TOOHEY & TOOHEY
[2017] FamCA 601
•15 August 2017
FAMILY COURT OF AUSTRALIA
| TOOHEY & TOOHEY | [2017] FamCA 601 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent father and husband has disengaged from proceedings – Where it is appropriate for the matter to proceed on an undefended basis. FAMILY LAW – CHILDREN – Best interests – Where the father has disengaged from the proceedings – Where the children have not spent time with the father for a significant period of time – Where the father has displayed aggressive and erratic behaviour towards the wife – Where the father has been convicted of trespassing on the wife’s property – Where the father has been convicted of stalk and intimate and breach of an apprehended domestic violence order – Where there are serious concerns as to the father’s mental health – Where the children have a meaningful relationship with the father – Where the mother alleges the father has engaged in family violence and has made threats to harm her and the children – Where there is no positive finding of unacceptable risk – Where the benefit to the children of a meaningful relationship with their father is not outweighed by the need to protect the children from harm – Where orders will not be made for the father to spend no time with the children – Where orders will be made for the mother to have sole parental responsibility and for the children to live with her. FAMILY LAW – PROPERTY – Just and equitable – Where the husband’s disengagement from proceedings is taken as deliberate non-disclosure – Where the assets of the husband are unclear – Where inferences drawn as to the assets available to the husband – Where the pre-separation contributions of the parties equal – Where the wife has made significantly greater financial and non-financial contributions post separation – Where the husband has paid no child support nor made any financial contribution to the maintenance of the children post separation – Where the husband is unlikely to contribute to the maintenance of the children in the future – Where adjustments should be made in favour of the wife for post separation contributions and section 75(2) factors – Where it would be just and equitable to make an order that the husband pay the wife a significant sum – Where the wife only seeks orders that she be paid 100 per cent of the husband’s superannuation – Orders made accordingly. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAC, 75, 79 Family Law Rules 2004 (Cth) r 16.07 |
| Bevan & Bevan [2013] FamCAFC 116 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Kingsley & Trang [2016] FamCA 790 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Stanford v Stanford (2012) 247 CLR 108 Trang & Kingsley [2017] FamCAFC 120 |
| APPLICANT: | Ms Toohey |
| RESPONDENT: | Mr Toohey |
| INDEPENDENT CHILDREN’S LAWYER: | Sarah Bevan Family Lawyers |
| FILE NUMBER: | PAC | 1395 | of | 2015 |
| DATE DELIVERED: | 15 August 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Greenaway |
| SOLICITOR FOR THE APPLICANT: | Anderson Boemi Lawyers |
| THE RESPONDENT: | No Appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sarah Bevan Family Lawyers |
Orders
Property
That orders 1-5 of these orders are binding on trustees of the H super fund (“the fund”).
Pursuant to Section 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment becomes payable in respect of the Mr Toohey interest in the fund, the trustee shall pay to Ms Toohey the amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001, using a specified percentage of 100 per cent and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
That this order has effect from the operative time and the operative time is four (4) business days from the date of this order.
That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the regulations”) the parties shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising the request in accordance with the regulations for the transfer or rollover of the non-member spouse’s interest in the husband’s name in the fund.
That the Court notes:
(a) The value of the non- member spouse interest is calculated in accordance with the regulations; and
(b) Any payments from the husband’s superannuation interest in the fund are not splittable payments in accordance with the requirement of the Family Law (Superannuation) Regulations 2001.
There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the husband and the wife in the fund.
That the respondent do all acts and things including signing all documents necessary to transfer the Motor Vehicle, Registration … into his sole name.
That the respondent be solely liable for any monies, fines or liabilities arising from or in relation to, the Motor Vehicle, Registration …, including but not limited to any that have arisen since 2 December 2014 and shall indemnify and keep indemnified the applicant in relation to the same.
Save for orders 1-8 above the applicant and respondent each be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and including any chattels, goods, furnishings, bank accounts, shares, debentures, investments and superannuation entitlements which stand in their sole name or to their credit respectively at the date hereof.
That each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other.
The applicant and respondent each 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.
The applicant and respondent each be solely liable for and indemnify the other against any liability in their respective sole names, including but not limited to credit cards and personal loans.
That all insurance policies are to become the sole property of the owner named thereon.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Family Court of Australia be appointed pursuant to the Act 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.
Parenting
That the applicant mother have sole parental responsibility for the children of the marriage, namely B born … 2007 and C born … 2009 (“the children”), concerning decisions relating to major long term issues including, but not limited to, the following:
(a) The school/s the children are to attend;
(b) The religious instructions and cultural upbringing of the children;
(c) The medical treatment that the children are to receive;
(d) The children’s passport and international travel; and
(e) The sporting and other extra-curricular activities the children are to engage in.
That the children live with the mother.
That the respondent father shall spend times with the children as agreed between the parties in writing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Toohey & Toohey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1395 of 2015
| Ms Toohey |
Applicant
And
| Mr Toohey |
Respondent
REASONS FOR JUDGMENT
Introduction
B who is 10 and C who is seven (‘the children”) live with their mother Ms Toohey (“the mother”). All three are estranged from the children’s father, Mr Toohey (“the father”) since he was charged with contravening an apprehended domestic violence order (“ADVO”) made for the mother’s protection and for intimidating the mother with intent to cause her harm.
Although the father originally sought parenting orders with respect to the children he has not participated in the proceedings for some time. In his Response filed 15 April 2016 the father sought orders that he equally share parental responsibility for the children with the mother and that the children live with the mother and spend five nights per fortnight with him. The mother seeks orders that she have sole parental responsibility for the children, that they live with her and spend time with the father as agreed between the parties.
The mother is also seeking property settlement orders being a splitting order in her favour for the whole of the father’s current superannuation interest. She submits that this is a fair and equitable distribution of the parties’ property.
The father had proposed in his Response that a motor vehicle be transferred into his name and that otherwise each of the parties retain all items of property in their respective names.
As the father has not participated in the proceedings in recent times and did not file any trial affidavit or attend the final hearing on 14 June 2017 the hearing proceeded on an undefended basis.
So far as parenting is concerned I am to make such orders that are in the best interests of the children. Property Settlement orders are to be made if just and equitable to do so.
The father’s non-participation
The mother and Independent Children’s Lawyer (“ICL”) sought that the Court proceed to deal with the matter to finality in the absence of the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(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).
(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.
The father participated in the proceedings, appearing either in person or through counsel until March 2017. However, he did not comply with trial directions including the filing of an amended Response and Financial Statement and trial affidavits.
At a court event on 20 January 2017 at which the father was present it was specifically noted that evidence with respect to the father’s mental health would be required for the purposes of the final hearing. On 6 March 2017 when the trial directions were made, the father was also put on notice that an expert report would be required and such a report was required to be funded by the parties. The father was put on notice that he should take necessary steps to arrange such funding in anticipation of orders being made in relation to the payment of an expert’s report. Leave was given to the ICL to forward to chambers any consent orders with respect to the appointment of an expert. No agreement was apparently reached about this matter and at the next court event on 11 April 2017 the father failed to appear.
The mother’s application for parenting and property orders was listed for an undefended hearing on 14 June 2017. Two compliance checks were held before a Registrar in May and June 2017 and on each occasion the father did not appear. The undefended hearing on 14 June 2017 was confirmed on 1 June 2017.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
As the proceedings are being determined on an undefended basis with respect to the father, his affidavit and Financial Statement would ordinarily not be read. However, the mother in her own case relies on paragraph 211 of the affidavit filed by the father on 15 April 2016 and a report annexed to it in addition to her own trial affidavit.
The balance of the father’s affidavit, not relied upon by the mother, is not read.
Background
Prior to separation
The mother who is 39 and the father who is 40 began a relationship in 2002 and started living together in 2003. Neither of the parties had any property of significance at the beginning of their relationship but in October 2003 they purchased a property together for $300,000 funded by $20,000 in joint savings and a loan of about $280,000.
The parties were married in 2006.
The party’s older child B who is currently 10 was born in 2007. Their younger child C who is now seven was born in 2009.
At about the time that C was born the parties sold their first property. They used the sum left after payment of their outgoings and mortgage together with a new loan to purchase an interest in a property at (“the Suburb J property” or “the family home”). The Suburb J property was owned by the father’s mother (“the paternal grandmother”) and was then valued at about $840,000. The parties purchased 33 per cent of the Suburb J property as tenants in common and the paternal grandmother owned the balance.
The mother and father, children and paternal grandmother all lived in the Suburb J property together.
During the relationship the father worked full time and the mother was employed both full time and part time after the children were born.
The mother was primarily responsible for activities associated with the home and care of the children.
Both parents’ income was used to pay the family’s share of the utilities on the Suburb J property with the paternal grandmother also contributing to her share of those expenses.
Although it is not entirely clear, it appears that the parties’ relationship was reasonably harmonious until 2012 when the mother began keeping a journal of the father’s aggressive and erratic conduct towards her. The mother deposes to a number of incidents between March and November 2012 in which the father damaged property at the family home, locked her and the children in the family home, took her mobile phone and keys, blocked her pathway in the home and threatened her with a knife causing her to flee from the home and call the police. She also says that the father drove at an extremely high speed on one occasion causing her to be frightened and threatened to place personal and intimate photographs of her on the Internet.
Although the mother does not depose to any abusive conduct by the father in 2013 she sets out a number of examples from April to November 2014 of the father’s threatening and aggressive behaviour towards her. She says that while on an overseas holiday in September and October 2014 on a number of occasions the father discussed killing either himself or her, swore aggressively at her in the presence of the children, took her passport, money and credit cards from her and assaulted her by hitting her on the head with a credit card until a friend intervened.
There was a particular event of significance on 30 November 2014 when the father decided to sleep in the shed at the family home and sent the mother a message from the shed that he was “going to sleep here forever”. The mother became concerned and went to check on the father but discovered that the door to the shed was locked and she did not have a key. The mother could hear a car engine running on the other side of the door and when she attempted to contact the father by his mobile telephone and text message he did not answer. The mother then contacted police who also experienced difficulties opening the door which they ultimately had to kick in and crawl under. The mother then heard the car engine stop and the police and the mother encouraged the father out of the car and shed. The father was taken by ambulance to a mental health facility for assessment. The mother later that evening found a text message on her phone from the father which attached a picture of a hose extending from the exhaust of the father’s car to the car window.
The father spent two nights in a mental health facility and when he returned home on 2 December 2014 the mother told him that their marriage was over. The father later referred to this event to various health professionals as a suicide attempt.
Events following separation
Parenting
Both parties remained in the family home until a further incident on 13 December 2014. On that day the father took both of the mother’s mobile telephones into an upstairs part of the house and locked the door behind him. After the door was unlocked the mother requested that the father return her phones but he refused and apparently was attempting to gain access to them. The parties began to grapple and the mother retrieved one phone which she threw into the hallway and called out to her son to take it. The incident ended when the mother took the children with her to her parents’ house for the ensuing six weeks.
The mother then rented a property for herself and the children while the father remained in the family home. The parents then shared the care of the children which at times was an equal shared care arrangement.
The father continued to be threatening, abusive and aggressive towards the mother following separation. In her affidavit the mother deposes to numerous occasions between January 2015 and August 2015 on which the father sent abusive text messages to her or used abusive language towards her in the presence of the children. Copies of many text messages are attached to her affidavit and include the father calling the mother names such as “selfish inconsiderate rude ungratefully fucken bitch” a “retard” “a fucken cunt”. On occasions the father’s demanding and aggressive tone can be gleaned from both the language and the format of the text such as when he writes “BRING THE FUCKEN KIDS HERE RIGHT FUCKEN NOW YOU STUPID CUNT”.
On occasions the father engaged in telephone conversations with the mother particularly when she was driving, in which he denigrated and threatened her in circumstances where the children could overhear the conversations.
At times when the children were in the father’s care in this period the father also interfered with the children’s schooling by taking them late to school or keeping them from school, refusing to return the children’s belongings to the mother or refusing to take them to organised events.
On 16 June 2015 the father climbed a fence at the mother’s property and entered her home through a window without her consent. He took photographs of items within home. The father then contacted the mother by telephone and sent pictures of items he had photographed and repeatedly questioned her about her personal life, at times in a threatening manner. The mother reported the incident to police and a provisional ADVO was made the following day against the father for the protection of the mother. The father was also charged with trespass and stalking or intimidating the mother with the intention of causing her to fear physical or mental harm and was subsequently convicted of these offences.
On 8 August 2015 there was a dispute between the parents in relation to the parenting arrangements which they appear to have tried to resolve by meeting at a police station. Ultimately, the father was arrested on that day for breaching the conditions of bail granted in relation to the earlier charge and contravening the ADVO. These charges related to the father having voluminous text and telephone contact with the mother on 7 August and making a threat to harm her and continuing the same conduct on 8 August including when she was at the police station where his verbal abuse was overheard by police. The father was refused bail in respect of these offences until 10 August 2015 when he was released.
On 20 August 2015 a final ADVO was made in a Local Court for the protection of the mother against the father for a period of 12 months. The final order included a restraint upon the father from going within 100 metres of the mother’s home or workplace and approaching or contacting the mother by any means except through his lawyer or as authorised under the parenting orders or in relation to arranging for the care or in respect of the health and wellbeing of the children.
On 10 September 2015 interim parenting orders were made with the consent of the parties providing for the children to live with their mother and spend time with the father overnight each alternate Monday and each alternate weekend from after school on Friday until before school the following Monday.
On 9 October 2015 the father’s driver’s licence was suspended for six months for driving more than 45 kilometres per hour over the speed limit.
On 28 October 2015 and 4 November 2015 the mother contacted police to report that the father had made comments on three occasions in recent times which she took as threats by him to harm the children. On 4 November 2015 the ADVO was amended on a provisional basis to extend the protection of the order to include the children. On 11 November 2015 the father was arrested and charged with contravening the ADVO and stalking or intimidating the mother with intent to cause her to fear harm. The father was refused bail and remained in custody for two months.
On 18 January 2016 the father failed to attend proceedings in this court (even though he had by then been released on bail) and the mother’s application for a variation of the parenting orders was determined in his absence. A Judge of this court ordered that the mother have sole parental responsibility for the children and that they live with her.
On 11 February 2016 the father pleaded guilty to the charge of driving while suspended and was convicted and placed on a good behaviour bond for 12 months and disqualified from driving for the same period.
On 24 February 2016 the father was convicted of the offences committed between October and November 2015 and sentenced to an eight month term of imprisonment which was suspended on conditions including that he not approach or contact the mother or the children and that he take medication and comply with the treatment directions of a psychiatrist and the Probation Service.
In the pre-sentence psychiatric report prepared by Dr K the father was diagnosed with depression based on his reported symptoms, including his serious suicide attempt in late 2014, and presentation at the time of interview. Dr K determined that there was no indication of the father having a psychotic illness or substance abuse disorder but the father’s long term use of the psychostimulant drug dexamphetamine may have been exacerbating his depressive symptoms. Dr K was of the opinion that there was a direct link between the father’s mental illness and his offending behaviour towards the mother and that the father should have his antidepressant medication reviewed and complete an online treatment course for anxiety and depression.
The father appealed against the severity of the sentence in relation to the contravention of ADVO and intimidation charges from October and November 2015. He was convicted and resentenced to a good behaviour bond for two years. Although the supervision of Community Corrections and a condition that he accept the guidance of a nominated psychiatrist was imposed, the father was no longer restrained generally from contacting the mother and children but such contact was to be only in accordance with an order made by this court.
The father had not spent any time with the children since he was remanded in custody in November 2015. On 15 April 2016 he brought an application to spend time with the children after the appeal for the criminal matters was heard and the condition containing a complete restraint upon him contacting or approaching the children was removed.
On 24 May 2016 the father spent some time in the company of the children during the Child Responsive Program with a Family Consultant. Both parents indicated to the Family Consultant on this day that the children had been pleased to see the father. At that stage the mother proposed that the children spend supervised time with the father each week gradually increasing from a period of 4 hours to 7 hours and thereafter depending upon the father’s conduct. The father at that time was seeking an equal time arrangement for the children’s care on a final basis. The father expressed concern at that time if he were to pursue this parenting arrangement on an interim basis he believed it could result in the ADVO being contravened.
The Family Consultant evaluated that the children presented as having positive and established relationships with both parents at that time and that the primary issue appeared to be whether the children were at risk of harm in the father’s care. In particular the Family Consultant noted the allegations made and concerns raised about the father’s psychological functioning and the discrepancy between information concerning this matter provided by the father to her and in his affidavit. The Family Consultant recommended that a report be prepared by a single expert (child and family psychiatrist) regarding the nature of any mental health diagnosis, recommended treatment and potential impact particularly on parenting capacity of non-compliance. The court Memorandum containing this assessment was released at the end of July 2016.
On 28 September 2016 the father failed to appear at the hearing of his application to spend time with the children and that application was withdrawn by counsel who appeared on his behalf and dismissed.
The Family Consultant recommended that a report be prepared by an expert psychiatrist and I confirmed at two court events that this would be required. Although the mother made it clear that she did not seek an order that the father have no time with the children but wished to be informed by the single expert as to that time, no agreement was reached between the parties for the appointment of such an expert. It appeared both parties maintained they could not afford to fund such a report.
The father has spent no time with the children since having that opportunity with a Family Consultant in May 2016.
The father did not appear at number of court events after March 2017 and did not comply with trial directions for the filing of an amended Response and trial affidavit. He has disengaged with the proceedings and his proposal with respect to the children is unknown.
Property
When the parties physically separated in December 2014 the mother spoke to the father and paternal grandmother about receiving an amount of money in relation to her interest in the Suburb J property. The parties and paternal grandmother reached agreement that the paternal grandmother and father would “buy out” the mother’s interest in the property. The father and paternal grandmother told the mother that they had received an offer to buy the Suburb J property for $1.8 million dollars but were willing to buy the mother’s share in the property on the basis of a valuation of $1.9 million dollars.
In June 2015 the mother attended upon the paternal grandmother’s lawyer and collected a cheque for $150,000 which she understood to be the balance owing to her on the basis of a valuation of the entire property of $1.9 million after her share of the mortgage had been discharged.
In July 2015 the Suburb J property was sold for $2.5 million dollars with a delayed settlement which was not to occur until December 2015. The mother did not become aware of the sale until September 2015.
In July 2015 after receiving the $150,000 the mother purchased a property in Suburb L as a home for herself and the children. She obtained a bank loan for the balance of the purchase price of about $410,000.
There is no evidence of the amount received by the father from the sale of the Suburb J property or any other evidence concerning his financial position at the date of the final hearing.
Parenting: The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, 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 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
12.5
The Full Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The children have had the benefit of having a meaningful relationship with both parents before separation and for almost one year following separation when the parents continued to share their care.
The children will continue to receive the benefit of having a meaningful relationship with the mother under her proposed orders. They would also receive the benefit of having a meaningful relationship with both parents if orders are made as sought by the father in his Response filed in February 2016 when he then proposed that the parents have equal shared parental responsibility for the children and that they spend substantial and significant time in his care. However, the father has not participated in the proceedings and put forth evidence in support of those proposed orders. It is difficult in these circumstances to draw any inference other than that he can be taken to accept that the children will not receive a benefit in having a meaningful relationship with him.
The mother does not contend that the children would not receive a benefit in having a meaningful relationship with their father in the future. In her Further Amended Initiating Application dated 19 May 2017 upon which she relies the mother does not seek an order that the father spend no time with the children but rather seeks an order that the father spend time with the children as agreed between the parties in writing. So far as I understand it, the mother has not ever sought an order that the father spend no time with the children.
In submissions made on the mother’s behalf at the final hearing it was reiterated that the mother accepts that there would be a benefit for the children in having a meaningful relationship with the father if she could be assured that the father is not suffering mental health problems which she contends gives rise to a risk to the children. This is consistent with the approach that she has taken in the proceedings to date.
The Family Consultant in the Children and Parent’s Issues Assessment, a document produced as part of the Child Responsive Program (Exhibit 4) noted a discrepancy between information given by the father and information contained in his affidavit regarding his mental health. She recommended that a report be prepared by a court appointed expert child and family psychiatrist. The father attended either in person or through counsel at a number of court events following the release of this document but continued to maintain for some time that he could not afford such a report. Ultimately neither party has taken any steps to seek orders to appoint an expert and the father has since disengaged with the court process.
In circumstances where it appears that the mother has high levels of mistrust concerning the father and the parties are not communicating at all, it is highly unlikely in my view that the parties will reach any agreement about the father’s time with the children. If this does not occur there will be nothing to support the children in having a meaningful relationship with their father. It is tragic for them that the father has not taken any steps to address a legitimate concern raised by the mother concerning his mental health particularly as it is her position that the children would benefit from having a meaningful relationship with their father.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
Although the father’s final position in relating to parenting orders is unknown, he can be taken to not be raising any concerns about abuse, neglect or family violence in the mother’s household as his last proposal was that she be their primary carer. Further, although the father raised some matters of concern about the mother’s mental health with the Family Consultant, he did not raise matters relating to the risk of harm envisaged in this consideration.
The father did raise concerns with the Family Consultant about the children spending time with the maternal grandparents who he alleged were “alcoholics [and] abusive to their children” psychologically physically and emotionally. However, as the father has disengaged from the proceedings and there is no evidence in support of this allegation and I am unable to find that any risk on this basis arises in the mother’s care.
It is the mother’s contention that the father has made both overt and implied threats to harm the children which enliven this consideration, but she concedes that there is insufficient information particularly in relation to any risk relating to the father’s mental health due to his failure to engage with the court process. For this reason she does not seek a finding that the father poses an unacceptable risk of harm to the children or that orders be made that the father spend no time with the children.
The father’s conduct including alleged threats to harm the children formed the basis of the charges against him in October to November 2015 of which he was subsequently convicted. The mother says that the father’s conduct that led to his arrest was as follows.
The mother alleges that the father rang her at around 9pm on 3 October 2015 when he and the children were in a car and that the following conversation occurred:
I said to [Mr Toohey] “where are you driving this time of night with the kids?” [Mr Toohey] replied “I’m taking them to see [Ms M]”. The “[Ms M]” [Mr Toohey] referred to, I believe, was a friend of mine who committed suicide around 6 years ago by jumping off the Gap in Sydney. I said to [Mr Toohey] “what do you mean?” [Mr Toohey] did not reply. I then said “stop making silly comments and tell the kids I’ll see them on Monday” [Mr Toohey] replied “yeh for identification purposes only”.
The mother also says that she received a text message from the father on 16 October 2015 which said:
When you come over to [Suburb J] you will find them in the shed.
The mother deposes that she was of the view the father was making reference to the incident in November 2014 when he attempted to commit suicide in the shed at their Suburb J home. She also says that on 24 October 2015 when she and the father met to collect one of the children’s items an exchange between the two took place in which the father said:
The one thing you have taught me is to understand how people can kill their children.
The mother deposes to a conversation a few days later on 31 October 2015 when the children were in the father’s care and she was speaking to the children on speaker phone. The father came onto the phone and said:
Do you want to say goodbye to the kids one last time?
She says that the following day when having a further conversation with the father on the phone in which arrangements for the children were discussed, the father said:
I can’t believe you don’t care that I was going to kill the three of us.
She deposes to a further telephone conversation on 3 November 2015 when she said “I can’t believe you were going to take the kid’s lives away from them” and the father replied “why would I leave them with you?”
Although the father was convicted of contravening an AVO and stalking or intimidating the mother, the Local Court records which were tendered in the proceedings (Exhibit 2) indicate that the charges against the father were defended and there is no evidence about the findings of the Magistrate.
The mother reported to the Family Consultant in May 2016 (in the Child Responsive Program) that the father’s convictions in around October and November 2015 related to him “constantly” contacting her and having made threats to kill the children and himself. She told the Family Consultant that the [implied threats in his conversation on 3 October] were an attempt to get her to engage in conversation with him. It is reported by the Family Consultant that the mother “initially said that she did not believe that [the father] would intentionally harm the children but went on to state that he can be “unpredictable” and that she held concerns he would harm the children to hurt her”. It is reported that the father denied to the Family Consultant that he had made threats to harm the children and himself.
I am unable to positively find that the father did make the overt and implied threats to harm the children in October and November 2015 or that there is an unacceptable risk that the children may be harmed from being subjected to abuse or family violence as a result of the father’s conduct in October and November 2015. The issue of the father’s mental condition generally and whether his capacity to care for the children is impaired as a result is a matter to which I will return.
I am also not satisfied that the allegations of family violence made by the mother give rise to a particular need to protect the children from psychological harm from being exposed to such family violence.
Although the mother deposes in her affidavit to the father engaging in aggressive and somewhat erratic conduct towards her in 2012 and 2014, she does not allege that the father was physically violent to her except for a relatively minor incident when she says that he hit her repeatedly on her head with a credit card when on a holiday overseas in October 2014.
The mother also did not report physical violence by the father towards her to the Family Consultant though she said that in hindsight that he had been controlling towards her during the relationship. The mother does not however depose to controlling conduct during the relationship in her affidavit though she does however, depose to serious verbal abuse by the father towards her at the time of and after separation. The father confirmed to the Family Consultant that he and the mother had been verbally abusive toward each other at the time of separation. The father also told the Family Consultant that he had been “distraught” regarding separation which occurred two days after he tried to take his own life.
The father’s verbal abuse and offensive language towards the mother appears to have escalated from about June 2015, six months after separation. For example, it is during this period that he father sent the text message referred to at the end of paragraph 29 in this judgment. On 15 June 2015 he sent a text message which said:
you make me fucken sick. I hope you crash and die on the way back from Canberra. I hope it’s slow and really fucken painful. You fucken selfish ankle.
The mother says the father on a previous occasion said to her:
Do you know what an ankle is? It means lower than a cunt and that’s what I will refer to you as from now on.
His text messages are then replete with text messages referring to the mother as an “ankle”.
On 16 June 2015 the father entered the mother’s home without her consent, took photographs of items in her home and repeatedly questioned her about her personal life including in a threatening manner which gave rise to a provisional ADVO being made against him for her protection. The father was also charged with trespass and stalking or intimidating the mother with the intention of causing her to fear harm as a result of this conduct, offences to which he pleaded guilty.
I am satisfied that the father’s verbal denigration and abuse of the mother, entering her home and associated conduct amounts to family violence as defined in the Act.[6]
[6] Family violence is defined by section 4 of the Family Law Act 1975 (Cth) as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”.
I am not however satisfied that the children were exposed to family violence other than offensive language.
When interviewed by the Family Consultant the younger child C spoke about the father being “rude” and to swearing at the mother but reported no worries regarding either parent. The eldest child B similarly reported having heard his father swear at his mother but did not report being fearful of his father.
The Family Consultant did not identify family violence as a significant issue.
Although it is undoubtedly in all children’s best interests to be protected from the harm associated with abuse, neglect and family violence, I am unable to make any findings that the children have been either subjected to abuse or family violence or exposed to family violence or that there is an unacceptable risk of this occurring. There are no allegations of the children being neglected in each parent’s care.
In the circumstances of this matter, I am satisfied that the children would receive the benefit of having a meaningful relationship with their father and this is not outweighed by the need to protect the children from harm arising from abuse, neglect or family violence. As previously noted it is tragic for these children that their father is not seeking orders that would foster a meaningful relationship with him and it is unlikely that the relationship will be supported by the mother reaching agreement with him about spending time with the children unless he addresses her issues of concern, a matter to which I will return.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
There is limited evidence of the children’s views as they were interviewed by a Family Consultant only for the purposes of the Child Responsive Program. At that time both children who were aged nine and six respectively both spoke in positive terms about their father.
The Family Consultant reported the following about the children’s views:
When asked about her views, [C] suggested spending Sunday, Monday and Tuesdays with [the mother] and Thursdays, Fridays, Saturdays with [the father], stating “so three days each”. She confirmed that she preferred an equal time arrangement “because it’s fair” to her parents. [C] stated that she would feel “sad” if she continued to spend no time with [the father] because she wants to see him.
…
[B] stated that he wants to spend time with [the father] but made no suggestions regarding specific arrangements for this. He said that continuing to spend no time with [the father] would be “upsetting” and that an equal time arrangement would be “better”. When asked about spending time with [the father] on weekends, [B] stated “I wouldn’t like that at all” and said that such an arrangement would not be fair to him and [C].
Having regard to the children’s age, it is in my view appropriate to attach some weight to their desire to see their father. However, in circumstances where the father is not participating in the proceedings and seeking orders to give effect to the children’s views, it is difficult to afford those views weight in the proceedings.
It can only be hoped that both parents will also take into account the children’s desire to see the father and reach agreement about this occurring, though it is recognised that this is unlikely.
Nature of the children’s relationship with each parent and other significant persons
The Family Consultant reported the following about the children’s relationship with each parent:
[C] spoke positively about [the mother] and [the father] and identified activities she does with both parents. She stated that a negative attribute regarding [the mother] is getting yelled at when she is in trouble for being naughty and identified no negative attributes regarding [the father]. She reported no worries regarding either parent.
…
[B] spoke positively about both parents and identified no negative attributes or concerns regarding either parent. He became visibly upset and started crying when discussing [the father] and identified that he missed him. [B] stated that having seen [the father] on the day of the interview was “amazing”.
The Family Consultant, in the Child and Parent Issues Assessment Report, opined the following:
The children present as having positive and established relationships with both parents with is consistent with both parent’s accounts of the nature of the children’s relationships (sic).
It is clear that the children shared a close attachment relationship with each of their parents given the shared role that each parent played in the children’s upbringing which continued after separation and up until the father was arrested and incarcerated in November 2015. The severing of the children’s relationship with their father at this time must have been bewildering for them. Their confusion is evident in their comments to the Family Consultant.
As a result of their life experience and especially sharing the family home with the paternal grandmother it is likely that the children shared a close relationship with her and that she was an important person in their lives. The children both identified the paternal grandmother as part of their family to the Family Consultant.
It is likely that there will be long standing impacts upon the children if their relationship with their father and extended paternal family is not restored.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
These are in my view particularly salient considerations in this matter. Throughout their lives including following the separation of the parents, the children were cared for by both parents. Each, it appears, participated in making long term decisions for the children and each cared for the children and maintained them. This arrangement came to an end when the father was arrested for the second time for threatening the mother and breaching an ADVO for her protection which resulted in him being incarcerated for two months from November 2015 to January 2016.
After being released from custody there is no explanation for the father’s inconsistent participation in these proceedings and subsequent disengagement from them. The father failed to attend on 18 January 2016 and the mother’s application for a variation of the parenting orders was determined in his absence. On that day, orders were made for the mother to have sole parental responsibility for the children and for them to live with her. The following month, the father was convicted of the offences committed between October and November 2015. His sentence of a suspended term of imprisonment which included a condition that he not approach or contact the mother or the children would appear to provide some explanation for his failure to pursue parenting orders at that time. However, the father successfully appealed against that sentence and the restraint on contacting the mother and children did not form part of his sentence following appeal, though any such contact was to be only in accordance with an order made by this court.
The father then brought an application in April 2016 to spend time with the children which initially progressed in the usual manner with the family participating in the Child Responsive Program with a Family Consultant in May 2016. The court Memorandum in relation to the Child Responsive Program was released at the end of July 2016. On 28 September 2016 the father failed to appear at the hearing of his application to spend time with the children and that application was withdrawn by counsel who appeared on his behalf and dismissed. Although the Senior Registrar directed that the father file a medical certificate in relation to his failure to appear on this occasion, the father has not complied with that direction.
As previously discussed in these Reasons, the Family Consultant recommended that an expert psychiatrist be appointed in the proceedings but both parties appear to have maintained they could not afford to fund such a report. The father’s disengagement from the proceedings from this stage remains unexplained. There is no satisfactory explanation in my view why the father has not pursed his application to play a role in making decisions in the children’s lives by seeking orders in relation to parental responsibility or spending time with or communicating with the children.
The father has not financially supported the mother in the care of the children since November 2015.
Likely effect of change in the children’s circumstances
The children’s circumstances dramatically changed in November 2015 when the father was arrested and taken into custody. Until that time the parents had shared the care of the children. Until then the father was active in the children’s everyday life and it can be inferred that they experienced a close connection with the extended paternal family including in particular their grandmother.
It appears apparent from the children’s comments made to the Family Consultant that they find the absence of their father from their lives confusing and were keen to spend time with him and have their former life restored. Although the mother’s proposal which is effectively the only proposal under consideration ,will continue this arrangement that has been in place since November 2015, her proposal still amounts to a change in the children’s circumstances as there is no provision for them to spend any defined time with their father. In circumstances where as previously discussed it is unlikely that the parents will reach agreement about the father’s time with the children, their permanent separation from their father and paternal family is likely to be a real loss for them.
Capacity of each parent and any other person to provide for the children’s needs
Maturity, sex, lifestyle and background of the children and either parent
When the parents’ relationship was intact it appears that there were no concerns about the capacity of each parent to meet the children’s needs. Following the birth of the children although the mother was their primary care giver and for some time did not return to paid work, the father was also involved significantly in the care of the children both prior to and after separation.
Prior to separation when the family lived with the paternal grandmother it also appears that she played a role in the care of the children.
Since separation the mother appears to have competently met the children’s needs. She purchased a home for herself and the children and has continued in full time employment. The children appear to be well settled in a local school and to participate in a range of extra-curricular activities.
The father told the Family Consultant in the Child Responsive Program that he had been “distraught” about the separation which occurred two days after he tried to take his own life. A report by a psychiatrist Dr K dated 22 September 2015attached to the father’s affidavit and used in relation to his criminal proceedings upon which the mother relies refers to the father as suffering from a “depressive illness” and “possible attention deficit hyperactivity disorder.”
It appears that although the mother complains of highly offensive and abusive language used by the father the parents were able to co-parent reasonably effectively for some months after separation and each parent demonstrated a capacity to meet the children’s needs without significant impairment.
The mother told the Family Consultant that the children had coped “really well” with the parental situation and said that she did not believe the children were in anyway negatively impacted by it. While it is difficult to accept that the children would have not experienced any negative impact of their parents’ separation and the Family Consultant notes that the father had deposed to the children experiencing some behavioural difficulties the children did not present to the Family Consultant with any serious matters of concern.
The primary issue in the matter identified by the Family Consultant is whether the children are at risk of harm in the father’s care in light of the allegations made and concerns raised regarding this psychological functioning and wellbeing. Although the Family Consultant refers to concerns about the father’s behaviour prior to separation as well as after separation, the concerns raised prior to separation all appear to relate to the mother’s complaints rather than objective or independent evidence about the father. As discussed, in my view it appears that the father was functioning reasonably well for a short time following separation but his psychological functioning and behaviour became a matter of much greater concern from June 2015 when he entered the mother’s property without her consent and contacted the mother by telephone and sent pictures of items he had photographed and repeatedly questioned her about her personal life, at times in a threatening manner.
It appears that the father’s concerning behaviour deteriorated from around this time as is evidenced by him breaching the conditions of his bail and committing further offences including contraventions of the ADVO from August to November 2015 culminating in his arrest on 11 November, being refused bail and remaining in custody for two months. This series of events and the opinion of the psychiatrist contained in the report used in his sentencing proceedings give rise to real concerns about the father’s psychological functioning and behaviour and its impact upon his capacity to meet the children’s needs.
As discussed earlier in this judgment at some length it is of concern that the father has not put evidence before the court to address the issue of his capacity to meet the children’s needs in these circumstances.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
There is no doubt that the mother loves her children, wants the best for them and has been a responsible parent. She has cared for the children alone since November 2015 but does not appear to have damaged the children’s view of their father, and accepts that the children would receive a benefit from having a relationship with him.
It is also likely that the father loves the children and it is difficult to understand why he has demonstrated such a poor attitude to the responsibilities of parenthood by effectively abandoning his application for orders to support the children having a meaningful relationship with him.
Family violence relating to the children or a member of the children’s family
I am unable to make any positive findings with respect to family violence prior to separation. However, on the basis of the threatening and verbally abusive language used by the father toward the mother and breaches of the ADVO, I am satisfied that the father was the perpetrator of family violence following separation.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In my view in the circumstances of this case it would not be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children.
It is generally the case that children are adversely affected by a continuation of a parental dispute through ongoing court proceedings. In this case however, although the dispute at times has been intense and the father’s behaviour has even resulted in his incarceration, the children appear to have been shielded from the parental dispute. Although in my view the mother has probably presented the children’s presentation in an overly positive light to the Family Consultant in saying that they were not in any way negatively impacted by the parental separation, both children spoke positively about each of their parents and expressed sadness over not seeing their father. The Family Consultant concluded that both children presented as having positive and established relationships with both parents. It would be undoubtedly to the children’s benefit that they re-establish their relationship with their father in circumstances which are safe for them.
As previously discussed in my view it is unlikely that the parents will reach agreement in relation to the father’s time with the children and the more likely manner in which the relationship between the father and the children could be re-established would be for him to institute further parenting proceedings (which would necessarily involve him adducing evidence to address concerns about his psychological functioning).
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[7] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[7] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
For the reasons given, I am satisfied that the father engaged in family violence against the mother following separation so the presumption does not apply. Nonetheless, equal shared parental responsibility must be considered as the father sought an order in these terms in his most recent Response filed in April 2016. In circumstances where the father has not exercised any parental responsibility for the children since at least November 2015 and where he has effectively abandoned his application for this order and has not participated in these proceedings for some months including at final hearing, I am satisfied that it would not be in the children’s best interest for the parent’s to have equal shared parental responsibility for them.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother for sole parental responsibility must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the father would have none of the duties, powers, responsibilities and authority with respect to the children. The mother has been exercising sole parental responsibility for the children from at least November 2015. She is the only parent actively seeking orders in these proceedings. Having regard to these circumstances and all of the foregoing consideration of the best interest factors, I am satisfied that it is in the children’s best interests for the mother to hold sole parental responsibility.
Other parenting orders
So far as the balance of the orders sought by the mother are concerned, clearly the most compelling factor in these proceedings is the father’s non participation. Although I am of the view that the children would receive a benefit from having a meaningful relationship with the father the only proposal before the court for that relationship to be fostered is the mother’s. There is no evidence from which it could be concluded that it would be in the children’s best interests for them to live in a shared care arrangement as last promoted by the father and he can be taken to no longer seek such orders through his failure to participate in the proceedings.
In circumstances where legitimate questions are raised concerning the father’s parental capacity and a risk to the children that may arise as a result of his psychological functioning and past behaviour which has not been addressed by the father, I am satisfied that the orders proposed by the mother are in the children’s best interests. Although those orders do not provide for the father spending defined time with the children or communicating with him, they do provide for such time if the parents are able to reach agreement. This leaves open an opportunity for the father to spend time with the children if he addresses the mother’s concerns. Alternatively the father may seek orders that foster his relationship with the children in the future.
Property: The Law & Discussion
The approach to the determination of an application for property settlement orders is set out in Stanford v Stanford[8], which was considered in detail by the Full Court in Bevan & Bevan[9].
[8] (2012) 247 CLR 108
[9] [2013] FamCAFC 116
The starting point is a consideration of “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property”[10].
[10] Stanford & Stanford (2012) 247 CLR 108 at [37].
This involves identifying the existing interests and then considering whether having regard to the particular circumstances before me, it would be just and fair to make orders for the alteration of property interests.
I should next consider the matters set out in s 79(4)(a) to (c) of the Family Law Act 1975 (Cth) (“the Act”), that is the financial and non-financial contribution made by the parties to the property and to the welfare of the family constituted by the parties.
I must then consider the remainder of the matters in s 79(4) including the matters referred to in sub-section 75(2) so far as they are relevant, and determine on this basis whether there should be a further adjustment to the parties’ contribution-based entitlements.
Finally, I must then consider the justice and equity of the proposed orders. As was said in Bevan (supra) at [86], the just and equitable requirements is “not a threshold issue, but rather one permeating the entire process”.
What are the existing interests of the parties?
Due to the father’s failure to engage with the proceedings, there is no agreement between the parties as to the property available for distribution and the assets and liabilities of the father are substantially unknown.
It is the mother’s case that the father’s property interests can be inferred from the evidence concerning the sale of the Suburb J property. In her affidavit the mother deposes to receiving $150,000 from the paternal grandmother’s solicitor which represented the balance owing to her after her share of the mortgage secured over the property had been discharged. She also deposes to the father and paternal grandmother informing her that they had received an offer of $1.8 million dollars for the property but were willing to calculate her share based on a value of $1.9 million dollars.
The mother says that in September 2015 she became aware that the Suburb J property had been sold at about the end of July 2015 for $2.5 million dollars.
Documents produced on subpoena from the paternal grandmother’s solicitors (Exhibit 7) confirm that a cheque in the sum of $150,000 was issued to the mother on 24 June 2015. Emails to the maternal grandmother from her solicitor are also consistent with the mother’s evidence that the parties and paternal grandmother reached an agreement that the sum to be received by the mother to “pay her out” of her interest in the Suburb J property was $150,000. A hand written direction dated 9 December 2015 apparently written and signed by the father directs that $66,500 be placed in a trust fund in his name and the “remainder” “go to” his mother. The paternal grandmother’s solicitor’s file also contains a contract for the sale of the property dated 20 July 2015 with a completion date of 18 December 2015 with a purchase price of $2.5 million dollars.
Documents produced on subpoena by the real estate agency that managed the sale (Exhibit 6) include a letter from the purchaser’s solicitor to the real estate agent confirming that contracts were exchanged on 20 July and that settlement was due to take place on or before 18 December 2015. One of the documents produced on Subpoena upon which the mother relies is also an exclusive agency agreement entered into by the father and the paternal grandmother on 27 June 2015 in which it is specified that the property is to be offered for sale at “offers over $2.5 million dollars”. The agent expressed the opinion in that document that the current estimated selling price was between $2.5 and $2.8 million dollars.
On the basis of the foregoing evidence concerning the sale of the property I am satisfied that about three days after the mother received $150,000 for her share of the Suburb J property the father and paternal grandmother entered into a contract to sell the property for a minimum price of $2.5 million dollars being at least $600,000 more that the father and the paternal grandmother represented to the mother was a fair value of the property. I am also satisfied that the property was sold for $2.5 million dollars and that the father was entitled to receive at least 16.5 per cent share of the purchase price being $412,500. The father and the mother had previously owned a 33 per cent share of the property as joint tenants (being $825,000 of the sale price of the property). It is possible that the father received more than that entitlement but in my view he should be treated as having received the $412,500 to which he was entitled.
The question then arises about determining what has become of the funds that he must have received from the sale which was completed in December 2015 which is relevant in determining the father’s current assets and liabilities.
I find that the father’s disengagement from the proceedings amounts to a deliberate non-disclosure by him as to his property and am satisfied that he had at least the assets attributed to him as set out in the following table at the time of the final hearing.
| LIST OF ASSETS AND LIABILITIES | |||||
| ASSET | HUSBAND | WIFE | JOINT | ||
| Suburb L property | $565,000 | ||||
| ANZ Accounts | $2,900 | ||||
| Japanese motor vehicle | $24,000 | ||||
| Household contents | $8,000 | ||||
| Bendigo Bank Account | $13,213 | ||||
| Sedan motor vehicle | $1,000 | ||||
| Sports Car | $unknown | ||||
| Household contents | $5,000 | ||||
| Tools | $5,000 | ||||
| Proceeds from sale of Suburb J property | $412,500 (at minimum) | ||||
| Total Assets | $426,713 | $599,000 | $ | ||
| LIABILITIES | HUSBAND | WIFE | JOINT | ||
| Mortgage on Suburb L property | $430,000 | ||||
| Coles credit card | $6,500 | ||||
| Total Liabilities | $ | $436,500 | $ | ||
| SUPERANNUATION | HUSBAND | WIFE | JOINT | ||
| H | $57,151.33 | ||||
| AMP | $2,821 E | ||||
| N | $50,000 E | ||||
| Total Superannuation | $ 59,972.33 | $50,000 | $ | ||
| TOTAL NET ASSETS | $486,685.33 | $212,500 | $ | ||
| (Estimate) $699,185.33 | |||||
It is to be reiterated at this point that although this table might suggest that the current property interests of the parties can be ascertained with precision, the husband’s assets are by definition an estimate arrived at doing the best I can in these uncertain circumstances and is likely to be an under estimate. For example, there is no value attributed to the father’s sports car. Alternatively, the sum of $412,500 could be considered as matrimonial property which the father has dealt with without providing any explanation and on this basis should be added back or included in the total available for distribution.
Although for the reasons given, the father should be treated as having assets to the value of $486,685.33 the mother approaches the matter on the basis that the only asset in the hands of the father that is physically available for distribution is his H Superannuation interest valued at $57,151.33. The only order that she seeks is that she be allocated 100 per cent of this superannuation entitlement whenever a splitable payment becomes payable. The only other item the wife seeks orders in relation to is a motor vehicle valued at $1,000 that the wife believes is now registered in the husband’s name and stored on the paternal grandmother’s property, which the mother seeks to have no responsibility or liability for.
In these circumstances the question to be determined is whether it would be just and equitable to leave the property rights intact where the husband had assets to the value of at least $486,000 at his disposal in December 2016 (and should be treated as having at least a roughly similar sum available to him at the time of final hearing) and the wife has $212,500 at her disposal.
Usually, as was indicated in Stanford (supra) the requirement that it would be just and equitable to make an order is in many cases readily satisfied by observing that at [42]:
…as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. … any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. …
In this case, the parties accumulated property and were subsequently married for 11 years before separating. Neither party brought any significant property or financial resources to the marriage. The only asset of certain value that was obtained by the parties was their 33 per cent share as joint tenants in the Suburb J property which had been sold by the time of the final hearing. The wife used the money she received from the sale of this property to purchase a property at Suburb L in which she and the children live. The mother also has a very small superannuation interest and the father has a modest superannuation interest. The father also retains a sports car the value of which is unknown and each party has household items and a small sum in the bank.
It is clear that the father would have received at minimum $412,500 from the sale of the family home and it would not be just or equitable to the mother to exclude this amount from the asset pool simply because the father has failed to disclose the exact value of his share. This is particularly so when the mother’s own share of $150,000 has been included in the asset pool.
A consideration of whether it is just and equitable to adjust the property interests of the parties must be measured against the known and notional property.
In Kingsley & Trang[11] a decision approved by the Full Court in Trang & Kingsley[12], Cronin J stated:
[64] The difficulty arises in cases associated with absence of plausible explanation as to what has happened to money. Some insight as to how that issue is to be approached can be seen from the Full Court determination in Chang v Su (2002) FLC 93-117 where Kay and Dawe JJ said [at 89,195] said that an order could only be just and equitable if it was measured against the whole of the available assets of the parties. The available assets of the parties in this case are those that are known including the assets in Country A but to achieve justice for both parties, the Court has to deal as best it can, with what the wife had and has disposed of and thus, the justice and equity of any order must be measured against both the known and potential notional figures.
[65] Having regard to the wife’s evidence, the Court is entitled to contemplate the observations of the Full Court in Weir and Weir (1993) FLC 92-338 where at 79,593, the Full Court said:
It seems to us that once it has been established that there has been a deliberate non-disclosure…then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
[66] I find that but for her disposal of significant funds under her control, the wife would have had much more than she now asserts and whilst it is open to speculate that the Court might not have altered her entitlement to those funds on the assumption that she had kept them separate from the husband and he had been content with that, including the Country A land, what the wife has taken and/or retained, would still have been taken into account in any ultimate adjustment. The justification for that approach lies in s 79(4)(e) and (f) and in respect of the former, s 75(2)(n) and (o). All of those have to be contemplated with the question of whether it is just and equitable to make an order at all.
[11] [2016] FamCA 790.
[12] [2017] FamCAFC 120.
I am satisfied that but for the husband’s non-participation in the proceedings he would be required to explain what he has done with his share of the proceeds of the Suburb J property or those proceeds would be available for distribution. In circumstances where he alone has had access to those funds I am satisfied that it is just and equitable to make orders under section 79 of the Act.
Contributions
Under s 79(4) of the Act, in considering what order should be made in property settlement proceedings, I must take into account the financial and non-financial contributions directly or indirectly made to the acquisition, conservation or improvement of any of the property of the parties and the contributions made to the welfare of the family and the children, including contributions as a homemaker or parent.
The parties each had limited assets when their relationship began and essentially made equal contributions to the accumulation of property and welfare of the family. The father worked full time and assisted with the care of the children and the mother worked full time or part time while being the primary carer of the children. Accordingly, I assess the total contribution made by each party to be roughly equal at the time of separation.
So far as contributions after separation are concerned, after the mother moved out of the family home in December 2014 the father had the benefit of continuing to live there with his mother until that property was sold seven months later.
The mother, using the $150,000 she was paid by the father’s mother for her share of the Suburb J home, purchased a property at Suburb L in 2015. The mother has been solely responsible for the mortgage repayments on that property. Although she and the father equally shared the care of the children and presumably the costs associated with the children’s maintenance until November 2015 since that date the children have lived with the mother alone in her home and she has not received any child support from the father. The mother alone has been responsible for maintaining the children both financially and non-financially for almost two years.
The mother states in her affidavit that her current liabilities comprise the mortgage on her Suburb L property, her credit card debt and a debt to Maria Ball, her mother, of $37,000. As the mother has not provided any evidence as to the circumstances surrounding this debt to her mother or for what purposes that money was used it has been excluded from the balance sheet.
In my view, the post-separation financial and non-financial contributions of the mother are significantly greater than the father’s and I make an adjustment in favour of the mother on that basis.
Section 75(2) Factors
The mother is 39 years old and currently in full time employment. The mother’s financial statement indicates that she earns approximately $1,750 per week including government benefits and expends a significant proportion of her earnings in maintenance of herself, the children and mortgage repayments.
The mother is currently the only carer for the parties’ 10 year old son and seven year old daughter who have not seen their father since November 2015. Given the ages of the children it is likely that the mother will be their primary carer and maintain the children financially for at least the next 10 years. This is in circumstances where the mother has been the primary carer of the children for most of the time since separation and has borne the financial burden of caring for the children alone without any child support or financial assistance from the father since November 2015. There is little likelihood that the father will provide any financial or non-financial support to the mother in the future as he has not played a role in the children’s lives for almost two years.
The 40 year old father’s current circumstances in relation to employment and finances and financial resources are unknown. The father has been employed for many years and supported the family from his income. There is no evidence to suggest he is not capable of continuing to be employed.
Accordingly, due to the mother’s significant obligations to support the children, the lack of child support and financial assistance likely to be provided by the father, the father’s assumed capacity for employment and the significant uncertainty about the father’s current financial circumstances and assets it is appropriate in my view to make a further adjustment of 10 per cent in favour of the mother.
Just and equitable orders
On the basis of the foregoing, I am satisfied that the mother should receive 62.5 per cent of the known and potential notional property. In these circumstances if the notational property pool were to be regarded as around $699,000 then the mother should receive just over $436,000 and the father just under $264,000. In my view it would be just and equitable for there to be orders made for the husband to pay to the wife just over $173,000 in addition to an order that the wife be paid the entirety of the husband’s superannuation. However, the mother is not seeking orders that she be paid any sum by the husband but that she have transferred to her 100 per cent of his current superannuation interest of $57,151.31. By way of letter sent 25 May 2017 the Trustee of H Super consented to the superannuation splitting orders as proposed by the mother. In these circumstances where the husband’s current superannuation interest is well below an amount the mother would be entitled to receive, I am satisfied that it is just and equitable for the orders to be made in the terms she seeks.
The orders that I make are in the terms sought by the mother and set out at the forefront of these reasons for Judgment.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 August 2017.
Legal Associate:
Date: 15 August 2017
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Family Law
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Property Law
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