SILVER & SILVER
[2017] FCCA 1930
•21 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SILVER & SILVER | [2017] FCCA 1930 |
| Catchwords: FAMILY LAW – Property – what orders might be just and equitable in all the circumstances of this case. |
| Legislation: Family Law Act 1975, ss.75(2), 60B(1), 60B(2), 61DA, 65DAC, 64B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 4AB, 65DAA, 65DAA(2), 65DAA(3), 79(4), 74, 77A |
| Cases cited: Rice v Asplund (1979) FLC 90-725 Mazorski v Albright (2008) 37 FLR 518 |
| Applicant: | MR SILVER |
| Respondent: | MS SILVER |
| File Number: | MLC 1813 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 16 June 2016; 17 June 2016; 15 December 2016 and 16 December 2016 |
| Date of Last Submission: | 16 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Counsel for the Respondent: | Mr Brewer (16 & 17 June 2016) and Mr Howe (15 & 16 December 2016) |
| Solicitors for the Respondent: | Einsiedels |
ORDERS
Parenting Orders
The children
W born (omitted) 2002 (“W”);
X born (omitted) 2004 (“X”);
Y born (omitted) 2006 (“Y”); and
Z born (omitted) 2008 (“Z”)
(collectively “the children”) shall live with the wife and she shall be permitted to relocate their place of residence to (omitted) or its immediate surrounding area.
The husband shall spend time and communicate with the child W according to her wishes and by agreement between the parties in writing.
The husband shall spend time and communicate with the children X, Y and Z (“the boys”) as follows:
(a)during term times:
(i)if the children live in the (omitted) area on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday commencing 25 August 2017;
OR IN THE ALTERNATIVE
(i)if the children live in the (omitted) area on each alternate weekend from the conclusion of school on Friday to 7:00 p.m. on Sunday commencing 25 August 2017;
(ii)at the instigation of the husband by telephone, Skype, Facetime or other electronic means between 7:00 p.m. and 8:00 p.m. on one evening each week that the boys are not in his care by agreement, and failing agreement on each Thursday commencing on 31 August 2017, with the husband to make the call and the wife shall ensure that the boys have access to a fully charged and working telephone, tablet or computer, that they are available to take the call, and that they have privacy during the call;
(iii)by telephone, Skype, Facetime or other electronic means at the instigation of the children at any reasonable time;
(b)for half of the first and third school term holidays each year by agreement between the parties and failing agreement the first half in odd-numbered years from the conclusion of school on the last day of term to 7:00 p.m. on the second Saturday, and the second half in even-numbered years from 7:00 p.m. on the second Friday to 7:00 on the third Saturday;
(c)for 10 days in the second school term holidays each year from the conclusion of school on the last day of term to 7:00 p.m. on the second Monday;
(d)for half of the long summer holidays each year by agreement and failing agreement:
(i) for 3 weeks in 2017-2018 and in each alternate year thereafter commencing at 12:00 noon on the first Saturday; and
(ii) for 3 weeks in 2018-2019 and in each alternate year thereafter concluding at 12 noon on the last Saturday;
(e)from 11:00 a.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter and from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2018 and in each alternate year thereafter;
(f)from 7:00 p.m. on the day before Fathers’ Day to 7:00 p.m. on Fathers’ Day each year;
(g)by telephone, Skype, FaceTime or other electronic means between 8:00 a.m. and 8:30 a.m. on each of the boys’ birthdays should they fall on a school day with the husband to make the call and the wife shall ensure that the boys have access to a fully charged and working telephone, tablet or computer, that they are available to take the call and that they have privacy during the call;
(h)on each of the boys’ birthdays from 9:00 a.m. to 1:00 p.m. in odd numbered years and from 1:00 p.m. to 7:00 p.m. in even-numbered years should they fall on a non-school day;
(i)for half of the Easter long weekend each year by agreement between the parties and failing agreement from 7:00 p.m. on the day before Good Friday to 7:00 p.m. on Easter Saturday in odd-numbered years and from 7:00 p.m. on Easter Saturday to 7:00 p.m. on Easter Monday in even-numbered years;
(j)by telephone, Skype or other electronic means on the father’s birthday between 8:00 a.m. and 8:30 a.m. should it fall on a school day, with the children to make the call and the wife shall ensure that the children have privacy during the call;
(k)in person from 1:00 to 7:00 p.m. should the father’s birthday fall on a non-school day; and
(l)at other times by agreement between the parties in writing.
The father’s time with the children shall suspend, if necessary, so that the wife shall spend time with the boys on the following occasions:
(a)from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in 2017 and in each alternate year thereafter;
(b)from 11:00 a.m. on Christmas Day to 4:00 p.m. on Boxing Day in 2018 and in each alternate year thereafter;
(c)From 7:00 p.m. on the day before Mothers’ Day to 7:00 p.m. on Mothers’ Day each year;
(d)On each of the boys’ birthdays from 9:00 a.m. to 1:00 p.m. in even-numbered years and from 1:00 p.m. to 7:00 p.m. in odd-numbered years should they fall on a non-school day;
(e)from 1:00 p.m. to 7:00 p.m. should the mother’s birthday fall on a non-school day; and
(f)at other times by agreement between the parties in writing.
Changeover shall take place at the children’s schools where time is stated as commencing at the conclusion or concluding at the commencement of school, and otherwise changeover shall take place at a location agreed by the parties, and failing agreement at the closest service station to the mid-point between the parties’ homes.
The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing the children or any of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter; and
(d)using any form of corporal punishment on the children or any of them and from allowing any third party to do so.
Each party shall notify the other as soon as practicable in the event of the children or any of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or allied practitioner who treats the children or any of them to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the children or any of them, including the dosage prescribed, and ensure that such medication travels with the children and that the children take their medication as prescribed.
The wife shall authorise any school or the organisers of any extracurricular activities in which the children are enrolled, to provide to the husband at his expense, if any, all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or any of them.
The parties shall be at liberty to attend any of the boys’ school events and extra-curricular activities such as sporting events, concerts, parent-teacher interviews and the like, and neither shall prevent the boys or any of them from communicating with the other parent at such events.
The parties shall be at liberty to provide a copy of these Orders (but not the Court’s Reasons for Judgment) to the children’s school or schools.
Property Orders
The parties shall do all such acts and things and sign all such documents as might be necessary for the proceeds of sale of the properties situate and known as Property C and Property B, currently held in the trust account of the husband’s solicitors, to be distributed so that:
(a)the loan attaching to the wife’s motor vehicle is discharged;
and the remainder divided such that:
(b)the wife receives 70% of the total net non-superannuation assets of the marriage; and
(c)the husband receives 30% of the total net non-superannuation assets of the marriage.
This order is an order to which section 77A of the Family Law Act 1975 (Cth) applies and $20,000 of the property retained by the wife pursuant to these orders is attributable to the provision of maintenance for the wife.
The husband shall retain for his own use and benefit absolutely:
(a)The Mitsubishi (omitted) motor vehicle registration number (omitted) and/or any proceeds from the sale of that vehicle; and
(b)Any monies in his (omitted) bank account.
The wife shall retain for her own use and benefit absolutely:
(a)The (omitted) Vehicle motor vehicle registration number (omitted) and/or any proceeds from the sale of that vehicle; and
(b)Her (omitted) shares and/or any proceeds of sale therefrom.
In accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband Mr Silver (Member No. (omitted)) in the (omitted) Super Plan also known as the (omitted) Super Trust (“the fund”), the wife Ms Silver will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base amount of $66,100 (sixty six thousand one hundred dollars) and there will be a corresponding reduction in the entitlement of the husband.
The trustee of the fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001.
The husband is hereby restrained by himself his servants and agents from making any binding death benefit nomination to the trustee of the fund in favour of any person who is an eligible beneficiary within the meaning of reg. 13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting Order made in paragraph 16 hereof.
Paragraphs 16 and 17 of these Orders bind the trustee of the fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the fund of the husband’s entitlements pursuant to paragraph 16 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the wife as soon as that is practicably possible after the operative time.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank account shall be divided between the parties in the proportion of 70 per cent to the wife and 30 per cent to the husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall 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)each party forgoes any claim they may have to any inheritances or superannuation entitlements to which the other party is entitled to either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES
A.That the parties have equal shared parental responsibility for the children pursuant to a Final Order made by consent on 19 August 2015.
IT IS NOTED that publication of this judgment under the pseudonym Silver & Silver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1813 of 2015
| MR SILVER |
Applicant
And
| MS SILVER |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings between Mr Silver (“Mr Silver” or “the husband”) and Ms Silver (“Ms Silver” or “the wife”).
The parties have four children, W born (omitted) 2002 (“W”), X born (omitted) 2004 (“X”), Y born (omitted) 2006 (“Y”) and Z born (omitted) 2008 (“Z”), collectively (“the children”).
The issues in this case, agreed between bench and bar at the beginning of the trial, can be set out as follows:
Parenting
A.Whether the parties should share parental responsibility for the children or whether the wife should have sole parental responsibility.
B.Whether the wife should be permitted to relocate to (omitted) with the children.
C.The amount of time the children should spend with the husband.
Property
D.Is it just and equitable in all the circumstances to alter the current property interests of the parties?
E. If it is just and equitable to do so, what are the assets and liabilities to be divided between the parties?
F.What have been the contributions of the parties to their assets and liabilities?
G.Should the parties’ contribution-based entitlements be adjusted on the basis of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
H.On the basis of the above matters, what orders should be made to effect a just and equitable settlement between the parties?
Background
The husband was born on (omitted) 1977 and is thus aged 39 years. He works as an (occupation omitted) and earns approximately $144,525 per year.
The wife was born on (omitted) 1979 and is thus aged 37 years. She has established a (omitted) business but earns only minimal income from that endeavour. She is otherwise engaged in home duties and looking after the children and she is in receipt of Centrelink benefits.
The parties were married on (omitted) 2000 after approximately a three-year relationship and began living together on that date.
They separated finally on 22 July 2014 and as far as the Court is aware they are not yet divorced.
Upon separation, the children remained in Ms Silver’s care in the former matrimonial home in (omitted) and Mr Silver moved to live with his mother in (omitted).
Orders have been made for the sale of the former family home and the parties’ investment property and while the husband seeks orders for a 70/30 split of non-superannuation assets in favour of the wife and the equalisation of the superannuation entitlements through a superannuation splitting order, the wife seeks that she keep the net proceeds of sale of both the former family home and the investment property.
At the time of trial the children were living with Ms Silver and (except for W) spending two nights per fortnight with their father.
Mr Silver is seeking equal shared parental responsibility for the children and for them to spend five nights a fortnight with him in line with the Family Report writer’s recommendations.
Ms Silver is seeking sole parental responsibility for the children and that she be permitted to move with them from (omitted) to (omitted). She seeks orders providing for the continuation of the two nights per fortnight and half school holidays regime currently in place for the three boys.
Ms Silver repartnered after the parties separation, and between November 2015 and January 2016 when that relationship ended, her partner lived with her and the children in the former family home. At the time of trial she remained living with the children in the former family home.
Mr Silver has also repartnered, although at the time of trial he had lived with his mother since separation.
Procedural history
These proceedings were brought by Mr Silver filing an Initiating Application on 6 March 2015. Ms Silver filed her responding material on 2 June 2015.
The parties first appeared before me in the Duty List on 9 June 2015, where I ordered the parties to attend a section 11F conference and a conciliation conference, and where I set the matter down for trial. Interim property orders were also made by consent on that day.
The parties next appeared before me on 19 August 2015 where interim parenting Orders were again made by consent, although a final order for the parties to equally share parental responsibility for the children was also made by consent. The matter otherwise remained listed for trial.
The matter was listed for trial for two days from 16 June 2016 and ran for those two days. Unfortunately, the trial was not completed in that time and I adjourned it part heard to 15 December 2016 when it continued for a further two days.
Mr Brewer of counsel, who had appeared for the wife on 16 and 17 June 2016, was unfortunately ill and unable to continue on 15 and 16 December 2016. The parties advised the court of this situation well before the matter returned in December 2016, and leave was granted for Mr Howe of counsel to appear for the wife on 15 and 16 December 2016.
Witnesses at trial were the husband, the wife, the wife’s mother Ms C, the wife’s sister Ms J, and the family in report writer Mr T (“Mr T”). All were subjected to varying levels of cross-examination.
On the last day of trial on 16 December 2016, I made Orders for the sale of the properties at Property B, and Property A, for an interim distribution to each party, and for the remaining net proceeds to be held in trust for the parties pending the outcome of these proceedings.
I also made a decision about where the children were to attend school in 2017. I otherwise reserved my judgment.
Issues and Evidence
Parenting
A. Whether the parties should share parental responsibility for the children or whether the wife should have sole parental responsibility
The Law
The law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The objects and principles underlying Part VII are set out in s.60B of the Act and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The law in relation to parental responsibility is set out in s.61DA of the act, which states:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, Mr Robinson, counsel for the husband, raised the issue of the Rule in Rice v Asplund[1] in his opening address, almost in passing, citing the final Order for equal shared parental responsibility made by consent on 19 August 2015.
[1] Rice v Asplund (1979) FLC 90-725 is authority for the proposition that if a final parenting Order is to be varied, the person seeking to vary it must show that there has been a significant change in circumstances since the Order was made.
He returned to that issue briefly in his closing submissions, where he said:
I also paused to note, briefly, the question which I highlighted way back on the first hearing date, I think, about shared parental responsibility and Rice & Asplund. There is clearly an order made in August which is final. In my submission there is not a significant change in circumstances that has occurred since then. Obviously if your Honour is going to engage with that, in my submission you do need to deal with the Rice & Asplund as a preliminary hurdle, and your Honour heard some of the questions I asked of the wife as to things that it happened since August which represented a change.
And other than her statement about the deterioration in the relationship, which my learned friend then sought to re-examine on, in my submission nothing that she said is an alteration to the litany of complaint that she has made throughout her material. There has been no real change, in my submission, to her attitude towards the husband and the complaints she makes about his conduct from the time they’ve been separated. It’s not as though there has been such a significant change since August of last year that would merit a reopening of that question, and particularly in relation to the question of parental responsibility.
Can I say, as an aside – as an adjunct to the question of parental responsibility – perhaps the most significant thing that has changed is the deterioration in the relationship with W (sic). In my submission the highest the wife’s case gets is, “The husband refused to engage with the psychologist when I asked him to.”
Neither counsel for the wife addressed this issue in any way in their respective opening and closing submissions to the court.
I note that Orders for parental responsibility for children concern decisions made about major issues in those children’s lives.
It is true that at the time of trial the husband’s relationship with his daughter had changed since the final Order for equal shared parental responsibility was made on 19 August 2015.
It is also true that he does not seek Orders that would force W to spend time with him against her will.
Relationships between adolescents and their separated parents are often volatile and dynamic in nature.
In the immediate aftermath of separation in this case, all four children were spending time with their father. When W discovered that her father had been conducting a relationship with his now partner before his separation from W’s mother, the relationship changed so that she chose first to spend less time, and then to spend no time with her father.
That does not mean that her father has abandoned her. He has continued to pay child support for her, and until trial was paying her school fees, her health insurance and for her extracurricular activities.
It may be that her relationship has changed again in the months since trial, or that it may change for the better in the future.
I do not consider the change in that relationship to be a “significant change in circumstances” for the purposes of the Rule in Rice v Asplund.
Indeed, removing the husband from decisions about W’s welfare, may further entrench the difficulties that exist between father and daughter.
The only other possible significant change in circumstances would be the wife’s relocation to (omitted). However, the distance between (omitted) and (omitted) is not enough that the husband will spend significantly less time with the children than he currently does, and again, I do not consider that change to be sufficient to warrant a change in the current Order, which I note was made by consent, for the parties to share equally the responsibility for making major decisions about their children’s lives.
I note that under the provisions of s.65DAC of the Act, the effect of a parenting order that provides for shared parental responsibility is:
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
Parties who hold equal shared parental responsibility for their children therefore need to consult and communicate with each other about those issues for the benefit of the children.
There is little evidence before the court that these parties are currently able to do so. Both parties describe situations which to the objective observer’s eye might seem easily resolvable with appropriate communication, but which have escalated into full-blown disputes between them.
Examples of such situations are the issue of whether the husband would be involved in W’s counselling sessions, the issue of whether the children should attend private or public schools and which particular schools they should attend, and the issue of whether the week the father spent with the children during school holidays could be swapped.
Both parties blame the other for that lack of communication, and as will be seen later in these Reasons, the court was not impressed with either parent’s evidence or maturity at trial.
Both will need to reflect on their behaviour and responsibilities in relation to their children if they are not to create an environment for the children which is negative and toxic.
Conclusion Issue A
For all the above reasons I therefore decline to make any Order that would disturb the parties’ current equal shared parental responsibility for all four children under the orders of 19 August 2015.
B. Whether the wife should be permitted to relocate to (omitted) with the children
The wife seeks Orders that she be permitted to relocate to (omitted) with the children.
The husband seeks Orders that the wife be restrained from doing so and that she remain living with the children in the (omitted) area.
Of course, I cannot make Orders requiring a parent to live anywhere. I can only make Orders in relation to where the children live.
The husband did indicate, in a letter from his lawyers to the wife in October 2014 that if the wife were permitted to relocate, the children should live with him in (omitted) or (omitted), but he did not prosecute that case at trial and the trial was conducted on the basis that the children would remain living with their mother as their primary carer.
The husband currently lives in (omitted) with his mother but it was his evidence at trial that he intends to move to the (omitted) area when these proceedings are complete.
(omitted) is about 50 kilometres north of (omitted) and about 55 kilometres further east along the (omitted) from (omitted).
Orders relating to where children are to live, and with whom, are parenting orders pursuant to s.64B(2) of the Act.
Section 60CA of the Act states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then sets out 16 separate factors that the court must consider when deciding which orders to make that might be in a child’s best interests, and I will address each of those factors in turn.
Section 60CC(2) sets out the primary considerations as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The meaning of the phrase “meaningful relationship” has been discussed in many cases before this Court and the Family Court of Australia.
In in Mazorski v Albright (2008) 37 FLR 518, Brown J said at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, the meaningfulness of a child’s relationship with his or her parents does not depend on the amount of time he or she spends with each of them, but on the quality of that time.
In Tait & Densmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. […] The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and each of their parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and their parents are able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing that relationship must be a primary consideration of the Court in considering what is in their best interests.
However, as can be seen above, the Act makes very clear that if there are circumstances which require the Court to make orders that protect a child from harm, then the need for those Orders must hold greater weight in the determination of the Court than the benefit to a child of having a meaningful relationship with both parents.
W clearly does not currently have a meaningful relationship with her father, but I find, on the evidence of both parents and Mr T, that the boys do have such a relationship with almost all the qualities set out by Cronin J in Tait & Densmore.
I say “almost all” because the father’s behaviour in yelling at the children and verbally abusing their mother does not provide a good role model for them.
The same is true for the children’s relationship with their mother. The children have close and loving relationship with her, but she has at times failed to “lead by example” in some of her dealings with their father, for example when she insisted on changing the week they spent with him in the school holidays in breach of the existing orders.
If parents do not provide a consistent, civil and positive role model for their children, then the meaningfulness of their relationships with them will be diminished.
It is axiomatic that children need to be protected from any dispute between their parents about their care arrangements. It is for parents to show maturity, wisdom and sensitivity in their dealings with and about each other after separation, most especially when the children are within hearing distance.
That means the children need to be shielded not only from direct arguments and physical expressions of anger, but from being exposed to adult issues they are not in any position to fully understand.
This case is a classic example of the damage that can be done to a parent/child relationship when a child is exposed to such issues, as W’s estrangement from her father began when she saw messages on an old phone of his between him and his now partner, that relationship having begun before the parties to these proceedings separated.
W was 13 at the time, and unable to have any mature understanding of the emotional complexities of adult relationships. The confusion and distress she experienced as a result of finding those messages has led not only to her estrangement from her father, but probably to her current mental health issues. If ever there were a case where parents ought to have protected their child from harm, this was it.
The boys too have been exposed to their parents’ contempt for each other, and they must be protected from that toxicity as far as the Court is able to do so. I will therefore make orders that protect them from any further harm as much as is possible.
As Mr T stated in his Family report:
7.4 […] Like his brothers, I think (X) has not yet been greatly affected by his parents (sic) ‘conflict’; I am not confident that this will remain the case if stable arrangements for sharing their care are not settle (sic) soon. This is of utmost importance because continuing conflict is the clearest extent (sic) threat to the children’s care, welfare, and development.
As I am bound by law to do, I will make Orders that allow the boys’ meaningful relationship with their father to continue while at the same time protecting them as much as possible from the toxic relationship that exists between their parents.
Section 60CC(3) then sets out 14 “additional considerations” as follows:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
At the time of trial W’s views were very clear – she did not want to have a relationship with her father as a result of what she saw as his betrayal of the family by engaging in an extra-marital affair, and his subsequent disrespectful and insensitive behaviour towards her when she expressed reluctance to spend time with him. She was hurt and angry, and it was clear that if a positive future relationship is to exist between father and daughter, it is likely that professional intervention in the form of family therapy will be needed.
W is now 15 years old and her views therefore hold some considerable weight. In those circumstances, I do not think it is desirable or in W’s best interests to force her to spend time with her father. I note that by the time of trial, to his great credit, Mr Silver had reluctantly decided not to pursue orders that would force her to do so.
The situation with X, Y and Z is different. They all have a positive relationship with their father, although they have clearly been exposed to the somewhat poisonous relationship between the parents.
The evidence of the family consultant is that all three boys wish to spend more time with their father, although none of them was particularly happy with the current Wednesday evening arrangements.
The boys are now 13, 11, and 9 years old respectively and it is understandable that they wish to spend more time with their father as they enter and traverse their adolescence.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
W has a close and loving relationship with her mother although it appears from the evidence that she is much more aware of the dispute between her parents than are her younger brothers. She has certainly aligned herself with her mother and adopted her mother’s view of her father as an insensitive and uncaring parent.
Whether or not that view is reasonable, it has led to her being estranged from him and I emphasise that it is unlikely, without professional therapeutic intervention, that the relationship can be repaired in the near future.
Both parents and Mr T describe the boys as having close, loving and appropriate relationships with both parents, although Mr T states:
10.2 From the history of their care, and from my interviews and observations, I would conclude that all 4 children formed stable primary attachments to their mother, Ms Silver and the emotional stability that comes from these bonds remains important to each of them, especially Z. This is reflected in the decision that they live with their mother.
10.3 All 4 children have also developed a robust and developmentally important father child relationships (sic) with Mr Silver.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
All the children have lived with their mother since separation and she has made the majority of the decisions about major long-term issues since that time.
It is her evidence that the husband has been unwilling to engage with her in relation to issues such as W’s mental health, and that he is unwilling to compromise on issues such as where the children will attend school.
The husband’s evidence is that the wife has excluded him from participating in decision-making processes, although evidence adduced at trial about his lack of response to messages left for him, particularly those in relation to W’s distress, as well as evidence of his lack of flexibility and need for things to be done his way, indicate that he has not always taken the opportunity afforded to him to participate in those processes.
He has, however, taken every opportunity to spend time and communicate with the children, and indeed it is his case that his time with the boys should be extended.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The husband paid the mortgages on both the former family home and the parties’ investment property from the date of separation to the date of their sale (assuming of course that both properties have been sold).
He considers those payments, together with his payments towards the children’s school fees and extra-curricular activities to have been made in lieu of child support.
The wife sought a child support assessment from the Department of Human Services (Child Support) (“the Child Support Agency”) and Mr Silver was assessed as having a child support liability of $2,152 per month. I note that his payment of the mortgages and the other contributions towards the children’s expenses equalled or exceeded that amount.
Two days before trial, on 12 June 2016, the wife informed the Child Support Agency that she wished to move from a private collection to an Agency collection arrangement.
The court is unaware how Mr Silver’s child support responsibilities have been managed since the presumed sale of the properties.
Each parent otherwise supports the children while they are with them.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It is Mr T’s view that the children could well manage an increase in the time they spend with their father during school terms. The change he recommends is from the current two nights and one evening per fortnight regime to an arrangement with the children would spend five nights per fortnight with their father, fortnightly from Thursday afternoon to Monday morning, and from Thursday afternoon to Friday morning in the alternate week. I note that the father supports that recommendation.
The question of the mother’s wish to relocate to (omitted) is addressed thus in the family report:
3.9 The Solicitors acting for Mr Silver wrote to me on 8 February 2016 advising me that they were instructed that Ms Silver had recently told their client that she wished to relocate to (omitted) with the children and that although Mr Silver has no objection per se to the proposal, if Ms Silver were to relocate he would seek Orders that the children live with him and spend time with her for ‘extended weekend time’ each alternate weekend and for half of the school holidays.
However, unfortunately Mr T makes no further mention of Ms Silver’s proposed relocation in the remainder of his report and he does not seem to have asked the children any questions in relation to the issue.
At trial, he was asked questions about the practical difficulty of the husband spending time with the children according to his recommended regime if the children were to live in (omitted), but those questions were asked in the context of how the father’s time could be structured with the children living in (omitted) and not in the context of whether it was in their best interests to relocate.
Mr T did say the following however:
As long as children have a stable, secure base with their mother, in this case, their primary attachment figure, and have adequate time and good quality time with the other parent, from a psychological perspective, that gives you the best results.
What that means is that, most regrettably, the Court has no independent professional evidence about the likely impact of the wife’s proposed relocation on the children other than how it would affect their time with their father in practical terms.
The husband’s Affidavit sworn 1 June 2016 and filed 2 June 2016 annexes a letter from his lawyers to the wife dated 28 October 2014 indicating that the husband believed that the wife was “threatening” to relocate to the parties’ investment property in (omitted) with the children. The letter informs Ms Silver that if she were to relocate with the children without either the consent of the husband or a court order permitting her to do so, Mr Silver would file an urgent application for a recovery order. That letter also sought a written undertaking from the wife within seven days that she would not relocate the children’s place of residence, failing which they “will have no choice but to issue an application in the Federal Circuit Court seeking orders in relation to the children, and, in particular, an injunction to prevent you from moving”.
The husband’s Affidavit then notes:
10. Although Ms Silver did not provide the undertaking requested, she has not relocated.
Later in the same affidavit the husband deposes as follows:
27. […] I formally advised Ms Silver of this[2] in February 2015 when she informed me that she wanted to enrol the children in (omitted) Public School. Ms Silver indicated that she intends to relocate to the (omitted) area after the home is sold. I have advised Ms Silver that I do not agree to the children attending (omitted) Public School, but she has not responded since her initial proposal. (omitted) is an extra 35 – 40 minutes away from the former matrimonial home in (omitted). This would significantly impact my ability to spend time with the children, which is not in their best interest. I intend to relocate to the (omitted) area once a settlement is resolved.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
[2] “this” = the husband's proposal for schools he wanted the children to attend.
If the wife is permitted to relocate to (omitted) with the children there will be considerable practical difficulty in the husband spending extended time with the boys.
While the actual distance between (omitted) and (omitted) is relatively short, the logistics of the travel required, which I will discuss later in these Reasons, present some difficulty.
However, that difficulty relates to the amount of time and the structure of the time the father is able to spend with the children, rather than the children’s “right to maintain personal relations and direct contact with both parents on a regular basis”.
It is not in dispute between the parties that all four children will retain their right to maintain relations with both parents, and that they will live with their mother and spend regular and relatively frequent time with their father (save that W should decide for herself if/when she sees him).
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no evidence to suggest that these parents cannot meet their children’s material needs. They are generally healthy, well dressed and fed, and they have safe and secure accommodation in both parents’ care.
All are said to be progressing well at school, despite W’s mental health issues, and there is no suggestion that their parents cannot meet their intellectual needs.
It is in the area of the parties’ capacity to meet their children’s emotional needs that the Court has some serious concerns.
The husband presents as a somewhat surly man who often gave defensive and monosyllabic answers to questions which probed his motives.
His response to W’s reluctance to spend time with him was to become angry with her and insist on her attendance, resulting on one occasion in the police being called to the changeover location. Such behaviour served only to entrench W’s opposition to spending time with him.
While he clearly loves his daughter, and is obviously distressed that she has chosen not to spend time with him, he impresses as a somewhat rigid thinker who is not open to views which conflict with his.
For instance, Mr T recommended in his report that Mr Silver seek professional therapeutic assistance in order to “manage the current difficulties with his relationship with W, [….] and ultimately for them to engage in some family therapy to resolve the issues between them ”.
When asked at trial whether he had taken that advice on board, it was the husband’s evidence that he had not sought any such assistance as he had not thought it necessary because he had completed a post-separation parenting course and a Men’s Behaviour Change program.
Another example is found in the wife’s evidence, confirmed by the husband at trial, that he had decided not to continue with medication prescribed for X after an injury to his leg because his leg did not seem to be damaged to the husband and X was not complaining about it. He therefore did not think the medication was necessary and did not provide it to X.
However, it is in his inability to communicate with the mother of his children in civil terms when serious issues are at stake that indicate a certain lack of capacity to understand and meet his children’s emotional needs.
He has involved the children in this dispute by having arguments with their mother in their presence, both at changeover and at their (hobby omitted) games, which cannot help but distress the children. Indeed, the evidence shows that he has persisted in doing so even when asked to move away from the children so that they were not involved in the argument.
There is also the evidence of the wife and her sister, only partly denied by the husband, that when the children are in his care and the wife has attended the children’s (hobby omitted) games, he has refused to allow the children to approach her, stating that it is “his time”.
For her part, the wife impressed as an angry and quite bitter woman who, rather than answering questions directly, appeared to want to tell the court the whole story of the relationship and the husband’s shortcomings.
She underwent quite severe cross-examination from the husband’s counsel, and seemed somewhat evasive at times, her answers and demeanour appearing to be self-serving and defensive.
Ms Silver, too, clearly loves her children dearly, and she was absolutely genuine at trial in her distress about a vitriolic and abusive letter W had emailed to the husband, but her anger at the husband and at the difficult financial circumstances she finds herself in post separation, have led her to involve W in the dispute. Her inability to say good word about the husband’s parenting capacity reflects a contempt for him which cannot help but be transmitted to her children.
I note that the wife denies having spoken to W about financial issues or about the dispute between her parents, but the letter emailed to her father indicates a clear knowledge about those issues which can only have come from her mother.
If these children are to negotiate their adolescence with any genuine emotional support, both parents may need the assistance of professional therapeutic intervention.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
W is now 15 years old and Mr T describes her as:
6.5 […] a girl who was still quite conflicted emotionally about her parents’ separation and particularly her relationship with her father.
She has suffered from mental and emotional ill-health since the separation, and particularly since she discovered the fact of her father’s extramarital affair with his current partner. Her entirely negative view of her father’s partner reflects a certain lack of maturity, although at 15 one would not expect her to fully understand the events which led to her parents’ separation.
The boys appear to be developing at age appropriate levels. They were able to separate their own wishes from those of W when they spoke to Mr T, and to express those wishes in clear and unequivocal terms.
Neither of the children’s parents presents as particularly mature, as neither appears able to move on from the separation, despite both having repartnered (and the wife having separated from her new partner). They retain a level of unrelenting animosity towards each other which was palpable when each gave evidence at trial.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence before the court that the children have any Aboriginal or Torres Strait Islander heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The evidence shows that both parents love all their children dearly and equally.
The husband’s inability to resolve issues between him and his daughter which prevent him from having a current relationship with her is due not so much to his attitude to her but to his own personal vulnerabilities as I have described above.
In financial terms, the husband has taken on his responsibilities as a parent by paying the mortgage on the family home, and by contributing to the children’s school fees and other expenses. I have no evidence to suggest that he will not continue to pay child support for all four children as assessed by the Child Support Agency, although it was the wife’s evidence at trial that he had told her that her financial woes would increase if the Child Support Agency were to collect the child support assessed.
He has spent time with the children wherever possible and has involved himself in the children’s sporting activities, particularly in their participation in (hobby omitted), by assisting with training and by attending games.
The only criticism I can make of his attitude to his parenting responsibilities is that his tendency to be inflexible in relation to the children’s care arrangements indicates that there are times when he puts his own needs ahead of those of his children.
As Mr T said at trial:
[…] he’s very focused on the importance to him of being able to play a key role in the kids’ care, welfare and development. That’s not the same as being directly focused on the kids, and I – the distinction is important, but I wouldn’t overplay it either.
The wife, too, has displayed a considerable sense of responsibility in relation to her care of the children. She cares for them for the majority of the time, she has organised for W to obtain professional help when she was experiencing mental ill-health, and she too has attended the children’s sporting activities and relevant school events.
Like the husband, she has at times demonstrated that her own needs take precedence over those of the children, but it must be said that those times are rare.
(j) any family violence involving the child or a member of the child’s family;
In this case, there are allegations of verbal and emotional abuse laid against both parties.
The wife alleges that the husband is an angry and controlling man who abuses her and the children and is unable to contain his temper when aroused.
Affidavits filed by both her mother and her sister, neither of whose evidence was shaken under fairly brief cross-examination at trial, support that evidence.
Allegations include the following:
· That the husband was asked to leave the (hobby omitted) stadium during one of the children’s (hobby omitted) matches because he was abusing the referee. The husband reluctantly conceded at trial that this had been the case although he denied that allegation in his affidavit material.
· That the husband yells at the children in an abusive manner when he is angry with them.
· That the husband has insisted on having adult and conflictual conversations about the children’s care in the presence of the children.
· That the husband’s attitude to the wife is demeaning and inflexible.
· That the husband has allowed his mother to physically discipline Y. I note that the husband vehemently denies this allegation.
· That the husband refuses to respond to the wife’s texts and emails in relation to the care of the children, and specifically in relation to W’s mental health difficulties. When evidence of specific instances of this allegation were put to the husband at trial, he responded in a somewhat defensive and evasive manner, admitting that he had received those messages from the wife, and saying that while he could not remember whether he had responded to them, he had “absorbed the information”.
Given the content of some of those texts and emails, which stated clearly that the wife was seriously concerned and worried about W’s state of mental health, and conveyed to Mr Silver a treatment plan proposed by W’s general practitioner, I found his evidence in that regard most unsatisfactory.
It is my view that refusing to engage with a partner about matters of importance in relation to children constitutes a form of emotional abuse of the children’s other parent in that it can be seen as controlling or even taunting behaviour.
The husband alleges that the wife has systematically and deliberately attempted to alienate the children from him and to exclude him from their lives, behaviour which, if proven, can also be seen as controlling and abusive. He says that she has been successful in that endeavour in relation to W, and that he fears that if the wife is allowed to move to (omitted), he will be even further excluded from performing his role as a parent.
The wife denies that allegation, and it was her evidence that it is the husband’s rigid, insensitive and volatile behaviour that has resulted in his alienation from W. She takes absolutely no responsibility for her own behaviour being in any way to blame in that arena.
She acknowledged at trial that it was important for the boys to have a relationship with their father and insisted that she had ensured that that relationship was on firm footing. It must be said that there is no evidence before the court of the boys having been alienated from the husband.
Nevertheless, the evidence shows that Ms Silver has made decisions in relation to the children without regard for the husband, and her contempt for him was open and obvious at trial.
I shall return to the issue of the parents’ relationships with the children and their attitude to their parental responsibilities later in these Reasons.
On the basis of all the above evidence I find, on balance, that both parties have engaged in verbal abuse of the other, and that the husband has behaved in a way that ensured that the children were exposed to that conflict.
Both parties, therefore, have engaged in family violence as defined in s.4AB of the Act.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Despite the continuing animosity between these parents, there do not seem to have been the usual multiple applications for Intervention Orders that the Court often finds in those circumstances. Indeed there appear not to have been any Intervention Orders made between these parties.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is almost always preferable for the Court to make orders that are final and which provide certainty for both parents and children, and which are thus unlikely to lead to the institution of further proceedings in relation to their care. I certainly intend the orders that I make in these proceedings to be Final Orders.
(m) any other fact or circumstance that the court thinks is relevant.
There is often talk about “relocation cases” in the family law arena.
However, it is well settled law in Australia that such a case is really just a parenting case with a relocation aspect. The principles to be applied to any decision in this situation are the same as those to be applied in any parenting case.
There is no onus on the parent who wishes to relocate to establish a compelling reason for his/her desire to do so, although that parent’s reasons are always a factor to be taken into account.
The process the Court is required to undertake in these cases was set out in Sayer v Radcliffe (2012) 48 Fam LR 298 where the Full Court said at paragraph 48:
“A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation.”
In this case, the wife’s proposal is that she be permitted to move with the children about 37 kilometres east along the (omitted) from (omitted) to (omitted).
It is her evidence that housing is cheaper in (omitted) than in (omitted) and that there are suitable schools for the children there.
The husband’s proposal is that she be restrained from doing so. He suggests that the wife and the children could live in public housing in (omitted), but I note that he does not agitate for Orders that the children live with him in the event that I restrain the wife from moving the children to (omitted).
A pre-litigation letter from his lawyers to the wife aside, his whole case was argued on the basis that the children would continue to live with their mother, and I take that fact into consideration under this subsection of the Act.
Ultimately then, the question is to be answered by determining what Orders the Court should make in the children’s best interests.
Conclusion Issue B
When I consider all the above evidence and apply the law to that evidence, I find that it is in the best interests of the children to live primarily with their mother, and that she be permitted to relocate their place of residence from (omitted) to (omitted).
C. The amount of time the children should spend with the husband.
Section 65DAA of the Act states:
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
I have decided that the parties in this matter will retain equal parental responsibility for the children, but it is not in dispute that the children will continue to live with their mother for the majority of the time. That means that there is no need for me to consider making an Order for equal time.
In addition, I have already decided that the wife ought to be permitted to move to the (omitted) area with the children. That is, the children will live in the (omitted) area unless the wife changes her mind on that issue.
Further, the father currently lives in (omitted), and intends to move to the (omitted) area. The distance between (omitted) and (omitted), while relatively short in general terms, is such that an order for equal shared care would not be practicable because of the need for the children to travel significant distances to school for half of the time.
Pursuant to s.65DAA(2), I must now consider whether it is in the boys’ best interests to spend “substantial and significant time” with their father and if so, how that time should be structured.
X, Y and Z currently spend time with their father on each alternate weekend during term time from the conclusion of school on Friday until 7:00 p.m. on Sunday, and from the conclusion of school to 8:30 p.m. each Wednesday pursuant to interim Orders made by consent on 19 August 2015. That is “substantial and significant time” under s.65DAA(3).
At the time of trial, W was spending no time with her father.
As a result of these proceedings, the husband seeks orders for the children to spend five nights per fortnight with him during school terms: on each alternate weekend from after school on Thursday until the commencement of school on Monday, and from after school on Thursday to the commencement of school on Friday in the alternate week.
That arrangement would see him both collecting the children from and delivering them to their schools at each changeover.
Mr Silver’s employment is based in (omitted) where he says his hours are essentially 9:00am to 5:00pm, and he proposes to live in (omitted), which is where his partner lives.
If he were to care for the children during term time from after school on Thursday to the commencement of school on Monday each fortnight, and on the alternate Thursday night overnight, as a matter of logistical practicality he would need to travel an extra 55 kilometres or so past his home in order to collect the children from their schools in (omitted) and bring them back to (omitted) (a further 55 kilometres) on each Thursday afternoon, and transport them 55 kilometres to school on alternate Monday and Friday mornings before travelling back another 55 kilometres. All of that Monday and Friday morning travel would need to be undertaken before he makes his usual journey to his work, which, according to his evidence at trial, currently takes an hour and ten minutes or so if he has “a clear run”, but can take more than three hours on “the worst day”. He conceded under cross-examination that it could take him about an hour and 40 minutes to travel from (omitted) to (omitted) on a good day. That would mean he would have to drop the children at their schools in (omitted) by about 7:15 a.m. at the latest in order to get to work on time at 9:00 a.m. and that would mean the children would need to leave his home in (omitted) by approximately 6:30 a.m.
In addition, he would need to leave work early on Thursdays in order to pick the children up from their schools.
When questioned about the practicability of that proposal at trial, the husband stated that he had had arranged flexible hours with his employer so he could accommodate his proposed times with the children, but I note that he was speaking on the assumption that the children would be living in the (omitted) area which is much closer to both (omitted) and (omitted) than (omitted) is.
It was clear, from his responses to further cross-examination, that he had not really considered his 5/9 fortnight proposal in light of the possibility of the children living in (omitted). For instance, he had not made any enquiries about schools for the children in the (omitted) area, or about public transport services between (omitted) and (omitted).
With the boys living and going to school in (omitted), I find that it is simply impracticable for the boys to spend time with their father in the 5/9 fortnightly regime proposed because of the onerous travel they would need to undertake, especially in rising early to be returned to school on alternate Monday and Friday mornings.
I am aware that Mr T’s view, both in his Family Report and his oral evidence, is that the boys ought to be spending more time with their father and that a 5/9 fortnightly regime would be optimal in that regard.
However, I am bound to consider the “reasonable practicability” of any proposed care regime, and I note that Cronin J in the passage from his judgment in Tait & Densmore quoted in paragraph 55 above, referred to Kay J’s statement in Godfrey & Sanders where His Honour said:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended.
In all of those circumstances, I will make orders that allow for Mr Silver to spend time with the boys (and W should she choose to do so) from the conclusion of school on each alternate Friday to 7:00 p.m. on Sunday, and for at least half of all school term holidays as the most practicable arrangement for the children that is in their best interests.
For the long summer holidays, the husband seeks the following Orders in his Outline of Case Document filed on 14 June 2016:
(c) for half of the long Summer school holidays, and in default of agreement the second half;
(d) from 5:00 p.m. on Christmas Eve until 5:00 p.m. on Christmas Day in 2016 and in each alternate year thereafter;
(e) from 5:00 p.m. on Christmas Day until 5:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter;
In her Outline of Case Document filed on 15 June 2016, the wife seeks the following orders in relation to the husband’s time with the children over the long summer holidays:
(c) for half of the long summer holidays by agreement and failing agreement from 3pm on Christmas Day until 5pm on New Year’s Eve and from 5pm on the second Saturday in January for one week.
I note that that proposal would see the children spending time with their father for less than two weeks over the six-week holiday period unless the parties are able to agree on dates for half of that period.
It was the wife’s evidence, and that of her mother, that Christmas morning has traditionally been a special time for their family, with the maternal family visiting the family home to be with the children as they open their presents. The wife therefore seeks Orders that would allow the children to be with her on every Christmas morning.
Traditions which are established during relationships are not often able to be continued after the relationship is over without both parties’ consent. That can create tension and result in disappointment for family members, but the plain truth is that the customs and traditions of relationships often die with the end of the relationship, and difficult as that may be, family members simply have to accept that truth.
Christmas morning, with all the excitement of presents, is a special time for children who celebrate Christmas, even as they grow. It is my view that children’s best interests are served by having the opportunity to spend that special time with each parent in alternate years wherever it is practicable and safe.
I will therefore make Orders for the children to wake up in one parent’s household and have the opportunity to have the Christmas meal with the other parent each year.
I will also make Orders for the long summer holidays which allows for the children to spend half of those holidays with each party by agreement, and in default of agreement, with the husband for 3 weeks beginning on the day after the last day of the school year and with the wife for 3 weeks concluding on the last Saturday of the holidays in 2017/2018 and in each alternate year thereafter, with the wife having them for the first 3 weeks and the husband for the last 3 weeks in 2018/2019 and in each alternate year thereafter.
There will, of course, also be provision for other special occasions and for liberal telephone and/or Skype time between the boys and their absent parent at various times.
Property
D. Is it just and equitable in all the circumstances to adjust the current property interests of the parties?
This question arises from the terms of s.79(2) of the Act, which states that a court must not alter the property interests of parties to a marriage unless it is just and equitable to do so.
In Stanford v Stanford[3] the High Court stated that it is not a simple matter to decide what is just and equitable. At paragraph 36 of their judgment, their Honours stated:
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.
[3] Stanford v Stanford (2012) FLC 93-518.
Nevertheless, the High Court went on to say, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
In Bevan & Bevan the Full Court said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[4].
[4] Bevan & Bevan [2013] FamCAFC 116 paragraph 70.
In this case, the parties were married and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases”, and therefore I find that it is just and equitable to alter the property interests of the parties.
E. If it is just and equitable to do so, what are the assets and liabilities to be divided between the parties?
The assets and liabilities to be divided between the parties can be set out as follows, taking into account the orders made by the Court on 16 December 2016:
Assets
Owner
Value
Proceeds of sale Property C
Joint
Unknown to the Court but held in trust for the parties
Proceeds of sale of Property B
Joint
Unknown to the Court but held in trust for the parties
Mitsubishi (omitted) Motor Vehicle
Husband
$8000
(omitted) motor vehicle
Wife
$6000
(omitted) Shares
Wife
$3172
Bank Account
Husband
$1000
TOTAL Assets
Unknown to the Court
Liabilities
Owner
Value
Personal Loans
Father
$11,049
Credit Cards
Father
$9871
TOTAL Liabilities
$20,920
Superannuation
(omitted) Super Trust
Husband
$147,194
(omitted)
Wife
$15,000
Total Superannuation
$162,194
Therefore, while the Court does not know the exact current value of the property pool, it will be possible to make Orders which divide the pool as to a percentage to the husband and a percentage to the wife.
F. What have been the contributions of the parties to their assets and liabilities?
This question arises from s.79(4) of the Act which reads:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The evidence in this case is that throughout the marriage, the husband worked and earned an income, while the wife either worked outside the home, or stayed home caring for the house and the children.
The only lump sum received by the parties during the marriage was a severance payment received by the husband in 2012 which was either $120,000 (on the wife’s evidence) or $110,000 (according to the husband).
What is not in dispute is that none of that money made its way into either of the mortgages encumbering the parties’ real property.
The parties went on an overseas holiday and the remainder was spent on general family expenses, although the wife says that a motor vehicle worth $12,000 was also purchased. It would seem that that vehicle has been sold or traded in on a currently-owned vehicle. The wife’s current vehicle is encumbered by a loan and therefore it is virtually impossible to say whether any of the husband’s severance payment can be traced to any current asset of the parties.
In all of those circumstances, I find that the parties’ contributions to their property during the marriage, whether financial or non-financial, were equal.
After separation, the husband continued to pay the mortgages on the two properties, and he also paid for the children’s health insurance, for their extra-curricular activities and for most of their school fees.
It is the husband’s evidence that he considered those payments to be child support payments, although the wife disputes that.
In any event, the payments were either child support payments or they were post-separation contributions to the property and to the welfare of the family.
The wife tried to run a unique argument while under cross-examination at trial to the effect that if the payments were to be considered as child support (which she had previously denied), then that child support was “her money” as she is the children’s primary carer, and therefore the payments should be counted as a post-separation contribution on her side of the contributions ledger.
No authority for that proposition was put to the Court and the wife’s counsel did not mention the issue in his submissions. In any event, it is not an argument that impresses the Court.
It has always been the husband’s position that the payments were in lieu of child support and while the wife asked the Child Support Agency to collect her child support from the husband in June 2016, the husband’s payments prior to that date cannot be considered as post-separation contributions to the parties’ property and to the welfare of the family.
Conclusion Issue F
On the basis of the above evidence, I consider that the parties have overall made equal contributions to their property.
G. Should the parties’ contribution-based entitlements be adjusted on the basis of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e) (see above).
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the parties are of similar age and health, but the wife earns significantly less than the husband, he earning $144,525 per annum and her evidence being that her taxable income in 2015-2016 had been about $5000. I note that that income does not include child support or the wife’s Centrelink benefits.[5]
[5] I note that in proceedings under s.74 of the Act for spousal maintenance I am not permitted (under s75(3)) to consider a party's eligibility for an income tested pension, allowance or benefit. However, these proceedings are brought under s.79 of the Act and relate to a just and equitable property settlement.
The husband’s counsel spent some time at trial cross-examining the wife in some detail about her (omitted) business and its potential, but overall what was clear from her evidence was that the current business had only begun a matter of weeks before her cross examination in December 2016, and that her capacity to earn an income from it was far less secure and at a far lower level than the husband’s earning capacity.
In addition, she will have the primary care of the four children of the marriage, albeit with the assistance of child support from the husband. I note that Z, the youngest child, is not likely to complete his secondary education before 2023 or so.
The relationship and marriage lasted about 17 years and the wife spent most of that time looking after the house and the children while the husband went out to work, although she did work on occasion during the marriage. That situation has resulted in the wife’s earning capacity being considerably less than that of the husband and she has no professional qualifications, although she did begin study to obtain (omitted) qualifications from which, according to her evidence, she was forced to withdraw after separation in order to focus on the children’s welfare.
Conclusion Issue G
On the basis of the evidence before the court and taking into account all the relevant matters under s.75(2), I find it appropriate to adjust the contribution-based entitlements of the parties as to 20 per cent in favour of the wife.
H. On the basis of the above matters, what orders should be made to effect a just and equitable settlement between the parties?
The wife seeks Orders that she receive all of the net proceeds of sale of the former family home and the parties’ investment property plus her car, her shares and superannuation splitting order that would equalise the parties’ superannuation entitlements.
She seeks a further order that $50,000 of the net worth of property she receives is to be considered as spousal maintenance under s.77A of the Act, but her counsel did not agitate that issue at trial, saying that while he understood that the order was sought in the wife’s Application, he did not know why, and he simply had “no view on it”.
It was the view of counsel for the husband in his closing submissions that the wife had not established a case in relation to her need for spousal maintenance, but his client would not object to such an order being made.
The husband seeks orders that would see the net non-superannuation assets of the marriage divided so that the wife receives 70% and the husband 30% and I have found that to be a just and equitable division.
In all the circumstances of this case, I find that it is appropriate to make an order under s.77A of the Act, although, given the size of the property pool available for distribution, I will declare only $20,000 of the property retained by the wife to be in the form of spousal maintenance for her.
Both parties seek an equalisation of their superannuation entitlements and I find that to be a just and equitable outcome in relation to those entitlements as the marriage was of a significant duration and the discrepancy between the parties’ current entitlements is considerable.
The husband’s superannuation entitlements at the time of trial amounted to $147,194 and the wife’s about $15,000. In order to equalise those entitlements, there will be an order that the amount of $66,100 be split from the husband’s superannuation fund to one designated by the wife[6].
[6] Total entitlements are $147,194 + $15,000 = $162,194. Half of $162,194 = $81,097. That is, each party should have superannuation entitlements of $81,097 after the split. $147,194 - $81,097 = $66,097, and $81,097 - $15,000 = $66,097. I have rounded the amount up to the nearest hundred dollars for convenience.
The non-superannuation property pool is in this matter is not large as both the family home and the parties’ investment property were heavily mortgaged.
It will not be possible to make Orders stating exactly the sums to be distributed between the parties as the Court does not know the quantum of the sales proceeds from their real properties, but I will make Orders that the parties keep their respective motor vehicles, that the wife retain her shares and the husband retain his (omitted) bank account. None of those assets was in dispute at trial.
When the value of those assets is taken into account, and the parties’ remaining liabilities are considered, there should be a payment to each party such that they receive assets worth 70% and 30% of the total non-superannuation property pool respectively.
I note that at the conclusion of the trial I made an order by consent that upon the settlement of the sale of the parties’ two properties, each party was to receive the sum of $10,000 as a partial settlement pending the outcome of these proceedings. That partial distribution will need to be taken into account when the calculations of the overall settlement are performed by the parties and/or their lawyers.
There is also the issue of the loan attached to the wife’s motor vehicle, that loan being in the husband’s name. It is not in dispute that the wife will retain the motor vehicle as part of this settlement, and I find that it would be just and equitable in all the circumstances for that loan to be paid out from the proceeds of sale of the parties’ properties.
Conclusion
There is always a sadness attached to any case where a child is estranged from a parent, and that sadness is exacerbated when the parent appears to have no insight into the reasons for that estrangement.
However, were Mr Silver to listen carefully to the advice of Mr T, it is possible that, with professional intervention, his relationship with his daughter might be repaired.
Mr Silver is a man whose role as father to these children is vitally important to him. However, his particular personality vulnerabilities have so far prevented him from gaining insight into how his behaviour has an impact on them. His former wife and his daughter, in particular, see him as authoritarian and controlling and he would do well to seek assistance in the form of psychological counselling or therapy to help him reflect on that issue.
Mr T also thought that Mr Silver might benefit from attending a Men’s Behavioural Change Program, although he was reluctant to recommend that I order him to do so because of Mr Silver’s current lack of insight into his need for such a program. In those circumstances I do not intend to make an Order for the husband to attend such a program.
It is to be hoped, now that these proceedings are concluded, that both parents will gain some insight into how their toxic and poisonous views of each other have had an impact on the children, and that they will develop the ability to genuinely put the children’s needs ahead of their own.
I certify that the preceding two hundred and thirty one (231) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 21 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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