evidence that it wasn’t until he spoke to social workers at the organisation where he assists with Parents Beyond Breakup and Dads in Distress and described what he alleges was the Mother’s behaviour that they used the term ‘rape’ and that he realised he had been a victim of unwanted sexual abuse.
When questioned as to why it had taken him so long to make these allegations against the Mother, the Father stated that “it has taken 25 years for abused children to come forward.”
On 12 September 2018 the Father caused an email to be sent to the headmaster of H School, which in part reads as follows:
“As you will know Ms Segner developed drug dependencies due to bipolar and poor medical professional advice and ended up moving her drug dealer in with the boys. He was only months out of gaol for many offences. I am sure you would have been surprised by this having known us so well.
I have got most custody back and the boys are improving after being badly effected.
There are claims that I was violent that have been verified as false and Ms Segner has been warned by the judge not to make false claims. I find myself cleaning up the mess every day.
I was traumatised by all this but have recovered well and focused on my boys futures now.
As someone who has never had a single cigarette in his life and dedicated himself to self defence, this situation where my boys are allowed by the court to live with violent convicted drug dealers is difficult to accept and believe.
Unfortunately my boys continue to be subject to violence when they are not in my care or your care.”
The Father agreed that at his first appointment with Dr A, he told her that the Mother had mental health issues, that she takes drugs, that her boyfriend is a drug dealer and that she was responsible for giving X incorrect medication that resulted in him being hospitalised.
The Husband conceded in cross-examination that the only illicit drugs that the Mother ever took was when she tried marijuana as a 16 year old and that otherwise her medication is as prescribed by her treating practitioners to manage her bipolar disorder and pain.
The Husband conceded that perhaps this communication was not appropriate. He then proceeded to justify his comments on the basis that he was just defending his children and that X had been admitted to hospital in early 2019 because the Mother had overdosed him with his medication.
In relation to this latter allegation, it became apparent from the hospital records and medical records of Dr G that the Mother had not in fact overdosed X. Rather, she had given him the amount prescribed by the doctor, which had proved to be too much for X.
What was also concerning in relation to the hospitalisation incident was that the Mother had sent the Father urgent messages asking him to confirm what medication he had given X, as X had only just returned to her care from a period of time with the Father. The Father did not respond to the Mother’s email communications, despite the Mother having explained why the information was so urgently needed.
It is the Father’s evidence that he is better able to manage X and his difficult behaviours than the Mother.
In his trial affidavit the Father deposes to there being many instances of violence and inappropriate behaviour by X at school whilst he is in the Mother’s care, and of him having been called up to the school to attend to these issues on most Mondays after X has been in the Mother’s care.
Perusal of X’s school records show that there is no correlation between X acting out at school and which parent he is residing with and that the Father has not been called up to the school on most Mondays after X has been in the Mother’s care.
A major issue between the parties is which paediatrician X should attend and the frequency with which X should be medicated.
It is the Father’s evidence that when taking Ritalin X’s appetite is severely reduced, but when not taking that medication he eats very well. It is therefore the Father’s strongly held view that other than for school attendance, X should not take Ritalin so that he can eat properly.
The Father’s evidence is that this view is supported by one or both of X’s current treating paediatricians and that therefore when X is in his care over the weekend, he does not prescribe Ritalin to X.
This has resulted in X attending school on Monday morning after spending time with the Father in somewhat of an agitated state. It is the Father’s evidence that if that has occurred it is because he has inadvertently forgotten to give X his Ritalin on Monday morning and that the school is able to rectify this as they have Ritalin for X at school as he takes further medication at lunchtime.
Nowhere in the documentation tendered into evidence from X’s treating paediatricians is there any evidence that either doctor agrees that X does not require Ritalin on the weekend.
Correspondence from Dr A which was tendered into evidence, notes that X’s father expressed concerns about his taking of Ritalin and for this reason X was given a trial of a new medication for ADHD called Intuniv.
Unfortunately, because this medication is not available in Australia at this time in a liquid or chewable form, Dr A stated that the Intuniv trial could not continue and X needed to return to Ritalin in the morning and afternoon. There is no mention whatsoever in Dr A’s communication of X being taken off Ritalin on weekends.
Also tendered into evidence was correspondence from Dr B from 21 July 2018. Having set out the recommended medications for X, Dr B in his final paragraph states the following:
“His father, Mr Segner, would like to try him for a period off all medication over the next school holidays – that is reasonable to try whilst in his care. If he is in his mother’s care, she can use medication as outlined above at her discretion during that time. I will review him soon after those holidays.”
There is no evidence before the Court of any review undertaken by Dr B in relation to X going off his medication or that he recommended that that should be ongoing.
Also before the Court was evidence that there were recommendations by X’s treaters after his behaviour became particularly bad when the parties first separated that X undertake both occupational therapy and speech therapy. There was a mix-up with X's National Disability Insurance Scheme funding which resulted in the Father making a decision that X did not have sufficient funding for these therapies as well as his attendance upon his counsellor Mr P. The Father made the decision to continue with Mr P and delay the other therapies until the funding could be resolved. This has meant that X has not had the strongly recommended occupational therapy and speech therapy. The Father did not discuss this decision with the Mother and when questioned about it whilst giving his vive voce evidence did not seem to express any concern that these treatments had been delayed.
Placed before the Court were a number of examples of the parties’ communication or lack thereof. There was a large bundle of text messages and emails from the Mother in which it is clear she is genuinely trying to relay information to the Father in a child-focussed and appropriate manner. The Father conceded that he rarely responds to these emails or text messages.
It is the Father’s evidence that all three boys have mobile phones and he regularly communicates with them. If there is anything that needs to be organised, such as sports games, changeovers and the like, then he is able to communicate those arrangements with the boys without issue who in turn pass on this information to the Mother.
When questioned as to the appropriateness of using the boys to communicate in this way, the Father could not see there was any issue with it.
The Father in his written and oral communication, whether it be his affidavits, communication with the Mother’s solicitor, communication with H School, discussions with Ms D the report writer, communication with X’s teachers, his family friends and community, has continuously referred to Mr E as “a career criminal” or “the drug dealer” and never by his given name.
When discussing the Mother’s parenting, the Father referred to her as making very poor decisions, such as moving a 20-year criminal in with his children and questions how she could ever think it appropriate to move someone like that in with his children.
It is the Father’s evidence he believes that Y, X and Z have thrived in his primary care and that they are doing really well with him.
As noted at the outset of this judgment, the Father’s initial proposal was to have sole parental responsibility for Y, X and Z, for them to live with him and spend alternate weekends with the Mother from after school Thursday until 5:00pm Sunday, half holidays and special occasions.
At the conclusion of all the evidence, the Father in his closing statement told the Court that the last three days, being the final hearing, had been very enlightening and that he had not previously had any clear indication of the status of the Mother and Mr E’s relationship, other than Mr E’s colourful history and information that he had gleaned from others.
The Father submitted that any reasonable person would have been distressed, anxious and angry if they had learned that their former partner had moved in with a person who had only just been released from gaol and that this person was now living with their children. He submitted it was understandable that he was distressed and anxious when this occurred.
The Father submitted that having had the opportunity to see and hear the Mother and Mr E in the witness box, he now accepts that they are as capable as anyone to look after Y, X and Z and that in those circumstances it would be in the best interests of the boys to live in a shared care arrangement with both he and the Mother going forward as they would clearly benefit from having the input of both their parents in their care.
In relation to property matters, it is the Father’s evidence that after the parties separated his focus was on caring for Y, X and Z and he was unable to commit to the conduct of his business and that he therefore was generating very little income to support himself.
It is the Father’s evidence that at the time of separation he had outstanding tax debts to the Australian Taxation Office for the financial years ending 30 June 2015 and 30 June 2016 totalling $35,171.51.
An issue arose in relation to the rental that was paid on K Street, Suburb L post-separation. The Father concedes that those monies were retained by him to meet his day to day living expenses and were not utilised in the payment of the mortgage on that property. It is the Father’s evidence that the mortgages on both the former matrimonial home and K Street, Suburb L were paid from the parties’ offset account, which at separation had some $25,000 in it, and that therefore, at least initially, the rental was not required to service the mortgage on K Street, Suburb L.
The Mother
The Mother relies on her affidavit sworn 21 August 2019. She also relies on her Financial Statement sworn 25 May 2018. The Mother gave vive voce evidence at the final hearing.
The Mother also relies on the affidavit of Mr E sworn 22 November 2018.
The Mother was a most impressive witness. At all times she was entirely child-focussed. She readily acknowledged the positive aspects of the Father’s parenting of Y, X and Z.
It is the Mother’s evidence that X’s behaviour can be worse when he is in her care. She proffered a couple of explanations for this. The first is that X is acknowledged to be less respectful of women than he is of men, which is something that has been observed in his interactions with his teachers at school as well as his interactions with the Mother.
The Mother’s second explanation is that she has been advised that children with behavioural issues such as X’s can act out with the parent that they are most comfortable with as they are safe in the knowledge that they will not be punished unfairly for this behaviour.
The Mother questions whether part of X’s better behaviour with the Father is perhaps based more in fear, because the Father is much firmer with him.
The Mother’s evidence is that X responds very positively to Mr E and that since he has been permitted to live full time with the Mother there has been a measurable improvement in X’s behaviour in her home as he responds positively to Mr E’s interventions when he is behaving badly.
The Mother openly concedes that she could have handled the introduction of Mr E into her home and the lives of Y, X and Z better than she did. She concedes that it would have been preferable that she had not moved Mr E into her home so quickly, that she had told Y more of his history and that, more relevantly, she had been more forthcoming with the Father in relation to her new relationship and Mr E’s past.
The Mother refutes the evidence of Ms D that she did not fully comprehend the seriousness of Mr E’s criminal past. It is her evidence that very early on in her relationship with Mr E, he showed her a print-out of his entire criminal history and that they sat down and discussed his past. It is her evidence that she was satisfied by Mr E’s reassurances that such behaviour was in the past, particularly given his statements to her that his 14 months in gaol had been a real “wake-up call” and that he was never going to behave in a way that would see him return to gaol.
It is her evidence she told Mr E that Y, X and Z would always come first with her and that if he were to in any way repeat any of the behaviours that had brought him to the attention of the police, he would be out of the house and their relationship would be over.
Whilst in closing submissions the Court was told the Mother is now seeking sole parental responsibility for Y, X and Z, her affidavit and vive voce evidence was given on the basis she was seeking orders that she have sole parental responsibility in relation to X’s medical decisions. It is her evidence that whilst X’s appetite is affected by the Ritalin, she has discussed this with his treating doctors. It is her evidence X’s doctors are happy with X’s weight and that they have told her it is more important for X to be given his medication so that he is more settled and able to better manage school and his social interactions.
It is the evidence of the Mother that she believes it is important that X’s treatment is as directed by his paediatrician. She is concerned the Father won’t necessarily follow the paediatrician’s advice if he does not accept it.
It is the Mother’s evidence that the Father will not communicate with her in relation to X’s medical needs which makes it very difficult for them to jointly make decisions in relation to him.
It is the Mother’s further evidence that since separation the Father has refused to attend any appointments with X’s treaters with her and that too makes it very difficult for them to jointly make decisions for him.
It is the Mother’s evidence that she does not think it appropriate for the Father to be using the children to communicate adult issues. She gave a recent example of the Father forgetting to collect Y and Z from school and of him refusing to respond to her text and telephone calls that he needed to pick the boys up. Y had to ring the Father to organise his collection. The Mother quite properly points out that these are matters that the parents should be attending to and should not be issues that the children become involved in.
It is the Mother’s evidence that Y, X and Z were delighted to discover that Mr E was allowed to live permanently with her and that things have moved along very well since the restriction on him staying overnight was removed.
It is the Mother’s evidence that whilst she struggled with the responsibilities of caring for Y, X and Z and putting her life back together when the parties first separated, particularly as X’s behaviour became quite challenging the first few months after separation, she is now a much more confident and stronger person. She describes herself as not worrying about what people say about her, she acknowledges that she is responsible for her actions and what she does and that she is feeling much more empowered. It is her evidence that she receives tremendous support from her parents and Mr E, who are also great supports for Y, X and Z.
In relation to financial matters, it is the Mother’s evidence that whilst the Father has raised the question of the payment of his tax liabilities that pre-date separation, he has never provided any documentary proof as to the amount that is owing in relation to those taxation liabilities and in particular whether the figure being claimed by him includes any penalties which she argues she is not responsible for.
It is the Mother’s evidence that after separation the mortgages on K Street, Suburb L and the former matrimonial home were initially paid from the offset account. It is the Mother’s evidence that the offset account was emptied by January 2018. It is her evidence she paid the mortgage on the former matrimonial home after the offset account ran out.
It is the Mother’s evidence that no payments were made on the mortgage on K Street, Suburb L between January 2018 and its sale in November 2018. The parties were however able to make a hardship application to the bank in relation to that mortgage for that period. It is the Mother’s evidence that in the period from January 2018 to November 2018 the rental on K Street, Suburb L was retained by the Father and she accordingly asks the Court take that into account when considering property matters.
It is the Mother’s evidence that she undertook minor house repairs on the former matrimonial home prior to its sale, which the parties had agreed they would equally share. It is the Mother’s evidence that she paid approximately $1,800 for those repairs and that she has never been recompensed by the Father for his half share.
The Mother concedes she has no invoices that substantiate the amount she paid for these house repairs.
An issue arose between the parties in relation to the costs of the updated family report of Ms D. Ms D charged $3,300 for her updated report and an additional $1,100 to travel to City F, as the Father insisted she do so as he was not prepared to travel to Melbourne.
The Mother paid $1,650 being her share of the cost of the second report from her own funds. The Father’s share of the costs of the second report were paid from the monies that were held in trust from the proceeds of sale of the former matrimonial home. The Mother is seeking that this be taken into account when the balance of the funds currently held in the trust account are divided between to the parties.
On 27 September 2018 the Father failed to attend a Conciliation Conference ordered by the Court. Registrar Riddiford ordered the Father pay the Mother’s costs thrown away in the sum of $2,300. The Mother is seeking that those costs be paid by the Father from his share of the monies currently held in trust.
Mr E
Mr E is the Mother’s partner. Mr E swore an affidavit on 22 November 2018 and also gave vive voce evidence at the final hearing.
In Mr E’s affidavit sworn 22 November 2018 he is very frank in listing his extensive criminal history and in no way seeks to justify or excuse his behaviour.
Mr E deposes that he was sentenced to a period of imprisonment of 18 months in relation to offences that occurred in City F which included a charge of possessing a traffickable quantity of drugs. It is his evidence the drugs were for his own use and that he has never trafficked drugs. Mr E confirmed he was also charged with possession of stolen guns and attempting to steal a caravan.
In paragraph [19] of his affidavit Mr E deposes:
“19. I found being incarcerated at Prison a horrendous experience. I never want to return to prison. I was severely beaten on a number of occasions. I was stood over and intimidated. I was bullied to the point that I had to call my mum and say goodbye because I thought that I was going to be killed. Prison has had a massive impact on me. I am never going to behave in such manner which will lead me to be imprisoned again.”
It is Mr E’s evidence that when he was released on parole he was required to provide twice weekly drug screens for a period of four months, all of which were clean.
It is Mr E’s further evidence that he has undertaken hair follicle tests in June 2018, December 2018 and May 2019 and that all tests undertaken by him have been negative for illicit substances.
It is Mr E’s evidence that he very rarely consumes alcohol as he needs to be .00 to drive a truck, which is part of his role as a labourer with Employer Q, where he has been employed for well over 12 months.
Mr E has three sons, aged 11, 9 and 7 from his previous relationship with Ms R. His sons have been living with his mother for some years after there was involvement by the Department of Family and Community Services in New South Wales. It is Mr E’s evidence that he visits his sons as often as he is able to and in addition, telephones them three times per week.
In relation to his relationship with Y, X and Z, it is Mr E’s evidence that over the last one and a half years their relationship has grown. He notes that each of the boys have different things they like to do and that he tries to accommodate their particular interests and needs.
It is Mr E’s evidence that he has a very good relationship with X. He agrees that X can be difficult, can swear and at times have “meltdowns”. When this happens, he pulls X aside and they talk about what is going on for X. It is Mr E’s evidence that this works well for X.
Mr E was asked by the Father about reports by Y, X and Z that he had allowed them to drive. Mr E explained that he is from the country where all children at a young age learn to get behind the wheel of a vehicle on the farm. It was his evidence that on this occasion the boys were allowed to get behind the steering wheel of his car whilst he was in it and that at no time they got out of first gear.
The Father then asked Mr E whether this was a wise thing to allow X to do. Mr E responded “I know people see X as having a lot of problems. I think he’s got to be given a chance.”
Mr E was asked about the incident where X exposed himself to one of the female teachers and explained that behaviour on the basis that he had seen Mr E do the same thing. Mr E explained that X walked in on him in the shower and that he now ensures that he locks the bathroom door so this can’t occur again.
Mr E advised that when in prison, he was required to do a “stop offending behaviour” course and a course aimed at reintegrating with his children. Whilst on parole, he undertook a drug and alcohol course. Since then he has undertaken a step-parenting course, which Mr E describes as being very interesting as it taught him how to manage the different cycles of the lives of children that are coming from broken homes.
Ms D
Ms D is a family consultant who has prepared two family reports in this matter. In anticipation of the final hearing in this matter, Ms D was engaged to prepare a second report, which is dated 13 April 2019 and annexed to her affidavit sworn 10 September 2019 (“the second report”).
Ms D gave vive voce evidence at the final hearing.
The salient features of Ms D’s first report have been set out in paragraphs [34] to [51] of this judgment.
In the second report Ms D noted the Father to be “a pleasant person apart from when he addressed Mr E in derogatory terms.”
Ms D outlined the Father’s complaints about the Mother’s care of X. She notes he accused her of inappropriately administering X’s medication, of X having problems at school after he had been in the Mother’s care and of him having to attend the school regularly to collect X or deal with issues that had arisen at the school after X had been with the Mother.
In relation to communication, Ms D notes that the Father told her that he had tried using the Our Family Wizard app but found it too hard.
Ms D noted the Father to continue to malign the Mother’s mental state and of him questioning her capacity to manage the boys in a 50/50 shared care arrangement.
In paragraph [21] of the second report Ms D reports the Father telling her that there was no way he would agree to Y, X and Z being in a place with “a career criminal” and in paragraph [32] notes him to be also complain that “the Police, the Court and Solicitor” say that he is committing domestic violence by saying that he does not like the fact there is a criminal living with Y, X and Z.
In relation to the Mother, Ms D notes the Mother told her that she was keen to use the Our family Wizard app and finds it highly frustrating that the Father would not view her messages, would not respond and stopped using it on 15 December 2018.
The Mother told Ms D that the Father is “always angry towards her” and that he keeps referring back to her “drug dealer boyfriend.”
In her discussions with Ms D, the Mother was very positive around the concept of shared care as she believed it would add stability and consistency for Y, X and Z and that she felt X would cope with such an arrangement.
When asked about her views on the Father as a parent, the Mother told Ms D “that she knows he loves the boys and cares for them but he needs some help to reduce his anger toward her so that they can communicate and co-parent.”
Ms D again met with Mr E and notes that he told her “he does not associate with anyone who ‘does wrong’” and that “he is ashamed of what he has done wrong but who he is today is not who he was.”
When discussing Y, Ms D notes he had positive things to say about his parents as well as Mr E.
Ms D asked Y how he thought X would manage a week-about arrangement. Y said he didn’t know.
When Ms D asked Y what X was like at the Mother’s house, Y told her that he is very aggressive and rude and that he sometimes hurts the Mother and Z. Y told Ms D that when Mr E is around, X is much better behaved. Y told Ms D that X misbehaves at the Father’s place as well as at the Mother’s place.
Y indicated to Ms D that “I was thinking Mr E could stay around” and that if Mr E was to live with the Mother that would be “Fine. I would be okay with that.”
When asked if there was anything he wished to tell the judge, Y relied “I’d like it to be week about and Mr E to stay at mum’s.”
X had positive things to say about both his parents, as well as Mr E.
Z too had positive things to say about both his parents as well as Mr E.
Z was asked how he would feel if the current arrangement continued, to which he responded that he wouldn’t feel good about that and that he wanted it to be “seven days with dad, seven days with mum.”
When asked how he would feel if Mr E was to live with them, Z responded it was “good” and that his mother and Mr E “get on really good.”
Z told Ms D that “Dad says stuff about Mum” and that when that occurred he did not feel good.
Ms D’s observations of Y, X and Z with the Father were unremarkable, save that X was restless, bored and wanted to go home.
In relation to her observations of Y, X and Z with the Mother, Ms D notes that “at the start X was complaining and swearing” and being quite disruptive. He grabbed an electronic device and would not give it back and then “went right off, picked up his chair and threw it at the door.” Ms D notes that the Mother “was unable to control X” at that stage she had to step in and say very loudly “stop it I am in control here” which resulted in X sitting down.
At this point in time Mr E came in, gave X a hug and chatted to him. Ms D notes “X settled down with Mr E and was playing a game with him. He even came out of his hoodie and was interacting and smiling with Mr E.”
Under the heading “Evaluation” at paragraph [108] Ms D notes that the nature of the relationships Y, X and Z have with their parents “does not appear to have changed” since the first report and that from the observations and interviews, “Y, X and Z have developed warm and accepting relationships with Mr E.”
At paragraph [113] Ms D notes that:
“113. A major change from the previous report is that during the twelve months plus from the previous report, Mr E has demonstrated a commitment to make positive change. … Mr E takes responsibility for his past criminal behaviour and feels ashamed for this behaviour. Ms Segner clearly has confidence in Mr E and it seemed that Y, X and Z have been able to experience Mr E as a caring adult who takes the time to show an interest in them doing activities with them which they enjoy.”
At paragraphs [114]-[117] and [120] of the second report Ms D raises the following concerns in relation to the Father:
“114. It would appear that Mr Segner continues to feel angry toward Ms Segner and angry toward Mr E, denigrating them to anyone who listens. This would eventually affect Y, X and Z as their experiences of being with Mr E would not equate with how they hear him described by Mr Segner. This would create confusion for them leaving them puzzled. Sooner or later, Y, X and Z may become angry toward Mr Segner as his continual denigration of Mr E and Ms Segner is in reality showing an ongoing lack ofrespect for Ms Segner who is their mother as well as for her partner. Initially, in my view, Ms Segner may have placed the three children at risk by inviting Mr E into their lives without having enough information about him. Over time, Mr E has demonstrated he is not a risk but given how it was initially explained to Y, X and Z by Mr Segner, it is not surprising they were left feeling betrayed by Ms Segner. This has all clearly changed particularly for Y as he took on board what Mr Segner told him and to a lesser extent, X and Z who are now very accepting again of Mr E (as they had previously been before Mr Segner influenced them against Ms Segner and Mr E).
115. The current concern is that Mr Segner is not prepared to accept that Mr E has changed, he does not call Mr E by name but continued to use derogatory terms instead. Mr Segner fails to comprehend how this may impact paiticularly on Y as well as on X and Z. This will make it even more difficult for Y, X and Z to move between Mr Segner and Ms Segner in addition to the entrenched conflict between Mr Segner and Ms Segner. It is not clear what Mr Segner expects to happen but it does seem very sad that he cannot accept that people do make mistakes in life · some more so than others but if a person is able to overcome their criminal past, take responsibility for their behaviour, learn from their behaviour and move on this can also be a valuable learning opportunity about life for Y, X and Z, it does not need to be negative. Mr Segner could set a positive example by accepting Mr E's commitment to make positive change.
116. Mr Segner has very recently alleged to the Police that Ms Segner sexually abused him many times between 2013 to 1017 so that is now a matter the Police are investigating.
117. Given that Mr Segner has not yet been able to aclrnowledge or accept that Mr E appeared to have made positive change over the last twelve months, my view has changed as to his capacity to meet the day to day emotional needs of the children (given how this would impact on the children), but otherwise he seemed to be meeting their intellectual needs and practical needs. Ms Segner now appeared to be meeting the intellectual needs, the day to day emotional needs and the practical needs of the children. In my view it is unknown as to how well the children's health needs and in particular X's medical needs are being met given they each allege the other does not meet these needs. Twelve months down the track, the children's overall emotional needs are not being met while the high level of conflict continues.
…
120. It is so easy to place all the blame on the other parent as Mr Segner has continued to do along with denigrating Ms Segner and Mr E. It is understandable that initially the shock of Mr Segner discovering who Mr E was including not only his criminal behaviour but also that he was just released from having been incarcerated would have been quite devastating for Mr Segner knowing that the three children were involved. As mentioned above, it is time for Mr Segner to stop the denigration and learn just how much Mr E has made positive change.”
In paragraph [118] Ms D expresses the view that the parties should share parental responsibility for Y, X and Z, noting that will mean they must make changes and start working together as parents.
Ms D expresses the view that if either of the parties had sole parental responsibility “there would be doubts as to whether the other parent would be considered when a major issue arises.”
Ms D then expresses the following opinion:
“In my view it is time some maturity was shown by Mr Segner and Ms Segner as the adults and parents who have the responsibility to set appropriate examples to the children. It is time the habit of blame from one parent to the other parent stopped. Unless the conflict stops or is at the least minimised, then over the next few years, each of the children may decide to align with one parent and reject their own parent (there is no guarantee which parent they may align with). In my view it is no longer acceptable that ‘blaming the other parent’ is an excuse to not make positive change to develop a working parenting relationship. The three children deserve better than to have to continually be in the middle of the conflict between Mr Segner and Ms Segner. If an issue arises requiring a joint decision then Mr Segner and Ms Segner should attend mediation to discuss if possible as mature and reasonable parents.”
In paragraphs [121]-[122] Ms D sets out what she believes to be the best way forward for Y, X and Z as follows:
“121. It is my view that while it is usual and not in the best interest of siblings to separate them, in this case, it is in Y’s best interest to listen to what his view is. Y formed a view that shared care would work for him. X in my view is unable to form a view as to what is in his best interest while Z would also like a shared care arrangement It is my view that Ms Segner is unable to manage X whereas Mr Segner maintains he is so X could live with Mr Segner. In my view if Y and Z lived in a shared care arrangement week about, they could be with X each weekend alternating weekends with each parent, with X having the extra overnight stay with Ms Segner on the Monday which means he would only be separated from Y and Z for three weeknights a fortnight. It is my view this would also allow Y and Z to have some respite time from X each fortnight. While shared care is not usually suggested when there is a high level of conflict between parents, it is my view that in this case, the high level of conflict will continue so Y, X and Z have to move between their two parents in conflict regardless. At least with week about Y and Z will be settled each week and X will have three days extra on his own with Mr Segner in a quiet caring environment while Y and Z will have those three days in a quiet environment allowing them some respite time. As Y is becoming older, he would need some quiet time with his studying. It would also allow Z some respite from X as X is becoming taller he will need extra monitoring.
122. The issue of medication and which paediatrician also needs some clarification as Mr Segner and Ms Segner are not agreeing on this issue. It is my view that X should attend the one paediatrician who is in charge of X's medication. In my view this is a matter for the Court.”
Under the heading “Recommendations” Ms D states that it is her proposal that the parties have shared parental responsibility and that their living arrangements be as set out in paragraph [121] of her report.
Further, in paragraph [125] she recommends the parties attend child focussed counselling with Mr C or some other professional as recommended by him or the Independent Children’s Lawyer.
Finally, Ms D recommends the parties use Our Family Wizard without using any other form of communication unless in an emergency.
When giving her vive voce evidence Counsel for the Independent Children’s Lawyer advised Ms D that the Independent Children’s Lawyer would be making recommendations that Y, X and Z live in the Mother’s primary care and spend approximately four nights per fortnight with the Father. Counsel for the Independent Children’s Lawyer explained to Ms D that the basis upon which the Independent Children’s Lawyer was making that recommendation is that the evidence before the Court demonstrates:
·the school did not support the Father’s evidence that X’s behaviour was worse after time with the Mother;
·the Father’s refusal to communicate with the Mother;
·the Father’s use of the boys to communicate with the Mother and his lack of insight that this was inappropriate;
·the Father’s ongoing denigration of Mr E and inability to accept that Mr E has turned his life around and that the boys genuinely now respect and like him;
·the Father’s failure to engage X in speech therapy and occupational therapy despite the strong recommendations that this occur; and
·his version of the recommendations of the paediatrician and what medications X should be taking was not supported by either of the paediatricians currently seeing X.
Ms D was asked whether this would alter her recommendations. She responded as follows:
“it certainly throws up arguments for Ms Segner to have the boys live with her full time. My only concern remains about how X will be managed and whether again it would fall on Mr E. And my other concern is that Y and Z have little respite from X, and while X can be an absolutely delightful child at times … it's my view that as Z is the one at risk from X's behaviour if it's not contained appropriately. And I commend Mr E that he's prepared to support Ms Segner in assisting. It may also be that X will relate differently if Mr E is in that household. I observed how Mr E came into the room and X changed completely, and in no time X was enjoying the time with Mr E. He responded very positively to him. So there's that side of it. Yes.”
Counsel for the Independent Children’s Lawyer then further explored with Ms D her belief that Y and Z need some respite from X and hence her recommendation in the second report that there be time when X is just in the Father’s care and the other boys are with the Mother. Counsel asked whether singling out X might have a negative impact on him. Ms D responded:
“I thought about that, but then I also thought that X could see that as being something special just for him.”
Ms D was advised that it had been raised that X learns about interpersonal relationships as a result of interactions with his siblings. Ms D responded:
“Yes, but I still believe that he would have ample time to learn that in - in the arrangement I've suggested. I don't believe that would take away from it, but I do believe it would give, particularly Z, that chance to have a bit of respite from X.”
Ms D was then asked whether, if the judge considered the Independent Children’s Lawyer proposal of a 10/4 arrangement with the Mother having the primary care of Y, X and Z, would she still propose that X be put “slightly out of sync so that he had additional time with his father”. Ms D responded: “No, I would be prepared to look at the proposal by the ICL.”
Ms D was then asked:
“So the factors that you've heard from me this afternoon have caused you do reconsider the idea that X be put out of sync?”
Ms D responded:
“I think that it has raised some concerns about Mr Segner's behaviour, yes.”
Ms D was then asked:
“And by converse raised some positives about Ms Segner's capacity to deal with X and that environment being more appropriate?”
Ms D responded:
“I would have no concerns about X being with Ms Segner if Mr E remains living with her, and hopefully that’s how it will be. My only concerns were pretty much based on what I saw, X’s behaviour, and from what Y said to me, and then that raised my concerns about Z and what Z has to deal with.”
It was put to Ms D that the evidence before the Court is that after the parties had consulted with Dr A, the Father unilaterally took X back to see Dr B without telling the Mother he intended to do so. It was further put to Ms D that it would appear the Father then followed a regime of treatment for X that it is possible Dr B had not approved. In contrast, the evidence was very clear that whenever the Mother consulted with any of X’s practitioners, she would advise the Father of the appointments and also the outcome of those appointments, even though the Father would not acknowledge her communication.
Ms D was therefore asked, given that evidence, whether it would be better for X if one parent only had the responsibility in relation to X’s medical arrangements and that they communicated what occurred to the other parent. Ms D responded: “Well, that makes sense”.
Best interests of the child
Part VII of the Family Law Act 1975 (Cth) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
“1. The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Mother and the Independent Children’s Lawyer are seeking that orders be made that the Mother have sole parental responsibility for Y, X and Z.
It was unclear when the Father made his closing comments as to whether he is pursuing an order that he have sole parental responsibility for Y, X and Z or whether he is now proposing the parties have equal shared parental responsibility.
It is submitted on behalf of the Mother and the Independent Children’s Lawyer that the Father’s attitude to the Mother and Mr E, his failure to consult the Mother when changing Z’s school to H School, his unilateral decision to take X back to Dr B after having seen Dr A and the Father’s overt denigration of the Mother in the public arena together with his refusal to have any form of communication with her all support orders being made that she have sole parental responsibility for Y, X and Z.
Whilst the Mother was not consulted in relation to the change of school for Z, she now concedes that he is thriving in that school and it has been a positive move for him.
The parties have also been able, it would appear, to make the requisite decisions for Y and he is from all reports a mature, sensible and quite remarkable young man.
The real difficulties that these parties have encountered, and will continue to encounter, is the proper medical treatment and interventions for X.
The parties cannot agree on who X’s paediatrician should be, the Father does not agree with the medication regimes that have been suggested by the doctors and has not put in place the recommended speech therapy and occupational therapy for X. X is currently receiving different medication dosages in each of his parents’ households.
The parties’ inability to be united in relation to all the interventions that X needs is placing X at risk and cannot continue going forward.
Whilst acknowledging that the Father’s unilateral decision to enrol Z at H School was inappropriate, the parties have otherwise made sound decisions in relation to Y and Z. I am therefore of the view that the presumption of equal shared parental responsibility for Y and Z has not been rebutted and that it is in their best interests for both of their parents to jointly make the decisions as to their care going forward.
I am also satisfied that it is in X’s best interests that both his parents continue to make decisions in relation to his care, save and except for those relating to any medical and allied health needs. Given the Father’s decisions in relation to X’s medical matters that have been well canvassed in this judgment, it is very apparent that the responsibility for these decisions needs to rest with the Mother. Orders will be made accordingly.
Consideration of equal time or substantial and significant time
Where parties have equal shared parental responsibility for their children, section 65DAA of the Act requires the court to consider whether it is in the best interests for the children to spend equal time or significant and substantial time with each parent.
In this matter the Father is now proposing that orders be made for Y, X and Z to live equally with each of their parents, whilst the Mother is seeking orders they live with her and spend significant and substantial time with the Father.
Which of these two proposals are in Y, X and Z’s best interests is what is to be determined in this matter.
Conclusion
At the commencement of the final hearing the Father was proposing that he have sole parental responsibility for the parties’ three sons, Y, 15, X, 13 and Z, 9, that they live with him and spend four nights per fortnight with the Mother as well as half holidays and special occasions.
The Mother was proposing that she have sole parental responsibility for X’s medical decisions and keep the Father informed of those decisions and that the parties otherwise share parental responsibility in relation to Y, X and Z. The Mother was proposing that there be a shared care arrangement during the school terms, a sharing of school holidays and special occasions.
At the conclusion of the evidence the Father’s proposal was that the parties have equal shared parental responsibility for Y, X and Z and that they live week about with each of their parents, half holidays and a sharing of special occasions. The Mother was proposing that she have sole parental responsibility for Y, X and Z, that they live with her and spend four nights per fortnight with the Father, as well as half holidays and a sharing of special occasions.
In his closing submissions the Father explained that the three days of evidence had been very enlightening. He explained that until then, he had no clear indication of the state of the relationship between the Mother and her now-partner Mr E, other than Mr E’s colourful history and the information that he had been given by others.
The Father explained that he is now satisfied he has a better understanding of the Mother and Mr E and that he is nowhere near as distressed or anxious as he had been about the Mother’s relationship with Mr E or Mr E’s involvement in the boys’ lives as he had been three days earlier.
The Father submitted that he is now convinced that the Mother and Mr E are as capable as anyone of looking after Y, X and Z and that he believes a shared care arrangement would be beneficial for the children, for himself and for the Mother and Mr E.
The Father somewhat succinctly said that all parties would then be able to keep an eye on X together.
As is usual in parenting cases, the closing statements commenced with submissions on behalf of the Independent Children’s Lawyer.
Counsel for the Independent Children’s Lawyer advised the Court that the Independent Children’s Lawyer’s proposal was for the Mother to have sole parental responsibility for Y, X and Z, for them to live with the Mother and for them to spend from after school Thursday until before school Monday in each alternate week with the Father, as well as half school holidays and special occasions.
The basis for the Independent Children’s Lawyer’s proposal was the very positive presentation of the Mother and the genuine progress she has made in her own development since separation as well as her genuine capacity and willingness to co-parent with the Father in the face of what has been his constant denigration of she and Mr E post-separation and his continued rebutting of all her efforts to communicate with him positively and in a child-focussed way.
The Independent Children’s Lawyer also indicated her concerns in relation to the Father’s presentation and in particular his ongoing denigration of the Mother and her choice of partner, the Father’s refusal to communicate with the Mother in any form of meaningful way about the children and the issues that have arisen in relation to the differences between the parties in X’s medical treatment and in particular which paediatrician he should attend, what medication he should receive and how regularly that should be administered.
Counsel for the Mother adopted the submissions of Counsel for the Independent Children’s Lawyer in explaining the change in the Mother’s position between the commencement of trial and its conclusion.
The report writer Ms D, who prepared two reports in this matter, recommended in the second report that Y and Z live week about with each of the parties and that X have three days extra on his own with the Father, in order to provide Y and Z with some respite and because there is evidence that the Father is able to better manage X’s behaviours than is the Mother, primarily it would appear because X has issues with accepting the authority of women.
When Counsel for the Independent Children’s Lawyer highlighted the concerns that arose in the Father’s evidence in the context of his attitudes towards the Mother, towards Mr E and towards following medical advice with Ms D, Ms D indicated she was not opposed to orders being made as proposed by the Independent Children’s Lawyer.
Whilst the issues of concern in relation to the Father that were highlighted by the Independent Children’s Lawyer was reflected in the evidence before the Court, it was not new evidence. The Father’s evidence was consistent with the Father’s behaviour since separation and with the affidavit material filed by him. The Father and his behaviour was well known to the Mother when she made her initial proposal for shared care. It was also known and well identified by Ms D in the second report when she recommended a shared care arrangement, at least for Y and Z.
At the time that the Mother and Ms D made their recommendations for shared care, both placed considerable weight on the express wishes of Y and Z to live week about with each of their parents. This consideration seems to have been completely ignored by the Mother, the Independent Children’s Lawyer and possibly Ms D when discussing the alternative proposal that is now being put before the Court by the Mother and the Independent Children’s Lawyer.
Y is 15 years of age. He is described as a mature young man by Ms D. The Father describes him as brilliant, beautiful, the most fantastic kid, highly driven and showing no signs of being a rebellious teenager. The Mother describes Y as a very intelligent young man, as having strong opinions and having a lovely bunch of friends with whom he can communicate openly.
Ms D expresses the opinion in the second report that it is in Y’s best interests for the Court to listen to what his view is.
Z has been interviewed twice by Ms D in the last 15 months. He has consistently told her that he wants to live week-about with each of his parents.
The evidence before the Court is that Y and Z are happy, well-adjusted, intelligent, caring young men who are progressing very satisfactorily.
Since their parents separated Y, X and Z have had a period living primarily in the Mother’s care and for the last 15 months primarily in the Father’s care. Despite the Father’s negative attitude towards the Mother and Mr E, Y, X and Z have regularly spent time with the Mother in accordance with the Court orders and the Father has at no time interfered or disrupted their time with her.
The Father professes to having had an “epiphany” at the conclusion of the evidence of the Mother and Mr E. He told the Court that he now realises that the Mother and Mr E have as much to give Y, X and Z as he does and more relevantly, that they are as capable as he is at caring for them.
Counsel for the Independent Children’s Lawyer expressed some scepticism about the genuineness of the Father’s change of heart. However, the Father can at times be his own worst enemy as he wears his heart on his sleeve and it is very clear that he leaves one in no doubt about how he feels.
What is apparent is the Father genuinely loves Y, X and Z and wants what is best for them. What is also apparent is that the Father has not breached the Court’s orders and has enabled Y, X and Z to have an ongoing and meaningful relationship with the Mother despite his negative views of the Mother and Mr E.
In this matter I think considerable weight should be given to the views and wishes expressed by Y and Z about their living circumstances. I also am not satisfied that the matters highlighted by the Independent Children's Lawyer and the Mother are such that those factors outweigh the wishes and views of Y and Z.
I am therefore of the view that the orders that are in Y and Z’s best interests are that they live week about with the Mother and the Father.
Ms D raised the possibility of there being orders made for X to spend more time in the Father’s care than that of the Mother, firstly to give Y and Z some respite from the difficulties of living with a brother who has behavioural issues and secondly because of the possibility that the Father is better able to manage X’s behaviour than is the Mother.
Both parties, and to some degree the Independent Children’s Lawyer, express a concern that orders that differentiated between the brothers and their living arrangements would be seen by X as punishing him and treating him differently. Neither party are in support of that proposal.
More relevantly, now that Mr E lives full time in the Mother’s home, the Mother and Mr E as a combined unit are able to manage X’s behaviour equally as well as the Father.
Orders will therefore be made that X, as well as Y and Z, live week about with each of his parents.
The real issue in this matter is the management of X’s medical treatment. It is apparent that the parties are unable to agree on the best way forward in relation to X’s medical issues and that the Father does not easily follow directions from medical practitioners when he is not in agreement with them.
As was set out in paragraph [270] of this judgment, it is quite apparent that it is the Mother who should have responsibility for the decisions to be made in relation to X’s ongoing medical treatment and interventions.
It is also apparent that it must be made clear to the Father that whatever he might personally believe, he must follow the directions of X’s treaters at all times.
The final issue for determination is the question of which of Dr B or Dr A should be X’s treating paediatrician. Both of these doctors have made it very clear to the Independent Children’s Lawyer that X needs one paediatrician and one paediatrician only. Both spoke very respectfully of the other. Dr B however politely noted that he has been treating X for many years and therefore has a thorough knowledge of X, his issues and treatments.
Whilst the Mother will have sole parental responsibility in relation to X’s medical issues, I am of the view this is a decision better made by the Court at this time as it will leave both parties in no doubt which paediatrician X is to attend and which doctor’s directions it is they must follow.
Because of Dr B’s long history with X, I am going to direct he be X’s sole treating paediatrician. If down the track there is a need for a change of paediatrician then the Mother shall have the responsibility to make that decision.
Ms D recommends that the parties attend Mr C to assist their communication and their capacity to better co-parent. Both parties expressed a willingness to engage in such therapy, subject to cost.
The Independent Children’s Lawyer supports orders being made for this therapy to take place.
This therapy is by far the most important thing these parents can do to ensure that they continue to have three delightful young men and it should be their priority. Both parties will be receiving funds as a result of the resolution of property matters. They will therefore be able to afford to attend upon Mr C. Orders will be made requiring them to do so.
Property
When the parties separated they owned two pieces of real estate, the former matrimonial home and an investment property in K Street, Suburb L.
Orders were made by consent on 12 July 2018 for the sale of K Street, Suburb L.
K Street, Suburb L was subsequently sold and it would appear from the evidence of the parties there was no equity in the property after the payment of sale costs and the discharge of mortgage.
After the parties’ physical separation the rental that was being paid on K Street, Suburb L was retained by the Father.
Initially the mortgages on K Street, Suburb L and the former matrimonial home was met by the parties’ offset account which at the date of separation had approximately $25,000 in it.
It is the Mother’s evidence that the offset account was completely expended by January 2018 and thereafter the mortgage on K Street, Suburb L went unpaid. The Husband retained the rental income to meet his own living expenses and did not use the monies to pay the K Street, Suburb L mortgage.
Orders were made on 27 November 2018 for the sale of the former matrimonial home. On that occasion orders were made for each party to receive $20,000 from the net proceeds of sale as part property settlement.
The former matrimonial home subsequently sold and the net proceeds of sale of approximately $240,000 were placed into trust. On 29 August 2019 orders were made varying the order of 27 November 2018 that each party receive $20,000, so that each of the parties received $50,000 from the net proceeds of sale by way of part property settlement.
Currently there is approximately $140,000 being held in trust on behalf of the parties.
At separation the parties’ superannuation was of a similar value and each agree that they should both retain their current superannuation entitlements in their entirety.
Both parties have motor vehicles which are encumbered by way of loans. The parties are in agreement that they should each retain their motor vehicles and be responsible for any liabilities relating to them.
The parties are in agreement that there should be an equal division of property between them. However the following issues require determination before property can be resolved:
a)should the Father’s tax liabilities for the financial years ending June 2016 and June 2017 be paid from the remaining proceeds of sale of the former matrimonial home prior to division between the parties;
b)should there be a notional add back to the pool of assets for division between the parties for the rental income from K Street, Suburb L between January 2018 and November 2018 that was retained by the Father in the sum of approximately $10,000-$12,000;
c)should the Father pay to the Mother from his share of the remaining proceeds of sale of the former matrimonial home:
i)50% of the costs incurred by the Mother in preparing the former matrimonial home for sale, in the sum of $900; and
ii)50% of the monies paid from the trust account for the Father’s share of the cost of the second report of Ms D; and
iii)the outstanding costs of $2,300 ordered to be paid by the Father by Registrar Riddiford on 27 September 2018 because of the Fathers failure to attend the Conciliation Conference.
The Father’s tax liabilities
It is the Father’s evidence that he has an outstanding tax liability of $35,171.51 for the financial years ending 30 June 2016 and 30 June 2017.
It is the Father’s evidence that he has not been able to afford to pay these tax liabilities and that as they were accumulated during the course of the relationship they are a joint debt and should be paid prior to any distribution to the parties.
Despite repeated requests of the Father to produce proof of the amount of his tax debt during the running of the trial, he was unable to provide the Court or the Mother with any documentation substantiating the amount being claimed by him. Further, he could not confirm whether the figure being claimed by him includes penalties for late payment.
The Father was also unable to fully explain why his tax liabilities were not paid as and when they were incurred in the normal and proper running of his business other than he did not have the funds to pay them.
The Mother argues if these tax liabilities are outstanding, they should be the sole responsibility of the Father.
In the affidavit sworn by the Father on 30 April 2018 in support of his Initiating Application filed on 2 May 2018, he sets out in paragraph [62] the parties’ assets and liabilities. The tax debt is listed as a liability.
The Mother’s evidence is that she is aware there are tax liabilities payable for the two financial years in question but she is unsure as to how much is owed or why they have not been paid.
I am satisfied that the Father’ s taxation liabilities incurred for the financial years ending June 2016 and June 2017 are joint liabilities of the parties as they were incurred during the relationship and the family had the benefit of the income that gave rise to those liabilities. Accordingly, the Father’s tax liabilities should be paid from the funds currently held in trust, before division between the parties.
I do not accept that the Mother should be liable for any penalty or interest that has been incurred as a result of their non-payment as it is the Father’s responsibility to negotiate any non-payment with the Australian Taxation Office.
The Father will therefore be required to provide proof to the Mother’s solicitors by 19 January 2020 that the amount of $35,171.51 is the tax initially assessed as payable by him for the financial years ending 30 June 2016 and 30 June 2017 and that this amount does not include any penalties or interest for late or non-payment.
So that there is no delay in the receipt by the parties of at least some of the monies they are entitled to, orders will be made that an amount of $35,171.51 be transferred to the Mother’s solicitors to be held on trust for the parties and the balance otherwise be divided in accordance with the orders of this Court.
Further orders will be made that if the Father fails to produce the requisite proof by 19 January 2020, the $35,171.51 being held in trust by the Mother’s solicitors is to be divided equally between the parties.
If the Father provides the Mother’s solicitors with the requisite proof that $35,171.51 is the principle amount owing in relation to his taxation liabilities then those funds are to be released to the Father to pay his outstanding tax liabilities. Any penalties that may be charged by the Australian Taxation Office for late payment will be the Father’s sole responsibility.
Add-backs
The Mother is seeking that the rental retained by the Father from K Street, Suburb L be notionally added back to the pool of assets for division between the parties.
The Father concedes that he retained that rental. In his affidavit sworn 30 April 2018 at paragraph [24] he deposes that K Street, Suburb L was tenanted with rent of $975 per month. He states that he is receiving the rent and using it to support himself financially whilst looking for work.
It is the Father’s evidence that post-separation he struggled to find work as a result of the anxiety and depression that he suffered following separation and that when Y, X and Z came into his full-time care he was fully occupied in looking after them.
Whilst this Court has the power to notionally add back assets to the pool of assets for division between the parties (see Vass & Vass [2015] FamCAFC 51), it will not do so where the funds or assets expended were used for reasonable day-to-day expenses (see AJO v GRO (2005) FLC 93-218 at 79,619).
In this matter the Father had the benefit of the rent from K Street, Suburb L. However, the Court is satisfied that he utilised those monies for his reasonable living expenses and those of Y, X and Z and as such there should be no notional add-back of those monies to the pool of assets for division between the parties.
Reimbursement/repayment to the Mother
It is the Mother’s evidence that she paid $1,800 from her own monies to prepare the former matrimonial home for sale. She is seeking that she be reimbursed 50% of those monies by the Father.
The Father submits that any monies expended by the Mother in the preparation of the former matrimonial home for sale was her sole decision and that at no time did she seek his assistance in relation to any works that needed to be done.
The Mother was unable to provide any documents that supported the amount expended by her.
In those circumstances no orders will be made that she be reimbursed for any monies expended by her on the preparation of the former matrimonial home for sale.
The Mother is seeking she be reimbursed her share of the monies that were paid from the joint account to cover the Father’s share of the costs of the second report.
The Father argues that any monies paid from the joint funds for his share of the second report is offset by rates that were outstanding on the former matrimonial home at the time of its sale. He argues the Mother should have been paying the rates on the former matrimonial home as she was residing in the former matrimonial home during the period that those arrears of rates were incurred.
There were arrears of rates on both K Street, Suburb L and the former matrimonial home which were not paid post-separation. Even if it is accepted the Mother should have paid the rates on the former matrimonial home as she had the benefit of living in that property, the Father should have paid the rates on K Street, Suburb L as he had the benefit of the rental paid on that property. There is therefore no merit in the Father’s submission that the outstanding rates on the former matrimonial home offset his share of the second report.
The cost of the second report was $3,300. Because the Father insisted that Ms D travel to City F for the purpose of the preparation of that report, Ms D charged an additional $1,100. The Mother paid $1,650 for her half share of the second report from her own funds. The Father’s costs of the report of $2,750 were paid from the monies held in trust on behalf of the parties.
Accordingly, orders will be made that from the Father’s share of the remaining proceeds of sale, the Mother be reimbursed a total of $1,375 being 50% of the funds expended on the Father’s behalf.
The Mother is also seeking an order that from the Father’s share of the balance of the proceeds of sale she be paid the outstanding costs due to her pursuant to the orders of Registrar Riddiford on 27 September 2018 in the amount of $2,300.
That amount is payable by the Father pursuant to an order of this Court and must be paid. Accordingly an order will be made for those outstanding costs to be paid from the Father’s share of the proceeds of sale.
Conclusion
The assets available for division between the parties are those which are currently held in the trust account of HQ Law of approximately $140,000.
An amount of $35,171.51 is to be transferred to the Mother’s solicitors to be held on trust. Upon production of proof that this amount reflects the initial taxation incurred by the Father for the financial years ending 30 June 2016 and 30 June 2017, absent any penalties, this amount is to be released to the Father to enable payment of that amount towards his outstanding taxation liabilities.
If the Father fails to produce proof that this is the amount payable within 30 days, then the $35,171.51 held in trust by the Mother’s solicitors is to be divided equally between the parties.
In the interim, the balance of the monies held in trust by HQ Law is to be divided equally between the parties. From the amount to be received by the Father, an amount of $3,675 is to be paid to the Mother. This is payment of the outstanding costs owed by the Father pursuant to the order of Registrar Riddiford on 27 September 2018 and reimbursement to the Mother of the Father’s share of the second report that was paid from the parties’ joint funds in the trust account.
Otherwise, orders will be made that the parties retain all other assets in their possession including their superannuation entitlements.
I certify that the preceding three hundred and fifty-eight (358) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 20 December 2019
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