TUTTLE & TUTTLE
[2016] FamCA 84
•19 February 2016
FAMILY COURT OF AUSTRALIA
| TUTTLE & TUTTLE | [2016] FamCA 84 |
| FAMILY LAW – CHILDREN – With whom the children shall live not in issue – Parental responsibility – Best interests of the children – Presumption of equal shared parental responsibility does not apply – Disparate allocation of parental responsibility – Young children – Issue of the arrangements to spend time with the father where father on rotating roster – Meaningful relationship with both parents – Need to protect the children from harm – Parental capacity. FAMILY LAW – PROPERTY – Settlement in relation to marriage – Appropriate for the Court to make orders altering their present property interests – Assessment of contributions – Weight to be afforded to initial contribution made by the father – Consideration of relevant s 75(2) factors – Mother will have primary care of the two young children for years into the future – Where ongoing income disparity – Where father continues career during cohabitation while mother primary child carer. |
FAMILY LAW – SPOUSE MAINTENANCE – Whether mother unable to support herself adequately – Assessment of her reasonable needs – Where no issue as to father’s capacity – Order made for closed period.
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 72, 75, 79, 90MT |
| Bevan& Bevan [2014] FamCAFC 19 |
| APPLICANT: | Mr Tuttle |
| RESPONDENT: | Ms Tuttle |
| FILE NUMBER: | DUC | 291 | of | 2014 |
| DATE DELIVERED: | 19 February 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | N Town |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 2, 4, 5 and 6 November 2015 |
LAST SUBMISSIONS: 27 January 2016
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Battley |
| SOLICITOR FOR THE APPLICANT: | Garvins Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Campbell Paton & Taylor |
Orders
Parenting:
That the mother have sole parental responsibility as to the education (both current and future) and health issues for the children B born … 2011 and C born … 2012.
That subject to the previous order the mother and father otherwise have equal shared parental responsibility for the children B born … 2011 and C born … 2012.
That the children live with the mother.
That the children spend time with the father as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a)Commencing forthwith and for a period of 4 months from the date of these orders each week:
(i)As to the child B from 9:00am on the second day of the father’s rostered off period until 6:00pm on the third of the father’s rostered off period; and
(ii)As to the child C from 9:00am to 6:00pm on the second and third days of the father’s rostered off period;
(b)Commencing at the expiration of Order 4(a) and until the child B commences school in 2017 each week as to both children from 9:00am on the second day of the father’s rostered off period until 6:00pm on the third day of the father’s rostered off period;
(c) Commencing at the expiration of Order 4(b):
(i)As to the child B during school term from after school and if not a school day from 9:00am on the second day of the father’s rostered off period until before school or if not a school day 9:00am on the fourth day of the father’s rostered off period; and
(ii)As to the child C during B’s school terms from 9:00am on the second day of the father’s rostered off period until 9:00am on the fourth day of the father’s rostered off period;
(d)Thereafter upon the child C commencing school as to both children from after school and if not a school day from 9:00am on the second day of the father’s rostered off period until before school or if not a school day 9:00am on the fourth day of the father’s rostered off period;
(e)During end of Term 1, 2 and 3 school holidays in 2017 with both children for a period of four consecutive nights commencing at 9:00am on the first day and concluding at 6:00pm on the last day provided that the father is on annual leave or other leave during such period and for this purpose the father shall nominate in writing, such writing to include email or SMS communication to the mother the dates on which the children shall spend time with him not less than 6 weeks before the commencement of such time;
(f)During the Christmas school holidays 2017/2018 with both children for two non-consecutive periods of seven nights the first commencing on the first Monday in January 2018 and the second commencing on the third Monday in January 2018 from 9:00am on the first day until 6:00pm on the last day of such periods provided that the father is on annual leave or other leave during such period;
(g)From the commencement of the 2018 school year for one half of the school holiday periods at the conclusion of school terms 1, 2 and 3 being the first half of such holiday periods in even numbered years commencing at 9:00am on the day after term ends and concluding at 6:00pm on the midpoint Saturday and the second half of such holiday periods in odd numbered years with such periods to commence at 6:00pm on the midpoint Saturday and conclude at 6:00pm on the day before term resumes provided that the father is on annual leave or other leave during such period;
(h)From the commencement of the 2018 school year for one half of the Christmas school holiday periods provided that the father is on annual leave or other leave during such period being the first half of such holiday periods in even numbered years and the second half of such holiday periods in odd numbered years with such periods:
(i)In even numbered years to commence at 9:00am on 27 December and to conclude at 9:00am on midpoint day of such period calculated to the day prior to resumption of the children’s school term; and
(ii)With such holiday periods in odd numbered years to commence at 9:00am on the on midpoint day of such period calculated from 27 December to the day prior to resumption of the children’s school term and to conclude at 9:00am on the day prior to the resumption of school term;
(i) That the above orders are subject to the following orders:
(i)That the children shall spend time with the father on Father’s Day each year from 9:00am to 6:00pm provided always that the children’s time with the father shall be suspended on Mother’s Day from 9:00am to 6:00pm; and
(ii)That the children shall spend time with the father from 2:00pm Christmas Day until 5:00pm Boxing Day in odd numbered years and from noon Christmas Eve to 2:00pm Christmas Day in even numbered years.
That the father shall ensure that the children continue to attend preschool as arranged by the mother when the children are spending time with him and ensure that he facilitates the prompt attendance of the children at same.
That both parents are at liberty to attend on such other occasions and at such other events as are significant to the children’s welfare being occasions relating to education, religious education, health, sporting activities, extracurricular activities or other occasion significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
That in the event of either child being hospitalised or receiving urgent medical attention, the parent with whom the child is spending time shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That for the purposes of the children’s time with the father where such time is not to commence or conclude at school or preschool the mother shall deliver the children to the father at the public car park at the Aldi Supermarket D Town at the commencement of such time and the father shall return the children to the mother or her nominee known to the children at the front door of the General Store, E Town.
That for the purposes of implementing the children’s time with the father the father shall provide to the mother his work roster within 48 hours of its receipt by the father and shall provide to the mother at all times not less than 4 weeks’ notice of the ongoing nominated days on which he proposes the children spend time with him in accordance with his roster and these orders.
That the mother and father are restrained from saying anything to or in the presence of the children which is in any way abusive, belittling or demeaning of the other parent and further are to use their best endeavours to prevent any other person to say anything to or in the presence of the children which is in any way abusive, belittling or demeaning of the other parent.
That the father shall by reason of this order be entitled to obtain from the children’s preschool or school at any time such information as is reasonably requested by him in relation to the children’s attendance and progress at preschool or school and he shall be entitled to make appointments to attend at such preschool or school for the purposes of parent/teacher interviews with such interviews to be the subject of separate appointment from the mother and the mother shall do all things necessary to authorise the children’s preschool or school to provide such information to the father at his request if required.
That the father shall by reason of this order be entitled to obtain from any health practitioner or allied health practitioner, medical centre or hospital attended by the children such information as he may request relating to the children’s health and medical history, treatment and or prognosis and the mother shall do all things necessary to authorise such persons or entities to provide such information to the father at his request if required.
That the mother and father shall at all times keep each other informed of their mobile and landline telephone numbers, and work telephone numbers if applicable and residential address and advise the other within 48 hours of any change to such information.
Property
That the mother and father within 7 days do all things necessary to authorise and direct that funds presently held in controlled moneys account on behalf of them together with interest accrued be paid to the mother forthwith.
That, upon noting that the Trustee of the Mercer Super Trust has been accorded procedural fairness, the following superannuation splitting orders bind the Trustee of the Mercer Super Trust.
That the court allocates, as required by section 90MT(4) of the Family Law Act 1975 (Cth) the base amount of $150,000 to the mother out of the interest held by the father in the Mercer Super Trust employer plan F Ltd Superannuation Plan member number … (hereinafter referred to as “Mercer”).
That, pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable from the interest held by the father the trustee shall pay to the mother the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in the previous order and there shall be a corresponding reduction in the entitlement the father would have had in the Mercer but for these orders.
That the previous order has effect from the operative time and the operative date for such orders is 7 working days after service of these orders on Mercer.
That the trustee of Mercer, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the mother in accordance with these splitting orders.
That the mother shall hereinafter indemnify the father from all or any liability in relation to any debt owed by the mother or the father and mother jointly to the mother’s parents.
Spouse Maintenance
That the order for interim spouse maintenance be discharged as and from the date of these orders.
That the father pay to the mother by way of spouse maintenance $450 per week first payment on the seventh day after the date of these orders with such payments to be by way of bank transfer to an account nominated by the mother in writing within two days from the date of these orders with such payments to continue until the latest payment date prior to the 31 March 2018.
Costs
That in the event of any application for costs in relation to these proceedings then any such application be made by way of application in a case supported by affidavit filed within one month from the date of these orders
That otherwise all applications before the court be dismissed and the proceedings removed from the active pending cases list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tuttle & Tuttle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC 291 of 2014
| Mr Tuttle |
Applicant
And
| Ms Tuttle |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to final parenting arrangements for the children B born in 2011 and C born in 2012, property settlement and spouse maintenance.
The matter was heard in the N Town Registry of this Court on 5 and 6 November 2015 with final submissions not completed until 27 January 2016.
The applicant father in final submissions seeks orders that in summary provide:
a)That the interim order for spousal maintenance made 6 March 2015 be discharged;
b)That the proceeds of sale of the former matrimonial home be paid as to $100,000 to the mother and the balance to the father;
c)That there be a splitting order as to $100,000 from the father’s superannuation fund to the mother;
d)That the mother and father have equal shared parental responsibility for the children;
e)That the children live with the mother;
f)That the children spend time with the father subject to his roster from 9:00am on the second day of his rostered days off until 5:00pm on the fourth day;
g)During 2016 for one week of each school holiday period by agreement and failing agreement the first week and beginning 2017 for half of each school holidays by agreement and failing agreement the first half in even numbered years and the second half in odd numbered years;
h)Time on Father’s Day, the father’s birthday, the children’s birthdays, Christmas and in school holidays and that changeover be at school, preschool or the foyer of the D Town Police Station; and
i)Otherwise the father sought various specific issues orders as educational and health issues information.
The respondent mother in her Case Outline sought orders in summary:
a)That the mother receive all funds held in a controlled monies account on behalf of the parties of about $153,000;
b)That there be a splitting order as to $150,000 from the father’s superannuation fund to the mother;
c)That the father pay by way of spouse maintenance to the wife $600 per week until 1 February 2020;
d)That the mother have sole parental responsibility for the children;
e)That the children live with the mother;
f)That the children spend time with the father:
i)Should he have his own accommodation in D Town:
a)Then as to B until the child commences school: two days each alternate week between Thursday and Sunday from 9:30am on the first day to 4:30pm the next day and for the Christmas holidays 2016 two blocks of three days from 9:30am on the first day to 4:30pm on the third day;
b)Upon B commencing school: two weekends per month from 9:30am Saturday to 4:30pm Sunday and until term one in 2018, three days each mid-term school holiday from 9:30am on the first day to 4:30pm on the third day and three blocks of three days from 9:30am on the first day to 4:30pm on the third day during the Christmas school holiday period;
c)Then from term 1 2019 and thereafter: one week of each mid-term school holiday period by agreement and failing agreement from 9:30am the first Saturday of the school holiday period to 4:30pm the following Friday in even numbered years and from 9:30am the second Saturday to 4:30pm the following Friday in odd numbered years and two blocks of one week in the Christmas school holiday period between particular dates;
d)Then as to the child C that such time coincide with B’s time with the father as in a) above until 1 June 2016 from 9:30am to 4:30pm each day and thereafter to coincide with B’s time with the father as provided for above;
ii)In the event that the father continues to live in a shared house in D Town:
a)As to B until the child commences school: two days each alternate week between Thursday and Sunday from 9:30am to 4:30pm each day;
b)Then after the child B commences school: two weekends per month from 9:30am Saturday to 4:30pm Sunday and until term one in 2018 three days each mid-term school holiday from 9:30am the first day to 4:30pm the third day and three blocks of three days contact from 9:30am the first day to 4:30pm the third day during Christmas school holiday period;
c)Then as to B from term one in 2019 and thereafter: one week of each mid-term school holiday by agreement or otherwise the first half in even numbered years and the second half in odd numbered years and two blocks of one week in the Christmas school holiday periods during particular dates;
d)As to the child C until term one in 2019: coinciding with B’s time with the father from 9:30am to 4:30pm each day and as from term one in 2019 to coincide with B’s time with the father as per b) and c) above.
iii)Specific orders as to the children’s time with the father on Father’s Day, the children’s birthdays, the father’s birthday and the Christmas festive period and for the father’s time to be suspended on certain periods relating to the Christmas festive period, the Mother’s Day weekend, the mother’s birthday, the children’s birthdays and from 7 February to 24 February 2016;
iv)That to facilitate the children’s time with the father changeovers occur at the commencement of such time at the Aldi Supermarket at D Town and at the conclusion of such time at the General Store at E Town;
v)That otherwise the children’s time with the father only occur when it does not fall on the first day after the father comes off nightshift, when the father has rostered days off and when the father will be the primary carer of the children during such time;
g)That the father provide to the mother his work roster within 48 hours of him receiving same and provide to the mother not less than eight weeks’ notice prior to the nominated days and all weekends he proposes to have contact with the children;
h)That there be a mutual non-denigration order;
i)That the mother authorise the children’s school preschool and day care to provide to the father any information or documents requested by the father; and
j)That the mother and father notify the other of any change of contact telephone number or residential address within 48 hours of such changes occurring.
The mother’s significant reference to “weekends” simply ignores the reality that the father is a shift worker on a four days on – four days off roster.
Context
The mother is 32 years of age and the father is 43 years of age.
At the time of cohabitation and thereafter the father was employed part time and also conducted a small business on his days off.
The father is now in full-time employment earning an income of about $210,000 per annum in 2015 financial year including overtime with a base salary of about $184,000. He at the time of trial share rented premises in D Town with one other male person.
The father works four days on and four days off with his rostered days on comprising two day shifts from 7:00am to 7:00pm followed by two night shifts of 7:00pm to 7:00am. He is currently based in G Town and has leased a room in G Town for his rostered days on. He travels to D Town following the conclusion of his nightshift at 7:00am to spend time with the children.
When questioned as to his capacity, after doing a nightshift finishing at 7:00am, to have the children in his care that day the father gave evidence that if not called out on a job he was able to sleep during the shift.
At cohabitation the mother was working full-time as a retail assistant in D Town and undertaking tertiary studies. Subsequent to the commencement of cohabitation the mother reduced her working days to four days per week at the suggestion of the father to facilitate having more time to study. In April 2010 she obtained additional casual employment as an administrative assistant at the D Town Base Hospital. The mother ceased salaried employment shortly before the birth of the first child.
The parties commenced cohabitation in mid-2008 and married in 2009.
They separated on a final basis on 10 January 2013 following a regrettable incident that saw the father charged with assault on the mother. Thus a relationship of less than five years. At separation the youngest child was only three months of age.
The subject children are the only children of the relationship. The children subsequent to separation resided with the mother and ultimately were spending time with the father in terms of interim orders made on 4 June 2015 that provided for the children to spend time with the father two days each week when he is rostered off from work and on other special occasions.
The mother makes complaint about aspects of the father’s character claiming he was controlling, aggressive and occasionally physically violent towards her. In circumstances where her complaints commence in April 2009 it is not surprising that this relationship had a less than rosy future.
The relationship was such that by mid-2011 the parties were sleeping in separate beds and the mother had commenced with a psychologist as to aspects of her relationship with the father, subsequent to which the parties attended some marriage counselling.
The father for his part suggests that the mother has continued to make baseless allegations of intimidation.
The mother in her trial affidavit provided a litany of complaints about the father including abuse, aberrant behaviour including violence, aggression and jealousy. The mother was not taken to task as to many of her assertions in this regard. The maternal grandmother makes similar complaint as to the father’s behaviour towards her.
Perhaps telling as to the father’s character is his concession that his employer, after complaints made by his fellow employees, had required him to undertake counselling as to his interpersonal skills in relation to his fellow employees.
The father after separation and in September 2015 attended the “Making Choices” program run by Interrelate. The program was in essence an anger management program.
Having had the opportunity to observe both parties give oral evidence, their demeanour and the manner in which they both responded to questions overall, the mother’s evidence where in conflict with the father as to these aspects of their relationship is to be preferred.
At the time of separation there was an argument between the mother and father during which he concedes he grabbed the mother. The father was subsequently charged with assault, pleaded guilty and was placed on a good behaviour bond for 12 months. The facts to which the father pleaded guilty were not before the Court.
On 12 June 2013 a final Apprehended Violence Order was made for the protection of the mother and children for 12 months. The mother subsequently sought an extension of the Apprehended Violence Order but that application was withdrawn. Regrettably communication between the mother and father has mostly been facilitated by text message.
The 18 April 2015 incident
The mother and father are at issue in relation to an incident on 18 April 2015 at the H Town in D Town. The father had attended at the hotel for dinner with his flatmate and whilst there are observed that the mother was present in the premises. The father asserts that one of the mother’s friends threw a drink over him, although he received an apology that asserted that it was an accident.
Much time was spent on this incident in oral evidence and it bears no relevance to the issues for determination. The factual circumstances of what transpired need not be determined save to demonstrate the pettiness to which the relationship between the father and the mother has descended.
Issues
The father relied on:
a)His affidavit filed 16 October 2015;
b)The affidavit of the paternal grandmother filed 16 October 2015;
c)The affidavit of Mr I filed 16 October 2015; and
d)The affidavit of Mr J filed 16 October 2015.
The mother relied upon:
a)Her affidavit filed 19 October 2015;
b)The affidavit of the maternal grandmother filed 19 October 2015; and
c)The affidavit of the maternal grandmother filed 30 October 2015.
At the commencement of the trial the issues for determination were summarised by counsel as follows:
a)The allocation of parental responsibility for the children to either of or both the mother and father;
b)The children’s time with the father, such determination involving questions of his capacity, allegations of family violence during the relationship and allegations of psychological abuse;
c)As to spousal maintenance, the threshold issue as to whether the mother can demonstrate that she is unable to support herself adequately by reason of the matters set out in section s 72 of the Family Law Act 1975 (Cth) (“the Act”) and if so, demonstrated an assessment of her reasonable needs. It was conceded by the father that there was no issue as to his capacity in the event that there was to be an order for spousal maintenance; and
d)The division of matrimonial property.
Background
The affidavit evidence of the mother and father, their demeanour in the witness box and the nature of cross examination embarked upon by their respective counsel clearly demonstrate that the relationship between the mother and father is fraught with conflict and point scoring against one another.
An examination of the history of the relationship provides some insight as to the issues for determination.
At the commencement of cohabitation the father owned a motor vehicle, two motorbikes and had he asserts savings of about $27,000 together with Mercer superannuation of approximately $56,500. In addition the father had an interest in the Military Superannuation Fund of approximately $130,000. He has made no contributions to that fund since 2000.
At the commencement of cohabitation the mother had a motor vehicle purchased shortly before cohabitation for $25,000, some household furnishings and contents and a small credit card debt.
The parties commenced cohabitation in a share house at which the father resided.
The K Street E Town property
Some months after cohabitation commenced and in November 2008 the father purchased a property at K Street, E Town in the central western district of New South Wales. The property was purchased for $283,000 and the purchase funded by way of a first home owners grant and a CBA mortgage. The property was occupied by the parties after purchase and after the acquisition of the matrimonial home the property was tenanted as an investment until sold in December 2013 for $345,000.
On sale of this property the net proceeds of sale were about $66,000. The father repaid the debt and interest accrued to the mother’s parents of $62,400, being moneys advanced to them to facilitate the purchase of the matrimonial home, and paid the balance in reduction of the outstanding debt secured over the mother’s motor vehicle.
L Pty Ltd
The father subsequent to the commencement of cohabitation operated a business as a sole trader trading as “L Pty Ltd”. The mother undertook some administration and bookkeeping duties for the business.
The father financed the purchase of second hand equipment for $45,000 and with $15,000 borrowed from the mother’s parents to make some alterations to a work vehicle purchased also with finance for $75,000. The loan to the mother’s parents was subsequently repaid in part.
Shortly prior to separation the father purchased new equipment for $81,950. The equipment was sold separately. The father financed the purchase of the new equipment by way of a commercial loan agreement with the Westpac Banking Corporation for the total sum of $109,395. With the surplus borrowed over and above the purchase of the new equipment, the father paid out the old finance debt of about $28,000 on the old loader. The father received $35,000 by way of trade-in on the old equipment and with those funds he discharged the outstanding finance secured over that vehicle of $26,741 and spent most of the balance on the purchase of a slasher for the matrimonial home property.
The business provided to the father significant deductions by way of depreciation and trading losses that were offset against his PAYE taxation liability. He received significant taxation refunds both during cohabitation and thereafter. In the 2013 year he received a tax refund of approximately $31,000, those funds being retained by him. Such refund was referrable in part to the period of cohabitation. In subsequent years he received further taxation refunds until the business was closed down.
The father continued to work the business on a part-time basis following separation but found it difficult to continue the business by reason of his working hours and his commitment to the children. The father facilitated a sale of the business assets through M Auctions at N Town receiving net $26,230 after selling costs, commission and paying out finance debts. The father paid these funds into his Australian Taxation Office account and the funds were later substantially subsumed in the father’s 2015 taxation assessment consequent upon sale of the business.
O Street E Town
In July 2010 the mother and father jointly purchased the matrimonial home at O Street, E Town for $395,000. The purchase was financed by way of a mortgage borrowing of $340,000 and monies advanced by the mother’s parents of $60,000.
The mother’s parents loaned to the parties $9,500 to install air conditioning in this property and during cohabitation various renovations and landscaping were carried out to the property by the mother and father funded with income available to the parties.
Subsequent to separation the mother remained in the property for a few months and then moved to her own rental accommodation in D Town, expecting the father to move back in. He did not. This property remained vacant between April 2013 and April 2014 by reason of a disagreement between the parties as to it being rented. The mother resumed occupation of the property in April 2014 until it was sold. The mother then moved to a property owned by her parents in E Town where she pays nominal rent.
The father in early 2014 redrew from the mortgage $14,200 being in part funds he had deposited into the mortgage account from his 2013 tax refund received post separation. The mother withdrew from the mortgage amounts totalling $1,500 to meet living expenses for her and the children. Subsequently the father converted the mortgage to interest only payments.
The property was sold on 29 August 2014. The mother’s parents were repaid the money that they had lent the parties to install an air conditioner in the property. On sale the mother retained contents of the home.
The net proceeds of sale of $169,125 were placed in a controlled monies account by the mother’s solicitor. By agreement the sum of $16,000 was released from these funds to the mother “characterised as a partial property settlement”. The mother used the funds for her legal expenses.
Otherwise the mother has borrowed funds from her parents to meet legal fees and living expenses post separation.
On 16 January 2015 the mother requested through her solicitors that the proceeds of sale be placed in an interest-bearing account. A further request was sent on 11 June 2015 and ultimately funds were placed on an interest-bearing account on 17 June 2015. There is no evidence as to any interest lost in the intervening period.
Motor vehicles
In November 2010 the father sold his then utility motor vehicle for $17,500 and the mother’s hatchback motor vehicle for $11,500 and purchased a 4WD motor vehicle for the mother at a cost of $41,000 and a new utility motor vehicle for the father at a cost of $27,000. The balance of purchase money over and above the sale funds from the other vehicles was financed.
The 4WD motor vehicle was retained by the mother at separation. That vehicle has now been disposed of by her by way of a trade in of $11,000 towards the purchase of a German car. The balance of the purchase price was funded by her father in whose name the car is registered.
The mother’s business
In about 2009 the mother began cooking and selling cakes and other pastry items to local cafes and businesses. The father asserts that the mother was earning between $500 and $600 per week in cash, the mother asserts a more modest income.
The mother concedes that since separation she has continued this small business. There is an issue as to the mother’s present income from the business. Little evidence was adduced to assist the Court in this regard by either party.
Homemaker and parenting
The father concedes that the mother was the primary homemaker and after the birth of the first child, primary caregiver for the children. The father assisted her as and when his work obligations permitted.
The father otherwise attended to the gardens, grounds and maintenance.
Spouse support
Following separation the father made available approximately $500 per week to the mother and continued to pay telephone and internet accounts, health insurance, lease payments on her car until it was paid out and car maintenance, tyres, fuel, and car insurance.
The father also continued to make mortgage payments and rate payments on the home at O Street until it was sold.
The mother vacated the home in about April 2013. The circumstances of her vacating the home are in issue but nothing turns on it.
The father appears to have ceased his voluntary maintenance payments after being assessed for child support payments of about $500 per week in June 2013.
The mother in November 2014 made application to the Court for an order for interim spousal maintenance. On 6 March 2015 after an interim hearing the father was ordered to pay to the mother by way of interim spouse maintenance $325 per week first payment 13 March 2015.
The mother holds tertiary qualification from 2004 working thereafter at the P Bank. She commenced but did not complete further qualifications.
The mother had made some enquiry as to part time work post separation. She was of the view that subject to the orders made by the Court as to the father’s time with the children she may be able to seek some part time work but had reservations as to the variable days that would depend on the father’s roster. The days the children were in preschool were reasonably available to her for work.
The mother in her trial affidavit asserted that she was not working. Yet her oral evidence she conceded that continues to sell cakes etc. to a café and general store. Generally she conceded that her profit margin was about 50 per cent. Q Cafe documents (Exh L) reveal payments to the mother for the six months to December 2014 averaged about $150 per week. Exhibit M reveals payments to the mother for the nine months to September 2015 to some extent consistent with her Financial Statement filed 19 October 2015 and revealing average payments to her of about $200 per week. She had informed Centrelink that her net income was $100 per week.
The mother’s reasonable expenses for herself are set out in her Financial Statement in the sum of $735 per week (Part N) plus fixed expenses of $168 per week being a total of $903. She was not cross-examined as to same.
The father and the children post separation
After separation the father would collect the eldest child from the mother for the day returning the child to the matrimonial home in the evening. The mother would not permit the eldest child overnight time with the father and for a period the only time the father spent with the youngest child was during pick-ups and drop-offs.
The parties did attempt reconciliation towards the end of 2013, which was unsuccessful and it appears that their relationship deteriorated significantly thereafter.
The father resorted from about February 2014 to attending at the children’s day care centre to spend time with the children during their playtime. The father would spend an hour with the children on Wednesdays and Thursdays. On occasions the mother withdrew the children from day care and the father was not able to see them.
On 18 November 2014 orders were made facilitating the father’s time with the children for two hours each Monday and Friday beginning 21 November 2014 with such time to be supervised by Interrelate, D Town. The father undertook to the Court that he would no longer attend at the children’s day care centre. The father’s time with the children was interrupted by the Christmas/New Year break and then for a period whilst the father was undertaking further training in Italy. He resumed time with the children on 23 February 2015.
There were subsequent delays in the court hearing and determining interim parenting proceedings and it was not until 4 June 2015 that orders were made pending further order that in summary provided:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father for two days each week between 9:30am and 3:30pm on the days that the father is rostered off work, on Father’s Day if he is not working from 9:30am to 3:30pm and on 21 November 2015 if he was not working from 9:30am to 3:30pm and at such other times as the parties may agree;
d)Changeovers pursuant to the interim orders were somewhat inexplicably required to take place in the foyer at the D Town Police Station unless there was otherwise agreement between the mother and father; and
e)The father was required to provide his roster as soon as possible to the mother and nominate the days he would spend with the children.
There has been some conflict and disagreement between the mother and father as to the implementation of these interim parenting orders. The father has been mostly inflexible in relation to his time with the children, not agreeing to some changes that would accommodate the mother’s social or family commitments or the health of the children.
The mother has to drive about 30 minutes into D Town for changeovers at the Police Station. The father has refused to consider a changeover in E Town that is about 10 minutes from the mother and 20 minutes from D Town.
The father presently resides in D Town and intends to primarily reside there. At the time of trial his four-day working block could either be in G Town or Bankstown in Sydney.
The father has rented a four-bedroom home in D Town that he shares with his flatmate, who gave evidence in the proceedings. He has in that home a bedroom for each of the children and the house block is fenced and is safe the children. The flatmate has his own bathroom, leaving the main bathroom for the father and children. The father’s flatmate has undertaken a “Working with Children” check some time ago that facilitated him driving a bus for the Camp Quality children.
The mother appeared excessively preoccupied with the circumstance that the father was residing in shared accommodation where the children may spend overnight time. There is no suggestion that the children are at any risk, save in the mother’s mind, by any order that would facilitate the commencement of overnight time in the father’s household in a careful way.
Both children attend preschool, B on Wednesday and Thursday and C on Wednesday. The child B will commence school in 2017.
The paternal grandparents are residing in Canberra and are both retired. The children otherwise have six cousins on the father’s side of the family. The father previously requested of the mother that he be permitted to take the eldest child to Canberra for one night for Christmas with his extended family. There was no agreement from the mother.
The paternal grandparents’ relationship with the mother is poor particularly evidenced by the mother’s offensive emails to them in August 2013 (Exh K). The paternal grandparents were able to have little contact with the children until interim orders of June 2015. They have been able to visit the children in D Town on days that the children spend time with the father. The paternal grandmother to her observation sees the father’s home as comfortable and always kept clean and tidy. She has observed the father cook delicious meals and seen the newly furnished bedrooms for the children which are attractively decorated and in which the father has provided books, toys and games for the children.
The father says that his work roster is now reasonably fixed for many months into the future and once he provides a copy of that roster to the mother any changes would be minimal.
The mother has reservations as to the father having overnight time with the children in his shared house and as to his present housemate. That flatmate Mr J gave oral evidence. Nothing in his oral evidence or demeanour gave rise to any concerns in relation to his possible interaction with the children.
The mother suggested that maybe overnight time occur one night per fortnight when the youngest child started school, that being 2018 or if the children’s time with the father was split then with B in 2017 at the commencement of his schooling, although should the father have his own accommodation overnight time could perhaps commence earlier. The mother suggested the children, particularly B, needed consistency and routine. She was of the view that she and the father have different parenting styles particularly as to discipline.
The mother rejected any suggestion that her view was that the children don’t need the father in their lives, notwithstanding indications to the contrary in the Family Report. However she expressed concerns as to the father’s emotional regulation when the children are in his care, although over the six months to trial no concerns had arisen as to same.
The mother had concerns as to the children spending time with the father immediately after a night shift and she was aware that the father needed to leave by midday the day prior to recommencing his work shift. That being so the father would be able to rest for the day on which he finishes a night shift and have the children’s time with him commence that evening and return the children to the mother or their preschool the morning he returns to G Town for work. What time he has with the children in the intervening period is the issue.
A consistency for the children would be achieved by them continuing their preschool attendances that are between 9:30am and about 3:30pm when with the father if he was unable to nominate days that did not coincide with preschool.
The mother suggested in her re-examination that apart from her proposed two days per fortnight that there could be a day in the off week to shorten the time that the children don’t see the father.
Parental responsibility
The mother conceded that there were no immediate issues as to education although it was her preference for the children to go to a private college in high school, that being a question to be resolved at a much later time, and that there were no major health issues, no religion issues, and no relocation issues.
The mother conceded that there could be equal shared parental responsibility as to name, religion and relocation should she have responsibility for education and health. She would provide the father with information as to the children’s schooling and health issues. Having regard to the nature of the parent’s interpersonal relationship that might be a hollow assurance. The father should be authorised to obtain his own information.
This issue is considered further below.
The Family Report
Exhibit A is the Family Report dated 19 May 2015. It was prepared at a time when the father was spending time with the children at Interrelate at D Town and before subsequent further interim orders referred to above. Much has happened since the report, with the children now spending unsupervised days with the father.
The father explained to the family reporter that:
... he believes [Ms Tuttle] has become unnecessary controlling and manipulative of his time with the children. He expressed the view that he is being punished for his non-compliance, saying “she just wants to punish me however she can punish me”, and the children’s time is the primary means of achieving this.
Later he said:
... that control and manipulation is a key element of [Ms Tuttle’s] family culture, saying that [Ms Tuttle] has effectively “punished” her own parents by stopping them from seeing the children if they do something that she doesn’t like or approve of. [Mr Tuttle] also claimed [Ms Tuttle’s] brother has employed this strategy to ‘punish’ their grandparents for some perceived misdemeanour as well.
As to the contention that he was controlling he said:
… that he did seek to reign in Ms Tuttle’s “problem with spending money we didn’t have”, and “Ms Tuttle didn’t like these limits being placed on her”, but he said the alternative was to continue to continue along that path to the point of bankruptcy. He said “I was focused on providing the basics … food, water, power, and paying bills”, and “I told her money doesn’t grow on trees, [so] we argued a lot about it”.
As to the mother’s proposals at that time it was reported:
When asked whether [C] could spend four hours with her father, [Ms Tuttle] again hesitated, and reluctantly conceded this might be possible, although she said three hours would be better, and both are contingent upon [C] “not having meltdowns [in Mr Tuttle’s care]”. When asked if [C] also has ‘meltdowns’ in her care, [Ms Tuttle] somewhat reluctantly conceded that she does, but she believes she is more experienced in managing these than [Mr Tuttle].
Beyond that, [Ms Tuttle] reluctantly suggested “I guess a longer day … [perhaps] 9am to 4pm or 4.30pm”, although “9.30am would be better … because I have to come into town [ie. D Town, from E Town]” for changeovers to occur at Interrelate. For this reason, [Ms Tuttle] also indicated the children spending different periods of time with their father would be difficult for her, despite her perception that “[B] [could] handle a full day” with his father already.
With regard to further graduated steps beyond that, [Ms Tuttle] said she has “no thoughts”. When asked about the possibility of overnight time with their father, [Ms Tuttle] said she has concerns about [Mr Tuttle’s] housemate simply because “I don’t know him”, and she has concerns about “my children” coming into contact with people she doesn’t know. [Ms Tuttle] said a 2007 ‘Working With Children Check’ has recently been provided in relation to [Mr Tuttle’s] housemate, although she suspects that Check is now out of date.
[Ms Tuttle] was asked whether unsupervised time could commence immediately, but she replied “I feel like waiting till the hearing and let the Judge decide … I want to be detached from the decision … [because] I don’t want to be responsible for what may happen”. [Ms Tuttle] went on “I’d rather have the choice taken away … if something happens to the kids … I don’t want to be responsible”. If it was up to her, [Ms Tuttle] said “I wouldn’t want them there overnight … [and] I wouldn’t want them there for long periods”. [Ms Tuttle] said she fears that [Mr Tuttle] might “flip out and [do] something to them … I want someone else to decide [what should happen]”.
As to the father’s conduct it was reported:
[Ms Tuttle] claimed that [Mr Tuttle] was also very verbally abusive, controlling and nasty towards her, and controlling and controlling in relation to money. Following the separation [Ms Tuttle] said this verbal abuse and control has continued, citing for example his refusal to provide her with the registration documents for the vehicle she is currently driving (which for financial reasons was purchased in [Mr Tuttle’s] name only), and goading her with comments like “I think you’ll find your car’s unregistered [Ms Tuttle]”, and subsequently waving the registration papers around (but refusing to hand them over) saying “they were in the mail box you silly bitch”.
[Ms Tuttle] reported that [Mr Tuttle’s] abusive behaviour was cyclical in nature, with episodes of physical and verbal abuse being followed by his departure/withdrawal, and subsequent return to the household full of apologies and promises to change for the better.
Much of the above and other complaints against the father are reflected in the mother’s evidence at the trial.
The family reporter observed the father’s interaction with the children in the following terms:
Upon seeing their father at the commencement of the day, both children readily ran up and greeted their father with a hug, albeit that [C] was somewhat more reluctant that [B].
[B] presented as comfortable, happy and enthusiastic to interact with his father, whereas [C] presented as more reluctant, and clingy to her mother. Both children remained in the waiting area with their father while [Ms Tuttle] was being interviewed, without apparent difficulty.
When [B] and [C] were taken into the child playroom with their father, [C] was initially reluctant to separate from her mother, and [Mr Tuttle] had to pick her up to carry her inside. Once inside the child playroom, [C] continued to ask about her mother and try to leave the room, but [Mr Tuttle] sought to distract her with toys and activities. After a couple of minutes of this it was observed that [C’s] focus changed, and thereafter she remained happily in the playroom with her father (and [B]).
After [C] had settled down, the emotional environment during this period was observed to be warm, happy and relaxed. [Mr Tuttle] got down onto the floor to engage in the children’s play activities, and both children responded very positively to this. [B] was observed to enjoy this interaction greatly, and [C] was observed to be focused and determined in her play activities. I note both parents described [C] as being “very strong willed”, and [B] as being a more easy-going child. [B] and [C] both moved easily in and out of close physical proximity with their father, and nothing was observed which would give rise to any cause for concern.
At the end of this assessment [C] appeared to be tired and clingy to her mother, and she did not therefore bid farewell her father. Rather, she remained in her mother’s arms, where she appeared tired, irritable and cranky. [Ms Tuttle] did not facilitate [C] giving her father a farewell hug. By contrast, [B] readily bid farewell to his father with a hug before leaving the Registry with his mother.
In evaluation the family reporter significantly observes:
[Ms Tuttle] appeared quite ambivalent about whether the children should have any interaction with their father at all, claiming that [Mr Tuttle] continues to harass and intimidate her, which is a continuation of the coercion and control that he exercised during their relationship…
[Ms Tuttle] was quite ambivalent about whether she wants the children to have a relationship with their father at all. On the one hand she said “I want them to have a Dad”, and “[B] gets disappointed not seeing his Dad”, but on the other hand she believes the children are at risk in [Mr Tuttle’s] care…
[Ms Tuttle’s] assessment profoundly misunderstands and minimises the importance of children being able to have a relationship with their own biological parents and extended family. After almost a century of adoption studies, and more recently the whole Stolen Generations experience at a national level, we know the damage which can be caused by cutting children off from a biological parent/family can be profoundly damaging and traumatic, even though it might sometimes take decades to fully manifest.
What this research suggests is that [Ms Tuttle’s] assessment of this impact is far too limited, is based on far too short a timeframe, and may represent a failure by her to separate her needs (eg. to have little or nothing to do with [Mr Tuttle]) from the children’s needs (ie. to know and have a relationship with their father). What this research implies is that the threshold for preventing a child from having a relationship with a biological parent should necessarily be very high.
The children were assessed as having positive relationships with the father although C has a primary emotional attachment to the mother. The family reporter noted that father’s ability to engage with the children during observation and at the Contact Centre was entirely satisfactory.
Importantly, the family reporter notes:
[Ms Tuttle] was asked whether she would be prepared to negotiate a graduated progression of the children’s time with their father immediately, but she replied “I want someone else to decide … in case he flips out and does something to them … I don’t want the responsibility for it … I want to be detached from the decision … I don’t want responsibility for what may happen … I feel like waiting till the hearing and letting the Judge decide”.
Relevantly, in summary the family reporter says:
…there are no significant child-related reasons why [B] and [C] should not progress to more significant, unsupervised time with their father, albeit in a graduated manner...
With regard to the question of parental responsibility, [Mr Tuttle] opposes [Ms Tuttle’s] application for sole parental responsibility, on the basis that he wants to be involved in these parental decisions, and included in this information, despite claiming he has been excluded by [Ms Tuttle] from these since their separation. Notwithstanding [Mr Tuttle’s] objections however, it seems apparent the parties objectively have little or no capacity to communicate and cooperate as parents, and certain decisions will clearly have to be made for them…
In such circumstances, I recommend that parental responsibility for the children’s education and health care should probably be vested solely in their primary caregiver, subject to a requirement for that person to keep the other parent informed of all major information and decisions relating to these issues in a timely manner. To be clear, I would envisage such an order permitting the other parent to participate in relevant school-related activities, including parent-inclusive activities and parent-teacher meetings, and to have access to information relating to medical consultations, and to be present during hospital admissions, much as any other parent is able to do, even though the actual decision-making would be vested solely in only one of them.
With regard to the remaining major long-term issues, I recommend both parents jointly retain equal shared parental responsibility for those issues.
The family reporter’s views as to parental responsibility were in effect adopted by the mother at trial.
The mother now proposes a graduated increase in the father’s time with the children and thus the promotion of the children’s relation with him despite some reservations as to her position in the Family Report.
The family reporter’s oral evidence
By reason of the progression in the father’s time with the children after the date of the report the family reporter gave oral evidence.
The family reporter expressed concern with the proposition put by counsel for the mother that in view of the propensity for the mother’s anxiety about arrangements for the children spending time with the father that there would be a need to hasten slowly in terms of a graduation of the father’s time. Indeed the family reporter agreed with the suggestion that the mother, if necessary subsequent to court orders, may well be assisted by a psychologist or family therapist and perhaps getting some treatment or advice as to management strategies at an early time.
The family reporter expressed concerns about the father’s proposal for the commencement of the children spending three nights per week with him, that being contraindicated by the current circumstances.
When it was suggested that overnight time may commence in relation to the older child in 2017 the family reporter was of the view that it should commence earlier, and would have no problem with overnight time commencing immediately.
As to the mother’s concerns about the father having overnight time with the children the family reporter said:
I suspect it goes to the heart of this dispute, that [Mrs Tuttle] wants to control what happens when the children are not in her care, and she needs to cede that responsibility to [Mr Tuttle] because that’s his job when they’re in his care, and I would have concerns if [Mr Tuttle] was not able to manage that environment, or control what was happening in that environment to some significant extent. But I don’t have those concerns about [Mr Tuttle].
As to the father’s time with the younger child the family reporter responded:
Would there be, as far as you can see, just picking up on that thread, too, an advantage to, perhaps, [B] settling into the routine of being at his father’s for the night with [C] having some time either side during the day as she has been, perhaps, for longer periods during the day, if I can ask you to consider that hypothesis. And then once he’s given an amount of time and the father is given an amount of time to establish a routine with [B], that [C’s] overnight time be introduced. Is there advantage to that?
I think that would be reasonable.
Okay. And that, I’m going to suggest, too, has its drawbacks as well, though, doesn’t it, in terms of the splitting of the children?
It does.
…
HIS HONOUR: So it may be [Mr R] that, perhaps, when he has them during the day they go back to mum at 7 o’clock at night, but he’s fed them and got them ready for bed. Takes them back in their pyjamas or they’re onesies, whatever they have. That gives him, then, a bit of an insight as to what could happen?
If it was a short – fairly short-term arrangement, then, yes, I think that would be helpful.
What did you observe of the interpersonal relationship between the children?
[C] was – and I think this is to paraphrase [Ms Tuttle] – her brother’s shadow. She followed him around and pretty much did everything that he did, one or two steps behind.
So that separation wouldn’t – that separation – if [B’s] time was to start separately, certainly wouldn’t be, you would think, indicated by the nature of the children’s relationship?
No. It wouldn’t. But I understand that the question is being put to me about balancing that against [C’s] developmental status.
As to the mother’s reflective capacity as to the needs of the children, the family reporter said:
My view, based on the necessarily limited processes facilitated by the family report, are that I think [Ms Tuttle] sees the children’s needs through the lens of her own needs. She struggles to separate their needs as being separate to, different from, and at times, the complete opposite of, her needs.
And what, in a way, transposing her anxieties or her feelings as a consequence of the relationship with the father on how she manages the children in regard to him?
Yes. And the fears that she has for the children being an extension of her own fears.
The family reporter was of the view that any pattern for the children’s time with the father should be the same in each period that the father has the children. It was suggested to the family reporter that the father proposed to change the orders sought by him to seek:
a)One overnight with the children each week for a period of about three months from 9:30am on the second day he is rostered off until 3:30pm on the father’s third rostered off day; and
b)Then after a period of about six months from 9:30am on the second day that the father is rostered off until midday on the father’s fourth rostered off day.
The family reporter responded:
In general terms, I think that would be reasonable. I’m mindful of the suggestion put to me earlier that [C] may, perhaps, commence that process not overnight initially and, if that was the case, I would suggest that would be for a fairly short time.
PARENTING
The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
Family violence is defined in s 4AB of the Act. For the purposes of this relationship the provision relevantly refers to violent, threatening behaviour that causes a person to be fearful and can include assault or repeated derogatory taunts. It also includes a denial of financial autonomy and withholding reasonable financial support. For the reasons discussed above there is ample evidence, including the father’s plea of guilty, to conclude that there has been family violence perpetrated by the father on the mother including the use of abusive and derogatory language to the mother.
Such a finding is sufficient for the presumption not to apply.
The question of the allocation of parental responsibility thus rests upon the best interest considerations discussed below.
A consideration of the best interest factors below renders it clear that shared parental responsibility is not in the children’s best interest. The family reporter’s view as to this is accepted. It is in the children’s best interest by reason of the matters discussed above that the mother have sole parental responsibility for education and health and otherwise the mother and father have equal shared parental responsibility.
Equal or substantial and significant time: s 65DAA
If the presumption in s 61DA is to apply and the Court makes an order for “equal shared parental responsibility”, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In light of the non-application of the presumption, there being an order for the disparate allocation of parental responsibility, it is not required that consideration be given as to the children spending equal time or substantial and significant time with each of the parents. Although for the reasons discussed below neither of such arrangements are at present in the children’s best interests.
Accordingly orders to be made must be considered in the light of the best interest considerations.
Best interests of the children: s 60CC
The primary considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence with this factor to be given greater weight of the two primary considerations.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
By reason of the matters discussed above it is appropriate and not in issue that these young children are to remain in the primary carer of the mother. A continuation of the mother as the children’s primary carer represents an important, significant and valuable relationship for these young children.
The father’s relationship with the children is developing and both parties concede that such relationship will progress over a period of time. The substantive issue is around the nature and speed of that progression.
It is clear from the orders sought by her that the mother acknowledges that the continuation and development of the children’s relationship with the father is important to the children and their proper development. The father is to be cautioned that his relationship with the children should not be overshadowed at all by aspects of his past behaviour that demonstrate his difficulties with emotional control and the management of interpersonal relationships. It may well be that what he perceived to be the mother’s dominant control of his relationship with the children is properly the subject of grievance, yet he needs to move on and to appropriately regulate his relationship with the mother so that the children are no longer exposed to conflict and that their relationship with him will be in all respects important, significant and valuable to the children.
As to the father’s relationship, the family reporter is of the view that it is timely for overnight time to commence with the eldest child and after a short period both children commence spending overnight time with the father on a graduated basis. The father makes concessions that substantially adopted this position. A progression of the father’s relationship in a properly staged manner that addresses the developmental differences arising from the ages of the children will hopefully ensure that the children’s relationship develops appropriately with the father in a manner that is valuable to each of them.
Section 60CC(2)(b) – The need to protect the children
This consideration is to be given priority. It is relevant in circumstances where the parties have now been separated for a long period that there is proper management of their interpersonal relationship so as to prevent the children from being exposed to parental conflict involving argument, abuse and any shade of family violence.
The mother expresses some concern about the father’s emotional regularity with much of those concerns arising from and in the context of their interpersonal relationship.
It is hoped that both parents will consider the reasons in this matter and in the interests of the children be able to properly engage with each other moving into the future so that the children are not exposed to the risk of emotional or psychological damage by reason of the conflict of their parents.
This consideration is also supportive of the children’s time with the father progressing in a manner that has been discussed above. Such progression it is hoped will give the mother some confidence as to the father’s behaviour when the children are with him and further give the mother the opportunity to assess his ability to properly regulate his relationship with the mother. She needs to be conscious of her overshadowing concerns that in the view of the family reporter give her own interests priority over those of the children.
The additional considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are discussed below.
Appropriately there is no evidence as to the views of the children by reason of their tender age.
The nature of the children’s relationship with each of the parents is discussed in detail above and will not be repeated here.
The children appear to have a developing relationship with the paternal grandparents and it is hopeful that they will have a developing relationship with other members of the extended paternal family into the future.
The children have a good relationship with the maternal grandparents with the maternal grandmother being particularly engaged with the children and their care.
It is appropriate that orders be fashioned to continue to promote these relationships.
The mother has had parental responsibility allocated to her by reason of previous interim orders. The father’s opportunity to participate in major long-term decisions in relation to the children has been limited. He has, in the context of the mother’s reluctance, had limited opportunity to spend time with his young children and to communicate with them. Orders need to be fashioned to move his time with the children forward appropriately.
Subsequent to separation the mother has assumed the primary obligation to maintain the children, particularly in terms of accommodation. The father has provided financial support for the children post-separation in relation to the mother’s continuing occupation of the matrimonial home for a short period and thereafter in his obligation to pay child support as assessed. He will continue into the future to have an obligation for child support as assessed by the relevant agency.
There is no likely adverse effect of any change in the children’s circumstances by reason of a progression of the father’s time with the children. The family reporter’s view is that the eldest child B can start overnight time immediately and perhaps shortly thereafter overnight time can be commenced for the youngest child C. Both the father and mother are conscious of the youngest child exhibiting on occasions some separation anxiety but it is to be expected that this will dissipate as she settles into a routine with her father particularly in circumstances where she is in company with her older sibling.
There is no practical difficulty and expense in the children spending time or communicating with either parent. They live in reasonably close proximity. The mother makes complaint of the necessity for her to travel in terms of the current changeover arrangements and in circumstances where she is at some financial disadvantage to that of the father it is appropriate that changeover arrangements be altered to suit her convenience rather than those of the father.
Parental capacity has been the subject of significant evidence in terms of the mother’s reservations as to the capacity of the father. The family reporter does not share those reservations. However in circumstances where the father’s time with the children has of necessity been curtailed by the reluctance of the mother to implement or agree to further time absent court orders then his capacity will be tested into the future. He has the assistance of his parents and it is to be assumed other family and friends in the community. A consideration of this issue raises no concerns.
The attitude of each of the parents to the children and their responsibilities of parenthood raises some concerns in relation to the mother’s attitude being overshadowed by a myriad of concerns for the children in the father’s care. Those concerns seem to have been put forward as some self-justification for her reluctance for the children to spend anything other than day time with the father until some decision is made otherwise by the Court.
It is expected that it is in the mother’s mind that if something goes awry as a consequence of orders made by the Court, then she can disclaim any responsibility. The father for his part has demonstrated his concern for his relationship with the children. However his behaviour during the relationship, and post separation in the context of his interpersonal relationship with the mother leaves much to be desired in that he must surely have known that the mother’s distress and concerns would impact to some extent upon her parenting capacity. It is hoped that the formalisation of final parenting orders will permit both parents to move forward in this regard.
There has been family violence in the relationship perpetrated by the father against the mother. Such violence is evidenced by reason of the father’s plea of guilty to the charge of assault and by reason of the mother’s other complaints as to the father’s aggressive, abusive and controlling behaviour towards her. A consequence of the family violence in the relationship was that the presumption as to equal shared parental responsibility does not apply.
There has been an Apprehended Domestic Violence Order for the protection of the mother and the children. That order has expired and there is no current order in place.
It is preferable in the context of these proceedings that orders be made that are least likely to lead to the institution of further proceedings in relation to the children. Orders will accordingly be fashioned in an endeavour to achieve that end.
Otherwise the father has significant accrued leave entitlements in addition to leave that will continue to accrue by reason of ongoing employment. It is appropriate that for time with the children for periods of holidays he be reasonably available to the children by taking leave for such periods.
There are no other facts or circumstances that appear relevant.
Discussion
A consideration of the best interests of the children in terms of the factors referred to above and the factual matrix discussed in detail is clearly indicative of orders that provide for a disparate apportionment of parental responsibility as referred to, for the children to reside in the primary care of the mother, for the children to commence spending overnight time with the father, initially as to B and thereafter for both children and for the father’s overnight time to progress from one night per week to two nights per week in accordance with the family reporter’s recommendations, the subject of the reporter’s oral evidence.
By reason of the children’s ages it is appropriate that there be a gradual lead up to equal school holiday time in an age appropriate way notwithstanding that the father seeks in 2016 a week in each school holiday period.
Otherwise the parties are substantially in agreement as to orders that should thereafter be made in particular as to the provision of information relating to the children to the father. To facilitate such there should be an order that he is able to obtain that information of his own volition should he wish.
Changeovers as referred to above need to be moved from the presently unsuitable circumstance of the D Town Police Station to a more child appropriate venue. The mother proposes the Aldi Supermarket in D Town and the General Store at E Town, about 10 minutes from her residence by car. Both venues appear suitable.
Orders will be made accordingly.
Property
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 process ordinarily involves a staged process.
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.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto 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 adjusting orders but are unable to agree as to same.
Here both parties seek different orders as to the division of their property and it is conceded by counsel for both parties that it is appropriate for the Court to make orders altering their present property interests. It is appropriate to do so.
Once the s 79(2) issue is resolved the Court then considers 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) 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 pool”
The present asset pool and argued adjustments thereto for consideration comprised the following:
Joint Controlled monies account $154,159 Agreed
Father Motor vehicle $ 21,000 Agreed
Father \Bike and trailer $ 5,000 Agreed
Father Contents $ 5,000 F Fin Statt
Father CBA account $ 2,500 F Fin Statt
Mother Trade in Subaru $ 11,000 Agreed
Mother Contents, personalty $ 5,000 Agreed
Mother CBA account $ 2,390 Agreed
Mother Preliminary distribution $ 16,000 Agreed
Father Sale of equipment $ Note 1
Father Sale funds equipment $ Note 2
Father Tax refunds $ 56,112 Note 3
Father Mortgage redraws $ 14,200 Note 4
Mother Superannuation Host Plus $ 10,758 Agreed
Father Mercer Superannuation $208,200 Agreed
Father Military Superannuation $148,090 Agreed
Liabilities:
Husband ATO debt $ 21,200 Note 5
Husband CBA credit card $ 1,000 Note 6
Husband Unpaid legal costs $ 76,876 Note 7
Wife Balance debt to parents $ 3,000 Note 8
Wife Debt to her parents $ 54,400 Note 9
Wife HECS debt $ 30,224 Note 10
Items above for consideration are as follows:
Note 1: The vehicle was sold with outstanding finance paid out and most of the balance used to purchase a slasher for the parties’ property that was retained by the mother at separation. This item will be deleted.
Note 2: The net proceeds were paid substantially into the father’s ATO account and debited against his 2015 tax liability arising from the closing down of the business. This item should be deleted.
Note 3: The father relevantly received tax returns post separation. These funds have been dissipated on legal fees and other expenditure. The refunds substantially relate to post separation income circumstances where the father was otherwise fulfilling his financial commitment to the mother and children. They should be deleted from the balance sheet.
Note 4: The father has failed to explain the use by him of these funds. The redraw increased the parties’ joint mortgage debt. It should be added back so that the mother is no worse position than if the redraw had not occurred.
Note 5: The father’s ATO debt at trial was $3,971 (Exh P). This solely related to post separation income and will be deleted.
Note 6. This is a post separation debt. No evidence was adduced as to why it should be included in the pool. It will be deleted.
Note 7. This is a matter for the father. The effect of inclusion will be to render the mother liable for portion of same. It will be deleted.
Note 8. This is the balance alleged to be owing to the mother’s parents for the air conditioner loan. The father did not dispute the debt asserted by the mother. It will be included.
Note 9. The maternal grandmother gives evidence of the support provided by her and her husband to the mother post separation. The father mostly met his financial obligations post separation and to include the debt at large would pass portion of the liability notionally to him. Part of the debt was as to the mother’s legal expenses in the sum of $20,400. She had little funds to apply to the costs of litigation whilst the father left the marriage with his full earning capacity from which he could meet part of his legal expenses. In all the circumstances the debt as to legal expenses paid on behalf of the mother will be included.
Note 10. This is a liability relating to the mother’s unfinished tertiary training. It is a matter for her to deal with considering the terms and conditions of the liability. There is no evidence of such. There is no evidence of any present liability to pay. It will be excluded but considered in the context of s 75(2).
It was contended by the mother that the father’s accumulated leave entitlements, equivalent to about a year’s salary, which were conceded as being able to be cashed should be included for division. There is no evidence of the period during which such entitlements accrued. They will be considered in the context of s 75(2).
It was further contended by the mother that the funds received by her by way of interim distribution should not notionally be included in the asset pool for division. The funds were expended by her on legal fees in circumstance when the father left the relationship with his income capacity intact and he later received a significant tax refund that in part related to the period of cohabitation. The father was able post separation to fund part of his legal fees from income in the amount of $17,730 to the date of trial. It is thus appropriate by reason of the financial resource disparity between the parties at this time to exclude the interim distribution from the pool for adjustment.
The final pool
Thus the final pool for adjustment purposes is:
Joint Controlled monies account $154,159
Father Motor vehicle $ 21,000
Father Bike and trailer $ 5,000
Father Contents $ 5,000
Father CBA account $ 2,500
Mother Trade in motor vehicle $ 11,000
Mother Contents, personalty $ 5,000
Mother CBA account $ 2,390
Father Mortgage redraws $ 14,200
Mother Superannuation Host Plus $ 10,758
Father Mercer Superannuation $208,200
Father Military Superannuation $148,090
$587,297
Liabilities:
Mother Debt to her parents (legal fees) $ 20,400
Joint Balance of debt to parents $ 3,000
$ 23,400
Net: $563,897
Contributions
It was contended by the father that the Military superannuation of the father “be quarantined”. It is assumed as a separate pool. There is no reason for such an approach. It is clearly an initial contribution by the father and appropriate weight can be given to it in the context of considering the parties’ overall contributions. The mother contends for a one pool approach.
A one pool approach shall be adopted.
The financial history of the relationship is dealt with above. The father came into the relationship with some savings, although disputed by the mother. It is to be inferred that some may have been applied to the purchase of the investment home unit in late 2008. The application of the remaining funds is a matter of conjecture. He also had about $186,000 in superannuation. Both parties came into the relationship with personalty.
Clearly initial contributions particularly the father’s initial superannuation favour the father and should be given appropriate weight.
Otherwise as to the parties’ cohabitation there is nothing to distinguish their contributions save for funds advanced to the parties by the mother’s parents that facilitated the purchase of the matrimonial home, truck modifications and the installation of air conditioning. These loans have all but been repaid but they tip contributions to separation in favour of the mother.
Post separation the mother has had the care of the two young children and for reasons referred to above the father has had limited engagement with the children. The father has made payments in kind to assist the mother and thereafter paid court ordered spouse maintenance and assessed child support. These post separation contributions favour the mother significantly.
The father’s pre-cohabitation superannuation was about $186,000 that even now represents about 30 per cent of the pool.
It is contended on behalf of the father that contributions should be assessed at 55 per cent to the father and 45 per cent to the mother but such contention is based on the Military Superannuation “being quarantined”. Although, if so it must then be considered in the context of s 75(2) factors.
A one pool approach is adopted as discussed above.
In considering the matters above contributions are assessed as 60 per cent to the father and 40 per cent to the mother. This represents a disparity of about $112,000 in favour of the father as between them.
Section 75(2) factors
This aspect is significant by reason of the small asset pool for consideration. They are considered where relevant.
Both parties are relatively young with many years ahead of them to “retirement”. Both are good health.
The income property and resources of the parties are discussed above.
By reason of parenting orders to be made the mother will have primary care of the two young children for years into the future. It is hoped the father will remain engaged in their lives. This obligation not only involves care but the obligation to primarily house the children and meet their other physical needs. This is a significant factor.
The parties’ respective financial positions are discussed above as are their commitments. The mother will have the primary duty to maintain the children subject to any child support paid by the father.
The father has significant superannuation entitlements in his employer fund as set out above. He has continued to accrue superannuation post separation by reason of his full income capacity being maintained thereafter. He will continue to accrue such significant benefits into the future by reason of his income level and after tax contributions continuing to be made by him. It is to be inferred that his Military Super will increase over time by reason of interest. The mother has a modest superannuation benefit with little prospect in the foreseeable future of any accretion thereto. This is also a significant factor.
It is not contended by the mother that any maintenance order would enhance her earing capacity by reason of further training or her business. She is in need of support to meet her own living expenses.
The mother has made significant contribution to the earning capacity of the father. Her role as primary carer for the children both before and after separation has facilitated the father continuing full time employment and indeed attending retraining courses overseas. This is also a significant consideration.
The parties’ relationship was relatively brief but by reason the two young children it has had a significant impact on the mother’s earning capacity at present and into the foreseeable future. It is trite to say that the most valuable thing a husband can take out of a marriage is often his earning capacity but on the other hand a marriage often has disastrous consequences for the financial independence of the mother left with the primary care of children.
The mother wishes to remain a primary carer for these young children and is entitled to do so into the immediate future.
The division of property on a contribution basis is referred to above. The mother has an entitlement to about $225,000. Some will necessarily be cash and some superannuation.
The father presently pays child support of $605 per month.
Otherwise the mother will retain her HECS debt that at some time in the future may be a call on her income. The father will also retain significant leave entitlements that can be taken by him as cash.
The father contends for an adjustment of 15 per cent in favour of the mother. That creates a disparity between the parties of just less than one third of the pool or about $168,000. The mother contends for a 20 per cent adjustment, a disparity of about $225,000 between the parties.
The father seeks a splitting order of $100,000 in favour of the mother.
The s 75(2) adjustment sought by the father of 15 per cent would see the father entitled to 45 per cent of the pool or about $253,350. He would retain his personalty, his Military Super intact and a portion of his Mercer Superannuation.
Considering all of the above matters a further adjustment by reason of the s 75(2) considerations in favour of the mother of 15 per cent is appropriate in the circumstances.
Overall
Thus overall the pool should be adjusted as to 55 per cent to the mother and 45 per cent to the father. The mother is entitled to about $309,650.
The mother seeks a splitting order as to $150,000 from the father’s employer fund. In that event her entitlement can comprise the following:
Superannuation split $150,000
Trade in motor vehicle $ 11,000
Contents, personalty $ 5,000
CBA account $ 2,390
Superannuation Host Plus $ 10,758
$179,148
Debt to her parents (legal fees) $ 20,400
Balance of debt to wife’s parents $ 3,000
$23,400
$155,748
Thus the mother would require a cash adjustment of about $155,000. There is a cash fund of $154,159 plus interest accruing. The mother’s entitlement can be met by the superannuation split sought by her and the retention by her of the whole of the cash fund.
Overall for the reasons set out above such outcome is just and equitable.
Orders will be made accordingly.
Spouse Maintenance
Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. Section 72 provides that a party to a marriage is a liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
a)By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)By reason of age or a physical or mental incapacity for appropriate gainful employment; or
c)For any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2) of the Act.
The questions for determination are:
a)Is the mother unable to support herself adequately for one of the reasons set out in section 72, having regard to the matters set out in section 75(2)?; and
b)If so, what are the mother’s reasonable needs?
The capacity of the father to make a contribution towards those needs is not in issue.
Section 75(2) considerations have been discussed above.
The mother asserts her reasonable needs at $903 per week.
She has children’s expenses of $703 per week. She receives a Family Tax Benefit relating to the children of $137 per week to defray their expenses and $605 per week child support from the father.
Some of the mother’s expenses appear to be discretionary such as fitness expenses $75 per week ($3,900 per annum), entertainment $60 per week ($3,000 per annum) and gifts $40 per week ($2,000 per annum). Some discount should thus be made as to the reasonableness of such expenditure.
She has asserted her business income at about $75 per week. Documents were in evidence as to only one of the stores to whom she supplies. She provided no documents to support her contentions as to her net income after overheads. Her evidence as to her income from the business is to be treated with some circumspection, yet in any event it is modest.
Her fixed expenses of rent and private health insurance should be apportioned as to the children as well reducing her expenses by $80 per week. No receipts were in evidence to support the contention of electricity expenses of about $650 per quarter, telephone of $151 per month and motor vehicle maintenance of $1,820 per annum for a newly purchased car.
In all the circumstances and doing the best on the little evidence adduced it is appropriate that there be an order for spousal maintenance of $450 per week.
The mother seeks an order until February 2020. The youngest child it is expected will commence school in 2018 at the age of five.
It is appropriate that any order extend to about the end the child’s first school term at time so that the mother at that time can assess her position. Thereafter the mother may seek to extend or vary the order on proper grounds.
Of course, the father in the interim may seek to vary or discharge the order on proper grounds.
An order will be made accordingly.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 February 2016.
Associate:
Date: 19 February 2016
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