SHELTON & WAKEFORD
[2017] FCCA 2610
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHELTON & WAKEFORD | [2017] FCCA 2610 |
| Catchwords: PROPERTY – Dispute with respect to the length of relationship. |
| Legislation: Family Law Act 1975, ss.4(a), 64D, 65N, 65P, 70NAC, 70NAE, 70NAF(1), 70NBA, 75(2), 79, 106A |
| Cases cited: Stamp & Stamp [2014] FCCA 1269 Ackersley & Rialto [2009] FamCA 817 |
| Applicant: | MR SHELTON |
| Respondent: | MS WAKEFORD |
| File Number: | MLC 7506 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 1 & 2 August 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| The Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Combes |
| Solicitors for the Respondent: | Fiona R McGregor |
ORDERS
Contravention
Count 1 of the Contravention application filed on 20 January 2017 is dismissed.
Counts 2 to 6 of the Contravention application filed on 20 January 2017 are not proved as the respondent had a reasonable excuse.
Order 16 of the orders made on 22 September 2016 is discharged.
Property
That by 2 February 2019 the parties do all acts and things to cause the following to occur simultaneously:
(a)The husband do all acts and things to remove the caveat lodged over Property A in the State of Victoria (“Property A property”) at his expense;
(b)The wife pay the husband the sum of $6,000.
The wife be declared the sole legal and beneficial owner of the Property A property.
That in the event that payment made in compliance with order 4(b) then within a further 14 days the wife shall do all things necessary to cause the Property A property be sold at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the proceeds of sale shall be disbursed in the following order and in that priority:
(a)In payment of agents commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b)In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the Victorian Division of the Australian Property Institute or his/her nominee (if any);
(c)Discharge of all mortgages secured on title;
(d)The net balance then to be divided as to 1.5% to the husband; and
(e)Payment of the balance to the wife.
That 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 (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband/Wife).
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Husband/Wife.
(c)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(d)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.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act 1975 that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
IT IS NOTED that publication of this judgment under the pseudonym Shelton & Wakeford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7506 of 2016
| MR SHELTON |
Applicant
And
| MS WAKEFORD |
Respondent
REASONS FOR JUDGMENT
The applications before me for determination are the applicant husband’s contravention application and the parties’ competing financial applications.
The parties’ competing parenting applications are listed for final hearing next year. The parties and the Independent Children’s Lawyer requested that the property hearing and contravention application be listed earlier as the property pool is small whereas the parenting proceedings are complex and will require expert reports where there are some funding issues [while property matters remain outstanding].
The Court was able to accommodate this request. The Independent Children’s Lawyer was excused from attending this hearing. The disadvantage of determining the property proceedings before the parenting proceedings is that the outcome of the parenting proceedings are unknown. I have to determine the property proceedings on the basis of the information before me currently. The parties were aware of this but nonetheless sought to have the property matter determined separately first.
The Contravention proceedings
The husband’s contravention application centres on the order for telephone communication between the husband and children and the requirement that the wife to facilitate the calls. In the contravention proceedings the husband relied on his affidavit filed on 20 January 2017 and the affidavit he filed on 30 June 2017 annexing transcripts of telephone conversations in accordance with the directions I made. He also filed a CD of the recordings with his affidavit. I have listened to some of those conversations and have read the transcripts. The transcripts accurately set out the conversations. The affidavit annexing the transcripts is 238 pages. The husband annexes transcripts of calls which are not part of the contraventions of which he complains. They provide some context to the issues in dispute. In essence the husband’s complaint is that the wife fails to facilitate his phone calls with the children.
In the contravention proceedings the wife relied on her affidavit filed on 2 March 2017 and paragraphs [115] to [137] of her trial affidavit.
The Law with respect to contravention applications
The husband’s contravention application commenced pursuant to Division 13A of Part VII of the Family Law Act1975 (“the Act”). Section 70NAC of the Act sets out what it means to contravene an order:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
Section 70NAE of the Act discusses the meaning of reasonable excuse:
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The standard of proof in contravention proceedings is on the balance of probabilities: (s.70NAF(1) of the Act).
In contravention proceedings, the general obligations created by parenting orders need to be considered. Thus, in the present case, s.65N of the Act may be relevant. It states:
General obligations created by parenting order that deals with whom a child spends time with
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
Division 13A of Part VII empowers the Court to do certain things depending on whether the contravention is alleged but not established (subdivision C), whether the contravention is established but a reasonable excuse for the contravention is found (subdivision D) and whether the contravention is found without reasonable excuse – or to be a less serious contravention (subdivision E) and finally where contravention is found without reasonable excuse but more serious contravention (subdivision F).
There is no suggestion on the facts of this case that if the contravention is established, it is a more serious contravention as contemplated by subsection F.
The applicant bears the onus of establishing a prima facie case. Once this is established, the onus shifts to the respondent to establish that she has a reasonable excuse.
The obligation on the wife is to make reasonable attempts to comply with the orders. Judge Reithmueller comprehensively reviewed the authorities on this point in Stamp & Stamp [2014] FCCA 1269 at [17] to [24]:
[17] In many contravention cases involving contact orders, consideration must be given to what is necessary to make a ‘reasonable attempt to comply with the order.’ The extent of the obligation has been discussed in a number of cases. In Filipovic and Filipovic (1977) FLC ¶90-266 the Judge emphasised that it was the wife’s ‘duty’ to explain to the children that they will have an enjoyable time during the visit. In Bainrot and Bainrot (1976) FLC ¶90-003 Watson, J noted in making an order for access, that:
…it is implied in this order that the husband both personally and by persuasion of his relatives will ensure that the children are dressed and ready to go with their mother and that nothing has been done physically, or emotionally to spoil these periods of access.
[18] More recently, in Webber and Budd (No 2) [2011] FamCA 539, Watts J found that the mother contravened the orders for the children to spend time with the husband on a particular occasion, saying:
7. … even accepting the version the mother has given, there was nothing in that version about any encouragement that the mother gave to the children to go with their husband on that day, or about anything the mother did to prepare the children, so that they would happily go with their husband on that day.
[19] The starting point is that an order for a child to spend time with a parent is not a mere declaration – it is implicit in the order that reasonable steps must be taken to ensure that the time as ordered takes place: Stavros and Stavros [1984] FLC ¶91-562; (1984) 75 FLR 323; (1984) 9 Fam LR 1025; and followed in Stevenson & Hughes [1993] FamCA 14; [1993] FLC ¶92-363; 112 FLR 415; (1993) 16 Fam LR 443.
[20] As I noted in TVT & TLM [2006] FMCAfam 20, ‘the absence of detailed orders providing for the mechanics for changeover does not make the orders inoperative or incapable of enforcement’.
[21] Whether steps taken are a ‘reasonable attempt to comply’ with a ‘children’s spend time with’ order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the parent with whom the children ‘live with’ has a duty to ensure that the children not only attend, but do so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
a) The ‘live with’ parent must actively encourage the child to attend time with the other parent as ordered (see Webber and Budd (No 2) [2011] FamCA 539).
b) ‘The courts have been careful to consider whether in reality, not just on the face of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]’: see O'Brien & O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC ¶92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court and includes the following statement:
Your legal obligations
· You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
c) ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the husband or to discourage the child from remaining on the doorstep. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [25].
d) ‘Similarly, a mere request that the child telephone, or come to the telephone is insufficient’, see: TVT & TLM [2006] FMCAfam 20 at [33].
e) Once an order for the child to spend time has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [11].
f) A ‘live with’ parent ought to make ‘the child understand that it was the [live with parent’s] attitude that the child had to [spend time]’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [8].
g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14].
h) It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [26].
i) ‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the [live with parent] of compliance with the obligation’: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [6].
j) ‘It is not a sufficient discharge of [live with parent’s] obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [6].
k) The ‘live with’ parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC ¶92-363 at [8].
[22] If satisfied that the Wife contravened an order, either intentionally or by making no reasonable attempt to comply, the court must then consider whether the Wife has a reasonable excuse for the contravention.
[23] In this matter the Wife made a case that she had taken all reasonable steps to comply with the Orders, although her Counsel, in submissions noted (27 June 2013, Trans.p6,lines 29-32):
Yes, but to assess “reasonable steps”, of course, you’ve got to take into account the history, this child’s condition, the position she was in at the time, and also the fact that family therapy hadn’t commenced at the start of the time.
[24] Of course there may be cases where a child is so ‘upset’ or distressed that a refusal of time with a parent will be excused: Fooks & Clark [2004] FamCA 212; (2004) FLC 93-183; (2004) 32 Fam LR 149 at [45] and Raider & Raider [2011] FamCA 488 are two such examples. Distress of a child may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbeing. However, as I set out in TVT & TLM [2006] FMCAfam 20 at [40], ‘such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise “changed circumstances”.’ Otherwise, it would simply be a flagrant challenge to the findings of the Court when making the contact orders as the original orders must have been found by the Court to be appropriate parenting orders at the time they were made.
Contraventions
Counts 2 to 7 all relate to the respondent refusing telephone contact between the husband and X born (omitted) 2010 (“X”) and Y born (omitted) 2012 (“Y”) (collectively as “the children”). As they relate to the same order, and the evidence with respect to those counts overlap, it is convenient to deal with those counts together. I will address Count 1 first.
In order to determine whether or not the wife has discharged her obligation to facilitate the calls it is helpful to look at several of the calls in context. The husband put the transcripts of the calls in evidence.
Alleged Contravention 1[1]
[1] This count is set out at [6] and [7] of the contravention application.
This count alleges that on 16 November 2016 at 6.00pm the mother contravened order 16 of the orders dated 22 September 2016. The particulars given are as follows:
(1) The respondent did not facilitate the call between the applicant/husband Mr Shelton and the children, X and Y and terminated the phone call without the applicants/husband’s consent.
Transcript call lasted 13.21 Minutes.
Order 16 of the orders made 22 September 2016 is as follows:
The husband have telephone contact with the children twice per week at the following times:
Each Sunday at 6.00pm; and
Each Wednesday at 6.00pm
with the mother to facilitate the calls, the mother also being permitted to have the children on speaker phone.
The wife says both children have special needs. She says X has difficulties with emotional regulation and anxiety. Commencing on page 111 of her affidavit she annexes the cognitive assessment of X which was conducted in November and December 2016. He was assessed as having high skills in some areas but being less skilled with respect to processing speed. The husband disagrees with the assessment he also says he has been unable to keep up with X’s development because he is given the limited information and he only sees the children on a limited supervised basis. Y has been assessed as having global developmental delay and autism. For the most part she is a non-verbal. She has behavioural issues. She scored in the extremely low range across all areas in the intellectual and cognitive functioning testing. She was assessed as having moderate intellectual disability. Her assessment dated 15 August 2016 starts at annexure page 123 of the wife’s affidavit.
The wife says that there are plenty of examples in the transcripts of telephone calls which show that the children are easily distracted and distressed. When this was put to the husband he rejected this and said that any difficulty is because of the wife’s failure to facilitate the calls. He said he understands that it is challenging but that the wife needs to prompt the children to talk and with Y in particular as she is non-verbal, the wife needs to tell him what Y is doing and help him interact with her.
The wife’s counsel suggested to the husband that there are many examples in the transcripts that show the wife encouraging the children and those go smoothly. The husband said that when the wife facilitates the calls they go well. It is the husband’s view that the calls do not go well when the wife does not facilitate the calls. He also said that Y yells a lot as this is part of her disorder and that can become frustrating.
The wife says during the phone call on 2 October 2016 the husband asked to speak to her after he finished speaking with the children but then started raising various issues with respect to the Court orders. The husband suggested that she was yelling at him and that she ended the call. The wife says this is because she was concerned that he would assert that she was in breach of an intervention order that he had in his favour.
At paragraph 10 of her Affidavit sworn and filed on 2 March 2017 the wife says she received an email from the husband on 4 October 2016 acknowledging that the children become distressed during the phone calls. When this was put to the husband he said that when they speak to him on the phone it does not work because of a lack of effort on the mother’s part and then the mother terminates the call.
I have listened to the recording of the conversation on 2 October 2016 it is clear from the recording and transcript that the wife actively facilitated and encouraged the children to engage with the husband. She explained what Y was doing. It was challenging for the wife to manage both children. It was also clear that the husband was actively trying to engage the children which was challenging.
Having read the transcript and listened to selected phone calls it is clear that keeping the children engaged can be challenging for both parents. It is particularly difficult to keep Y engaged given her inability to have a conversation. The recording of the conversation on 2 October 2016 shows that both parents went to considerable effort during that phone call to keep the children engaged. However it is concerning that during the phone call, at pages 5 to 7 of the transcript, the husband asks the wife to change the telephone arrangements and the parties then discuss the Court orders and consent. It was inappropriate for the husband to initiate that conversation whilst talking to the children on the phone as it is clear that the children are still there and in fact it seems he wanted to continue the conversation with the with the children even though the children were present. It was also inappropriate for the wife to engage in conversation at that time. Discussing those types of issues in front of the children exposes them to the conflict. The husband complains that the wife yelled at him. I have listened to the call. She did not.
One of the sources of conflict is that the husband wants the wife to arrange for him to speak to the children individually so that they are not distracted by each other. This ignores the fact that Y clearly needs close supervision due to her disabilities. It is also apparent that the Skype calls did not go smoothly as there were technical problems and other problems the wife gives evidence about.
The husband was asked what his understanding of facilitating meant. He replied it is ambiguous and then referred to Y’s disability and said it was difficult but achievable to make sure each child speaks to him that should not be a matter of simply throwing in the towel but implementing basic strategies.
He was asked if he agreed that the wife has a duty to terminate the calls when the children become distressed. He said her duty is to facilitate and the lack of facilitation causes the distress and she ends the call. He said that the real contravention is the lack of calls.
The husband was cross-examined about Skype calls. He said that about three or four Skype calls took place up until 13 November 2016. They ended after he called the police. He says he called the police to do a welfare check. He said it was their choice to attend. This is disingenuous given that it is really was at his request. He also sought to distance himself from any abuse allegation. During the Skype call he saw a bandage on Y’s face. He said he did not assume that it was abuse but in the absence of information, he thought the worst-case scenario was that there was an unknown man in house. He said he called the police because he cannot talk to her. He said he based this on the fact that the mother was dating a man and that he erred on the side of caution and could do nothing else. The husband’s actions were disproportionate. The wife says Y was bitten by mosquito on her cheek and she put it larger than usual dressing on it because she has an allergy to the adhesive on ordinary band-aids. She said when the police attended the home they wanted to see Y. The wife got Y out of bed. She says Y was frightened. She also said that X was also very shaken as a police have attended their home previously for the family violence incidents to which X had been exposed. It was after this incident that the wife informed the husband by email on 16 November 2016 that she would no longer facilitate Skype. The phone call on 16 November 2016 has to be seen in this context.
The husband was asked whether he agreed that the children were distressed by the police attending the home and he said he did not know. He then said he could not say how they reacted because he was not there.
Order 16 of the orders made 22 September 2016 do not provide for Skype communication. The wife filed an affidavit on 2 March 2017 responding to the contravention application. She says she facilitated a number of Skype conversations which the children enjoyed but were difficult for her to facilitate. She says Y repeatedly damaged her computer and it was very difficult to keep both children on the computer. She had to increase data allowance at some expense and says she could not get the microphone to work on her computer, so was necessary to use the telephone for the audio and the Internet connection would often dropout which would make the husband angry.
I have listened to and read the transcript of the telephone call which took place on 16 November 2016 which forms the basis of the contravention under count one. The husband inappropriately tells X that the wife was responsible for them not being able to talk on Skype and is critical of the wife to X. He blames her for not allowing Skype, not facilitating the call and not keeping the children separate so that he could speak with them separately. At several points during the call he makes his criticisms directly to the wife and other times he directs them to X.[2] The call lasted 13 minutes and 21 seconds. It is clear that by the end of the call Y had become fractious and X is frustrated as is the husband. The wife then tells the children to say goodbye to their husband. The husband says “don’t end the call. I’m talking to my children.” The call ends there. The husband complains that the wife hung up on him. Having had the benefit of listening to the call and reading the transcript, I am satisfied that the wife did her best to facilitate that phone call and ended it when it was no longer a beneficial experience for the children or the husband. She did not end the call when the husband was initially critical of her.
[2] The Annexure is page 116, 120 and 122 of the husband's affidavit filed on 30 June 2017.
The wife facilitated further phone calls after this incident.
At the beginning of the phone call on 23 November 2016 the husband asks Y to ask the wife to turn the computer on so that he can see them. X asked his mother if they are allowed, then tells his father that they are not allowed. The husband asks X to ask the wife why and X does so again.[3] Later during the call he asks the wife to facilitate the call. He asks the wife to tell him a few things that the children have been doing and then complains when the wife does not.[4] This is completely inappropriate conduct of the husband, placing X in the middle of the conflict in circumstances where he knew the wife did not agree to Skype calls and the orders do not provide for them. That call lasted 21 minutes and 21 seconds. He is critical of the wife at various points during the call. Despite this she continued to facilitate the call.
[3] See page 131.
[4] See page 136.
The husband puts X, in particular, in a very awkward position. He expresses his frustration to X. The husband involves X in the dispute between his parents.[5] This is not an isolated incident. The husband tells X he is trying to arrange to talk on Skype again.[6] There are other examples where the husband is critical of the wife to both X and Y. Early into the phone call on 30 November 2016 the husband says to the wife that he is ready for Skype and asks the wife to confirm Skype. The wife says no and the husband asks X to ask the wife why not. A short time later he again asks X about what the wife said about Skype. Then X says “just tell him mum, just tell him.” The wife tells X to talk to his father.[7] Again the husband is putting X directly in the middle of conflict. It was inappropriate for the husband to raise the issue of Skype during that phone call at all. It is of concern that the husband made it so much worse for X by involving him directly in the dispute more than once.[8] Later in that same conversation he tells Y that the wife is not helping him understand her language and so that is hard for him without seeing her.[9] The husband then starts criticising the wife directly to say that if he could see the children via Skype they could be interacting with him like they did before, and that X had said he would love to speak with him on Skype.[10] X told his father he has had enough and he would like to do something else. The husband said Skype would be better and X said it would.[11] That call lasted 12 minutes and 25 seconds. It was put to the husband that during that phone call he was repeatedly criticising the wife when she was trying to facilitate the call. The husband said that listening to the audio would place these comments in context. The audio does not assist the husband.
[5] See page 124.
[6] See page 128.
[7] See page 144 and 145.
[8] See page 145.
[9]See page 147.
[10] See page 150.
[11] See page 150 and 151.
The wife continued to facilitate phone calls. During the phone call on 4 December 2016 X says to his father that his advent calendar says “encourage dad to calm down.” The husband asks him what he means and asks him did someone tell him that or did someone write it on his calendar. The husband tells X that he will never give up trying to see him and that when he is old enough he will understand why it all happened. In her affidavit the wife says that X prepared his advent calendar at school and that X wrote on his advent calendar that he can tell his father to calm down. The husband’s comments show a complete lack of insight into the detrimental impact of his conduct on X. Yet again the husband drew X into the conflict between his parents instead of protecting him.
During the phone call on 21 December 2016 the husband tells Y that he is sorry she will not get her Christmas presents on Christmas Day because the wife will not let him see her and he tells X he will not be able to see him before Christmas because the wife says no he is not allowed but he will never stop fighting to see him. X says that he does not mind if they have Christmas a little late[12] At the hearing, the husband was asked if it was appropriate to make those comments about the wife to the children and again he said that I should listen to the audio. The audio again does not assist the husband’s case. The orders do not provide for a visit on Christmas day. The husband showed absolutely no insight into the stress he is placing on the wife and the children.
[12] Page 193.
The husband said that if the wife genuinely felt that the children were being harmed by the calls he would expect her to go to the Independent Children’s Lawyer or the Court. Counsel for with wife put to the husband that the Family Law Act provides for the wife to take action if she thinks the children are at risk. He said there has to be common sense. He feels that the wife is trying to reduce his relationship with the children. He does not accept that she has genuine concerns.
The wife gave evidence in chief. The wife says the children are distressed a lot of the time. There were occasions where they were not but the husband’s communication was hostile and inappropriate. She said X has been around the husband’s hostility and gets anxious when he hears it in his husband’s voice. X also does not like it when the husband criticises the wife. She said after the calls the children get angry at each other and if the husband has said negative things about her X gets upset. She said X gets quiet or cries and she has to counsel him. She strongly denies the husband’s allegations that she coaches him. She says she tells X that it is not his job to worry about these things.
The wife says that X is a sweet and creative child but has problems with his processing speed that causes difficulties for him. She says X gets quiet when his father is angry and he is processing what is happening. When X gets very quiet that is a sign of his distress. She says X often comes up to her telling her that the husband has told him to say things to her. If Y gets involved he gets aggressive, and they fight with each other. The wife says after the phone calls and Y and X keep arguing. Y’s behaviour can be quite extreme and distressing for everyone.
The wife says she is concerned about X’s anxiety and that he has been exposed to family violence and the husband’s outbursts and yelling. She says X saw the husband throw things and is very aware of his husband's anger issues. X attends a psychiatrist and attends the program at his school once a fortnight for the children with social and anxiety issues.
The wife says she planned the children’s evening routine around the phone calls and wanted the children to be calm so they would engage and talk. She said she did her best to facilitate the calls but that it does not always work.
The husband cross-examined the wife. He put to her that the charges had not been laid against him with respect to family violence. The wife says she believed he has been charged with several breaches of Intervention Orders and that she has made numerous reports.
The husband cross-examined the wife about the monthly updates she provides him. That is not the subject of any contravention application.
The wife agreed that several of the phone calls have been positive with play and laughter. She says she did her best to create an environment for the phone calls to be successful.
The husband asked the wife to concede that she did not facilitate when X wanted to talk to him on his own and she did not keep Y away. The wife said she was doing a lot to separate them and trying to engage Y.
The husband asked her if she thought it was fair that she terminated phone calls. She said absolutely because she goes to the effort to try and separate the children and prompt them about things to talk to him. She ends the call when they start playing up.
The husband suggested that she does the minimum required to facilitate the calls. The wife disagreed and says she went above and beyond to facilitate the calls. She says she does her best to create an environment with a suitable activity that they can take the call so that they calm.
Count 1 is not made out. I am satisfied that the wife did facilitate the call. The wife is not required to continue the call indefinitely.
Alleged Contraventions 2 – 7[13]
[13] These counts are set out at [8], [9], [10], [11], [12], [13], [14], [15], [16], [17], [18], and [19] of the contravention application.
These counts all allege that the wife contravened order 16 of the orders dated 22 September 2016. The particulars given are as follows:
(1) The respondent without reasonable excuse refused to allow phone contact between the applicant/husband Mr Shelton and the children, X and Y.
The husband outlines six occasions on which these counts were alleged to occur, they are as follows:
Count 2: 1 January 2017 at 6:00pm;
Count 3: 4 January 2017 at 6:00pm;
Count 4: 8 January 2017 at 6:00pm;
Count 5: 11 January 2017 at 6:00pm;
Count 6: 15 January 2017 at 6:00pm; and
Count 7: 18 January 2017 at 6:00pm
I have set out order 16 above.
The wife concedes that she stopped facilitating the phone calls with a couple of exceptions for special occasions.
She says she has a reasonable excuse as she stopped the facilitating the calls because the husband continued to behave inappropriately and the calls were stressful for the children, particularly X.
She gave evidence that she stopped the phone calls because the children were distressed by the husband’s manner and the content of calls was placing unreasonable stress on the children. As a result that she decided that she would only facilitate calls on special occasions.
In the husband’s final submissions with respect to the contravention, he said he accepts that the telephone calls are difficult at times and that it is frustrating because Y is non-verbal and signs but that the wife stopped the calls without just cause. The wife was exaggerating the difficulty and that the wife was not making a reasonable effort. He said he could have handled it better but because it is difficult or inconvenient for the wife is not justification for stopping the calls.
Counsel for the wife submitted that the husband has a heavy onus to prove on the balance of probabilities at the highest end, that the wife contravened the orders without reasonable excuse. The husband conceded his email to the wife of 4 October 2016 that the children become distressed. It is clear from the transcript that the wife went to considerable effort to facilitate the calls and that the wife would not be doing her duty to the children if she could not stop the calls when they were distressed.
The husband was completely unrealistic. It was not reasonable for him to seek that the children be separated during the calls. It is clear that Y needs close supervision. I have referred to many of the calls the wife facilitated above. I am satisfied that she continued to facilitate the calls in difficult circumstances where the husband had unrealistic expectations, was critical of the wife in front of the children, and continued to draw X into the conflict. The husband’s conduct was emotionally harmful to X.
As I indicated to the parties, s.70NBA of the Act empowers the Court to vary the primary parenting order irrespective of whether or not the court finds a person contravened the primary orders. The order for telephone contact has not worked. It is not in the children’s interests to have that order remain in place. I am not confident that if the calls were to resume the husband would be able to refrain from criticising the wife and making inappropriate comments to the children which is harmful for the, I will discharge order 16 of the orders made on 22 September 2016.
I am concerned about the recordings of the telephone conversations of the parties and children. I do not know if both parties were aware of the recordings at the time they were made. As it was not raised as an issue before the court. In either case, it is not a practice that should continue.
Property proceedings
The parties agree that that the relationship commenced in 2005. The parties became engaged in (omitted) 2007 and married on (omitted) 2008.
There are three major issues in dispute between the parties with respect to the property proceedings. Those issues are:
a)The length of the relationship. The wife says the parties separated on 9 December 2012. The husband says they separated in January 2016.
b)The wife’s parents advanced the sum of $123,238 to the wife. The husband does not dispute the amount advanced by her parents but says he had no knowledge of it and that it is not a loan as contended by the wife.
c)Whether or not the drawdowns the husband made from his superannuation post separation should be notionally added back to the pool.
The wife seeks to retain the Property A property subject to the mortgage and make a cash payment to the husband of $10,000. She also seeks a superannuation split in her favour to the effect that she receives 65% of the parties’ superannuation entitlements.
The husband seeks a split of the non-superannuation assets of 55% in the wife’s favour and that there be an equal division of the parties’ superannuation interests.
Contributions
When the parties started living together the husband had just purchased a house at (omitted). It was suggested to him that he had no money to buy the house apart from the first home owners grant. He said he had a bit of money. It was suggested to him that he had a HECS debt of $29,000, no equity in the house, and a credit card debt of $7,500. The wife annexes statements to her trial affidavit showing she made two payments to his account for his credit card debt. The husband conceded that she paid for his credit card.
The wife had $21,092.12 in her (omitted) savings account as at 16 April 2008. The husband conceded this once he saw the bank statement which is annexed to her trial affidavit.
The husband could not remember what the amount of the mortgage repayments were. It was suggested to him that the wife paid half the mortgage he said they were operating as a unit and that he paid more money than her into the mortgage.
The husband says he bought her car for her and negotiated the price at (omitted). The wife annexed evidence of car repayments. The husband says they bought a car and were paying for it from her account. It does not make sense that the husband would have bought a car for the wife if she was making repayments.
The husband agreed the wife was an excellent cook and cooked on a sandwich press when the kitchen was being renovated. He agreed that she helped with painting. He says he built the kitchen. It was a small renovation job. He said she helped where she could but it was his interest not hers.
The husband believes the wife exaggerated the wedding expenses that her parents paid for being $15,000. The wife says that in addition she paid for other wedding expenses. The husband says he told the wife and her father that if they wanted a wedding like that they could pay for it.
The husband says that in 2007 he sold his house as he wanted to move to Sydney to train with the (employer omitted). He says the wife did not move with him as she was reluctant to leave her network of friends and family in Melbourne.
The wife said that the husband made the decision to sell the property unilaterally and that during that period there were several separations and reconciliations. The wife remained living in Melbourne with the husband living in New South Wales even after they married on (omitted) 2008. The wife discovered she was pregnant with X in (omitted) 2009. The wife moved to (omitted) a couple of weeks before X was born in (omitted) 2009. The wife says that the husband did not provide financial support during the pregnancy and he continued to have money problems. The wife says that after she moved to New South Wales they had access to each other’s finances and she discovered that the husband spent significant sums on recreational activities including (hobbies omitted). The wife says that Christmas in 2009, her parents gave them $5,000. The husband agrees that the wife’s parents gifted $5,000 and that they used it to pay for some of the wedding expenses.
The wife depicts a picture of a volatile and at times strained relationship. She says that in mid-2010 husband decided he wished to build a kit home. She says she was opposed to this as she thought they should continue to rent and save money as she was not working and was caring for X. She says the husband was insistent and required her to choose whether they would build in New South Wales or Victoria. The husband says that the wife was not happy being away from her family.
The wife says that the husband was not coping with his work at (employer omitted). She says he would become aggressive and irrational.
The husband obtained a transfer to (employer omitted). They moved in with the wife’s parents for 20 months. The wife says they paid nominal board from their joint account of $220 a month. The husband says they paid board and a portion of utility bills. This is a contribution on the wife’s behalf as they did not have to pay private rent.
The husband and wife purchased block of land in joint names at Property B. They obtained an owner/builder mortgage. The husband claims that he spent thousands of hours building the property in addition to working as a (occupation omitted) and employing qualified tradespeople. He does not particularise his contributions.
During this period the wife became pregnant with Y who was born on (omitted) 2012. The parties moved into the Property B property in (omitted) 2012.
The husband says that during this period he was suffering from depression due to a combination of factors including his work as a (occupation omitted), dealing with the property and coming to terms with Y’s disability. He says he had four months off work and that his father gave him $3,500 to assist with living expenses.
At page 30 of her trial affidavit the wife annexes a Victoria Police notice of suspension of the husband’s firearm licence to (omitted) 2011. Those records that the police attended to conduct welfare check on the husband (omitted) 2011 after a psychiatric staff member had contacted them stating the husband threatened to jump in front of a bus the day before. The psychiatric staff member had unsuccessfully tried to follow-up with him. The police discovered that the husband had voluntarily admitted himself to (omitted) Hospital for anxiety and depression and had been prescribed various medications. As a result of this, the police had concerns about the husband continuing to possess firearms.
At page 31 she annexes a Centrelink medical certificate the period 22 September 2011 to 22 December 2011 noting that the husband has depression and substance abuse. Other parts of the doctor’s handwriting is illegible. That is for the period prior to Y’s birth. The husband was clearly struggling with his mental health.
The husband resigned from (employer omitted) in (omitted) 2012. He took up employment in Western Australia as a (occupation omitted) for 12 months then obtained employment as an (occupation omitted) with (employer omitted) also in Western Australia. He remained in that employment until October 2016.
The husband’s brother also provided financial assistance of approximately $25,000. The wife agrees that he did but says the husband spent those funds recklessly. She does not particularise this allegation. The husband annexes bank statements showing funds provided from his brother and expenditure on various items for building the house. I am satisfied that these funds were a contribution on behalf of the husband.
The husband claims that he made the greater financial contributions during the relationship due to his income. That is certainly true. The wife worked until late in pregnancy with X. The husband also claims to have made greater non-financial contributions due to building work on home and assisting with parenting and homemaking. I do not accept that he made greater overall contributions than the wife. The assessment of contributions is holistic one. They each worked hard.
The wife devoted herself to the care of the children and providing for Y’s special needs. At times the husband was unwell.
December 2012 to January 2016
The husband agrees that they separated in December 2012. The wife and children moved into rental accommodation. The husband remained in the house. His case is that they reconciled about 6 months later.
The husband agreed that the house needed some work when they separated. He said they were minor things which he paid for.
The settlement of the sale of the house took place on 30 August 2013. They received $32,000 each from the sale. The wife annexes a letter from the agent advising that the net proceeds were paid into two separate accounts. When cross examined the husband said that at the time they received the funds from the sale they were not sure as to whether or not they would get back together so they split them evenly. At the time he was a fly-in fly-out worker. Initially he was in Western Australia for two weeks working in and had one week off and then it changed to one week on and one week off.
The husband conceded that they never had another joint account. He says this was at the wife’s insistence. He says that the wife’s conditions in order to reconcile was that she control all the money. She gave him an allowance and managed the household.
The wife says that the husband wanted to reconcile but they never did. She says that after the sale of the house the husband had nowhere to live when he was not working in Western Australia. She says she agreed to him staying on the proviso that he paid board and contributed to the children’s expenses, as well as child support. She says she asked him to sign the lease with her because she was concerned that she would not be given a lease on her own. As she was not working and had the care of two young children her evidence is credible.
The husband annexes other lease agreements to his affidavit which are the other rental properties that the parties moved into during the period that they were living under the one roof in 2015. I accept his evidence that he co-signed lease of these properties. However, that is not inconsistent with the wife’s evidence given their respective financial positions.
At the hearing, it was put to the husband that the wife allowed him to store his belongings and tools in the garage. He said that was not true and that he slept in the house. The wife’s case is that there were two separate living areas and that they slept separately. He said that he slept separately about six times when she was angry at him or when Y was very young and having trouble sleeping. He says the wife was exhausted and he would give her a break and sleep on the bunk bed. The husband says the wife calculated a fortnightly allowance for him and he transferred the rest to her. The husband annexes several bank statements to his trial affidavit. It shows the husband making regular payments to the wife. The husband says if he received a bonus or tax returns he would give her additional funds. At the time the husband was on a high income with the low living costs given accommodation was provided to him in Western Australia.
Property A Property
In (omitted) 2015 the wife purchased a vacant land at Property A. The husband claims that the wife insisted that the purchase be in her name only. He further claims that the wife did not show him any of the documents with respect to the purchase. It is consistent with the wife’s version that she would not show him those documents related to the purchase as she was making the purchase of the property on her own. The husband says he was not involved in the arrangements for the finance of the purchase of land as he was away working. The husband’s evidence is inconsistent on this point as he says in his affidavits that they discussed the purchase in detail for many months and researched it together. It does not make sense that if that were the case that he would not have seen any of the documents with respect to the purchase.
The wife agrees that he contributed $32,000 being the share of the proceeds of sale of the former matrimonial home towards the purchase of the land. Counsel for the wife put to him that that was the only contribution he made to the purchase of the land.
The husband evidence with respect the purchase of the land and its financing is not convincing. He claims that they purchased the property together, even though it is solely in her name, yet he did not see any of the documents and does not appear to have turned his mind to how the wife funded the purchase. It would make more sense that he would not make those enquiries because they were separated and that he provided his share of the proceeds of sale of the former matrimonial home to assist her.
The wife says she wants to build a modest home at Property A which she can modify for Y. She cannot do this at the rental property. She says she has visual aids all over the house for Y and there are a lot of breakages.
The wife says the husband happened to be in Melbourne on the day of settlement so he joined her and the children to look at the property. The husband put to the wife how he could know the neighbours at Property A if they had not purchased the property together. The wife said she believed they met the neighbour together on the day of settlement.
When did the parties’ relationship end?
Much of the focus of the property aspect of the proceedings was centred on the length of the parties’ relationship. The wife alleges it was an eight year relationship. The husband alleges it was a 12 year relationship. Only one party needs to form the intention that the marriage is over. The party needs to communicate that intention to the other party. In the wife’s divorce application she refers to the separation date is 9 December 2012 and refers to a period of the parties living separately under the one roof from the one August 2013 to 9 January 2016.
The husband refers to telephone conversations he recorded between himself and the wife in April and May 2016 re-emphasises that the wife referred to herself as his wife and referred to giving her body to him for 10 years. She also refers to 10 years of promises by him.
The wife was cross-examined about several photographs annexed to the husband’s trial affidavit. She agreed that there were photographs of her and the husband together looking happy and there were photographs of them together with the children. She said they took happy family photographs as he spent time with the children. She agreed that on (omitted) 2013 they posed together at the (omitted). They were celebrating her birthday. She said she believed the children and her parents were also there. She said a lot of the time that the husband was in Melbourne he would be included in family activities as neither she nor her parents wanted to exclude him and the children enjoyed having him there. She disagreed that they showed two people in love. She said she often took ‘selfies’. She said there are a lot of photos of the four of them together and has a lot of photos of the four of them on Y’s bedroom wall. She says they were not in a relationship but were cooperating to some degree in raising the children and she agreed that there are frequent photographs and there were interstate holidays. She agreed that on (omitted) 2015 they went to the (omitted). It was for her 40th birthday and she says she was very grateful that the husband arranged it for her. She says at that stage they were friends. The wife says that apart from a handful of occasions the husband only slept in the bed when she was not in it. She would tell him he could use the bed when she was up with the kids.
The husband annexes an extract of the statement the wife made to the police at page 197 of his affidavit. As he has not included the whole statement the extract is undated. It does refer to an incident on 9 January 2016. It is reasonable to infer to the statement was prepared in January 2016. In that statement she claims that the husband comes to stay for a few days every couple of weeks so he can spend time with children and that they separated about two years ago. That clearly that is not accurate as the separation was some three years before.
The husband is of the belief that it is an all or nothing approach. It is not. I am satisfied that the parties had very different perceptions about the status of their relationship post December 2012. For much of the period of their cohabitation from (omitted) 2013, the parties got on reasonably well. They celebrated family occasions together and that this included the husband. They went on holidays together and visited his mother in Western Australia. The wife gave a birthday present and wrote a card referring to her love to him for his 40th birthday.
I have carefully considered the evidence of both parties. I find that on the balance of probabilities that the parties separated in December 2012 and did not resume their relationship. There is no dispute that they were separated for about 6 months from December 2012. From mid to late 2013 until January 2016 their relationship was qualitatively different from 2007 to 2012. There were attempts at reconciliation and I find that certainly for a period the husband may have thought they had reconciled but the parties were not of the same understanding. Both parties were telling the truth from their perspective.
Children’s bank accounts
The husband says that they set up bank accounts for the children. Initially he sought an order that he husband and the wife be joint signatories to those accounts. At the Court’s suggestion he then sought that the funds be divided so each party can keep funds for the children. The wife says that she had accounts in the children’s names which had small amounts which she has subsequently used for the children’s expenses since the child support payable by the husband has reduced to a minimal amount.
The wife was cross-examined about her (omitted) accounts. Exhibit C is a letter from (omitted) bank and screenshot of the wife’s accounts which shows accounts in her name and an account in Y’s name and X’s name. The wife says the accounts are all in her name despite two of the account descriptors being X and Y. This is consistent with the letter from (omitted) bank which says that they could not locate any clients in the name of X and Y. The account in Y’s name according to the covering letter was opened on 7 January 2004 and closed on 7 November 2016. The account in X’s name was opened on 10 May 2010 and closed on 7 November 2016. The screenshot of the accounts so that date 3 September 2015 and shows balance in the account named Y of $2811.59 to the account named X $2754.36.
The wife admitted that they discussed having accounts in the children’s names when they were in a relationship. When X was born they decided to save some of the money that was gifted to X and spend some of it for his benefit. The circumstances were different when Y was born.
The evidence is that the children’s bank accounts no longer exist. The amounts were modest and given the minimal child support the mother has been receiving since early 2016. I do not think it is appropriate to require the wife to, in effect, repay those amounts. That is the effect of what the husband seeks given the accounts no longer exist.
Funds advanced by the maternal grandparents to the wife
A loan agreement signed between the wife and her parents is dated 20 September 2016 and is annexed at page 51 of the wife’s affidavit. The agreement states that her parents lent her the sum of $13,238 to put towards the deposit of land at Property A on 16 April 2013. They say they lent a further sum of $92,000 interest-free on 3 October 2015 to put towards the property. Further they say that between 17 February 2016 and 18 September 2016 they lent her $2,000 a month. Finally they state that the funds are due to be repaid within six months of her occupying the property or within a month of disposing property whichever is sooner. The loans are interest-free.
The wife was cross-examined about Exhibit D which are emails from the wife’s parents wrote to (omitted) bank. The emails are in the same time and were produced by the (omitted) bank under subpoena. In the email in addition the wife’s parents say that the money is non-refundable. The wife said that was not referring to the arrangement between herself and her parents but between her parents and their superannuation fund as that was the source of funds.
The husband does not dispute that the wife’s parents advanced those funds to the wife. He says he was not part of that discussion and was not aware of it. He disputes that these funds were alone requiring the wife to repay them. The document annexed to the wife’s affidavit is not a contemporaneous document but one created after all the funds were advanced. It does not assist her case that those funds were loaned to her rather than gifted to her.
The maternal grandmother swore an affidavit in support of the wife’s case and was cross-examined.
The maternal grandmother says they stopped paying the $2,000 a month loan to the daughter because the husband was trying to get the money. She said it was a loan to assist with the children’s expenses because the wife was not receiving money from him. She said she has every confidence that the wife will repay them and she has before.
She gave evidence that they lent the money so that she would have equity in the property when she applies for a loan to build a house and so that she would have enough to borrow over and above that fund.
She said the email she and her husband provided to the bank was at the request of their broker because the funds were non-refundable to the superannuation fund. She denied it being because the wife was not able to finance it if it was a loan.
The Husband put to her that they signed the loan agreement after the proceedings begun. She replied that that was when they thought of it and got around to it. She says it was always a loan which they needed repaid as it came out of their superannuation.
I need to determine whether or not the advance is a loan that the wife is required to repay or is a gift from the wife’s parents. It is a matter of fact. The husband has no knowledge of the advance to assist with the purchase of the Property A property. It is significant that the loan agreement was only drawn up after the proceedings began. The advance from the wife’s parents is a significant contribution made on the wife’s behalf but I am not satisfied that it is a loan that should be included in the matrimonial pool. It is however a significant contribution on the wife’s behalf that must be given real weight.
January 2016 until August 2017
The husband claims that one of the main causes of the final separation in January 2016 was her deception over the funds advanced by her parents. He refers to a telephone call that he recorded where the wife admits this. He also refers to the wife becoming very upset during the phone call referring to him being unfaithful and relies on this as being consistent with their still being in a relationship until January 2016. He also said that he found out that the wife had continued to claim Centrelink benefits after they separated. The husband cross-examined the wife about the telephone call on 23 April 2016. She was asked that if they had separated in 2012 why was she so emotional during that call. She answered that she believed she was emotional for a variety of reasons. She said that the husband was lying to her and that he had removed all financial support for the children. She says she felt like he was trying to trap her and said he has not included previous conversations and she said he says and does things deliberately to hurt her. She said she was very upset during that phone call and was not doing the maths when she referred to giving him her body over the 10 years. She said she had not been with anybody else and she said she was upset because the husband told her that he would not be with anyone else until the divorce out of respect to the marriage but then deliberately tried to make her angry by taking women on expensive dates to her favourite places such as the (omitted) and her favourite restaurant. She said this occurred in an earlier telephone conversation but that she did not record phone calls. She said the husband has only put forward a selection of phone calls which suit his case.
She agreed that she sent the husband a 40th birthday card and present and signed the card with “lots of love from your wife”. She said she sent that when they were getting on well and that it needs to be seen in the context of both of them dealing with Y’s disability and the husband’s mental health. She said the arrangement was that the husband wanted to reconcile and that she would not accept that based on what happened during the relationship and that he wanted to show her that he changed his behaviour. She said she hoped that things would change. She agreed it was an expensive gift.
Both parties were generous to the other during this period and at times they were on very good terms. Both parties had given evidence which is consistent with their understanding of status of their relationship at that time.
She says she did not file the divorce application until 10 January 2017 to avoid the husband disputing it. This makes sense as the only ground needed to establish that the marriage has broken down irretrievably is that the parties have been separated for at least 12 months. She said she did not file earlier in 2013, 2014 or 2015 because it would require them to have a financial settlement within 12 months of the divorce becoming final and a given Y’s needs in particular and the fact that they were getting on well, put that time frame on herself. Again this is a reasonable explanation.
The husband acknowledged that the wife has carried out improvements on the property since January 2016 including a new fence.
The husband denies that his only contribution to the property was the $32,000. He refers to the funds he transferred to the wife less the allowance he says she gave him. The wife’s evidence is that her parents loaned her $2,000 a month for six months to help her cover hers and the children’s expenses as she was no longer receiving child support from the husband and she did not want to make changes to X’s schooling and Y’s supports. In cross examination the period from 2012 to 2016 husband was paying generous child support and was paying for X school fees and Y’s additional medical expenses.
The husband cross-examined her about the Tribunal decision with respect to child support and the reference to the wife’s financial evidence being unreliable. The wife said that participating in the Tribunal hearing by telephone was extremely difficult. She says the husband was bullying and that it was very hard to get a point across.
She had to concede that she did not include her (omitted) account in her financial statement. Before being shown her financial statement she said it was at the end (referring to part O of form) the wife says she included that information but the formatting was different and it was left out accidentally.
The husband’s expenditure and drawdowns of his superannuation
The husband was cross-examined about his expenditure in the context of his claim that he has been unable to afford to pay for his psychiatric assessment which he was ordered to undertake pursuant to orders made on 22 September 2016.
Exhibit A is a bundle of the husband’s (omitted) Bank account statements for the period 30 June 2016 to 30 September 2016 and (omitted) Bank credit card statements for the period 21 June 2016 to 20 October 2016. The husband was cross-examined about a number of transactions and his bank balances. On 22 September 2016 his bank balance was $4,494.78, having received a payment from (employer omitted) the day before.
The husband said it was possible that he had those funds at the time but that it was not just a matter of paying for the psychiatric report but also for the psychiatrist to inspect the documents and that his lawyers also told him that it was not necessary. He was hoping the phone calls and visits would go ahead. He disagreed that the cost was $2,500 and said that there was also an hourly rate for inspecting thousands of pages of subpoenaed medical records. The husband does have a significant mental health history and says it is such that he is unable to work and his future ability to work is uncertain. The wife attended for her psychiatric assessment.
Thus husband was cross-examined about his expenditure which included and are highlighted in Exhibit A:
28 June 2016 (omitted) $1,500;
28 June 2016 (omitted) $1,444.95;
1 July 2016 (omitted) $499;
3 July 2016 (omitted) $1,099;
25 August (omitted) $479.98;
31 August (omitted) $489.95;
3 October 2016 (omitted) $600; and
17 October 2016 (omitted) $1,200.
The husband said he had been taking (hobby omitted) lessons during the relationship and that he had paid for a significant part of the course in advance.
It is significant that the husband was spending these sums on discretionary luxury items at the same time as drawing down on his superannuation the sum of $12,000 on 12 July 2016.
He conceded that he was still working at (employer omitted) at that time but said he thinks he was on sick leave. He conceded that he was receiving a wage but not the same amount as previously. He said his unemployment benefits do not cross over with payments from (employer omitted).
It was put to him that his bank statement shows that he received an unemployment benefit payment of $932.82 on 20 September 2016 and a payment from (employer omitted) on 21 September 2016. The husband said that (employer omitted) has a big administration that is not great and that the payroll is outsourced. However he also received payments from Centrelink and (employer omitted) in August. His statements show the following payments from Centrelink and (employer omitted):
12 July 2016 Centrelink $625.39
26 July 2016 Centrelink $625.39
9 August 2016 Centrelink $625.39
23 August 2016 Centrelink $625.39
24 August 2016 (employer omitted) $1,792.82
7 September 2016 (employer omitted) $6,037.74
20 September 2016 Centrelink $913.82
21 September 2016 (employer omitted) $3,391.74
It is also concerning that the payments to the husband from (employer omitted) overlapped with his payments from Centrelink on more than one occasion. He claims that this was due to the bureaucracy of (employer omitted). This could be a reasonable explanation if it occurred once but is less credible given it occurred on multiple occasions.
He agreed that his mother helped him with legal fees but says she is in her 80s and received a pension. There is a payment from his mother on the 9 August 2016 the sum of $2,823.41. The husband said that this was in addition to the wife his mother paid directly to his lawyer for his legal fees.
He said his other expenditure in July 2016 was to buy a fridge and the leather lounge about $2,700.
The wife’s counsel put to him that he prioritised everything apart from the psychiatric assessment. He again repeated said that there were thousands of pages of subpoenaed medical records.
The husband annexes his CSA Online payment history for the period 12 July 2016 to 9 February 2017. That showed that for the most part Centrelink deducted modest amounts from 28 June 2016 onwards. His tax refund was intercepted for child support on 12 July 2016 and there were also some BPAY payments.
He said that when the Independent Children’s Lawyer was appointed she suggested that Legal Aid funding for the report could be the best option. It was put to him that if he receives a lump sum payment from the property he would be able to pay the psychiatric assessment. He said quite possibly.
I am satisfied that the husband did not place great priority on paying for the psychiatric assessment. He paid for a lot of other discretionary items around that time. If he was that concerned about the additional costs for the psychiatrist reading subpoenaed documents he could have raised that with the Independent Children’s Lawyer. It is more likely that he did not see it as a priority. Court orders are not suggestions. The husband has an extensive mental health history. If the husband is keen to progress his time with his children he will make obtaining the psychiatric assessment a priority.
The nature of the husband’s discretionary expenditure speaks volumes in the context of it in claiming not to be able to afford the psychiatric assessment at the same time and seeking that it be publicly funded.
The party’s current legal and equitable interests
The wife was cross-examined about the value she put for the Property A property in her financial statement. She put the value as a little over $320,000 even though she had obtained a valuation prior to completing the form for $400,000. She said she thought her view was better than the valuation. This is entirely unsatisfactory.
The parties have an agreed valuation which values the Property A property at $480,000. There is a mortgage to (omitted) Bank which the wife has been responsible for of $98,650.
The wife has a Ford (omitted). The husband retained a Redbook valuation and says it is worth $5,000. The wife says it is worth half that amount but did not obtain her own Redbook valuation.
The husband has some work tools, and he had a car and a pushbike which he sold post separation. He says he sold the car for a $1,000 pushbike the $2,000. The husband has a personal loan which he says has a current balance of $3,055. The husband agrees that that loan should not form part of the pool.
The amounts are modest. I do not propose to include any of these items in the pool for division.
The equity in the Property A property is $381,350.
The only other assets of value that the parties have are their respective superannuation entitlements. The wife has superannuation with (omitted) Super $76,582. The husband gives a figure of $74,000 to his superannuation. He agrees with the wife’s figure for hers. It is not clear where the husband’s figure for his superannuation comes from. He does not annex any superannuation statements. The wife says that the husband’s superannuation with (omitted) Superannuation should be included at $107,266. She says this is the balance it would have if it were not for the two withdrawals the husband made post separation of the $12,819 in July 2016 and $10,000 in May 2017.
The husband says that the children’s bank accounts should be included in the pool. The evidence shows that those accounts no longer exist. At the time those bank accounts closed the wife was receiving minimal child support and had full-time care of the children as she continues to do so.
This argument needs to be seen in the context of the husband’s expenditure which he was cross-examined about at some length. The husband says about withdrawals from his superannuation is at [65] of his affidavit sworn and filed 30 June 2017 where he says that he has withdrawn the superannuation twice since separation to meet medical expenses of $10,000 and as an income supplement to meet living expenses. He provides no particulars as to what the medical expenses were.
The court has a discretion as to whether or not to notionally addback property that has been expended. If it is not notionally added back it can be taken into account under s.75(2)(o).[14] The amounts to be added back are modest. Adding them back does not distort the property pool.
[14] See, Bevan & Bevan [2013] FamCAFC 116; Masoud & Masoud [2016] FamCAFC 24; Vass & Vass [2015] FamCAFC 51.
Legal principles
Until the High Court of Australia (“High Court”) decision in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court of the Family Court of Australia (“Full Court”) in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
[Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
Conclusions with respect to contributions
I must emphasise that due to the facts of this case whether or not the parties separated in 2012 or 2016 makes little practical difference. This is because both parties made contributions to the Property A property. The fact that it was acquired post separation does not quarantine it or place it in some special category.
The Full Court recently discussed this in Calvin & McTier [2017] FamCAFC 125. They point out that the definition of matrimonial cause in ss.4(a) and 79 of the Act refer to property the parties have at the time of the hearing. They also observe that Stanford does not give any indication that property acquired after separation should be treated any differently to property acquired during the relationship.
The approach to assessing contributions is a holistic one. The wife made greater initial contributions than the husband. The treatment of initial contributions has been discussed in several Full Court decisions, most recently in Wallis & Manning [2017] FamCAFC 14. Whilst the husband owned a property at the beginning of the relationship, he had no equity in it and had debts. The wife had savings and applied those to reduce the husband’s debts.
The wife carried out some paid employment but for the most part she was the primary carer for the children. The husband earned a good income for significant parts of the relationship. There were also periods where he was unwell and not able to work. He also contributed physical labour to the parties’ home with some assistance from the wife.
From 2012 to 2016 the husband provided paid good child support and contributed towards the house. The wife continued to be the primary carer for the children and the husband spent significant periods in Western Australia working. Since January 2016 the wife has been solely responsible for caring for the children whilst the husband has had limited supervised time. (I acknowledge this is not the husband’s choice).
Both parties have received financial assistance from family members. The husband received funds from his husband and brother which I accept went towards costs for the parties’ first house. The financial assistance by the wife’s parents was more extensive.
Considering the parties’ contributions holistically, the wife’s contributions are greater and requires a 20% adjustment in her favour.
Section 75(2) factors
The husband is in receipt of Centrelink benefits. The husband continues to suffer from mental health issues. It is clear that he has a long history of mental health issues At times during the relationship and after the relationship it has prevented him from work. He suffers from anxiety and depression. He also says he has Post Traumatic Stress Disorder (“PTSD”) and will not be able to work in (employment omitted) again. He annexed some medical documents to his affidavit. However those are not admissible as in order to admit that evidence the authors of the reports would need to swear an affidavit and be available for cross-examination.
The Court does not have the benefit of the psychiatric assessment the husband is yet to undertake.
His future prognosis and earning capacity is uncertain. Certainly currently the husband does not have the capacity to work. The husband was not challenged about his evidence with respect to being unlikely to be able to return to (employment omitted) work.
The wife is also reliant on Centrelink benefits and receives carer’s benefits for Y. Y requires significant care which limits the wife’s capacity for work. She also has 100% care of the children and whilst this may change, that is also unknown. The wife may well continue to be the primary carer of the children in the future. As indicated earlier, I have to take account of the parenting arrangements as they are currently. Y is only four years old and she will need significant care for many years. It is not realistic to expect that the wife will be able to take on significant paid employment.
It is also the case that the wife has received minimal child support since the husband stopped working in late 2015. As the husband’s earning capacity is uncertain it is also uncertain whether or not the husband will be able to pay higher amounts of child support in the future.
When balancing the competing s.75(2) factors this also requires an adjustment to be made in the wife’s favour. I find there should be a 10% adjustment in favour of the wife for s.75(2) factors.
Assessment of the parties
The wife had the benefit of being legally represented. I am mindful that the husband was at a disadvantage as representing himself meant that he did not have the filter of having an lawyer be his advocate. It was readily apparent that the husband had put a lot of effort into preparing for the hearing.
It was necessary to warn the husband to focus on answering questions he was asked during cross examination. The husband had difficulty in focusing on the questions he was being asked and was keen to repeat his views. He had difficulty focusing on answering questions and at times rather than answering he was trying to guess the motive for the question. Particularly when questioned about his income and working in Western Australia he became defensive and non-responsive to the questions and was very keen to repeat his own version of events.
It was obvious that the husband finds the proceedings very stressful. At times he became agitated and had trouble containing his irritation and distress.
The husband demonstrated in his affidavits, in his oral evidence and his questioning of the wife that he has fixed views about the rights and wrongs of the relationship. He was rigid and lacked insight. He cannot countenance a different view to his own. I accept that he is genuine in his views and will feel aggrieved by this decision.
Conclusions
The property pool is modest. The equity in the Property A property is $381,350. I find that the amounts the husband withdrew from his superannuation should be added back as I find they were not used for reasonable living expenses rather the husband spent significant sums on items and activities he could no longer afford.
When considering the just and equitable division of the parties’ legal and equitable interests I must also consider how their interests should be divided. The wife wants to keep the Property A property. She wants to make modifications to that property for Y.
The husband seeks a cash payment. Both seek a superannuation split. Currently both parties rely on Centrelink benefits. The husband has been able to access some of his superannuation in the past. I do not know if he is able to do that again. In the circumstances of this case I find that it is just and equitable not to make a split of the parties’ superannuation interests. This will result in the husband receiving less cash but will give the wife the opportunity to retain the Property A property. Given her parenting responsibilities and Y’s special needs I find that this is just and equitable.
In all of the circumstances I find it is just and equitable for the wife to receive 80% of the pool and the husband 20%. To achieve this division, each party will keep their superannuation entitlements being $76,582 (the wife) and $107,266 (the husband).
The wife will have the opportunity to retain the Property A property. She will need to pay the husband $5773.60. I will round this up to $6000. In the event the wife is unable to retain the Property A property I have expressed the payment to the husband as a percentage to allow for the fact that the property may sell for a higher or lesser amount than valuation depending on the market.
I am mindful that the result is vastly different to that sought by either party. However, in my view both positions were unrealistic.
I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 27 October 2017
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