SHANTHA & PRASANNA
[2019] FCCA 1799
•23 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHANTHA & PRASANNA | [2019] FCCA 1799 |
| Catchwords: Property– Both sides seeking adjustments in their favour – parties’ dealings with property in Sri Lanka wholly unclear – parties’ contributions and future needs equal – orders for equal distribution of property pool just and equitable. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Stanford & Stanford [2012] HCA 52 |
| Applicant: | MR SHANTHA |
| Respondent: | MS PRASANNA |
| File Number: | DGC 782 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 6 & 7 May 2019 |
| Date of Last Submission: | 7 May 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 23 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Taylor Splatt & Partners |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr Lovering |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
Children
The Husband and Wife have equal shared parental responsibility for the children, [X] born … 2002 (“[X]”) and [Y] born … 2010 (“[Y]”).
[X] live with the Husband.
[X] spend time with the Wife as agreed between [X] and the Wife.
[Y] live with each parent as follows:
(a)on a week about basis with changeover at the conclusion of school or 3.30pm on a Friday;
(b)on special occasions as agreed between the parties;
(c)such other times as agreed by both parties in writing.
[X] and [Y] be at liberty to communicate with either parent by telephone, Skype, or other electronic means at all reasonable times, with the other parent to facilitate same.
The Wife and the Husband each keep the other informed of their contact details including residential address, email address and telephone number and notify the other of any change in details within 48 hours of such change.
The Wife and the Husband keep each other informed of any significant injury or illness suffered by the child when in their respective care, as soon as practicable, advising the other of:
(a)The nature of the significant injury or illness;
(b)the names of all relevant treating medical and like practitioners.
(c)the treatment given to date and any information in his or her possession about the diagnosis; and
(d)either parent be at liberty to contact treating medical and like practitioners to seek further information and advice.
The Wife and the Husband be authorised to communicate with any treating medical and like practitioners of the child.
Each parent follow all lawful directions of all treating medical and like practitioners of the child (including giving any prescribed medications).
The Wife and the Husband:
(a)be authorised to communicate with any school or kindergarten that the child may from time to time attend for the purposes of obtaining information and providing input into the child’s learning and development; and
(b)be at liberty to request school reports and records, photos and other notices be sent to them at their own expense; and
(c)be named as the primary emergency contacts for the child.
The Wife and the Husband be at liberty to attend all school functions, extracurricular, social and sporting activities of the child to which parents are normally invited.
The Wife and the Husband (and their servants and agents) be restrained from:
(a)denigrating the other parent or the other parent’s family in the presence and/or hearing of the child, or allowing anyone else to do so;
(b)discussing these proceedings with or in the presence and/or hearing of the child or allowing anyone else to do so;
(c)passing messages through the child.
The Wife and Husband do all such acts and things to enrol in and complete the Parenting Orders Program facilitated by Family Life in Suburb J.
The Wife and Husband do all such acts and things to enrol in and complete the ‘Tuning into Teens’ program.
The Order appointing the Independent Children’s Lawyers dated 1 May 2018 be discharged.
Property
The Wife pay to the Husband’s Solicitors the sum of $ 34,950 (which includes the $3,500 costs order made by Judge Burchardt on 23 November 2018) (“the payment”) within 90 days of the date of the orders being made (“the date”).
Contemporaneously with the payment:
(a)the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his interest in the real property known as Street C, Suburb B, being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (“the Street C, Suburb B property”);
(b)the Wife discharge the mortgage registered no. … to the Westpac Bank (“the Street C, Suburb B mortgage”) and indemnify the Husband against any liability pursuant to the Street C, Suburb B mortgage and all rates, taxes and outgoings of or with respect to the Street C, Suburb B property of whatsoever nature and kind.
(c)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of his interest in the real property known as Street A, Suburb B, being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (“the Street A, Suburb B property”);
(d)the Husband discharge the mortgage registered no. … to the Westpac Bank (“the Street A, Suburb B mortgage”) and indemnify the Wife against any liability pursuant to the Street A, Suburb B mortgage and all rates, taxes and outgoings of or with respect to the Street A, Suburb B property of whatsoever nature and kind.
In the event that the payment and the discharge has not been made by the date then the Street C, Suburb B property shall be sold (“the sale of Street C, Suburb B”) and the proceeds of the sale be applied;
(a)firstly to pay all costs, commissions and expenses of the sale of Street C, Suburb B;
(b)secondly to discharge the mortgage and any other encumbrances affecting the Street C, Suburb B property;
(c)thirdly to pay the payment to the husband together with interest thereon pursuant to rule 17.03 of the Family Law Rules2004 from date of default.
(d)fourthly the balance to the Wife.
Pending the transfer or completion of the sale:
(a)the Wife have the sole right to occupy the Street C, Suburb B property. During such right of occupation the Wife pay all instalments pursuant to the Street C, Suburb B mortgage and all rates, taxes and like apportionable outgoings of the Street C, Suburb B property as they fall due;
(b)the parties hold their respective interests in the Street C, Suburb B property upon trust pursuant to these orders;
(c)neither party encumber the Street C, Suburb B property without the consent in writing of the other party.
In the event that the discharge of the Street A, Suburb B mortgage has not taken place by the date set out in paragraph 1 then the Street A, Suburb B property shall be sold (“the sale of Street A, Suburb B”) and the proceeds of the sale be applied:
(a)firstly to pay all costs, commissions and expenses of the sale of Street A, Suburb B;
(b)secondly to discharge the mortgage and any other encumbrances affecting the Street A, Suburb B property;
(c)thirdly the balance to the Husband.
Pending the transfer or completion of the sale:
(a)the Husband have the sole right to occupy the Street A, Suburb B property. During such right of occupation the Husband pay all instalments pursuant to the Street A, Suburb B mortgage and all rates, taxes and like apportionable outgoings of the Street A, Suburb B property as they fall due;
(b)the parties hold their respective interests in the Street A, Suburb B property upon trust pursuant to these orders;
(c)neither party encumber the Street A, Suburb B property without the consent in writing of the other party.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.
(b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(c)all insurance policies to become the sole property of the beneficiary named therein.
(d)each party to 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;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The parties shall do all things and sign all documents as may be necessary to give effect to these orders.
AND THE COURT NOTES THAT:
A.The parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Shantha & Prasanna is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 782 of 2018
| MR SHANTHA |
Applicant
And
| MS PRASANNA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property dispute that has been made more difficult by the parties’ tendency to prolixity and over concentration on relatively unimportant matters.
So far as parenting matters are conferenced, the applicant father seeks that the eldest child of the relationship, [X], born … 2002, live with him and spend time with the mother in accordance with her wishes, and that the younger child, [Y], born … 2010, live on an equal time basis, of seven days about, with each parent. The respondent mother seeks that [X] live with her until she finishes VCE this year and, thereafter, lives where she wishes and that [Y] live predominantly with her and spend time with her father. The Independent Children’s Lawyer supports the position of the father and, for the reasons that follow, I am going to make the orders proposed by the Independent Children’s Lawyer and the father.
So far as property is concerned, the father seeks a 55 per cent division of the property assets in his favour and the wife seeks a division with 65 per cent in her favour. The property aspects of the case are littered with assertions that it is difficult to construe and there is considerable obscurity about some matters which might otherwise have been significant, including most particularly the extent of the parties’ property ownings, from time to time, in Sri Lanka, from where they both come, and the extent to which they have both sent moneys to relatives in that country. For the reasons that follow, I am going to make an order that there be a 55/45 division of the parties’ non-superannuation property in favour of the Wife, with both parties to retain their superannuation.
Agreed or Uncontroversial Facts.
The father was born on … 1974 and works as a factory worker. His base salary is $65,323, he receives a bonus of $4000 and can earn some $20,000 to $30,000 in overtime. The wife was born on … 1977 and is a professional. Her income was the subject of somewhat more dispute than that of the husband. She has a business which it will be necessary to deal with.
The parties were married on … 1999 in Sri Lanka and, as earlier detailed, [X] was born on … 2002. The parties came to Australia on … 2006 and became permanent residents in 2007 and [Y] was born on … 2010.
The parties appear to have separated in about 2014, albeit that they remained living separated under one roof for some time. The wife took out an Intervention Order in August 2017 and the parties were divorced on 6 September 2017.
The parties own two properties. The former matrimonial home was bought in 2009, at Street C, Suburb B, and in 2012 they purchased an investment property at Street A, Suburb B. The husband moved in to the investment property at Street A, Suburb B, when it ceased to be tenanted in December 2017.
Following the husband’s application in this court, a section 11F report was conducted in May 2018, following which orders were made, by consent, on 9 May 2018 that the children live with the mother and spend time with the father. Those orders were altered on 6 August 2018, for [X] to live with the father and to spend time with the mother, according to her wishes, and [Y] live with the parties on a week about basis, albeit not in blocks of seven days.
The Parties’ Materials and Affidavits
The parties, as earlier indicated, had a tendency to file affidavit material which is either of marginal relevance and/or prolix and/or repetitive. Much of the salient matters denoted in these affidavits is already summarised above. Points of note are when the mother filed her first response, on 17 April 2018, she sought a property division of 85 to 15 per cent in her favour, with superannuation to be equalised. I note that she described her income in her accompanying affidavit as $66,300 and complained of a total failure of financial support since early 2014, on the husband’s part. She also deposed to a long history of verbal abuse during the relationship. Interestingly, a significant component of the alleged abuse was said to have arisen from the husband’s conduct in relation to finances, including an allegation that he had not contributed to the home loan on the matrimonial home since 2014. There are no allegations of assault in the mother’s prolix material. The bulk of complaints appear to relate to financial matters.
Much of the parties’ subsequent affidavits is, essentially, repetitive of their earlier complaints, although I note [X] going to live with the father in May 2018 (father’s affidavit, 31 July 2018) and the Intervention Order made against the father in May 2018 (mother’s affidavit, filed 29 April 2019).
The husband’s trial affidavit filed 1 May 2019 sets out a lengthy history in relation to properties in Sri Lanka, paragraphs 28 and following, and, indeed, property owned by the wife in Sri Lanka. These matters are scarcely put with any great precision and I should indicate now it will not be possible to make any kind of detailed findings about the parties’ dealings with properties in Sri Lanka, although there were, undoubtedly, a number of them.
I should emphasise that I have read the parties’ affidavit materials carefully, but, for the reasons already indicated, it is not necessary to traverse them in any great detail, but rather to concentrate on what was put at court.
The Section 11F Report.
The section 11F report, dated 9 May 2018, from Ms D notes the Intervention Order was due to expire on 8 May 2019 and that, “Ms Prasanna advised she applied for an IVO when Mr Shantha allegedly damaged her property” and that he was charged without conviction of contravening family violence orders, having given a 12 month good behaviour bond.
The report noted, accurately, that the Department of Health and Human Services s.67 response denoted that the parental capacity of the father was not such as to place the children at significant risk and that any family violence was historical and unlikely to continue, with the parents separated.
I note that the report indicated, on the second page, a number of dot points which is worth repeating, as they entirely accord with my appreciation of the evidence:
“…
·“The parties indicated there have been difficulties throughout their relationship and at times high conflict in which the children were exposed to.
·The parties have been unable to communicate following their separation in 2014 but remained living under the same roof. At interview they reported they continued to have difficulties communicating without conflict.
·Ms Prasanna appeared to be focused on blaming Mr Shantha for their relationship breakdown. She accepted no responsibility for her involvement in their conflict.”
The report noted that the mother was adamantly opposed to the children spending overnight time with the father.
The report noted that the father presented as very child-focused and that [X] had indicated she wished to live with him.
[X] presented to Ms D as a very mature young woman and that the mother had talked to her many times about issues with her father. [X] was angry with her mother and blamed her for the separation and for her not spending time with her father. She wished to live with her father, but did not wish to be separated from her sister.
[Y] was only briefly interviewed, as she was seven years old, and was less definitive about who she wished to live with. The children were perfectly happy when they saw their father.
On the final page of the report, Ms D noted:
“…
·“Ms Prasanna has demonstrated she was not supportive of the children spending time with their father and has been unwilling to facilitate time in effect, obstructing time.
·as such, she demonstrated a lack of understanding about her children’s wishes and needs to have a relationship with their father. The veracity of her concerns regarding the children spending time with their father was questionable. Her concerns appeared to lack substance and the children and their father equally disputed them.
·there did not appear to be any immediate concerns of risk regarding the children’s time with their father and, therefore, it is recommended this commence immediately.”
The report adopted the recommended minimum of five nights per fortnight with their father.
The Family Report of April Ms E, 25 April 2019
Ms E set out the background and some of the history of the matter, noting the extant orders for [X] to live with the father and [Y] to spend seven/seven on a split basis. Having noting the DHHS response and 11F report, Ms E turned to the adults. The father, “expressed as an open man who is amenable to the interview process” (paragraph 37).
At paragraph 38, the report noted:
“Ms Prasanna impressed as a particularly emotional woman. She expressed, with urgency, her belief that the parents’ eldest daughter, [X] had been held against her will, by her father and was not permitted to communicate with her. Ms Prasanna reported that [X] was currently subject to her father’s coercive controlling behaviours and she believed that [X] was fearful of him and sought that [X] be permitted to return to her primary care.”
Ms E went on to traverse the mother’s numerous concerns about, and criticism of, the father, both as a parent and more generally. The report noted the mother’s profound distress that following the 11F conference [Y] was spending a minimum of five nights at her father’s per fortnight. The report noted the continuing conflict between the parents as to [Y]’s parenting arrangements.
Ms E interviewed [X] who, as with Ms D, impressed her as being an intelligent and mature teenager, with a good understanding of the purpose of the interview. [X] informed Ms E that she had repeatedly requested to see her father, but the mother would not permit this and referred to the Intervention Orders she had taken out. [X] felt that her mother had manipulated this outcome and was annoyed with her and acted in ways of which she was no longer proud. [X] confirmed that she could speak to her mother, should she wish to do so, and denies the mother’s assertions that this was not the case.
[Y] participated readily in her interview. She explained the current parenting arrangements and said that they could be confusing. She often forgot which home she was returning to each evening and this led to various difficulties. From what [Y] told Ms E, it is clear that the mother has comprehensively involved her in matters relating to the court proceedings. At paragraph 81, Ms E opined, “overall, [Y]’s interview suggested that she had been overly exposed to her mother’s views and wishes. It appears that Ms Prasanna has openly discussed with [Y] the various reasons she should live primarily with her.”
In paragraph 84, the report noted:
“Furthermore, it appears that Ms Prasanna continues to misinterpret [X]’s views and wishes and demonstrates little insight into how the parental separation may have affected [X] and their relationship.”
The time the mother spent with the children went well, albeit it was somewhat emotional, given that the mother had not seen [X] for some time. Time with the father seemed straightforward.
At paragraphs 96-98, the report noted:
“This assessment has highlighted the discrepancies between Ms Prasanna’s views, and the reality experienced by the children. Ms Prasanna continues to believe that [X] is prevented from contacting her, due to Mr Shantha’s controlling behaviours; however, during her interview, [X] clearly indicated this was not the case.
Furthermore, Ms Prasanna has continually reported that both [X] and [Y] are subject to their father’s aggressive and controlling behaviours, which, again, has not been raised by either of the children.
While [X] has chosen to live primarily with her father, [Y] is currently living between her parents in a shared care parenting arrangement moving between her parents multiple times each week. It is possible that [Y]’s parenting arrangements have altered since the making of the Interim Orders, as the parents’ descriptions of [Y]’s arrangements appear to be different from the current Orders.”
I note that the mother complained that she now has to pay the father child support, in relation to the care of the children.
The report noted at paragraph 103:
“Both the parents and [Y] have reported that the parents experience conflict when [Y] frequently moves between her two homes and inevitably leaves the items she requires at the other home. It is likely that this difficulty has increased since Ms Prasanna relocated from Suburb B to Suburb K, as the distance between the parents is greater.”
The report went on to recommend blocks of seven time each for [Y] and that the parents engage in the Parenting Orders Program. The report recommended equal shared parental responsibility and that a copy of the report be released to Suburb J Family Life.
The Submissions Made and Evidence Given at Court
The Opening and Evidence of the Father.
It should be noted that what follows is taken from my notes. Self-evidently, it is not a transcript, but records those matters I thought significant.
Counsel for the father adopted his case outline. He submitted there were two real properties, that the parties’ cars should be ignored and that there was no evidence as to the value of tools, jewellery and furniture. The father sought that [X] live with him and he agreed with the family report for equal time in block periods for [Y] and to attend the parenting orders program. It was also submitted that the mother should engage in the tuning into teens program. So far as property was concerned, the father sought a 55/45 division because [X] is in his care and likely to stay.
When called, the father adopted his affidavits and Financial Statement as true and correct. He said he was from Sri Lanka, but sent money to his parents and sister, who look after family members and his parents are getting old and do not have enough to live on. He said that the parties had a joint Bendigo Bank account which his wages were placed into and that both drew down upon it. They used this for family expenses and paying the mortgages.
The father was cross-examined by the mother, who was self-represented. He said he denied the Intervention Order, as there was no violence against his children, and the mother had called the police two times regarding damages to her business stock and furniture. He had not received the letter to go to court for the Intervention Order. His daughter has read most of the court documents. [Y] needs both parents. He has never asked that the children be separated from the other parent.
The father says he encourages [X] to go to see the mother. The mother had moved to Suburb K in September. [X] is doing her VCE exams and she would definitely visit her mother, if she really loved her.
As might be expected, in circumstances where the cross-examination involved two parties who were formerly in a relationship, but who are now bitterly estranged, much of the cross-examination traversed what one might describe as “old ground” such as time allegedly spent or not spent when it was appropriate. The father was adamant that the mother yelled and screamed a lot during the relationship. The father’s answers were generally given in a calm and staid manner, but were, nonetheless, accusatory of the mother in their tenor. The father’s answers about [X]’s difficulties at school were convincing. He said [X] needed better marks and was struggling with accountancy, but she does not want tutoring. He has asked her if she needs assistance, but she says she is busy and does not need it. The father stuck to the proposition that [Y] would do better with blocks of one week.
The father denied telling Ms E (paragraph 58, family report) that the mother was seeking to alter interim parenting orders to reduce child support, but I should make it clear that I do not accept that denial, because he clearly did say it.
There was cross-examination about [X]’s telephone time with her mother and it is sufficient to note that I found the father’s answers completely unconvincing. He has plainly obstructed and discouraged [X] telephoning the mother.
The father admitted sending $30,000 to his parents in Sri Lanka. The cross-examination about the moneys in Sri Lanka and the parties’ jewellery, in my view, showed each party to be equally obfuscatory. Indeed, the cross-examination about jewellery degenerated into a domestic dispute. The picture that emerged for me about cross-examination of financial matters was that both these parties are acutely aware of financial matters. It would not be unfair to describe them both as somewhat “money hungry.” The father was cross-examined about his failure to pay the mortgage on the investment property and his answer, if I understood it correctly, was that he had not done so because the interest arrangements were not to his satisfaction. He said the mortgage was, however, up to date now.
The father confirmed that over the last five years his income, including overtime, was approximately $85,000. Most of the overtime is trade work.
Cross-examination about the expenses of [X] at school was extremely detailed and, in my view, incomprehensible.
Under cross-examination by counsel for the Independent Children’s Lawyer, the father confirmed that he accepted the recommendations of the family report 100 per cent. [X] has only spent overnight time with the mother once or twice in this year. He confirmed that [Y] struggles with the current time regime, which involves six changeovers each fortnight. He could not say if this affected her at school. [Y] is stressed at changeovers. The mother is trying to influence her. She tells [Y] that the father is really bad. The mother has disconnected Skype. He follows the court orders and cannot communicate with the mother, save to send text messages. The father conceded that some of his actions in relation to [Y] had been retaliatory against perceived complaints against the mother. With a meanness of spirit typical of the parties, the father had obstructed [X]’s telephone time with the mother over a dispute as to who paid for the mobile phone.
The father was cross-examined about the sleeping patters of the children at his home. [Y] goes to bed at 10 to 10.30 pm and [X] at 2 to 3 am. She gets up at 6.30 am and sleeps at the weekends. The father displayed a stunning lack of insight as to the likely difficulties this would give rise to, on [X]’s part, in her studies. He has not talked to [X]'s GP in Suburb J about [X]’s sleep patterns, but will do so. [Y] should be in bed by 9 to 9.30. He gets home from his trade work at 9 to 9.30pm and [Y] has been only late to bed once in the last month and three times this year. He puts [Y] to bed at 9.30pm and goes to work just for one hour. There is no one else to help with care at night.
The father denied all family violence. He said he did not know what it is. Family violence can include verbal, and they had a few arguments, and some in front of the children. The father denied financially controlling the mother and denied stalking her. He said that the mother had made up the matters which led to the Intervention Order to get the children and not to have to pay child support. And this answer was, of course, typical of his overarching criticism of the mother and attribution to her of financial greediness. The father said he does not stop [X] seeing the mother. He cannot do so. She does, however, listen to him. He could drive [X] to the mother, but he is not allowed to go there because of the Intervention Order.
Re-examination did not advance anything of moment.
The opening and evidence of the mother
In opening, the mother said the main thing [X] found difficult was moving houses and she blamed her. She wants [Y] to live with her. There is a lot of time spent in the car with the father, and [X] has no energy to cope with study. [X] used to come to her when she had exams and she supports her. It is very expensive but she does this for her children. She wastes a lot of time going to Suburb F and decided to move to Suburb K to make [X] value her mother more, if I understood the submission correctly. [X] has not told her of her VCE results. She complained that [X] was given too much freedom with her father, and should live with her for the next six months, and can call the father when they want.
She sought a 65/35 division of property in her favour because of her contributions. She paid for family day care for three years and has started her business but it has not gone anywhere yet.
The mother was called and adopted her affidavits and Financial Statement as true and correct.
Under cross-examination by counsel for the father, the mother confirmed that she had read section 11F and family reports. She conceded that the father had been close to [X] before separation. They went to the gym together. She had not told [X] she was getting an Intervention Order. [X] had been exposed to family violence. [X] wanted to spend time with her father and would not ask the mother to see him.
When it was put to her that she had used the Intervention Order as an excuse to prevent [X] seeing her father, the mother denied that [X] had asked for this. She said that she wanted an order that the father not see the children because she knew the father was going to see [X] at the gym. [X] would fight with the mother soon after she had seen the father. She asked questions. She created violence. The father put things in her mind to hate her.
When asked how it would work if [X] lived with her by court order, the mother said she was comfortable with her a hundred per cent but afraid of her father. The father had changed her mobile number. [X] has a good relationship with her father because she has a lot of freedom. She is not monitored and can sleep when she wants.
The mother denied talking to the children about adult issues and has denied speaking to [Y] about not living with her. She had not spoken with [Y] about the care arrangements and told [Y] to express her views with the person she was going to see (clearly Ms E). I interpolate and say that it is clear that the mother’s denials of coaching [Y] are not true.
The mother did not understand why it might be of assistance to her to undertaking the Parenting Orders Program but was prepared to do so.
The mother was questioned about moneys sent to Sri Lanka and she conceded she had access to the Bendigo Bank account. She conceded the husband had paid $6300 for solar heating on the investment property, but she otherwise said she paid for everything. The matrimonial home has been rented since she left and is on an interest only mortgage. She had to pay landlord’s insurance as well, and the rent covers the interest.
The mother has qualifications but would need to do six subjects to be a professional. She failed those subjects.
When cross-examined about her child support assessment, the mother said her tax returns show an income of $67,000. The Child Support Agency has this information. She is just planning and researching a business called Business G. Business G is her business which has a Facebook page. She works with friends as a team but has no one working for her.
From the answers given I have formed the conclusion that this business is very much at the margins, and the mother said that her business is her hobby, and in the ultimate, I accept that answer.
Under cross-examination by counsel for the Independent Children’s Lawyer the mother tendered exhibit R1, being documents relating to her pay. The Child Support Agency had estimated her income at $83,000. She had had to pay some child support. She had paid the arrears of child support which had been deducted from her pay.
When cross-examined about paragraph 64 of Ms E’s report in which [X] had complained of her mother’s endeavours to stop her seeing her father, the mother accused [X] of lying. She said she had not talked to her about the report. She only received the report recently. [X] had demonstrated she was not trustworthy. She had changed in the last two years and had not been honest to her.
Cross-examination about the mother’s use of the Intervention Order only went to support my conclusion that the mother had indeed used it as a tool to prevent [X] from seeing her father. The mother said that [X] was close to her, as well as the father, and that [Y] was closer to her and shared her bed. She had wanted to [X] to realise the consequences of moving to her father when she moved to Suburb K. When it was put to her that [X] still wants to stay with the father, the mother said that [X] had said that but not from her heart. She said that in their culture females stay with the mother and even her children follow Sri Lankan culture. It was more appropriate that the children live with her. [Y] was doing better than before at school.
The mother conceded that the current arrangements for [Y] were not working, but did not regard equal time as fair. She would miss the things that she did with her mother in the other week. When it was put to her that [Y] enjoys her time with the father, the mother said “maybe”. If there was anything not good she tells her. [Y] never tells her any negative things about her father. [Y] goes to bed between 9pm and 9.30pm on school days, and [X] goes to bed at 1 am during exams, and she does not wake till 10 am.
In re-examination the mother said she had missed some points the previous day. She is Christian but is not allowed to practice. She complained that the children were prevented by the father from religious observance.
The evidence of Ms E
Ms E’s family report was tendered as exhibit A1.
When cross-examined by counsel for the Independent Children’s Lawyer, Ms E said that [Y] expressed views which came from her mother. She was saying what she wanted because it was what the mother has wanted. She was not coached as such.
[X] was not lying. The bickering between the children was unusual. It was learned conflict from conflict in the family. Time should be reconfigured into seven/seven blocks. She did not recommend more time with the mother. The mother does not hold the father in high regard. The mother cannot accept that [X] wants time with her father. [X] is not rejecting her mother. The Tuning into Teens Program would assist the mother. These are good girls who are rebellious. [X] was remorseful for the high conflict with her mother.
Under cross-examination by Ms Prasanna, Ms E said that the mother had provided a lot of concerns, some of which she had put in the report and some not. She paraphrased Ms D’s report, because the mother had expressed a lot of concerns about Ms D’s assessment. Ms Prasanna challenged Ms E as to a number of details in the family report, but it is sufficient to state that Ms E had excellent recall, answered the questions put to her entirely directly and made concessions where they were there to be made. No material challenge was effectively mounted to the report.
Counsel for the father did not cross-examine Ms E.
Final Submissions
The Independent Children’s Lawyer submitted that no orders should be made in respect of [X], who is 17 and a half. Orders risk being counterproductive in any event. Extant orders in respect of [Y] do not work, as she leaves things behind, and there should be a seven/seven block. Both parents love the children but there are no communications between the parents. They lived under the same roof for some years and there is distrust and hostility with the children in the middle of arguments. The children’s views are clear. There is nothing that says that [Y] does not like her time with her father, and to the extent that [Y] expressed other views to Ms E, these were the views of the mother. Her views should be given little weight.
Both parents should do the Parenting Orders Program, and Tuning into Teens would be appropriate for both parents. The allegations of family violence were not made out.
Counsel for the father traversed the history of the matter. His submissions were broadly supportive of those of the Independent Children’s Lawyer.
In respect of property matters, counsel noted that the cars, chattels and jewellery should be allotted no value and that the properties had agreed values. The mortgages were effectively undisputed. There were some submissions about the credit card debts that I will deal with when I come to the pool. The mother is renting and wants to keep the former matrimonial home, and the father wants to keep the Street A, Suburb B property.
The parties’ incomes are substantially the same, and the mother said her business was a hobby. There should be a five per cent adjustment under section 75(2) for the care of [X] and contributions should be accepted as equal. Neither side seeks a superannuation split. Counsel noted that there is an extant $3500 cost order in his client’s favour. Counsel noted that there might be CGT if the properties were sold. The father will engage with Tuning into Teams and will address [X]’s sleeping patterns.
The mother, in final submissions, complained of [X]’s violence after seeing her father. She took some issues with both the 11F report and the family report. She pointed to the husband’s after hours work and night work and weekend work. She pointed to the father’s income of $85,000 to $95,000 for the last six years. Her salary is $68,000 and is not growing. She works full time and has little time for her hobby of her business. The parties have [Y] on a fifty-fifty basis, but she pays school fees and after-school fees and extras such as camps. She has to pay child support of $257 per month. She has paid the mortgage on the former matrimonial home and managed the other property. She sought a 65/35 split in her favour.
The credit of the witnesses
I have already dealt with the evidence of Ms E. Ms D was not required for cross-examination, and there is, in any event, no reason to doubt the veracity of her report.
The father, as I have indicated, was generally staid and composed in his answers, but his underlying hostility to the mother was clear. Generally, however, his answers were responsive and convincing.
Like Ms E, I found Ms Prasanna an exceptionally emotional woman. She simply does not accept anything that she regards as not being in her interests. Her total lack of insight as to [X]’s response to the separation and the mother’s use of the Intervention Order speaks for itself.
As I have already indicated, both these parties are acutely money conscious and were prepared to embellish matters to an extent to suit their positions.
I will turn to the parenting issues first.
Parental responsibility
All parties agree that there should be equal shared parental responsibility. Notwithstanding the difficulties in parental communication, it seems accepted that there are no risks to either child in the care of the other. (I give the mother’s criticisms of the father no weight as indeed have the Department of Health and Human Services and other professionals subsequently involved.)
While the relationship between the parents plainly became embittered, most particularly when they were separated under one roof in 2014 to 2017, there has been no family violence in the sense of any actual assault. As I find both of these parties would have been well capable of arguing and screaming at one another, and undoubtedly did so, unfortunately sometimes in the presence of the children. The father did not financially abuse and control the mother, who has at all times a keen eye to her financial interests.
In all the circumstances it is, therefore, apparent that there should be an order for equal shared parental responsibility.
The children’s best interests – section 60CC
The primary considerations
Everyone agrees that it is desirable that the children have a meaningful relationship with each of their parents. The matter is, of course, complicated in the case of [X] by the fact that she will shortly turn 18 and act as she sees fit. While the estrangement from her mother and some interrelated poor conduct on [X]’s part is self-evidently a matter of concern, it appears that the conclusion of these proceedings is likely to foment a slight and ongoing gradual improvement of that fractured relationship. The fact that it is fractured is scarcely helped by the mother’s ongoing and total lack of insight into her responsibility for it.
As I have already indicated, such family violence as there has been in the form of arguments does not rise to the point where it is necessary to protect the children from the risk of abuse, neglect or family violence.
In passing I shall say that both parents seem to me to have been remarkably lax in their supervision of the children’s bedtimes, which has plainly led to some of [X]’s difficulties with her studies. I note that the father proposes to address this matter.
The additional considerations
Section CC(3)(a)
[X]’s views could not be clearer. She wants to live with her father. She wants to spend time with her mother according to her wishes and, given her age, this must be a matter to which decisive weight should be given. I accept the Independent Children’s Lawyer’s counsel’s submission that any orders seeking to prescribe time with the mother have a real risk of being counterproductive.
[Y]’s views, as expressed to Ms E, were plainly wholly the mother’s views. It seems clear that [Y] is perfectly prepared to accept a seven/seven arrangement.
Section 60CC(3)(b)
As already indicated more than once, [X]’s relationship with her father is strong, and that with her mother is presently substantially fractured. The mother’s failure to acknowledge her own responsibility for the state of affairs, and continuing desire to compel [X] to live with her, in part to reflect her own native cultural standards, is most unfortunate.
[Y]’s relationship with her mother appears close. She also, however, loves her father and enjoys, notwithstanding some friction from time to time, her relationship with her elder sister. As has been noted in the reports, little has been said about relationships with extended family members. It appears, however, that both children may have a good relationship with the father’s brother.
Section 60CC(3)(c)
Both these parents have, while the children live with them, it seems to me, taken appropriate steps to participate in making decisions about the children’s long-term issues and to spend time with the children. To an extent there has been significant interruption to the father’s time as a result of the mother’s taking out an Intervention Order, which strongly smacks of opportunism, but he has persevered and continued his relationship with his children.
The mother plainly loves the children, but this affection has about it something of a possessory quality which may, as she herself has said, spring from her cultural background. Her unfortunate overemotionalism and lack of insight does not assist.
Section 60CC(3)(ca)
Both of these parents appear to have provided for the children when they were together. The mother’s evidence about financial controlling on the part of the father is not made out. I note that each of them appears to regard child support as a major battlefield. Perhaps fortunately the mother’s obligation to pay child support in respect of [X] will shortly cease and this may diminish the force of their conflict.
Section 60CC(3)(d)
There is no need to contemplate any change to [X]’s living arrangements given the findings already made. Everybody seems to agree that [Y] finds the fractured seven/seven arrangement confusing and difficult, and it plainly gives rise to problems. The recommendation of the Independent Children’s Lawyer, supported by Ms E’s report, is clear. [Y] should live on a seven/seven block arrangement if that can be done.
Section 60CC(3)(e)
The mother’s decision to move to Suburb K, as she put it, in effect to punish [X] for failing to appreciate her properly, is hard to fathom. It is certainly stunningly lacking in insight. It creates a certain amount of practical difficulty of distance in the seven/seven arrangement. That difficulty will, however, be significantly reduced by the adoption of block seven/seven time. There is no insuperable time or monetary difficulty, however, in the proposed arrangements as both parents have remunerative employment which appears to be reasonably secure.
Section 60CC(3)(f)
The father appears generally able to care for the children, although I repeat again his lack of insight about the children’s bedtimes is something he had better address rapidly in their best interests. The mother, I have no doubt, would be physically able to care for the children and was undoubtedly the primary carer during the relationship. Nonetheless her capacity to provide for the emotional needs of the children must be seen in the context of the sundered relationship with her elder daughter. Her emotional nature and incapacity to face reality in some respects is an ongoing difficulty.
Section 60CC(3)(g)
This matter has really largely been dealt with already. [X] is almost an adult. The parents’ lifestyle and background are generally unremarkable, although I note that it appears that cultural issues arising from the parties’ upbringing in Sri Lanka appear to cast influence over both their approach to finances and, in the mother’s case, to her view as to what the children’s proper conduct ought to be.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
Although important, this subsection has largely been dealt with. Both are loving parents for all their weaknesses.
Section 60CC(3)(j)
Apart from arguments overheard by the children, in my view, allegations of family violence have not been made out.
Section 60CC(3)(k)
The Intervention Order previously obtained has, I think, by the time of these reasons for judgment, ceased, and in the circumstances under which it was obtained, there would be no inferences to be drawn from it in any event.
Section 60CC(3)(l)
It is plainly desirable to make final orders and bring this litigation to an end.
Section 60CC(3)(m)
There are no other relevant matters.
Conclusion on parenting issues
Taken overall the picture could not be clearer. [X] must live with the father and spend time with the mother according to her wishes. [Y] should live in a seven/seven block arrangement with each parent. This is the recommendation of Ms E. It is supported by the Independent Children’s Lawyer. It avoids the practical difficulties that the existing time regime has given rise to and enables [Y] to have the relationship, not only with her father, but her sister, that she plainly desires.
Property matters
Stanford & Stanford
In this case, as in so many cases, the basis upon which the parties conducted their affairs has radically altered since the end of their relationship and both parents seek a property adjustment. It is plainly just and equitable that there be one.
The pool
The pool consists of:
·Street C, Suburb B, $680,000
·Street A, Suburb B, $630,000
·Mortgage on Street C, Suburb B, $341,000
·Mortgage on Street A, Suburb B, $418,000
·Superannuation – husband – $56,108
·Superannuation – wife – $60,147
As counsel for the applicant father submitted, I do not propose to allot any values to the parties’ cars. They are roughly the same and, in any event, do not have any significant realisable value. I am not able to make any findings about the tools and jewellery asserted to exist in the case as there is no independent valuation and, indeed, the parties’ evidence about the jewellery was wholly obscure. The chattels in the various properties and likewise, in my view, likely to be of no value whatever.
It should be noted that I have adopted the husband’s version of the mortgage debts which are marginally greater than those of the wife. I take this as a concession against interest on his part and, in any event, in the scheme of things, the amounts involved are trifling. I have likewise ignored the trifling value conceded by the wife as to her business stock.
I note that in her outline of case document (property) the wife did hold extensive credit card debts, some of which are said to be pre-divorce. No evidence of any persuasive sort was, in my view, given about either those debts or the credit card debts referred to in the husband’s case outline document. I note that the parties have been separated, in any event, for five years. Whatever the true position may be, the only sensible outcome that the court can adopt in these unsatisfactory circumstances, given the absence of cogent evidence, is to ignore those credit card debts entirely.
Contribution
Once again I do not propose to traverse the wife’s extensive documentation relating to property dealings in Sri Lanka and the like. I accept the position implicitly advanced by both parties that at the start of the relationship they had but little by way of assets. Both have undoubtedly dealt with property in some fashion in Sri Lanka, although I am not in a position to say exactly how. They have provided their funds to their common purposes. Bearing in mind the fact that both of them appear to have worked, and the mother has been the primary carer (doubtless with some time off work after the birth of the children), it is, in my view, entirely appropriate to assess the parties’ contributions as equal.
The question of the mother’s payment of the mortgage on the Suburb B property needs to be borne against the fact that she was in occupation of the property. Although the husband failed to pay the mortgage on the investment property for a time for no good reason, it appears that the arrears have now been paid off.
Section 75(2) factors – future needs
The wife is 42 years old and is a professional. I accept that the limitations on her qualifications that she has announced. Although Child Support has assessed her income in excess of $83,000, exhibit R1 shows that this is not the case. Her salary is of the order of $68,000 a year, to which might be added some small earnings from the business.
The husband is 45 years old and earns something of the order of $85,000 per year with overtime. His job involves trade work which are, it seems, an integral part of his work, which is likely to continue and which is highly remunerative.
Neither of the parents is in anything other than unexceptionable health and they both have many working years ahead of them.
The wife has set out in her case outline property (a document perhaps misnamed given its considerable length), a series of arguments as to why she should have 65 per cent of the property pool, but, in my view, these assertions are completely unpersuasive.
The care of [X] is submitted by counsel for the father to require a five per cent adjustment, but I do not believe that this is the case. [X] will be 18 in a short period of time, and the mother pays child support for her until her 18th birthday. Thereafter, while the father may continue to seek to assist [X], he will not be obliged at law to do so.
The husband’s salary is in the scheme of the parties’ resources generally, appreciably more than that of the wife, and as I find likely to continue to be so given their employment security. An adjustment of 5% in the wife’s favour is appropriate.
Conclusion as to property matters
A 55/45 division of the parties’ non-superannuation property interests is, in my view, entirely just and equitable. The husband’s superannuation appears to be marginally lower than that of the wife, but his earnings are somewhat greater, and this will equalise over time. In the circumstances, each party should retain their superannuation.
The parties have not addressed me as to the practicalia, so to speak, of this conclusion. As I understand it, each party wishes to retain the property in their possession. I have drawn draft orders designed to give the parties an appropriate template, but will give them an opportunity to consider these reasons for judgment before making those orders final.
Schedule
Parties’ joint nett equity
55% to the wife
45% to the husband
Equity in Street A, Suburb B
Wife to pay husband
Plus costs of wife’s contravention application dismissed 23/11/2018
$541,000
$297,550
$243,450
$212,000
$31,450
$3,500
Total: $34,950
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 23 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Costs
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Jurisdiction
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Res Judicata
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Injunction
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