SIMONS & SIMONS
[2019] FCCA 2058
•2 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMONS & SIMONS | [2019] FCCA 2058 |
| Catchwords: FAMILY LAW – Parenting – best interests of children – orders made-property proceedings-orders made. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D, 4AB(1), 79(4), 79(2), 75(2), 79(1), 75(2) |
| Cases cited: Lotta & Lotta [2017] FamCA 50 Russell & Russell [1999] FamCA 1875 Teal & Teal [2010] FamCAFC 120 Kennon & Kennon (1997) FLC 92-757 Keating & Keating [2019] FamCAFC 46 |
| Applicant: | MR SIMONS |
| Respondent: | MS SIMONS |
| File Number: | PAC 4076 of 2016 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 8 May 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 2 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rosic |
| Counsel for the Respondent: | Mr Schroder |
ORDERS
Parenting
The parties shall have equal shared parental responsibility for the children [X] born … 2011 and [Y] born … 2012 (the children).
That the children live with the mother.
The children spend time with the father as follows:
(a)on a fortnightly basis from the conclusion of school on Thursdays to the commencement of school the following Tuesday;
(b)for one half of the school holidays as agreed, or, failing agreement within 28 days of the commencement of the school holiday period, the second half;
(c)That the children spend time with the father on Father’s Day from 9 AM to 6 PM;
(d)And otherwise as agreed between the parties.
Changeovers shall occur at the children’s school. Otherwise, if not applicable, the father or his nominee shall collect the children from the mother’s residence at the commencement of the children’s time with him, and the mother or her nominee shall collect the children from the father’s residence at the conclusion of such times.
Order 3 is suspended in so far as it is necessary to give effect to the following:-
(a)That the children spend each Mother's Day with the mother from 9.00am to 6.00pm; and
(b)At Christmas as follows:-
(i)In years ending with an odd number the children shall spend time with the mother from 6.00pm Christmas Eve until 3.00pm Christmas Day and with the father from 3.00pm Christmas Day to 6.00pm Boxing Day; and
(ii)In years ending with an even number the children shall spend time with father from 6.00pm Christmas Eve until 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day to 6.00pm Boxing Day.
The children shall spend time with the father on each of the children’s birthdays, if they are not already living with him pursuant to these Orders, as agreed between the parties and failing agreement from 5.00pm to 8:00pm if the children’s birthdays fall on a school day however if their birthdays fall on a non school day then from either 8.00am to 2.00pm or from 2.00pm to 8.00pm.
The children shall spend time with the mother on each of the children’s birthdays, if they are not already living with her pursuant to these Orders, as agreed between the parties and failing agreement from 5.00pm to 8:00pm if the children’s birthdays fall on a school day however if their birthdays fall on a non school day then from either 8.00am to 2.00pm or from 2.00pm to 8.00pm.
The children shall spend time with the mother on the mother’s birthday as agreed between the parties and failing agreement from 10.00am and 2.00pm if such a day is not a school day. If the mother’s birthday falls on a school day then the children’s time with the father shall be suspended from 3.00pm to 7.00pm.
The children shall spend time with the father on the father’s birthday as agreed between the parties and failing agreement from 10.00am and 2.00pm if such a day is not a school day. If the father’s birthday falls on a school day then the children’s time with the mother shall be suspended from 3.00pm to 7.00pm.
Each party be allowed to contact the children by telephone on Tuesdays Thursdays and Sundays at 6 PM when the children are not in their respective care.
Neither party shall denigrate the other party nor permit any third person to do so in the presence or hearing of the children.
Each party shall keep the other advised at all times of their residential address and residential telephone number and any emergency contact number.
Each party shall ensure that the other is promptly advised of any medical emergency or significant illness or injury suffered by the children including sufficient details to enable both parties to be consulted with respect to and be fully advised regarding such illness or condition and any treatment recommended or provided and both parties shall be at liberty to visit the children if hospitalised.
Each party shall ensure that the other is promptly advised of any medical appointments for the children including but not limited to the children attending upon any counsellor, psychologist, psychiatrist or other physician and sufficient notice of any such appointment(s) shall be given to the other party so that the other party may attend at such appointments.
Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other party the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
That both parties will ensure that the children have valid passports, and to facilitate this Order, both parties sign any documents necessary to obtain an Australian Passport or a renewal thereof for the children and the cost of the passport application or renewal be borne by the requesting parent.
That in the event that either the applicant or the respondent propose to travel overseas with the children for any period, then at least two (2) month’s written notice must be given to the other party, providing the destinations, mode of transport, flight numbers and times of departure and return, relevant contact telephone number(s) and addresses of where the children and/or the party will be residing for the duration of the proposed travel.
That unless either party is travelling with the children outside the Commonwealth of Australia, [X]’s passport is to remain in the custody and control of the father and [Y]’s passport is to remain in the custody and control of the mother.
Property
That the father, should he wish to retain the property situate at and known as A Street, Suburb B (the property), shall pay to the mother within six weeks from the date of these Orders, the sum of $354,316.
That simultaneously with Order 1, the parties do all acts and things and sign all necessary documents to discharge the mortgage in favour of ANZ Banking Group Limited being mortgage registered no … (“the mortgage”) secured over the property and forthwith the father shall refinance the mortgage into his sole name and shall indemnify and keep indemnified the mother from any liability thereon.
That should the father fail to comply with Orders 1 and 2 above, then the parties shall forthwith do all things and sign all documents necessary to cause the property situate at and known as A Street, Suburb B, NSW ("the A Street, Suburb B property") to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale.
(b)Discharge of the mortgage.
(c)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the New South Wales Division of the Australian Property Institute or his/her nominee.
(d)The balance then remaining to be divided as to:
(i)65 per centum plus $14,536 to the Mother; and
(ii)The balance to the father.
That pending the completion of the sale of the A Street, Suburb B property the father shall:-
(a)Pay as they fall due all of the outgoings in respect of the property including mortgage repayments, insurance premiums, council rates and water rates and shall indemnify the mother in respect of such outgoings; and
(b)Carry out appropriate repairs and maintenance to the property (including the yards and gardens) so that the property is in a neat and tidy condition and is presentable for marketing and sale.
That as between the father and mother, and subject to the above Orders, the father and mother shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court in which these Orders are made be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That each party has liberty to apply in relation the implementation or enforcement of these Orders upon seven days notice.
IT IS NOTED that publication of this judgment under the pseudonym Simons & Simons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4076 of 2016
| MR SIMONS |
Applicant
And
| MS SIMONS |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the final hearing of property and parenting proceedings between the parties. The parenting proceedings relate to the children [X] born … 2011 and [Y] born … 2012.
Proposals
The father’s further amended initiating application filed 2 May 2019 sought final parenting orders, inter alia, that the parties have equal shared parental responsibility for the children, and that the children spend equal time with each of the parents in eight night blocks. In the alternative, he proposed an equal time arrangement on a week about basis. These proposed orders were reflected in the father’s case outline.
At the outset of the father’s oral submissions, the father handed up a proposed short minute of order which sought final parenting orders that the children be subject to a week about parenting arrangement (as above, this week about arrangement proposal had previously been sought by the father but in the alternative). And, in the alternative, he sought a final parenting order that the children live with him in a two-week cycle; in the first week, from after school Thursday to before school Tuesday (5 nights), and in the second week, from after school Thursday until 10 AM the following Saturday (2 nights). In relation to this latter alternative proposal, the children would live with the mother in a similar two-week cycle, when they were not living with the father.
The mother’s proposals were set out in her further amended response filed 11 April 2019 and in her Case Outline; inter alia, the mother sought orders that the parties have equal parental responsibility for the children, that the children live with her, and that during school term time the children spend time with the father for 4 nights each fortnight, with an equal sharing of school holiday time.
Material relied upon
The mother relied upon the following documents:
a)Further Amended Response filed 11 April 2019.
b)Affidavit of Ms Simons filed 11 April 2019.
c)Affidavit of Mr C filed 11 April 2019.
d)Affidavit of Ms D filed 11 April 2019
e)Affidavit of Ms E filed 11 April 2019.
The father relied upon the following documents:
a)Further Amended Initiating Application filed 2 May 2019.
b)Affidavit of Mr Simons sworn and filed 17 April 2019.
c)Tender bundle of documents marked “S1-1” to “S1-17” referred to in the Affidavit of Mr Simons sworn and filed 17 April 2019.
d)Affidavit of Dr F sworn and filed 30 April 2019.
e)Financial statement of Mr Simons sworn 17 April 2019 and filed 1 May 2019.
f)Section 62G Report by Ms G dated 9 August 2018.
The following exhibits were relied upon:
a)Exhibit A: Family Report prepared by Ms G dated 9 Aug 2018 and CDC Memorandum to Court dated 27 June 2017.
b)Exhibit B: 7 page document dated 24 October 2017 (typographical error – should read 2018) under letter head of Employer U
c)Exhibit C: Applicant Father’s Financial Statement filed 30 August 2016
d)Exhibit D: S 18 Documents produced under subpoena to Ms H, Counselling – Note from June 2015 marked W
e)Exhibit E: S 3 Documents produced under subpoena to Ms J – the Children’s Doctor – marked W1 and W2.
f)Exhibit F: S 12 Documents produced under subpoena to Suburb B Clinic– marked W1, W2 and W3.
g)Exhibit G: 9 Yellow Tabs ANZ Bank Acct No. …
h)Exhibit H: Tags 1 and 2 ANZ Bank Acct No. …
i)Exhibit I: Tagged pages in ANZ Bank Acct No. 3963-65793
j)Exhibit J: S 15 Dr K – Breast Clinic Tags A1, A2 and A3
Evidence: parenting
Throughout these reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The mother is aged 44 years. The father is aged 45 years.
The father works as a public servant. The mother works with Employer V. From about 2005 to 2017 the mother worked in the Employer V. Presently she works in Employer V.
The parties commenced cohabitation in about mid 2006.
The parties separated at about the end of August 2015 and lived separately and apart since that time.
The parties lived in Country T for about a year and 2008/2009 to enable the father to pursue an employment opportunity.
When the child [X] was born in … 2011, the mother took 12 months maternity leave. The father took about a few weeks off work and helped the mother initially as the mother had (accidentally) cut her hand.
The mother returned to work in a part-time capacity in … 2012 at the end of her maternity leave.
When the child [Y] was born in … 2012 the mother again took 12 months maternity leave and was the primary carer for both of the children. The mother returned to work part-time in … 2014 at the end of her maternity leave.
Both children attended daycare for certain periods.
In … 2014 the mother was diagnosed with breast cancer. She had surgery in … 2014. Between … and … 2014 she had chemotherapy and between … and … 2014 radiotherapy. During the period of diagnosis and treatment the mother continued to work and care for the children, although she received significant assistance with child care from the father and others. The maternal grandmother, for example, came from Town W to live with the mother and to help with the children. The mother had a total of 17 paid sick days throughout that six-month period.
The father attended the four chemotherapy sessions that the mother had then spent five weeks on a voluntary assignment at Town L and two weeks away working in Queensland whilst the mother underwent seven weeks of daily radiotherapy, continued to care for the children and continued to work.
From about 2010 the father worked a second job. In 2011 he also commenced to operate a business. He worked in and around Sydney in both this second job and his own business in addition to his employment as a public servant. He was also taking voluntary assignments out of Sydney in his position and for his second job. Accordingly, the father was often away from the family home leaving the mother alone to care for the children.
Between … 2011 and … 2015 the father had certain periods when he was away on voluntary assignment when working for either Employer Z or Employer U; these periods away are set out in paragraph 21 of the mother’s trial affidavit.
During the parties’ relationship the father attempted to control most aspects of their home and family life. For example, the father regularly said to the mother throughout the relationship that he didn’t want the mother buying any furniture or anything for the house without consulting him. He stated that it needed to be a family decision.
A further example was that on virtually every family holiday that the parties had, the father would say to the mother when they were packing, words to the effect:
“You can take this handbag or this one (showing the mother the bags as he said it) but you cannot take that one (pointing to the handbag that the mother used most often) because it is too big.” The father would then go on to say: “You can take this bag (showing the mother a piece of luggage that he had selected).”
Whilst the parties were living in Country T in 2008 a friend of the mother’s was using the mother’s motor-vehicle which she had purchased before the parties had commenced living together and which was fully paid off. The vehicle was in an accident and written off by the insurance company. The mother received an insurance payout of $25,000. When the parties returned to Australia the mother told the father that she needed to buy a car. The father responded, stating, “No. You don’t need one. We’ll just use mine.” The mother replied, “I need a car to get to and from work.” The father stated, “We’ll work around it.” The parties had similar conversations over the next two months or so when the mother asked the father on many occasions to let her buy a replacement vehicle. Finally the father said to the mother, “You can spend $10,000 on a car.” Ultimately the father relented and the parties purchased a Motor Vehicle M for $12,500 which was purchased in the father’s name.
In about early November 2014, in the course of an argument between the father and the mother about parenting [Y], the father said to the mother, “You have to admit that your parenting skills have been lacking lately.” The mother responded, “You shouldn’t say that, it’s hurtful.” The father said to the mother, “Over the past 6 months you have been a terrible mother, a terrible wife and a terrible person.” The mother responded, “No, over the past six months I have had cancer. I have been having treatment for cancer.”
The above argument took place after the mother had placed [Y] in the “naughty corner” in the house where the children were sent on occasions if they misbehaved. The mother had given her a two-minute timeout. [Y] was crying and the father walked up to her without observing the two minutes and said words to the effect, “You need to be a good girl for mummy. Don’t do it again, go and say sorry.” The mother said to the father, “I know you are trying to help and I know I’ve been having a hard time with the kids lately but they are not going to respect me or my authority if you don’t. You can’t keep stepping in over the top of me and taking over. You need to let me discipline them. You need for them to see that what I say goes.” In cross examination, the father agreed that his consoling of [Y], in the circumstances, was undermining of the mother. It was put to the father that his behaviour was undermining of the mother’s authority regarding the child [Y] and showed disrespect by him towards mother’s parenting, to which the father would not agree.
Since the children were toddlers, notwithstanding that the mother was the primary carer, and that the father was often away from work, when he was home, particularly in relation to disciplining the children in circumstances where the mother might be disciplining either or both of the children, the father would interfere and takeover. The father throughout the parties’ relationship, and continuing, would often repeat an instruction given by the mother to the children.
During the parties’ relationship the father criticised the mother over various things to the point that, for most of the time, the mother would not argue with the father or take a contrary position. Early in the relationship the mother would stand her ground with the father but ultimately the mother felt worn down to the point where she felt inadequate and lacking in self-confidence to put her case. If the mother did take a contrary position to the father, the father would turn the argument around and say things to the mother which made her feel intimidated and unequal such as, “it is your fault”. And if the mother complained, the father would say, “You are too sensitive”, or “You misinterpreted me”, or, “That’s not a true translation of what was just said.” On one occasion the father criticised the mother when he said to her, “You are lazy by nature.” When the father said that the mother said, “I am not lazy.” The father’s reply was “I didn’t say you are lazy I said that you are lazy by nature.” The mother stated, “What does that mean?”. The father then said, “Why do you think you are lazy?” The mother stated, “I don’t think I’m lazy you just said that I was lazy.” The father then said, “No I didn’t but you obviously think that you are.” Such argument and many others went on until the mother just gave up and agreed with the father that it was all her fault.
By early November 2014 the mother had had enough of the father’s conduct towards her and she then, after a conversation with the father, left the family home to stay with her friend to give her some space and thinking time.
The parties started marriage counselling in early December 2014 and continued on with it into 2015. From the mother’s perspective, things between the parties continued to deteriorate. On several occasions soon after counselling sessions the father said to the mother words to the effect, “You’ve been told how to fix our marriage and you refuse to do it. It’s all your fault.”
Throughout the parties’ relationship the father would regularly criticise the mother’s house work, clothing, work skills and general knowledge both in private and in front of other people.
In exhibit D, being subpoenaed notes of the father’s consultation with a counsellor in January 2015, it was recorded that the father had stated to the counsellor, inter alia, that he sees the mother as being pessimistic, half arsed and lazy. It was recorded that he stated the mother remembers the bad and is never focused on good. The notes state that the father is perhaps seen as not being supportive of the mother through her cancer. The notes state that the mother refuses to exercise. The notes state that the mother views the father as emotionally abusive and controlling. The notes state that the mother was very selfish since her cancer, and refers to her not doing housework tasks.
In early September 2015, after separation, the parties agreed to a parenting arrangement where the mother would spend four nights at the family home caring for the children whilst the father stayed elsewhere, and then the father would spend the next four nights whilst the mother stayed elsewhere and so on. This arrangement was set to suit the father’s work shifts. The mother changed her work roster to accommodate the arrangements.
In January 2016 the mother moved into rented premises.
Since March 2016 the father has been working four 24-hour continuous shifts over a seven-day period followed by a block of nine days off.
The mother reluctantly agreed on a trial basis to the father’s proposal for the children to be with each parent on an eight day cycle, which was to suit the father’s shifts with his employer. That arrangement has been in place since March 2016, and continued despite the mother’s objections ever since it commenced. Although the mother agreed to that arrangement of the time on a trial basis, the mother said to the father, “I don’t like this idea of 8 nights. I don’t think it is going to work. I don’t think it is stable or routine enough for the kids.”
Both children attend School N Public School at A Street, Suburb B. The child [X] started kindergarten in February 2016 and [Y] started in February 2018. [X] is now in year 3 and [Y] is now in year 1.
During term 2 of 2016, [X]’s teacher, Ms O, told the parties, inter alia, that routine was very important to [X] and having good routines would be likely to assist in his organisational skills building. This teacher had told the parties that [X] had difficulty getting organised for tasks and he did not have confidence in reading and sounds.
Ms O also told the parties that [X] became anxious often in the afternoons. She stated her belief that this was because he was not confident in knowing what his after-school routine was going to be each day including who was going to pick him up.
In September 2016 an appointment was made for the parties to see the school counsellor. The counsellor told the mother, inter alia, that she recommended the Anchor Program run by Unifam and which specialises in the counselling children of separated parents.
The children started seeing Ms P, a counsellor in the Anchor Program, in November 2016.
Ms E told the mother that she had concerns about the current custody arrangements for the children. She stated that the children need a consistent routine, smells, locations et cetera. She stated that what the children now have was disruptive. She was particularly concerned about [X]. She stated that if things did not change she thought that things with [X] would deteriorate.
Later, in about mid December 2016, Ms E spoke with the mother and stated, inter alia, that the children were really struggling and she had concerns for the children not coping with living in two different houses. She stated that there was nothing she could do therapeutically, she was just a Band-Aid while the current living arrangements remained. She stated her opinion that the current arrangement was not working. She stated that [X] was still grieving the loss of family and she referred to [X]’s self-doubt. She also stated her concern for [Y] who was emotionally dysregulated.
In all the conversations that the mother had with Ms E, Ms E had told the mother that she had had the same conversations with the father.
In all the mother’s conversations with Ms E, Ms E stated her view that the eight-day arrangement was not good, that it was disruptive and needed to change as soon as possible.
In July – August 2017 the child [X] was assessed due to concerns regarding his academic progress. At this time the child was aged six years and five months. The assessment report, inter alia, recommended referral of [X] to an occupational therapist for an assessment to determine whether he had any visual processing, fine motor difficulties or sensory needs that may be addressed through occupational therapy.
The child [X] has been on a waiting list for an occupational therapist for about 12 months. He currently sees a child psychologist, Ms Q. The appointments are now monthly. Through this psychologist, the child recently completed a 10 week course which was designed to assist in the development of social and communication skills.
In 2018 the father was the coach of both children’s respective sports teams. The child [X] currently has a sensory issue and does not like wearing underpants. In early July 2018 the children were in the mother’s care and she took them to their sports games. The father approached the child in front of four or five other members of his team and asked the child [X] whether he was wearing underpants to which the child responded in the negative. The father produced a pair of underpants out of the bag and that he was carrying and handed them to [X] stating that, “Put these on or you’re not playing.” The child then stated, “No”. The father then stated, “Fine, if you don’t put them on you can’t play.” The child [X] then became extremely upset and the father did not allow him to play.
On … 2019 ([X]’s birthday), [X] said to the mother, “Mummy why won’t you let daddy see us this afternoon? He told us that you don’t want him to see us.” The mother responded, “That’s not right. I took you to see daddy this morning and I invited him to dinner tonight but he said that he couldn’t come because he is working.”
[Y] attended the Anchor Program with [X] although she was classed as too young to be an active participant in the program.
[Y] has not been seen by any psychologists since the children stopped attending the Anchor Program. [Y] is doing well at school academically.
In about mid 2018 the school reported that [Y] had bitten her friend. The mother, throughout 2018, had noticed this child’s behaviour becoming more aggressive towards [X] and some other children on occasions. On one occasion, in late November 2018, [Y]’s teacher told the mother that the child [Y] had taken a toy out of another student’s schoolbag without permission. This teacher told the mother that the father had been spoken to about [Y]’s stealing and bullying, to which the mother responded that she had known nothing about it.
On 27 November 2018 the mother sent an email message to certain teachers at [Y]’s school regarding [Y]’s behaviour. Inter alia, she stated:
“Over the weekend during conversations with [Y] she disclosed that recently she had stolen money from a child in her class. She advised that “Daddy has punished me so you don’t have to do.” Until this weekend, I was unaware of the incident. [Y]’s father, Mr Simons and I are separated and there is limited communication. He did not inform me of the incident….. I am aware that [Y]’s father Mr Simons was contacted about the money theft several weeks ago. I am unsure whether he has been contacted regarding other incidents. As our communication is lacking, I would ask that all contact regarding the children [X] and [Y], be made by the school to both parents individually.”
When the mother raised the issues of [Y] stealing and bullying at school, the father told the mother that he did not know what she was talking about.
In about mid February 2019 [Y] said to the mother after school one day, “I might have got a yellow card at school today because I punched AA (a girl in her class).” After this incident, the mother spoke to the father and said, “I think we need to have [Y] assessed and give her someone to talk to. It seems as though she might need it.” The father said that he would think about it. The mother did not hear anything further from the father on that subject.
On 15 February 2019 the child [Y] said to the mother, “Mummy why are you taking all of daddy’s money from him?” The mother stated, “What do you mean?” [Y] stated, “Daddy told me you are taking him to court to get all of his money so that he can’t buy us things.”
The father is the coach of both children’s sports teams. The father sits on the committee of the sports club. During the mother’s eight night cycle with the children the father will often turn up at school to see the children. Often, when the children get home from school, one of them will say to the mother, “Daddy came to see us at school care today.”
On 28 February 2019, the children were in the mother’s care. On that day the father attended before school care to deliver to [X] a pair of earphones which were not required by him on that day or in the near future. The father returned to the school between recess and lunch to assist [Y]’s class with reading groups. He then attended a 4:15 PM appointment that [X] had with Ms Q.
On Tuesdays the father teaches ethics to [X]’s class at school. The father holds the position of vice president of the school’s parents and citizens association. The father is in attendance at the school regularly, and from the mother’s observations, the father is well known to the teachers, principal and assistant principal. The father has joined the school band committee and has started attending committee meetings.
Every evening when the children are with the mother the father telephones to speak to the children at about 6 PM, whether or not he is seen during the course of the day at school or otherwise. The mother calls the children in the evening on days when she has not seen them but she does not call if she has seen them during the day.
The mother currently lives in a rented house on 6 acres at Nelson (Suburb R). The house has four bedrooms and has all the usual modern conveniences. The mother is currently caretaking that property for mutual friends of the parties who spend most of their time living in Queensland. At the property there are animals including dogs. The children enjoy interacting with all of the animals. The mother does not have any plans to change her place of residence in the near future.
When the children are with the mother she drives them to school and picks them up. On Tuesdays, Thursdays and Fridays, they attend before school care and after-school care.
The mother currently does not work on Mondays and Wednesdays when the children are with her. The mother is able to, if necessary, rearrange her roster at work to accommodate getting the children to and from school and to their extracurricular activities.
The mother has completed the Keeping Contact Program, as well as the Tuning into Kids course.
On 30 November 2015 the mother received a text message from the father in the following terms:
“I’m sorry. I can’t do this anymore I have to go away. You have access to all my accounts. There is plenty of money for you and the kids. Look after our babies. Please make sure they know how much I love them. I know I’m a disappointment to you. I love you all very much.”
Later that day a friend of the father telephoned the mother telling her that the father was okay and was in hospital. The father had been admitted to the Suburb B Clinic at Suburb GG, being a medical facility specialising in mental health issues and drug abuse. The father received treatment for three weeks.
During the 8 nights that the children spend time with the father he does not work for that 8 night period, apart from in the business STS but the father conducts that business during the times that the children are at school.
Again, the father is heavily involved in all of [X]’s activities, in that he is the sports coach for his sports team; he is the competition facilitator for the sports teams and a committee member; he is a committee member for the school band and assists with rehearsals and tutorials; he is [X]’s ethics teacher at school; he is active in assisting at sports for weekly meetings and weekend activities; he assists with swimming and that occasionally he gets into the pool to help the instructors; he is actively participating in sports with [X]; he is on the school fundraising committee; he is on the school barbecue committee; he assists at school working bees; he is the vice president of the children’s school parents and citizens Association since … 2018, and he was from … 2018 to … 2018 the chairperson for the playground subcommittee.
The father attends each of [X]’s events at school including book week parade. He also attends all parent teacher interviews and all parent focused extracurricular activities.
The father is also significantly involved in [Y]’s schooling and extracurricular activities.
The father sought to discuss the children attending the Anchor Program in late September 2016 on two occasions but the mother would not discuss the matter with him.
Since separation, the father has participated in counselling, several programs and seminars, including online courses, with a view to improving his communication and parenting skills; they are set out at paragraph 139 of his trial affidavit.
On 18 October 2016 the father attended the Talking with your Kids course.
The father gave oral evidence. The court does not propose to set out the entirety of his oral evidence.
The father agreed that the picture that he was painting to the family report writer, in paragraph 45 of the family report, in the context of his stating that there was a lack of communication between himself and the mother for 50% of the time, was a picture of poor communication.
The father was asked whether, following the mother reading paragraph 45 of the family report, in particular the reference to the father’s suggestion of mental health concerns in the mother, whether that might have created trust in the mother, to which he answered in the negative.
The father agreed that with an eight day cycle the changeovers occurred on different days. He stated that it did occur to him that that could be confusing for the children, however he did not consider changing that arrangement. He stated that in 2016, at a time when the child [X] was distressed over the party’s separation, he considered that the eight-day cycle might have been a consideration in relation to the boy’s stress, although not any one thing stood out.
In exhibit E, being certain subpoenaed notes of a psychologist who saw the children, a reference to a consultation on 19 April 2017 between the child [X] with the father present, stated, inter alia, that, “Not happy with the way (the mother) manages her behaviour.” The notes refer to the child [X] mostly missing the mother at night time going to bed. The notes refer to increased anxiety/worry in [X]. The notes refer to the mother’s cancer treatment and that she “went downhill after this.” The notes refer to the mother trying to take the children off the father in January. The notes state, “Dad wants kids to see me to make sure they have someone to speak to about the separation.”
In exhibit E, notes of the consultation with the child [X] and the father present on 3 May 2017, the psychologist states, inter alia, that the father was spoken to about her concerns “about the way that he and (the mother) are coparenting. No trust. Poor communication and the potential damage the two of them could have on the children is the focus. I explained how I see my role in working with ([X]) is to point out the behaviours and the risk of harm.” In cross examination, the father stated that the psychologist Ms J had raised her concerns in relation to better communication occurring between the parties. The father stated that there were trust issues between the parties as to parenting, and poor communication, at that stage.
The father’s attention was drawn to paragraph 62 of his trial affidavit in which he had stated, inter alia, that in about November 2017 the child [X] had said to him words to the effect, “sometimes when I’m at mummy’s house I wish I wasn’t alive” and that the father had raised this with [X]’s psychologist Ms Q. The father confirmed that he did not contact the mother after the child made this statement to him, stating that there was to be an appointment the next day with Ms Q. The father was asked why he did not ring the mother there and then after the child made this statement, to which the father replied that he did not know. The father confirmed that he had a genuine concern in relation to [X] after he had made this statement to the father. The father stated it was a mistake not to have told the mother, and that he was upset at the time. The father agreed that his omission to inform the mother of the child’s statement to him was a serious example of lack of cooperation regarding parenting.
The father stated that in the Anchor program, the children had expressed confusion and worry living between two houses.
The father confirmed that he is presently ingesting prescription medication being Zoloft, 100 mg, and that this is a mood adjusting medication.
The father’s attention was drawn to exhibit F being subpoenaed records from the Suburb B Clinic. A consultation with Dr F on 4 February 2019 referred to the father “struggling with parenting challenges.” The father did not know what that specific entry related to.
The father’s attention was drawn to paragraph 33 of the family report in which the father had stated, inter alia, that he had concerns regarding the mother’s inadequate supervision of the children, including his concerns regarding the children being harmed in the mother’s care due to such inadequate supervision. The father would not agree that these statements to the family report writer were a significant and serious criticism of the mother’s parenting.
The father’s attention was drawn to paragraph 47 of the family report. The father, stating that the children had told him that they wanted the parents to live together, confirmed that, when the children ask him why he and the mother separated, he tells them that this was because the mother didn’t want to live with the father anymore. The father was asked whether, on reflection, by stating this to the children, he was blaming the mother for the fact that the parents no longer live together, to which he initially answered in the negative. He agreed that such statement to the children might cause them to have disrespect for the mother.
The mother gave oral evidence. The court does not propose to set out the entirety of her oral evidence.
The mother stated that she takes about 35 minutes to drive from her home to the children’s school.
The mother stated that the parties do not communicate well.
The mother gave, as an example, an occasion when the parties could not agree on a topic, through SMS messages, relating to a psychologist’s appointment.
The mother stated that the parties’ relationship was one of a controlling nature. She stated the father was aggressive. She stated the conversations that she has with the father are turned around. She stated that the father criticises her for not being understanding, or in relation to the children, the mother will raise something and the father will state, “They don’t do that to me.” The mother stated that it happened all the time.
The mother asserted her view that the father should have less contact with the children at school so as to give the children space to make mistakes. She asserted that she did not want the father to be at school every week, continuously. She stated that she did not communicate her views in this context to the father as he intimidates her. The mother stated that she does not like to communicate with the father as she feels intimidated. The mother gave as an example that she did not ask the father to stop calling her honey or darling. In this context she stated that any conversation with the father that was going to cause conflict she did not like having it.
The mother was cross-examined as to paragraph 22 of her Affidavit. She stated that she was not allowed by the father to move furniture without his consent. The mother stated that the father had told her that she had to consult with him over every purchase for the house.
The mother stated that on many occasions, towards the end of the parties’ relationship, she didn’t engage with the father because she didn’t have the strength to engage with him.
The mother stated that the children need a home and a sense of home, as opposed to living out of a suitcase. Rather than the children saying, “I’m living at the mother’s home or the father’s home”, the mother wants the children to say, “I’m living at home.”
The mother stated that she works anywhere from 6 AM to 5 PM. She works on a part-time flexible roster. She works seven days each fortnight. She stated that when the children are spending time with her, she starts work at 8 AM, and when the children are not spending time with her, she starts work at 6 AM. She works 7.5 to 9.5 hour shifts during the day.
The affidavit of the father’s treating psychiatrist Dr F was filed on 30 April 2019.
The psychiatrist’s annexed report dated 29 April 2019 states, inter alia, that he had initially treated the father between … 2015 … 2015 after the father had been admitted into the Suburb B Clinic as an inpatient. He stated that at that time the father had expressed suicidal ideation as a consequence of the breakdown of his marriage.
He states that from January 2016 he has consulted with the father initially on a monthly basis but for some time every three months. He previously diagnosed the father in about December 2015 with an adjustment disorder with mixed anxiety and depressed mood which arose as a consequence of the breakdown of his marriage. He has reviewed the father over several years now. The doctor states that the father’s initial symptoms of depressed mood, disrupted sleep and appetite, suicidal ideation and marked decline in his social and occupational functioning has now resolved. He states the father is now taking a certain dosage of Seroquel at night, having stated that initially the father was prescribed certain medications to both reduce mood and regulate any mood dysregulation. He states that the father in the time that he has treated him has been fully compliant with all of his treatment directions and attended all appointments. He states that he considers the father is “largely in remission” and there has not been an episode of suicidal ideation since his admission as an inpatient to the Suburb B Clinic in … 2015.
In the report of psychologist Ms Q to Dr S dated 21 March 2018, in respect of the child [X], the psychologist states, inter alia, that [X] was referred for assessment and treatment following school concerns regarding potential indicators of autism spectrum disorder, which were predominantly observed in the school setting. She stated that during the initial phase of treatment, this child presented with anxiety, poor organisational skills, difficulties regulating his emotions, and some sensory sensitivities. He also showed high energy levels and some difficulties with maintaining attention. She stated that it was important to note that a number of environmental factors may be contributing to [X]’s presenting concerns, including parental separation, living across two homes, and difficulties within a learning context. The psychologist states that the child [X] has shown progress in treatment thus far and was likely to benefit from continued sessions on a less frequent basis to continue to build on skills learned to maintain and consolidate gains made.
The affidavit of the mother’s work friend, Ms D, filed 11 April 2019 states, inter alia, that the parties came to Town BB to stay with herself and her husband in their home. She states that the father spent much of the time that they stayed with them speaking to the mother in a demeaning and condescending way. She observed that the mother was very quiet during the time that they spent with them and the mother appeared to Ms D to be intimidated by the father.
She further states that on a camping trip the parties were in a campervan with the children. Her husband and herself were in a tent adjacent to the campervan. On the first night that they were there, her husband and herself were in the tent and heard the father speaking very loudly to the child [X] saying things such as, “You’re not having your iPad. You’re going to sleep.” Ms D heard the mother talking softly to the father and [X] but the father was shouting over her. The child [X] was distressed and was crying very loudly. This went on for about half an hour.
The affidavit of Ms E filed 11 April 2019 states, inter alia, that she met the mother within the Employer V in about 2012. She met the father soon thereafter. She has a very close friendship with the mother. She asserts that she has come to know the father well although she has spent much more time with the mother. She went away with the parties on a holiday to Country CC in late 2014. She states that her observations of the mother in the course of her work is that she is strong and decisive. She states her observations of the mother in the family home before the parties separated was much different in that the mother was quiet and withdrawn. She states that the mother would not say much in the father’s presence and when she did speak it was usually “small talk” or something vague that did not involve any decision-making on her part. She had assisted in caring for the children during the mother’s cancer treatment.
Ms E was present at the mother’s home one day about a week after her surgery when the father walked into the house and said to the mother, “What’s all this?” At that time the father was pointing to different areas of the room that they were in. The father went on to say, “It’s a mess. You haven’t done anything.” The mother said, “I have cancer remember.” The father said, “You can’t use the cancer card anymore, it’s been cut out now.” At that time, the mother had only had the surgery and had yet to undergo chemotherapy and radiotherapy.
Ms E states that prior to the mother’s cancer treatment, the father said to her in front of the mother one day words to the effect, “(The mother) is allowed to go shopping with you. You can show her how to dress like you and not like that.” As he said those words he pointed towards the mother and laughed.
Ms E observed on occasions over the years that the father would often intervene when the mother attempted to discipline either or both of the children and he would say words to the mother to the effect, “Just leave it to me. I’ll look after it. They won’t listen to you so don’t bother.”
During the parties’ holiday in Country CC with Ms E, at the resort, a meeting was held for people who may be interested in buying into the resort on a timeshare basis. When they were discussing the meeting the father said to the mother, “The shares are in my name. You and Ms E can go as interested persons and we will get two free vouchers.” The mother said, “I’m not comfortable with that. The shares might be in your name but I am your wife.” The father said, “We will pretend that I am single and here on my own and that the two of you are my friends. You don’t have a choice. You are going along.”
Child Dispute Conference
This conference was held by the family consultant Ms G on 23 May 2017. Both parties were interviewed by her.
The father stated he has no concerns regarding the children’s safety in the mother’s care.
The mother told the family consultant that she suffered depression during breast cancer treatment.
The father told the family consultant that he was voluntarily admitted to the Suburb B Clinic at the time of separation and was discharged three weeks later. He said he was diagnosed with an adjustment disorder and prescribed Zoloft.
The father told the family consultant that he fell in a heap when the mother lodged her Initiating Application and was again prescribed medication. He stated that he sees a psychiatrist and psychologist rarely (every three months or so) through the Suburb B Clinic.
The mother told the family consultant that the father was hospitalised due to his mental health in December 2015 and identified that she had received a message from the father at the time which led her to be concerned that the father was going to commit suicide. She stated that she had concerns at the time that the father would harm the children but does not hold current concerns.
The mother told the family consultant that the father was not physically violent but she believes he was emotionally abusive during their relationship, stating that things had to be his way. She provided the example that the father would tell her “you’re lazy by nature” during arguments, but would then deny he had said she was lazy. The mother stated that situations such as these were always her fault or her misinterpretation of what the father had said, adding that it got to the point where she could not have an opinion.
The mother also stated to the family consultant that, within days of undergoing surgery to remove breast cancer, the father told her not to pull the cancer card because the cancer had been removed. She confirmed that she was undergoing treatment for cancer at the time of the comment and indicated that the father made similar comments on other occasions.
The mother indicated that the father undermined her parenting of the children and said that she had raised with the father prior to separation that the children did not respect her and he was teaching the children that they did not have to. She stated that the father responded by saying that, over the preceding six months (which was during the period she was “fighting breast cancer”), she was a “terrible mother, wife and person.” The mother indicated to the family consultant that there were no difficulties with the children’s relationships with her.
The mother told the family consultant that the father was controlling during their relationship and provided the example that, upon moving into a new home, she painted a wall and the father told her she did it wrong and repainted the wall in the same colour she had. She said that, if things were not done exactly the way the father said, “it was wrong”.
The father reported that the mother initiated the separation and indicated that he did not agree with this decision, stating that the mother was the love of his life.
The parties indicated that, while they had both sought for the children to attend counselling, they have been unable to agree to a counsellor for the children. The father reported concerns that the mother’s motivation for seeking counselling for the children was in order to subpoena the counselling records to influence the court proceedings. (In cross examination, the father stated that it had been his view that that was the mother’s motivation. He agreed that this was a criticism of the mother.)
The father told the family consultant that communication between himself and the mother “depends on the day” and indicated that there has been some conflict between him and the mother which the children have been exposed to.
The mother told the family consultant that communication is “bad” and “we don’t communicate”. She stated that the parenting relationship was strained when she and the father are together and that she thinks the children are aware of this. The mother stated that she tries to limit interactions with the father and tries not to talk to the father about important topics.
Both parties identified that, at the time of this conference, they had been on a waiting list for the Keeping Contact program for about nine months.
The father stated that the child [X] was very fidgety and that a diagnosis of ADHD or ODD had been queried for him. He stated that [X]’s learning is very retarded and that he is receiving additional academic support at school. He stated that [X] is undergoing assessment at school regarding his learning needs and that he and the mother had agreed with the school that [X] would attend upon a paediatrician and OT.
The mother reported that [X] is having difficulties at school and the school has suggested that a routine would be good for him. The mother stated that [X] gets anxious and will not try if he thinks he is going to fail. She stated that [X] has been referred to the learning support team this year and received support at school in 2016.
The mother stated that [X]’s counsellor thinks that [X] has anxiety. The mother indicated that she agrees that [X]’s presentation is consistent with anxiety and reported that he has to have something in his hands and finds it difficult to express what he is thinking and feeling.
The mother told the family consultant that she had agreed to trial the current arrangements (the current equal time, eight day about arrangement) for three months but does not like the idea. She stated that the current arrangements are disruptive to the children, do not provide stability and routine for the children, give the children a sense of insecurity about what is going to happen long-term, and that she does not think the children have a sense of home.
Both parties reported that the children had previously engaged in counselling via Uniting.
The father said that he had been informed by the Uniting counsellor that the children would do better in a primary care arrangement but stated that he had not been provided with any reasons for this.
The father stated that [X]’s sense of self-worth and sense of strength is just gone and that he therefore wants this child to attend counselling.
The mother reported that the children’s counsellor at Uniting said that she sees a problem with the current arrangements and that she (the counsellor) is “a Band-Aid”.
The mother said that the children had trouble settling with the father and experience nightmares, which they do not in her care, [Y] is dysregulated and the children have trouble differentiating where they are on any given day. She also reported that [Y] can be defiant and exhibit challenging behaviour upon returning from spending time with the father and that this resolves within a day or two.
The mother identified that there have been some incidents of the father being controlling towards the children and that he likes to be in control and likes things done his way. She provided the example that the father would not allow [X] to take a comfort object to the shops and that [X] “got into a tizz” as a result.
The father identified that he did not hold concerns regarding the mother’s parenting prior to separation but said that the mother has never been very maternal and he assumed additional responsibility for the children while she was undergoing cancer treatment.
Under the heading “Future directions”, the family consultant stated, inter alia, that the parties should attend on a clinical psychologist, or in the alternative a paediatrician, for formal assessment regarding the identified concerns regarding [X]’s well-being, with specific focus on assessment of the factors that are contributing to the reported learning difficulties and anxiety symptoms. She stated that clarification should be sought regarding the parties progress on the waiting list for the Keeping Contact programs run by Uniting and that the parties comply with any requirements in order to enrol in this program.
Further, she stated that arrangements that do not conform to a fixed schedule, such as the current arrangements for the children, require a high level of parental communication and cooperation in order to provide consistency, stability and routine for the children.
Family report
The family report writer was Ms G. The family report was dated 9 August 2018. She conducted interviews with the parties and the children on 22 May 2018. She was not cross-examined.
The mother told the family report writer that she agreed in about March 2016 to trial an equal time arrangement but she did not agree that the arrangement was in the children’s best interests.
Both parties stated that a report was made to the Department of Family and Community Services (FACS) by the children’s therapist at Uniting.
The father reported to the family report writer that there was no family violence between himself and the mother whilst the mother alleged that the father was psychologically abusive and controlling towards her.
The family report writer noted that each party reported concerns regarding the children’s well-being in the other’s care. She stated that the concerns reported appeared largely related to the poor parenting relationship between the parties.
Both parties reported concerns regarding the other’s mental health with each party indicating that their mental health was stable.
The father told the family report writer that an area of parenting he could improve on was his communication with the mother.
The mother identified her proposal that the children spend five nights per fortnight with the father because they need “their dad”.
The mother told the family report writer that the current rolling arrangement is difficult for the children and difficult for her and the father. The mother reported that, while the children have probably become a little bit used to what’s happening, they still experience confusion about what day it is, what is happening for them and who’s doing what.
While the father reported that there was no family violence in his and the mother’s relationship, he also stated that the mother slapped him on one occasion, adding “but I probably earnt it.”
The mother provided information to the family report writer, consistent with what she reported at the Child Dispute Conference, regarding the father allegedly being psychologically abusive and controlling towards her, and undermining her parenting of the children during their relationship. She also identified, as she did at the time of the Child Dispute Conference, that there have been no incidents of physical violence between her and the father.
The mother reported that the father continues to undermine her authority with the children but said that he does this not as obviously as he did previously. She provided the example that, if she tells the children not to do something, the father repeats this and “it sounds supportive but it’s not”, clarifying that she thinks the children view the father as having the “last stand” regarding issues. The mother also indicated that the father continues to be controlling towards her.
The mother identified concerns that the children will be detrimentally impacted by the father’s reported controlling behaviour. She indicated concerns that this will have an impact on [X]’s emotional well-being, because [X] is more sensitive, in the “same way I’ve been affected”. The mother indicated that, as a result of family violence, “I would argue less and less” and acquiesced to the father, identifying that this “would make me feel worse.” She also reported concerns that [Y], in contrast to [X], will view the father’s behaviour “as the way of being” and said, “I don’t want either scenario” to occur.
The father reported that he currently attends appointments with a psychologist every three months and is prescribed medication regarding his mental health. He said that the medication means that he does not feel like a zombie and does not crumble into a heap at times of crisis. The mother stated that she believes that she is currently suffering from depression and identified that her GP has prescribed her antidepressant medication.
Both parents indicated that they exchange information regarding the children at changeovers.
The mother stated that she thinks she and the father are reasonably on par regarding rules and boundaries for the children but that the way they guide the children is different. She stated that she is led by emotions and tries to be aware of other people’s emotions and feelings. The mother stated that the father is “very much not like that” and “finds it very difficult” to attune to other people’s emotions. She reported concerns that the father’s parenting style does not take into account the children’s emotional well-being, rather he determines that “this is the way it’s going to be.”
The father stated that there are definitely parenting differences between himself and the mother, identifying “I have rules and boundaries, she doesn’t seem to.”
The father stated that communication between himself and the mother is “50% of the time, perfect; 50% of the time, non-existent.”
The father stated that he and the mother sat for hours discussing the children when [Y] had surgery, and go out to dinner with the children but then the next day the mother was angry at the father for no reason; the father attributed this to “mental health”. When the father was asked how he and the mother make decisions regarding the children, he stated “we can’t”, and that the mother “won’t have the conversation but then complains because she’s not consulted”.
The mother stated that there was a definite lack of communication between herself and the father. She stated that she and the father communicate “okay on a day-to-day basis” but have difficulty communicating regarding “more in-depth things”. She provided the example that she and the father had differing views about the appropriateness of the children being taken to an exhibition featuring dead human bodies. The mother stated that the father “just dismisses me or deflects” if she raises issues regarding the children. She also said that she believes that there was a very deliberate attempt by the father to paint her as uncaring and uncooperative but stated that she has attempted to communicate with the father on “many many occasions”, via email text message, or with a friend present. However, the mother also identified that she does not feel comfortable sitting with the father, “just him and I”.
The father said that, when the children ask why he and the mother separated, he tells them that this was because, “Mummy doesn’t want to live with Daddy anymore” but that she does love the children.
The mother reported that the father refers to her as “honey” or “darling” and identified that, although she does not like this, “I don’t say anything to him” about it. She went on to state that she tries to be neutral in her reactions to the father, identifying that this is because she does not want the children to view her as “the mean one” or as “the negative”.
The mother said that she has told the children that she, the father and the children are “family” but that she and the father cannot live together and fight too much when they are together. The mother stated that the child [Y] had recently commented that the father told her that the parents do not fight when they are together; she reported that [Y] also said, “I don’t know which one (of her parents) to believe”.
The parties reported that the children have attended upon a number of counsellors/psychologists including Ms E at Uniting and Ms J.
When the father was asked by the family report writer if he had any concerns about the children’s development or well-being, he stated, “no, not really”.
The father stated that there was an incident the week prior to interview when the child [Y] bit her best friend at school. The father added that the mother did not inform him about this incident.
The father stated that the mother “pushed” [X] to a psychologist, Ms Q. The father stated that [X] is a bit slow with processing and experiences some difficulties with literacy and issues with confidence, stating that [X] will not try if he thinks is going to fail.
The father stated that Ms Q had identified that [X] appears a bit anxious. The father reported that [X] preferred to wear socks inside out because he does not like the seam, wears shoes one or two sizes too big because he did not like them feeling tight, and also did not like seams in his underwear.
The mother stated that [X] is a very sensitive little boy. She stated that he is probably very slowly coming out of his shell but also reported that, if something does not go the right way, [X] shuts down and becomes very upset and very withdrawn. She stated that [X] really needs to be in the right frame of mind complete homework. She stated that if you try and spring homework on [X], he reacts badly, including throwing a tantrum, getting quite angry intending to shut down.
The mother reported that [X] was assessed in 2017 by his school counsellor in relation to learning difficulties and it was identified that [X] has some traits consistent with an ASD. The mother reported that her and [X]’s teacher’s account of [X]’s presentation, for the purposes of the assessment, were similar whereas the father’s was different. She said that, if the children were experiencing difficulties, the father would view it as a reflection on him and his parenting.
The mother reported no concerns regarding [Y]’s development or well-being. She stated that [Y] is a firecracker and has a very different personality to [X], reporting that [Y] can be quite defiant and is very headstrong. The mother reported that [Y] had experienced a few issues at school and provided the example that [Y] was sent to the principal’s office the week prior to interview because she bit someone.
When the father was asked about the children’s relationships with the mother, he stated that the children love her very much and she loves them, and that the children Ms the mother when they are not with her and frequently asked when they are going to see her.
The mother stated that she thinks the children have a good relationship with her but said that they had their moments when they don’t like her much, identifying that this was when she says no to the children. She reiterated that the children have a good loving relationship with her and said that they are excited to see her when they see her and that she is excited to see them.
When the mother was asked about the children’s relationship with the father, she identified that she thinks they are the same as the children’s relationships with her.
The children were interviewed by the family report writer.
The child [Y] stated that she really wanted to live with both parents in the same house. She stated that she loves the mother more than the father, identifying that she does not know why this is, but that the father “has pretzels”. She reported that the mother also has pretzels but they taste bad and provided a brief narrative regarding this.
[Y] indicated awareness of the current arrangements. Inter alia, she indicated that she would prefer more time with the mother than the father, “because I love mummy more than daddy”; she attributed this to the mother being a bit more prettier than the father.
[Y] was advised about the observation process and she stated “I want to play with mum first”; she reiterated that this was because, “I love her more than daddy.”
The child [X] appeared introverted and nervous during interview, fiddling with wooden puzzle pieces he had brought with him from the Court childcare room almost constantly during interview. He was also observed to make unusual noises, including clicking noises, with his mouth at times during the interview; it did not appear that this was conscious.
When asked about the current parenting arrangements, [X] stated that the parents “would pretty much switch every day usually.” He identified that the mother had suggested a week with each parent before stating that the arrangements “usually flip-flop, flip-flop all the time.” [X] stated that he feels a little bit upset at each house, and identified that if he is with the father, he misses the mother and vice versa. He also reported that the father was a little bit angry sometimes and the mother was really nice a lot.
[X] stated that he would like to see the parents at the same time, altogether and that he really loves them a lot.
At the conclusion of the interview, [X] commented that he did not have glow sticks with him during the interview and that he takes them everywhere to fiddle with.
During the mother’s observation session with the children, they all appeared focused on their play and the children appeared relaxed and comfortable with the mother. The family report writer observed that the mother appeared somewhat self-conscious unless directly interacting with one of the children.
During the father’s observation session with the children, the father appeared enthusiastic whilst predominantly observing the children’s play whilst verbally interacting with them but appeared somewhat immature in his interactions.
Under the heading “Evaluation”, the family report writer stated that [X]’s presentation during interview appeared atypical, compared to other children of his chronological age, and was of some concern.
The family report writer stated that each party provided different accounts of [X]’s development, behaviour and academic performance and regarding the outcome of an assessment reportedly undertaken by [X]’s school.
The family report writer stated that while it was possible that the reported differences were due to both parties providing an account of [X]’s needs consistent with their proposals, it appeared more likely that the difference was due to one of the parties having a limited understanding of, and therefore limited capacity to meet, [X]’s needs.
The family report writer stated that the parties holding different views regarding the nature of [X]’s needs raises concerns that there will be limited consistency in compliance with any recommended interventions, and therefore in [X]’s needs being met, between the parties’ households. This was likely to have a detrimental impact on [X]’s development and well-being and may result in him being unable to reach his full potential. It may also contribute to conflict between the parties, which is highly likely to have a detrimental impact on the children. It was therefore recommended that both parties be guided by the recommendations of any assessing and/or treating practitioners, unless otherwise agreed.
The family report writer observed that the children each appear to have generally positive and established relationships with each parent. During the observation session with each parent, the children interacted with each parent and sustained this engagement; although this was more notable for [Y] than [X].
The children’s identified preferences for the parties to reconcile appeared consistent with their assessed relationships with each parent. However, [Y] also stated a preference for the mother over the father, which was consistent with her behaviour and separation from the mother. The family report writer stated that while this may be indicative of a genuine preference for the mother, it cannot be discounted that [Y]’s stated preference and behaviour were due to having attended for the assessment with the father.
The family report writer stated that the children’s assessed relationships with each parent appeared generally consistent with the information the mother provided about the children’s relationships. In contrast, the children’s assessed relationships with each parent appeared inconsistent with the father’s account of these. This raised concerns that the father was either intentionally providing an exaggerated negative account of the nature of the children’s relationships with the mother, or that he lacked insight into the nature of the children’s relationships with her. The father’s account raised concerns regarding his capacity to appropriately and consistently encourage and support the children to maintain a meaningful relationship with the mother.
The parties each demonstrated an ability to engage with the children in a child focused manner during observation; however, neither did this consistently. This appeared consistent with the father’s presentation during interview, during which he demonstrated a limited ability to maintain a child focused narrative, instead presenting, at times, as self focused or as focused on his grievances regarding the mother. In contrast, the mother demonstrated some ability during interview to maintain a child focused narrative. It may be of assistance to the parties, the family report writer stated, in further developing their abilities to consistently engage with the children in a child focused manner, if they were to enrol in, and complete, a parenting group, such as Tuning into Kids.
The family report writer stated that the father indicated a belief that any difficulties experienced by the children, including behavioural difficulties, were due to the mother’s parenting capacity. It was, however, noted that the children exhibited similar behaviour, including attention seeking behaviour and non-compliance, in observation with each parent. Furthermore, the children were observed to engage in more behaviour that could be considered attention seeking during the observation with the father than with the mother. Additionally, the children’s accounts of their experiences in each parent’s care were inconsistent with the father’s report that the mother does not implement rules and boundaries with the children.
The family report writer stated that it was possible that the children’s observed and reported behaviour was due to the parenting capacity of each parent. However, it appeared more likely that this was due to the children’s personalities and/or temperaments, to the children experiencing difficulties related to the poor parenting relationship and/or the current parenting arrangements, or to a combination of these factors. The father demonstrated little understanding of this while the mother demonstrated some understanding. This further raised concerns that the father had a limited capacity to differentiate the children’s experiences of the mother from his own, apparently negative, views regarding her. It also raised concerns that the father may interpret any emotional and/or behavioural difficulties experienced by the children as being related to the mother rather than other factors. This was likely to decrease his ability to appropriately respond to any difficulties experienced by the children. The father failing to respond to any difficulties experienced by the children, or responding in an insensitive or inappropriate manner, was likely to result in an exacerbation of the difficulties experienced by the children.
The family report writer stated that determining the veracity of the allegations made by the mother that the father perpetrated family violence towards her was beyond the scope of her assessment; determination of this issue by the court may be required. She stated that the allegations made by the mother are most consistent with coercive controlling type family violence. Family violence of this nature is characterised by a pattern of control and dominance by a primary perpetrator that results in fear, intimidation, and submission by a victim in response to a perpetrator’s use of tactics such as threats, emotional abuse, restriction of contacts, and/or actual physical harm.
The family report writer stated that if it was determined that the father perpetrated coercive controlling type family violence towards the mother, it would be recommended that the children live primarily with her. It would be further recommended that they spent time with the father for a maximum of one day each fortnight, unless they are determined to be at unacceptable risk of harm in his care, whereby it would be recommended that they spend no time with him. If the mother were to have experienced coercive controlling family violence perpetrated by the father, it is likely to be a mitigating factor in her willingness to communicate and co-parent with him. It would, therefore, also be recommended that the mother have sole parental responsibility for the children.
The family report writer stated that it appeared that the parents’ parenting relationship was characterised by inconsistent communication, limited trust in the other as a parent, and dispute regarding the children. It appeared that the poor parenting relationship between the parties has had a detrimental impact on the children, including the children being exposed to the parental dispute regarding parenting arrangements and the children being taken to a number of counselling professionals. This raised concerns that both parents experienced difficulties prioritising the children’s needs above their own and above the dispute between them. It was possible that the reported behavioural difficulties for the children were, at least in part, due to the children being exposed to parental conflict and indicative that this has had a detrimental impact on their psychological well-being. Neither parent demonstrated an understanding of this which raised concerns regarding their capacities to make significant and sustained changes to their own behaviour that has contributed to the poor parenting relationship, in order to minimise the children’s exposure to parental conflict and any detrimental impact of this on the children.
Following the party’s separation and to date the parties equally shared the care of the children.
Up to the birth of the first child in 2011, the parties contributed approximately equally to mortgage repayments and general household living expenses.
Thereafter, and after the wife’s return to part-time work, the parties contributed their earnings to mortgage repayments, the payment of household expenses and living costs. The father maintained his full-time employment.
The father was solely responsible for the mortgage repayments over the property and its outgoings from the date of separation under the one roof in about August 2015 until the mother moved out in about January 2016.
From January 2016, the father has been solely responsible for the mortgage repayments in relation to the property including its outgoings, whilst he has been living in the property. The father’s total mortgage repayments and related expenses for the property, from about August 2015 to the date of his affidavit affirmed 17 April 2019 amount to about $171,701. He now pays $1,705 per fortnight for the mortgage repayments on the property.
In January 2016 the wife sold her Motor Vehicle DD for the sum of $28,000 and paid out finance on that vehicle in the sum of about $25,069. She applied the surplus of about $3,000 towards moving costs, rental bond and furniture for the rental accommodation that she moved into after leaving the property in January 2016.
In about early February 2016, the mother began to live in rental accommodation in the Suburb B district, paying $530 per week rental. Since that time the father has had exclusive occupation of the property.
In about August 2018, the mother began to live in a rented house at Suburb R. The mother caretakes that property for mutual friends of the parties. At that property the mother feeds and cares for certain animals. She pays rent of $450 per week, however this sum is utilised by her to pay expenses such as electricity, water, animal food, and utilities.
The parties previously resolved superannuation issues by way of consent orders, which orders were dated 11 April 2017 and 2 June 2017. In January 2013 the parties had started up a self managed superannuation fund. The consent orders provided that there was an equalisation of the assets of the self managed fund and the parties’ specific superannuation accumulation funds.
Throughout the parties’ relationship, the parties shared household duties.
The father was cross-examined in relation to his failure to cause to be prepared his 2018 income tax return. The court is not satisfied that the father deliberately caused this income tax return to not be prepared so that he would not have to disclose certain income alleged by the mother to be over $100,000. The court accepts the father’s evidence in this context.
By reference to exhibits H and I, being copy bank statements of the father’s account with the ANZ …, the father received income from his own business during the 2018 financial year, from about 26 October 2017 to 28 June 2018, of about $68,782. The father stated in re-examination that the expenses of the business were withdrawn from income received, however no significant particularity was given as to the amount of such expenses. By reference to the father’s tendered income tax returns for the financial years 2015, 2016 and 2017, it can be seen that the income and expenses of the father’s business for each of those financial years fluctuated. And further, the father’s statement, in paragraph 176 of his trial affidavit affirmed 17 April 2019, that since in or about July 2018, his business has earned about $9,115, is consistent with this fluctuating pattern.
There is no persuasive evidential basis for the mother’s submission that the father deliberately tailored his deposits into his business bank account so as to produce a figure of $208 per week income for his business in item 11 of his Financial Statement dated 17 April 2019, noting, inter alia, his affidavit evidence that since in or about July 2018, his business’ gross income was about $9,115.
The court is not satisfied, based upon the documentary material before the court, and the father’s oral evidence, that there has been relevant financial non-disclosure by him in relation to income received and expenses incurred in his business, in particular for the 2018 financial year.
Legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
“The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Ms H & Ms H [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.”
Balance sheet
The parties competing contentions relating to the balance sheet is set out below:
| ASSETS | ||||
| Ownership | Description | Wife’s value | Husband’s value | |
| 1 | Joint | A Street, Suburb B | $1,000,000 | $1,000,000 |
| 2 | Husband | Motor Vehicle EE | $15,000 | $15,000 |
| 3 | Wife | Motor Vehicle FF | $17,000 | $17,000 |
| 4 | Husband | ANZ Bank Savings account ending … | $72 | |
| 5 | Husband | ING Bank Account ending … | $16 | |
| 6 | Husband | Employer's Credit Union account nos … and … | $434 | |
| 7 | Husband | Employer’s Bank Account no ending … | $0 | |
| 8 | Wife | Employer’s Bank Account no … | $2,000 | $2,000 |
| 9 | Wife | Jewellery – engagement and wedding rings | $5,000 | |
| 10 | Wife | Employer's Credit Union account nos … and … | Unknown | |
| 11 | Husband | Tools | $2,000 | $2,000 |
| 12 | Husband | Work Trailer | $1,000 | $1,000 |
| 13 | Husband | Timeshare | NIL | |
| 14 | Husband | Household contents | $2,500 | $2500 |
| 15 | Wife | Household contents | NIL | |
| 16 | Husband | Employer Training | NIL | |
| Total | $ | $1,045,022 | ||
| ADDBACKS | ||||
| Ownership | Description | Wife’s value | Husband’s value | |
| 17 | Husband | $18,000 | ||
| 18 | Wife | |||
| Total | $ | $18,000 | ||
| LIABILITIES | ||||
| Ownership | Description | Wife’s value | Husband’s value | |
| 19 | Joint | ANZ mortgage | $477,000 | $495,925 |
| 20 | Joint | ANZ Bank offset account ending … | 999 | |
| 21 | Husband | Lease through Macquarie Leasing | $12,000 | $12,000 |
| 22 | Wife | Loan secured over Motor Vehicle FF in favour of Macquarie Leasing | $17,000 | $17,000 |
| 23 | Joint | ANZ Credit Card | $5,063 | |
| Total | $506,000 | $525,924 | ||
The parties are in dispute as to the joint ANZ mortgage. The father contends the relevant sum is $495,925. The mother contends the relevant sum is $477,000.
By reference to exhibit G, at about the time of separation, in the ANZ equity manager loan, there was a sum owing of about $16,770 which was reduced to zero following a transfer credit from another loan account with ANZ. Thereafter, the father drew down on the equity manager loan to pay off his credit card payments, such that by 19 February 2019 there was a debit balance owing to ANZ in the equity manager loan account of some $18,000, being the credit limit of that account. Accordingly, the sum of $477,264 shall go into the balance sheet, representing the following two sums owing to ANZ under the mortgage: $355,907 and $121,357, but excluding the ANZ equity manager loan account in debit for $18,000.
The parties are in dispute as to whether or not the wife’s jewellery being engagement and wedding rings should enter the balance sheet; the mother contends that such item was a gift and should not enter the balance sheet. Despite the court inferring that this jewellery was given by the father to the mother previously, in the context of the parties’ engagement and wedding, nevertheless such jewellery forms part of the matrimonial property of the parties and to which the parties have ascribed a value. In the mother’s Financial Statement dated 11 April 2019 she ascribes a value of the jewellery of $4,795 and this figure shall enter the balance sheet.
The parties are in dispute as to the joint ANZ credit card. The evidence indicates that the liability in this context of $5,063 arose post separation through the father’s personal expenditure. This sum shall be taken out of the balance sheet.
Accordingly, the final balance sheet is as follows:
| ASSETS | ||||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | |
| 1 | Joint | A Street, Suburb B | $1,000,000 | $1,000,000 |
| 2 | Husband | Motor Vehicle EE | $15,000 | $15,000 |
| 3 | Wife | Motor Vehicle FF | $17,000 | $17,000 |
| 4 | Husband | ANZ Bank Savings account ending … | $72 | |
| 5 | Husband | ING Bank Account ending … | $16 | |
| 6 | Husband | Employer's Credit Union account nos … and … | $434 | |
| 7 | Husband | Employer’s Bank Account no ending … | $0 | |
| 8 | Wife | Employer’s Bank Account no … | $2,000 | $2,000 |
| 9 | Wife | Jewellery – engagement and wedding rings | $4,795 | |
| 10 | Wife | Employer's Credit Union account nos … and … | Unknown | |
| 11 | Husband | Tools | $2,000 | $2,000 |
| 12 | Husband | Work Trailer | $1,000 | $1,000 |
| 13 | Husband | Timeshare | NIL | |
| 14 | Husband | Household contents | $2,500 | $2,500 |
| 15 | Wife | Household contents | NIL | |
| 16 | Husband | Employer Training | NIL | |
| Total | $ | $1,044,817 | ||
| ADDBACKS | ||||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | |
| 17 | Husband | $18,000 | ||
| 18 | Wife | |||
| Total | $ | $18,000 | ||
| LIABILITIES | ||||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | |
| 19 | Joint | ANZ mortgage | $477,264 | |
| 20 | Joint | ANZ Bank offset account ending … | 999 | |
| 21 | Husband | Lease through Macquarie Leasing | $12,000 | $12,000 |
| 22 | Wife | Loan secured over Motor Vehicle FF in favour of Macquarie Leasing | $17,000 | $17,000 |
| Total | $507,263 | |||
The Court observes that neither party sought that the parties’ present superannuation entitlements enter the balance sheet, in light of the previous consent orders in relation to superannuation, and accordingly, such entitlements shall be excluded from the balance sheet.
From the above final balance sheet, the court finds the parties assets total $1,044,817, the addback is $18,000; and their liabilities are $507,263. Accordingly, the parties’ net non-superannuation assets are $555,554.
Section 79 (2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property (see the final balance sheet referring to the various assets), and the fact that the continuance of the current legal ownership of the property would not afford them justice and equity. The parties join in seeking Orders for property adjustment.
Contributions
At the outset the Court observes that the parties’ relationship spanned the period from about 2006 to about August 2015, a period of some 9 years.
The Court takes into account the wife’s initial contribution of $73,553, in 2006, towards the purchase price of the property which was a contribution of substance.
The Court takes into account the father’s rental and outgoings contributions from commencement of cohabitation until about January 2007.
The Court takes into account the mother’s living with the father in Country T for about a year in about 2008/2009 to enable the father to pursue an employment opportunity there.
The Court takes into account the mother’s direct and indirect financial contributions towards the repayment of the mortgage loans on the property.
The Court takes into account the father’s direct and indirect financial contributions towards repayment of the mortgage loan on the property, including payment of the property’s outgoings, whilst taking into account that he has had the benefit of living in the property from separation to date to the exclusion of the mother. (The court does not accept the father’s submission that by reason of his fortnightly mortgage repayment contributions post separation exceeding the mother’s fortnightly rental payments during the same period, there should be a significant offsetting of the mother’s initial financial contribution towards the purchase of the property. Inter alia, in addition to the fact that the mother was deprived of enjoying her equity in the property by having to rent premises elsewhere, it was open to the father to rent out the property post separation and rent more modest premises for himself to live in.)
The Court takes into account the party’s respective homemaker and parent contributions.
The Court takes into account that since the party’s separation and to date they have equally cared for the children.
The father contended that the Court’s contribution assessment at trial date should be assessed as equal.
The mother contended that the Court’s contribution assessment at trial date should be assessed as favouring the wife 65%, the Court particularly having regard to the mother’s initial financial contribution and her Kennon contention. The court discusses the mother’s Kennon contention under section 75(2) below.
Take into account the above matters, and viewing the parties’ overall contributions holistically, but not taking into account the mother’s Kennon contention, the Court assesses the parties’ contributions to non-superannuation assets as at trial date as 57.5% to the mother, and 42.5% to the father. By reference to the net non-superannuation pool of assets being $555,554, this results in a disparity between the parties of some $83,333.
Section 75 (2) of the Act
The father is aged 45 years and the mother 44 years.
The mother’s health is satisfactory. She suffered breast cancer in 2014 and had treatment. The mother asserts that she is in good health, and she has annual tests for breast cancer and takes daily medication. She states as far as she is aware she is currently free of any breast cancer. Accordingly, no adjustment is made in relation to the mother’s health.
The father’s health is satisfactory. He was admitted to the Suburb B Clinic in … 2015 for mental health issues and received appropriate treatment.
Both parties satisfactorily manage their mental health issues through health professionals.
The parties both continue to work; the father works full-time and the mother works part-time.
The father’s Financial Statement dated 17 April 2019 indicates that his total average weekly income is $1,968.
The mother’s Financial Statement dated 11 April 2019 indicates the mother’s total average weekly income is $1,654. The mother does not currently work on Mondays and Wednesdays when the children are living with her. The mother probably has the option of returning to full-time work in due course, although she has no present intention in this regard.
The Court finds that the parties’ earning capacities are approximately comparable. (In this context, the court refers to the court’s previous discussion in relation to the father’s income and expenses in his own business in the 2018 financial year).
The Court takes into account that pursuant to the Court’s proposed parenting orders, the mother will have the primary care of the children during school term times.
The father pays assessed child support, and has done so since about May 2018.
The father’s superannuation entitlements are stated to be $42,814 in his Financial Statement but again such entitlement did not enter the balance sheet.
The mother has superannuation entitlements of $68,383 according to her Financial Statement, but again such entitlement did not enter the balance sheet.
The mother asserts liabilities of about $94,000 in her Financial Statement (apart from legal fees) which did not enter the balance sheet.
The father asserts liabilities of about $33,000 in his Financial Statement which did not enter the balance sheet.
The mother raises a Kennon argument; the mother makes submissions in this context, inter alia, in her Case Outline. She also made oral submissions in this context. Inter alia, she submitted that the court should find that the father’s historical coercive and controlling behaviour towards the mother, including his denigration of the mother, resulted in the mother’s homemaker and parent contributions being made more arduous.
On the other hand, the father submitted, inter alia, that there was simply no evidence to support the submission that such contributions by the mother were made more arduous, having rejected the contention that such alleged adverse behaviour by the father had occurred.
The Court refers to relevant legal principle in relation to the Kennon argument. The decision in Kennon & Kennon (1997) FLC 92-757 was discussed in the recent decision of the Full Court of the Family Court of Australia in Keating & Keating [2019] FamCAFC 46. At paragraph 35 and following in Keating the Full Court stated:
35. Turning then to Kennon, the rationale for a contributions adjustment as a consequence of family violence was explained by Fogarty and Lindenmayer JJ at 84,294:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
35.And at 84,294 – 84,295:
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
(Emphasis added)
The court is not persuaded that there is sufficiently persuasive evidence to demonstrate that the mother’s contributions were “more arduous than they ought to have been” nor that her Kennon argument in this context is such that it falls within “the relatively narrow band of cases” to which the Kennon principles apply. For example, the mother’s evidence that the father’s undermining of her disciplining of the children “was particularly difficult for me” lacks particularity in the context of her Kennon argument.
The mother submits that she will have a need to rehouse the children.
The mother contends that there should be a 10% adjustment to herself under s75(2) (taking into account, in particular, her parenting proposals, asserted greater income earning capacity in the father, and asserted financial non-disclosure contentions on the part of the father), resulting in an adjusted contributions assessment of 75% in favour of the mother.
The father contends should be no adjustment under section 75(2).
Taking into account the above matters, there should an adjustment under section 75(2) of the Act of 7.5% in favour of the mother, resulting in an adjusted contributions assessment of 65% in favour of the mother.
Justice and equity
Pursuant to the Court’s contribution assessment, the father should be left with assets representing, in value, 35% of the net non-superannuation assets, $194,443 (35% of $555,554) less the add back for the proceeds of sale of the camper trailer of $18,000, leaving him $176,443.
Pursuant to the Court’s contribution assessment, the mother should be left with assets representing, in value, 65% of the net non-superannuation assets, $361,110 (65% of $555,554).
Should the father retain:
The property, $1,000,000, less the mortgage, $477,264, net $522,736,
His car $15,000,
His bank accounts, $522,
His tools and work trailer, $3,000,
His household contents, $2,500,
Total $543,758
And retain debts:
ANZ offset account, $999,
Lease through Macquarie Leasing, $12,000
Total $12,999,
Leaving him net $530,759
then the father will be required to make a cash payment to the mother of $354,316.
The above sum of $354,316 payable to the mother, together with the mother retaining:
Her car, $17,000
Her bank account, $2,000
Her jewellery, $4,795,
Total $378,111
Less her retaining debts of:
Car loan, $17,000,
would leave her with net $361,111, being her 65% share in the non-superannuation assets (rounded up).
Despite the father not having received formal conditional loan approval, and there being some doubt as to his ability to buy out the mother’s Court determined interest in the matrimonial property, he should have 6 weeks to make this payment, otherwise the property should be sold.
In the event that the property is sold, then the net proceeds of sale of the property, shall be divided between the parties as to 65% to the mother, together with a cash payment to her of $14,536 (see the paragraph immediately below), with the balance remaining to the father.
The Court now summarises its calculations relating to the above sum of $14,536. Assuming that the parties shall each retain the assets presently in their respective names, then the husband should pay the wife additionally a cash sum of $14,536. In relation to the net assets in the final balance sheet, apart from the real estate property and associated mortgage debt, including the add back of $18,000 (assets totalling $32,818), the mother should at the outset receive 65% of $32,818, being $21,331. Because she already holds net $6,795 she should receive a payment of $14,536. Such latter payment to the wife would result in her holding $21,331 ($6,795 in net assets already held, plus the $14,536), representing 65% of $32,818.
The father, if he can retain the property, will be able to live in the house. If not, he can utilise the cash he receives pursuant to the Orders to obtain suitable housing accommodation, whether real estate or rental. Similarly, the mother can utilise the cash she receives pursuant to the Court’s Orders to obtain suitable housing accommodation.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
I certify that the preceding four hundred and seventy-six (476) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 2 August 2019
CORRECTIONS
The Delivered on date and certification date was changed from ‘1 August 2019’ to ‘2 August 2019’
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Jurisdiction
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Remedies
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