Wadlow & Wadlow

Case [2021] FedCFamC1F 57

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wadlow & Wadlow [2021] FedCFamC1F 57

File number(s): LNC 116 of 2020
Judgment of: MCGUIRE J
Date of judgment: 7 October 2021
Catchwords: FAMILY LAW – PARENTING – Substantial Consent – issue as to time-with for children with their father – Family Violence – Children’s Views
FAMILY LAW – PROPERTY – Contributions - Weight to be given to substantial gift early in relationship – S 75(2) factors- Post separation taxation liabilities
Legislation:  Family Law Act 1975 (Cth) ss 60B(1) and (2), 65DAA(3)
Cases cited:

Stanford v Stanford (2012) 247 CLR 108

Wallis & Manning (2017) FLC 93-759

Pierce & Pierce (1999) FLC 92-844

Dickons v Dickons [2012] 50 Fam LR 244

Weir & Weir (1993) FLC 92-338

Jabour & Jabour[2019] FamCAFC 78

Clauson & Clauson (1995) FLC 92-595

Division: Division 1 First Instance
Number of paragraphs: 133
Date of hearing: 18, 19 and 20 May 2021 and 10 September 2021
Place: Hobart
Solicitor for the Applicant: Ms Trezise
Solicitor for the Respondent: John Munro

ORDERS

LNC 116 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WADLOW

Applicant
AND:

MR WADLOW

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

7 OCTOBER 2021

THE COURT ORDERS BY CONSENT THAT:

CHILDREN

1.THAT the parents, Ms Wadlow (‘the wife’), and Mr Wadlow (‘the husband’), have equal shared parental responsibility for the children X born … 2008, Y born … 2010 and Z born … 2013 (“the children”).

2.THAT the children live with the wife.

3.THAT the children spend time and communicate with the husband as follows:

(a)during school terms each second weekend from Friday after school until Monday at the commencement of school;

(b)for one half of each Tasmanian gazetted mid-year school holiday period as follows:

(i)in each odd numbered year for the first half of the school holiday period, being from the first Friday of term school holidays at the conclusion of school until the second Saturday at 6:00pm;

(ii)in each even numbered year for the second half of the school holiday period, being from the second Saturday at 6:00pm to the following Sunday at 6.00pm;

(c)on a week-about basis during the Tasmanian gazetted summer school holiday periods with the changeovers to occur on Friday at 6.00pm commencing on the first week of holidays in 2021 and each alternate year thereafter and commencing on the second week of holidays in 2022 and each alternate year thereafter;

(d)on the Father’s Day weekend, should the children not otherwise be in the husband’s care, from 5.00pm Saturday to 5.00pm Sunday evening;

(e)in each even numbered year from 5.00pm on Christmas Eve until 5.00pm on Christmas Day;

(f) in each odd numbered year from 5.00pm on Christmas Day until 5.00pm on Boxing Day;

(g)during the Easter public holiday period, subject to that period not falling within the mid-year school holiday period, in each odd numbered year from 5.00pm on Good Friday until 5.00pm on Easter Sunday;

(h)during the Easter public…

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AGLC
Wadlow & Wadlow [2021] FedCFamC1F 57
Case
[2021] FedCFamC1F 57
Decision Date

CaseChat Overview and Summary

The matter of Wadlow & Wadlow before the Family Court of Australia involved a dispute between the husband and wife concerning the quantification and allocation of a taxation liability resulting from the husband's failure to complete and lodge tax returns for himself and the Wadlow Family Trust. The case also addressed parenting issues following the separation of the parties, who had been married since 2006 and had three children. The wife resided in a temporary house on property at B Town, while the husband lived in an unapproved 'horse arena' facility on the same property. The husband operated a contracting business through K Pty Ltd, the sole trustee of the Wadlow Family Trust, which had made various asset purchases.

The primary legal issue before the court was the quantification and allocation of the taxation liability arising from the husband's failure to lodge tax returns, as well as the determination of parenting arrangements for the children. The court had to consider the best interests of the children as per section 60CA of the Family Law Act 1975, focusing on factors such as the children's need for meaningful involvement with both parents, protection from harm, and the capacity of each parent to meet their needs. The court also needed to assess the husband's proposal for increased parenting time and the potential impact of these changes on the children.

In its reasoning, the court found that the husband had significant and ongoing child support arrears and had been financially controlling, having not lodged tax returns for the company/trust and unilaterally ceased paying support to the wife. The husband's income was substantial, and his corporate structure should have enabled him to meet his child support obligations. The court also noted the husband's lack of insight into the children's needs and parenting responsibilities. Considering the children's current living arrangements and the potential impact of increased time with the husband, the court concluded that any significant changes could be problematic, particularly given the evidence of family violence and the eldest child's alignment with the wife. The court found the wife to have a demonstrated capacity to meet the children's needs, while the husband's capacity was compromised by his controlling behavior and exposure of the children to family violence.

The court ordered that the husband pay the wife $10,000 in child support arrears, with fortnightly payments of $1,200 until the arrears were cleared. Additionally, the court determined that the children would remain living with the wife and have contact with the husband under supervised conditions, pending a future assessment.

Orders

Orders of the court

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Background

Background to the litigation

There is also a dispute continuing between the parties as to how a taxation liability should be quantified and allocated arising from a failure by the husband to prudently complete and lodge tax returns for himself and an entity 'the Wadlow Family Trust'. Suffice to say that evidence in respect of the taxation liability was not adduced in any sufficient fashion during the trial despite an unsuccessful attempt by the husband to bring evidence by a late affidavit sworn by an accountant only during the course of the trial. Background facts The wife is 46 years of age and the husband 39 years. They commenced cohabitation in 2003 and married in 2006. Separation occurred in June or July 2019. The wife is employed in customer service. The husband works on a contract basis in construction. In June 2006 the wife's father gifted her land on three titles situate at F Street, B Town in Tasmania. The titles are registered solely in the name of the wife. The fourth parcel of adjacent land was purchased in January 2013 for $165,000 and is also registered solely in the wife's name. Despite their separation, both parties remain resident on the property at B Town albeit in separate residences. The wife lives in what might be termed a 'temporary house'. There have been issues with the Council building approval of this structure. The husband lives in a dwelling known as the ‘horse arena’ which is an indoor facility comprising some accommodation of potentially four bedrooms but primarily an equestrian venue. It does not have current Council approval and has been the subject of Council notices and interim and interlocutory applications in this Court. During the course of the evidence in these proceedings the husband agreed that upon settlement he would vacate the property. In 2008 the husband registered a corporate entity, K Pty Ltd. He is the sole director and secretary. The Company is the corporate trustee of the Wadlow Family Trust. The Company later made asset purchases including of real property and tangible assets such as motor vehicles, boats and trailer and equipment. The Company completed a subdivision of a property at L Town. The corporate entity seems to have been used as a tax effective means of the husband operating as a contractor. All three children attend the G School. Despite the proximity of the parties’ residences, the children effectively live with the wife except for spending Saturday nights with the husband and some other informal times.Relevant Law - Parenting It is trite to observe that s 60CA of the Family Law Act 1975 (Cth) ('the Act') offers a fundamental proposition that it is the children's best interests that are the paramount consideration for the Court in determining living and parenting orders. Those best interests are determined by referencing the probative evidence and the parties’ proposals to the numerous and mandatory considerations set out in s 60CC(2) and (3) of the Act against the background of the objects and principals of the legislation set out in s 60B as follows:(1) The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issue here is in respect of the husband's, significant and ongoing child support arrears. The wife asserts that the husband has been financially controlling. The evidence suggests that he has, in fact, controlled the finances noting that he has not lodged tax returns for the company/trust; that he unilaterally ceased paying support for the wife; and continues in significant arrears of child support. The evidence is that his income is not inconsiderable and, with the advantages of his company structure he should have been able to meet his child support obligations. His response in cross-examination and as set out above, in these Reasons is not indicative of this father currently having any proper insight into the needs of his children or more generally to the responsibilities of parenting.Section 60CC(3)(d) the likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or(ii) any other child, or person (including any grandparent or other relative of the child), with whom the child has been living The children currently have physical proximity to each of their parents, albeit apparently only spending one night per week with the husband on a formal basis. The changes proposed by the husband are significant in that he suggests a move to five nights per fortnight with him. This would be accompanied by his physical move to another property. In circumstances where the child X shows some reluctance in respect of the husband and alignment towards the wife then any such increase in time may be problematic.Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis Although the husband anticipates moving away from the B Town property to a new location, it is not anticipated that any practical or logistical issues will arise.Section 60CC(3)(f) the capacity of each of:(i) the child's parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, and including emotional and intellectual needs The wife has a demonstrated capacity to attend to the children's physical needs. The husband complains that the wife herself suffers emotional issues of grief and isolation. There was no medical evidence adduced in support. The wife says that the husband's capacity to attend to the children's needs suffers by reason of his coercive and controlling personality evidenced in exposing the children to family violence perpetrated on her. It is well-established that a child’s emotional welfare may be damaged or compromised by exposure to parental family violence. Notably, the oldest child, X is apparently aligned to the wife with a strong suggestion from his comments to the family consultant that he has been exposed to such family violence.