Townsend and Townsend
[2017] FCCA 1149
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOWNSEND & TOWNSEND | [2017] FCCA 1149 |
| Catchwords: FAMILY LAW – Children and Property – children refusing to spend time with father – allegations of family violence – unacceptable risk considered – mother’s willingness and ability to foster a relationship for children with the father – considerations of contributions and relevant s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), 60CA,60CC, 60CC(2),(a), (b), 60CC(3)(a), (b), (c), (CA), 61DA, 65DAA(3), 69ZT, 75(2), 79(1)(a),(b), 79(2), 79(4) |
| Cases cited: Champness & Hanson (2009) FLC 93-401 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MS TOWNSEND |
| Respondent: | MR TOWNSEND |
| File Number: | DGC 671 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 17, 18 & 19 May 2017 |
| Date of Last Submission: | 19 May 2017 |
| Delivered at: | Launceston |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Walker |
| Solicitors for the Applicant: | Walker Henderson Lawyers |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
ORDERS
Children
That the wife have sole parental responsibility for the children X born (omitted) 2005 (“X”) and Y born (omitted) 2006 (“Y”).
That the wife prudently keep the husband advised of the names and addresses of medical practitioners and any other medical specialists for X and Y and these Orders authorise the husband to have access to those practitioners and medical information in respect of X and Y such as is normally afforded parents.
That the wife prudently advise the husband as to any serious medical issues in respect of the children or either of them.
That the wife keep the husband advised of the addresses of the children’s schools and that these Orders authorise the husband to have access to the Principal, teachers and school events and reports normally afforded parents.
That X and Y live with the wife.
That the parents prudently do all things and sign all documents necessary for the husband, firstly, to attend upon a suitable qualified and experienced family counsellor/psychologist as agreed between the parties for the purposes of re-establishing a direct contact relationship for the children with the husband and for these purposes X and Y attend on the counsellor for initial interviews and then as directed by the counsellor including together with the husband at the discretion of the counsellor, and further that the wife attend as directed by the counsellor including for family therapy if the counsellor so directs.
That for the purposes of the counselling referred to in Order 6 hereof, the husband’s solicitors have leave to provide the counsellor with:
(i)A copy of these Reasons and Orders;
(ii)The Family Report of Ms S of 4 May 2017.
That the costs of the sessions with the counsellor be met by the husband in the first instance.
That the matter be listed for mention before Judge McGuire in the Federal Circuit Court at Launceston on Monday 5 February 2018 at 9.30 a.m.
That the parties or either of them have liberty to apply in respect of these Orders.
Property
That the net property of the parties inclusive of superannuation and pursuant to the findings in these Reasons be divided as to 50% to the wife and 50% to the husband and for these purposes:
(i)Within 60 days of the date of these Orders the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(a)The property situate at Property H (country omitted), The (country omitted) property (or its proceeds of sale) (at an agreed value of $254,000);
(b)The property situate at Property W (country omitted), The (country omitted) property (at an agreed value of $259,000);
(c)The property situate at Property K (country omitted), The (country omitted) property, (country omitted) (at an agreed value of $231,000);
(d)The property situate at Property M, in Tasmania (at an agreed value of $262,500);
(e)The property at Property I, in Tasmania (at an agreed value of $500,000);
(f)The husband’s Ford (omitted) motor vehicle;
(g)The balances of the husband’s (omitted) Bank complete access account;
(h)The balances of the husband’s (omitted) account;
(i)The balances of the husband’s (omitted) accounts, (omitted) and (omitted);
(j)The benefit of the notional adjustment to the husband’s bank accounts – agreed at $50,000;
(k)The husband’s (omitted) Bank superannuation policy;
(l)All personalty and chattels in the possession of or under the control of the husband as at the date of these Orders;
(m)Provided that should the properties situate at Property W (country omitted), The (country omitted) property and Property K (country omitted), The (country omitted) property or either of them be placed on the market for sale within 28 days of the date of these Orders and then be sold at arms length and at fair market price then the balance proceeds of sale of each after payment of proper and reasonable costs and disbursements on the sale(s) be substituted for the agreed values herein and the proceeds of sale thereby be included in the property pool and the value of the total pool be adjusted accordingly; and
(n)That each of the parties have liberty to apply in respect of Order (11)(m) above.
ii)That the wife be solely responsible for and indemnify the husband in respect of the following:
(a)Any and all liabilities attaching to any asset retained by the wife pursuant to these Orders;
(b)Any and all liabilities incurred by the wife since separation in either joint names or in her name alone;
(c)The wife’s credit card liabilities with (omitted) Bank, (omitted) Bank and (omitted) Bank;
(d)Outstanding school fees (agreed at $5,134); and
(e)The wife’s (omitted) Bank car loan.
That within 60 days of the date of these Orders the husband pay to the wife a lump sum of $882,680 but subject to these Orders and variation in the sale price of real property but so as to achieve a net 50/50 division of the value of the parties property pool.
That within 60 days of the date of these Orders the husband transfer and/or vest all his right title and interest in the following to the wife absolutely:
(a)The wife’s Hyundai (omitted) motor vehicle;
(b)The balances of the wife’s accounts with (omitted) Bank ((omitted)), (omitted) ((omitted)), (omitted) Bank cheque, access and online saver accounts;
(c)The wife’s superannuation policy with (omitted) super; and
(d)All personalty and chattels in the possession of or under the control of the wife as at the date of these Orders.
That the husband be solely responsible for and indemnify the wife in respect of the following:
(a)Any and all liabilities attaching to any of the assets to be restrained by the husband pursuant to these Orders;
(b)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone;
(c)The husband’s outstanding taxation debt and accounting fees (agreed at $100,000); and
(d)The husband’s credit card liabilities with (omitted) Mastercard.
That the parties or either of them have liberty to apply as to the implementation of these Orders.
That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Townsend & Townsend is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
DGC 671 of 2015
| MS TOWNSEND |
Applicant
And
| MR TOWNSEND |
Respondent
REASONS FOR JUDGMENT
The wife makes application in this matter for the following orders:
a)That she have sole parental responsibility for the parties’ two children being X born (omitted) 2005 (“X”) (aged 12) and Y born (omitted) 2006 (“Y”) (aged 10) and that X and Y live with her and spend no time with the father; and
b)That the parties’ pool of property, inclusive of superannuation, be divided as to a net 65% to her and a net 35% to the husband.
The husband opposes the orders on both counts. In his pre-trial document he sought orders for equal shared parental responsibility of X and Y and that they live between the parents on a week-about basis. He proposes a property settlement whereby he receives 60% of the net property of the parties inclusive of superannuation and the wife receive 40%.
Background
The husband is 47 years old. The wife is 38 years of age.
The wife is originally from the (country omitted) and the parties met and commenced a relationship there in June 2001. They married on (omitted) 2003 in the (country omitted). They have variously lived in the (country omitted) and South Australia. The parties separated on 1 June 2012. Since separation the wife and the children have lived in the Western Australia, Victoria and Tasmania. The husband has lived in Victoria. Both parties now live in Northern Tasmania although the husband is in a relationship with a lady who resides in Victoria.
The parties were divorced on 23 May 2015. These proceedings were commenced on the wife's application filed 11 March 2016.
The husband is by qualification a (occupation omitted). He is, however, currently unemployed. The wife is currently employed as an (occupation omitted) at a (employer omitted).
There is no evidence that the wife has re-partnered.
Since separation the children have spent only limited time with the husband being one supervised visit with both girls at the (omitted) Contact Centre and one further visit with just Y both in 2013. There has been no contact since.
In December 2013 the wife took both X and Y to consult with Dr L, psychologist.
A family report was ordered in this matter and interviews with family consultant, Ms S, took place on 3 May 2017. The report is dated 4 May 2017. The children declined to be interviewed with their father.
The Issues
The primary issues for the Courts consideration can be isolated as follows:
a)The veracity of the preferences and views of Y and X that they not have any relationship with their father;
b)Whether or not the wife has influenced the reluctance of Y and X not to spend time with their father;
c)The wife's allegations of family violence perpetrated by the husband on her and the children including physical, emotional, psychological and financial violence;
d)The bona fides of the husband’s application for parenting orders given the wife's assertion that he has previously declared that he did not to intend to pursue a relationship with his daughters;
e)The relevant date of the parties’ commencement of cohabitation or a committed financial relationship for the purposes of the property settlement orders;
f)The nature, extent and weight to be afforded the husband's initial financial contributions;
g)The weight to be afforded the wife's post-separation contributions; and
h)The extent of any adjustments after consideration of the relevant section 75(2) factors.
Parenting – the wife's case
The wife says that the children have consistently expressed a wish not to spend any time with the husband and that by reason of their ages, levels of maturity, and consistency of a preference then the children's wishes should be given considerable weight. Further, the wife argues that any orders contrary to the children’s views and preferences will be unlikely to result in any successful time-with relationship between the children and their father and, to the contrary, will impact negatively on the children's emotional and psychological health.
The wife says that the children's views have been influenced by family violence perpetrated on them by the husband together with emotional violence and by the children witnessing physical, emotional and financial violence perpetrated by him on the wife herself.
On occasion in the witness box the wife appeared to volunteer a different position whereby the children and the father engage in some psychological counselling or assistance towards a resolution of their difficulties. Nevertheless, she did not espouse any optimism in this regard and by the end of the evidence her Counsel’s submissions remained for a 'no- time' order.
The wife says that evidence of the contact centre visits in 2013 of a happy and comfortable demeanour of the girls is contrary to reality and that the girls complained of coercion and 'staging' by the husband during those visits. She says that the girls were upset and traumatised by the contact visits with their father and unambiguously expressed a desire that they discontinue.
The wife questions the husband's bona fides in seeking parenting orders. She says that he has previously made representations to her that she and the girls 'are dead' in his mind and that he did not actively pursue a relationship with his daughters following separation.
Parenting – the husband's case
The implication of the husband's case is that the mother has manipulated, influenced and/or alienated the children from him for her own selfish ends.
The husband says that the evidence of the Contact Centre observations contradict the wife's assertion that the children refuse to spend time with him. He says that this evidence is demonstrative of the children settling easily and being comfortable and happy with him when away from their mother.
The husband in his material and initially in his evidence in the witness box denied the wife's assertions and particulars of family violence. Nevertheless, under cross-examination he conceded a number of the particulars alleged by the wife including 'flicking” his daughters but attributes this to general play albeit at times rough play but denies any more sinister intent or any connection with anger management.
The husband says that he has always been desirous of a relationship with the children following separation is demonstrated by his move to Tasmania 'to be closer to the children'. He says that he initially pursued a relationship by negotiation between solicitors. He says he was thwarted in having such a relationship immediately following separation in that the wife obtained a Police Family Violence Order against him in July 2012 and he says that the wife referenced the PFVO and alleged that the children were scared of him when confronted with any requests or negotiations for time with the children.
The husband says that the wife has never encouraged the children's relationship with him. He delivered a gift to the children's home in August 2014 only to find that the wife had unilaterally removed herself and the children from Tasmania and without notice to him.
By the end of the evidence, the husband’s position had softened from the orders sought in his pre-trial document and he is agreeable to a process of counselling for himself and the children and/or family therapy in order to successfully re-establish a relationship with the children in that he now accepts that they are estranged from him.
The Evidence
The Family Report
The author of the family report, Ms S, was cross-examined as to the contents of her report which was dated 4 May 2017 and emanated from interviews conducted only on the previous day.
Ms S makes recommendations as follows:
63It is recommended that X and Y live with their mother.
64It is recommended that X and Y spend no time with their father until therapeutic intervention with an agreed upon child psychologist occurs and that management of an (sic) reintroduction phase between father and girls, if that is seen to be emotionally safe, occurs under professional supervision.
65It is recommended that that Mr Townsend and Ms Townsend individually undertake counselling for separated parents…
The family reporter interviewed both Y and X separately. She observed X to be more emotionally fragile, anxious and stressed than her sister Y although thoughtful and considered in her manner and responses. She observed an increase in anxiety and stress when the subject of Mr Townsend was raised.
At [46] X is reported as being fearful of her father because she had 'bad memories of him'. That paragraph continues:
She said that some of these memories related to her mother but that she had her own personal memories that made her scared of him. For example she stated that her father was “really mean to us”, “had favourites”, would play “challenge games where the winner was favoured by him” and “taught us to hurt each other by giving Chinese burns” and other forms of physical pain to each other. X said that she did not have any good memories of her father and was adamant that she did not want to see him for the purpose of this assessment. She visibly relaxed when she heard she did not need to, sitting back in her chair with a huge sigh.
At [47] the child Y is noted as follows:
When the subject of her father was opened, she screwed up her nose and shook her head. When asked what this behaviour meant she said “he is always not nice to us”, “he threw me against a wall”, “when we were young he told us to be quiet and he would flick us on our knees if we were not”, “he is not nice’.
At [49] Y is reported as liking her life with her mother and sister and describing the three of them as the 'three Musketeers'.
Y also refused to be observed with her father and at [50] is quoted:
Y said that she did not want to be observed with her father or to spend time with him “after what he has done.” She said “he needs to learn his lesson” and that he started “all sorts of arguments with Mum.” She said that they had “another father for a while... Mr S” and that “he was better than Mr A because he didn’t punish us as much.” She said that “in the end he [Mr S] was starting to be mean to Mum.” Y said she had no interest in spending time with her father and was “happy with the three of us.”
Ms S observed X and Y to have a 'warm connectivity' when observed with their mother.
At [51] Ms S concludes that X was emotionally fragile when talking about her father and that both girls were explicit in their wishes regarding not wanting to spend time with him for the purposes of the assessment.
In her 'evaluation' Ms S says that the girls recall their father with 'fear and negativity’. She notes that they were seven and six years of age when their parents separated. She notes both girls reporting the contact centre visits in 2013 to be 'an unpleasant occasion'.
Mr Townsend produced photographs at his interview with Ms S from the contact centre visit in 2013 apparently as corroboration of the positive report from the contact centre. At [53] Ms S says:
X saw her father on one occasion four years ago and Y saw him on two occasions four years ago. This was reported by both girls to be an unpleasant occasion. Photos, provided by Mr Townsend which he said were taken during this occasion, do not support this assessment. These photos show a happy interactive engagement between the girls and their father.
It is difficult to explain this discrepancy and attempts to have either girl acknowledge that they may have enjoyed this occasion with their father, given the photos that had been seen by the writer, elicited these responses. Y said that “he tried to act nice there...he didn’t want to look bad” and X started to cry and hung her head.
At [55] Ms S concludes in respect of X and Y:
… care needs to be taken with the emotional wellbeing of X and Y and that, if there is to be a reintroduction of their father into their lives, this needs to be done under professional guidance, preferably of a child psychologist.
A [56] Ms S concludes in respect of the wife:
Ms Townsend also exhibited signs of stress and anxiety and, whilst she presented as an engaging, intelligent and confident woman generally, she appeared physically stressed when Mr Townsend and her past experiences with him were discussed. She looked emotional, her hands shook and she sat on the edge of her chair. It is considered that her behaviour is consistent with that of a victim of family violence, quite possibly amplified by earlier life experience of abuse and mistreatment.
Notably, Ms Townsend reported to Ms S that she herself had been the victim as a child of an abusive family home environment to the extent that she and her brother were placed for a time in foster care. She informed Ms S that she was raised in a religious family and that “since separation she has pursued Christianity with greater devotion and that she presently attends church regularly with X and Y as well as receiving counselling assistance from her church.”
Ms Townsend reported to Ms S her allegation that the husband engaged in extramarital affairs.
At [9] of the report Ms Townsend stated that she considered the husband to be 'a danger to the children both physically and psychologically' and that 'she was not able to state that she would promote the children’s relationship with their father'.
Mr Townsend reported estrangements within his own extended family including from his two sisters, Ms D and Ms L who are both witnesses for the wife in these proceedings.
Mr Townsend denied the family violence allegations made by the wife and any physical abuse Y and X. He denied financial control during the marriage. He denied emotional and psychological abuse of Ms Townsend. At [19] he is reported as:
He said that he “rough housed” with X and Y and that they were “rougher with me than I was with them.” He said that concerns of him flicking the girls were exaggerated, along with concerns of playing Chinese burns and slapping games with them.
Mr Townsend denied any extramarital affair.
Ms S was cross-examined and, whilst her evidence generally is of some real assistance as to the demeanour of the parties and their daughters, I find her evidence generally to be problematic in forensic value for the following reasons:
i)Strangely, in my view, Ms S saw fit to interview the husband's sister, Ms D. She is a witness for the wife and has filed a short affidavit which on any reading is entirely critical of the husband. It appears that Ms D’s support of the wife had her accompany Ms Townsend for the interviews for the report. Ms D is not a party to the proceedings. It is not intended that the children live with her. Nevertheless, she was interviewed. It is clear that Ms S placed some corroborative value on the untested evidence of Ms D.
ii)Ms S’s report does not reference any apparent consideration of the fundamental premise of the husband’s case or indeed the possibility that the children's views of their father and their reluctance to spend time with him has been influenced either directly, indirectly or subliminally the wife.
iii)When challenged in the witness box as to the potential evidentiary probity of the father’s photographs of the contact centre visit in 2013 and prima facie contradicting the positions of the wife and children, Ms S was immediately dismissive. In fact, she gratuitously offered without evidence that the photograph may have been fake or, at the very least, staged. She was reluctant in the extreme to afford it any evidentiary importance to her consideration.
iv)Ms S’s report indicates that she had read all of the relevant affidavit material and particularises those affidavits noting that the interviews for the report were conducted as recently as 3 May 2017. Nevertheless, when confronted in cross-examination, Ms S was obliged to concede that she had not read the report from the Contact Centre observer which is clearly annexed to the husband's affidavit. After doing so in the witness box, she was nevertheless reluctant to attribute any significance to that evidence despite her equivocal statement at [54] that it is difficult to explain the discrepancy between the girls apparent happy demeanour at the contact centre and their alleged fear of their father as asserted by them and the wife to the family reporter.
Where I have a discrete issue of credit here between the parents where on the one hand the mother asserts family violence to an extent that the impact on the children causes them to be fearful and refusing of time with the father as against the prima facie empirical evidence of the photograph and the contact centre report, I am not assisted by the family report. Notably, however, the photograph was not put into evidence before me and the author of the contact centre notes was not put on affidavit and therefore made available for testing of her observations by cross-examination which, of course, seems to be a common hurdle faced by these Courts in attempting to make findings of disputed fact or credit where the state of the evidence adduced suffers markedly, in my view, because of the questionable innovation of s.69ZT of the Family Law Act1975 (“the Act”).
The Wife – Evidence
Ms Townsend was often emotional in her evidence in the witness box but impressed as a witness keen to shore up at any opportunity her view that the husband is a perpetrator of 'family violence'. She maintained that the children did not want a relationship with their father and were fearful of him. Nevertheless, she gave some contrary 'indicators’ during cross-examination by on several occasions volunteering suggestions that she might encourage the children and participate herself in 'family therapy'. At other times, however, she insisted that it was the husband who needed psychological assistance implying that he is the sole author of his difficulties with the children. I considered the wife's evidence here in respect of anything other than a blanket “no contact order” to be superficial and without any real intent on her part. She is steadfast in her views that the husband is a perpetrator of family violence. Her personal dislike of Mr Townsend was palpable in Court.
After hearing the wife give her evidence, I have no confidence that she would be willing to encourage and facilitate any form of relationship between the children and their father. This was best demonstrated by a question to her in cross-examination about her response when the father delivered gifts to the children which were in turn handed on by her and apparently rejected by the children. As to what efforts and encouragement she gave the children to accept the gifts and when her response was to her daughter’s rejection of the gifts, she gave evidence that she said only, “that's fine sweetie”.
The notion of Ms Townsend and her daughters being ‘victims' of family violence permeated her entire evidence. The particulars of alleged physical violence are not at the higher end of those which come before this Court. They involved a form of 'flicking' by the husband of his fingers onto the girls bodies and pushing or kicking away. There is no evidence of contemporaneous complaint or injury be it physical or emotional for the wife or the girls. The wife's assertions must be seen within the context of her own disclosed and unfortunate history of physical abuse at the hands of her father and also her post-separation counselling through her church. The real possibility here is that the wife has emphasised and embellished otherwise innocuous incidents to her own selfish ends in pursuing orders for no relationship whatsoever between her daughters and the husband by a deliberate and malicious process of manipulation and alienation. A more likely explanation is that the wife herself is by nature hypersensitive and vulnerable given her past and other factors of her personality against a background where she blames the husband for the breakdown of her marriage and including a belief that he engaged in extramarital affairs. Within this context, she gleans support from her daughters as a supportive and united front against the husband. That is, it may be that she honestly and subjectively believes that her children have objective reason to fear their father and that she proceeds to put them in a situation where they feel loyalty to only their mother. Such a scenario would explain the discrepancy between the children’s statements of fear to their mother as against their apparent comfort at the Contact Centre. Certainly, statements made by the mother in her evidence and by the children to the family reporter, suggest that this 'supportive unit' scenario is a real possibility.
Ms D
Ms D gave evidence in support of the wife's case. She is the father's sister. It is clear that they are estranged. She was cross-examined. To my mind, her evidence suffers by reason of her own personal animosity to the husband. Cross examination exposed a number of her superficially serious allegations against the husband of violence to be, in reality, relatively innocuous.
I did not find Ms D to be an objective witness and I place little weight on her evidence.
Ms L
Ms L swore an affidavit on 28 September 2016. She was not cross-examined. Her evidence suffers for the same reasons as her sister.
Dr L
Ms Townsend relied on two letters from Dr L dated the 7 and 8 January 2014. It is clear that the wife unilaterally took Y and X to consult with Dr L. These consultations occurred after the contact visit in 2013 and apparently because of evidence of the success of that visit. Notably, Dr L’s letter of 8 January 2014 and addressed to the wife commences as follows:
Thank you for bringing X and Y to me for assessment. I note in your email you provided the following information about the girls contact with the father:
·The girls were forced to see their father at a Contact Centre against their wishes;
·The father brought bags of gifts and chocolates, even though gift-giving was discouraged;
·X said that the carers were taking pictures so they had to keep trying to be happy and that she was prevented from getting away from the father when she wanted to because he kept pulling her in.
Dr L’s reports are otherwise simply a regurgitation of the mother’s complaints of family violence.
Dr L was not on affidavit and hence was not tested as to his qualifications, experience or methodology. I place little or no weight on his evidence noting the self-serving nature of his report. From my observations, there seems to have been a preponderance of late in these Courts of evidence of this sort where children are unilaterally taken by one parent to a psychologist who is given only one version of history and does not see it necessary to interview both parents and who then produced a report of no probity from a questionable or disputed factual premise. It follows that such report becomes an “annexure” to someone else’s affidavit and again under the statutory permissions of s.69ZT of the Act. Not only is the adducing of evidence in this matter sloppy and lazy, it does not usually result in any weight being able to be attributed, and leaving aside the arguable abuse of children perpetrated by this worthless interview process.
The husband – Evidence
It is a theme of the wife's evidence that the husband was dominant, controlling and coercive within their marriage in the physical, financial and emotional senses. Having had the opportunity of observing Mr Townsend in the witness box, I can see some force to the wife's views in these respects. It is clear that the husband is more assertive and forceful in personality than is the wife. He presented as somewhat entitled and empowered in his evidence. He initially continued the denials in his affidavit as to the particulars of physical violence alleged by the mother and the children. Nevertheless, under strong cross-examination he was obliged to admit many of those particulars albeit then to explain them as robust play.
The husband was a more objective witness than was the wife. He was able to compliment the wife on her parenting of the children.
I am satisfied that the husband has a genuine desire to resume a relationship with his children and gave plausible explanations for his delay in bringing an application to this Court by reason of a preference to negotiate a result. He was also able to retreat from of his initial position of equal shared time for the children with each parent to one where he understands that, for whatever reason, the girls are now an estranged from him and any resurrection of the relationship must be treated discretely and carefully and with professional assistance.
The Relevant Law – Parenting
Matters concerning the parenting and living arrangements for children are dealt with in Part VII of the Act. Section 60CA provides the basis for Court’s consideration in that the best interests of the children are to be the Court's paramount consideration.
Those best interests are considered against the objects and principles of the legislation set out in s60B as follows:
Section 60B(1) - the objects of this Part 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 the children receive adequate in proper parenting to help them achieve their full potential; and
d) ensuring the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) - the principles underlying these objects are that (except when it would be contrary to a child's best interest):
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 shared 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).
Against that philosophy, trial Judges then reference the parties’ proposals and the probative evidence to the numerous mandatory considerations set out in ss.60CC(2) & (3). Subsection (2) provides two 'primary considerations' being:
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.
In the matter now before me, and not unusually, it is the balance of these two considerations and attributing evidentiary weight to each which grounds my consideration of the best interests of X and Y.
The additional considerations include taking into account the views and preferences of children as to their living and parenting arrangements but in doing so the Court must attribute weight to those views in respect of matters of voluntariness, maturity and rationality.
The Court must also consider the capacity of each of the parents to attend to children's physical, intellectual and emotional needs as well as the attitude of each of the parents to the responsibilities of parenting which, in my view, includes a consideration of the ability and willingness of a parent to facilitate and encourage the children's relationship with the other parent.
Section 61DA the Act offers a presumption that it is in the children's best interests that their parents equally share parental responsibility for those children. 'Parental responsibility' is normally seen as making the decisions for important issues such as children's education, religious and cultural upbringing and medical matters. Significantly, the wife in this matter seeks an order that she have sole parental responsibility for the children whereas the husband proposes an order for equal shared parental responsibility.
The presumption at s.61DA does not apply if there are reasonable grounds for the Court to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or in family violence (within the broad definition of the Family Law Act). Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
If the presumption of equal shared parental responsibility applies or the Court, in any event, makes such an order then the Court must enter into a statutory and intellectual course of consideration as to the children's living and parenting arrangements. Firstly the Court must consider whether the children living in an equal time arrangement between their parents is both in their best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court must then turn to consider whether the children living in a regime of 'substantial and significant time' between their parents is both in their best interests and reasonably practicable.
The notion of 'substantial and significant time' is defined at s65DAA(3) as follows:
… A child will be taken to spend substantial and significant time with a parent only if:
a) the time the child spends with the parent includes both:
i) days that fall on weekends and holidays;
ii) days that do not fall on weekends or holiday; and
b) the time the child spends with the parent allows the parent to be involved in:
i)the child's daily routine; and
ii)occasions and events that are of particular significance to the child; and
iii)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 60CC Considerations
Section 60CC(2)(a) - The benefit to the child of having a meaningful relationship with both of the child’s parents
The relationship between Mr Townsend and his daughters is estranged and fractured. They claim to be fearful of him and overtly are refusing contact with him. There is, therefore, no relationship of any substance.
The relationship between the girls and their mother is tight and supportive and probably a mutually dependent one. The girls describe themselves to the family reporter as a unit with their mother. The question for the Court is to what degree these children’s loyalty to their mother influences their objectivity in respect of a relationship with their father?
Although the reference in s.60CC(2)(a) to making orders which establish and maintain a meaningful relationship between children and parents is a primary consideration, it is not determinative of the orders a Court is to make. Rather, that consideration is just one of many to which weight is to be attributed in the circumstances of the particular case.[1]
[1] Champness & Hanson (2009) FLC 93-401 at [101]
The consideration for the Court is, of course, a prospective one in attempting to frame orders which will give quality to a relationship between children and parents.[2]
Section 60CC(2)(b) - The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[2] McCall & Clark (2009) FLC 93-405
A close reading of this subsection suggests that it is also ‘prospective’ in its focus. That is, it is not the task of this Court to punish past indiscretions, whatever their nature or impact. As with the consideration in s.60CC(2)(a), a consideration of the fact or potential for family violence is not of itself determinative of the Court’s task. Rather, the process is one of mandatory consideration of numerous factors and then to attribute weight to achieve a result which, on balance, is in the best interests of the child.
The wife here makes allegations of physical, financial and emotional abuse aimed at the husband. Y and X claim that they are fearful of him. The wife’s witnesses being the husband's two sisters also make allegations of physical and emotional abuse against the husband.
It is trite to observe that issues of family violence feature prominently in most discussions in the public forum in respect of family law issues. It is equally trite to observe that that family violence is abhorrent and can be perpetrated by many means not always immediately obvious in their action or impact on the victim. Family violence can be destructive within family units by power imbalances, coercion and control within those families. As such, in situations as in the matter now before me where the physical acts of alleged 'violence' might not be regarded at the highest level of physicality, Courts should nevertheless be alert to any likely emotional and psychological effects on the victim. The allegations of physical violence here involve primarily the husband 'flicking' the children with some pushing or kicking-away but not to an extent where physical injuries resulted and which the husband describes as “play”.
Courts should also be aware that individuals will vary in their insight into the effects on others of their actions. In this respect, in this matter, I observed the wife to be of sensitive, vigilant and perhaps vulnerable disposition. The husband, however, presented as confident and assertive in his responses and body language. The wife here has an unfortunate background of family violence and abuse during her childhood. She admits that she gleans support from her religion and its counselling services. I suspect that the dependent relationship between the children and their mother is a mutual one.
Nevertheless, the husband in his evidence, despite his initial refusals, eventually admitted the particulars of the physical actions attributed to him and explained them by 'robust play'. Generally, I accept this as a reasonable and plausible explanation although it remains probable that he lacked any sympathy into the impact of his behaviour on the children's mother and particularly given her background.
The impact of the father’s 'rough play' on his daughters remains problematic. Unlike the family reporter, I do place some considerable weight on the evidence of the observations at the Contact Centre. On balance, I do not accept that the children were coerced or 'staged' to appear happy and comfortable. I expect that any reasonable observer would have noticed if this was the case. I note also the wife's immediate response in some four telephone calls to the Contact Centre following what was overtly seen as a successful visit where it seems she either extracted or was given a version of the visit quite different to that reported by the contact centre supervisor and where she immediately challenged the professionalism of the centre.
Section 60CC(3)(a) - Any views expressed by the children and any factors (such as the children’s maturity level of understanding) that the Court thinks are relevant to the weight it should give to the children's views
These children refuse to spend time with their father. They refused to be observed with their father at the interviews for the family report. They say that they are fearful of him. Nevertheless, the observations from the limited Contact Centre visits are of the children being comfortable and happy in their father's care. I note that this evidence was from 2013 and that there has been no contact since. Nevertheless, at that time the wife was also espousing the children's fear of the father. In this sense, it is unfortunate that the children were not seen with their father for the interviews for the family report.
It is obvious to me that Y and X enjoy an extremely close, attached, dependent and mutually supportive relationship with their mother. It is reasonable to expect, therefore, that they extend loyalty to their mother in circumstances where she herself seems unable to show any positive inclination towards the father and states categorically to the family reporter that she cannot encourage the children's relationship with him. The context and chronology of the 2013 visits to the Contact Centre are, in my view, enlightening. The children had not seen their father for some time prior to those visits. The mother says that they were the victims of family violence and were scared of him. The evidence of the observer is of a positive, happy and comfortable relationship between girls and father. Yet, within days the wife had made numerous telephone calls to the Contact Centre apparently complaining that the girls themselves had complained of coercion and 'staging'.
Ms Townsend is transparent in her personal dislike and bitterness towards Mr Townsend. It is clear that she blames him for the breakdown of the marriage. She accuses him of extramarital affairs. She herself is of vulnerable personality. On the balance of probabilities, therefore, I think it reasonable that Y and X have a misplaced loyalty towards their mother, are imbued with her personal views, and therefore feel unable to have a relationship with their father for fear it would offend the mother.
Section 60CC(3)(b) - the nature of the relationship with the children with each of their parents
The children are estranged from their father. Their relationship with their mother is both supportive and dependent.
Section 60CC(3)(c) - extent to which each parent is taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and spend time and communicate with the child.
The wife criticises the husband for not immediately pursuing a relationship with the children and attributes comments to him around separation such as 'the children are dead to me’. If indeed the husband did make such comments then, from my observations, it is entirely consistent with his personality. Nevertheless, I accept the husband's evidence that he has generally and consistently pursued a relationship with the children and firstly through lengthy negotiations between solicitors prior to litigation.
I am satisfied on the wife's own evidence that she is simply unable to facilitate and encourage any relationship for the children with their father. She made this bald comment to the family reporter. Her evidence in the witness box was entirely inconsistent with any objectivity in respect of a relationship between children and the father. Perhaps the most demonstrative evidence was her response to one of her daughters when the daughter refused to accept a gift from the father being 'that's fine, sweetie'.
Section 60CC(3)(CA) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parents obligation to maintain the children.
The children live with their mother. The husband currently pays only the statutory minimum of child support given his unemployed status. He is, however, a person of some wealth. He has qualifications and experience which have previously seen him substantially employed at a significant remuneration. He says that he here is currently living in Northern Tasmania so as to be near the children albeit in a situation where they have no contact whatsoever. I expect, therefore, and given the wife's bitterness and suspicious nature towards him, that the husband's lack of financial contribution simply entrenches and solidifies the negative opinions of him by both the wife and the daughters. It is probably, therefore, not to a strong base from which to come to Court in an attempt to re-build a relationship with the daughters.
Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents
The orders sought by the husband will represent a fundamental change for children in that they have been estranged for some years.
Any order that I make for actual or potential time for the children with their father would be contrary to their expressed views and preferences. As such, the Court must consider the impact on the children of any such order. Relevantly, however, the husband has retreated from his initial position of simple time-with per se to a proposal which would involve some counselling or psychological assistance for both he and the girls to delicately resurrect their relationship.
Section 60CC(3)(f) - the capacity of each of the children's parents to provide for the needs of the children, including emotional and intellectual needs
The wife has a demonstrated an unchallenged capacity to attend to the children's physical needs. The question in respect of the wife is her ability to encourage their relationship with the husband. She candidly admits to the family reporter that she does not feel able to do so. I am comfortably satisfied that she takes this position at least partly by reason of her own vulnerabilities and past experiences.
The issues in respect of the husband's capacity relate to his insight into his own behaviour within the context of the wife's vulnerabilities and the children's loyalties to her. As mentioned above, his evidence in the witness box indicated a lack of insight into some of his actions which are impacted negatively on both the wife and the children.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and each of the children's parents, and any other characteristic of the children that the Court thinks are relevant
I am satisfied on the evidence that Y and X have a strongly entrenched loyalty to their mother. I am also satisfied that there are traits of the mother herself which expose her sensitivities including her own background of abuse, her suspicions of the husband's infidelity, a probable power imbalance within the marriage, and the wife's traditional religious beliefs.
Section 60CC(3)(h) – If the children are Aboriginal or Torres Strait Islander
Not relevant.
Section 60CC(3)(i) - the attitude to the children, and responsibilities of parenthood demonstrated by each of the children's parents
The wife freely admits that she cannot encourage the children in their relationship with their father. The question for the Court is whether she takes this position out of malice or by reason of her own personality and beliefs.
The wife criticises the husband's attitude to the responsibilities of parenting in that she says he has not consistently pursued a relationship with the children. I prefer the husband's evidence that he has at all times sought a relationship with X and Y but initially preferred to do so through a negotiation rather than litigation.
Section 60CC(3)(j) - any family violence or family violence orders
The wife obtained a family violence order against the husband soon after separation and the husband says that he understood this immediately prohibited any relationship between he and his daughters.
The wife's affidavit particularises allegations of physical, verbal, financial and generally emotional family violence perpetrated by the husband on her and the children. As set out above, I do not consider the particulars of physical violence to be near the higher-level of such behaviour seen by these Courts. Nevertheless, after seeing and hearing the parties give evidence and be cross-examined, I am persuaded on the balance of probabilities that the husband was verbally aggressive to the wife and children and suffered fits of anger. My observations suggest a power imbalance during the relationship with the husband being the dominant partner. I generally accept the physical ‘violence’ alleged by the wife was not inflicted out of malice but by the husband's view of being playful but without insight into the impact on both the wife and the daughters. Generally, the husband is dismissive of the allegations against him which, in my view, serves only to corroborate his sense of control and dominance within the relationship. The lack of insight in the husband is as to the impact of his behaviour on his wife and daughters. Whereas, some with more robust personalities might laugh off the husband's actions, other such as Ms Townsend with greater sensitivity can suffer a negative consequence of what might seem to be innocuous behaviour.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in respect of the children
X and Y state categorically that they do not want a relationship with their father. Their initial reaction to any orders otherwise will be likely to bring a negative response. The mother says that she cannot encourage the girl’s relationship with their father. It is trite to say that Courts do not make orders for time-with without there being some manifest benefit to the children forthcoming from those orders. As such, the Court is alerted to the possibility that a rejection of the orders by children of this age may well lead to further litigation. Nevertheless, such likelihood in itself is not a reason to refuse the application. The Court is able to make orders which are conditional or contingent which can assist in orders for time-with being ultimately successful.
Section 60CC(3)(m) - any other fact or circumstance that the Court thinks relevant
The historical authorities which guide trial Judges generally agree that a complete cessation of a relationship between children and parent is a course of last resort. It follows therefore, in my view, that such a relationship has almost presumptive positive qualities subject to the evidence rebutting such presumption. Consequently, Courts are able to and should look at assisting fractured relationships to resurrect. For these reasons, the Courts can apply conditions of supervision and/or various injunctive or prescriptive orders to assist towards a successful result.
Findings and Conclusions
I am satisfied that X and Y’s relationship with their mother is attached and mutually dependent. I have little doubt that these children are fully cognisant of their mother’s personal dislike and mistrust of their father. I am satisfied that their loyalty significantly influences the girl’s refusal to have any relationship with Mr Townsend.
On the basis of his own, albeit reluctant admissions, I am satisfied that the particulars of physical violence alleged by the mother are made out. Nevertheless, I do not find any malice of intent in the father but rather a lack of insight into the effect on both the wife and the children. I am satisfied that the husband was prone to outbursts of anger during the course of the marriage directed at both the wife and the children and again that he suffers a lack of insight into the negative impact on the wife and his daughters.
I am satisfied that the wife is of a vulnerable and sensitive disposition and accept that she feels unable to assist in the children re-establishing a relationship with their father.
I am not persuaded, however, that the father’s actions and lack of insight amount to an unacceptable risk to the children's physical or emotional safety if there was to be a relationship between them and their father. Rather, some acknowledgement and psychological assistance for the father together with assistance for the children should ease the return to a relationship.
I am not persuaded that Y and X independently and per se have a fear of their father. I prefer that their loyalty towards their mother and her influence on them grounds their stated views and preferences. Despite such evidence now being from some years ago, I do place considerable weight on the positive report from the Contact Centre visit of the girls being happy and comfortable in their father's company. I reject the mother’s assertion that the girls observed demeanour was coerced or staged. I expect, however, that they may have reported as much to their mother who, in my opinion, is totally incapable of understanding any actual or potential positives or benefits for X and Y in a relationship with her former husband.
I gleaned little assistance from the evidence of the husband’s sisters adduced by the wife save and except that they served to demonstrate the peculiarities of the husband's personality and him being prone to outbursts of anger.
I am not persuaded that the order sought by the wife for no time for the children with the father is in their best interests.
Counsel for the husband in his final address submitted that an interim order whereby the girls and the father attend upon a suitably qualified and objective counsellor or psychologist with an aim to resurrecting direct contact would be the preferred option. I agree. If the children are to have a relationship with their father then they must be assisted to deal with the likely negative responses from their mother. Mr Townsend should be assisted to achieve a greater insight into his own behaviour and personality traits. Whether or not this process fits with or becomes 'family therapy' in its classic definition and including participation by the wife would be at the discretion of the practitioner. I intend to make orders, however, which allow this possibility as, in accordance with the above findings, and at its most abstract, the reluctance of the wife to participate in a process of resurrecting the children's relationship with their father remains its most obvious barrier.
I must also deal with the parties’ dispute as to parental responsibility for X and Y. I am satisfied that there has been family violence within the broad definition in the Act. Although, I have found physical violence perpetrated by the husband to be at the lower end of the scale, I am influenced by what I see as a notable power imbalance in the relationship between these parents together with the girls dependant relationship with their mother to determine their best interests being served by an order whereby the wife be solely responsible for their long term interests.
I think it proper that the Court remain seized of this process in respect of the children. As such, the matter will be re-listed for mention in February 2018. I think it proper in all of the circumstances for the father to meet the costs of the therapeutic counselling in the first instance.
Property – Relevant Law
Matters of property settlement are provided for in s.79 of the Act as follows:
Section 79(1) - in property settlement proceedings, the Court may make such order as it considers appropriate:
(a)In the case of proceedings with respect of the property to the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
(b) …
Section 79(2) - The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) - In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:
(a) The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution cease to be of the property of the parties to the marriage either of them;
(b)The contributions (other than a financial contribution) may directly or indirectly by or on behalf of a party to the marriage a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them…
(c)The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
(d)The effect of any proposed order upon the earning capacity of either party to the marriage;
(e)The matters referred to in subsection 75(2) so far as they are relevant;
(f)Any other order made under this Act affecting a party to the marriage or a child the marriage; and
(g)Any child support under the Child Support (Assessment) Act 1989 and a party to the marriage is provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Until the decision of the High Court in Stanford& Stanford[3] and the soon following decision of the Full Court in Bevan & Bevan,[4] trial Judges had generally accepted a ‘step-by-step’ approach to determining property settlements by firstly establishing the content and value of the items of the property pool inclusive of assets, liabilities and financial resources and for these purposes superannuation entitlements to be 'treated as property'. Secondly, the Court would identify and attribute weight to the various contributions set out in that s.79(4). Thirdly the Court would then address the relevant factors in s.75(2) of the Act and determine whether any adjustment following the consideration of contributions would be justified. Finally, the Court was to 'stand back' and consider whether the orders it intended to make were just and equitable in all of the circumstances.
[3] (2012) 247 CLR 108
[4] [2013] famFC 116
The High Court in Stanford & Stanford, however, identified the significance of s.79(2) in that a Court is required to consider whether it is just and equitable in the circumstances of the particular case to proceed with the consideration of alteration of property interests. This process under s.79(2) is not simply to be relied upon and conflated with the consideration of contributions under s.79(4) although such considerations can constitute a part of the consideration as to justice and equity.[5]
[5] Fielding & Nichol [2014] FCWA 77
At [36], the plurality in Stanford observed:
… ‘just and equitable' is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
The plurality in Stanford went on to say that whilst the power given by s.79 is not to be exercised in accordance with fixed rules, there are 'three fundamental propositions, which adhere to the power to make property orders under the section being:
a) Firstly, 'it is necessary to begin 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 property.'
The interests of parties in property must be identified before it can be altered.
b) ‘it is not a power that is to be exercised according to an unguided judicial discretion'. That is, the judicial discretion must be exercised in accordance with legal principles including those in the Family Law Act itself. Further, 'because the power to make a property settlement order is not be exercised in an unprincipled fashion, whether it is 'just and equitable' to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist'.
The question posed by s.79 is whether those rights and interests should be altered.
Their Honours in Stanford realistically observed that the requirements of that s.79(2) for justice and equity will be easily met in the majority of cases.
Noting all of the above, it is my view that the four-step process in determining an application under s.79 is still an appropriate guideline although not perhaps with the same formal rigidity as pre-Stanford.
The property pool
At the commencement of the trial, the parties were in some disagreement as to the contents and values of items in the property pool.
Specifically, there was evidence to be adduced from the husband’s accountant, Mr T, in respect of capital gains tax payable by the husband on the sales of property, current and future, such being property situate in the (country omitted). There was also a dispute as to the husband’s evidence given his receipt of rentals and payment of outgoings in respect of properties and the disposal of property. Mr T’s affidavit was initially sworn (albeit with improper jurat) on 11 May 2017. In any event, by the end of the evidence, and to their credit, the parties were able to agree a pool of property for the purposes of the exercise under s.79 of the Act.
That property pool comprises of the following:
Assets
Value
Property H, The (country omitted) property, (sold) (husband)
$254,000
Property W (country omitted), The (country property, (country omitted) (husband)
$259,000
Property K (country omitted), The (country omitted) property, (country omitted) (husband)
$231,000
Property M, Tasmania (husband)
$262,500
Property I, Tasmania (husband)
$500,000
Husband's Ford (omitted) motor vehicle
$8,000
Wife's Hyundai (omitted) motor vehicle
$13,000
Wife's (omitted) Bank account (omitted)
$60
Wife's (omitted) Bank account (omitted)
$1,252
Wife's (omitted) Bank cheque account
$1
Wife's (omitted) Bank access basic account
$547
Wife's (omitted) Bank online saver account
$1
Husband's (omitted) Bank account
$4,612
Husband's (omitted) account
$22,019
Husband’s (omitted) account (omitted)
$178,434
Husband’s (omitted) account (omitted)
$94
Notional adjustment – husband’s accounts
(as agreed)$50,000
Total assets
$1,784,520
Liabilities
Value
Husband's (omitted) Mastercard
$ 6,404
Wife's (omitted) Bank car loan
$ 21,991
Wife's (omitted) Mastercard
$ 19,291
Wife's (omitted) Mastercard
$ 6,860
Outstanding school fees
$ 5,134
Husband’s tax debt and accounting fees (agreed)
$100,000
Total liabilities
$159,680
Total net tangible assets
$1,624,840
Superannuation
Value
Husband's (omitted) bank
$102,659
Wife's (omitted) super
$17,862
Total Superannuation
$120,521
Total net property pool inclusive of superannuation
$1,745,361
The parties agree that the wife has already received a partial property settlement payment of $20,000 from the husband. This being the case, then the total net tangible assets become $1,644,880 and the total net pool $1,765,361.00.
The parties agree that the Court should take a one pool approach.
I am easily satisfied that it is just and equitable to alter the property interests of the parties. Their relationship endured over some 19 or 21 years depending on the position of each of the parties. Properties were purchased and disposed of. There are two children of the marriage for whom various financial and non-financial contributions have been made.
The date of cohabitation
The wife says that the parties commenced cohabitation in (omitted) 2001. The husband says that cohabitation commenced as at the date of the marriage in (omitted) 2003. The wife has put into evidence a video recording of the parties in 2001 apparently moving into a property together.
On the balance of probabilities I prefer the evidence of the wife and that the relevant date for my consideration on the commencement of cohabitation was in mid 2001. The home video evidence, whilst not conclusive, is indicative of the evidence generally of a committed, monogamous and mutually supportive relationship as from 2001 and that she effectively moved into the husband’s residence at that time.
The wife’s case
The wife says that the husband’s superior initial contributions should be given some weight and at approximately 5% loading. She says the contributions were equal during the relationship when taking into account both financial and non-financial contributions. She says, however, that she should be given credit for superior post separation financial contribution by reason of care of the children accentuated by the husband not consistently paying child support at a reasonable level. Overall, the wife argues that considerations of contributions should lead to an equal division of the net property of the parties. She then argues that she should receive a 15% loading for relevant considerations under s.75(2) of the Act thereby giving her a net 65% distribution in her favour of the property pool set out above. She says that she must provide a home for the children and could not be confident of ongoing financial assistance from the husband and/or that the husband, if he is to pursue his career, has a considerably greater earning capacity than does the wife.
The husband’s case
The husband proposes that there be a division of the property pool above as to 60% to him and 40% to the wife. He says that his initial financial contributions should be given appropriate and considerable weight due to their then value and their ‘sling shot’[6] effect.
[6] Pierce v Pierce (1999) FLC 92-844
The husband agrees that contributions during the marriage were equal taking into account both financial and non-financial contributions. He acknowledges that the wife has had the sole care of the children since separation but implies that this is by reason of her unilateral retention of the children and failure to permit him a full and proper relationship with the children. He says that he has generally contributed child support although the wife claims that he has regularly sought reviews on that obligation.
In his final submissions, Counsel for the husband says that the Court should give weight to the husband’s superior initial financial contributions, such that there be a distribution of 65% of the property pool to him on the basis of contributions.
He says that there should be a modest adjustment only for the wife in reference to the considerations under s.75(2) of the Act. He argues that the two children are not infants and do not preclude the wife from employment and indeed she is currently in part time employment.
He contends that an adjustment of 5% to the wife would therefore he appropriate and thereby giving a distribution of 60% of the property pool to him and 40% to the wife.
Initial contributions
The wife in her affidavit deposes to entering the relationship with a motor vehicle valued at $18,000 subject to a loan of the same balance. Cross examination elicited that she also brought into the relationship a debt of something less than $20,000 for university fees.
There was some considerable dispute between the parties as to the husband’s wealth at the commencement of cohabitation which I now find to be in mid 2001. In addition, there was difficulty in the recollections of the parties as to whether or not some of the real estate owned by the husband was mortgaged or not. I can find, however, that the husband did purchase a property at (omitted) in South Australia in 1995 for $125,000 with a mortgage of $80,000. That property was sold in 2010 netting $362,000. I am also content that, soon after the commencement of cohabitation in February 2002 the husband bought a second property at (omitted) in South Australia and contributed substantially to the purchase from his own savings. That property was sold in September 2011 netting the husband $452,000. Further, the husband purchased a property in (country omitted) in August 2003 for (omitted)$120,000 but with the assistance of what he now concedes to be a mortgage loan.
It is not necessary for me to conduct a precise audit of the husband’s contributions as it is not the task of the Court to attribute weight to contributions by way of a mathematical calculation or formula. I am easily persuaded, however, that the husband’s initial financial contributions to this relationship were substantial and that by reason of them constituting primarily interests in real estate which increased in value then they have contributed substantially to the value of the parties’ property pool as it now stands. Whilst there have been other important contributions by each party during the relationship in both financial and non-financial senses, the husband’s initial financial contribution remains significant and should be afforded appropriate weight.
I am also satisfied that the wife has made a superior contribution since separation by reason of her total care of the children. The husband has contributed child support albeit recently in little more than the statutory minimum. I have accepted in these reasons that he has generally pursued a relationship with his children but the fact remains that the wife has had this primary responsibility without physical assistance by the husband. This has impacted on her ability to obtain full time employment.
I also accept that the husband has had the use and benefit of rentals from the various pieces of real estate but that the parties have conveniently agreed a sum to be added to the property pool and I should not, of course, therefore ‘double dip’.
Taking all of the contribution factors into account but giving considerable weight to the husband’s superior financial contributions, their impact on the current property pool, and the value of that current property pool but with weight too to the wife’s post-separation contributions, I agree with Counsel for the husband that there should be a loading to the husband of 15% of the property pool on account of contributions.
Section 75(2) factors
The husband has qualifications and experience as a (occupation omitted). He has enjoyed considerable income and at times in the region of $200,000 per annum. He has lengthy experience in his field and I expect that he is readily employable albeit perhaps not in Northern Tasmania. Consequently, I place little weight on the husband’s choice to locate himself in Northern Tasmania, “to be closer to his daughters” if this results in his unemployment. I prefer, therefore, that the husband has the capacity for employment and at an income of $100,000-$200,000 per annum.
The wife also has skills and experience in the (employment omitted) field. She is currently employed part time by (employer omitted). She has never, however, enjoyed an income to the level of the husband and is unlikely to achieve his income potential. Further, she does have the responsibility for the care of X and Y. That responsibility is likely to continue without the respite of any significant assistance from the husband. The girls are just 12 and 10 years of age and the wife’s responsibility will consequently continue for some time.
Whilst noting the husband’s potential earning capacity, he has a current preference to reside in Northern Tasmania where his employment options are limited at best and where he currently pays child support at a rate significantly less than his potential, I must take into consideration, therefore, the likelihood that the wife may not benefit from considerable child support assistance from the husband at least in the near future.
Given that the purpose of a consideration of s.75(2) adjustment is not one of social engineering but rather to give recognition to a party’s circumstances coming out of a marriage together with their ability to re-establish themselves financially. I find the discrepancy in earning capacities together with the responsibilities for the children’s physical or financial support to be weighty considerations.
I conclude the appropriate adjustment in favour of the wife to be 15% of the net property pool.
I conclude therefore that the net property pool of the parties, inclusive of superannuation be split as 50% to the husband and 50% to the wife. I have calculated the property pool inclusive of superannuation to have value of $1,765,361.00. Each party should therefore take value of $882,680.00.
I am mindful that two of the properties in (country omitted) are yet to be sold and that the figures in the property pool set out above are fluid accordingly. My orders will therefore allow for the sale of those properties towards a 50/50 settlement.
On the pool of property agreed between the parties, the wife retains assets and liabilities as follows:
Wife's Hyundai (omitted) 13,000
(omitted) bank account 60
(omitted) account (omitted) 1,252
(omitted) Bank Cheque account 1
(omitted) Bank account 547
(omitted) online saver 1
Superannuation 17,862
Partial property settlement 20,000
52,723
(omitted) Bank car loan (21,991)
(omitted) master card (19,291)
(omitted) master card (6,860)
Outstanding school fees (5,134)
(53,276)
Total net property retained by the wife: (553)
I calculate, therefore, that a cash adjustment to the wife of $883,233.00 is appropriate.
I consider such a distribution of property to be just and equitable in all of the circumstances of the parties. The property pool is of sufficient value to have an appropriate impact on the adjustment to the wife for the considerations under s.75(2).[7]
[7] Clauson & Clauson [1995] FLC 92-595
The orders also give proper consideration to the husband’s initial financial contributions to a relationship which commenced some
16 years ago and could probably be categorised in the middle level of duration of relationships.
I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 29 June 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Statutory Construction
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