TAFFNER & TAFFNER
[2020] FCCA 1132
•11 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAFFNER & TAFFNER | [2020] FCCA 1132 |
| Catchwords: FAMILY LAW – Property – assessment of contributions – assessment of future matters. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC(2)(b), 60CC(2A), 60CC(3), 61DA, 62G, 65DAA(1), 65DAA(2),65DAA(3), 65DAA(5) |
| Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705 C & C (2005) FLC 93-220 Dylan and Dylan [2007] FamCA 842 Farmer & Bramley (2000) FLC 93-060 Goode & Goode [2006] FamCA 1346 Hayne and Hayne (1977) FLC 90-265 Whisler v Whisler (2010) 42 Fam LR 633 |
| Applicant: | MR TAFFNER |
| Respondent: | MS TAFFNER |
| File Number: | BRC 1861 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 12 November 2019 |
| Date of Last Submission: | 12 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 11 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Macpherson Family Law |
| Counsel for the Respondent: | Mr George |
| Solicitors for the Respondent: | Rosen Lawyers |
ORDERS
THE COURT ORDERS THAT:
Discharge all previous parenting orders.
The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long term issues for the children X and Y both born in 2007.
The children live with the respondent at all times that they are not living with the applicant.
The children live with the applicant:
(a)during school terms from after school on Friday to before school the following Friday and each alternate week thereafter; and
(b)during all school holidays to which the children are entitled, for one half of each school holiday period, being the first half in odd numbered years and the second half in even numbered years.
During school holidays or on special occasions, the parent delivering or returning the children to the other parent shall return the children to the parent’s home where the children will reside that night at 16:30 hours.
The applicant shall pay all costs associated with the children’s attendance upon Mr B pursuant to order 16 hereof.
BY CONSENT THE COURT FURTHER ORDERS THAT:
Extended holidays with either parent may occur with the agreement of the other parent with sufficient notice being provided in writing and where equal holiday time is reciprocated within a 12 month period of the extension of holiday time. The parent who first approaches the other parent to extend holidays in a given holiday period will have priority. Extending holidays over the Christmas period can only be proposed by the Father in odd numbered years and only be proposed by the Mother in even numbered years. In relation to any proposed extended holidays:
(a)Domestic holidays may be extended up to one (1) week with the agreement of each parent. As much notice as practicable should be given but no less than one (1) month notice must be given to negotiate dates and the time extension;
(b)International holidays may be extended by two (2) weeks up to a total of twenty-one (21) nights. Each parent may only plan a maximum of one international holiday with the children in any calendar year. At least 45 days’ notice with intended travel dates and locations is to be given by the parent requesting the extension. Final itinerary details are to be provided a minimum one month before travel or if not available within 48 hours of them becoming available;
(c)Any holidays planned with the children are to be during scheduled school holidays and must not in any way disrupt the children’s continuity of learning at their school;
(d)Any vaccines and associated expenses that are required for safe travel to the destination/s must be arranged and paid for by the travelling parent; and
(e)The parent who is exchanging holiday time to facilitate the extended holiday plans of the other parent may seek additional information within 48 hours of being asked to change holiday plans if required and if doing so must provide a response within 72 hours of being asked or having received the additional information if applicable so the requesting parent has confirmation they can make travel arrangements.
If the children are not with the Father on Father’s Day, the children will spend from 16:30 the day prior to Father’s Day until they are returned to school on the Monday, with the Father.
If the children are not with the Mother on Mother’s Day, the children will spend from 16:30 the day prior to Mother’s Day until they are returned to school on the Monday, with the Mother.
If the children are in the care of the Father the morning of the children’s birthday, the Mother will spend time after school if applicable or from 16:30 hours on the day of the children’s birthday until the start of the following school day if applicable or till 09:00 hours at which time the Mother will return the children to the care of the father.
If the children are in the care of the Mother the morning of the children’s birthday, the Father will spend time after school if applicable or from 16:30 hours on the day of the children’s birthday until the start of the following school day if applicable or till 09:00 hours at which time the Mother will return the children to the care of the father.
On the Father’s birthday, if the children are not with the Father on the Father’s birthday, then the children will spend from after school if applicable or 16:30 hours the day prior to Father’s birthday until the start of the school day if applicable or until 09:00 hours the day after the Father’s birthday.
On the Mother’s birthday, if the children are not with the Mother on the Mother’s birthday, then the children will spend from after school if applicable or 16:30 hours the day prior to Mother’s birthday until the start of the school day if applicable or until 09:00 hours the day after the Mother’s birthday.
During school terms, unless otherwise agreed in writing between the Father and the Mother, on days the children attend school, all changeovers shall occur at school.
Should a child be prescribed medication or need to attend a hospital the parent attending to the medical needs of the child will advise the other parent of the child’s condition as soon as practicable including, if applicable, information as to the hospital and ward details where the child is being treated. An SMS as the first immediate notification is an acceptable way to advise the parent.
The parents and the children are to participate with Mr B (for as long as Mr B considers it would be beneficial for the children) with a view to improving the family relationships in relation to assisting with co-parenting, including communication and discipline methods, whilst at all times keeping the children’s best interests in mind.
The Children’s passports and birth certificates are to be held by the person who last travelled overseas with the children. If the other parent requires one of the documents, they are to provide a minimum seven (7) days’ notice of when it is required and for what purpose and must return the document within seven (7) days of the completion of the use for which it was required.
The parents shall ensure the children have a phone number (landline or mobile) available between 16:00 and 18:00 each Tuesday and Thursday to allow the other parent to contact them should they wish.
Neither party shall post photos or videos of the children on social media before the age of sixteen (16).
The parties shall not take the children to business events on school nights unless they can be home by 7.00 pm.
Neither party will speak derogatorily about the other party, or about one of the children, to, or in the presence of the children, nor allow any other persons to act or speak in this way.
The parties will use their best endeavours to ensure the children attend school on time.
THE COURT FURTHER DIRECTS THAT:
That within 21 days of the date of these reasons, the parties bring into court short minutes of property adjustment order to give effect to these reasons insofar as they concern property adjustment.
IT IS NOTED that publication of this judgment under the pseudonym Taffner & Taffner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1861 of 2019
| MR TAFFNER |
Applicant
And
| MS TAFFNER |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the parenting arrangements between two children and their parents now that their parents’ interpersonal relationship has failed. It also concerns the alteration of property interests between the parties.
Presently, the children spend week about in the household of each of their parents. The parties have not adjusted their property interests between them although they were able to reach an agreement about that at a mediation last year. Unfortunately, they were unable to carry the agreement they reached at mediation into effect.
According to his case summary document filed 11 November, 2019 Mr Taffner seeks parenting orders whereby:
a)the parties have equal shared parental responsibility for their children;
b)the children live between the parents households for nine days in each fortnightly period with the father and for five days in each fortnightly period with their mother;
c)the children spend equal time over each school holiday period with each parent; and
d)a range of miscellaneous orders intended to deal with various issues including special occasions, some medical issues and electronic communication between the children and their parents to name but a few.
He also seeks property orders that in practical terms would see the parties’ property divided 55% to him and 45% to Ms Taffner.
In her case outline document filed in Court on 12 November, 2019 Ms Taffner sought the following parenting orders:
a)an order for equal shared parental responsibility for the children;
b)an order that the children live equal time with both parents with changeovers to occur on Fridays at 4:30pm;
c)an order that the children spend half of their school holidays with each parent, on a week about arrangement; and
d)other miscellaneous orders including orders relating to overseas travel medical treatment, extracurricular activities and some other matters.
She also seeks property adjustment orders which would have the practical effect of dividing the parties needed property 65% to Ms Taffner and 35% to Mr Taffner.
Brief background
The parties commenced cohabitation in 2002 and married in, 2005. They separated on a final basis on Australia Day 2018. The parties were divorced by an order made on 20 August, 2019
Their twin boys, X and Y, were born in 2007. Soon after separation, in February 2018, the parties agreed that the children should live in an equal time arrangement between them on a week about basis.
These proceedings were initiated on 18 February, 2019 by Mr Taffner filing an application for property adjustment. He sought no parenting orders. By her response filed on 13 May 2019 Ms Taffner sought final property adjustment orders. She too, sought no parenting orders.
However, on 6 June, 2019 Mr Taffner filed a further amended initiating application in which he introduced an application for parenting orders. Quite unhelpfully, he set out no particular orders about the time that the children should spend with either parent and according to that document, and he said that he did not intend to do so until such time as “the psychiatric Assessment of Ms Taffner has taken place”. Ms Taffner filed an amended response on 23 July 2019 in which she sought parenting orders.
The applications came before the court on 11 July 2019 for directions. Some parenting orders were made dealing with telephone communication and an order was made for the preparation of a report pursuant to s.62G of the Family Law Act 1975 (Cth). No other parenting orders were made and none were seen to be necessary.
X and Y presently continue to live in week about arrangement between their parents. At the time of the trial they were in in year 6 at a private school in Suburb C.
I will deal with the application for parenting orders first and thereafter the application for property adjustment orders.
Parenting
Part VII of the Family Law Act provides the relevant statutory framework within which the Court must determine what parenting orders to make. The Court must have regard to the best interests of the children as the paramount consideration in determining what parenting orders ought to be made: s.60CA of the Act.
The best interests principle informs each of the orders that a Court might be called upon to make concerning parenting, including orders concerning the incidence of parental responsibility, where children should live and with whom they should spend their time and communicate.
As to the issue of parental responsibility, s.61DA of the Act provides that when making a parenting order, a court must apply a presumption that it is in the best interests of the child or children concerned for their parents to have equal shared parental responsibility for them. That presumption will not apply in certain circumstances and will be rebutted in other circumstances. I have dealt with these circumstances below.
The phrase equal shared parental responsibility is not defined in terms in the Act. It is defined by its consequences. There are consequences for the Court and there are consequences for the parents. The consequence for the Court is that if it makes an order for equal shared parental responsibility, the Court must consider whether it would be in the best interests of the children to spend equal time with each parent and whether spending equal time would be reasonably practicable. If it is, then the Court must consider making an order for equal time. If the Court does not make such an order then it must consider whether it is in the best interests of the children to spend substantial and significant time with each parent and whether spending substantial and significant time would be reasonably practicable. If it is, then the Court must consider making an order for substantial and significant time. The phrases substantial and significant time and reasonably practicable are defined in ss.65DAA(3) and 65DAA(5) of the Act respectively.
The consequences of an order for equal shared parental responsibility for parents are found in s.65DAC of the Act. The effect of that section is that if two or more persons are to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child then the people who share parental responsibility must, for every major long-term issue:
a)consult the other person in relation to the decision to be made about that issue;
b)make a genuine effort to come to a joint decision about that issue; and
c)make the decision jointly.
The Court is required to presume that it is in the best interests of the children for their parents to have equal shared parental responsibility for them unless:
a)there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in:
i)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
ii)family violence;
b)the Court is persuaded by the evidence that it is not in the best interests of the children for the child’s parents to have equal shared parental responsibility for the child.
Family violence is defined in s.4AB of the Act. Relevantly it provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Even if the presumption does not apply or it is rebutted, it may still be in the best interests of the children to make an order for equal shared parental responsibility. Moreover, even if no order for equal shared parental responsibility is made, the Court may still consider whether it is in the best interests of the children to spend equal time or substantial and significant time with each parent and whether an order ought be made to that effect: see Goode v Goode [2006] FamCA 1346, [46] – [48].
However, where s.65DAA(1) or (2) is not engaged (because there is no order for equal shared parental responsibility) and the parties’ proposals have the capacity to adequately meet the best interests of the children, the Court is not obliged to consider an equal time, or any other type of alternative arrangement: cf. Whisler v Whisler (2010) 42 Fam LR 633, 643.
In determining what is in the best interests of children the Court must have regard to primary and additional considerations as set out in s.60CC of the Act. The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court must give greater weight to the primary considerations. Of the two primary considerations, the Court must give greater weight to that set out in s.60CC(2)(b): s.60CC(2A).
The additional considerations are those set out in s.60CC(3) that are relevant to the matter at hand.
Consideration
Neither party suggests that these children will not benefit from a meaningful relationship with each of their parents. The proposals of each of the parties must be underscored by the notion that they will so benefit. Although Ms D did not address this issue in terms, it is implicit in her assessment that these children will derive a benefit from a meaningful relationship with each parent: see in particular her observation at paragraph 170 of her report.
My own assessment is that these children will certainly derive a significant benefit from a meaningful relationship with each of their parents. Both Mr and Ms Taffner are highly intelligent and articulate people who have much to offer their children. On the proposal of each party, these children will have the opportunity to have the benefits of a meaningful relationship with each of their parents visited upon them. Although, as Ms D has observed in the paragraph I have identified above, Mr Taffner’s proposal will limit the children’s opportunity to derive benefit from their relationship with Ms Taffner.
The second of the primary considerations concerns the “need to protect” these children from any “physical or psychological harm” from being subjected or exposed to abuse, neglect or family violence: s.60CC(2)(b). Neither party suggests that this is an issue in the present case.
The Court must consider the views of the boys and their age and maturity when determining their best interests: s.60CC(3)(a) of the Act. Ms D was able to interview the boys and elicit their views. X told Ms D that he was happier at his father’s home, but he was not sure if the current week about arrangement should be changed. Y told her that he liked the current week about arrangement and that it should continue. There is nothing in Ms D’s assessment that suggests that either child was particularly strident in their view. Given the children’s ages, I think their views attract some weight but given the high antagonism between the parties it is difficult to parse the views of the boys without considering that they may be consciously or unconsciously affected by their love for their parents: Dylan and Dylan [2007] FamCA 842.
The boys expressed surprised sadness to Ms D about their parents’ separation. The boys’ surprise at the breakdown of their parent’s relationship is revealing, particularly in light of the parent’s ongoing talk of separation prior to the event. It suggests the level of conflict, such that it was, had become routine.
I observe that Mr Taffner’s proposal is not consistent with the children’s views and particularly that of Y. Ms Taffner’s proposals are consistent with those views. Ms D does not suggest that either child will not cope with the regime proposed by either parent.
Both children have strong, loving and positive relationships with each parent. Neither reports any particular difficulty in the care of their father and he none with managing the children or their behaviour. However, the way in which that relationship manifests for each boy with their mother is different. Her relationship with Y is of no concern. There is nothing in the material to suggest it has any problematic aspects to it. However, there are difficulties between Ms Taffner and X. It is these difficulties and the way in which Ms Taffner manages them that has led Mr Taffner to seek orders that the children live primarily with him. Ms D records that Mr Taffner told her:
14. Mr Taffner believes that Ms Taffner has serious difficulties in parenting X effectively and he wants her to address this. If she does, he is happy for the week-about arrangement to continue. If she refuses to acknowledge her issues he proposes that the children live with him fulltime and spend time with her every second weekend.
Some background is useful. X was diagnosed with autism spectrum disorder by a behavioural paediatrician when he was about 6 years old. He is said to be “high functioning”. Apart from a couple of short sentences about this matter in the evidence of each of the parents, there is no other evidence, including medical evidence, before me about X’s diagnosis.
The parties had experienced difficulties with X’s behaviour for some time. Both parties acknowledged that they had struggled to manage X’s behaviour, even as a toddler. He was given to tantrums and “meltdowns”.
Before the parties’ separation Ms Taffner was primarily responsible for caring for the boys on a day-to-day basis. Mr Taffner was working fulltime and away from the family home during the day. Thus, Ms Taffner was primarily responsible for managing X’s behaviour. Both parties did their best to provide X with consistent and uniform parenting. According to the evidence, they tried many things to manage his defiant and difficult behaviour, but none were very successful. They sought assistance through a Triple P parenting provider and followed her recommendations.
However, they continued to achieve no sustained success and X’s behaviour did not improve. The parties fell into disagreement about what to do for X. Whilst Mr Taffner wished to change their approach, Ms Taffner was not as enthusiastic about that. Their different views led to conflict between them. Mr Taffner told Ms D that he had enough of the “confrontational style parenting” that they had engaged in with X that inevitably led to yelling between parents and child. According to Mr Taffner, he changed the way in which he dealt with X. He approached X more calmly and would separate Ms Taffner and X and then negotiate an outcome between Ms Taffner and X. Ms Taffner often considered that Mr Taffner had given in to X.
And thus it has continued. According to the evidence Ms Taffner and X still engage in loud verbal arguments and confrontation. The arguments have, at times progressed to physical altercations where X has punched his mother.
Presently, the main source of friction is X’s use of technology. But there are others as well. Ms Taffner imposes consequences on X for his behaviour and this leads to their disagreements. Perhaps the most illuminating insight comes from Y’s descriptions to Ms D:
148. He said that X gets angry a lot of times. Sometimes it is when he (Y) annoys him. Sometimes it is when he watches television when he is not supposed to and the consequence is that the cord gets taken out. If he has gone overtime on his iPad, Mum takes it off him and he gets angry at that. Mainly he acts angry over things that he does that he shouldn't do. So it is not Mum's fault or Y's fault - he did something that he was not supposed to do.
149. He said that he doesn't have the same problem when he is asked to stop using technology. He asks whether he can finish what he is doing and he then gets straight off. He has worked out that if he gets off when they say, they will see how good he is. They will trust him and they will give him more time on it.
150. X’s problems don't happen at Dad's place. If Dad asks him to get off he gets off. When Mum asks him to get off he doesn't. Technology is the main issue.
151. He said that he gets very upset when X and Mum fight. He said that X hits Mum hard and he worries that she will get hurt. He said that Mum worries for her safety too. X has punched him too. He punches him back. X gets angry very quickly and then it takes forever for him to calm down.
152. He said that X doesn't get ready in time for school. Mum takes Y on his own if X is not ready. He catches the 7.52 train and this gets him to school just on time. So when X catches the next train, he is late for school.
As I have indicated above, shortly before the parties engaged in mediation in the middle of 2019, Mr Taffner amended his application to seek parenting orders. He sought orders that the children live with him but did not specify any orders for them to spend time with their mother. In his affidavit of evidence in chief he says that he did that “due to ongoing information” he received from the children he claimed that he was concerned about their “safety, well-being and welfare”. Oddly, according to his own affidavit, he has only given evidence about “some events that led me to make this amended application”. He also says that “Whilst the week about care arrangement has now been in place for over 18 months, I have progressively become more and more concerned about the safety of the children, in particular X, whilst in Ms Taffner’s care.”
However, the only evidence the father gives about the safety and well-being of the children relates to X. I was taken to nothing in the evidence by counsel for Ms Taffner that would suggest that Y was at any risk of any form of harm in his mother’s care. Y has a good relationship with each of his parents. Ms D observations confirmed that.
Mr Taffner’s evidence contains some particulars about occasions upon which he says he was told by X that Ms Taffner had been pulling him or that she had done something else with which Mr Taffner did not agree. These matters extend beyond physical discipline of X to removing from the children their mobile telephones and access to landline telephones so that they could not call Mr Taffner when they were in her care. There are a range of other matters set out in paragraph 38 of his affidavit of evidence in chief some of which bear on this issue and some of which do not.
The first matter to record is that there is no objective or independent evidence that corroborates Mr Taffner’s complaints about X being subjected to physical harm by his mother. Ms Taffner accepts that she has physically disciplined X in the past and has restrained him on occasions. I accept her evidence about that. But despite Mr Taffner reporting incidents to police, there is no objective evidence before me that any of the physical measures that Ms Taffner has used against X have been inappropriate or excessive. Indeed, X did not complain to Ms D about any physical mistreatment of him by his mother.
It is worth recording Ms D’s assessment about X’s behaviour and its management:
162. On the face of it, Ms Taffner and X’s personality styles have strong similarities. X becomes fixated on how Ms Taffner is unfairly stopping him from something he wants to do. She, in turn, remains firm in her stance about his need to stop. In general terms, her approach is appropriate and responsible. In this case, it seems to develop into something akin to the “immovable object versus the unstoppable force”. This has become a pattern over the years and I conjecture that mother and son both brace themselves for the inevitable clash.
163. Having listened to a couple of recordings of X’s rageful outpouring . I am inclined to think that there is a need for strategies in helping him to self-calm before he can be expected to listen and focus on how he needs to modify his behaviour. This will be difficult and there will be no magical solution.
164. I am troubled about Ms Taffner’s physical safety. At the height of his anger, X has resorted to physical attacks on her. While this has been largely manageable to date, he is on the cusp of puberty where his strength will increase massively.
165. Mr Taffner’s manner of managing the children is equally firm but quieter and somewhat less confronting. Perhaps he has also derived advantage however from a “new start” - moving into a new home where new routines and approaches could be established more readily.
Thus, it can be appreciated from Ms D’s evidence, that the approaches of both parents are generally appropriate and responsible. Mr Taffner’s is different to Ms Taffner’s. Further, both parties agreed in cross examination that since the delivery of Ms D’s report X’s behaviour has improved and more importantly Ms Taffner’s management of it has improved.
The father’s proposal carries benefits for X if the amount of time that he spends in his mother’s household is reduced. That will reduce the opportunity for X and his mother to come into conflict over issues such as X’s use of technology. It is not that it is not the case that X does not have issues in his father’s household. The evidence suggests that he does. They are just not as frequent as they occur in his mother’s household because, it seems, there are different rules on the father’s household than there are in the mother’s. Nonetheless, Mr Taffner’s proposal will reduce the opportunity for X and his mother to come into conflict and for that conflict to overflow and affect Y. That is of less significance given the parties evidence that Ms Taffner’s management of X’s behaviour seems to have improved a little recently. There are disadvantages, however, for Y in that his time with his mother and his opportunity to enjoy the benefits of his relationship with her will be reduced. This is a matter that Ms D identified for both children if the time that they spend with their mother is reduced – there will be a consequent reduction in the opportunity that they have to enjoy the benefits of the relationship with her.
There is nothing in the evidence that would suggest that either of these parties lack the capacity to meet these children’s physical or emotional needs. Whilst both parties may complain against the other about their conduct in the context of the separation, those matters are, in my view, of little moment. Mr Taffner suggests that Ms Taffner has been unable to accommodate all of the children’s needs because she will not always be physically present when the children require her but, there is no concern about that. Children are entitled to see their parents manage the care arrangements for children when parents are unavailable by reason of employment or other reasons. In the context of this case, there is no evidence that would satisfy me that either of these parents does not have the capacity to meet the needs of the children.
Mr Taffner has suffered from depression in the past, but there is nothing in the evidence before me that would suggest that that has any current impact upon, or has the potential to impact upon, his parenting of the children.
Mr Taffner is highly critical of Ms Taffner’s approach to parenting and her enthusiasm for becoming a parent at all. However, I accept Ms D’s assessment at paragraph 158 of her report that expressions of random thoughts of frustration are commonplace for parents and “should not be interpreted as detracting from commitment to their parenting responsibilities”.
Similarly, Mr Taffner is critical of Ms Taffner’s ability to get the children to school on time. He set out in his evidence in chief the number of days on which the children have been late to school whilst in her care. This is a matter of some concern and I take it into account.
There is reason to be concerned that Mr Taffner has acted in a controlling and coercive way towards Ms Taffner. I accept her evidence about documents going missing from her home and that Mr Taffner being responsible for the removal of those documents including the children’s birth certificates and the parties’ wedding certificate. He did that at the point when he was no longer living in the family home. It was reasonable in all the circumstances for Ms Taffner to feel unsafe given Mr Taffner’s incursion into her personal space and that of the children uninvited. I also accept her evidence about changes being made to various Internet accounts, mobile accounts and Translink accounts that she had set up for the boys for example, without her authority. Her evidence establishes that Mr Taffner made those changes by accessing her accounts and changing those access details so that she could no longer access the relevant accounts.
His behaviour towards her in respect of the parties’ private health insurance is also indicative of attempts to control her. I accept her evidence in paragraph 51c) of her affidavit of evidence in chief. The husband’s email to her about this matter is telling. His behaviour towards her concerning the mobile phone number that she uses for her business is also indicative of his controlling behaviour: see paragraph 51f) and 51g) of her affidavit.
Indeed, Mr Taffner acknowledges that he has been controlling at times but “only when things get messy”.
However, the biggest risk factor for these children identified by Ms D and with which I entirely agree is the conflict which now exists between Mr and Ms Taffner. The continuing friction between the parents, is having “an adverse effect on [X’s] emotional development and self-esteem”. The parent’s descriptions of each other in negative terms, particularly as being controlling or otherwise scapegoating, must certainly be having some negative effect on the boys.
The diminution in the parties’ interpersonal trust is identified by Ms D as a significant matter. Ms D identifies that the parties were still engaging reasonably prior to the mediation which occurred sometime in July 2018. It appears both parties went into the mediation with differing expectations of what was to occur. In any case the mediation brought about no change, at least in a positive sense. Both parties began unilateral and undiscussed change to their financial situation. The matter went downhill.
In her family report Ms D makes reference to a domestic violence order applied for by Ms Taffner in December 2018. It was contested by the applicant and subsequently struck out in July 2019. Paragraphs 69 to 76 of the report are particularly illustrative of how the parents’ relationship has deteriorated in this regard.
Ms D’s report highlights the frustration of the parties and the boys. Emblematic of this is the incident regarding the trip to the Region E to go on holidays in 2019. Ms Taffner describes that, in the course of preparation for the trip she was hit by a power cord by X, who was then physically restrained by a neighbour. This seems to have caused X distress. Mr Taffner describes the incident as Ms Taffner taking an electronic device from X which involved a neighbour placing X in a “chokehold”. The details of what each and parties told Ms D are set out in paragraphs 84 and 101 of her report. Neither suggest that what Ms D records as having been told by them is inaccurate. It is unsurprising then that there is ill-feeling and confusion. Though the scenario itself is not, in the grand scheme of things, particularly noteworthy; the trend of mutual mistrust is concerning.
It is clear that both parties place value in being in control with regard to parenting. It appears evident from the report of Ms D that the parties’ interpersonal trust began diminishing when their definitions of control altered. Mr Taffner questions the parenting style of Ms Taffner as being physically controlling. Ms Taffner argues that of Mr Taffner as emotionally controlling. Both parents appear to expect criticism from the other for their parenting and it has significantly affected the way each approaches parenting. It is unsurprising then, that these parents who are constantly mindful of being watched by the other for the opportunity to criticise would find it difficult to parent. A consequence of this is that it is adversely affecting how the boys perceive themselves and each other.
Overall the children convey the impression of being intelligent boys that are responding thoughtfully to a circumstance neither anticipated. It seems both are, and will continue, to respond divergently to the differing rules offered by both households. It is clear the uncertainty is troubling to the boys. Further, the parties’ priorities regarding the parenting of the boys’, and the parent’s reactions to divergences with routine, appears to be causing the boys to experience some emotional trouble.
Whilst Mr Taffner voices concerns that Ms Taffner “continues to repeat the same approach with X as she has always done in the past” and is concerned that this eventually involves physical discipline he discounts her readiness to change approach and views with scepticism her claims that she has sought advice on parenting strategies and counselling. She has displayed awareness of her own character traits, albeit qualified. She acknowledges that she and X are equally stubborn. She volunteered that by purchasing electronic devices for the boys’ birthdays recently she was acting in an apparent contradiction to her aversion to the overuse of technology. Of course the purchasing of an electronic device is not necessarily a contradiction with a parent having and maintaining rules about the use of that technology.
Conclusions - parenting
The parties agree that there would be an order for equal shared parental responsibility. I am content to make that order. Despite the mistrust that exists between the parties and the fractious nature of their relationship, that both now understand the significance of making joint decisions for these children in respect of major long-term issues gives reason for optimism. These children will do best when decisions about important matters in their lives are made by the parents jointly. Both of these parents have much to offer their children and their children will benefit from input from both of them. There is nothing in my consideration of the matters set out above that would lead to the conclusion that an order for equal shared parental responsibility is not appropriate.
Because I intend to make an order for equal shared parental responsibility, I am obliged to consider the children spending equal time in each household if that is reasonably practicable and it is otherwise in their best interests: s.65DAA of the Family Law Act. That arrangement also lines up with the proposal contended for by Ms Taffner and so does not warrant separate consideration. Neither party here suggests that an equal time arrangement is not practicable.
Ms D struggled with her recommendations set out in her family report. She says as much in the body of the report and she repeated her concerns in cross examination. For Ms D, a reduction in time between X and his mother would reduce the opportunity for there to be episodes of conflict between them which on Ms D’s view might tend to escalate over time. She thought a reduction in the opportunity for problematic incidents to occur would mean that Ms Taffner would not be challenged to manage X’s behaviour as frequently as she is and Y, who is distressed by the incidents, would not be exposed to them either.
However, Ms D acknowledged that difficult behavioural incidents “meltdowns” occurred in Mr Taffner’s household just as they did in Ms Taffner’s household. The focus on each household might be different but they nonetheless occurred although perhaps with less frequency.
Ms D agreed with the proposition that by reducing X’s time with his mother it might send a message to him that and to Y, that Ms Taffner’s parenting of these children was poor just as their father had told them. It was Ms D’s view that Mr Taffner did not assist Ms Taffner’s management of X’s behaviour because of the way in which he dealt with those incidents when he became aware of them. On the evidence X would contact Mr Taffner when he was disciplined by his mother to report to Mr Taffner what was going on. Whilst Ms D thought that Mr Taffner was firm on the phone to X she also considered that the message that X was being given by his father was that the problem was his mother’s behaviour and that it was X who had to be the adult and behave in a way which was acceptable.
As I have set out above, I accept Ms Taffner’s evidence that since Ms D’s report has been released, she has put in steps practices to improve the way in which she manages X’s behaviour and those steps have been paying dividends.
As Ms D points out, both of these children love their mother dearly and have strong attachments to her. A reduction in time for the children would necessarily mean a reduction in time for Y which absent the difficulties with the management of X’s behaviour, would not be appropriate. As Ms D has done, I too have considered the prospect of putting in place different time regimes for these children. It may not be appropriate. It is not appropriate on the evidence before me to put in place different arrangements for each of them. According to Ms D’s evidence, which I accept, it will have a negative impact upon the children’s relationship with each other. That is not to say that as these children get older different arrangements will not be appropriate. They may well be. But that is not something that can be put in place now according to the evidence.
Having regard to those matters and weighing the advantages for X in the father’s proposal with the advantages of these children in the mother’s proposal but more importantly the disadvantages for each of them with the father’s proposal and the disadvantages for Y in particular in my view it is appropriate for the children to continue in their week about arrangement. Whilst I appreciate the orders that I propose to make are different to those recommended by the family consultant, I note that according to Ms D’s own evidence the basis for her recommendations was “conjectural” and that there was a large degree of speculation involved in her recommendations particularly around the perceived advantages for X and spending more time in his father’s household that his mother’s. Having regard to Ms Taffner’s evidence about the improvements have occurred since Ms D’s report was delivered, and the difficulties that might be visited upon Y if there was a reduction in time, I have concluded that it is appropriate for the equal time arrangement to continue.
At the conclusion of the case, I invited the parties to reach agreement about a range of orders that each specified in their case outline documents. I was informed the parties had reached agreement about a great many orders and the document would be produced and sent to my Chambers recording the parties’ agreement. For reasons that I do not understand, that was not done and each party has ended up sending to me (via their solicitors) the orders for which they contend. That has not advanced matters at all.
I have formulated the orders set out at the commencement of these reasons based upon my discussions with counsel at the conclusion of the trial. Neither party has made any submissions about the orders that are in contention. I assume that they are content for me to simply make a decision about the outstanding issues.
There was a dispute between the parties about school holiday time. Ms Taffner contended the week about time should continue during school holidays and Mr Taffner contended that there should be an order for one half of the school holidays with each parent although the form of his orders are far from clear. In my view it is in the best interests of these children for there to be an order for one half of the school holidays with each parent. But it needs to be a simple order. The orders proposed by the father are, perhaps in an effort to be clear, unclear and apt to lead to further confusion for the parties and the children. That will allow these children to spend extended times with either of their parents should the length of the school holidays permit. I have in mind the end of year school holidays which will allow these children to spend more than a week at a time with their parents and it will allow the parent with whom the children are presently living to take an extended holiday or trip if that opportunity arises. For that reason, I have not made any particular accommodation for the special days around Christmas. The children will spend Christmas with the parent with whom they are spending the first half of the school holidays in any given year.
The parties are agreed that the children should continue to see a psychologist Mr B. They are in dispute about who should pay for that attendance. Mr Taffner contends that the cost should be shared equally. Ms Taffner contends that Mr Taffner should bear the costs. In my view Mr Taffner should bear the costs. He has a far greater earning capacity and a better capacity to meet the ongoing costs for these children.
The parties are in dispute about the changeover point if the children need to pass from one parent to another and they cannot do that at the conclusion of school on Friday. Mr Taffner contends that the parents should exchange the children at their residences whereas Ms Taffner argues that they should meet at a McDonald’s restaurant. I prefer Mr Taffner’s proposal and have included that in the orders.
The parties are also in dispute about whether the children can contact the parent with whom they are not living in any particular point in time. Mr Taffner contends that there should be an order that “Neither parent shall restrict either child from communicating with the other parent or brother and shall provide the children with access to a phone for their use as requested by the child”. I decline to make that order. As set out above, part of the difficulty in this case is that X has the ability to contact Mr Taffner when he perceives that he is being treated unreasonably by his mother. According to Ms D, Ms Taffner’s methods are generally appropriate and responsible. Ms D agreed in cross examination with Ms Taffner counsel’s suggestion that part of the difficulty lay in X being able to call his father and receive support from his father that it was really the mother’s behaviour which was causing the difficulties for X. That opportunity should cease and for those reasons I decline to make the orders sought by the father.
Property adjustment
I find that the parties have the following assets, liabilities and financial resources:
Real property: F Street, Suburb G (t) $760,000.00 H Street, Suburb J (H) $1,625,000.00 K Street, Suburb G (W) $475,000.00 Vehicles: Motor Vehicle 1 (t) $2,350.00 Motor Vehicle 2 (H) $10,000.00 Bank Accounts : Acc No. ending ...7 (t) $480.10 Acc No. ending ...9 (t) $1,032.37 Acc No. ending ...4 (t) $56,976.81 Acc No. ending ...3 (t) $88,520.00 Acc No. ending ...2 (t) $889.78 Acc No. ending ...4 (H) $3,592.69 Acc No. ending ...0 (H) $2,876.18 Acc No. ending ...5 (H) $2,907.91 Acc No. ending ...6 (W) $2,976.50 Acc No. ending ...8 (W) $30,686.50 Acc No. ending ...3 (W) $528.87 Acc No. ending ...2 (W) $679.70 Acc No. ending ...3 (W) $686.73 Acc No. ending ...6 (W) $471.12 Acc No. ending ...1 (H) $14,940.54 Shares: L shares (H) $590.00 M shares (W) $6,732.20 N shares (W) $2,400.00 Other: Jewellery (H) $5,211.00 Jewellery (W) $7,015.00 Furniture and Chattels at H Street, Suburb J $9,000.00 Furniture and chattels (W) $7,000.00 Furniture and chattels (H) $7,000.00 Wine collection (t) $1,200.00 Total assets: $3,126,744.00 Liabilities: Mortgage to H Street, Suburb J (H) $940,000.00 Mortgage to H Street, Suburb J (H) $175,269.99 Mortgage to H Street, Suburb J (H) $26,541.01 Mortgage to K Street, Suburb G (W) $159,483.53 Land Tax (H) $5,325.00 Nett non-superannuation assets: $1,820,124.47 Superannuation: Super Fund O (W) $48,300.65 Super Fund P (H) $18,421.43 Super Fund Q (H) $314,139.13 Total Superannuation: $380,861.21 Total nett assets: $2,200,985.68
A number of observations are necessary about the above assets liabilities and financial resources. First, remarkably no balance sheet was tendered during the course of the trial. Neither did counsel address me on the assets, liabilities and financial resources as I should find them in terms. There were some submissions about add backs but generally no submissions were made about the assets, liabilities and financial resources of the parties. I was left to work it out from the parties’ jumbled material as best as I could.
Insofar as the parties’ real property is concerned, there is no contest about values. Nor does there seem to be any contest about the liabilities that are secured over those real properties. I have constructed the above table using the affidavits of evidence in chief of both Mr and Ms Taffner each of which contains their own table of assets, liabilities and financial resources for which they contend.
It will be noticed that of the three real properties set out above, two are owned by the parties individually. I am satisfied that Ms Taffner remains the legal and equitable owner of her property. It was not suggested in argument that Mr Taffner had in any way acquired an equitable interest in that property through contribution or otherwise. But he probably has given the length of time over which the parties’ relationship subsisted and the financial assistance given by Mr Taffner to Ms Taffner which enabled her to make the relevant repayments in respect of her property.
Nor was it argued that Ms Taffner had acquired any equitable interest in the H Street, Suburb J property. On the facts, however, it is likely that she has acquired an equitable interest in the property through her contributions towards it. Mr Taffner is the registered proprietor of the H Street, Suburb J property and so the legal owner of it. On the evidence, Ms Taffner has contributed to its acquisition and conservation. Its acquisition was financed using “a joint line of credit secured over [Ms Taffner’s] townhouse” being the K Street, Suburb G property, as well as the property at R Street, property of which the parties were joint owners. The property at R Street was also subject to a security registered over the title to the K Street, Suburb G property. In her financial statement filed 5 November 2019, Ms Taffner asserts to have an equal liability for the mortgage of the H Street, Suburb J property with the applicant. She asserts the property “was purchase solely in [Mr Taffner’s name] for tax purposes”. Given the way the parties have approached the case and ultimately the outcomes contended for by each of them, it is unnecessary to make a particular finding about the nature or extent of the equitable interest acquired by Ms Taffner in the H Street, Suburb J property.
There is a dispute, it seems, about the value of the parties’ motor vehicles. There is a Motor Vehicle 1 that is jointly owned but which, it seems, is in the possession of Ms Taffner. Mr Taffner contends it has a value of $1,000, Ms Taffner a value of $2,350. There is a Motor Vehicle 2 which I understand to be in the possession of Mr Taffner. He contends it has a value of $10,000 whereas Ms Taffner contends it has a value of $15,250. In the absence of any evidence, I have adopted the value ascribed to each particular motor vehicle by the party who has that vehicle in their possession. I have treated their assertion of value about the vehicle as a statement against interest.
The parties have a number of bank accounts. A number of those accounts have no balances or minor balances. I have disregarded those accounts with a balance of less than $200. On my reckoning, there are two accounts in respect of which there is a dispute about the balance. The first is the National Australia Bank account ending ...5 in Mr Taffner’s name. The husband contends it has a balance of $2,907.91 and Ms Taffner contends that it has a balance of a little over $6,000. I have adopted Mr Taffner’s contention. It is his account and, having regard to his obligation to make proper financial disclosure, I have inferred that the figure put for that account in his affidavit is accurate.
The second account is National Australia Bank account ending ...1. That is said to be an account owned by Mr Taffner and called by Ms Taffner “Mr Taffner rental account”. As at February 2019 she claims it had a balance of $18,815.54. Mr Taffner does not refer to that account in his trial affidavit. However in his financial statement filed on 18 February 2019 and which he read for the purposes of his evidence in this trial he discloses the account and swears that it has a balance of $14,940.54. In the absence of any evidence in his trial affidavit about that account or any updated financial statement, I conclude that the account continues to exist and retains the balance sworn to in February 2019. I have included the balance of that account in the above table.
On the face of the parties’ affidavits, there appears to be dispute about the value of the shares held by Mr and Ms Taffner. Mr Taffner sets out particular values for each of the shares in his affidavit whereas Ms Taffner suggests that in total the shares have a value of a little over $7,100. I prefer Mr Taffner’s evidence about the value of the shares.
In his affidavit of evidence in chief, Mr Taffner contends that an entity described as “The Taffner Trust” has computer, printing and photographic equipment that is used and held by Ms Taffner. Mr Taffner says that he is the trustee of the trust and the appointor of the trust. He asserts that the computer, printing and photographic equipment held by Ms Taffner has a value of $6,000. Ms Taffner’s evidence does not deal with this issue. There is no evidence before me about the value of the equipment or indeed of what it is compromised. In those circumstances I have not included in item for that amount. I am not satisfied that it has any value.
There is also an apparent dispute about the value of the furniture and chattels in Ms Taffner’s possession. She asserts that they are worth $7,000 where as Mr Taffner asserts they are worth $12,000. Acting on the same basis that I have set out above, I accept Ms Taffner’s estimate of value as a statement against her own interest and find that the furniture and chattels presently in her position in her residence is $7,000. There are also the furniture and chattels in storage at H Street, Suburb J which the parties agree have a value of $9000.
The values for the parties’ superannuation set out above do not reflect the current values of those funds. The values, according to the parties’ evidence were given at 30 June 2018 (in respect of Ms Taffner’s Super Fund O superannuation), 14 May 2019 (in the case of Mr Taffner’s Super Fund Q) and January 2018 (in the case of Mr Taffner’s Super Fund P). I am at a loss to understand why there is no current evidence before the Court dealing with the value of the parties’ superannuation funds. Notwithstanding that, I have included the value of the funds in the above table based on the only evidence before me.
Ms Taffner contends that there ought to be a number of “add backs” to the assets to be considered by the court. They are set out in property order 14 contained within her case outline of 12 November 2019. There is, however, in my view no evidential basis for any “add backs”. One of particular matter warrants special attention. On 6 August 2018 Mr Taffner transferred $30,000.000 to his lawyers from a joint back account of the parties. It is evidenced in annexure T 20 to Ms Taffner’s affidavit of 5 November 2019. She says the payment was unauthorised by her, was an act of deceit by Mr Taffner and was used by him to pay legal costs and for “personal use”. There is, however, no evidence that it was used for that purpose although the inferences open given that it was transferred to a solicitor’s account. In cross examination, however, Mr Taffner denied that he used any of the funds to pay legal expenses and said that his legal costs had been paid from his income. There is no reason not to accept that evidence.
It was also argued that I ought to take into account partial property settlement payments had been made to each of the parties. The difficulty with doing that is that there is no clear evidence about it. Indeed the evidence and the arguments about add backs and partial property settlement (there was in fact no submissions made about the partial property settlements that have occurred) make it impossible to untangle one from the other and to understand the basis upon which (both legally and factually) I might do what it was that Ms Taffner was asking me to do. I have not included any add backs nor made any allowances for “partial property settlement”.
Finally, Mr Taffner argued that I ought to include as a liability for each of the parties the capital gains tax might be payable if the properties that are owned solely in the name of each party are sold. I decline to do so for two reasons. The first is that there is no proper evidence of any basis upon which to assess the capital gains tax that might be payable in the event the relevant properties are sold. Secondly, there is no evidence before me that the properties are likely to be sold and thereby a capital gains tax liability incurred. Thirdly, in the circumstances of the case it seems appropriate that each party should bear their own capital gains tax in respect of their own properties. The amount of the tax that they will have to pay, if any, will be dependent upon their income at the time the capital gains is realised and the marginal rate of tax at the time. There is no evidence about any of those matters before me. I decline to take that into account.
I have also disregarded the parties’ credit card liabilities. They are minor in amount and there is no evidence before me about how it is that those liabilities have been incurred. In the circumstances it seems that they are nothing more than representative of the parties’ day-to-day living expenses.
Sections 79(4)(a), (b) and (c)
In the circumstances of a long cohabitation it is appropriate to apply a global approach to the assessment of contributions. This is not a mathematical exercise: Hayne and Hayne (1977) FLC 90-265. It involves the weighing and assessing of contributions made by both of these parties in the course of their cohabitation, of which each element must be given reasonable value: Aleksovski & Aleksovski (1996) FLC 92-705 at 83,437-83,443. Contributions, such as the parenting and homemaker contributions of each of the parties, relevant in light of their changeable emphases, need not “bear a direct relationship to the assets as they presently exist”: Farmer & Bramley (2000) FLC 93-060 at 87-949.
These parties commenced living together in 2002 and were married in 2005. They separated finally on 26 January 2018. The homemaker duties were, on the evidence, shared between the parties although the primary role as homemaker or parent fell to Ms Taffner. Mr Taffner was primarily responsible for earning income.
Mr Taffner gives evidence that at the commencement of the parties’ relationship he had:
a)a Motor Vehicle 3 which he estimates to have a value of $7,000;
b)a Motor Vehicle 4 which Mr Taffner asserts had a value of $85,000;
c)cash at bank between $40,000 - $50,000;
d)superannuation which he estimates to be $15,000;
e)30,000 S shares which he estimates had a value of $10,000;
f)200 L shares.
As evidence about these matters was not challenged but, none of his estimated values are corroborated in the evidence before me.
Mr Taffner received an income from renting out the Motor Vehicle 4 as a T Company sales display car and received $380 plus GST income per week with display and relocation expenses paid by the T Company. Although he estimates the vehicle had a value of $85,000 at the time the parties commenced their cohabitation, it was sold during the course of the parties’ relationship for $20,000.
Ms Taffner had the following assets at the commencement of the parties’ relationship:
a)the property at K Street, Suburb G in the State of Queensland (still represented in the parties asset pool);
b)a Motor Vehicle 5;
c)M shares;
d)furniture and chattels;
e)superannuation of indeterminate amount;
f)a “small amount” of cash in the bank.
Again, her evidence about those matters was not challenged. Ms Taffner does not say when she purchased the property at K Street, Suburb G but Mr Taffner said it was some months prior to the parties commencing their relationship. She purchased it for $165,000. At the time the parties’ commenced cohabitation in 2004 there was an outstanding mortgage on the property of $116,000.
The Motor Vehicle 5, she asserts, was sold and the money of $5,000.00 was placed in a bank account jointly owned by herself and the applicant. An additional vehicle used by both parties, a Motor Vehicle 2, was purchased “through” her business. The Motor Vehicle 2 is currently in possession of the applicant – it is supposedly “needed in support of general maintenance carried out on the H Street, Suburb J property”.
Mr Taffner is a professional. At the commencement of the parties’ relationship in 2002 he was a qualified professional though he was working as a tradesman earning an approximate gross annual income of $60,000. From 2002 he commenced employment with the Employer U on an approximate gross annual income of $80,000. From this time until 2007 he said that he continued working to “boost income and help meet Ms Taffner’s and my loan repayments”.
After the parties commenced their relationship Mr Taffner purchased a property at V Street, Town W. The property was purchased for $325,000.00 in 2003. Mr Taffner asserts that it was purchased primarily from savings he acquired from his remuneration, an ANZ loan, and the “first homeowner’s grant”. Improvements were made, for instance by “creating two (2) bedrooms”. He performed most of the work himself although he had the aid of his father and “some help from Ms Taffner”. Gifts were contributed by the applicant’s father of $2,373.61 to this construction. It was sold in 2013 for $324,417.00.
Mr Taffner describes times when the parties received assistance from his family members. At paragraph 69 of his affidavit filed 4 November, 2019 he attests his mother provided “approximately 1,000 hours of care” between 2010 and 2011.
The parties jointly contributed to a property at R Street, Suburb G. The property was purchased for $335,417.00 in 2004. It was funded by loan secured over Ms Taffner’s K Street, Suburb G property. The parties moved into that home and when they did so the K Street, Suburb G property was rented out. The rent covered the expenses on that property as well as providing the parties with an additional source of income from which they could defray their living or other expenses.
The R Street, Suburb G property was renovated and both parties made non-financial contributions to the renovation. Mr Taffner estimates the total cost of renovations at $30,000.00, of which $10,000.00 was by way of financial contribution from Ms Taffner’s parents. This property was sold for $660,000.00 in May, 2013. Proceeds of this sale “were applied to pay out the balance of the loan” for the property at F Street, Suburb G.
Mr Taffner purchased the H Street, Suburb J property in 2006. Until that time the rent from the V Street, Town W property was received into his bank account and applied towards the loan repayments on the V Street, Town W property. He funded any shortfall in loan repayments from his income. After purchasing the H Street, Suburb J property any shortfall in respect of loan repayments was funded from the parties’ joint accounts.
The H Street, Suburb J property was purchased for $846,000 and was funded by a loan for the full purchase price. Security was provided by the three properties that the parties owned between them at that time together with the H Street, Suburb J property. The loan was repaid using the parties’ incomes and the rental received from properties.
The parties have and have had, the benefit of the income generated by the H Street, Suburb J property of approximately $8,000 annually although following separation, Mr Taffner arranged for that income to be paid into an account controlled by him.
Ms Taffner is a professional and has been in that capacity since or before the parties met in 2002, though it is not apparent when she began the role. Her role as a professional initially provided income of $45,000 annually, and now provides $500 weekly.
Ms Taffner ceased full-time work shortly prior to the children’s birth. Thereafter she undertook some part-time work but the principal responsibility for earning income for the family fell to Mr Taffner. As he points out in his evidence he has always had the capacity to earn at least 2 ½ times per annum more than Ms Taffner.
Prior to separation, Ms Taffner received financial contributions of $68,434.00 from her parents as evidenced in paragraphs 84-89 of her 5 November 2019 affidavit, further annexed at T15 - 19.
Following separation, the parties agreed on an equal time arrangement for the parenting of their children. Thus, they shared equally the accommodation responsibilities for the boys. In terms of qualitative assessment of parenting contributions these parents both evidence significant efforts to provide for and engage with their children and each other. Both parents afford time to the raising of the children, despite their different application. Both have consistent assistance of their friends and family. There is nothing particular to distinguish their contributions in this regard. I disagree with the assertions of Mr Taffner that Ms Taffner contributes less to the raising of the children through the revocation of emotional connection. Expressions of frustration, as Ms D indicated in her report, do not demonstrate lack of emotional provision or lack of contribution.
Both parents have made contributions to the boys’ educations. The boys, as of January 2018 have been attending private school, which at the time was paid for jointly by the parties. As of 10 October 2018 Ms Taffner wished to withdraw the boys from their current private school due to the expense. Mr Taffner asserts the importance of the continuity of the schooling. Somewhere in the unsuccessful mediation of 10 June, 2019 Ms Taffner signed an application for the boys to attend their current school. A figure of $18,516.00, the costs of the boys’ 2019 education, was supposedly agreed to be shared at that mediation. The parties have jointly contributed $4,974.00 to the fees. Mr Taffner has contributed $6,771.30. Mr Taffner asserts Ms Taffner has refused to contribute. It is contended the remainder of the fees are outstanding.
Both parties came into their relationship with some assets. Whilst there was a focus by the parties on the net value of those assets at the time the parties commenced their cohabitation, the real question is the value that those assets brought to the parties’ relationship and the improvement of their financial circumstances. On Mr Taffner’s case Ms Taffner had little by way of equity in her real property. She contends that she had significantly more. What is important, however, is that the existence of that property has permitted the parties to expand their assets through the purchase of other real properties, the borrowings for which were secured over Ms Taffner’s real property. That property commenced to return to the parties an income when they purchased their first joint property and moved into it. The wife’s real property continues to exist in the asset pool. It is a significant contribution by her notwithstanding that it was introduced more than 18 years ago.
The husband contends that the H Street, Suburb J property is a significant contribution by him, but the view I take is that it is a contribution by both of these parties. It is a matter of financial planning that the parties came to purchase the property in Mr Taffner’s name only rather than in joint names. But the evidence demonstrates that it was plainly a joint purchase by them. Ms Taffner contributed to its purchase significantly by permitting her Suburb G property to be used as security for borrowings in respect of the H Street, Suburb J property.
Counsel for Ms Taffner argued that I should assess the parties’ contributions to their superannuation entitlements separately to the assessments carried out in respect of the non-superannuation assets. That is the preferred course: C & C (2005) FLC 93-220 at 79,646.
Here, the only evidence about the parties’ superannuation interests at the time they commenced their relationship is Mr Taffner’s assertion that he had about $15,000 in superannuation. There is no corroborative evidence about that. Otherwise the parties have accumulated their superannuation over the course of their relationship though some of it has more recently been accumulated post separation. Just how much, it is impossible to say on the evidence. Given the state of the evidence about the parties’ superannuation, I am unable to make the appropriate assessments required in respect of a superannuation pool if it was to be separately considered. I note that Mr Taffner does not contend for a “two pools” approach. In the circumstances, I assess the parties’ contributions to their superannuation and non-superannuation assets as one.
Counsel for Ms Taffner argues that I ought to find that contributions should be assessed as 60/40 in her favour as at the date of the trial. He submits that I should assess the parties’ contributions up to the date of their separation as 55% in Ms Taffner’s favour having regard to her substantial initial contributions. It is then suggested that Mr Taffner’s use of the H Street, Suburb J income for his own purposes following separation should mean that she should receive an assessment of 60% by way of contribution in her favour. However, I reject those arguments.
The wife’s initial contributions and how that has been used by the parties over the course of their relationship is important – it should attract some weighting in her favour – but otherwise the parties’ contributions should be seen to be equal. Whilst post separation the parties have behaved poorly in terms of the way in which they have dealt with each other and their financial resources, I am not satisfied that those matters should sound in the assessment of the parties’ contribution based entitlement.
Counsel for Mr Taffner argues that I ought to find that contributions as at the date of the trial are equal.
In my assessment contributions ought to be assessed 52% in Ms Taffner’s favour and 48% in Mr Taffner’s favour. The introduction by her of her real property has been a significant benefit to these parties for the reasons that I have set out above. It is something which ought to be reflected in the assessment notwithstanding that their relationship has spanned more than 16 years.
On that basis, Ms Taffner is entitled to $1,144,512.55 which I would round to $1,144,500 and Mr Taffner, the balance.
Sections 79(4)(d), (e), (f) and (g)
Neither party suggests that any particular order that I might make for property adjustment in this case will have an effect upon their earning capacity.
The parties’ submissions concerning any adjustment to the contribution based assessment focused upon a disparity in the parties’ income and their income earning capacity. On the evidence there is plainly a significant income disparity and disparity in their income earning capacity between these parties.
Mr Taffner is 46 years old. He has suffered some mental health issues in the past but these do not seem to have continued. He claims, however, to have other health concerns described through paragraphs 177-186 of his affidavit of 4 November 2019. He asserts that there are “valid concerns about [his] health and [...] ability to earn an income as a professional”. However, I do not accept his assertions about those matters. There is no medical evidence before me which would assist me to reach any conclusions about his income earning capacity and whether that is in jeopardy because he can no longer work as a professional. There is in evidence a letter from his employer dated 28 October 2019. It suggests that Mr Taffner has undergone a medical assessment and makes reference to “partial anomalous pulmonary venous drainage”. There is no explanation as to what that is or in what way it might affect Mr Taffner’s employment. Indeed, Mr Taffner’s own evidence is that he does “not know what the consequences will be for [his] employment”.
I conclude that Mr Taffner will continue to be employed as a professional with Employer U. As at the date of the trial his gross salary was $154,065 per annum. I am satisfied he will continue to earn at that rate. He says that until the end of 2025 when his children complete year 12 at school his actual gross salary will be approximately 5 to 10% less than the amount normally allocated to him by Employer U because of the need to take leave to care for the children during school holidays. Mr Taffner also receives additional income from his property at H Street, Suburb J which amounts to approximately $8000 net per annum.
Ms Taffner is 49 years old and works as a professional. She earns about $500 gross per week in that role. She receives income from her rental property of approximately $435 weekly, government benefits, being carer allowance and family assistance averaging $64 and $57 per week respectively and child support which she asserts is less than required at $231 weekly.
The parties have weekly expenses that they have each set out in their financial statements. Neither were challenged on those expenses.
Both parties have care of the children. Mr Taffner contended that if I was to make the parenting orders for which he argued, it would be appropriate to adjust the parties’ contribution based entitlement to take that into account. However, given my view that the best interests of these children require them to live in a week about arrangement between the parents, no occasion for an adjustment to the assessment for that reason arises.
Counsel for Mr Taffner urged on me to take into account the fact that Mr Taffner, with the parties’ agreement had been paying private school fees and the parties’ private health cover. I have not lost sight of that fact but it is the parties’ earning capacity which is under consideration and his earning capacity will remain long after these children have left school.
Mr Taffner has and continues to pay child support. Initially he contributed $1,265.33 per month, but at some point due to “adjustments for actual income” altered his contributions to $1,004.50 per month. He has paid at least half of the children’s school fees.
I accept the submissions of counsel for Ms Taffner that the disparity between the parties’ income and their earning capacity demands an adjustment to the parties’ contribution based entitlement. In my view it should be in the order of 10% or about $190,000. That is about 1¼ times Mr Taffner’s gross annual earnings, something which, given the disparity in their earning capacity, is appropriate.
On the basis of those findings, Ms Taffner is entitled to receive $1,334,500 ($1,144,500 + $190,000) or 60.63% of the parties’ net property. Mr Taffner is entitled to the balance of $866,485.68.
Presently, Ms Taffner has in her possession the following:
K Street, Suburb G (W) $475,000.00 Motor Vehicle 1 (t) $2,350.00 Acc No. ending ...6 (W) $2,976.50 Acc No. ending ...8 (W) $30,686.50 Acc No. ending ...3 (W) $528.87 Acc No. ending ...2 (W) $679.70 Acc No. ending ...3 (W) $686.73 Acc No. ending ...6 (W) $471.12 M shares (W) $6,732.20 N shares (W) $2,400.00 Jewellery (W) $7,015.00 Furniture and Chattels at H Street, Suburb J $9,000.00 Furniture and chattels (W) $7,000.00 Super Fund O (W) $48,300.65 $593,827.27 Less: Mortgage on K Street, Suburb G (W) $159,483.53 $434,343.74
No submissions were made to me about the form of order that should be made aware property adjustment the forms of order and proposed by the parties in the case outline is a not self-explanatory. Both presuppose that the H Street, Suburb J property should be sold, but it is unclear why that needs to happen. The husband’s interest in the wife’s residence should be transferred to her. It does not appear that that property is encumbered although it may be cross collateralised against the H Street, Suburb J property – it is not clear from the evidence.
If that property is unencumbered and it was transferred to the wife then she would have net property of $1,194,343. She would require a further $140,157 to make up her entitlement something which would be achieved by superannuation splitting order.
In the circumstances, it seems to me it appropriate to seek that the parties agree on the terms of orders to give effect to these reasons and bring those terms into court within the next 21 days. In the event that the parties are unable to reach agreement about the form of order within the 21 day period, each party may provide to the court the form of order for which that party contends together with submissions in support of that form of order and the matter can be determined on the papers.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 May 2020.
Associate:
Date: 11 May 2020
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