Southers and Southers (No 4)
[2016] FamCA 1078
•16 December 2016
FAMILY COURT OF AUSTRALIA
| SOUTHERS & SOUTHERS (NO 4) | [2016] FamCA 1078 |
| FAMILY LAW – CHILDREN – Best interests – Parental responsibility – With whom a child shall live –Where there are three children aged eight, seven and four – Where the mother seeks that the parents have joint parental responsibility, that the children continue to live with her and spend time with the father – Where the father and the Independent Children’s Lawyer seek that the father have sole parental responsibility, that the children live with him and spend time with the mother – Where there is a benefit to the children of having a meaningful relationship with each of the parents – Where there are allegations of family violence by and against each of the parents – Where no findings are made that the father initiated violence against the mother or a child – Where the mother initiated violence on the father and on a child – Where in her 2015 report the single expert recommended that the children remain living with the mother but where at trial she recommended that they live primarily with the father – Where there is evidence that the mother has coached the children in relation to disclosures against the father – Where the mother has at times prevented the children from spending time with the father – Orders made for the father to have sole parental responsibility for the children – Orders made for the children to live with the father and spend time with the mother on alternate weekends and one night in the intervening week. |
| FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the husband and wife were married for eight years – Where contributions are agreed to be equal – Where the property pool available for distribution between the parties is in the form of superannuation only – Where a five per cent adjustment in favour of the wife is appropriate, particularly by reference to the husband’s greater earning capacity – Where a splitting order is made in favour of the wife to change the parties’ interests in property to achieve a distribution of the items in the balance sheet in the approximate proportions 55 percent to the wife and 45 percent to the husband. |
FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife has demonstrated a need for spousal maintenance – Where the husband has capacity to pay – Where there is a current interim order that the husband pay the wife $1,500 per month in spousal maintenance – Where it is appropriate to continue that order for a limited time – Order made that the husband pay the wife the sum of $1,500 per month for a period of 12 months.
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 61B, 61C, 65DAC, 68B, 72(1), 74(1), 79, 80, 82. |
| Champness & Hanson (2009) FLC 93-407 |
| APPLICANT: | Ms Southers |
| RESPONDENT: | Mr Southers |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
| FILE NUMBER: | SYC | 689 | of | 2015 |
| DATE DELIVERED: | 16 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 31 October - 3 November 2016 |
REPRESENTATION
COUNSEL FOR THE APPLICANT MOTHER: | Mr Thexton |
| SOLICITOR FOR THE APPLICANT: | Family Legal |
COUNSEL FOR THE RESPONDENT FATHER: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tiyce |
Orders
Parenting
All previous parenting orders are discharged.
The father shall have sole parental responsibility for B born … 2008 and C born … 2009 and D born … 2012 (collectively “the children”).
Each party shall be responsible for the day-to-day care, welfare and development of the children during such periods that the children are in the care of either of them, pursuant to these orders.
The children shall live with father.
The children spend time with the mother as agreed between the parties in writing, and failing agreement:
(a)on a fortnightly cycle from:
(i)After school or 3.00 pm on Thursday until before school or 9.00 am on Friday in the first week save that until the commencement of Term 2 of 2017, D will return to the father’s home at 8.00 pm on those Thursdays and will not spend time with the mother on the next day; and
(ii) From after school or 3.00 pm on Friday in the second week until before school or 9.00 am on the following Monday.
(b)During each New South Wales school holiday period commencing at the conclusion of terms 1, 2 and 3 from immediately after school on the last day of the school term until 3.00 pm on the second Saturday of the holidays (notwithstanding orders 5(e) and 5(f) herein).
(c)As agreed between the parties in writing during the school holidays commencing at the conclusion of term 4 of each year, and failing agreement then as follows:
(i)for one week commencing after school on the last day of Term 4 (notwithstanding orders 5(g) and 5(h) herein) until 5.00 pm on the following Friday; and
(ii)for one week in January of the following year commencing at 3.00 pm on 1 January in even numbered years and commencing at 3.00 pm on New Year’s eve in odd numbered years.
(d)On Mother’s Day each year from 9.00 am until 6.00 pm.
(e)In odd numbered years during the Easter weekend, from after school or 3.00 pm on Holy Thursday until 3.00 pm on Saturday.
(f)In even numbered years during the Easter weekend, from 3.00 pm on Saturday until before school or 9.00 am on the Tuesday immediately following Easter Monday.
(g)In odd numbered years from 3.00 pm on Christmas Eve until 11.00 am Christmas Day.
(h)In even numbered years from 11.00 am Christmas Day until 3.00 pm on Boxing Day
(i)On each of the children’s birthdays if they are not already spending time with the mother pursuant to these Orders, as agreed between the mother and father, and failing agreement then:
(i)from 5.00 pm to 7.00 pm on weeknights provided that the mother and the father are living no more than 20 kilometres apart at the time;
(ii)from 10.00 am to 2.00 pm on weekends, public holidays and/or school holidays.
(j)Provided that the mother is not already spending time with the children pursuant to these orders, on the mother’s birthday, as agreed between the mother and father, and failing agreement then:
(i)from 5.00 pm to 7.00 pm on weeknights provided that the mother and father are living no more than 20 kilometres apart at the time;
(ii)from 10.00 am to 7.00 pm on weekends or school holidays.
In the event that the mother is spending time with the children in the last week of any school holiday period, the mother shall deliver the children to the father no later than 5.00 pm on the night before the first day of school.
The mother’s time with the children pursuant to order 5(a) herein:
(a) Shall be suspended during school holiday periods; and,
(b)Shall resume as set out in order 5(a)(i) herein, on the first Thursday in week 1 of each new school term.
The mother’s time with the children pursuant to order 5 herein shall be suspended as follows:
(a) Between 9.00 am and 6.00 pm on Father’s Day when the children will spend time with the father.
(b)Provided that the father is not already spending time with the children pursuant to these orders, on each of the children’s birthdays, as agreed between the mother and father, and failing agreement then:
(i)from 5.00 pm to 7.00 pm on weeknights provided that the mother and father are living no more than 20 kilometres apart at the time; and
(ii)from 10.00 am to 2.00 pm on weekends or school holidays.
(c)Provided that the father is not already spending time with the children pursuant to these orders, on the father’s birthday, as agreed between the mother and father, and failing agreement then:
(i)from 5.00 pm to 7.00 pm on weeknights provided that the mother and father are living no more than 20 kilometres apart at the time; and
(ii)from 10.00 am to 7.00 pm on weekends or school holidays.
(d)In even numbered years during the Easter weekend, from after school or 3.00 pm on Holy Thursday until 3.00 pm on Saturday;
(e)In odd numbered years during the Easter Weekend, from 3.00 pm on Saturday until before school or 9.00 am on the Tuesday immediately following Easter Monday;
(f)In even numbered years from 3.00 pm on Christmas Eve until 11.00 am Christmas Day;
(g)In odd numbered years from 11.00 am Christmas Day until 3.00 pm on Boxing Day;
(h)In even numbered years from 3.00 pm on New Years’ Eve until 3.00 pm on New Years’ Day.
The mother shall, when the children are in her care, ensure that the children are available to speak with the father by phone on Saturdays, Wednesdays and Fridays between 6.00 pm to 7.00 pm each day for at least a 15 minute period, and, shall not interfere with and/or interrupt the phone call or end the call for any reason other than in an emergency.
The father shall, when the children are in his care, ensure that the children are available to speak with the mother by phone on Sundays, Tuesdays and Wednesdays between 6.00 pm to 7.00 pm each day for at least a 15 minute period, and, shall not interfere with and/or interrupt the phone call or end the call for any reason other than in an emergency.
Unless otherwise agreed between the mother and father in writing, changeover shall take place:
(a)at the children’s school/preschool, during the school term whereby:
(i)the mother or her nominee shall collect the children from school/preschool at the commencement of her time with the children provided that the children are attending school immediately before her time with the children commences; and,
(b)the mother or her nominee shall deliver the children to school/ preschool at the conclusion of her time with the children provided that the children are attending school immediately after her time with the children concludes.
(c)at the entrance of the Suburb K Leisure Centre at L Street, Suburb K if Orders 11(a) and 11(b) herein do not apply.
The Court Noted:
(a)Order 11(c) herein shall apply for contact taking place on weekends, public holidays, special occasions such as Christmas, Easter and New Year and/or during the school holiday period.
(b)Order 11(c) herein shall not apply for contact taking place at the commencement of the school holiday period, at which time the children shall be collected from school at the conclusion of the last day of the school term.
In relation to D, until D commences primary school, unless otherwise agreed between the mother and father in writing:
(a)on days that D is not attending preschool or other care, changeover shall occur at M School (or as directed by the father) during the school terms at 2.45 pm.
(b)when D commences primary school, changeover shall occur as set out in order 11 herein as with B and C.
That the mother shall be and is hereby restrained by injunction from:
(a)relocating the permanent residence of the children when they are in her care beyond 15 kilometres from the father’s residence without the prior written consent of the father or an order of the Court. That order refers to the minimum distance by car as calculated by Google maps, either with or without tolls.
(b)enrolling any of the children into any extra-curricular and/or co-curricular activity (including but not limited to sports) without the prior written consent of the father.
(c)taking the children to see any mental health practitioner (including but not limited to a psychologist or counsellor or psychiatric practitioner) without the prior written consent of the father.
(d)enrolling either or all of the children in any education facility without the prior written consent of the father.
For the purposes of these orders, ‘prior written consent’ shall include SMS text message and/or email and/or written communication between the parties.
The mother and father are authorised and permitted to:
(a)approach and speak with any of the children’s treating medical practitioners, including but not limited to any psychologist, psychiatrist or counsellor treating the children; and
(b)discuss the practitioner, psychologist, psychiatrist or counsellor’s recommendations for the children with the treating medical practitioner; and
(c)discuss the practitioner, psychologist, psychiatrist or counsellor’s treatment of the children with the treating medical practitioner
The mother and the father shall:
(a)provide one another with the names and contact details of any medical practitioners treating the children, as soon as possible; and
(b)keep one another informed of any planned or emergency medical treatment received by the children, as soon as possible.
Notwithstanding the father having sole parental responsibility for the children’s education, the mother shall be entitled to obtain copies of school/daycare/preschool and group photographs of the children.
Unless otherwise agreed in writing between the father and the mother, the mother shall take each of the children to each of their respective co-curricular activities including but not limited to training sessions, practice, games, competitions and award days if the children are in the mother’s care in accordance with these orders at the time of the activity taking place.
The mother and father are restrained from physically disciplining the children.
The mother and father are restrained from denigrating each other to or in the presence of the children’s teachers or other school authorities or their doctors or other medical authorities.
The mother and father are restrained from speaking to the children, or any other person in the children’s presence and/or hearing, in derogatory terms about the other party or a member of the other party’s family and/or friends.
The mother and father shall remove the children from the presence or hearing of any person who is speaking in derogatory terms about the other party or a member of the other party’s family and/or friends.
Unless otherwise agreed between the mother and the father in writing:
(a) The father shall not be present at any extra-curricular or co-curricular activity of the children if the event or activity is taking place during the mother’s time with the children pursuant to these orders.
(b)The mother shall not be present at any extra-curricular or co-curricular activity of the children if the event or activity is taking place during the father’s time with the children pursuant to these orders.
The mother shall not be in the presence of the children when it is the father’s time with the children pursuant to these orders, unless otherwise agreed between the mother and father in writing or pursuant to order 19.
The mother and the father shall do acts and things including, but not limited to, signing all documents necessary to ensure that the children have a valid passport at all times.
Within 24 hours of the date of the orders or as soon as practicable thereafter, the mother shall provide the father with all current passports of the children.
Subject to order 29 herein, as between the parents, the children’s passports shall remain in the possession of the father at all times and for these purposes the mother shall do all things necessary for that to occur.
If either party travels internationally with the children, he/she shall provide the other party with details of the proposed travel arrangements for the children, including the itinerary, accommodation, contact details while overseas and the details of any travel companions, no less than 15 days before departure.
For the purposes of order 29 herein, the father shall provide the children’s passports to the mother no less than 48 hours prior to the mother’s departure.
Within 48 hours of the children’s return from overseas with the mother, she shall give all of the children’s passports to the father.
Within three months from the date of these orders each parent shall pay to Legal Aid NSW the sum of $6,023 representing one half of the costs of the Independent Children’s Lawyer in these proceedings.
Property Settlement
Within seven days of the date of these orders, the mother will do all things necessary to transfer the ownership of the 4WD motor vehicle in the father’s possession into his name, with any associated costs to be shared equally between the father and mother.
Within 21 days from the date of these orders the mother shall provide to the father a copy of any of the files from the computer loaned to the mother by the father together with any of the following items, that remain in her possession or control:
(a)The SLR camera.
(b)The late paternal grandmother’s ring.
(c)The father’s exercise equipment including his tennis racquet, weight bench, weights, barbell and elastics.
(d)The father’s Birth Certificate.
(e)Birth Certificates and passports for each of the children, or certified copies of the same.
(f)A copy of all photos and videos of the family and the children, or the original versions of which the father will make a copy and return to the mother within 40 days of the date of the Orders.
(g)The father’s personal and financial documents and other personal effects remaining in the mother’s possession and/or control.
The Court allocates as required by s 90 MT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $52,714 to the mother out of the father’s interest in BT Super account member number 103415105 (“the Fund”).
In accordance with s 90 MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the Father’s interest in the Fund:
(a)The mother is entitled to be paid an amount, using the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and
(b)There is a corresponding reduction in the entitlement to the father, or such other person to whom a splittable payment may be made, would have had but for this order.
Whenever the trustee makes a splittable payment out of the father’s interest in the Fund, the trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 36 of this order in accordance with the requirements the Act and the Regulations.
Orders 35 to 37 have effect from the operative time and the operative time is four business days after the service of these orders on the trustee of the Fund.
The Court Declared that the father holds on trust for the benefit of the children respectively, all his interest in AMP Growth Bond policy numbers #385, #245 and 3205 at the date of these Orders and unless the parties otherwise agree in writing, the father is hereby restrained by injunction from applying the proceeds of such policies for any other purpose other than the payment of tuition or other tertiary institution fees that are due and payable with respect to the tertiary education of the child named on each policy. Unless the parties otherwise agree in writing, upon the child named on each respective policy attaining the age of 25, the father shall do all acts and things and sign all documents necessary to transfer to that child, the remaining proceeds of that policy.
Subject to these Orders, the parties are hereby declared, as against each other, to have the sole right, title and interest in, and to be the legal and beneficial owners of:
(a)Any motor vehicles, plant and equipment, chattels, goods, furnishings and real property and other property which are in their possession respectively at the date of these Orders;
(b)Any moneys, including moneys at bank, shares and debentures which stand in their sole names respectively as at the date of these Orders; and
(c)Any entitlements to superannuation which stand in their sole names respectively as at the date of these Orders.
Except as otherwise provided by these Orders, each party remains solely responsible for all debts, including credit card debts, income tax and capital gains tax in their respective names.
In the event that either party fails to execute any deed or instrument necessary to give effect to these Orders within 14 days of a written request to do so, the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to the provisions of s 106A of the Act to execute the deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed or instrument.
Spousal Maintenance
Pursuant to s 72 of the Act, for a period of 12 months from the date of these Orders the father shall pay into the mother’s bank account (as nominated by her from time to time) the sum of one thousand five hundred dollars ($1,500) per calendar month, such payment to be made on the 19th day of each calendar month.
Leave is granted to the parties to apply to bring the matter back before the Court within 28 days, or such further time on which the parties may agree, in relation to the wording (as opposed to the import) of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Southers & Southers (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor, typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 689 of 2015
| Ms Southers |
Applicant Mother
And
| Mr Southers |
Respondent Father
And
Tiyce & Lawyers
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are parenting, property settlement and spousal maintenance proceedings between Ms Southers and Mr Southers. They have three children, B, C and D who at the time of the hearing were eight, seven and four years of age respectively.
The parenting dispute includes the allocation of parental responsibility between the parents and whether the children should continue to live mainly with the mother or the father. Albeit that the precise terms are different, both parties seek property settlement orders that are mainly in the form of splitting orders in the mother’s favour in respect of one or more superannuation interests of the father. The father also seeks the return of certain items of personalty. The mother seeks and the father opposes, an order that he pay her $2,000 per month by way of spousal maintenance.
The parties are generally referred to in these reasons as the mother and the father.
Applications
The orders sought by the mother were contained in a minute of order submitted prior to the commencement of the trial.
The father sought the orders set out in his Further Amended Response to Initiating Application filed 12 October 2016.
The Independent Children’s Lawyer’s (“ICL”) proposals were set out in a document[1] submitted during final submissions.
The Hearing
[1] Exhibit 19 – numbering in accordance with the original
The hearing commenced on 31 October 2016. After oral submissions on 3 November 2016, judgment was reserved.
Short History
The mother was born in 1979. The father was born in 1979. The parents commenced cohabitation in 2004 and married in 2007. They separated on about 1 January 2014 and were divorced on 16 October 2015. They have three children:
a)B, born in 2008;
b)C, born in 2009; and
c)D, born in 2012.
Credibility
Credit findings in proceedings are not a relevant end in themselves. Where possible and necessary, credit findings are made to assist in the resolution of disputes about relevant facts. Here there are a number of relevant and significant factual disputes between the parties in respect of which the evidence comprised only the uncorroborated testimony of the parties or one of them.
The human brain is not a computer and even the memory of a witness who is otherwise motivated to give careful and frank testimony, is not always reliable. In the process of storing and recalling events, a witness is highly likely to innocently colour the recollection with his or her perceptions about those events. Two otherwise reliable witnesses can recall the same event in very different terms. For those reasons, in the majority of cases, disputed facts fall to be determined issue by issue and it is not possible to prefer one witness over another on all issues or to entirely exclude the evidence of one party. Here however, there is a significant difference between the reliability of the evidence of the parties.
The mother was a very poor witness. The problems of the mother’s evidence[2] include the following matters:
·Importantly, much of the mother’s evidence in the parenting proceedings was inconsistent with the orders she seeks. It is her evidence that the father has been violent to the children, was repeatedly violent to her and stalked and harassed her. By a reference in her affidavit to the father increasing the value of the benefit payable under the policy insuring the mother’s life, she intended to imply that he may be capable of killing her. Despite those characteristics, characteristics that might be thought of as disqualifying factors for any unsupervised involvement with children, the mother seeks orders pursuant to which the children would spend unsupervised time with the father, overnight and for block periods. That invites speculation as to whether the mother lacked judgment in relation to the orders she sought or that her evidence was wrong or exaggerated;
·Next, the mother’s affidavit proved unreliable. It comprised 1001 paragraphs set out in 141 pages of text. More than half of the affidavit was either excluded on objection or was ultimately not read in the mother’s case. The latter category was identified after the mother had been cross-examined. During her cross-examination about various entries in her affidavit, the mother responded to the effect that the entry in question was wrong or no longer reflected her testimony. She explained that she did not have enough time to prepare her trial affidavit and that it comprised an amalgam of the contents of various earlier affidavits, some of which she said were not true or were no longer true. After cross-examination, counsel for the father and for the ICL indicated that they would submit that the document was unreliable. To that point in the trial, no attempt had been made by or on behalf of the mother to identify the parts of her affidavit that were true and correct and those that were not. In any event it is alarming that the mother had wrongly sworn the document before filing it and then in response to her own counsel’s invitation when she was sworn in, again swore that it was true and correct. In each instance she knew that was not the case. I told the mother’s counsel prior to re-examination that unless something was done, the mother may effectively be without any credible written deposition of her own. I then gave the mother’s counsel time to go through the affidavit with his client and identify the material that she then said, reflected her evidence. The product of that exercise was a list of paragraphs that the mother no longer relied on. Apart from parts of paragraphs, about 425 paragraphs were included in that list. That included some paragraphs on which the mother had been cross-examined and some but not all, of the paragraphs already removed on objection. I understood that what remained (the parts of the affidavit that were not excluded on objection and the parts that were not identified as “not read”) contained the evidence on which she relied. As a result of those circumstances and by leave granted without objection, counsel for the father and for the ICL reopened their cross-examination of the mother;
·It is the mother’s own evidence that she misled the authorities in March 2013 by falsely telling the police that she was responsible for initiating a violent dispute between her and the father and then by pleading guilty to assault;
·In paragraph 526 of her affidavit the mother set out a series of complaints about the father followed by “etc”. When cross-examined about that the mother would not make the necessary concession that she thereby meant to imply that there were other complaints in a similar vein that she had not specified;
·The mother made few concessions in favour of the father. There is little, if any, positive comment about the father in the mother’s affidavit. I say “little” out of an abundance of caution. No positive comment was drawn to my attention. Indeed the mother sought out opportunities to demonise the father. For example, in paragraph 144 of the single expert’s report, Dr N recorded that the mother told her in 2015 that she was not aware of any deviant sexual practices of the father or pornography use by him. Apparently unhappy to leave even that neutral comment about the father on the record, in paragraph 508 of her affidavit the mother offered the gratuitous, correcting observation that “[Mr Southers] could have been watching any kind of pornography as he was able to hide things from me.”; and
·The mother was not responsive during much of her cross-examination. When asked about a specific child the mother tended to generalise to all of her children or to her opinion about children generally. The mother is well educated and a woman of obvious intelligence and in my view she made little or no attempt to identify the objective truth about the matters she was taken to. Whatever else might be said, the mother’s testimony was largely aimed at denigrating the father.
·There were several errors in the mother’s Financial Statement. The mother made no real effort to engage with cross-examination about her evidence about the financial return or loss from her business.
[2] Including for this purpose, evidence she swore and was cross-examined on but which she ultimately did not read
The father was a good witness. His affidavit evidence was carefully presented. As with the mother’s evidence, his affidavit was voluminous, containing 592 paragraphs of text in 144 pages. However, apart from a handful of corrections made when the father was sworn, I do not recall one word of the affidavit being struck out or withdrawn (not read). There was little or no effective challenge to his evidence in cross-examination. He made sensible concessions in favour of the mother.
In those circumstances, I have generally preferred the evidence of the father over that of the mother where they were both in a position to give probative evidence about a fact or event. I have no hesitation in accepting any independent record over the mother’s written testimony.
There was no significant challenge to the evidence of the supporting witnesses. The mother and the maternal grandmother, Ms O, gave inconsistent evidence about some events but given the problems with the mother’s evidence, that should not reflect on the credit of Ms O.
Dr N gave evidence as the single expert and her credit (as opposed to her opinions) was not challenged.
Background Facts
In December 2004 the parents commenced cohabitation. The parents were both in full-time paid employment.
In mid-2006 the parents took six months off work and travelled around Europe, returning to Australia in December 2006. The mother secured employment soon after returning, earning approximately $110-120,000 per annum.
In 2007 the parents were married.
In May 2007 the parents purchased an apartment at Suburb P for $525,000. The mother deposed that she applied $120,000 towards the purchase of the property from her savings accumulated prior to cohabitation. There is no evidence corroborating the mother’s contention that she paid $120,000 towards the purchase. Nor is there evidence to establish that the mother had $120,000 in savings at the commencement of cohabitation in December 2004.
In 2008, B was born. The mother commenced maternity leave approximately two weeks prior to B’s birth.
In August or September 2008 the parents moved to Country I for the father to take up a position with a multinational company. The father did not work in paid employment for approximately two months prior to leaving for Country I. In Country I, the father earned approximately CHF180,000 per annum. According to him that was the equivalent of approximately $A150,000-$A170,000 at the time.
In 2009 C was born.
In August 2010 the mother and children returned to live in Sydney. The father returned in November 2010. In Australia he commenced employment with the firm that employed him in Country I, earning approximately $180,000 per annum.
In January 2011 the mother commenced working two days per week as a manager with Company Q. She was paid $120 per hour.
In May 2011 the parties purchased a property at R Street, Suburb S (“the Suburb S property”) for $812,000.
On 19 May 2011 the mother was involved in a motor vehicle accident. She ceased her paid employment at that time due to injuries she sustained in the accident.
From January 2012 the father worked for Company T earning approximately $210,000 per annum.
In 2012, D was born.
In May 2012 the mother completed a qualification.
In September 2012 the mother received a payout as a result of the motor vehicle accident in the amount of $90,000.
The father took paternity leave for two months towards the end of 2012 and beginning of 2013.
On 9 February 2013 the father told the mother that he had engaged in an affair with another woman.
There were a number of violent incidents thereafter and I will deal with the evidence about those issues more fully, later in these reasons.
On 8 March 2013 the mother hit the father with a belt. The father contends that the mother initiated the conflict. The mother says that she threatened the father with a belt in response to him grabbing her arm, hyperextending her elbow and driving her head into a wall. The police attended the home and ultimately the mother was arrested and was charged with common assault. The mother plead guilty to the charge and was dealt with pursuant to section 10 of the Crimes (Sentencing and Procedure) Act 1999 (NSW), with no conviction being recorded. An Apprehended Domestic Violence Order (“ADVO”) was issued against the mother for the protection of the father and the children.
The father alleged that on 15 March 2013 the mother kicked, punched and bit him when he was driving a car. He says that the mother again started to hit him and pulled the steering wheel, causing the car to veer into the median strip. The mother denied those allegations.
The father alleged that on two occasions in April 2013 and once in May 2013 the mother assaulted him including by kicking, biting, pushing and punching him.
In May 2013 the parents and the children moved to a rented property at U Street, Suburb F. The father still resides in that property.
The father alleged that on at least one occasion in July 2013 the mother assaulted him.
In mid-2013 the mother, the father and D travelled to Country I to attend job interviews because they were considering moving there again.
In August 2013 the parents sold the Suburb S property. The proceeds of sale of $74,088 according to the father or $60,000 according to the mother, were deposited into an account in the mother’s name.
On 23 August 2013 there was an incident between the mother and father where the mother hit her head on floor tiles. An ambulance was called and the mother received treatment at a hospital. It is the father’s case that the mother slipped and it is the mother’s case that the father pushed her, causing her to fall to the floor. There is no basis for preferring the mother’s version over that of the father.
The mother deposed that in September 2013 the father kicked in the front door of their home. This was not specifically addressed in the father’s evidence but he made a general denial about inflicting any violence on the mother or any of the children.
In October 2013 the mother commenced working on three mornings per week with Company KK. This required the mother to leave the home at 4.30 – 5.00 am and return at 7.15 – 7.30 am. She was paid approximately $150 per week for that work.
In late 2013 the father resigned from his employment with Company T. He then became employed by V Ltd.
On 1 January 2014 the parents separated. They came to an arrangement whereby the children remained in the former matrimonial home and the parents divided each fortnight, with the mother staying at the home for eight nights and the father for six nights.
On 6 January 2014 the mother transferred $15,000 to the father.
In February 2014 the mother obtained employment with Company LL earning $130,000 per annum. That employment was concluded after her three month review.
In February 2014 the mother entered into a lease on a property at U Street, Suburb G for $520 per week. She stayed in that apartment on the nights the father was with the children in the former matrimonial home.
In May 2014 the mother met her current partner, Mr X.
In June 2014 the mother obtained employment with J Pty Ltd with a salary of $120,000 per annum. She said that at her six month review performance issues were raised and she resigned. She continued to work for J Pty Ltd part-time on a contractual basis.
On 21 September 2014, C sustained bruising to his buttocks. The parents each allege that the other was responsible for that bruising. As discussed later in these reasons, I am satisfied that the mother was responsible for that bruising.
In October or November 2014 the mother commenced living at her Suburb G unit all of the time. The children lived with her there on the nights they were to spend with her.
The mother alleged that on 2 November 2014 the father threatened to commit suicide.
In December 2014 the father ceased having his income deposited into the parties’ joint account.
The mother alleges than on 10 December 2014 the father assaulted her in the street in front of the children when they were leaving for school. She deposed that that night, the father came to her home and behaved in an aggressive and abusive manner. The mother deposed that she withheld the children from the father the following night when they were supposed to spend time with him, out of fear for their safety. The father acknowledges that an argument took place when he attended her home but denies that there was any physical violence.
On approximately 17 December 2014, the time the father was to spend with the children was reduced from six nights to five nights per fortnight. The father says that the mother made this decision unilaterally and the mother says that it was by agreement. I prefer the evidence of the father.
From January 2015 the father deposited the amount of $5,000 per month into the mother’s account. He borrowed $3,000 per month from his father in order to fund those deposits.
On 27 January 2015 the mother moved to Suburb E with the children. She entered into a lease on a two bedroom apartment for $585 per week. The father deposed that the mother did not inform him prior to moving and that when she did, he expressed his disagreement. Whatever advance notice of the move was given to the father, if any, it is agreed that the father did not give consent to the children being moved to Suburb E.
The father said that on 29 January 2015 he telephoned Suburb E Public School and Y Child Care Centre to enquire as to whether the children had been enrolled. He said that he was not informed of their enrolment in those institutions until that point.
The mother withheld B and C from school for two weeks in February 2015. On 25 February 2015 the father was told by D’s day care centre that she had not attended since 28 January 2015.
On 2 February 2015 the father filed an Initiating Application in the Suburb Z Local Court seeking orders in relation to spending time with the children and the children’s attendance at school and day care. Interim orders were made by that Court, ex parte:
·restraining the mother from relocating the children further than eight kilometres from the former matrimonial home;
·restraining the mother from changing the enrolment of the children from their respective school (M School) or day care (Suburb S Family Day Care);
·giving the parties equal shared parental responsibility;
·providing that the children live with the mother and spend time with the father for six nights per fortnight; and
·transferring the proceedings to the Federal Circuit Court at Sydney.
The father said that on 4 February 2015 he made enquiries with M School, where B had previously attended, as to her attendance. He was informed that B had not attended that day. He made a similar enquiry on 5 February 2015, and called the Suburb S Family Day Care as well. On 5 February 2015 the father attended Suburb E Public School. He said that this was in order to comply with the 2 February 2015 orders. He collected C from school but could not collect D and B.
Later on 5 February 2015, the police attended at the father’s home in response to a request by the mother for a welfare check in relation to C.
On 9 February 2015 the mother filed an Initiating Application commencing these proceedings. She also filed a Notice of Risk.
On 11 February 2015 the mother reported to the police an alleged assault of C by the father in September 2014. Thereafter C attended upon the Joint Investigations Response Team (“JIRT”).
On 12 February 2015 the father was contacted by Suburb AA Police Station who informed him that the mother had made a complaint against him.
On 13 February 2015 an Apprehended Domestic Violence Order was issued against the father for the protection of the mother.
On 16 February 2015 the father requested that the police conduct a welfare check on the children in the mother’s care, as he had discovered that they were not attending school. The police spoke to the children over the telephone.
On 18 February 2015 the father filed an Application in a Case seeking interim parenting orders.
It is the mother’s evidence that on 23 February 2015, B told her that the father had sexually assaulted her.
On 26 February 2015 the mother reported B’s alleged disclosure to Family and Community Services (“the Department”).
On 2 March 2015 the father entered into a Loan Facility agreement with his father.
On 10 March 2015 B attended an interview with JIRT. She did not say that the father had assaulted her.
On 16 March 2015 orders were made to appoint an Independent Children’s Lawyer. On this day the mother filed an affidavit wherein she alleged that the father had sexually abused B.
On 1 April 2015 interim orders were made providing for the father to spend time with the children each Saturday and Sunday from 9.00 am until 5.00 pm, and each Saturday, Tuesday and Thursday from 9.00 am until 5.00 pm in the school holidays, supervised by Mr BB Southers and Ms CC (the paternal grandfather and step grandmother). The mother did not make the children available to spend time with the father until 6 June 2015.
On 3 June 2015 orders were made to the following effect:
a)By consent, that the mother is restrained from publishing any allegations of abuse of the children by the father;
b)That the ICL receive an undertaking by each of Mr BB Southers and Ms CC to the effect that they either jointly or separately supervise the father’s time with the children, particularly toileting and bathing;
(c) That the orders of 1 April 2015 be varied to provide that the requirements for the father’s supervision will be satisfied if either of Mr BB Southers or Ms CC are present; that the children remained enrolled in their current school, kindergarten or day care and that neither party enrol them in another facility; and
(d)Appointing Dr N, clinical psychologist, as a Single Expert.
On 6 June 2015 the father spent time with the children. This was his first time with B and D since 22 January 2015 and with C since 6 February 2015.
The father said that from late June 2015 until 31 October 2015 the mother withheld B from him on most of the occasions he was to spend time with the children. The father said that on many occasions B was present at changeover but was not made available to spend time with him. B spent time with the father on 16 August 2015 and 22 September 2015.
In October 2015 the father ceased paying the mother $5,000 per month but paid her $3,541 in accordance with a Child Support Assessment.
On 20 October 2015 the father was informed by the principal of M School that the children’s late attendance at school was becoming a concern. The following day the father attended a meeting at the school.
On 22 October 2015 the report of Dr N, dated 9 October 2015, was released the parties.
On 30 October 2015 the father received a letter from the principal of M School explaining his concern for the children’s regular late arrival at school.
On 31 October 2015 the mother made B available to spend time with the father along with D and C. Thereafter, B spent time with the father along with D and C in accordance with the orders.
On 14 December 2015 the mother had abdominal surgery.
On 18 December 2015 orders were made by consent providing, in effect that all previous orders regarding the time the children spend with the father were discharged, and that the children spend time with the father unsupervised and overnight from Christmas 2015 until 22 January 2016, when the proceedings were next listed.
On 22 January 2016 orders were made for the children to spend time with the father in a fortnightly pattern from 9.00 am on Friday until 4.00 pm on Sunday in week one, and 9.00 am on Wednesday until 4.00 pm on Friday in week two and for time on special occasions. Orders were made for D’s enrolment in preschool.
On 15 February 2016 orders were made providing for the father to pay the mother the amount of $2,000 per month by way of urgent spousal maintenance.
The mother contends that on two occasions in March 2016 and once in April 2016, D and/or C returned from the father’s care with untreated injuries.
The father applied to have the orders of 15 February 2016 varied or set aside. Orders were made on 3 May 2016 providing for the father to pay the mother, by way of interim spousal maintenance, the sum of $1,500 per month.
The mother asserts that on occasions in June, August and September 2016 the children returned from the father’s care with untreated injuries or illnesses.
The Parenting Proceedings
The Expert Evidence
The single expert was Dr N. She is a clinical psychologist in private practice. Her qualifications include a Masters of Clinical Psychology (Hons) awarded in 2003 and a Doctorate of Clinical Psychology awarded in 2013.
Dr N has held staff positions as a clinical psychologist since 2003. For three years she was the Director of Child and Adolescent Development at an international school and since 2009 she has worked as a clinical psychologist in private practice.
Dr N’s report in this matter is dated 9 October 2015.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in each child’s best interests.
For the purposes of the determination of the parenting aspect of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Current Arrangements
The most recent interim orders had the following effect. On 18 December 2015 orders were made by consent providing, in effect that all previous orders regarding the time the children spend with the father were discharged, and that the children spend time with the father unsupervised and overnight from Christmas 2015 until 22 January 2016, when the proceedings were next listed.
On 22 January 2016 orders were made for the children to spend time with the father in a fortnightly pattern from 9.00 am on Friday until 4.00 pm on Sunday in week one, and 9.00 am on Wednesday until 4.00 pm on Friday in week two and for time on special occasions.
The Parties’ Proposals
The mother seeks orders whereby the parties have joint parental responsibility and that the children continue to live mainly with her and spend time with the father including alternate weekends and holiday time.
The ICL and the father propose that the father have sole parental responsibility and that the children live mainly with him, spending time with the mother including on alternate weekends and holiday time.
The range of dispute on the key areas seems to be:
a)Whether parental responsibility should be shared or vest solely in the father;
b)Whether the children should mainly live with the mother or the father.
Both parents indicated that if they were unsuccessful in the securing orders for the living arrangements they propose, and the children are to live mainly with the other parent, they anticipate moving to live closer to the children.
Section 60CC Considerations
Section 60CC specifies certain considerations. Those that are relevant to these proceedings are as follows.
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[3] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[3] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[4]
[4] Champness & Hanson (2009) FLC 93-407.
The orders sought by the parties indicate that they each consider that there is a meaningful relationship between the children and the other parent. I am confident that there are benefits to the children in having a close relationship with each of their parents and that subject to their safety, the Court’s orders need to promote those relationships.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
At the time of the hearing there were no allegations of sexual abuse.
It is an agreed fact that there has been family violence. However, the parties are diametrically opposed as to which of them initiated that violence.
There have been several occasions of violence between the parties. There are also allegations of violence against a child. The parties’ versions of events are largely, irreconcilable. Nevertheless, it is agreed that there were violent incidents between the parents from February 2013, when the father revealed to the mother that he had an affair, but no violence in recent times.
The father was asked in cross-examination, generally about violence between him and the mother and it was his evidence that he did not assault the mother. He did not resile from that evidence, nor did he concede that he initiated any specific incident of violence.
The incident between the parents on 8 – 9 March 2013
On the evening of 8 March 2013 or early on 9 March 2013 the mother struck the father with a belt. She told the police that she had initiated the incident and pleaded guilty to a charge that she assaulted him. The mother now contends that she did not initiate the violence on that day.
The mother’s evidence in these proceedings about the incident is as follows:
By arrangement, the father was spending time with the children at the former matrimonial home while she went out. She returned to the home at about 10.00 pm. When she arrived the father was very angry and aggressive. He grabbed her arm, hyperextending her elbow to control her and drove her head into the hallway wall while forcing her towards the front door. He told her that he would lock her out of the home and have custody of the children and of the house. The mother said that she used her free arm and picked up the father’s belt that was lying in the hallway at the front door and hit the father with it. She said that she was terrified of what he might do to her so she threatened him with the belt until he left. She called the police and that they attended at the home. The police asked the mother to make a statement but upon learning that it would lead to the father facing a criminal charge, she declined to provide a statement. She says that the police then obtained a statement from the father, the contents of which the mother disputes. The next day the police arrested the mother. The police forced her to hand the children to the father while they took her to the police station. The mother says that she was kept in a cell or bay at the police station for several hours. She was extremely distressed due the events of the night before and by having to hand the children to the father after he had physically abused her. For that reason and because she was still breast feeding [D], she made enquiries (presumably of the police) as to the fastest way she could be reunited with her children. She says that she was advised by a police officer that she would be released if she agreed with the father’s statement of the incident. At the suggestion of one police officer the Legal Aid Commission was called for her but the mother was told there was no answer. In that regard I note that 9 March 2013 was a Saturday. The mother said that she then agreed to the father’s statement and the police returned her to collect the children.
The police records reveal that at 9.51 am on Saturday, 9 March 2013 a police interview[5] with the mother commenced at Suburb DD Local Area Command. According to the record of interview the mother said that she had been out with a friend, had about five glasses of wine and came home at or after 11.30 pm, agitated and upset. She started a verbal altercation with the father; she asked the father to leave and he said he was taking the car. She had the car keys and he tried to take them from her. There was a struggle and she yelled at him to leave and grabbed hold of his belt and hit him with it. The mother said that the father walked away, that she pushed over his scooter and then went inside the house.
[5] Exhibit 7
The mother was asked by police about some discrepancies between her statement and that of the father. She said that about one month before the incident the father had revealed to her that he had an affair for about one year prior to that time. She said that when out drinking immediately before this incident, four married men tried to “hit on her” and she was frustrated and annoyed about that. She told the police that she and the father were separated with the father living with his father. Under an agreement between the parents the father had arrived at her home about 4.00 pm to spend the night with the children. The police asked the mother about her starting an argument with the father upon her return to the home. She said that she was still annoyed about him having an affair and her experience during her night out had made her really angry. She told the father to leave the home. She said that the father wanted the car keys and he grabbed her arm and twisted it. She said that the father is a black belt in a martial art and he hurt her shoulder and she suffered a cut lip. The mother said however, that the father did not hit her in the face or anything. The mother acknowledged to police that she did not need the car at that time and should have just let the father take it. She accepted that the father might have said to her that he needed to take the car so he could remove all of his stuff from the home. The mother agreed that the father then left the house and attempted to get into the car. She agreed that she tried to stop him and that she entered the back seat of the car. The mother agreed that C then walked out to them through the front door of the house. The police recorded the following: “I continued to ask him to leave and um he was telling me that I shouldn’t be shouting and whatever in front of C who was scared and um yeah then I asked C to go inside and he did um and then I kept shouting at him and yeah that’s the bit where I (*imitates hitting movement at 11 mins).”
The mother agreed with the assertion from police that she placed two bags of the father’s belongings in a garbage bin. The mother said that she swung the father’s belt at him three or four times and she thought that she hit him. At that point the father turned around and left.
The father did not address the incident extensively in his evidence in these proceedings except to state that the mother came home intoxicated, hit him with a belt, that an interim ADVO was made for his protection and the mother was dealt with for assaulting him.
In her oral evidence, the mother disagreed with the suggestion that the version of events deposed to in her affidavit was false. She maintained that she grabbed the belt and hit the father in self-defence. To counsel’s suggestion that she hit the father a number of times with the belt, the mother said she “flicked” him with the belt. She denied that she was trying to soften the allegation. The mother did agree that she was agitated and upset when she arrived home that night. She denied that the father told her that she should not yell in front of C, and that C was present. She said that C did come out during the argument, and she asked him to go back to bed, but that he did not see her shouting. The mother said that in the police interview she agreed to everything, and asked them how she could get back home to her kids. She said that agreeing to the police’s version was the “stupidest thing I have done in my life”. The mother agreed that she should not have hit the father but she said that she was trying to get him to leave the home. Counsel for the father again suggested that there was no element of self-defence but the mother maintained that there was, and that the father twisted her arm and pushed her into a wall.
The mother is an intelligent person and a university graduate, with good experience in marketing and related business areas. Her career was interrupted and whether by a return to the areas of professional work in which she has experience and qualifications or in some other endeavour, I am confident that she will in the future be able to provide for her own support. The conclusion of these proceedings and of the pressure and distraction associated with them may also help in that regard. It is not for the Court to require the mother to engage in remunerative employment. That remains a matter for her. The issue for the Court is whether she has the capacity and whether she could if she chose, secure that employment.
The fact is that the parties have no property to divide that will assist them on a day to day basis. There is a necessarily arbitrary aspect to identifying the duration of support but I am satisfied that even properly motivated, it may take the mother a significant period to get back onto a sustainable financial footing. I do not underestimate the difficulties facing someone in the mother’s position. In my view the justice of the case would be met by an order of 12 months duration.
The order is also subject to the other relevant provisions of Part VIII and in that regard, s 82 is particularly relevant in relation to the other circumstances that would cause the termination of the obligation.
I certify that the preceding three hundred and twenty eight (328) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 16 December 2016.
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Constructive Trust
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Remedies
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Jurisdiction
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