VINGE & VINGE
[2011] FMCAfam 1194
•10 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINGE & VINGE | [2011] FMCAfam 1194 |
| FAMILY LAW – Children – parental responsibility – reject claim of parental alienation – move to Western Australia not in child’s best interests – splitting siblings not in children’s best interests. FAMILY LAW – Property – asset pool agreed – two pool approach appropriate – greater post separation contribution by wife – further modest adjustment in wife’s favour on account of s.75(2) factors. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 64D, 65DAA, 65DAC, 79, 75(2) |
| Lee Steere & Lee Steere (1985) FLC 91-626 C v C (2005) FLC 93-220 |
| Applicant: | MS VINGE |
| Respondent: | MR VINGE |
| File Number: | ADC 1221 of 2010 |
| Judgment of: | Kelly FM |
| Hearing dates: | 9, 10 and 11 August 2011 (in Mount Gambier) |
| Date of Last Submission: | 11 August 2011 (in Mount Gambier) |
| Delivered at: | Adelaide |
| Delivered on: | 10 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Robertson |
| Solicitors for the Applicant: | Degaris Lawyers |
| The Respondent: | In Person |
ORDERS
Children’s issues
The mother has sole parental responsibility for the children [X] born [in] 1994 and [Y] born [in] 1999.
The mother consult with the father about decisions affecting the children’s long term care and welfare and keep him informed in relation to the children’s health, development and educational progress.
The children live with the mother.
The children spend time with the father as follows:
(a)for the child [Y]:
(i)for a period of at least ten (10) days during the April, July and October school holidays each year on dates to be agreed between the parties and failing agreement to conclude on the last Saturday of each school holiday period;
(ii)for the first half of the Christmas school holidays in alternate years commencing 2011;
(iii)for the second half of the Christmas school holidays in alternate years commencing 2012;
(iv)at such other times as may be agreed between the parties upon the father travelling to [M];
(b)for the child [X] as may be agreed between [X] and the father, to coincide with [Y]’s time spent in the father’s care or as otherwise agreed between the parties in consultation with [X].
The mother encourage and support [X] in re-establishing a relationship with the father, and shall organise counselling appointments, if requested by [X].
[Y]’s time in the father’s care shall take place in the [M] region until such time as the father has presented three clean urine analysis drug screen tests in accordance with the orders of 25 August 2011.
All such requests for random drug screen tests as ordered on 25 August 2011 take place on or before 2 December 2011.
Upon the father completing three clean urine analysis drug screen tests then the children’s time with the father may take place in Western Australia or any other location as agreed between the parties.
The children’s time in the father’s care is subject to the following conditions:
(a)the father shall not use or consume any illegal or non prescription drugs during any time either or both children are in his care;
(b)the father shall not leave either child in the care of Ms T;
(c)the father is restrained from allowing either child to participate in any form of psychological therapy, counselling or treatment (including any treatment undertaken by Ms T) without first obtaining the mother’s written consent;
(d)the father is restrained from discussing issues relating to the parties’ marriage and separation or these proceedings with or in the presence of the children.
The father confirm his intention to spend time with the child or children at least four (4) weeks prior to the commencement of each school holiday period.
The costs of the children’s travel be shared between the parties as follows:
(a)the father to pay for the children’s flights from [M] to Adelaide and Adelaide to Perth;
(b)the mother to pay for the children’s flights from Perth to Adelaide and Adelaide to [M];
PROVIDED that if the father does not confirm his intention to spend time with the children in accordance with paragraph 10 above, then he shall meet all costs of the children’s travel from [M] to Perth and return during the relevant school holiday period, in the event the children spend time in his care.
The father notify the mother of his existing residential address and landline telephone number and keep her notified of any changes to his contact details within 48 hours of any such change.
The father is at liberty to communicate with the children by telephone, letter, email, Skype or any other appropriate electronic means at such times as may be agreed between the parties from time to time.
The mother is at liberty to communicate with the children by telephone, email, Skype or any other appropriate electronic means at any reasonable time while the children are in the father’s care.
Property settlement
In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property pursuant to Part 8 of the Family Law Act 1975 as amended:
Within 35 days the following shall occur:
(i)the husband transfer all of his estate and interest in the property situate at Property S to the wife at her expense together with all plant and equipment therein;
(ii)the wife transfer all of her estate and interest in the property situate at Property W, [M] to the husband at his expense together with all plant and equipment therein;
(iii)contemporaneously with the above transfers, the wife pay to the husband the sum of ONE HUNDRED AND THIRTEEN THOUSAND ONE HUNDRED AND TWO DOLLARS ($113,102).
The parties do all things and sign all documents necessary to dissolve the partnership Mr & Ms Vinge trading as [R].
Thereafter the wife retain as her sole property free from any claim, right or entitlement of the husband the following:
(a)any motor vehicle in her possession;
(b)all monies standing to her credit in any financial institution;
(c)all items of furniture and domestic use or ornament presently in her possession or control;
(d)all assets of the partnership Mr & Ms Vinge trading as [R] SAVE as otherwise provided for in these orders;
(e)all other items of property presently in her possession or control of whatsoever nature and from whatsoever source;
(f)her superannuation interests, subject to paragraph 19 of these orders.
The husband retain as his sole property free from any claim, right or entitlement of the wife the following:
(a)any motor vehicle and motor bikes in his possession or garaged at the property situated at Property W, [M];
(b)any monies standing to his credit in any financial institution;
(c)all items of furniture and domestic use or ornament presently in his possession or control;
(d)all other items of property presently in his possession or control of whatsoever nature and from whatsoever source;
(e)his superannuation interests.
With respect to the wife’s entitlement with [A] Superannuation:
(a)the Court allocate as required by section 90MT(4) of the Family Law Act 1975 a base amount of $106,657 to the husband out of the wife’s interest in the superannuation fund;
(b)pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever the trustee of the superannuation fund makes a splittable payment out of the wife’s interest in the said superannuation fund, the trustee shall pay to the husband, or his administrators, executors, beneficiaries, heirs or assigns, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and that there be a corresponding reduction in the entitlement the wife would have had in the superannuation fund but for this order;
(c)this order in paragraph 19(b) hereof has effect from the operative time;
(d)the operative time for these orders is four (4) working days from the date of a sealed copy of this Order being served on the trustee of the said superannuation fund;
(e)these orders bind the trustee of the said superannuation fund to observe the trustee’s obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001;
(f)in the event that the Trust Deed OR the rules governing the said superannuation fund permit OR are changed to permit an immediate splittable payment then both parties will do all things and sign all documents which may be necessary to enable that splittable payment to occur;
(g)the wife serve a sealed copy of the order upon the trustee of the superannuation fund within 14 days.
Each party do all things and sign all such documents as shall be necessary to give full effect to the terms of this order and should either party fail to do so then a Registrar of this Court may sign any documents to give effect to this order upon filing of an affidavit establishing a party’s failure to comply with same.
IT IS NOTED that publication of this judgment under the pseudonym Vinge & Vinge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MOUNT GAMBIER |
ADC 1221 of 2010
| MS VINGE |
Applicant
And
| MR VINGE |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms and Mr Vinge married in 1987 and separated in February 2008 when the husband left the family home unexpectedly and moved to Western Australia. The wife remained living in the former matrimonial home in [M] with their two children [X], now aged 17, and [Y], now aged 11.
To their credit, the parties were able to negotiate their ongoing parenting responsibilities for the next two years, without major difficulty. That situation changed in April 2010, when Mr Vinge removed [Y] from school without the wife’s knowledge or consent. Ms Vinge filed an urgent ex parte parenting application for a Recovery order. [Y] was eventually located in his father’s care at the Melbourne airport, where they were about to board a plane to Perth.
Sadly, the heat and emotion surrounding these events have set the tone for the subsequent litigation between the parties and they have been unable to reach agreement with respect to parenting issues or financial matters. Accordingly it falls to the Court to determine the issues in dispute.
Background
The husband was born in September 1960 and is 51 years old. The wife was born in December 1963 and is 47 years old. They began living together in 1984 when they purchased their first property on Property C, [M], before eventually marrying in December 1987.
The husband worked as a [omitted]. In the early 1990s the parties decided to establish the husband in his own business. They purchased a [omitted] property at Property W, [M] and opened [R]. The husband continued running [R] until early 2007 after which time the [premises] was leased to the current tenant. The [property] continues to be rented out and the income is paid to the parties through their company, [Mr & Mrs Vinge] Pty Ltd, trading as [R].
The wife completed her [omitted] qualifications shortly before the parties married and has created a successful career for herself within the [omitted] industry. She took time off after the birth of each child before returning to the paid workforce. She is presently employed by [omitted], where she has worked for a number of years.
The parties bought and sold various properties during their marriage, eventually purchasing the former matrimonial home on a large rural block of 100 acres at Property S, just outside of the [M] township. Both parties worked hard during the relationship and were able to discharge the mortgages required for the purchase of the Property W and Property S Road properties. The wife generally earned a higher income than the husband during the marriage but the parties were able to structure their finances such that their taxable incomes were approximately equal.
Both parties were actively involved in caring for [X] and [Y] during their marriage. While the parties shared the day to day duties involved in caring for two young children, I am satisfied that the wife assumed primary responsibility for the major decisions regarding the children’s care.
The parties’ relationship deteriorated across 2006 and they separated for a short period. The husband ceased working in the business in early 2007 and the relationship deteriorated still further.
The parties finally separated when Mr Vinge left the family home on 4 February 2008. He had experienced significant emotional difficulties in the months leading up to the parties’ separation and concedes that he used illegal substances for a period of time before realising that self-medicating with illegal drugs was not the solution.
The husband did not inform his wife that he was leaving and Ms Vinge had no idea of her husband’s whereabouts for some time. Mr Vinge travelled to Western Australia, intending to obtain work [omitted] in and around Port Hedland. He sought medical assistance and dealt with his substance abuse problems, eventually obtaining employment in and around north west Western Australia.
During 2008 and 2009 the husband travelled back to [M] to spend time with the children, usually staying with the wife and children at the Property S farm.
In December 2009, the parties agreed that [X] and [Y] would spend time with their father in Perth, where he was now living with his partner, Ms R. Unfortunately difficulties arose between Mr Vinge and Ms R during this visit. Following an argument late on Christmas Eve 2009, Ms R called the police. She insisted that the husband and the children leave her home immediately, even though it was after midnight. Mr Vinge was able to arrange other accommodation and the children remained in his care for the agreed time, however it was a distressing and unsettling incident for [X] and [Y].
While living in Perth the husband has met Ms T, who he describes as his friend and support worker. The children also met Ms T during their visit to Perth. Mr Vinge eventually rented accommodation from Ms T and she continues to provide ongoing support to him in these proceedings.
The husband travelled to [M] in March 2010 to spend time with the children and his extended family. He was accompanied by Ms T. Unfortunately [X]’s relationship with her father was becoming increasingly strained. Both parties acknowledge that she behaved very rudely during this visit, a situation that caused great distress to
Mr Vinge and his parents.
Mr Vinge believes that [X]’s behaviour was provoked by her mother. He became increasingly concerned that the wife was attempting to alienate the children from him and the paternal grandparents. Ms Vinge concedes she has a poor relationship with the paternal grandparents, but denies influencing [X]’s attitude in any way.
The husband has lived in Perth since mid 2009. He has been working full time since July 2010. In April 2011 he was diagnosed as suffering from heavy metal poisoning but manages this condition with the use of complementary therapies. The diagnosis has not affected his capacity to continue working full time.
The wife has continued to live in [M] at the Property S property. She continues to work full time as an [omitted] and earns a comfortable income. [Y] remains in her primary care and [X] will return to her care once she completes a student exchange year in [omitted].
Current proceedings
The wife filed her Initiating Application on 30 March 2010, seeking to formalise parenting arrangements. She proposed that the children continue to live in her care and spend time with their father in Perth, at the parties’ joint expense.
Prior to this application being heard, Mr Vinge returned to [M]. On 19 April 2010 he removed [Y] from his school. The father then sent the mother a text message saying “[Y] is with me and very safe. It is his choice to come with me. At this time. All relevant legal documents on there (sic) way to you now.”
The mother immediately notified her solicitor who filed an urgent ex parte Application, which happened to coincide with the Court sitting on Circuit in [M]. The wife’s affidavit acknowledged that [Y] had raised the possibility of going to live with his father in Western Australia “for a while”. However, she was understandably concerned about the manner in which with the husband unilaterally removed the child from school.
An ex parte order was made on 19 April 2010 directing the husband to deliver [Y] back to his mother forthwith. Ms Vinge located the husband and [Y] at the Melbourne Airport where they were about to board a plane to Perth. She sought assistance from the Federal Police and upon sighting the Court order, they directed the father to return [Y] to his mother’s care. This was a distressing and emotional time for all concerned, particularly [Y], who found himself in the very eye of his parents’ conflict.
Following these events the previously co-operative parenting relationship has long since vanished and there have been numerous applications and interim hearings during the intervening 18 months. The mother was opposed to the children travelling to Western Australia as she did not trust that the father would return the children to her care. The Court shared the mother’s concerns and subsequent orders were made in May 2010 and September 2010 allowing the children to spend time with their father in [M] during school holidays. Mr Vinge failed to take up those opportunities.
Sadly the paternal grandfather died unexpectedly in July 2010 and
Mr Vinge returned to [M] for his father’s funeral. [Y] accompanied his father to the funeral and joined him for a family dinner. [X] refused to attend her grandfather’s funeral or spend any time with her father, which was no doubt deeply upsetting for Mr Vinge and his family.
The husband did not return to [M] until January 2011, when he again spent time with [Y] during the school holidays.
[X] has refused to spend any time with the father since the events in April 2010. The last communication between them in 2010 was particularly unpleasant, when [X] left a rude and insulting text message on his telephone. This must have been deeply distressing for Mr Vinge.
[X] turned 16 years old in August 2010. She was successful in obtaining a Rotary scholarship to study overseas in [OMITTED] during 2011. The selection process for the exchange was highly competitive and it is a significant honour for any teenager to be selected for such a programme. Ms Vinge kept the father informed and Mr Vinge quite properly signed all the necessary consent forms for [X] to participate. It subsequently came as a considerable surprise to the mother to hear that the father and/or Ms T had contacted Rotary International to “share their concerns”, apparently suggesting that “it would be inappropriate for [X] to leave on her exchange whilst the situation remained unresolved”.[1]
[1] Mother’s Affidavit filed 1 December 2010, para.10
The mother filed an application to ensure [X] was able to take up the scholarship. The father eventually consented to [X] travelling overseas and detailed interim parenting orders were made in December 2010. It is useful to set out the text of these orders in full, as follows:
1.By consent the child [X] born [in] 1994 is permitted to travel overseas to [omitted] departing Australia on or before 21 January 2011.
2.The mother or her solicitors forward a copy of the itinerary for [X]’s overseas travel to the father within seven days.
3.By consent the mother in the first instance but the parties jointly to use their best endeavours to arrange up to three (3) sessions for the child [X] with Ms M (or any other counsellor or psychologist employed by Ms M) prior to [X]’s departure from Australia the purpose of such counselling to assist and support [X] to resolve issues affecting her relationship with the father.
4.The parties share equally in the costs of [X]’s counselling.
5.Each party is at liberty to communicate with [X]’s counsellor or psychologist with respect to [X]’s counselling to the extent that the counsellor is prepared to discuss same with either of them.
6.The mother’s solicitors forward a copy of the father’s affidavit sworn 3 December 2010 and the mother’s affidavit sworn 30 November 2010 to Ms M to assist in her counselling with [X], if Ms M considers it appropriate to do so.
7.The children [X] and [Y] spend time with the father for a period of two (2) weeks during the Christmas school holiday period to take place on dates to be nominated by the father between the dates 26 December and 14 January 2011.
8.The visits are to take place in the [M] region, with the father to meet his costs associated with travel to and from [M].
9.The father is restrained from:
(a)allowing the children to come into contact with Ms T during any period of time that he spends with the children;
(b)allowing Ms T to contact or communicate with either of the children.
10.[X]’s attendance upon time with the father is subject to her wishes.
11.The mother do all things possible to encourage [X] to resume the relationship with the father and to re-establish communication with him.
12.The family assessment, as previously ordered, be undertaken by Mr B.
13.The parties use their best endeavours to arrange appointments with Mr B during the first half of January 2011 if possible to facilitate both children participating in the family assessment process with such appointments to be allocated at a time after the father has been able to travel to South Australia to have the opportunity to spend time with [Y] and [X] (if possible).
14.The parties share equally in the costs associated with the family assessment.
15.The mother’s solicitors and the father prepare a joint Letter of Instruction to Mr B noting that the family assessment to include interviews with the parties and each child, observed interaction between the parties and each child if possible and Mr B is invited to consider interviewing (in person or by telephone) the father’s friend Ms T.
16.The parties are restrained from:
(a)discussing these proceedings with the children;
(b)discussing the living and time spent arrangements with the children; and
(c)abusing or insulting the other party in the presence of the children.
17.The children communicate with the father as follows:
(a)by Skype at any reasonable time;
(b)by telephone at any reasonable time on either child’s mobile telephone number or by landline.
18.The father is at liberty to telephone [Y] on at least two occasions each week on the landline number with the father to initiate one such call and the mother to do all things necessary to facilitate [Y] initiating the other such telephone call.
19.The mother is restrained from being present or listening in to telephone and Skype communications between the father and the children.”
The mother and the children were interviewed by Mr B but the father ultimately declined to participate in the family assessment in any way. Indeed, Mr Vinge now claims that he has never spoken directly with Mr B. Insofar as Mr B says that he did speak with the father, Mr Vinge says that Mr B is lying.
The matter continued to require intense judicial management in order to ensure that it could proceed through the litigation pathway to trial. On 7 March 2011 the matter was listed for trial in August 2011. Further orders were also made in March 2011 and again in June 2011 for [Y] to spend time with the father during the school holidays. Despite those orders the father and [Y] spent only one day together during the July 2011 school holidays.
The hearing
The hearing proceeded before me on 9, 10 and 11 August 2011. The wife relied upon the following documents:
a)Amended Application filed 29 September 2010;
b)Financial Statement filed 27 September 2010;
c)Her Trial Affidavit filed 20 July 2011;
d)Affidavit of Ms K annexing partial Family Assessment report from Mr B dated 10 January 2011.
The husband relied upon the following documents:
a)Response filed 1 September 2010;
b)His trial Affidavit filed 28 July 2011;
c)Affidavit of Ms T filed 3 August 2011;
d)Ms T’s Resume and historical background[2];
e)Further Affidavit of Ms T (unsigned but affirmed by Ms T in Court on 11 August 2011)[3] ;
f)Affidavit of the husband’s brother, Mr V, filed 29 July 2011.
[2] Exhibit H2
[3] Exhibit H3
The husband subpoenaed the wife’s sister, Ms D, and called a further witness, Dr C. Dr C has provided counselling support for the husband.
Both parties gave evidence and were cross examined, as were their supporting witnesses. I am satisfied both parties gave their evidence openly and honestly to the best of their recollection with respect to financial matters.
I view the parties’ evidence with respect to the parenting dispute in a different light. The wife has been affected by the events of April 2010, and by the unrelenting hostility directed towards her throughout the husband’s numerous affidavits. While Ms Vinge endeavoured to give her answers openly and to the best of her recollection, at times her recollections were coloured by the hostility that now exists between the parties.
The husband also endeavoured to give his evidence honestly and to the best of his recollection, however I conclude that his evidence was often unreliable. Mr Vinge himself acknowledged that he does not always remember timelines or past events terribly well. More significantly, Mr Vinge’s evidence was tainted by his fervent belief that the wife is emotionally abusive and actively undermines his relationship with the children.
The husband made certain admissions with respect to his past drug use and the psychological issues he struggled with around the time of their separation. These admissions were adverse to his own interests and I generally accept his evidence on those topics. Otherwise, where the parties’ evidence differs I generally prefer the wife’s evidence.
Ms T’s evidence was unhelpful. Her affidavits were characterised by opinion and comment, rather than statements of fact. Dr C gave evidence by telephone, as did the father’s brother. Both witnesses were reliable, albeit their evidence was of limited assistance overall. Ms D was equally a reliable witness who answered all questions in a straightforward manner
Mr B attended as the Court’s expert and was available for cross examination by both parties. The father challenged Mr B’s evidence. He argued that Mr B’s report was unreliable and ignored the available evidence, particularly the information provided by Ms T.
Mr Vinge was adamant that he never spoke to Mr B and that Mr B lied when claiming they had spoken together about the assessment process. Given that the father was an unreliable historian on other topics, I prefer Mr B’s evidence on this issue.
Mr B’s assessment report and evidence was of considerable assistance to the Court, particularly as it conveys the views expressed by [X] and [Y]. As Mr B was unable to observe the children’s interaction with their father, the assessment was obviously incomplete, but this is through no fault of Mr B.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper, subject to the limitations set out in that section. When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode[4] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[4] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
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 the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) which must be taken into account. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)).
Section 61DA requires the Court to presume that it is in the children’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted.
An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the children’s best interests to spend equal time, or substantial and significant time with each parent. Clearly the distance between [M] and Perth means [X] and [Y] will live in one parent’s care and spend school holiday time with the other parent.
Parenting proposals
The mother proposes that [X] and [Y] continue to live in her care. She acknowledges the children are entitled to maintain a relationship with their father but feels that [X] is of an age where her views should be taken into account. Regarding [Y], the mother proposes that the father spend time with [Y] for ten days during the April and July school holidays and half of the Christmas school holidays each year. She further proposes that the visits take place in [M] for a period of 12 months and thereafter in Western Australia provided that the father:
a)does not allow the children to spend time alone with Ms T;
b)does not arrange any therapy for the children with Ms T;
c)does not discuss issues relating to the parties’ marriage or separation with the children in the presence of Ms T;
d)does not use any illegal drugs when the children are in his care;
e)undertakes random supervised urinalysis drug screen testing for a period of 12 months;
f)undergoes a full psychological assessment before consideration of the children spending time with him in Western Australia.
The mother otherwise proposes that the parties share equally in the costs associated with any travel to Western Australia. She seeks orders that the father keep her advised as to his residential address and contact details in Western Australia and that otherwise there be regular communication between the children and the father by telephone, letter, email, skype, or any other appropriate electronic means.
Mr Vinge agrees that [X] is of any age where she is able to determine with whom she lives and how she structures her relationship with the other parent. However, he asks that that [X] participate in counselling upon her return, to identify “alienation behaviours” and the harmful effects of such behaviour.
The father seeks a range of orders with respect to [Y], to the effect that [Y] should move to live with him in Perth for a period of 12 months. He proposes [Y] spend time with his mother for one half of each school holiday period. While he supports [Y] maintaining a relationship with his mother, he proposes that the mother’s time with [Y] be supervised “until such time as the mother has come to understand the anxiety the mother’s alienation behaviours are having on the father and the family unit.”[5]
[5] The father’s Case Outline document tendered at trial
The father proposes the mother participate in counselling, to appreciate the impact of her hostile behaviour upon the family unit. He is willing to participate in drug screen testing, provided the mother participates occasionally as well. He does not consider any orders are necessary with respect to Ms T’s relationship with either child.
I will now address the s.60CC considerations and set out my findings relevant to the best interests of [X] and [Y]. Given both parties agree that [X] will determine her future parenting arrangements, my reasons will generally focus more on [Y] and the issues affecting my decisions in relation to his future care.
Section 60CC – Primary considerations
Both parents acknowledge that [Y] will benefit from maintaining a meaningful relationship with each of his parents. The practical realities of distance obviously affect the amount of time that [Y] will be able to spend in each parent’s care but I agree that [Y] will benefit from maintaining a meaningful relationship with each of his parents.
[X]’s situation is more complex. She may indeed benefit from re-establishing a relationship with her father. Counselling may assist her to resolve some of the difficulties that she is experiencing in their relationship but at age 17, these are matters that can only be addressed if she is willing to do so. Hopefully her mother will support and encourage her in that regard.
There are no allegations of family violence relevant to [X] and [Y].
Mr Vinge believes that the mother is deliberately undermining the children’s ongoing relationship with him, causing the children emotional and psychological harm but I reject the husband’s allegations in this regard.
While Ms Vinge may have allowed adult issues to distract her from the children’s emotional welfare at times, I do not consider her behaviour in any way abusive or neglectful of the children. On the contrary I am satisfied she provides a secure and loving home for the children.
Section 60CC3 – Additional considerations
(a) any views expressed by either child;
[X] and [Y] were interviewed during the family assessment with Mr B in January 2011. Mr B described [X] as “a mature and motivated young woman” who has “…strong angry feelings at Mr Vinge…”.[6] From [X]’s perspective, these feelings are an understandable reaction to her father’s past behaviour. Mr B was confident that [X] was expressing her own views, based on her own past experiences of her relationship with her father.
[6] Family Assessment Report p.12
[Y] enjoys a strong relationship with his father. Mr B noted that “[Y] described his relationship with Mr Vinge in glowing positive terms and especially liked his sense of humour”.[7] [Y] wanted to remain living in [M] where he was settled and said that he would like his father to also return to [M] so that he could live week about with each parent. Like many children, [Y] “secretly wishes that his parents would reconcile”.[8] He further noted that [Y]’s presentation did not suggest any form of pressure or coercion[9].
[7] Family Assessment Report p.13
[8] ibid
[9] ibid
(b) nature of children’s relationship with each parent and other significant persons
[X] appears to enjoy a comfortable and appropriate relationship with her mother. Sadly, her relationship with her father is presently estranged but hopefully the maturity she has acquired during her year in [omitted] may enable her to re-engage with Mr Vinge in a more positive frame of mind.
[Y] clearly has a meaningful and significant relationship with each of his parents. Mr B noted that both children’s interaction with their mother was easy and free flowing, without any evidence of stress or duress.[10] I am satisfied that [Y]’s relationship with Ms Vinge provides a stable backdrop to his settled life in [M].
[10] Family Assessment Report p. 14
[Y] also enjoys a strong relationship with his father and clearly misses spending regular time in Mr Vinge’s care. He would like his mother to establish a more harmonious relationship with the extended paternal family which would, in turn, enable [Y] to spend regular time with his paternal grandmother. Little evidence was otherwise presented about the extent of the children’s relationships with other extended family save that the paternal uncle and his wife stayed with Ms Vinge around the time of the paternal grandfather’s funeral in 2010, which suggests that this relationship is relatively relaxed.
There is no doubt Ms Vinge has a difficult relationship with the paternal grandmother. She blames the paternal grandparents’ past behaviour for these problems, whereas Mr Vinge blames her hostility to his parents, a situation which he says sprang ‘fully formed’ from the day of their marriage. Notwithstanding this difficult relationship, [Y] has clearly expressed a desire to be able to spend time with his paternal grandmother and it would be in his best interests if Ms Vinge found ways to facilitate this, for the sake of her son.
(c) the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
This is the crux of the father’s complaint against Ms Vinge. He and
Ms T are convinced that Ms Vinge has actively engaged in a program of parental alienation, designed to undermine his relationship with both children. Mr Vinge argues that [X]’s hostility towards him has come about purely and simply because of her mother’s influence, but this is not supported by Mr B’s assessment.
Mr Vinge is concerned for [Y]’s emotional welfare while he continues to live in that same environment of hostility and alienation. Ms T supports the father’s concerns. Ms T has never met Ms Vinge and has had very little interaction with either child. All of her information regarding the children and the extended family dynamics is based on Mr Vinge’s version of past events.
Ms T has clearly aligned herself with Mr Vinge and has provided him with a great deal of practical and emotional support in recent times. However, she demonstrates an extraordinary level of hostility towards the mother. There is nothing in Ms Vinge’s past parenting behaviour that warrants the description of “parental alienation”, or justifies the degree of hostility expressed towards her by the father and Ms T.
This is not to say that the mother’s behaviour is beyond reproach.
Ms Vinge could have encouraged [X] to develop a more measured attitude towards her father, rather than implicitly sanctioning [X]’s rude and unpleasant behaviour. The mother concedes that she has been unwilling to support the children’s relationship with their paternal grandmother, despite [Y]’s clear wish to preserve this relationship.
Notwithstanding these criticisms, the mother actively supported the children’s relationship with Mr Vinge in the early years following separation. She facilitated the children’s visit to Mr Vinge in Perth in December 2009. She has subsequently complied with all orders for [Y] to spend time with his father. This is not the behaviour of a parent intent on alienating the children from their other parent.
(d) the likely effect of any changes in the children’s circumstances including the likely effect of any separation from either parent or other significant family members
This is a significant factor in determining whether [Y] should move to live with his father in Perth. [Y] is clearly settled in [M] where he enjoys his school, sporting activities and friendships. [Y] has expressed no interest in moving to live with his father in Perth.
The father has recently commenced a new relationship with Ms S, who [Y] has not yet met. The father’s accommodation in Perth is not yet settled. Mr Vinge was unable to provide detailed evidence about the care arrangements he would put in place for [Y] while he is working.
All in all, there is a level of disruption and uncertainty surrounding the father’s proposals that cannot be in [Y]’s best interests. [Y] would be removed from the care of his primary parenting figure and from his sibling relationship with [X]. Both of these changes would have a significant and detrimental effect on [Y]’s sense of emotional security and stability.
(e) practical difficulty and expense of children spending time with each parent
While there are significant costs associated with the children travelling between Adelaide and Perth, the parties have previously demonstrated their capacities to meet the expenses and I am confident that they would continue to do so in the future.
(f) parental capacity; (i) each party’s attitude to the responsibilities of parenthood; and Section 60CC(4) the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent
While both parents were actively involved in the children’s care during their marriage, I am satisfied that the mother assumed the primary decision making responsibility for the children. Since separation the mother has assumed all of the parental responsibilities for the children and has demonstrated an exceptional level of commitment and caring for [X] and [Y]. Both children are progressing well at school and [X] was selected for the Rotary Exchange Program, as discussed earlier.
The father has had a far more limited involvement in the children’s parenting since separation. It may be that he is able to provide an equally high level of parental input and responsibility for the children, but his capacity is untested at the present time. Mr Vinge has been content to allow his former wife to assume full responsibility for parenting decisions regarding [X] and [Y] since he left the family home in February 2008. His acquiescence in that regard substantially undermines his complaints about the mother’s parenting behaviour.
The father has also failed to take up various opportunities to spend time with [Y] over the past twelve months, which further undermines his apparent concern about the child’s emotional welfare in his mother’s care.
Mr Vinge was confronted with a range of significant emotional difficulties around the time of the parties’ separation and has struggled to work through those issues in the intervening years. He was open about these past difficulties during the Court process, including past thoughts of self harm and substance abuse. The evidence, including the evidence from Dr C, suggests that these matters are indeed in the past and no longer relevant to an assessment of his parenting capacity.
The interim orders made immediately following the hearing directed the father to participate in a psychological evaluation. This evaluation was undertaken by Dr W and is now complete.[11] Dr W’s report confirms my own assessment of Mr Vinge’s present level of emotional stability and overall functioning.
[11] Dr W report dated 4 October 2011, annexure “A” to the father’s unsigned affidavit received by facsimile on 19 October 2011
I am relatively confident that Mr Vinge has the capacity to maintain or re-establish a meaningful relationship with the children and to meet their day to day care requirements during time spent together. I am less confident that Mr Vinge is capable of assuming the full time care of either child. His hostility towards Ms Vinge is unrelenting. While he may be able to refrain from denigrating the mother across a period of a week or weeks, he is unlikely to demonstrate the same level of control “day in, day out”, if [Y] lives in his full time care.
The father demonstrated limited insight into the practicalities associated with the full time care of a child of [Y]’ age, let alone the parenting implications of his new relationship with Ms S. He seemed unconcerned about the impact for [Y] and [X]’s relationship, should [Y] move into his primary care.
(m) any other fact or circumstance the Court thinks is relevant
As mentioned, further interim orders were pronounced by me in chambers following discussions between the Bench and the bar table at the conclusion of the hearing, addressing certain recommendations made by Mr B in his Family Assessment Report. Mr Vinge indicated he was happy to comply with the proposed orders.
The orders provide for the father to undergo a full psychological assessment by a clinical psychologist within three calendar months. The father is to participate in random supervised urinalysis drug screen testing on three occasions, as requested by the mother’s solicitors.
The psychological assessment is now complete and has been made available to the parties. I have taken the contents of this report into account in determining that it is appropriate for the children to commence spending time with Mr Vinge in Western Australia. The report does not alter my conclusions regarding the allocation of parental responsibility and the children’s primary living arrangements.
Conclusion
Mr Vinge’s application would result in [Y] living separately from his older sister [X] and leaving behind his school, friends and social networks in [M]. I do not consider that outcome is in [Y]’s best interests. I conclude that [X] and [Y] should continue living in the mother’s primary care. Ms Vinge has provided a very high level of parenting input for both children. [X] and [Y] are settled in her care and, as importantly, are settled in [M].
Ms Vinge seeks an order for sole parental responsibility. I am satisfied that this order is appropriate and in the best interests of both [Y] and [X]. The mother has been effectively exercising sole parental responsibility since Mr Vinge left the family home in 2008. The father has failed to take an active role in decisions regarding the children’s care. In addition, his present level of hostility and resentment towards Ms Vinge would make future meaningful negotiations between them almost impossible.
I am confident Ms Vinge will keep the father informed about the children’s progress and decisions affecting their care, just as she did regarding [X]’s trip to [omitted]. She should also consult with the father about major issues regarding the children’s care and her obligations in that regard will be confirmed in the final orders now pronounced.
Having determined that the mother should have sole parental responsibility and that the children should remain living in her primary care, I am satisfied that the mother’s proposal for the children to spend time with their father is appropriate.
I conclude the children should be able to spend time with their father in Western Australia, unless the father fails to present a clear drug screen test. Assuming the remaining random drug screen tests are clear, I do not consider a further testing regime is required.
[X]’s time in her father’s care should be subject to her wishes, given she is now seventeen years old. I have considered whether [X] should participate in further counselling as sought by the father. On balance, I conclude that [X] may find such an order oppressive and a further demonstration of her father’s lack of insight into her own emotional needs.
I will order that the mother facilitate and encourage [X]’s ongoing relationship with her father. This could include counselling, but only if [X] is willing to participate. Whatever [X] may see as her father’s past failings, her long term emotional welfare will be promoted if she is able to re-establish some degree of relationship with her father, rather than retain a wholly negative view of him.
The parties are in general agreement about a range of other parenting matters. They agree to share the travel costs involved once visits take place in Western Australia. Both parties will support reasonable telephone and email communication between the children and the other parent, including Skype, if it is available.
I now make parenting orders as set out at the commencement of these reasons. I am satisfied these orders are in the best interests of [X] and [Y].
Property settlement
Section 79 of the Family Law Act 1975 sets out the factors that the Court must consider when deciding an application for property settlement. Various Full Court authorities have confirmed that the Court must follow a number of discrete steps when determining any adjustment of matrimonial property[12].
[12] Lee Steere & Lee Steere (1985) FLC 91-626
First the Court must identify the assets and liabilities arising from the parties’ marriage. Once the asset pool has been identified, the Court must then assess each party’s contribution during the marriage. The relevant factors pursuant to s.79(4)(a)-(c) include the parties’ direct and indirect financial contributions, any other contribution the parties may have made to the “acquisition, conservation or improvement of the matrimonial assets” and their respective contribution to the overall welfare of the family as a whole – what is often described as the “homemaker or parent” contribution.
The third step requires the Court to consider a range of factors set out in s.79(4)(d)-(g) including the matters set out in s.75(2) and the parties’ future needs. Finally the Court must be satisfied that the orders to be made are just and equitable as between the parties in accordance with s.79(2). As was noted by the Full Court in D & D[13]:
“… the task of the court in proceedings under s.79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions.”
[13] D & D (2003) FamCA 473 at 49
I will set out my findings regarding the first three steps and then consider the overall justice and equity of the proposed outcome.
Asset pool
During the course of the trial the parties were ultimately able to identify an agreed asset pool, including a range of “add backs”. Given the value of the superannuation interests comparative to the non superannuation interests, it is appropriate to adopt a two pool approach in this matter.[14]
[14] C v C (2005) FLC 93-220 at paras.61-68
The agreed asset pool is as follows:
Tangible Assets
Property S property
$595,000
Property W, [M]
$220,000
Husband’s Toyota [vehicle]
$8,000
Wife’s 1991 Honda [vehicle]
$1,000
Plant and equipment ([business] and farm)
$14,423
Husband’s motor bikes
$15,000
ANZ term deposit
$11,450
Furniture (wife)
$10,000
[S] shares
$1,190
Sub-Total Assets
$876,063
Liabilities
Credit card debt (at separation)
$4,500
($4,500)
Net Asset Pool
$871,563
Add backs Assets disposed of since separation:
[T] shares (wife)
$332
[C] shares (wife)
$12,850
Hay Baler (wife)
$500
Prior Distributions:
June 2009 from sale of livestock (wife)
$25,000
June 2009 from sale of livestock (husband)
$25,000
July 2010 (husband)
$5,000
June 2011 from term deposit (wife)
$27,000
June 2011 from term deposit (husband)
$27,000
$122,682
Total Tangible Asset Pool
$994,245
SUPERANNUATION
[M] Superannuation (husband)
$13,800
[N] Superannuation (husband)
$59,293
[P] Super Plan (wife)
$14,927
[D] Superannuation (wife)
$41,067
[A] Superannuation (wife)
$134,531
[C] Superannuation (wife)
$101,811
[Z] Superannuation (wife)
$45,806
[Z] Superannuation (husband)
$9,646
Total Superannuation
$420,881
The total asset pool, including superannuation, is therefore $1,415,126.
Contributions to the asset pool
The parties were in a relationship for over 20 years. I am satisfied, and the parties concede, that they both devoted the whole of their efforts during the relationship to the welfare of their family and to consolidating their financial security. I conclude that their respective contributions during their relationship and marriage should be assessed as equal.
The wife argues that she has made a substantially greater contribution since separation. She has assumed primary responsibility for the care of [X] and [Y]. She has maintained the parties’ financial base in [M] and taken responsibility for managing and consolidating the asset pool. She has continued to work full time to support the family and has continued to contribute into her superannuation since separation.
The wife acknowledges that she retained all monies earned by the partnership [Mr & Ms Vinge]. This income was nominally distributed between the parties and the wife met any income tax due and payable on account of the monies notionally distributed to the husband.
The parties agreed that Ms Vinge would retain all of the net income arising from the partnership, in lieu of any formal child support arrangement. To that extent, the husband has continued to make a financial contribution to the welfare of the family. Aside from that contribution, however, the husband has retained all income earned by him from his own labour since separation.
Taking into account all of the above, I am satisfied that the wife has made a greater parenting contribution and a greater direct and indirect financial contribution since separation. I assess the wife’s contribution at 55% and the husband’s contribution at 45%.
Contributions to the superannuation asset pool
I am satisfied the same findings apply to the assessment of each party’s contribution to the superannuation pool. During the marriage the parties chose to direct their income into their superannuation rather than acquiring other assets and to that extent their contribution during the marriage should be seen as equal. While both parties have no doubt contributed towards their superannuation since separation, the husband’s post separation contributions are likely to have been lower than those made by Ms Vinge, given the disparity in their respective incomes.
Section 75(2) and future needs
The parties are in their mid-40s and are generally in good health. Both parties are engaged in full time employment and will continue to work for a number of years yet.
The husband earns approximately $60,000 per annum. The wife earns approximately $90,000 per annum. The wife argues that the husband could earn a higher income if he chose to work away from Perth but there is no expectation that a party should live in a remote location, purely to earn a higher income. Such an outcome would make it even more difficult for [Y] to spend regular time with his father.
Both parties will retain the assets and financial resources identified in this judgment, in accordance with the orders now pronounced.
The wife has the ongoing responsibility for the two children. While [X] will be turning 18 in 2012, it is likely she will continue to be financial dependent upon the wife while she undertakes further study.
[Y] is only 12 years old. The wife will continue to be responsible for [Y]’s primary care over the next few years. She will no longer receive the child support allocation negotiated between the parties through their partnership and will be reliant upon child support as assessed and paid by the husband pursuant to the relevant Child Support legislation.
Neither party is legally responsible to support any other person. The husband has commenced a new relationship with Ms S and they are now living together. Ms S was employed in Queensland and the husband anticipates she will obtain employment in Western Australia in the near future.
The wife has available to her the financial resources through the [omitted] Family Trust. She is not in control of the Trust and the Trust property is not owned by her but it is a financial resource to take into account when considering the property settlement.
The extent of the wife’s ongoing parenting responsibilities would normally justify an adjustment in her favour. However, when the parties’ relative incomes are taken into account, it is clear the wife’s parenting responsibilities have not impacted upon her capacity to pursue a successful career.
In the circumstances I consider a modest adjustment on account of the wife’s greater parenting responsibilities in the future is appropriate and will make a further adjustment of 2%.
Accordingly, the wife will retain 57% of the tangible asset pool and the husband will retain 43%. The same considerations do not apply to the parties’ superannuation interests, given that they are some years away from retirement age. I do not consider any further adjustment is appropriate with respect to the superannuation pool.
Conclusion
Based on my findings above the net tangible asset pool is valued at $994,245. If the wife receives 57% of the net asset pool then she will retain assets to the value of $566,720, including those payments already received by her and added back into the asset pool. If the husband is to receive 43% of the net asset pool he will retain assets to the value of value of $427,525, including the payments he has already received.
The parties agree that the wife will retain the former matrimonial home and the husband will retain the Property W premises. The husband will also retain his motor vehicle, motor bikes and monies already received by him, to the total value of $314,423. He is therefore entitled to receive a further cash settlement in the sum of $113,102.
They will each retain matrimonial assets as follows:
Wife
Husband
Property S property $595,000 Property W, [M] $220,000 Husband’s Toyota [vehicle] $8,000 Wife’s 1991 Honda [vehicle] $1,000 Plant and equipment ([business] and farm) $14,423 Motor bikes $15,000 ANZ term deposit $11,450 Furniture $10,000 [S] shares $1,190
Add backs [T] shares (sold) $332 [C]shares (sold) $12,850 Hay Baler (sold) $500 Prior Distributions: June 2009 from sale of livestock $25,000 $25,000 July 2010 $5,000 June 2011 from term deposit $27,000 $27,000 Visa card debt ($4,500) $314,423 Adjustment required to the husband ($113,102) $113,102 Husband to retain 43% $427,525 Wife to retain 57% $566,720
The parties’ superannuation holdings are valued at $420,881. The wife is to retain 55% of the superannuation, to the value of $231,485. The husband is to retain 45% of the superannuation, valued at $189,396. Accordingly the following calculations would apply:
SUPERANNUATION
Wife
Husband
[M] Superannuation
$13,800
[N] Superannuation
$59,293
[P] Super Plan
$14,927
[D] Superannuation
$41,067
[A] Superannuation
$134,531
[C] Superannuation
$101,811
[Z] Superannuation
$45,806
[Z] Superannuation
$9,646
Adjustment required to the husband by way of a splitting order
($106,657)
$106,657
Husband to retain 45%
$189,396
Wife to retain 55%
$231,485
Is this outcome just and equitable?
The wife does not have funds readily available to meet the husband’s entitlements and will need to take out a mortgage. Given her income and the value of the Property S property, she should not have any difficulty in this regard.
The husband would prefer to receive less superannuation and a larger share of the parties’ tangible assets. This outcome may be appropriate if there were funds readily available to meet his entitlements, but that is not the case here. I consider it would be inequitable to require the wife to borrow a greater amount, simply to meet the husband’s desire for a larger cash settlement.
The husband will have significant funds and/or assets available to him as a result of these orders. He will be well placed to re-enter the property market on his own behalf.
Both parties will continue in paid employment for a number of years. They will retain significant superannuation entitlements as a result of these proceedings and will both be in a position to augment their retirement savings through their employer-based contributions, to further provide for their long term financial security.
I am satisfied the orders I now make provide for a just and equitable division of the matrimonial assets.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 10 November 2011
Hickey & Hickey (2003) FLC 93-143
AJO v GRO (2005) FLC 93-218
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