TISDALE & ROGANDA

FAMILY COURT OF AUSTRALIA

TISDALE & ROGANDA

[2012] FamCA 1058

FAMILY LAW – PROCEDURE – History of respondent not complying with court orders – Hearing on undefended basis – Meaning of – Authorities considered – Need to deal with evidence – Need to provide reasons for findings and determinations – In addition respondent did not appear at trial – Whether any medical reason for that – Extensive reference made to the procedural history of the matter

FAMILY LAW – CHILDREN – Best interests – All evidence considered – Final parenting orders made to come into force at 4pm on 18 January 2013 unless by that time and date respondent files application/s for relief

FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – All evidence considered – Just and equitable order made to come into force at 4pm on 18 January 2013 unless by that time and date respondent files application/s for relief

Family Law Act 1975 (Cth) ss 60CC, 90SM, 90SF(3)
Family Law Rules 2004 rr 11.02(2)(c), 11.03(1) and (2), 16.01, 16.07(1)

Aleksovski & Aleksovski (1996) FLC 92-705
A & Z (2006) FLC 93-257
Kowaliw & Kowaliw (1991) FLC 91-092
Tate & Tate (2000) FLC 93-4047

APPLICANT:

Ms Tisdale

RESPONDENT:

Mr Roganda

FILE NUMBER:

(P)

BRC8015

2011

DATE DELIVERED:

14 December 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

21 November 2012

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

IT IS ORDERED
Procedural

The following parenting and property orders (the orders) take force and effect at 4pm on Friday 18 January 2013, unless by that time and date the respondent should file an application:
a.(i) to excuse his non-appearance at the trial on 21 November 2012 on medical grounds and/or
(ii) under Rule 11.03(1) and (2) for relief from the effect of subrule 11.02(1) and/or 11.02(2)(c) Family Law Rules 2004 and
b.for the allocation of fresh trial dates.
If the respondent should file an application under order 1a. (i):
a.it must be filed by 4pm on Friday 18 January 2013
b.it must be accompanied by an affidavit by a medical practitioner providing the opinion that on 21 November 2012 the respondent had a medical condition, stating precisely its nature, and, if it be the case, how or why such condition may have had the effect that the respondent was unable to attend the trial on that date.
If the respondent should file an application under order 1a. (ii):
c.it must be filed by 4pm on Friday 18 January 2013
d.it must be accompanied by an affidavit by the respondent in relation to such matters in Rule 11.03(2) upon which he relies.
Upon the hearing of any such application/s, if it/they be dismissed, the orders take force and effect at the same time and date as the dismissal.
On the hearing of any such application/s, if it/both be allowed, fresh trial dates be allocated.

THE ORDERS
IT IS ORDERED (SUBJECT TO ORDERS 1 – 5 ABOVE) BY CONSENT OF THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER

Parenting

In the terms of the minute of orders Annexure A.
Unless there be any later order to the contrary, the independent children’s lawyer be discharged on 21 November 2013.
The original minute of orders signed by the parties be placed and kept on the Court file.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Property

Pursuant to s 90SM of the Family Law Act 1975 (Cth) (the Act) the property and the assets of the husband and the wife be divided as follows:

The wife retain:
a.motor vehicle
b.all chattels and personal effects presently in her possession.
The husband retain:
a.motorcycle
b.all chattels and personal effects presently in his possession.
The wife be solely responsible for all finance payments and any residual debt in relation to the motor vehicle.
The balance moneys in the trust account of Muir Lawyers in matter … Sale to Macgregor & Thompson, including accretions, but after the deduction of any fees or charges owing to Muir Lawyers, be paid 50 per cent to the husband and 50 per cent to the wife.
The wife retain her superannuation with Sunsuper.
Otherwise the parties are to retain all assets and financial resources in their respective name or possession.
Unless otherwise specified in this order:
a. each party is solely entitled to the exclusion of the other to all property and assets (including choses in action) in the possession of that party as at the date of this order
b. each party is solely entitled to the credit of any moneys in any bank accounts in his or her name
c. each party is to forego any claim he or she may have to any superannuation benefits belonging to or earned by the other
d.each party indemnify the other in relation to debts in his or her respective name.

The parties sign all documents and do all things necessary to give effect to these orders and in default of any party so doing a Registrar is appointed pursuant to s 106A of the Act to sign all such documents.

Other

The wife’s/mother’s application in a case filed 1 August 2012 is dismissed.
All other relief sought in the proceedings is dismissed.

ANNEXURE A

That the children B (DOB ..03.03) and C (DOB ...11.05) live with the Mother and she have sole parental responsibility for the children’s long term welfare care and development.
That the children spend time with and communicate with the Father at all times as agreed between the parties but failing agreement at least:
a.Each alternate weekend from after school Friday to before school on Monday or Tuesday if Monday is a public holiday or pupil free day
b.From after school Wednesday to before school Thursday in the alternate week
c.One half of the Easter, June/July and September/October school holidays with the Father to have the first half in even numbered years and the last half in odd numbered years
d.One half of the Christmas school holidays with the Father to have the first half in even numbered years and the last half in odd numbered years
e.From 2pm Christmas Eve to 1pm Christmas Day in odd numbered years and each alternate year thereafter
f.From 1pm Christmas Day to 2pm Boxing Day in even numbered years and in each alternate year thereafter
g.Father’s Day the children will spend with the Father from 9am to 5pm if the children are not already spending time with the Father pursuant to these Orders
h.Mother’s Day the children will be with the Mother from 9am to 5pm
i.On each child’s birthday if the children are not spending time with the Father and not a school Day from 9am to 12 noon and if a school day from 3.30pm to 7pm
j.Telephone communication with the children at all reasonable times but at least each Monday and Thursday between 6pm and 6.30pm.
That a Registrar of the Family Court of Australia is authorised to sign all documents and do all things necessary on behalf of the Father to facilitate the issue of a passport for the children B (DOB: ...03.2003) and C (DOB:...11.2005).
That the children’s passports will be held by the Mother (subject to any necessary release to the Father to enable the children’s travel with him in accordance with orders 5 and 6 below).
That either parent may travel with the children from Australia to a country which is a signatory to the Hague Convention for up to 4 weeks, or as otherwise agreed between the parents, with the travelling parent to give 21 days’ written notice to the other parent.
That at least 14 days prior to the departure date, the travelling parent will supply the other parent with:
a.a copy of the pre-paid return tickets for the children;
b.the itinerary;
c.contact address(es) of where the children will be based;
d.contact telephone numbers for the other parent to telephone the children;
e.copy of current tenancy lease, if applicable, where the travelling parent lives in Australia
f.that if the travelling parent is the Father he shall return the children’s passports to the Mother within five (5) days of the children’s return to the Commonwealth of Australia.
That the children’s time with the Father pursuant to orders 2a and b is suspended during all holiday times.
That neither party is to denigrate the other to or in the presence of the children.
That neither party is to denigrate the other by way of email, text message, twitter, face book or Skype.
That neither party is to discuss these proceedings to or in the presence of the children.
That the Mother and the Father are to complete a Parenting Orders Program and provide each other with a copy of their certificates of completion.
That the Father is to undertake an anger management course with Lifeline and confirm with the Mother when he has completed the course.
That each party will keep the other advised of their current address and contact telephone numbers.
That these orders be sufficient to enable the Father to obtain all information from the children’s school regarding their education.
That changeover shall be at the children’s school during school term and at all other times at McDonalds, D Town.
That these orders be sufficient authority to enable the Father to discuss the children’s general health with their GP.
That both parties will advise the other immediately should either of the children require any urgent medical treatment while in their respective care.
That the order for the appointment of the Independent Children’s Lawyer not be discharged until 12 months from the date of these orders.
That during all times that the children spend with the Father the Father is to ensure that the children sleep in their own bedroom in the Father’s house.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tisdale & Roganda has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: (P) BRC8015 of 2011

Ms Tisdale

Applicant

And

Mr Roganda

Respondent

REASONS FOR JUDGMENT

Procedural – undefended basis/respondent’s non appearance at trial

The trial of this matter was set down for 2 days, 21 and 22 November 2012. The dates for trial were allocated by the Honourable Justice Kent by order made on 20 July 2012, on which date his Honour ordered:
IT IS ORDERED THAT
1.   The final hearing of the matter be listed as a reserve trial and set down for 2 days commencing at 10.00am on 21 November 2012 in the Brisbane Registry of the Family Court of Australia.
2.   The Applicant pay the hearing fee by 4.00pm 14 days prior to the commencement of the final hearing unless a reduction of the fee is obtained beforehand.
3.   The Applicant file and serve any Amended Application within 7 days of today.
IT IS DIRECTED THAT
4.   The parties are granted to liberty to apply in respect of the final hearing dates and any application for the matter to proceed undefended.
5.   In the event that the respondent does not file any material in accordance with directions made, the matter may be heard in the absence of any such material and on an undefended basis. (emphasis added)
AND IT IS NOTED THAT the parties certify that (a) the matter is in all respects ready for final hearing; (b) it will require the number of days allocated; and (c) settlement discussions have taken place and been unproductive but in the event that consent is reached prior to the final hearing, the Court will be notified at the earliest possible time.
The reference in order 5 “in accordance with directions made” is a reference to, in particular, orders made by Registrar Coutts on 2 July 2012:
Listing
1. The matter be listed for mention for the allocation of trial dates before The Honourable Justice Murphy on 20^th July 2012 at 10:00am.
Filing of Material
2.The Applicant Mother and Respondent Father to file and serve within 7 days:
(a)         Case Information including Minute of Orders sought and List of Applications and Affidavits relied upon for trial,
(b)         an updated Financial statement,
(c) Undertaking as to Disclosure pursuant to Rule 13.15 of the Family Law Rules 2004 as amended,
(d)         Superannuation Information Form attached to an Affidavit,
(e)         valuations of furniture and motor vehicles in their possession where the value is in dispute,
(f)          a Balance Sheet which sets out the assets, liabilities and financial resources of each party and
(g)         a current statement of settlement monies held in trust attached to an Affidavit.
I am satisfied that the husband/father was aware of the trial dates allocated by the Honourable Justice Kent on 20 July 2012 (although the orders made on that date record that there was no appearance by him on that date), by reason of a communication which he made to the case coordinator on the morning of 21 November 2012 that he could not attend the trial because he had “the flu”.
Further, since the undefended hearing which took place on 21 November 2012, on 22 November 2012 the husband/father caused to be sent to the Registry a facsimile which recorded on the cover page the heading “K Pty Ltd” sent by a “Ms J” and containing the words:
Hi
Please find attached information for [Mr Roganda]
Thanks.
The “attached information” comprised one page being a medical certificate from a Dr E at D Town saying:
Medical Certificate
This is to certify that
[Mr. Roganda]
was/is suffering from Medical Condition
21-Nov-2012 to 22-Nov-2012 inclusive
was/will be unfit to continue their usual occupation.
This certificate was completed on Wednesday, 21 November 2012.
During the communication by the husband/father to the case coordinator on the morning of 21 November 2012, upon being told by the case coordinator that he would need a medical certificate, I understand that the husband/father said to her that he did not have a medical certificate as he “hasn’t been to the doctor yet” but that he was “going to the doctor this afternoon” and “has an appointment this afternoon”.
I would pause to observe thus that seemingly the husband/father was well enough to attend upon Dr E on 21 November 2012, whose practice, I note, is at D Town, but not well enough, upon the father’s own say so, to attend the Court.
Secondly, I would observe that the medical certificate makes no reference to the Court proceedings, but only that the husband/father would be “unfit to continue [his] usual occupation” on 21 to 22 November 2012.
However, there is no evidence that the husband/father presently is in any employment. Indeed in his most recent affidavit filed in the Court, 29 June 2012, at pars 39 -41 he referred to the starting of a full time course in March 2012 for a “dual diploma …”, but not to any current employment.
Further, there is no reference in the medical certificate to the type, nature or severity of the “medical condition”, nor any written opinion as to how such affected the husband’s/father’s ability to function, or indeed, to attend the trial.
Usually, a self diagnosis of “flu” is not a reason to not appear at Court proceedings, listed for a Wednesday/Thursday (mid week) with no foreshadowing earlier (say on the Monday or Tuesday) of any difficulty in attending or appearing, and indeed there was no application for adjournment of the proceedings by the husband/father based on any ground of ill health.
Further, the address of “K Pty Ltd” on the facsimile cover sheet is given as
Head Office
L Street
Suburb M, QLD ….
Suburb M is in Brisbane, a short distance from the Court.
The facsimile cover sheet also gives a “Fax No” of …, which appears to be a Brisbane located facsimile number.
It is dated 22 November 2012.
I note that there are no facsimile markings on either the cover sheet marked “Facsimile Transmission” nor on Dr E’s medical certificate, which is unusual. Perhaps however they were scanned by the husband/father and or Ms J, rather than being sent by facsimile.
The husband/father, and/or Ms J, would need to explain, in evidence, the circumstances of the sending of the “facsimile” to the Court, the absence of any facsimile markings (eg, if scanned) and whether or not on 21 or 22 November 2012 the husband/father attended at the “Head Office” of “K Pty Ltd” in Brisbane to arrange that communication with the Court.
On 21 November 2012, I said that I would order to the effect that unless the husband/father by 4pm on Wednesday 5 December 2012 filed an application and affidavit or affidavits with admissible medical evidence, that is, an affidavit by a medical practitioner, for relief from the orders which I proposed to make on the undefended basis (see Rule 11.02(2)(c) and Rule 11.03(1) and (2)), the orders would come into effect as guillotine orders at that time and date: Transcript 21 November 2012 T 6/7.
However, ultimately in preparing the orders and these brief reasons I decided that to ensure absolute fairness to the husband/father I should allow until 4pm on Friday 18 January 2013, as referred to in the orders attached to these reasons, in particular having regard to the date of delivery 14 December 2012 and the impending Christmas break.
During argument on 21 November 2012 I observed, as is plain by the file in the matter, that “There has been an extensive history of non-compliance by the father with Court orders and directions” (T 6/12); and by reference to the order of the Honourable Justice Kent made on 20 July 2012 that the husband/father had had “fair warning” that the matter would proceed on the undefended basis if material was not filed or orders breached: T5/15-20.
Although the husband/father did not appear before his Honour on that date the cover sheet to the orders records his address for service and I am entitled to infer thus that the orders were sent to him by the Court.
If the husband/father should dispute that he ever received the 20 July 2012 orders, there is nonetheless the circumstance that by some or other method plainly he was aware of the trial dates because of his communication with the case coordinator on the morning of 21 November 2012.
Further, I note that in relation to the orders made by Registrar Coutts on 2 July 2012 there was an appearance by the husband/father (at least by telephone), and that the cover sheet to those orders similarly indicates by the inclusion of his name and address that those orders were sent to him by the Court.
The index to the Court file shows that the husband/father has filed no material since 29 June 2012, that is, before Registrar Coutts’ orders made on 2 July 2012, there being 2 documents filed by the husband/father on 29 June 2012, being an amended response to the initiating application and an affidavit by him.

The relevant Rules of Court

I have referred already to Rule 11.02(2)(c) and Rule 11.03(1) and (2), which deal with default, that is, non compliance with the Rules or an order. They provide:
RULE 11.02 FAILURE TO COMPLY WITH A LEGISLATIVE PROVISION OR ORDER
11.02(1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.
Note A defaulter may apply to the court for relief from this rule (see rule 11.03).
11.02(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04). (emphasis added)
Note This list does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.
RULE 11.03 RELIEF FROM ORDERS
11.03(1) A party may apply for relief from:
(a) the effect of ; or
(b) an order under .
11.03(2) In determining an application under subrule (1), the court may consider:
(a) whether there is a good reason for the non-compliance;
(b) the extent to which the party has complied with orders, legislative provisions and the pre-action procedures;
(c) whether the non-compliance was caused by the party or the party's lawyer;
(d) the impact of the non-compliance on the management of the case;
(e) the effect of non-compliance on each other party;
(f) costs;
(g) whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and
(h) if the application is for relief from the effect of — whether all parties consent to the step being taken after the specified time.
Note 1 This list does not limit the powers of the court. See also .
Note 2 A party may make an application under this rule by filing an Application in a Case or, with the court's permission, orally at a court event.

Rules 16.01 and 16.07 deal with non appearance at a trial (that is, the final hearing of an application for final orders). They provide:
RULE 16.01 APPLICATION
16.01 This Chapter applies to all Applications for final orders, except:
(a) a Medical Procedure Application;
(b) a Maintenance Application;
(c) a child support application or appeal;
(d) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment; and
(e) an application in which the only order sought relates to a passport (see Division 4.2.7).
RULE 16.07 PARTIES’ PARTICIPATION
16.07(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note The court may dispense with compliance with a rule (see rule 1.12).
16.07(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party’s application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
16.07(3) If no party attends the first day before the Judge, the court may dismiss all applications before it. (emphasis added)

Case authority

In A & Z (2006) FLC 93-257, the Full Court comprising Faulks DCJ, Warnick and Boland JJ considered the meaning of the expression "undefended hearing". After a referring to Rule 11.02, their Honours Faulks and Boland JJ in a joint judgment referred to the circumstance that the term “undefended hearing” is not defined in the Dictionary to the Rules, but that the Explanatory Guide to the Rules explains the term “undefended basis” as including one whereby because of a respondent's failure to comply with a rule or order the Court may proceed as if a response has not been filed: see at [62]; and that (also at [62]), citing the Explanatory Guide:
… The court may make the orders set out in the application on being satisfied by evidence that the orders should be made. (emphasis added)
Thus, although the matter is “defended” by the filing of the husband’s/father’s response, the nature of the “undefended hearing” is that I am now entitled to proceed as if that response had not been filed. This indeed would seem to be the plain meaning of rule 11.02(2)(c).
The discussion by Faulks and Boland JJ went on to provide that in other cases the expression “undefended” may have a different meaning.
However in this particular case, on the facts as I have outlined them, it is appropriate that I proceed as if the husband’s/father's response had not been filed.
In A & Z, I would refer also to [64] – [69], and in particular the reference to Tate & Tate (2000) FLC 93-047, to the extent relevant.
In this particular case, I am dealing not only with the husband’s default in relation to procedural orders made in relation to the filing of material, but also with his failure to appear at the trial, thus enabling me to proceed according to either or both Rule 11.02(2)(c) and/or Rule 16.07(2).

Application of the Rules and case authority

In these circumstances, I am entitled to be robust in my approach, although it is requisite that I be satisfied by evidence that the orders sought by the wife/mother should be made, and thus shortly will refer to the material.
Before doing so, it is necessary to make clear that in relation to Rule 11.02(2)(c) the husband/father failed to comply with any part of order 2 made on 2 July 2012; and that in relation to Rule 16.07(1), the husband/father failed to attend at the hearing of the wife’s/mother’s final orders application, that is, the trial; with effect that I am satisfied that I am able to proceed to judgment under either or both of Rule 11.02(2)(c) and/or Rule 16.07(2).

Material

In this vein, I required the wife/mother and the independent children’s lawyer each to read their material, which was as follows. Although the hearing against the father was on the undefended basis, I required also to be told of relevant material filed by him and accordingly have included that material as follows.

Wife/mother

Amended initiating application filed 25 July 2012
Trial affidavit wife/mother filed 8 June 2012
Updated trial affidavit wife/mother filed 17 July 2012
Financial statement filed 17 July 2012

Independent children’s lawyer

Affidavit family report writer Ms F filed 27 February 2012, annexing her family report dated 27 February 2012
Affidavit family report writer Ms G filed 19 November 2012, annexing her family report dated 18 November 2012

Case outlines

Case outline wife/mother filed 17 July 2012
Case outline independent children’s lawyer filed 28 June 2012.

Exhibits

Two exhibits were tendered (two bundles), as appears by reference to the record.

Husband/father

Response filed 3 November 2011
Financial statement filed 3 November 2011
Amended response filed 29 June 2012
Affidavit husband/father filed 29 June 2012

Parenting proceedings

It is axiomatic that I am required to consider the best interests of the children, B, born … March 2003, now 9½ years, and C, born … November 2005, now 7 years.
After I determined, on 21 November 2012, that it was appropriate to proceed on the undefended basis Mr Hodges of Counsel for the independent children’s lawyer provided draft parenting orders with which, after some discussion, and minor changes, the mother stated her consent.
At the hearing I indicated that I was satisfied that the proposed consent orders between the independent children’s lawyer and the mother are in the children’s best interests.
It remains now thus for me to give brief reasons, by reference to the s 60CC matters, as to that conclusion.
The father’s response filed 29 June 2012 had sought that he and the mother have equal shared parental responsibility for the children, that the children live “50 per cent of the time” with each parent and that he “not sign any passport applications”.
In what follows, I have taken this into account, and carefully considered the father’s evidence set out in his affidavit filed on the same date, 29 June 2012, and have concluded, based upon the s 60CC matters, and upon the opinions of the two family report writers that the orders sought by the father are not in the children’s best interests.
Ms F, who prepared the first family report dated 27 February 2012, is a social worker, with over 30 years professional experience as a practitioner involved with families and children, specialising in child protection and other family welfare matters such as domestic violence.
Ms G, who prepared the second family report, is a psychologist, with about 12 years experience as such.
Ms G did not interview the father, who failed to present himself for his scheduled interview, apparently despite many attempts to contact him on the scheduled date, and the day following: Ms G’s report, section 3, last paragraph; and did not interview the children.
Ms G had been provided with the earlier family report of Ms F, as noted also at section 3 of Ms G’s report.

Meaningful relationship

The children appear settled and appropriately cared for in the mother’s primary care: Ms F, par 134.
The children however also have a very strong attachment and bond with the father: Ms F, par 134.
There is no reason to think that, either presently or prospectively, the children would not benefit by having a meaningful relationship with each of their parents.

Need to protect

Ms F reported that as a direct result of the “unhealthy attitudes” the children are subjected to by both parents, when the children are with each parent in their individual care, there is a “continuing risk of emotional and psychological harm” as the children are “not free to enjoy their relationship with each parent and their family unit”: Ms F, par 135.
Ms F reported also that the father’s use of “profanities” such as the “vulgarisms” “cunt” and “fuck” during disputes with the mother in the children’s presence demonstrates “total disrespect of these vulnerable little children”; and “normalises obscenities” which are considered by the average person to be highly offensive to utter in the presence of the children; and further that the children are “at risk of being influenced in a manner which is not in keeping with societal expectations of the treatment of small children”; and as such “raises concerns for their socialisation in a primary school environment”: Ms F, par 139.
Ms F concluded that neither the father nor the mother is “faultless in the present situation” and that they “are both contributing to the ongoing dispute occurring between them”, such that in her assessment unless there are “dramatic changes” in the behaviour and attitude of the parents, the children’s “emotional wellbeing will be compromised”, such that both parents “need to commit to developing insight, understanding and acceptance of each other’s role in their children’s lives”: Ms F, par 145.

Views of the children

Although the children expressed various views to Ms F (see her report at pars 118 – 125 (B) and 133 (C)) the children are too young to express meaningful views, in particular in the context of the parental conflict described in Ms F’s report.

Nature of the children’s relationship with their parents and with each other

As mentioned already, Ms F reported that the children appear settled and appropriately cared for in the mother’s primary care, and the children also have a very strong attachment and bond with the father: Ms F, par 134.
Ms F reported also that the children have a very close bond with each other: Ms F, also at par 134.

Willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent

According to Ms F, neither parent showed insight into their personal histories and each continually apportioned blame to the other about their parental conflict: Ms F, par 135. Ms F further reported that “the indications are” that the parental relationship has been “dysfunctional for some time” but that “neither is willing to take responsibility for addressing issues that have contributed to their respective roles in the dysfunction”: Ms F, par 137.

Likely effect of change

This matter was not specifically addressed by either family report writer.

Practical difficulty and expense

This matter similarly was not specifically addressed by either family report writer.

Capacity of the parents to provide for the children’s needs including emotional and intellectual needs

I have referred earlier, and set out, Ms F’s opinion that as a direct result of the parents’ unhealthy attitudes to which the children are subjected with each parent when in their individual care, there is a continuing risk of emotional and psychological harm as the children are not free to enjoy their relationship with each parent and their family unit: Ms F, par 135.
Both parents however love the children and wish to parent them, evidenced by their competing applications.
Ms F expressed the opinion that whilst it is evident that the father believes that he “should be able to provide regular parenting to his children”, “he is not considering the attachment that the children have to their mother, with whom they have resided for most of their lives”: Ms F, par 138.
Ms F continued that whilst there is “no doubt” that the father “loves his children” and is “desirous of providing them with a better life than his own childhood experiences”, his use of the profanities to which I have earlier referred has the effect that such is not in keeping with societal expectations of the treatment of small children: Ms F, par 139.
Ms F, after close consideration of the children living primarily with the father, or primarily with the mother (as to which see Ms F’s report at pars 142 and 143, to which I would refer without setting out), expressed firmly the opinion that it is the mother who has demonstrated that she is able to meet the emotional, physical and protective needs of the children, and that, overall, “the indications are” that the children are “secure, settled and emotionally stable in their mother’s care”: Ms F, par 147.

The children’s maturity, sex, lifestyle and background

Ms F reported that the children both presented as “lovely young children”, and that C in particular is “an articulate and bright little girl”: Ms F, par 134.
Ms F said further however that both of the children are “fearful and frightened” by the continuing fighting between their parents: Ms F, also at par 134; and that both children presented as “vulnerable little children who are sensitive to the conflict between their parents which they find confusing distressing and upsetting”: Ms F, also at par 134.

Attitude of the parents to the children and to the responsibilities of parenthood

Both parents have shown firm commitment to the responsibilities of parenthood, in so far as at least each seeks to be responsible for either their primary care, or at least shared care.
The mother however said in her trial affidavit filed 8 June 2012, at pars 67 – 77, that the father has never paid child support for his children, and that he does not provide any financial assistance whatsoever for school fees, uniforms, clothing, extra curricular activities or any other expenses relating to the children: see in particular at pars 67 and 75.
It is a fundamental obligation of parenthood to provide financially for one’s children’s necessary expenses, to the extent that one is able.

Family violence including any family violence orders

The mother’s affidavit filed 8 June 2012, pars 55 – 59 records the history of domestic violence protection orders against the father. See also pars 30 – 42 of that affidavit; most of which the father denied; and his counter allegations in his affidavit filed 29 June 2012, pars 20 – 22 and 27 – 38.
It appears, by an annexure to the mother’s amended initiating application filed 25 July 2012, that there is a current domestic violence order against the father current until 21 August 2013.
I would refer also to ex 1, in particular pp 3 -8, in relation to alleged breaches by the father of domestic violence orders; and also, relevantly, to the father’s criminal history, set out in ex 1 at pp 1 – 2 (Queensland) and pp 28 – 36 (New South Wales), indicating, arguably, an inability on his part to comply with what might generally be regarded as lawful behaviour.

Order least likely to lead to the institution of further proceedings in relation to the children

It appears to me that, if the father should accept the consent orders proposed between the mother and the independent children’s lawyer, which I propose to make, such would be the orders least likely to lead to the institution of further proceedings in relation to the children.
I note however that the father’s material is redolent with accusations against the mother as to her past conduct, both as an individual and as a parent, and in particular I would refer to the father’s affidavit filed 29 June 2012, pars 7 – 16 and 17 – 38; and to the mother’s own record of, it would appear, police investigation of her: ex 1, p 9 (first third of the page).
Nonetheless, I am satisfied that the consent orders proposed by the mother and the independent children’s lawyer are the orders which would be least likely to lead to the institution of further proceedings in relation to the children, unless, in the near or distant future, the mother should show herself an inadequate primary parent.

Any other fact or circumstance that the Court thinks is relevant

I would refer generally to Ms F’s conclusion at par 144, that she would “not support” a 50 per cent shared care arrangement, which, as I have mentioned earlier, is the order sought by the father. I will set out this paragraph:
144. The report writer would not support a 50 per cent shared care arrangement. It is the report writer’s opinion that [Mr Roganda] and [Ms Tisdale] do not have the capacity to sustain a 50 per cent shared care arrangement due to the high level of conflict and the children’s exposure to this conflict and violence.
Finally, it is relevant that Ms F’s ultimate recommendations included (par 150) that the children should remain living with the mother, that the mother and the father have “joint” parental responsibility for the children, and that the children spend time with the father at all times as agreed but otherwise on each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school on Monday; for one additional night during the following week from after school to the commencement of school the next day; and for half of the school holidays; provided that if the mother is unable to care for the children during the school holidays then the children should be able to spend the majority of the time with the father.
Ms F’s recommendations included matters as to changeovers, special days and telephone communication, which I need not set out, but which are fully set out by her: Ms F, par 150.
I turn now to Ms G’s conclusions, bearing in mind, as I have mentioned earlier, that Ms G did not have the opportunity to interview the father, because he failed to present for interview on the scheduled date, and that she did not interview the children.
Ms G concluded in her report, at 7.5, that the children should continue to reside with the mother and continue to have contact with the father on each alternate weekend, although she was not able to provide any “informed comment” as to whether the children should also spend time with him overnight in the “off week”.
Importantly however, informed by Ms F’s earlier family report, Ms G concluded also against a “50 per cent shared care arrangement”, saying further that in her opinion such would be “in the detriment of the subject children’s well-being”:
7.5.5. It is important to note that given the previous and current history of parental conflict following the separation that it is unlikely that [Ms Tisdale] and [Mr Roganda] will be able to develop a cohesive and amicable parenting relationship that facilitates appropriate changeover of parenting. Therefore it is my recommendation that at present a 50 per cent shared care agreement would be in the detriment of the subject children’s well-being, as they may be exposed to ongoing parental discord, as previously evidenced.

The hearing on 21 November 2012

I would refer also to the observations that I made during the hearing on 21 November 2012, at T2/30 – 3/35; 11/1 – 10; 12/20 – 40; and 19/1 – 23/10.

Conclusion

Having regard to all of the evidence, the statutory matters which I am required to consider, the submissions of the independent children’s lawyer and the mother, and the circumstance of the father’s non-appearance at the trial, such that the matter proceeded in his absence, as earlier explained, I am satisfied that the children’s best interests will be met by pronouncing orders in the terms of the consent orders proposed by the independent children’s lawyer and the mother, and I will so order.
I am conscious that Ms F’s ultimate recommendations included that the mother and the father have “joint” parental responsibility for the children. However, as has often been said in the authorities there is “no magic” in a family report, and it is the duty of the judge to consider all of the evidence as to children’s best interests.
Although I am conscious also that often it is in children’s best interests to have the benefit of both of their parents making decisions as to the major long-term issues concerning them, in this particular case the reported “dysfunctional” relationship between the parents, the reported “high level of conflict” between them and that the children are “vulnerable little children” who are “sensitive to the conflict between their parents”, which the children find “confusing distressing and upsetting” (all as extracted above); together with the circumstance that the family violence history has effect that the presumption of equal shared parental responsibility is ousted; all have effect that in my view an order for “joint” parental responsibility would not be in the children’s best interests; and that in contrast, as proposed by the independent children’s lawyer and the mother, an order that the mother have sole parental responsibility is in their best interests.

Property proceedings

The parties were in a de facto relationship between early/mid 1997 and August/September 2008.
Thus, their respective property claims are brought under s 90SM of the Family Law Act 1975 (Cth).
Although the parties were not married, it is convenient to refer to them as “the husband” and “the wife” rather than “de facto husband” and “de facto wife”.
The wife sought, in her amended initiating application filed 25 July 2012, pars 8 - 11, that the “total property pool”, which she valued at $51,760.12 (excluding her superannuation interest), be divided 50/50, taking into account “the total value of the assets of the relationship that are in each party’s possession”; and that separately, each party retain his and her own superannuation entitlements.
The husband sought, in his amended response filed 29 June 2012, pars 4 -7, that the wife “not retain all the assets of the relationship she has in her possession”; that the husband “retain what possessions he has in his possession”; that the “total of the property pool” be given to him; and that “each party not retain their superannuation entitlements”.

Pool

According to the wife, by her trial affidavit filed 8 June 2012, the pool comprises $51,760.12 (excluding her superannuation interest); annexure TNT3 to that affidavit.
As said, annexure TNT3 does not include the wife’s superannuation interest, $27,021, as at 30 June 2012.
In summary, the wife’s case is, according to values “attributed” by her (annexure TNT3):
·the husband has $26,450 in assets, being a motorcycle, with the attributed value of $18,000, and the balance comprising modest furniture and effects, with the combined attributed value of $8,450
·the wife has $5,940 in assets, being a motor vehicle, with the attributed value of $3,500, and furniture and effects with the attributed value of $2,440
·the parties have in the trust account of Muir Lawyers $19,760.12 net proceeds of sale of the family home at H Street, D Town: annexure TNT4 to the wife’s affidavit filed 17 July 2012. (That annexure shows the balance as at 31 October 2011, apparently the settlement date of the sale contract for that property, $19,370.12; however, presumably the increase to $19,760.12 relates to interest accretion).
It should be noted that the address in that trust account statement “I Street, D Town” appears to be the father’s then address and not the address of the property sold.
In the wife’s updated trial affidavit filed 17 July 2012 she provided a balance sheet as to her own assets and liabilities: annexure TNT3.
Materially, in that balance sheet, the wife then attributed the assets in her possession at $7,700, with attributed value then of the motor vehicle the lower amount of $2,500; and an increase in the furniture and effects in her possession to $5,000; mentioning also a savings account balance of about $200.
I would infer that the savings account balance of $200 is a post separation amount, as at all times since April 2008 the wife has earned a weekly wage at O Solicitors of $694.38 weekly. Thus, the $200 is properly to be regarded, I think, as part of her post separation earnings, so that, according to the wife’s balance sheet annexure TNT3 to her updated trial affidavit the property in her possession has the attributed value of about $7,500.
The wife’s balance sheet shows also liabilities as $3,500 in a GE Creditline; ANZ Mastercard $2,000; and moneys owed by her to the Child Support Agency of $560. It appears (as the wife candidly stated from the Bar table) that the ANZ Mastercard is her own post separation liability; and that the GE Creditline debt was arranged prior to the parties’ separation, but relates to the debt owing by her in respect of the motor vehicle. Plainly, the $560 owed by the wife to the Child Support Agency, in relation to child support is not a pool matter, but a child support matter, best dealt with under s 90SF(3).
In her affidavit filed 17 July 2012, the wife annexed Suncorp superannuation documents to show that as at 30 June 2012 her superannuation entitlement comprised $27,021.
The husband, in a financial statement filed 3 November 2011, nominated “nil” in relation to any superannuation interest held by him.
The husband included in his financial statement filed 3 November 2011 that the property at D Town was about $420,000 value, registered in his sole name, and had an attributed mortgage debt also of about $420,000. This property however, according to the Muir Lawyers trust account statement to which I have referred, was sold in October 2011, with the net sale proceeds I have mentioned.
The husband deposed in his financial statement also to credit card debts of $4,779 and $3,200. However it may be, and perhaps seems likely, that these amounts accrued post separation, although this is not at all clear on the husband’s material.
The wife supported her “attributed” values with a valuation from Lloyds Asset Services dated 10 July 2012, annexure TNT2 to her affidavit filed 17 July 2012. However, in relation to the several goods and chattels in her possession set out in that valuation (p 19) including the reduced value $2,500 for the motor vehicle, Lloyds assessed, seemingly including that motor vehicle, all of the chattels and goods in the wife’s possession at the “total fair market value $5,430” and “the total forced liquidation value $2,970”. However, as I explained to the wife during argument, as the Lloyds valuation was not sworn by the valuer, I am obliged to ignore it.
On 2 July 2012, Registrar Coutts ordered that both parties file and serve within 7 days several documents referred to in that order (set out above), including, relevantly, valuations of furniture and motor vehicles in each party’s respective possession, where those values were in dispute; and a balance sheet setting out the assets, liabilities and financial resources of each party.
The wife complied with those orders (although the Lloyds valuation which she obtained was not sworn by the valuer, such that I must ignore it); whereas the husband, according to the file in the matter, offered no compliance with those orders.
There is a limit to which, realistically, the Court can extend its facilities, cost and time, when parties in contested adversarial proceedings have a long history (as explained above, in relation to the husband) of non compliance with Court orders.
In this vein, by the husband’s defiance of the Court orders, in particular order 2 made by Registrar Coutts on 2 July 2012, he has denied the Court and the wife opportunity to have a valuation of the motorcycle in his possession, wasted his opportunity to participate meaningfully in the proceedings and the Court cannot extend its facilities indefinitely to defaulting parties.
It is in these circumstances, in these undefended proceedings, and in particular having regard to the modest state of the pool, that I am entitled to be robust and to regard the pool as comprising in the vicinity of, on the best evidence available:
a.     assets of the relationship in the husband’s possession: not more than $25,000 (considerably less if the motorcycle is of considerably less value than the attributed $18,000)
b.     assets of the relationship in the wife’s possession (net): not more than say $3,000 being $7,500, as referred to above, less $3,500 which the wife has said she will pay in relation to the debt for the motor vehicle (in this regard I would refer to T 21 November 2012, wherein during argument I suggested to the wife that it might be better to have the $3,500 owing on the motor vehicle paid from the funds in Muir Lawyers trust account, but the wife made clear that she would prefer to take on that responsibility: T 15/1 – 5; and 18/5 – 20
c.     $19,760.12 in Muir Lawyers trust account
d.     the wife’s superannuation $27,021 as at 30 June 2012.

Separate pool – wife’s superannuation

It seems to me that properly I should regard the wife’s superannuation as a separate pool, for two reasons.
First, according to the evidence, the husband has no superannuation.
Secondly, the Sunsuper documents annexed to the wife’s affidavit filed 17 July 2012, annexure TNT1, show that largely the wife’s superannuation contributions were post separation. Indeed, at the second page of the Sunsuper document, under the subheading “Eligible Service Period Commencement”, included were the words “The member’s eligible service period commenced on 24 April 2008”. As mentioned earlier, separation occurred in August/September 2008.
Thus, I am entitled to treat almost all of the wife’s superannuation interest with Sunsuper, $27,021, as post separation contribution by her, via her employer O Solicitors. It will be recalled that the wife commenced her employment with those lawyers in April 2008. From then, there was only the short period of about 4 – 5 months before the separation, of the total period 24 April 2008 until 30 June 2012, which was pre separation contribution by the wife.

Contribution

The wife is 35 years and the husband 42 years. The parties met in early – mid 1997 and separated in August/September 2008 such that the period of their relationship was about 11½ years.
The husband deposes in his trial affidavit filed 29 June 2012, par 17, that in September 2009 the wife and the children moved back into the family home. Other paragraphs seem to indicate that such may have subsisted for about 6 months or more (same affidavit par 18), however, he does not suggest a date upon which the wife and the children again moved out of the family home.
The wife said in her trial affidavit filed 8 June 2012, par 28, that she and the children moved back into the family home in September 2009 because the husband could not meet the mortgage payments so that the mortgage had slipped into arrears and that she paid the lump sum $1,500 to avoid the whole of the loan becoming immediately repayable upon the default.
It appears from the wife’s evidence, which I accept, that both during the relationship and in the post separation period she was the primary carer for the 2 children who are now 9½ years and 7 years.
The husband, it appears, had an erratic employment history during the period of the relationship. In this regard I would refer to the wife’s affidavit filed 8 June 2012, pars 5, 8, 10, 12, 13, 15 and 18.
At par 13, the wife suggests that the husband spent some 12 months in prison.
However, his criminal record, ex 1, pp 1 – 2 and pp 28 – 36 seems to indicate that a conviction on 27 November 2006 was for 12 month recognisance. The criminal record mentions some 3 or 4 other prison sentences, some of which appear to have been during the period of the relationship.
I mention these matters, plainly, only in relation to the husband’s employment history during the period of the parties’ relationship, and his ability to contribute financially during the period of that relationship which would excise any periods spent in prison.
The husband is a member of the N Motorcycle Club.
In December 2003, as a result of a motorcycle accident he suffered a broken leg requiring a full leg cast and a rehabilitation period of about 12 months, during which, plainly enough, he was unable to be employed.
The husband said, affidavit filed 29 June 2012 [original text]:
43.    The money left in the trust account was money from the sale of the family home and was the money from my accident claim from my leg injury and I [sic] meant to be for my later years in life.
44.    I was paid the sum of 150k and spent 90k on buying a home I paid my bank loan of for the car [Ms Tisdale] now drives and was meant to pay off but I have never received a payment for I payed 10.5k for it the rest of the money was used in paying bank mortgage and various other things.
45.    The property [Ms Tisdale] still has in her possession was bought with my money and I was with her oldest sister when I did so and [Ms Tisdale] refuses to give it back.
In his response (initial response) filed 3 November 2011 he said [original text] (on a separate page in which the following paragraphs are extracted and set out)
Property Settlement
110. Ms [Tisdale] has never complied with the above mentioned contract. And has denied even having one
111. the state of the yard before the sale was appauling and she had never done any thing to help me to the point the children could not even swim in there own pool i had to take them else were to swim and play.
112. the property was sold for 25k less than what I bought it for originally and I had spent several thousand dollars improving the property also
113. also the money for the home was from a payout I had got form my leg.
114. I seek 100 per cent of the money left if any and want to compensated for my losses.
I am not able to understand par 110.
I will deal with the content of pars 111 and 112 when dealing with the s 90SF(3) matters.
Paragraph 113 is a claim consistent with the husband’s evidence at pars 43 – 45 of his affidavit, already set out; with par 114 indeed making that claim.
If, which seems to be the case, the husband was awarded $150,000, and spent $90,000 towards the home, on the face of the husband’s material there is difficulty in his claiming “100 per cent” of the money left, and difficulty in his claim that the money paid as the result of his accident claim was “meant to be for my later years in life”, because he did not use the money as such, but rather, according to his affidavit, put $90,000 towards the home and spent $60,000 otherwise as he has mentioned including on “various other things” (affidavit, par 43, above). Further, the husband’s affidavit does not descend to particularity as to the component parts of the accident claim moneys, for example, as to what part or parts may have been for past or future economic loss, or past or future pain and suffering, etc.
It appears thus that at best for the husband the receipt and use of his accident money is characterised as a contribution by him at the time the moneys were received: Aleksovski & Aleksovski (1996) FLC 92-705 at 83-436 - 7 per Baker and Rowlands JJ and 83-443 per Kay J, in particular because, as said, there is no description as to its component parts. The accident appears to have occurred in about December 2003. There is no evidence as to the date upon which the accident moneys were received, however, plainly they were received during the relationship, to enable the expenditure described.
As to the motor vehicle, even if, which the husband asserts, he paid $10,500 in relation to it, he admits that the wife “was meant to pay it off” and, on her evidence, which I accept, she is doing so, with $3,500 yet to pay, with the value of the motor vehicle presently seemingly to be approximately that amount or less than that amount (as discussed above).
It is not known when the husband purchased the motorcycle or whether it also was purchased out of the accident moneys. It is however described as a “2007 model” motorcycle. Therefore certainly it was purchased post accident (December 2003) and seemingly thus from his accident moneys.
The assets in the wife’s possession, even if paid for by the husband from his accident moneys, are modest indeed, as already mentioned.
I do not think, having regard to relevant case authorities, that the husband thus has a “tracing” claim, as it were, to the $19,760.12 in the trust account of Muir Lawyers, as “his” moneys, such that the balance corpus should be preserved for him, and granted as a corpus to him. Rather, as explained, the receipt and use of his accident moneys throughout the period of the relationship is a contribution on his part.
There is case authority to the effect that it is not in every case that contribution necessarily must be assessed as initial contribution/contribution during the relationship/post separation contribution, provided that reasons are given demonstrating a proper assessment of contribution overall.
Doing the best I can, whilst the husband’s direct financial contribution of his accident moneys during the relationship was significant, and enabled the parties to purchase the family home and, apparently, service some of the mortgage on it, I find that both during the period of the relationship and post separation, the wife contributed both directly and indirectly by way of her greater employment role as primary earner and as the party who has had and has the primary responsibility for the care of the children.
Further, in the post separation period, it appears that the husband has paid no child support to the wife: wife’s affidavit 8 June 2012, pars 67 – 77; such that in the significant post separation period of more than 4 ½ years she has been solely financially responsible for the children including their housing, food and school fees, school uniforms, clothing, extra curricular activities and other expenses.
I have mentioned already that in relation to the separate pool comprising the wife’s superannuation interest, whilst the first 4 – 5 months of her contribution were the last 4 – 5 months of the relationship (April 2008 – August/September 2008) there has been a further 4½ years accumulation superannuation interest in relation to her own post separation earnings, with effect that it is appropriate in my view to regard contribution to that separate pool as “almost” 100 per cent wife, the husband’s contribution to it in effect being nil, but there being necessity to take into account nonetheless that the first 4 – 5 months of the wife’s contribution period overlapped with the last 4 – 5 months of the relationship.
Doing the best I can, in relation to the main pool, I would assess contribution on the 50 per cent/50 per cent basis, based upon all of the above analysis and reasoning.

The s 90SF(3) matters

The parties’ ages are wife 35 years and husband 42 years.
There is no evidence that either suffers any significant personal health difficulties.
Whilst the husband suffered the motorcycle accident in or about December 2003, there is no evidence of any residual disability interfering with his capacity for gainful employment.
Further, his affidavit, at pars 39 – 41, refers to the commencement in March 2012 of a full time dual diploma course.
The husband otherwise describes himself in his affidavit as “contractor/trade assistant and full time student”.
The wife says she is a working with O Solicitors.
In October 2009 she commenced a diploma. She obtained professional credentials in about October 2010.
Presently she is studying part time for a degree at P University.
There is no present reason thus to think that either party is not able to engage in appropriate gainful employment. In particular there is no medical evidence that the husband’s accident has restricted his ability for gainful employment, and, on the present evidence, it appears that he has chosen the field of counselling, although describing his role nonetheless as “contractor/trade assistant and full time student”.
The wife, in my view, should have her superannuation interest as a separate pool. However the wife is very young, and absent the hardship rules will not be able to access her superannuation interest for a very long time.
According to the final parenting orders which I have said I will make, the children will live with the mother and spend reasonable, if not substantial, time with the father.
Each party is entitled to a reasonable standard of living.
The relationship subsisted for about 11½ years, but there is no evidence that its subsistence or any features of it have affected the present earning capacity of either party.
There is no evidence that either party is in cohabitation with another person, or has any other children.
I have mentioned already that, according to the mother, the husband has not and does not pay child support. It is proper however to assume that the Child Support Agency will make proper statutory assessments for liability of the parties for child support, or that subsequent statutory processes can be undertaken for reassessment, or if necessary application for a departure order.

In relation to the husband’s claim that the parties’ property was sold for $25,000 less than its purchase price, there is no evidence to support this part of his claim, nor the allegation in his response as to the state of the yard or pool, so as, in either case, to support any proper case by the husband based upon the principles in Kowaliw & Kowaliw (1991) FLC 91-092, for example, deliberate wanton or reckless disregard by the wife to the husband’s potential entitlement under s 90SM.
Drawing all matters together, in relation to the s 90SF(3) matters, I would assess a 15 per cent adjustment in the wife’s favour particularly having regard to the children’s young ages, and the longevity of the likely future period for which she is likely to be primarily responsible for the children’s care and primarily financially responsible for them.

The result so far

Having assessed contribution as equal, and that the wife should have a 15 per cent s 90SF(3) adjustment, it remains to consider what just and equitable order if any should be made.

Just and equitable order

In Phillips and Phillips (2002) FLC 93-104 at 88, 985, the Full Court made clear its acceptance of the principle that at times the application of percentages does not necessarily produce a just and equitable result; that it is the order which is to be just and equitable, not just the underlying percentage division of the net value of the parties’ assets; that in any event it is the real impact in money terms which is ultimately the critical issue; and finally that in the consideration of whether the result is just and equitable it is the justice and equity of the actual order, not just the percentage distribution, which must be considered.
The wife sought that she have the whole amount in Muir Lawyers trust account, $19,760.12, on the basis that the husband’s motorcycle in the husband’s possession should have the attributed value of about $18,000 and other matters.
As said, the husband sought that the whole $19,760.12, as representing the balance of his accident moneys, should be paid to him.
However, as explained, the corpus was not preserved, and was spent by him in the manner already described so that such amount now I have taken into account in relation to the parties’ respective contributions.
The wife will have the whole of her superannuation interest, as explained. In particular, no splitting order was sought in respect of it, and, as explained, she cannot access it until much later in life, absent application of the hardship rules.
However, it is not as if the “placing” of the wife’s superannuation interest in a separate pool, in relation to contribution, and my proposed order that the wife have it all, is of no effect on the just and equitable result in relation to the main pool or overall.
In relation to the main pool, the assets of the relationship in the husband’s possession appear to be not more than $25,000 value; and in the wife’s possession appear to be not more than $3,000 value, taking into account her responsibility for the debt in relation to the motor vehicle; adding on $19,760.12 in the Muir Lawyers trust account shows an aggregate main pool (net of the motor vehicle debt) of approximately $47,760.
A 65 per cent/35 per cent split would see the wife having approximately $31,000 and the husband approximately $16,700, of the moneys in the Muir Lawyers trust account.
However having regard to all that I have said, and
a.     the modest size of the pool
b.      the doubt as to the worth of the husband’s motorcycle, attributed by the wife at $18,000 and
c.     the circumstance that the wife will keep 100 per cent of her superannuation interest (although in a separate pool)
has effect that doing the best I can I will order that the money in Muir Lawyers trust account with interest accretions but less any amount which may be due to that firm as fees or charges be paid to the wife and the husband 50 per cent each.
I have formulated a s 90SM order to give effect to this decision and I am satisfied not only that it is just and equitable but is the order which is likely to bring an end to all financial relations between the parties.

Child support

The wife, in her amended initiating application filed 25 July 2012, sought in relation to child support the following:
…
5. That all decisions of the Child Support Agency be abandoned
6. That the mother and the father each pay 50 per cent share of the children’s school fees at whichever school the children may be attending.
7. Without limiting the financial obligations detailed in order 6 above, that each party be solely financially responsible for the children while the children are in that respective party’s care.
I have mentioned already the mother’s affidavit filed 8 June 2012, par 67 – 77.
However, the claims of the wife are not justiciable in the form they are in and will need to be taken up further with the Child Support Agency, or, if the wife be so advised, an application for a departure order filed in the Federal Magistrates Court.

Application in a case by the mother filed 1 August 2012

The wife/mother had an application in a case filed 1 August 2012 seeking several procedural orders and in particular that the husband/father be ordered to “comply” with several existing orders of the Court. In the circumstances of the husband/father not appearing at the trial, and it proceeding on the undefended basis, the wife/mother agreed that it was not necessary to pursue the application. Accordingly, I said I would dismiss it, but make clear that the dismissal is on the procedural grounds of the husband/father not complying with Court orders and not appearing at the trial, rather than the merits.

I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 14 December

Associate:

Date: 14 December 2012

[2012] FamCA 1058

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Procedural Fairness