Teasdale and Teasdale (No.2)
[2018] FCCA 3297
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
TEASDALE & TEASDALE (No.2) [2018] FCCA 3297
Catchwords:
FAMILY LAW – Parenting – best interests of children – financial agreement – application by husband to set aside agreement – financial agreement set aside – property adjustment orders made.
Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D, 75, 79, 90G, 90K
Cases cited:
Hoult & Hoult [2013] FamCAFC 109
Manner & Manner [2015] FCCA 3043
Lotta & Lotta [2016] FamCA 50
Applicant: MR TEASDALE
Respondent: MS TEASDALE
File Number: PAC 3041 of 2013
Judgment of: Judge Newbrun
Hearing dates: 31 July, 1-2 August, 23-25 October 2017, 6 July 2018
Date of Last Submission: 14 August 2018
Delivered at: Parramatta
Delivered on: 23 November 2018 REPRESENTATION
Counsel for the Applicant: Mr Breeze
Solicitors for the Applicant: Michael Vassili Barristers & Solicitors
Counsel for the Respondent: Mr Battley
Solicitors for the Respondent: [omitted]
Counsel for the Independent Children's Lawyer: Ms Snelling
Solicitors for the Independent Children's Lawyer: Stephen W Bell & Associates ORDERS
Parenting
(1)That all previous parenting Orders be discharged.
(2)That the husband have sole parental responsibility for children [X] born 2006 and [Y] born 2009 (‘the children’), subject to the husband advising the wife of any decisions affecting the long term welfare of the children at least 14 days prior to any change.
(3)That the children live with the husband.
(4)That the children spend time with the wife as follows:
(a)In week one and each alternate week thereafter from after school Friday to the commencement of school the following Tuesday.
(b)In week two from after school Thursday to the commencement of school the following Friday.
(c)For half of all school holidays being the first half in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
(d)If the children are not otherwise living with the wife pursuant to Orders 4(a), 4(b) or 4(c) on each child’s birthday from after school to 7 pm if the birthday falls on a weekday or from 2 pm to 8 pm should the birthday fall on a weekend.
(e)Such other times as agreed between the parties.
(5)For the purpose of Order 4(c) the first half of the school holidays commences after school on the last day of term and concludes at noon on the Saturday closest to the middle of the school holiday period and the second half of the school holiday period commences at noon on the Saturday closest to the middle of the holiday period and concludes at noon on the day before the children’s first day at school in the new term.
(6)That the parties will independently attend upon a parenting course nominated by the Independent Children’s Lawyer as soon as practicable.
(7)That the wife will attend upon a psychologist as recommended by the Independent Children’s Lawyer to undertake therapy as recommended by Dr R and the wife has leave to provide the expert’s report to the psychologist.
(8)That the Independent Children’s Lawyer will provide in writing to the parties details of appropriate parenting courses and psychologist or therapist selected by the Independent Children’s Lawyer for counselling and support and such details are to include the name, address, availability and costs of any of the chosen therapist.
(9)That the wife will comply with the selected therapist’s reasonable directions.
(10)That the wife will do all acts and things to obtain, if applicable, any Medicare rebate in respect of her proposed therapy.
(11)The parties will facilitate the children telephoning the other party in the event the children or either of them express a wish to do so.
(12)The parties will keep each other informed of their mobile and landline telephone numbers and an email address to be used for the purposes of parenting issues only and advise of any change within 7 days.
(13)That this Order is sufficient authority for the schools the children from time to time attend to give each parent information about each of the children’s educational progress and other school related activities and supply each parent with copies of school reports, photographs, certificates and awards obtained by the children at the requesting parent’s cost and both parents are at liberty to attend any school events such as parent/teacher interviews, sports carnivals or productions.
(14)That the parties inform each other in relation to:
(a)The enrolment of the children into extra-curricular activities including any groups and associations;
(b)The children playing or being involved in any sporting activity or tuition and attendance at sports camps;
(c)Any important homework assignments, projects or school excursions.
(15)That each parent inform the other of any change to their residential address within 7 days of such change.
(16)That each parent keeps the other parent informed of the names and addresses of any and all medical practitioners and therapists who are involved in treating or caring for the children.
(17)Should either child suffer any illness or medical emergency:
(a)The parent with the care of the child shall as soon as reasonably practicable, and at least within 12 hours, inform the other parent of any serious medical condition, health issue or illness suffered by the child, requiring the child to be absent from school;
(b)In the event there is a medical emergency requiring either child to be hospitalised, notification to the other parent shall be made forthwith.
(c)The parent with the care of the child shall supply to the other parent the name and contact number of any medical practitioner upon whom they have attended with the child.
(18)That these Orders are authority for any treating medical practitioner, specialist or dentist to release the child’s medical information to each parent, excluding therapeutic counselling subject to any strong wishes of the children to the contrary.
(19)That the husband and wife each refrain from:
(a)Denigrating or criticising the other parent to the children or allowing any third person to denigrate or criticise the other parent within the presence or hearing of the children;
(b)Discussing with the children these proceedings (save and except for the effect of the terms of these Orders).
Property
(20)That the Financial Agreement entered into by the parties on 5 November 2012 pursuant to section 90C of the Family Law Act 1975 be set aside.
(21)That the total monies held by the wife’s solicitors in trust for the parties in the sum of approximately $160,111.81 be divided equally between the parties.
(22)That the total monies held in the disputed trust account of Company A trading as Company B in the sum of $46,461.55 with Bank 1 be divided equally between the parties.
(23)That the parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.
(24)That other than as otherwise set out in this agreement, the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
(25)That the Respondent and Applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
(26)That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
(27)That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;
(d)All insurance policies are to become the sole property of the owner named hereon; and
(e)Any party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(f)Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Teasdale & Teasdale (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTAPAC 3041 of 2013
MR TEASDALE Applicant
And
MS TEASDALE Respondent
REASONS FOR JUDGMENT
Introduction
1.These final parenting proceedings relate to the children [X] born 2006 and [Y] born 2009.
2.This was also the hearing of the husband’s application to set aside a financial agreement made between the parties on 5 November 2012 (“the financial agreement”), which is opposed by the wife.
3.The husband submitted that there were two bases on which the financial agreement should be set aside.
4.Firstly, the husband contended that the financial agreement should be set aside pursuant to section 90G(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) in that it was contended that the independent legal advice, referred to in that subsection, had not been given to the husband, and/or that the husband did not understand the solicitor purporting to give such advice because the solicitor spoke to him in English and the husband needed a [language omitted] interpreter.
5.And secondly, the husband contended that the financial agreement should be set aside pursuant to section 90K(1)(d) of the Act, in that since the making of the financial agreement, a material change in circumstances had occurred as a result of the children coming into the husband’s primary care, and that by reason of such change he would suffer hardship if the financial agreement was not set aside.
6.At the hearing, the parties adduced evidence relating to property adjustment in the event that the financial agreement was set aside.
Parties’ proposals
7.The husband’s parenting and property proposed Orders were set out in his Further Amended Initiating Application filed on 18 October 2016.
8.The wife’s proposed parenting and property Orders were set out in her Response filed 6 July 2017.
Material relied upon
9.The husband relies upon the following documents:
a)Further Amended Initiating Application filed 18 October 2016;
b)Affidavits of Mr Teasdale filed 12 July 2017, 16 October 2017, 15 February 2018, 4 July 2018;
c)Affidavit of Mr A filed 18 May 2016;
d)Affidavit of Mr J filed 24 July 2017;
e)Financial Statement of Mr Teasdale filed 12 July 2017;
f)Outline of Case for the Applicant filed 28 July 2017;
g)Written submissions of the Applicant filed on 27 July 2018.
10.The wife relies upon the following documents:
a)Response to Further Amended Initiating Application filed 6 July 2017;
b)Case Outline of the Respondent wife filed 24 July 2017;
c)Affidavit of Dr T filed 6 July 2017;
d)Affidavits of Ms Teasdale filed 6 July 2017 and 20 December 2017;
e)Affidavit of Mr C filed 27 July 2016;
f)Financial Statement of Ms Teasdale born 2017;
g)Written submissions of the Respondent filed on 15 August 2018.
11.The following exhibits were tendered:
a)Notice of Assessment – year ended 30 June 2013 in relation to the husband (Exhibit A);
b)Notice of Assessment – year ended 30 June 2014 in relation to the husband (Exhibit B);
c)Income Statement Centrelink addressed to Mr Teasdale dated 14 July 2017 (Exhibit C);
d)Family Report of Dr R dated 30 October 2015, and Supplementary Report dated 27 July 2017 Exhibit D);
e)Bank Statement 5, Account Number [number] (Exhibit E);
f)Bank 2, loan application & letter addressed to Mr Teasdale (Exhibit F);
g)NAPLAN Student Report and Additional Student Report 2017 for [Y] (Yr 3), and Additional Student Report for [X] 2016 (Yr 5) (Exhibit G);
h)Binding Financial Agreement dated 5 November 2012 (Exhibit H);
i)Sleeve 28, Mr M records re: Mr Teasdale (tab A15) (Exhibit I);
j)Transfer document dated 23/11/12 for Folio Identifier (Exhibit J);
k)Letter from Mr Vassili to husband dated 25 July 2017 (Exhibit K);
l)Sleeve 8, Bank 2 (tabs f3, four pages) (Exhibit L);
m)Sleeve 1, Medical Centre (tab F2) (Exhibit M);
n)Sleeve 5, Medical Centre (Tab F1) (Exhibit N);
o)Sleeve 53, Local Court (tabs f4 & f5) (Exhibit O);
p)Balance Sheet headed “W”. NB – the handwritten amendments in red are not agreed to by the husband (Exhibit P);
q)Tender bundle 1 2 and 3 respectively of affidavit by Mr Teasdale filed 4 July 2018 (Exhibit Q);
r)Independent Children’s Lawyer’s (“ICL’s”) proposed Minute of Order (Exhibit R).
Parenting
Evidence
12.The husband was born on 1973 in [country omitted] and migrated to Australia in 2003. The wife was born on 1975 in [country omitted] and she migrated to Australia in 1982. Both parties are Australian citizens.
13.The parties commenced cohabitation in 2003 in [country omitted] and were married in 2003 in [country omitted].
14.The parties separated on a final basis in November 2010. After separation, the children remained in the wife’s primary care. The children spent time with the husband post separation to December 2014 on Sundays for about ten hours.
15.On two occasions in 2013, the wife was very sick, and she asked the husband to care for the children for brief periods.
16.In November 2014, the wife dropped the children off to the husband’s [business] on Thursday without warning, and did not pick up the children until the following Sunday.
17.On 7 December 2014, the husband picked up the children from the wife’s home. The husband then received a text message from the wife stating that from then on the children would be staying permanently with the husband. The wife requested that the husband would now look after the children. At that time the wife was suffering from depression.
18.The children lived with the husband on a full time basis from 7 December 2014 until 3 March 2015. During this period the wife contacted the children on three occasions.
19.In January 2015, at one point, the husband dropped off the children to the wife in order to facilitate time with the children. The wife had the children at this point for about three hours and then telephoned the husband requesting him to pick up the children.
20.On 3 March 2015, the wife came to the husband’s residence and took the children. The husband then approached this court and on 17 March 2015 recovery orders were made providing for the children to be returned to the husband’s primary care.
21.From May 2015 until April 2016, the children spent supervised time with the wife. In about April 2016 the children commenced unsupervised time with the wife. The children thereafter spent time with the wife every second weekend from Friday after school to Monday before school, and in the off week on Tuesdays from after school to 6:30 pm.
22.The child [X] attends [School K], and is in Year 7. The school is located in Town A which is a five minute drive from the husband’s house. The child [Y] is presently in Year 4 and attends School L. This school is very close to the husband’s [business].
23.The wife is currently living at Suburb D in a home unit. The wife has informed the husband that she is living alone.
24.In [date] 2017 at a [store], the wife approached the husband and was verbally abusive. The husband was scared, observing the wife to look angry, with her eyes wide open and her hair all out and honeycombed. The wife conceded that she was angry at this time. However, she maintained that she was particularly angry at the husband for having previously grabbed the eldest child by the throat. She stated that her behaviour at that time was not acceptable and she regretted certain words that she had said to the husband.
25.In [date] 2017, the wife approached the husband at the husband’s residence and verbally threatened him. The husband then went to his solicitors and domestic violence proceedings were commenced in the Local Court in [date] 2017. An interim order was made against the wife without admissions. Those proceedings were later withdrawn at the insistence of the husband.
26.The husband acknowledged that the children love the wife. He believes the wife loves the children. He wants the children to see the wife and he has always supported this occurring.
27.The husband asserted that the communication from the wife to himself is poor. He stated that in 2017, during school holidays, he telephoned one of the children who was with the wife. He asked the child if he could speak to the wife. The wife came on the telephone and proceeded to speak to the husband for five minutes without giving the husband any chance to reply to the wife’s words, and then ended the phone call. The husband confirmed that the last time before this conversation that the parties spoke civilly to each other was in 2012.
28.The husband stated that the current arrangement for the children to spend time with the wife was working well. The husband confirmed that the eldest child stated that she wanted to stay overnight with the wife on the Tuesday in the off week. The husband asserted that he had doubts that the wife, if spending Tuesday night with the children in the off week, would be able to take the children to school the next day. He stated that if the children wanted to spend such Tuesday night with the wife in the off week then he would be happy.
29.The husband stated that the house he lived in was also occupied by his sister Ms K. She was aged 27 years and she was single. Her tourist visa enabled her to stay in Australia for two years. The husband asserted that she was able to extend her visa. He stated (on [date] 2018) that seven to eight months of her visa had elapsed. He stated that the children had a very good relationship with his sister.
30.The children speak both English and [language omitted]. Their English is better. The husband has no difficulty communicating with the children in English as they use words in everyday life. The husband asserted that he did not have much problem assisting the children with their homework. If they need help, they get help from the husband’s sister. The husband confirmed that the wife’s English was better. She could help better with homework.
31.The husband had no concern as to the children spending telephone time with the wife provided it did not interfere with their homework.
32.The husband asserted that he works four long days, on which days his sister picks up and takes the children home from school. He agreed that these long days could be from 8:30 am to 9:30 pm or 10 pm.
33.The husband agreed that he was dependent on his sister both at home and at work.
34.The husband asserted that the children had not missed out on any activity or school function due to his work hours and his new business.
35.The husband informed the Court that the children spent about forty five minutes to one hour in his [business] each day.
36.The wife asserted that she is prescribed medication for depression and mood stabilisation.
37.The wife agreed that she had been treated by a psychologist in 2014 for major depression. The wife stated that her depression has gone up and down. She confirmed seeing Dr T, psychiatrist, regularly from [date] 2015. She found these proceedings extremely stressful.
38.The wife conceded that the drive from her residence in Suburb D to the youngest child’s school in Suburb E takes about forty five minutes in bad traffic. She conceded that this could result in the children spending ninety minutes travelling by car with the wife.
39.The wife conceded that she could not communicate with the husband in relation to the children. The wife stated that she tended to raise her voice and she was a bit passionate. She stated that she tended to take the upper hand with the husband and that meant that she took a strong stance with him. She stated that she communicated with the husband through the eldest child. She agreed that this was not appropriate.
40.The wife stated that she had lost her driver’s license more than once. She had been suspended a couple of times due to loss of demerit points, most recently about one year ago. She was suspended for three months.
41.The wife stated that she was very capable of working despite her depressive illness. She stated that she hoped to get long term full-time employment. She stated that if she was in full-time employment until 5pm each working day, she would arrange for the children to go into after school care which had previously worked well and which the children would like.
42.The wife confirmed that she was not working now.
43.The wife confirmed that her apartment at Suburb D was through [Housing] which is a government funded project. She had a lease. She was waiting to re-sign a lease in [date] 2017 for one year. She confirmed that she could maintain her housing in that apartment for the foreseeable future.
44.The wife, when it was suggested to her that her treating psychiatrist Dr T was not a counsellor, stated that “we don’t have enough time to talk”. The wife asserted that she intended to engage in counselling after these Court proceedings.
Dr T, psychiatrist
45.This psychiatrist provided an Affidavit filed 6 July 2017, attaching his report in relation to the wife dated 4 July 2017.
46.His report stated, inter alia, that he reviewed the wife on 3 July 2017, and had been seeing the wife intermittently about every six to eight weeks. He stated that the wife remained compliant on her medications, being an antidepressant and a mood stabiliser.
47.The doctor stated that from a purely medical point of view, the wife was adequately controlled and her previous symptoms of mood dysregulation “around a likely personality dysfunction” were adequately controlled.
48.The doctor stated that the wife was appropriately distressed, given that she continued to have difficulty getting the kind of access she would like to the children. The doctor stated that from a strictly medical point of view, in his opinion, there would be little risk in the wife having greater access to the children.
49.The doctor was cross-examined.
50.The doctor stated that he first met the wife in about early 2016 when he conducted an assessment of her. He had prescribed medication for the wife. The doctor stated that he viewed the wife as having bipolar II disorder, with traits of borderline personality disorder.
51.He stated that the wife had trouble regulating her mood, especially in relation to her relationships. He noted the wife’s history of self harm and running away in her youth. He stated that for the most part the wife was reasonably functional. The prescription of the mood stabiliser Lamotrigine was to assist in improving the wife’s mood and impulse control. He was of the view that the present two medications were “containing” the wife, and in this context he observed that there had been no crises.
52.The doctor stated that in his view the wife had limited capacity for ongoing therapy. He stated that his sessions with the wife were productive from a therapeutic point of view. He stated it was difficult for him to do any analysis. He did not believe that it was necessary for the wife to see him regularly. He stated that the key reason for the wife seeing him was to reinforce the benefit of the wife staying on medication. He stated that the wife certainly needed to be on the medications, and the wife’s assertion that he had previously advised her that she would not need to be on the medications after these Court proceedings was not accurate; in this context, the doctor stated, the wife lacked insight.
53.The doctor stated the wife was capable of parenting. However, in other areas, including her work, and relationships, she was less capable. The doctor stated that if the wife had greater access to the children, that would help her psychologically.
54.The doctor stated that if the Court was to rule against the wife’s parenting proposals, and the wife was to go off her medications, then it was possible that the wife would become more highly distressed and disorganised. In re-examination, the doctor stated that the wife was disorganised. She was not an attractive patient to see regularly. He confirmed that he saw the wife every three months and he reinforced to her the need to take medication.
Family Report writer, Dr R, child, adult and family psychiatrist
55.Exhibit D was the two reports of the Family Report writer, the first dated 30 October 2015, and the second, an updated report, dated 27 July 2017.
56.The first Family Report noted that the interviews between the Family Report writer and the parties and the children occurred on 14 August 2015.
57.The Family Report writer noted the wife’s application that she wanted the children returned to her care, for the parents to have equal shared responsibility, and for the husband to have fortnightly weekend contact.
58.The Family Report writer recorded that the husband told him that the wife had transferred the care of the children to him on 7 December 2014. “She texted me. She gave up the kids. I gave her the old house and the car. I’m not sure why she gave up the kids.”
59.The child [Y] told the Family Report writer, inter alia, that she liked seeing the wife, and that they enjoyed spending time together. She spoke positively in relation to the husband.
60.The child [X] told the Family Report writer, inter alia, that she liked spending time with the wife and the husband. She stated that she would like to spend more time with the husband because he worked a great deal. She would like to have some more time with the wife.
61.The wife gave a history of her childhood and teenage years to the Family Report writer. At one point the wife had missed a lot of school. She developed oppositional defiant tendencies. At the age of fifteen she attempted suicide and was placed in Hospital. She lived with a foster family in [Town B] for a period of time. There was another foster family. In her twenties she suffered some depression. She went to a private hospital. The wife was depressed when she was pregnant with [X].
62.The wife told the Family Report writer that she has mainly worked in [occupation omitted] positions. The longest job she had was for three years at [employer omitted] from the age of 28. She spent two years with [employer omitted]. The longest that she had been unemployed was in the last two years. She had been focusing on the children. However, caring for the children and working was exhausting her, and she told the Family Report writer that she was “burning out”.
63.The wife told the Family Report writer that the parties had too much stress with having children, mortgages, financial pressures and workload. The formal separation was in 2011. Then eventually the wife was not able to care for the children. The load was too great. She was trying to cope financially. There was a financial crisis. “He cut paying me.” In December 2014 the children then went to live with the husband. The wife was struggling to cope with the pressure and decided to ask the husband to care for the children to help her. She was unwell. The wife told the children that they would stay with the husband whilst she was getting better.
64.Following the wife only seeing the children on Sundays, the wife became depressed. On two occasions she sent text messages to the husband. The wife told the Family Report writer that on one occasion she stated that she would cut the husband’s throat in November 2014 when she was angry, with the Family Report writer stating that clearly this was not the wife’s intention.
65.The family report writer observed the children with the wife; there was a clear attachment and bond between the wife and the children.
66.Under the heading “Opinion”, the Family Report writer stated, inter alia, that whilst the husband has been very focused on his work, he had also been very attentive to the children. It was clear that the children had a very close relationship with the husband and had been developing well in his care. The husband impressed the Family Report writer as very organised, focused and confident. The Family Report writer noted that the children wanted to have more time with the husband, and had some concerns about being with a nanny (whilst the husband was at work). He observed that the children were developing well in the husband’s care. The husband supported a relationship between the children and the wife. He noted that the children would like to have more time with the wife.
67.The Family Report writer formed the view that overall the husband had a stable personality and there was no evidence of any personality disturbance. There was no indication to the family report writer that he was an unacceptable risk to the children.
68.As to the wife, the Family Report writer, having referred to the wife’s attempt at suicide at the age of fifteen, stated that the wife had probably suffered significant self-esteem damage, oppositional defiance and then adolescent depression.
69.The Family Report writer stated that the pressures became too great for the wife following the birth of the children, with the husband working and having the [businesses], and the wife trying to care for the children and trying to work and study.
70.The Family Report writer noted that with the breakdown of the relationship, the wife intended to care for the children. She was unable to continue working and caring for the children. It seemed to be a revolving circle of excessive stress. She became emotionally unwell and then asked the husband for help. The husband took over the care of the children. She became quite depressed as the load and responsibility was too great for her to manage.
71.The Family Report writer stated that the major difficulty was that the wife was finding it difficult to care for herself as well as the children, and the excessive load of working, caring and providing, was enormous.
72.The Family Report writer stated his belief that the wife struggles to care for the children on her own, and without substantial support. She finds it difficult to care for herself adequately, as well as care for the children for extended periods of time.
73.As to the mental health of the wife, the Family Report writer stated, inter alia, that there had been no major problems in the marriage until the pregnancy of the children. He stated that the added stress and requirements appeared to push the wife too far, and so she was unable to cope with that additional responsibility. She had at times of stress some depression. She was vulnerable to depression.
74.The Family Report writer formed the view that the damage to the wife’s self-esteem had created a dependency dynamic in her personality. The wife has needed to have strong reliance on others, and her ability to cope with stress was fragile. He therefore formed the view that there was evidence of dependent personality disorder. Although it was a matter of degree, it was difficult to be clear as to whether she would satisfy the criteria of personality disorder. The wife had had episodes of suicidal behaviour and depression when under stress, suggesting that her personality vulnerabilities were significant. He stated that clearly the wife had had significant rejection difficulties as a child. Therefore, he believed the wife’s major problem was her personality-based problem creating vulnerability to anxiety and depression when under stress.
75.Under the heading “Possible Outcomes”, the Family Report writer stated, inter alia, that should the children remain in the care of the husband, but have substantial contact with the wife, he believed that this would be a good outcome for the children.
76.He stated that as long as the time with the wife didn’t overburden her, he believed the children would benefit from having more time with the wife.
77.The Family Report writer stated that should the children be placed into the care of the wife, he believed that the wife would probably be able to care for them adequately for a period of time, such as a number of months. However, her emotional resources required to care for the children were limited, he stated. Her financial and physical resources were also limited. The Family Report writer stated his view that the wife would find it difficult to cope with the care of the children and it was likely that she would become overly dependent on them, and that the children would start to feel responsible for her. Overall, he formed the view that if the wife had the primary care of the children, that this would be likely to break down or become dysfunctional after a period of time.
78.Under the heading “Recommendations”, the Family Report writer stated, inter alia, that there be fortnightly weekend contact with the wife, and also half the school holidays. His major concern was that if the wife had too extended a period of time, that she would then find it difficult to cope with the load. He believed that as the wife had been able to sustain responsible jobs in the past, she should be able to manage weekend contact. He also recommended that the parents should be capable of sharing parental responsibility.
79.The updated report of the Family Report writer was dated 27 July 2017. He had reinterviewed the parties and the children on 7 July 2017. He had read certain updating material, including the Affidavit of the wife of 6 July 2017.
80.The Family Report writer noted that the wife was seeking to spend seven nights per fortnight with the children.
81.The Family Report writer noted the progress report from Dr T, psychiatrist, of 4 July 2017.
82.The husband told the Family Report writer that currently the children stayed with the wife from Friday after school until Monday before school each fortnight. On Tuesday afternoons they spent three hours from 3:30 pm until 6:30 pm, and they spent half school holidays with the wife.
83.The child [Y] told the Family Report writer that she was happy seeing the wife and having regular contact. She did not have any comments or wishes to change things. As to staying overnight on the Tuesdays in the off week, this child commented, “I don’t know probably”.
84.The child [X] told the Family Report writer that she was happy with the second weekends. She believed it would be good to have a sleepover on the Tuesday night. The Family Report writer stated that reasonable weight could be given to this child’s opinion.
85.The Family Report writer interviewed the wife. The wife now had accommodation at Suburb D under a housing subsidy scheme. It cost her $70 a week. The dilemma that the wife had, the Family Report writer stated, was that if she began to work she would then need to pay a much higher rent which would be difficult for her. He referred to the wife’s financial difficulties. It was noted that if the wife took on a job her rent would double, even though it would be beneficial to be working. Previously the wife had worked. However, the Family Report writer noted that if the wife worked full-time it would make it difficult for her to have the children and this was her dilemma.
86.The wife told the Family Report writer that her main wish was to have the husband out of her life but in the children’s lives. She stated that she was tired of the husband; she had to battle him, and it was relentless.
87.The wife told the Family Report writer that she could come across to people as angry.
88.The husband was interviewed by the Family Report writer again. He apologised to the child [X] for having hurt her neck following an argument between the children. The husband told the Family Report writer that he felt bad about the incident.
89.The Family Report writer interviewed the parties together again. He observed and uncomfortable irritation between them. At one point the parties continued to argue and it became heated.
90.Under the heading “Opinion”, the Family Report writer stated that he was dismayed that the wife hadn’t engaged with the psychological treatment. He noted that unfortunately the wife hadn’t to date undertaken some of the more substantial psychological treatments that he had suggested, in addition to medication, to try and enhance the wife’s self-esteem, self-care and competence.
91.The Family Report writer stated that the main psychiatric diagnosis was that the wife suffered from a persistent depressive disorder. There was major depression which was currently in remission treated by medication, and a dependent personality disorder underlying her mood problems. He stated that the antidepressant and mood stabiliser was assisting the wife to remain stable and functional, which was positive. However, to address the dependent personality difficulties and difficulty coping with stress, the wife would need to undertake more significant psychological treatments. Such intensive interpersonal therapy would take at least two years. The fact that the wife was seeing her psychiatrist every four to eight weeks and taking medication was not sufficient to address the wife’s deep-seated psychological deficits.
92.In relation to the wife’s parenting capacity, the Family Report writer stated, inter alia, that he did have concerns about the wife’s ability to provide for the psychological and social needs of the children. Inter alia, this would require the wife to be able to manage the ongoing stress and responsibility of two girls, who themselves had a degree of stress, were at times oppositional and tended to argue with each other. He did not believe that the wife would be up to caring for the children on a full-time basis. He stated that even a shared basis would be stretching the wife’s abilities to cope. The Family Report writer stated that it would be much more constructive for the wife to accept that she could have a powerful additive effect on the children’s upbringing by supporting the husband and the children and enjoying a high quality substantial contact arrangement, similar to what she was currently experiencing.
93.Again the Family Report writer spoke positively of the husband’s relationship with the children. The Family Report writer was of the view that the children were still developing well in the husband’s care. He believed that the physical incident between the husband and [X] was an isolated incident.
94.The Family Report writer stated that currently the husband was not working. He had sold his [business] and his family was overseas, and he was waiting for his brother to come back from overseas before looking at another business.
95.Under the heading “Summary and Formulation”, the Family Report writer stated, inter alia, that the parties had been able to support each other and cooperate to a degree. There had been no breakdown in contact, however there was a lot of deep-seated resentment and anger between the parents.
96.The Family Report writer stated that the wife did not seem to understand that the children were doing reasonably well with the husband and that she needed to support him, and that in turn the husband would then facilitate a good relationship between her and the children. The wife was looking for reasons to try and undermine the husband and wanted to reclaim the children, according to the Family Report writer.
97.The Family Report writer stated that it was his view that the husband was the more capable of the two parents, and that he should continue to be the primary carer of the children.
98.He stated that unfortunately the wife had now forgotten that she was not able to cope with the load and responsibility of the children. She wanted the children to be returned to her full-time and felt angry and resentful towards the husband. There had been arguments between the parties.
99.The Family Report writer stated that should a shared care arrangement be established, he believed that this would be unsuccessful. The parents need to have a high level of sophistication and cooperation to be able to manage a shared arrangement. In addition, both parents need to have a high level of competency and emotional stability to be able to care for the children. He did not believe the wife would be able to manage a shared arrangement and the parents did not communicate and cooperate with each other well enough.
100.Under the heading “Recommendations”, the Family Report writer suggested, inter alia, that the fortnightly weekend contact and half school holiday time between the children and the wife continue. He believed that too much extended contact between the children and the wife would overload her. In place of the after-school Tuesday visits in the off week, he recommended that the children spend overnight time with the wife on this fortnightly Tuesday, which should be seen as a value-added time for the children. The Family Report writer stated that he did not have a firm view about parental responsibility. He stated that if there was more conflict than cooperation, then it may be better for the husband to have parental responsibility.
101.The Family Report writer gave oral evidence.
102.The Family Report writer stated that a shared care arrangement is good when there was a high level of agreement and cooperation between the parties and a sophisticated ability to problem solve. He stated that where parties have great difficulty in this regard he strongly recommends against shared care.
103.The Family Report writer stated that the wife felt that she was letting the children and herself down by not being the primary carer of the children. The Family Report writer stated that he would hope that the wife would see beyond that stereotype and appreciate that the children doing are doing well with that husband. That would be a good outcome for the children with the wife’s support and would be helpful for the wife.
104.The Family Report writer’s attention was drawn to his previously stated opinion that too much extended contact between the children and the wife would overload her. In this context he stated that during school term times, three nights in one week and one night in the other week would be appropriate for the children to spend time with the wife. He ultimately stated, in relation to the issue of the children spending time with the wife during half of the school holidays, that whilst he had some little concern in this regard, if the wife could prepare for it and communicate with the husband, then she should be able to manage.
105.The Family Report writer stated that his former opinions remained having considered the affidavit material.
106.The Family Report writer, in relation to the recommendation in his updating report that the wife undertake substantial psychological treatment with “ACT, DBT”, stated that ACT was Acceptance Commitment Therapy and related to assisting the patient with better management of emotional regulation. DBT therapy related to treatment of long-standing and deep-seated emotional problems, with such therapy taking longer.
107.The Family Report writer stated that it was possible to treat personality disorders. However, changing deep-seated problems required commitment from the patient. It would be difficult to maintain such therapy without financial support.
108.The Family Report writer was cross-examined by Counsel for the wife.
109.The Family Report writer stated that he had no firm view as to whether the children should spend four or five nights per fortnight (during school term times) with the wife. In this context he stated that there may be practicalities to be considered.
110.It was suggested to the Family Report writer that the wife might react adversely if the Court ordered that she only spend four nights per fortnight with the children as opposed to some greater period, which might adversely impact upon the children. The Family Report writer stated that such a possibility had to be balanced against the load (upon the wife) of caring for the children. He did not believe that whether the Court ordered four nights per fortnight or five nights per fortnight would have a significant effect on the wife emotionally.
111.The Family Report writer clarified that the wife’s mood stabiliser medication was used in relation to severe mood swings. The antidepressant medication on its own was insufficient to control such mood swings.
112.The family report writer clarified, on being questioned by the court, that the possible consequences of the wife being overloaded with care of the children included a failure to adequately care for the children, the wife may need to be hospitalised for her emotional condition, or the wife may fail to return the children. The ultimate concern was that if the wife became overwhelmed, she might become so depressed that she would feel unsafe. The main risk was that the children would feel responsible for the wife, resulting in the children starting to feel a sense of responsibility for the wife if she was not coping. If the children focused too much on the wife’s needs, that could start to deprive them emotionally.
113.The Court accepts the evidence of the Family Report writer.
Relevant legal principles
114.Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
115.In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
116.To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
a)(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)(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.
117.In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.
118.When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
119.If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
120.If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
121.If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
Best interests of the children
Section 60CC considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
122.The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.
123.Should the children remain living with the husband in his primary care, and spend time with the wife in accordance with the ICL’s proposed Minute of Order (Exhibit R) (i.e. in Week 1 and each alternative week thereafter from after school Friday to the commencement of school the following Tuesday, and in Week 2 from after school Thursday to the commencement of school the following Friday, in addition to half of each school holiday period, as well as time on the children’s birthdays), the children’s meaningful relationship with the wife should be maintained and enhanced. The expert evidence of the Family Report writer is consistent with this view.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
124.The Court refers to the expert evidence of the Family Report writer, particularly his evidence in relation to the wife. Again, the Court accepts the expert evidence of the Family Report writer.
125.Presently, the children spend time with the wife, during school term times, from after school Friday to before school Monday, and in the off week, from after school Tuesday for at least several hours, together with school holiday time.
126.The Court accepts the evidence of the Family Report writer that the husband is the more capable of the two parents and that he should continue to be the primary carer of the children. The Court refers to and accepts the reasoning of the Family Report writer in this context.
127.The wife seeks proposed final parenting Orders that she spend a total of seven days each fortnight, during school term times, with the children. There is a significant risk that the wife will not be able to cope with the demands of such care, as discussed by her treating psychiatrist and the Family Report writer (by reference, inter alia, to the wife’s mental health issues, including her dependent personality disorder which is underscored by a persistent depressive disorder, resulting in the wife becoming overwhelmed and unable to cope in times of stress), with attendant risks to both herself and the children, as referred to by the Family Report writer and the wife’s treating psychiatrist.
128.In the view of the Court, the wife should be able to cope with spending time with the children in accordance with the ICL’s proposed Minute of Order, Exhibit R. Such time, during school term times, would represent an increase in the present time that she spends with the children.
129.The Court is concerned, in relation to the children spending time with the wife during school term times, that there is a significant risk that it may be too stressful for the wife to cope with spending more than a total of five nights per fortnight with the children, with attendant risks for the wife’s emotional health, particularly depression, and thereby attendant risks to the children, as referred to by the Family Report writer. Whilst it is recognised that the conclusion of these parenting proceedings will remove one source of stress for the wife, nevertheless, looking prospectively, the wife (together with the husband) will be inevitably confronted with other stresses, such as the parenting of two vibrant growing young girls, together with the demands of managing their schooling and social activities.
130.Additionally, the wife should be able to cope with spending time with the children during half of the school holiday periods; it can reasonably be expected that such time with the children during those periods will be less stressful for the wife than her care of the children during school term times.
131.The Court refers to the incident involving the husband and the child [X], when it appears that the husband inappropriately cupped his hands around the neck of [X] and slightly lifted her the following an incident between the children. In this respect the court refers to the expert evidence of the Family Report writer, including reference to the apology given by the husband to this child at the family report interview and its positive reception by the child. The court is satisfied that this was an isolated incident and is unlikely to re-occur.
132.The above views are consistent with the expert evidence of the Family Report writer.
133.The Court gives significant weight to this need to protect primary consideration.
Additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
134.The Court refers to the children’s views as stated to the Family Report writer. The Court is not satisfied as to the reliability of the children’s views as expressed to the wife.
135.The Court gives some weight to the eldest child’s views but not significant weight. The court notes the tender age of the youngest child.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
136.The Court refers to the meaningful relationship primary consideration above.
137.The children also appear to have positive relationships with the maternal grandparents and the husband’s sister.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
138.It would appear that both parents have taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
139.It would appear that both parents have usually fulfilled their obligations in this respect.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
140.The Court refers to its discussion above under the meaningful relationship primary consideration; should the Court make final parenting Orders relating to the children spending time with the wife as discussed therein, there should be no detrimental effect upon the children’s meaningful relationship with the husband.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
141.The husband lives at Suburb M; the wife lives at Suburb D. There is no relevant practical difficulty or expense.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
142.Both parents would appear to have such capacities, whilst noting that the potential for the wife’s capacities to be adversely compromised should she be subject to excessive stress and thereby mood disturbance including depression. Again, in this context, the Court refers to the expert evidence of the Family Report writer and treating psychiatrist of the wife relating to the wife.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
143.The Court refers to the expert evidence of the Family Report writer and treating psychiatrist relating to the wife.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
144.Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
145.Both parents have demonstrated appropriate attitudes to the children and to the responsibilities of parenthood, and the Court refers to its discussion above under the need to protect primary consideration in relation to the incident involving the child [X] and the husband.
(j) Any family violence involving the child or a member of the child's family.
146.The Court refers to its discussion above under the need to protect primary consideration in relation to the incident involving the child [X] and the husband. This isolated incident involving the husband probably constituted family violence perpetrated by him towards the child [X]. Again, the Court is of the view that such conduct is unlikely to be repeated by the husband, and the Court refers to the expert evidence of the Family Report writer in this context.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
147.The incident between the parties at the [store] led to an interim Apprehended Domestic Violence Order (“ADVO”) being made in the Local Court on 26 July 2017. The protected person was the husband with the wife being the defendant. Those proceedings have now concluded and there are no current ADVO orders in place.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
148.In the view of the Court, should the Court make Orders that the children spent time with the wife as discussed under the meaningful relationship primary consideration (inter alia, a total of five nights per fortnight during school term times, together with half school holidays), as opposed to the wife’s proposed final parenting Orders, those former discussed proposed Orders will be least likely to lead to the institution of further proceedings in relation to the children. The wife’s proposed final parenting Orders would likely lead to the wife experiencing significant stress with resultant mood disturbance including depression, as discussed under the need to protect primary consideration. This would likely result in further proceedings in relation to the children.
(m) Any other fact or circumstance that the Court thinks is relevant
149.The wife, in submissions, was critical of the husband in respect to the purchase of his new business in 2017 in circumstances where the husband was not working during the course of the trial (at least up until 25 October 2017) and was able to devote himself to the care of the children.
150.The Court accepts the evidence of the husband that after the Court hearing on 25 October 2017, he was advised by a former customer that there was a business at Suburb L which was listed for sale. This business was a short time thereafter purchased by the husband.
151.It is not without relevance in this context that the Family Report writer stated in his second report dated 27 July 2017 (the husband had been interviewed by the family report writer on 7 July 2017) that currently the husband was not working. The Family Report writer stated that the husband had sold his business and his family were overseas, and he was waiting for his brother to come back from overseas before looking at another business.
152.And further, in cross examination of the husband by the ICL, he stated that he could return to work in the future; he was looking for part-time work as he is caring for the children; and if he finds work a nanny might be found.
153.The Court accepts the husband’s evidence that he is working four long days in his new business at Suburb L, and that he has the assistance of his sister in relation to this business and the children. It is helpful to the husband, as far as the care of the children is concerned, that the new business is quite close to the youngest child’s school, and a relatively short driving distance from the eldest child’s new school. His new business is also a relatively short drive from his residence at Suburb M.
154.The husband impressed the Family Report writer as very organised, focused and confident. The children developed well in the husband’s care when he was operating his previous business in Suburb M whilst the children were in his primary care. In the view of the Court, there is a significant prospect that the children will continue to develop well in the husband’s primary care.
Parental responsibility: section 61DA(1) and (2)
155.The Court refers to the parties’ historical conflict both during the relationship and after the separation. The parties continue to experience significant conflict and, in the view of the Court, are unlikely to be able to reach agreement on long-term decisions for the children in a timely fashion.
156.The Court notes the wife’s own oral evidence as to the adverse manner in which she verbally communicates with the husband.
157.Whilst the Family Report writer noted that it was pleasing that the children had not suffered significant contamination from the parents’ conflict, the Court is of the view that there nevertheless is a real risk that the children will be exposed to conflict between the parents in the event that the parents are required to seek to reach agreement in relation to long-term decisions affecting one or both of the children.
158.The husband will continue to be the primary carer of the children. The children have progressed well in his primary care.
159.It will be in the best interests of the children that the husband have sole parental responsibility for the children in relation to long-term decisions for the children, and he should be required to advise the wife of any decisions affecting the long-term welfare of the children at least fourteen days prior to any change.
160.It will not be in the best interests of the children to be subject to an equal time arrangement with the parents. The Court refers, in particular, to the expert evidence of the Family Report writer in this context. The Court’s proposed Orders in relation to the children spending time with the wife will likely constitute substantial and significant time under the Act.
Summary
161.Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following final parenting Orders:
(1) That all previous parenting Orders be discharged.
(2) That the husband have sole parental responsibility for children [X] born 2006 and [Y] born 2009 (‘the children’), subject to the husband advising the wife of any decisions affecting the long term welfare of the children at least 14 days prior to any change.
(3) That the children live with the husband.
(4) That the children spend time with the wife as follows:
(a) In week one and each alternate week thereafter from after school Friday to the commencement of school the following Tuesday.
(b) In week two from after school Thursday to the commencement of school the following Friday.
(c) For half of all school holidays being the first half in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
(d) If the children are not otherwise living with the wife pursuant to Orders 4(a), 4(b) or 4(c) on each child’s birthday from after school to 7 pm if the birthday falls on a weekday or from 2 pm to 8 pm should the birthday fall on a weekend.
(e) Such other times as agreed between the parties.
(5) For the purpose of Order 4(c) the first half of the school holidays commences after school on the last day of term and concludes at noon on the Saturday closest to the middle of the school holiday period and the second half of the school holiday period commences at noon on the Saturday closest to the middle on the holiday period and concludes at noon on the day before the children’s first day at school in the new term.
(6) That the parties will independently attend upon a parenting course nominated by the Independent Children’s Lawyer as soon as practicable.
(7) That the wife will attend upon a psychologist as recommended by the Independent Children’s Lawyer to undertake therapy as recommended by Dr R and the wife has leave to provide the expert’s report to the psychologist.
(8) That the Independent Children’s Lawyer will provide in writing to the parties details of appropriate parenting courses and psychologist or therapist selected by the Independent Children’s Lawyer for counselling and support and such details are to include the name, address, availability and costs of any of the chosen therapist.
(9) That the wife will comply with the selected therapist’s reasonable directions.
(10) That the wife will do all acts and things to obtain, if applicable, any Medicare rebate in respect of her proposed therapy.
(11) The parties will facilitate the children telephoning the other party in the event the children or either of them express a wish to do so.
(12) The parties will keep each other informed of their mobile and landline telephone numbers and an email address to be used for the purposes of parenting issues only and advise of any change within 7 days.
(13) That this Order is sufficient authority for the schools the children from time to time attend to give each parent information about each of the children’s education progress and other school related activities and supply each parent with copies of school reports, photographs, certificates and awards obtained by the children at the requesting parent’s cost and both parents are at liberty to attend any school events such as parent/teacher interviews, sports carnivals or productions.
(14) That the parties inform each other in relation to:
(a) The enrolment of the children into extra-curricular activities including any groups and associations;
(b) The children playing or being involved in any sporting activity or tuition and attendance at sports camps;
(c) Any important homework assignments, projects or school excursions.
(15) That each parent inform the other of any change to their residential address within 7 days of such change.
(16) That each parent keeps the other parent informed of the names and addresses of any and all medical practitioners and therapists who are involved in treating or caring for the children.
(17) Should either child suffer any illness or medical emergency:
(a) The parent with the care of the child shall as soon as reasonably practicable, and at least within 12 hours, inform the other parent of any serious medical condition, health issue or illness suffered by the child, requiring the child to be absent from school;
(b) In the event there is a medical emergency requiring either child to be hospitalised, notification to the other parent shall be made forthwith.
(c) The parent with the care of the child shall supply to the other parent the name and contact number of any medical practitioner upon whom they have attended with the child.
(18) That these Orders are authority for any treating medical practitioner, specialist or dentist to release the child’s medical information to each parent, excluding therapeutic counselling subject to any strong wishes of the children to the contrary.
(19) That the husband and wife each refrain from:
(a) Denigrating or criticising the other parent to the children or allowing any third person to denigrate or criticise the other parent within the presence or hearing of the children;
(b) Discussing with the children these proceedings (save and except for the effect of the terms of these Orders).
The financial agreement
Section 90G(1)(b)
162.Section 90G of the Act provides:
(1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and
(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d) the agreement has not been terminated and has not been set aside by a court.
Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.
(1A) A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties; and
(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e) the agreement has not been terminated and has not been set aside by a court.
(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.
(1C) To avoid doubt, section 90KA applies in relation to the enforcement application.
(2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.
163.The financial agreement was prepared by Mr A Aycar, solicitor. Again, the financial agreement was entered into on 5 November 2012. He provided a certificate pursuant to section 90G of the Act to the wife.
164.The Court accepts the evidence of Mr Acar, solicitor. He was an impressive witness. He had a good recollection of the relevant discussions with the husband. Where the evidence of Mr Acar is in conflict with the husband’s evidence, the Court prefers the former.
165.The following oral evidence was given by Mr Acar:
MR BREEZE: If I asked you to recount as you are in the witness box now everything that was said between yourself and Mr Teasdale, I take it the passage of time means you’re not able to?
MR ACAR: I can remember the gist of the conversation between myself and Mr Teasdale.
MR BREEZE: Right. So you can remember the gist of the conversation, but you can categorically deny two particular paragraphs that were put to you; is that right?
MR ACAR: I can categorically say that when I was being asked to prepare a BFA I took all the information down, prepared the BFA. When Mr Teasdale came to me to pick up the document he then – I think I mentioned to him them, “You’ve probably given her more than you had – than she deserves”, and he said – I think he said to me words to the effect of, “The agreement is she’s looking after the kids and I’m letting her have that much money”. I then paused and I remember saying to him, “Listen, I – my instructions are only on the BFA. I cannot put anything like that into a BFA. If you want to tie up anything with Ms Teasdale in relation to the kids you would have to go for sealed consent orders”.
…
HIS HONOUR: For what, sorry?
MR ACAR: Sorry. For sealed consent orders. And then I – I believe I ran through the cost of providing consent orders or acting on consent orders and, I think, from recollection he just wanted the matter over and done with. From memory, there was an issue – they needed the money quick for a conveyance on a [business premises] or something. Okay. And then he took the agreement and just took it over. But I was categorical with him that there’s no way I could give him what he wanted in terms of a tie up between her obligation to look after the children and if she didn’t then he gets this much money.
…
MR BREEZE: Sure. Did you say to him that it was in his best interests to sign the agreement?
MR ACAR: No, I didn’t. I left it to him to take away the instructions and not sign the agreement, and that I can’t do what he gave – what he thought – not what he thought – what he mentioned to me was an agreement between the parties.
166.Mr Acar stated that when he gathered the information from the husband and put together the financial agreement, he spoke to the husband about whether it was in his interests to agree in that manner. He stated that he just looked at the agreement wholly, whether it was in the husband’s interests or not, and told the husband that the wife was probably getting a little bit more than she deserved.
167.Mr Acar suggested to the husband that he see Mr M for independent legal advice. The solicitor stated that when he sent the husband to another lawyer, “that’s where his advice starts and ends, with that lawyer”.
168.The solicitor that Mr Acar referred the husband to for independent legal advice was Mr M, who did not speak [language omitted]. The husband went to see Mr M.
169.The Court accepts the evidence of Mr M. He impressed the Court as an honest witness endeavouring to recall an event that had occurred almost five years prior. He made concessions. Mr M was an experienced conveyancing solicitor with at least five years’ experience in preparing binding financial agreements in the context of property and conveyancing.
170.Mr M and the husband conversed in English. Mr M went through the financial agreement with him.
171.Mr M, inter alia, advised the husband that the proposed terms in the financial agreement would result in the husband being underpaid by about $30,000. The husband responded that he was happy to accept an underpayment because the wife was looking after the children. In this context, the Court accepts the accuracy of Mr M’s handwritten notes, Exhibit I.
172.Mr M explained to the husband the advantages and disadvantages of signing the financial agreement with the wife. Mr M stated that the husband’s English was not as good as his English but the husband understood what he was saying; he had formed the view that the husband did not need an interpreter.
173.Mr M went through the financial agreement with the husband line by line. He stated that, accordingly, he did not write down in his notes what was already in the financial agreement.
174.Mr M stated that he would take very seriously the act of certifying any statement which would be attached to a document in respect of family law proceedings.
175.At the outset, it is observed that the certificate of Mr M, which is annexed to the financial agreement (“Statement under section 90 G of the Family Law Act 1975”), referring, inter alia, to Mr M having provided to the husband independent legal advice prior to entering into the financial agreement as to both the effect of the agreement on the rights of the parties and “the advantages and disadvantages, at the time that the advice was provided, to my client of making this agreement”, when read with Clause 6 of the of the “Operative Part” of the financial agreement (mutual warranties, from one party to the other that each party was provided with independent legal advice as stated in the certificate), should be treated as prima facie evidence of compliance with the requirement in section 90 G(1) to provide legal advice. In this context the Court refers to the statement of their Honours Strickland and Ainslie-Wallace JJ in Hoult & Hoult [2013] FamCAFC 109 (“Hoult”) at paragraph 276:
… The certificate given by the solicitor, when read with recital “N” to the agreement, should have been treated by the trial judge at least as prima facie evidence of compliance with the requirement in s 90G(1) to provide legal advice.
176.As further stated in Hoult:
62. Importantly, however, I consider that once the party seeking to rely upon the agreement produces in evidence the certificate signed by the other party’s solicitor, there is a forensic obligation on the other party to adduce evidence which would disprove, or at least throw into doubt, the inference or conclusion to be drawn from the certificate (especially when read with the recital in the agreement to the same effect).
63. This forensic obligation is properly conceptualised as the burden of introducing evidence and should not be confused with the burden of proof as a matter of law and pleading. For a discussion of the difference see Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 especially at 167-168 per Barwick CJ, Kitto and Taylor JJ and 170-171 per Windeyer J.
…
261. As Justice Thackray highlights in considering Ground 1, once the husband produced in evidence the certificate signed by the other party’s solicitor, there was a forensic obligation on the other party to adduce evidence which would disprove or at least throw into doubt the inference or conclusion to be drawn from the certificate, and particularly when read with the recital in the agreement to the same effect (paragraph 63 reasons for judgment). It is in that light that the evidence of the wife as to whether she was given the requisite advice or not needs to be addressed.
204.The husband purchased a new [business] in Suburb L in 2017. He works four days in the [business] and has engaged and pays for his sister, in particular, to provide additional labour in the [business] to keep it operating seven days a week. The husband is also reliant upon his sister to assist with child care during the week. His sister is in Australia on a visitor visa (on [date] 2017 the husband stated that his sister’s visa would expire in eighteen months).
205.It can be inferred from the above circumstances that but for the husband’s child care obligations and need to engage and pay for such additional labour, there is a significant prospect that he would be working increased hours in his new [business] and thus increasing his own earnings. Whilst the Court has some misgivings as to the husband’s assertions that his present net weekly income in his new [business] is only some $300 per week, by reason of his failure to produce relevant financial records, this does not detract from his reduced ability to work the long hours that he was working before the children came into his primary care in December 2014 and thus increase his own earnings.
206.The husband presently lives with the children and his sister in the property of another person, a woman for whom he works in the [employment omitted] in lieu of rental.
207.The child [X] is in Year 7 at School K and the annual school fees are $2,500 per annum. The child [Y] is in Year 4 at School L and the husband proposes to also have her attend School K in high school.
208.The husband will have the primary care of the children for many more years, and he will have financial obligations accordingly; [Y] is now aged nine years and [X] is now aged twelve years.
209.The wife is paying modest child support of some $16 each fortnight and there is significant doubt as to whether such child support will increase.
210.The Court is required, when considering the above issue, to conduct some comparison between the husband’s position (no contention was made by the husband that a child will suffer hardship) if the financial agreement remains in place and the position of the husband if it is set aside.
211.The Court refers to its property proceedings findings and determinations, discussed later in these Reasons, relating to the parties’ financial and other contributions made during the relationship and post separation to trial.
212.If the agreement is set aside, and the Court proceeds to make property adjustment Orders under section 90K(3) of the Act, the husband will receive about fifty percent of the net assets available for property adjustment – about $103,000. Pursuant to the Court’s proposed final parenting Orders he will continue to be the primary carer of the children. His financial obligations have increased significantly since the children came into his primary care in December 2014. He will have such increased financial obligations, by reason of continuing to have the primary care of the children, for many more years. The receipt of about $103,000 will assist him, whether directly or indirectly (he may choose to retire some debt) to meet such financial obligations. If the financial agreement is not set aside, he will not receive about $103,000 and his ability to meet such financial obligations will be significantly adversely affected.
213.Further, or in the alternative, as discussed previously, the husband’s ability to earn income in his [business] will continue to be adversely compromised by reason of his child care responsibilities, and the receipt of about $103,000 will assist him to meet his financial obligations in respect to his care of the children, again whether directly or indirectly. If the financial agreement is not set aside he will not receive about $103,000 and his ability to meet such financial obligations will be significantly adversely affected.
214.The Court is satisfied that as a result of the above identified material change in circumstances (see the Court’s discussion under the heading “Material change in circumstances?”), the husband will suffer hardship if the financial agreement is not set aside. In these circumstances, the Court is of the view, exercising its discretion under section 90K(1)(d) of the Act, that the financial agreement should be set aside.
Property
215.Section 90K(3) of the Act provides:
(3) A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.
216.The Court, under section 90K(3), having set aside the financial agreement, may make such Order (including an Order for the transfer of property) “as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement”. Accordingly, the Court now proceeds to consider whether or not to make such an Order.
Evidence
217.After the parties arrived in Australia, the husband worked in [employment omitted]. Throughout the relationship, the husband supported the family through the provision of his earnings each week which were utilised for household expenses including utilities, groceries and rent. When the former matrimonial home at Property A (the property) was purchased, he paid the monthly mortgage repayments until separation in November 2010. He also did work around the home and assisted in the care of the children.
218.On arriving in Australia the husband’s only assets were about $9,000 and 40 grams of gold both of which he gave to the wife.
219.The wife had few assets at this time.
220.The home was purchased in 2005 for about $330,000. The parties paid a deposit with their joint savings and utilising the first home owner grant. The balance of the purchase moneys were secured by a mortgage with the Bank 2. According to the wife the mortgage loan was $295,000.
221.Following the separation, the husband paid child support to the wife. Initially he paid about $200 a week. He paid $400 a week to the wife during the months of August 2012 to October 2012 (about ten payments of $400 during this period), and then returned to paying the wife about $200 per week. He ceased paying child support when the children returned to his primary care in December 2014.
222.The husband receives about $16 a fortnight in child support from the wife.
223.In about late 2010 or early 2011, the husband and a family friend purchased a [business] in Suburb N for $440,000. The husband and his friend each contributed $70,000. The $70,000 the husband contributed was funded as follows: about $40,000 was drawn from the mortgage over the property; he borrowed about $15,000 from a family friend; and he borrowed about $15,000 from his brother, Mr S.
224.The lease was in the husband name and his friend’s name.
225.The husband would work from 9 am to 10 pm from Monday to Saturday at the [business].
226.Throughout the relationship, the husband provided the wife with his wages each week. The wife would use his wages to pay the bills and pay household expenses such as groceries.
227.The [business] was sold for $150,000 in about 2012, of which the husband received $60,000 and his friend $90,000.
228.In about 2013, the husband purchased a [business] in Suburb M which he converted into a [business]. The husband bought this business for $45,000 and he spent about $10,000 to $15,000 renovating it. He used the entirety of the money to buy the [business] from the proceeds he received from the [business] from Suburb N.
229.The husband’s brother helped him at the new [business] in Suburb M. The husband did not pay his brother for all his work at the [business] as he could not afford to do so.
230.The husband found the task of giving his 100 percent to the children and managing the [business] at Suburb M to be difficult. Therefore in 2017 he sold this business for $46,000.
231.The husband purchased a [business] for $50,000 on about 2017. This [business] is situated at Suburb L. This [business] is located within a kilometre from the youngest child’s school. He had borrowed this sum from his sister Ms K. The sister told the husband that he should repay this amount when he could.
232.The husband was told by the management at the Suburb L shopping centre where the [business] was located that the owner of the centre required a guarantee of $17,840 to be paid first of all before the transfer of lease was made. The husband’s sister lent the husband about $17,000.
233.The husband asserts that his new business is not operating at a loss. He asserts that the [business] is in a convenient location for him to have the children come to the [business] after school and have something to eat and for the husband then to go home with the children. In that respect, the husband asserts that it seems to be a perfect way for himself to eventually earn an income in an industry which he knows and to look after the children’s needs.
234.The husband has been operating his new business at Suburb L since 2017. He asserted that he does not know the average earnings of the [business] on a weekly basis. He stated that all he is getting is about $300 per week for the children to get by.
235.The husband’s sister and other persons come to help in the [business]. The [business] is open seven days a week. Some of the workers of the [business] are casual. He asserted that he pays $7,000 monthly for rent for the [business].
236.The husband asserted that his sister is paid $400 per week for working at the [business].
237.The husband’s new [business] is open seven days a week. He asserted that he works at the [business] when the children are at school and he is not there when the children are out of school. The husband closes up the [business] four days each week and another person closes up the [business] the other three days each week. The [business] is open from 9 am to either 9 pm or 10 pm.
238.The husband stated that on some Mondays he works until 8:30 pm and his sister picks up the children from school.
Property adjustment
239.In Lotta & Lotta [2016] FamCA 50 , Foster J stated:
281. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
282. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285. In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same.
…
287. It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288. In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
289. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
240.Exhibit P, a balance sheet, contained the parties’ respective contentions as to the property pool, and which was amended in some respects following submissions of the parties.
| Ownership | Description | Wife / de facto partner’s value | Husband / de facto partner’s value | |
| ASSETS | ||||
| 1. | H | Bank 2 | $ 21,888.16 | $ 614.31 |
| 2. | H | Bank 2 | $ 75,521.69 | $ NIL |
| 3. | H | Bank 2 | $ 38,330.35 | $ NIL |
| 4. | H | Motor Vehicle M | $ E20,000.00 | $ E 4,500.00 |
| 5. | H | Household content | $ 2,000.00 | $ 2,000.00 |
| 6. | J | [Company A & B Group] | $ 160,111.81 | $ 158,458.34 |
| 7. | W | Bank 3 | $ 14.07 | $ 9,816.00 |
| | | | | |
| 9. | W | Household content | $ 3,000.00 | $ NK |
| 10. | J | Disputed Trust Account Held on Trust for Ms Teasdale and Mr Teasdale | $ 46,461.55 | $ 46,240.19 |
| 11. | W | Deposit Refund | $ NIL | $ NK |
| 12. | W | Motor Vehicle O | $ 2,500.00 | $ 2,500.00 |
| 12A. | H | [Business] | $ 50,000.00 | $ 50,000.00 |
20
| Total | $ 378,645.22 | $ 216,203.18 |
| ADDBACKS | ||||
| 13. | W | Monies released to the Wife prustant to Court Orders and by agreement with the Husband | $NIL | $ 65,000.00 |
| 14. | W | Drawdowns on the mortgage following seperation | $NIL | $ 48,379.01 |
| 15. | W | House contents, jewellery and cash received when the parties entered the Binding Financial Agreement | $NIL | $ 10,000.00 |
| 16. | ||||
| Total | $NIL | $ 123,379.01 |
| LIABILITIES | ||||
| 17. | W | Credit card | $ NIL | $ NK |
| 18. | W | Personal Loans | $ NIL | $ NK |
| 19. | H | Bank 2 Mastercard | $ NIL | $ NIL |
| 20. | H | Motor Vehicle M Finance | $ NIL | $ NIL |
| 21. | W | Mastercard | $ NIL | $ NK |
| 22. | H | Amount owing to Mr E | $ NIL | $ 22,796.00 |
| 23. | H | Amount owing to Mr S | $ NIL | $ NIL |
| 24. | H | Amount owing to Mr X | $ NIL | $ NIL |
| 25. | H | Amount owing to Mr V | $ NIL | $ 19,870.36 |
| 25A. | H | Amount owing to Ms K | $ NIL | $ 69,286.00 |
| Total | $ NIL | $ 111,952 |
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Wife / de facto partner’s value | Husband / de facto partner’s value | |
| 26. | H | Super Fund S | Defined benefit interest | $ | $ 1,350.00 |
| 27. | W | Super Fund T | Small superannuation account | $ 3,500 | $ NK |
| Total | $ 3,500.00 | $ 1,350.00 |
241.The disputed items can be dealt with as follows.
242.As to items 1-3 (wife’s contended values), there is no persuasive evidence that these sums were accumulated by the husband other than post separation, with the husband repaying debts to third parties and legal fees with such sums. They should be removed from the balance sheet. Nevertheless, the Court will take into account, under section 75(2), the fact that the husband had drawn down on the parties’ original mortgage some $40,000 to buy his [business] in late 2010/early 2011; in this context, the Court notes that the sale proceeds of that [business] were used by the husband to purchase his Suburb M [business]. This [business] was in turn sold with the sale proceeds forming part of the sums listed as items 1-3 (wife’s contended values).
243.As to item 4, there is no evidence that its value is $20,000. $4,500 is stated to be its value as per the husband’s Financial Statement, and such value shall be entered.
244.As to items 6 and 10, the Court will adopt the wife’s figure, the husband conceding that the wife’s solicitors would have the best knowledge of these amounts.
245.As to item 7, whilst there is no evidence that the sum of $9,816 (set out in the wife’s Financial Statement) has been reduced to $14.07, it would appear to be post separation savings and it shall be removed from the balance sheet. The sum shall be considered under section 75(2).
246.As to item 12A, the husband’s new [business], the wife made no relevant contribution to its purchase in about 2017; it shall be removed from the balance sheet but taken into account as a financial resource of the husband under section 75(2).
247.As to item 13, the $65,000 received by the wife will be dealt with under section 75(2)(o) of the Act, and similarly as to item 14.
248.As to item 15, the husband’s evidence is that the wife retained household content and jewellery when he left the matrimonial home, stated in the Financial Agreement to be worth $15,000. The husband’s proposed addback is for the sum of $10,000, which amount will be removed from the balance sheet but considered under section 75(2).
249.The parties’ contended liabilities shall be removed from the balance sheet as they do not relate to or arise out of the parties’ relationship. They will be considered under section 75(2).
250.Accordingly, the final asset pool for division is as follows:
| Ownership | Description | Value | |
| ASSETS | |||
| 1. | H | Motor Vehicle M | $ E 4,500.00 |
| 2. | H | Household content | $ 2,000.00 |
| 3. | J | [Company A & Company B Group] | $ 160,111.81 |
| 4. | W | Household content | $ 3,000.00 |
| 5. | J | Disputed Trust Account Held on Trust for Ms Teasdale and Mr Teasdale | $ 46,461.55 |
| 6. | W | Motor Vehicle O | $ 2,500.00 |
Section 79(2) of the Act
251.The Court is satisfied that it would be just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that the property was sold in 2015 with net sale proceeds now held in trust, and the fact that continuance of the current legal ownership of those trust monies would not afford them justice and equity.
252.The Court does not accept the wife’s contention that the wife should receive the totality of the trust monies. Such a contention does not appropriately recognize the husband’s contributions as discussed later in these Reasons.
Contributions
253.The parties’ relationship spanned the period from 2003 to November 2010. At the commencement of the relationship the husband had about $9,000 which he gave to the wife. The wife had few assets at this time.
254.The first child was born in 2006 and the second child 2009. During the relationship the wife was the primary carer of the children, with the husband assisting in their care.
255.The property was purchased in 2005 for about $330,000. The parties paid a deposit with joint savings, and the first home owners grant from the government. A mortgage loan was taken out for about $295,000. During the relationship and up until separation the husband met the monthly mortgage repayments and utilities for the property.
256.Apart from being the primary carer of the children during the relationship, the wife enjoyed some paid employment during the early years of the relationship, and also assisted the husband in his [business] for a period in about 2007.
257.The Court would assess the parties’ respective contributions, up until separation in November 2010, both financial and non-financial, and in relation to the care of the children, as being approximately equal.
258.The financial agreement made in 2012 refers to the parties’ assets and liabilities as at the date of the financial agreement. Apart from the property, the Motor Vehicle P, and household contents and jewellery, there is no evidence before the court as to when the other assets (i.e. cash sums and superannuation) and liabilities came into existence (although the Court notes that the Motor Vehicle M car was a [date] model) and the Court infers that they came into existence post separation.
259.The financial agreement refers to the property’s value in November 2012 in the sum of $435,000.
260.Post separation the wife worked in paid employment. She ceased work in 2014. Post separation she remained the children’s primary carer until December 2014 when the children came into the husband’s primary care. Since December 2014 the children have remained in the husband’s primary care, with the wife spending time with the children.
261.Shortly following the parties entering into the financial agreement, the wife discharged the mortgage over the property in the amount of about $261,000. She then took out a mortgage over the property for about $310,000.
262.She drew down on this new mortgage about $80,000 between January 2013 and January 2015.
263.The property was sold in April 2015 for about $590,000. The mortgage discharged at that time was about $309,000. Again, the property’s mortgage loan, discharged at the time of its refinance by the wife shortly after the financial agreement in November 2012, was about $261,000.
264.Post separation to trial, the Court observes, in relation to the care of the children, that the wife had the primary care of the children from November 2010 to December 2014, some four years, and thereafter for some four years, the children have been in the primary care of the husband.
265.The Court observes that the husband paid child support to the wife between separation and December 2014, usually in a sum of about $200 per week, and for a period about $400 a week, and he also gave occasional cash monies to the wife for items such as a computer (part purchase price), a television, clothing, school banking and school excursions. The wife’s payment of child support to the husband post December 2014 appears to have been irregular and modest, whilst noting that the wife’s financial position was parlous for a significant period.
266.In relation to the property, post separation to December 2014, a period of some four years, the wife maintained the property through mortgage repayments, and the property increased in value. She lived in the property during this period with the children. In this context, on the other hand, the court takes into account that the wife had the benefit of living in the property with the children.
267.In summary, viewing the parties’ overall contributions holistically, taking into account the above matters, the Court would assess the parties’ contributions to trial date as approximately equal.
Section 75(2)
268.The husband is aged 45 years. The wife is aged 43 years.
269.By reference to the Court’s proposed final parenting Orders, the husband will have the primary care of the children.
270.The husband’s health is satisfactory.
271.The wife is vulnerable to suffering depression should she suffer significant stress.
272.The wife intends to obtain significant employment, and she did impress the Court as a particularly determined woman. There is some real prospect that she will be able to cope with some part-time paid employment whilst having care of the children, whilst probably not full time employment, noting the wife’s mental health vulnerabilities. The Court notes the wife’s history of employment in various roles and historical wage receipts.
273.The husband’s work and experience has been largely confined to [businesses]. He is unable to work the long hours that he was working pre-December 2014, by reason of his care of the children, and he has to engage others to assist him in his operation of the [business] accordingly.
274.Again, the Court has some misgivings as to the husband’s assertions that his present net weekly income in his new [business] is only some $300 per week (having paid, inter alia, wages, rent, raw materials), in circumstances where he failed to produce, in particular, bank statements relating to the new business. The husband had been operating this new business since about 2017. There was little evidence before the Court to enable the Court to accurately estimate his net weekly income in the new business. (In passing, the court observes that a Bank 2 loan application, ostensibly of the husband, in evidence, Exhibit F, referred to a net profit of $33,224 for the 2014 income tax year, equating to about $584 per week after tax, but this was in relation to the husband’s prior [business] and it was some years ago). There was no suggestion in the evidence that this particular [business] in Suburb L had a particularly significant income earning potential.
275.Accordingly, the Court would assess the husband’s earning capacity as probably superior to the wife’s earning capacity but not significantly so.
276.In light of the above matters, the Court has some doubt as to whether the wife will be financially able to pay significant child support to the husband as the primary carer of the children.
277.Both parties will likely receive Centrelink benefits. The husband receives family tax benefits. The wife is receiving Centrelink benefits through the Newstart allowance and other modest financial assistance.
278.Both parties’ property and financial resources are fairly meagre. The Court notes that the husband operates a [business] purchased for $50,000 which generates income. The wife’s $9,816 in cash is noted (she did not adduce evidence as to its alleged reduction to $14.07). Each party owns a car and modest household contents.
279.The net proceeds of sale of the property, presently held in trust accounts, is in the total sum of about $206,000.
280.The husband has extensive personal debt, which did not enter the balance sheet: about $68,000 owed to his sister for the new [business], legal fees, about $20,000 owed to a friend Mr S who assisted him with legal fees, and about $23,000 owed to his brother Mr E. The wife’s liabilities, which also did not enter the balance sheet, are about $10,000.
281.The Court takes into account the $65,000 received by the wife post separation following the sale of the property in April 2015, whilst noting that a not insignificant portion of this sum was utilised by the wife, not unreasonably, to re-house and maintain herself. The Court also takes into account the wife’s retention of the Motor Vehicle P car (recognized by the parties as having a value of $10,000 at the time of the financial agreement).
282.On the other hand, the Court takes into account the $40,000 drawn down by the husband from the mortgage loan over the property, in late 2010 or early 2011, to assist him in purchasing the business in Suburb N.
283.The Court is not persuaded that it should take into account in favour of the husband the sum of about $48,000, representing the difference between the mortgage loan on the property at the time of its refinance by the wife in November 2012 in the sum of about $309,000, and the mortgage loan discharge figure of about $261,000 on the sale of the property in April 2015, a sum of about $48,000. The wife, through her personal efforts, maintained the property from separation in November 2010 until December 2014.
284.The Court takes into account the wife’s retaining $10,000 worth of household contents and jewellery at the time the husband vacated the matrimonial home.
285.Taking all the above matters into account, there should be no adjustment under section 75(2) of the Act.
Justice and equity
286.Pursuant to the Court’s proposed property adjustment Orders, each party should receive an equal share of the trust monies totalling some $206,573. Thus each party will receive about $103,000.
287.The husband may well utilise his share of the trust monies to alleviate his debt position, which may indirectly assist him in meeting his financial obligations towards the care of the children. The wife also has some debt. She may well be left, having paid her debt, with funds to assist her in her future care of the children.
288.Each party has a motor vehicle; these are relatively comparable in value. They should each retain their own car. Similarly, they should each retain their modest household contents. Each party should retain their modest bank account sums.
289.The parties’ very modest superannuation entitlements are comparable and each party should retain their respective entitlement.
290.The Court is of the view that it will be just and equitable to make such property adjustment Orders.
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 23 November 2018
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