TRASK& SCRIVEN
[2019] FCCA 3079
•8 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRASK& SCRIVEN | [2019] FCCA 3079 |
| Catchwords: FAMILY LAW – Parenting – best interests of children – orders made-property proceedings-orders made-undefended hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D,4AB(1), 79(4), 79(2), 75(2), 79(1), 75(2). |
| Cases cited: Keating & Keating [2019] FamCAFC 46 Lotta & Lotta [2017] FamCA 50 Russell & Russell [1999] FamCA 1875 Teal & Teal [2010] FamCAFC 120 Weir & Weir [1992] FamCA 69 |
| Applicant: | MS TRASK |
| Respondent: | MR SCRIVEN |
| File Number: | PAC 2724 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 11 September 2019 |
| Date of Last Submission: | 11 September 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 8 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton of Counsel |
| No appearance by or on behalf of the Respondent |
ORDERS
Parenting
The Applicant Mother have sole parental responsibility for the children, [X] (“[X]”) born … 2006 and [Y] (“[Y]”) born … 2008 (“the children”).
That the children live with the Applicant Mother.
That the children spend supervised time with the Respondent Father at the Town A Catholic Care Contact Centre (“the Organisation”) each alternate weekend on Sunday from 10:00am to 12:00pm until such time as the Respondent Father provides to the Applicant Mother or her legal representative four (4) consecutive negative drug screening tests.
To facilitate the Respondent Father’s time with the children in Order 3, each party shall:
4.1.Within seven (7) days from the date of these Orders contact the organisation and arrange and attend for the first available and offered intake appointment with the organisation to enable an assessment to be made as to the suitability for attendance at the organisation and inclusion with the organisation program;
4.2.Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consents, instructions and authorities as may be necessary to enable the completion of all intake and assessment process by the organisation;
4.3.Present the children to the agreed location at such time and dates as are advised;
4.4.Follow all rules of the organisation;
4.5.If the organisation following its intake procedure is unable or unwilling to provide supervision as set out above, then either party have liberty to restore the matter to the Court list on seven days written notice to the other parties and to the Court;
4.6.That the Respondent Father be solely liable for the costs of the supervision.
That upon the Respondent Father providing to the Applicant Mother or her legal representative with four (4) consecutive negative drug screening tests, the children shall spend time with the Respondent Father as agreed between the parties or failing agreement as follows:
5.1.That upon the receipt of the fourth negative drug screening test and for a period of no less than six (6) months, each alternate Sunday from 9:00am to 5:00pm;
5.2.That following the Respondent Father’s consistent and continuous time with the children and upon the completion of Order 5.1, the Respondent Father shall spend time with the children each alternate Saturday from 9:00am to 5:00pm Sunday thereafter.
5.3.That should the Respondent Father fail to spend time with the children on more than three (3) occasions without notice, the Respondent Father’s time with the children shall revert back to Order 5.1.
That on special occasions, the children shall spend time with the parties as follows:
6.1.The Applicant Mother on Mother’s Day from 9:00am to 5:00pm Sunday;
6.2.The Respondent Father on Father’s Day from 9:00am to 5:00pm Sunday;
6.3.The Applicant Mother on her birthday on … from 9:00am to 5:00pm Sunday should the children not be in the Applicant Mother’s care;
6.4.The Respondent Father on his birthday on … from 9:00am to 5:00pm Sunday should the children not be spending time with the Respondent Father;
6.5.The Respondent Father from 4:00pm to 8:00pm on the children’s birthdays being … and … should their respective birthdays fall on NSW calendar school day;
6.6.The Respondent Father from 2:00pm Saturday to 5:00pm Sunday on the children’s birthdays being … and … should either child’s birthday fall on a Saturday;
6.7.The Respondent Father from 9:00am Saturday to 2:00pm Sunday on the children’s birthdays being … and … should the child’s birthday fall on a Sunday;
6.8.The Respondent Father in odd numbered years, from 2:00pm Christmas Day to 5:00pm Boxing Day;
6.9.The Respondent Father in even numbered years, from 5:00pm Christmas Eve to 2:00pm Christmas Day;
6.10.At any other times as may be available or agreed to between the parties in writing with no less than seven (7) days’ notice.
That during the Respondent Father’s time with the children, the Respondent Father shall refrain from driving the children on public roads.
That during the Respondent Father’s time with the children, the Respondent Father shall not allow the children to ride their motorbikes and operate motor vehicles on public roads.
That the Respondent Father is at liberty to contact the children directly via telephone at reasonable times.
10. That for the purposes of changeover, the Applicant Mother or her nominee shall drop off and collect the children at the paternal grandfather’s home at the commencement and conclusion of the Respondent Father’s time with the children and that for the purposes of changeover, the Respondent Father shall conduct himself in a civil manner.
11. That in the event that the children have a sporting event, the Applicant Mother or her nominee shall drop off and collect the children from these events.
12. That the Respondent Father shall not consume any illicit substances or alcohol twelve (12) hours prior to spending time with the children, in the presence of the children or whilst the children are in his respective care.
13. That the parties shall provide at least four (4) weeks’ notice of an event including the time, date, venue and attendees, the children shall be entitled to attend the following events which are organised to celebrate the children’s immediate family members’: birthdays, engagements and weddings and the other party is not to unreasonably deny such request.
14. That pursuant to section 65Y(2) of the Family Law Act 1975, the Applicant Mother be permitted to travel with the children out of the Commonwealth of Australia.
15. That the Respondent Father undergo random chain of custody urinalysis as follows:
15.1.At a frequency of no greater than once per month;
15.2.At times nominated by the Applicant Mother or her solicitor;
15.3.Within forty-eight (48) hours of receiving a request;
15.4.At the Respondent Father’s sole cost;
15.5.That the results of the urinalysis testing be provided to the Applicant Mother or her legal representative within twenty-four (24) hours of receipt;
15.6.In the event a test result is positive for illicit substances, the Respondent Father’s time with the children shall be suspended until such time when four (4) further clean test results have been provided, and the Applicant Mother or her legal representative may request those within the same month notwithstanding 15.1.
16. That both parties shall advise each other and keep each other advised of their current email address.
17. In the event of the children suffering a medical emergency requiring medical attention while spending time with the Respondent Father, the Respondent Father shall:
17.1.Notify the Applicant Mother as soon as possible; and
17.2.The Applicant Mother shall be provided with the full details of the practitioner and medical facility upon which the children attend as soon as possible.
The Respondent Father shall ensure the Applicant Mother is kept informed of:
18.1Any medical problems or illness suffered by the children while in his care;
18.2Any medication that has been prescribed for the children; and
18.3Any other matter relevant to the children’s welfare.
That within 21 days from the date of these Orders the Respondent Father shall:
19.1Enrol in an anger management course titled “Taking Responsibility” conducted by Relationships Australia or a similar course, and thereafter complete the course; and
19.2Provide to the Applicant Mother or her legal representative written evidence of his completion of the course promptly upon completion.
That the parties shall not denigrate the parties or a member of their extended family in the presence or hearing of the children and shall immediately remove them from the presence or hearing of any third party who does so.
Property
That within twenty-one (21) days from the date of these Orders, the Applicant and the Respondent shall do all such acts and things and sign all documents necessary to sell the property situated and known as B Street, Town C in the State of New South Wales Certificate of Title Folio Identifier …17 (“the Town C property”) and for that purpose the following shall apply:
21.1The Town C property shall be listed for auction with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be nominated by the President of the Real Estate Institute of New South Wales;
21.2The Respondent shall execute all documents requested by the auctioneer for sale of the Town C property by auction;
21.3The reserve price of the Town C property shall be such amount as agreed between the parties and failing agreement being reached between the parties 14 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
21.4The parties shall give such instructions as are necessary to a solicitor or conveyancer to prepare a contract for sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;
21.5The Respondent shall agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the Town C property at all times reasonably requested by the agent and auctioneer and ensuring that the Town C property is clean, neat and in good order at the time of any inspection and on the day of the auction;
21.6That the parties attend the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
21.7The sale price of the Town C property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached, the sale price of the Town C property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 90% of the reserve price shall be accepted by the parties;
21.8That upon agreement being reached for sale of the property the Respondent shall execute the contract of sale and all of the documents necessary to complete the sale of the Town C property including all transfer documentation forthwith upon its submission to them by the agent, solicitor or conveyancer.
That in the event the property is not sold at the public auction as provided for in Order 23 above, the reserve price of the property shall be reduced by 5% at each subsequent auction until such time the property is sold.
That upon completion of the sale, the proceeds of the sale shall be applied and disbursed in the following manner and priority
23.1 Payment of real estate commission/legal fees and other legal costs associated with the sale;
23.2 In discharge of all loans presently encumbering the property;
23.3 Payment of any fees due to the Real Estate Institute or Institute of Valuers for fees incurred because of the operation of these Orders;
23.4 In discharge of any outstanding council and water rates;
23.5 In payment of $48,000 to the paternal grandfather;
23.6 In payment of seventy-five percent (75%) of the proceeds of sale thereafter to the Applicant plus a payment of $69,209;
23.7 The balance thereafter to the Respondent.
That as between the Applicant and the Respondent, and subject to the above Orders the Applicant and Respondent shall each respectively retain all interest in and entitlement to:
24.1 All personal property now in his/her respective possession or control;
24.2 All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
24.3 All interests in any business, life insurance policies and superannuation funds standing in his/her sole name respectively.
Except as any provision of the paragraphs comprising this Order provide to the contrary:
25.1 The Applicant hereby indemnifies the Respondent from and in respect of all actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Applicant or in her name jointly with any other person.
25.2 The Respondent hereby indemnifies the Applicant from and in respect of all actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Respondent or in his name jointly with any other person.
Except as any provision of the paragraphs comprising this Order prove to the contrary, each of the Applicant and the Respondent release the other from all debts owing from one to the other.
That each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Liberty to apply to the Court on 7 days’ notice in relation to any problem facilitating or implementing the above orders.
Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court notes that the Court or a Registrar may vary or set aside a judgment or Order after it has been entered if the judgment or Order was made in the absence of a party. Any application by the Respondent to set aside the above Orders shall be made within 14 days of being notified of the above Orders.
IT IS NOTED that publication of this judgment under the pseudonym Trask & Scriven is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2724 of 2018
| MS TRASK |
Applicant
And
| MR SCRIVEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the undefended final hearing of property and parenting proceedings between the parties. The parenting proceedings relate to the children [X] born … 2006 and [Y] born … 2008.
Proposals
The father has not participated in these parenting and property proceedings. He has not filed any documents. The Court is satisfied that he has had notice of the proceedings.
The mother’s proposals were set out in her Further Amended Initiating Application filed 27 August 2019.
The mother seeks final parenting orders, inter alia, that the children live with her; that the children spend supervised time with the father until such time as he provides to the mother or her legal representative 4 consecutive negative drug screening tests.
The mother seeks final property orders, inter alia, that the former matrimonial home at Town C be sold and that she be paid, from the net proceeds of sale, 75% of the proceeds of sale, with the balance to be paid to the father.
Material relied upon
The mother relied upon the following documents:
a)Further Amended Initiating Application filed 27 August 2019;
b)Notice of Risk filed 18 June 2018;
c)Financial Statement of the mother filed 18 June 2018;
d)Affidavit of the mother filed 4 June 2019;
e)Affidavit of the mother filed 6 September 2019;
f)Amended balance sheet dated 11 September 2019;
g)Case Outline of the mother’s solicitor (nine pages).
Parenting
Evidence: parenting
Throughout these reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The mother is aged 33 years. The father is aged 36 years.
The parties commenced cohabitation in about March 2004.
The parties separated in about 19 October 2016.
The Court refers to the mother’s evidence relating to parenting as set out in her Affidavits filed 4 June 2019 and 6 September 2019. The Court refers to the mother’s Notice of Risk filed 18 June 2018. The Court accepts this evidence.
Relevant legal principles
Section 60B of the sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with the mother and will benefit from a continuance of that relationship.
In the mother’s Affidavit filed 4 June 2018 she states that the father spends time with the children irregularly when the children wish.
It would appear that presently the children may well have a meaningful relationship with the father. They would, it appears, benefit from the continuance of such a relationship with the father provided it is safe for them to continue that relationship.
Should the children live with the mother and spend time with the father in accordance with the mother’s proposed final parenting orders, there is a reasonable prospect that the children’s meaningful relationship with the father can be maintained.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Following the father’s car accident in 2010, he became dependent on alcohol and drugs. This caused his behaviour to become more erratic and aggressive towards the mother. At the time of separation, the mother understands the father was using the illicit drug known as ice and marijuana on a daily basis.
Immediately prior to separation, the parties had an argument and the mother observed the father come towards her with a kitchen knife in the presence of the children. This caused the mother great concern that the father was going to stab her.
The children have told the mother that when they spend time with the father at his home, they do not have anything to drink because most of the liquids have alcohol in it.
One of the children has advised the mother the father smokes marijuana in front of the children and so does his friends.
In about April 2019 the father allowed one of the children to ride a motorbike on a public road with other vehicles. This child advised the mother that he was riding the motorbike at a speed of about 130 km/h.
The mother states that the father has driven motor vehicles whilst disqualified.
The Court otherwise refers to the mother’s evidence in relation to parenting, including her evidence relating to the father’s drug and alcohol use, and domestic violence..
Presently, there is an unacceptable risk of harm posed to the children in spending unsupervised time with the father. The father, and his friends, are ingesting illicit drugs in the presence of the children; the father is storing alcohol mixed with orange juice at his residence and in relation to which the children have access (although it would appear that the children have not sought to consume such alcohol); the father may well continue to have a dependence on alcohol and illicit drugs; and the father has permitted the children to ride motorbikes in a manner that creates a serious risk of injury to them.
The above risks of harm to the children can be minimised by making the mother’s proposed parenting orders providing, inter alia:
a)that the children spend supervised time with the father until the father can provide four consecutive negative drug screening tests, and
b)restraining orders that the father shall refrain from driving the children on public roads, and that he not allow the children to ride their motorbikes and operate motor vehicles on public roads,
c)restraining orders against the father in relation to, inter alia, the consumption of illicit substances or alcohol prior to and when spending time with the children.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court takes into account the statements made by the children to the mother.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
Not applicable.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has taken such opportunities. The father’s time with the children post separation has been irregular.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother financially supports the children. The father has not paid any child support since separation.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The parties have the capacity to provide for such needs, subject to the courts discussion above, under the need to protect primary consideration, in relation to the risks that the father poses to the children when spending time with them.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not applicable.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother’s attitude towards the children and to her responsibilities of parenthood has been satisfactory. As to the father, the court refers to its discussion above under the need to protect primary consideration. Again, the father has paid no child support since separation.
(j) Any family violence involving the child or a member of the child's family
The court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This was an undefended hearing.
m) Any other fact or circumstance that the Court thinks is relevant
The Court refers to the mother’s evidence relating to family violence perpetrated against her by the father. It will be in the best interests of the children that the court make the mother’s proposed orders in relation to the father enrolling in an anger management course and completing it.
It will be in the best interests of the children for the Court to make the mother’s proposed parenting orders relating to the father undergoing random chain of custody urinanalysis, and the mother’s proposed travel orders.
Parental responsibility
The mother seeks an order for sole parental responsibility. The father has not taken part in these parenting and property proceedings. The mother has been subjected to significant family violence at the instance of the father, and it would appear she remains fearful of the father. The presumption of equal shared parental responsibility does not apply therefore. There is a lack of trust, the court infers, in the mother towards the father. There is a lack of meaningful communication between the parties. The mother asserts that there is a distinct possibility that the father may be jailed presently. It is unlikely that these parties could reach decision on major decisions affecting the children in a timely fashion. It will be in the best interests of the children that the mother have sole parental responsibility for them.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
The Applicant Mother have sole parental responsibility for the children, [X] (“[X]”) born … 2006 and [Y] (“[Y]”) born … 2008 (“the children”).
That the children live with the Applicant Mother.
That the children spend supervised time with the Respondent Father at the Town A Catholic Care Contact Centre (“the Organisation”) each alternate weekend on Sunday from 10:00am to 12:00pm until such time as the Respondent Father provides to the Applicant Mother or her legal representative four (4) consecutive negative drug screening tests.
To facilitate the Respondent Father’s time with the children in Order 3, each party shall:
4.1.Within seven (7) days from the date of these Orders contact the organisation and arrange and attend for the first available and offered intake appointment with the organisation to enable an assessment to be made as to the suitability for attendance at the organisation and inclusion with the organisation program;
4.2.Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consents, instructions and authorities as may be necessary to enable the completion of all intake and assessment process by the organisation;
4.3.Present the children to the agreed location at such time and dates as are advised;
4.4.Follow all rules of the organisation;
4.5.If the organisation following its intake procedure is unable or unwilling to provide supervision as set out above, then either party have liberty to restore the matter to the Court list on seven days written notice to the other parties and to the Court;
4.6.That the Respondent Father be solely liable for the costs of the supervision.
That upon the Respondent Father providing to the Applicant Mother or her legal representative with four (4) consecutive negative drug screening tests, the children shall spend time with the Respondent Father as agreed between the parties or failing agreement as follows:
5.1.That upon the receipt of the fourth negative drug screening test and for a period of no less than six (6) months, each alternate Sunday from 9:00am to 5:00pm;
5.2.That following the Respondent Father’s consistent and continuous time with the children and upon the completion of Order 5.1, the Respondent Father shall spend time with the children each alternate Saturday from 9:00am to 5:00pm Sunday thereafter.
5.3.That should the Respondent Father fail to spend time with the children on more than three (3) occasions without notice, the Respondent Father’s time with the children shall revert back to Order 5.1.
That on special occasions, the children shall spend time with the parties as follows:
6.1.The Applicant Mother on Mother’s Day from 9:00am to 5:00pm Sunday;
6.2.The Respondent Father on Father’s Day from 9:00am to 5:00pm Sunday;
6.3.The Applicant Mother on her birthday on … from 9:00am to 5:00pm Sunday should the children not be in the Applicant Mother’s care;
6.4.The Respondent Father on his birthday on … from 9:00am to 5:00pm Sunday should the children not be spending time with the Respondent Father;
6.5.The Respondent Father from 4:00pm to 8:00pm on the children’s birthdays being … and … should their respective birthdays fall on NSW calendar school day;
6.6.The Respondent Father from 2:00pm Saturday to 5:00pm Sunday on the children’s birthdays being … and … should either child’s birthday fall on a Saturday;
6.7.The Respondent Father from 9:00am Saturday to 2:00pm Sunday on the children’s birthdays being … and … should the child’s birthday fall on a Sunday;
6.8.The Respondent Father in odd numbered years, from 2:00pm Christmas Day to 5:00pm Boxing Day;
6.9.The Respondent Father in even numbered years, from 5:00pm Christmas Eve to 2:00pm Christmas Day;
6.10.At any other times as may be available or agreed to between the parties in writing with no less than seven (7) days’ notice.
That during the Respondent Father’s time with the children, the Respondent Father shall refrain from driving the children on public roads.
That during the Respondent Father’s time with the children, the Respondent Father shall not allow the children to ride their motorbikes and operate motor vehicles on public roads.
That the Respondent Father is at liberty to contact the children directly via telephone at reasonable times.
10. That for the purposes of changeover, the Applicant Mother or her nominee shall drop off and collect the children at the paternal grandfather’s home at the commencement and conclusion of the Respondent Father’s time with the children and that for the purposes of changeover, the Respondent Father shall conduct himself in a civil manner.
11. That in the event that the children have a sporting event, the Applicant Mother or her nominee shall drop off and collect the children from these events.
12. That the Respondent Father shall not consume any illicit substances or alcohol twelve (12) hours prior to spending time with the children, in the presence of the children or whilst the children are in his respective care.
13. That the parties shall provide at least four (4) weeks’ notice of an event including the time, date, venue and attendees, the children shall be entitled to attend the following events which are organised to celebrate the children’s immediate family members’: birthdays, engagements and weddings and the other party is not to unreasonably deny such request.
14. That pursuant to section 65Y(2) of the Family Law Act 1975, the Applicant Mother be permitted to travel with the children out of the Commonwealth of Australia.
15. That the Respondent Father undergo random chain of custody urinalysis as follows:
15.1.At a frequency of no greater than once per month;
15.2.At times nominated by the Applicant Mother or her solicitor;
15.3.Within forty-eight (48) hours of receiving a request;
15.4.At the Respondent Father’s sole cost;
15.5.That the results of the urinalysis testing be provided to the Applicant Mother or her legal representative within twenty-four (24) hours of receipt;
15.6.In the event a test result is positive for illicit substances, the Respondent Father’s time with the children shall be suspended until such time when four (4) further clean test results have been provided, and the Applicant Mother or her legal representative may request those within the same month notwithstanding 15.1.
16. That both parties shall advise each other and keep each other advised of their current email address.
17. In the event of the children suffering a medical emergency requiring medical attention while spending time with the Respondent Father, the Respondent Father shall:
17.1.Notify the Applicant Mother as soon as possible; and
17.2.The Applicant Mother shall be provided with the full details of the practitioner and medical facility upon which the children attend as soon as possible.
The Respondent Father shall ensure the Applicant Mother is kept informed of:
18.1Any medical problems or illness suffered by the children while in his care;
18.2Any medication that has been prescribed for the children; and
18.3Any other matter relevant to the children’s welfare.
That within 21 days from the date of these Orders the Respondent Father shall:
19.1Enrol in an anger management course titled “Taking Responsibility” conducted by Relationships Australia or a similar course, and thereafter complete the course; and
19.2Provide to the Applicant Mother or her legal representative written evidence of his completion of the course promptly upon completion.
That the parties shall not denigrate the parties or a member of their extended family in the presence or hearing of the children and shall immediately remove them from the presence or hearing of any third party who does so.
Property adjustment
Evidence: property
Throughout these reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The Court refers to the mother’s evidence relating to property issues as set out in her Affidavits and Financial Statement. The Court accepts this evidence.
Legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
“The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.”
The Court would observe that the above legal principles are equally apt to de facto relationship property cases, by reference to the relevant provisions in the Act relating to de facto relationships and property adjustment cases; see Part VIIIAB of the Act.
Balance sheet
The mother’s amended balance sheet is set out below:
| Ownership | Description | Applicants value | Respondents value | |
| ASSETS | ||||
| 1. | H | B StreetTown C, Town C | $ 580,000.00 | |
| 2. | W | Commonwealth Bank of Australia Smart Access (…32) | $ 116 | |
| 3. | W | Commonwealth Bank of Australia (…07) | $ 11 | |
| 4. | H | Bank D (…60) | $ 391 | |
| 5. | H | Bank D (…48) | ||
| 6. | H | Account (…14) | $ NK | |
| 7. | W | motor vehicle A | E $4,500 | |
| 8. | H | motor vehicle B | E $ 10,000 | |
| 9. | H | motor vehicle C | $ NK | |
| 10. | H | motor vehicle D | $ NK | |
| 11. | H | motor vehicle E | $ NK | |
| Total | $ 595,018 | |||
| ADDBACKS | ||||
| 12. | H | Withdrawal from Bank D home loan account (…12) for Respondent’s gambling | $ 80,530.00 | |
| Total | $ 80,530.00 | |||
| LIABILITIES | ||||
| 13. | W | CBA Mastercard | $5,000.00 | |
| 14. | W | CBA Mastercard | $5,000.00 | |
| 15. | H | Bank D Mortgage (…12) | $ 215,082 (as at 7/3/19) | |
| 16. | H | Respondent father’s loan | $48,000 | |
| Total | $ 273,082 | |||
| SUPERANNUATION | ||||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | ||
| 17. | W | Commonwealth Bank of Australia | Accumulated | $ 1,300.00 | ||
| Total | $ 1,300.00 | |||||
| Net non-superannuation and superannuation assets (including the addback) | Total: | $403,766 |
Notes
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:
1.Why an item should not be on the balance sheet.
2.Whether expert evidence is require to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
3.Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
4.Any other comment a party wishes to make in relation to the disputed item.
| Item No | |
| 12 | The Respondent transferred $80,530 from the Bank D home loan account …12 to the Bank D account …60 between 11 September 2016 to 5 February 2017. The Respondent gambled approximately $68,629 on an online gambling website known as The Palace during the same period. [See Affidavit of Ms Trask filed 4 June 2019 at paragraphs 37-51] |
| 13 & 14 | The credit card debts were accumulated post-separation. [Affidavit of Ms Trask filed 6 September 2019 at paragraphs 24-30] |
In the view of the Court, items 13 and 14 (the wife’s two CBA MasterCard debts totalling $10,000) should remain in the balance sheet as it was reasonably necessary for the mother to incur these debts on behalf of herself and the children post separation, having been excluded from the family home by the father.
The above balance sheet contends that an amount of $80,530 should be added back into the balance sheet (item 12) by reference to the father’s withdrawal from the home loan account for his gambling. The note to item 12 refers to the father transferring $80,530 from the home loan account to his bank account with the Bank D between 11 September 2016 to 5 February 2017. It is unreasonable to expect the mother to be subject to the increase in mortgage loan by reference to the father’s gambling and accordingly the sum of $80,530 should be added back into the balance sheet.
Accordingly, there will be no changes to the mother’s balance sheet.
From the above final balance sheet, the Court finds the parties’ assets total $595,018, the addback is $80,530; and their liabilities are $273,082. Accordingly, the parties’ net non-balance superannuation assets are $402,466. The mother’s superannuation is $1,300. The total of the parties net non-superannuation and superannuation assets are, accordingly, $403,766.
Section 90SM (3) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property (see the final balance sheet referring to the various assets), and the fact that the continuance of the current legal ownership of the property would not afford them justice and equity.
Contributions
At the outset, the Court observes that the parties’ relationship spanned the period from about 2004 to about October 2016, a period of some 12 years.
The parties did not have significant assets or liabilities at cohabitation.
The property at Town C (the property) was purchased for $317,500 in about July 2007. The father received the first home buyers grant, and the paternal grandfather loaned the parties $90,000 for the deposit monies. A mortgage for the balance of the purchase price was obtained through Mortgage Lender F.
The court accepts the mother’s evidence relating to the present value of the property being $580,000.
The father has failed to provide financial disclosure to the mother in these property proceedings. Accordingly, the court should not be unduly cautious in making findings by reason of such failure: see Weir & Weir [1992] FamCA 69. For example, the wife is unaware as to the extent, if any, of the father’s superannuation.
The Court takes into account the mother’s work, including unpaid work, in the father’s business, during the relationship.
The Court takes into account the mother’s superior contributions as a homemaker and parent.
The Court takes into account the mother’s predominant care of the children post separation.
The Court takes into account the father’s receipt of about $204,000 in compensation monies in about 2013 and that he applied some of these funds towards the mortgage loan, to outstanding debts, and to purchase a motor vehicle, a boat and caravan.
The Court takes into account that it would appear that the father made direct financial contributions towards the mortgage loan during the parties’ relationship, otherwise than through his compensation monies, at least up to March 2019.
The Court takes into account the mother’s evidence that during the relationship the father had a dependence on alcohol and illicit drugs. The Court takes into account the mother’s evidence relating to the father’s ingestion of alcohol and illicit drugs during the relationship. For example, the court takes into account her evidence that prior to separation the father told the mother that Centrelink had cut him off, so he had to sell drugs to make money and was his only income.
The court takes into account the parties’ repayments to the paternal grandfather of $110 per week in repayment of the loan from the paternal grandfather. The balance sheet indicates that there is some $48,000 still owing to the paternal grandfather in relation to this loan.
The court takes into account the father’s occupation of the family home post separation whilst observing that he would appear to have been making mortgage loan repayments during this period.
The Court takes into account the mother’s indirect financial contributions towards the repayment of the mortgage loans on the property.
The mother contended that the Court’s contribution assessment at trial date should be assessed as favouring the wife 60%.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the total net assets as at trial date as 55% to the mother, and 45% to the father. By reference to the total net assets being $403,766, this results in a disparity between the parties of some $40,377.
Section 90SF (3) of the Act
The father is aged 36 years and the mother 33 years.
The parties’ health is satisfactory.
The mother works as a driver earning about $1,100 gross per week. She receives family tax benefits however she has been advised by Centrelink that the carer payment she receives for her mother will cease shortly as she has commenced full-time work. The mother and children are in rental accommodation living with the maternal grandmother.
It is unclear as to the father’s present work status, including whether he may presently be in jail.
Both parties have re-partnered.
The Court takes into account that pursuant to the Court’s proposed parenting orders, the mother will have the primary care of the children. There is a significant doubt as to whether the father will pay child support.
The mother has limited superannuation. The father’s superannuation is unknown.
The Court takes into account the father’s failure to make financial disclosure. It is unknown what his present financial position is.
Taking into account the above matters, there should an adjustment under section 90SF (3) of the Act of 20% in favour of the mother, resulting in an adjusted contributions assessment of 75% in favour of the mother.
Justice and equity
Pursuant to the Court’s contribution assessment, the father should be left with assets representing, in value, 25% of the total net assets, $100,941 (25% of $403,766) less the add back of $80,530, leaving the father net $20,411.
Pursuant to the Court’s contribution assessment, the mother should be left with assets representing, in value, 75% of the total net assets, $302,824 (75% of $403,766).
This results in a disparity of $282,413 between the parties.
Should the property be sold, with net proceeds of $364,918, and the parties repaying the paternal grandfather his loan, $48,000, leaving net $316,918, then 75% of $316,918 to the mother is $237,688.
Should the mother retain:
Her bank accounts, $127,
Her car $4,500,
Her superannuation $1,300
Total $5,927
And retain debts:
CBA MasterCard debts: $10,000
Total $10,000,
Leaving her net $233,615
then the father will be required to make a cash payment to the mother of $69,209 (so as to make up the mother’s total of $302,824).
The father would receive 25% of $316,918, being $79,229, which when added to his retained bank account, $391, his caravan, $10,000, totals $89,620, less his payment to the wife of $69,209, leaving him net $20,411.
The mother can utilise the cash she receives pursuant to the Court’s Orders to seek to obtain suitable housing accommodation. The father can utilise the cash he receives in such manner as he deems fit.
The Court recognizes the disparity of $282,413 between the parties is significant. However this reflects, inter alia, the parties differing contributions during the relationship, and the matters discussed above under s90SF (3), which includes the mother’s prospective primary care of the children and the father’s failure to make financial disclosure.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 8 November 2019
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Consent
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Remedies
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Procedural Fairness
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Statutory Construction
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