WAGNER & WAGNER
[2013] FCCA 300
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WAGNER & WAGNER | [2013] FCCA 300 |
| Catchwords: FAMILY LAW – Children ─ relocation ─ property ─ modest asset pool ─ superannuation. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Regulations |
| Morgan v Miles [2007] FAMCA 1230 Paskandy & Paskandy (1999) FLC 92-878 |
| Applicant: | MR WAGNER |
| Respondent: | MS WAGNER |
| File Number: | MLC 10988 of 2012 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 6 & 7 May 2013 |
| Date of Last Submission: | 7 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stoikovska |
| Solicitors for the Applicant: | Westminster Lawyers |
| Counsel for the Respondent: | Mr Nicholson |
| Solicitors for the Respondent: | Lilley Dawson |
ORDERS - CHILDREN
That the parties have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”).
That the children live with the mother and that she be permitted to relocate their primary place of residence to Canberra in the ACT.
The children spend time and communicate with the father as follows:
(i)For one weekend in each four in Canberra with the father to give the mother not less than seven days notice on each occasion of the collection and return times with the parents to agree a suitable changeover location;
(ii)On the alternate fortnightly weekend in Melbourne from the Friday afternoon/evening until the Sunday afternoon/evening or otherwise as agreed between the parties, with the father to be responsible for payment of the children’s airline tickets and the mother to be responsible for the payment of the costs of any accompanying adult with the children, provided that the accompanying adult’s ticket to be purchased and paid for by the father and the mother to reimburse him for the adult fare and with the father to give the mother not less than seven days notice of each such itinerary ─ provided that the father at his election be able to spend such weekends with the children in Canberra;
(iii)For periods of seven days in each of the Australian Capital Territory school holidays with the father to give the mother not less than twenty eight days prior notice on each occasion of his intention to exercise such time, failing which the mother be entitled to conclude that the father does not intend to exercise such holiday time and provided that the father be on leave from his employment for such periods with the father to be responsible for the costs of the children’s travel on each occasion including any necessary accompanying adult travel;
(iv)For two non-consecutive periods each of seven days in each Australian Capital Territory Gazetted summer school holiday period each year with one period to commence on Christmas Eve 2013 and each alternate year thereafter and to commence on Boxing Day in 2014 and each alternate year thereafter with the father to be responsible for the purchase and payment of the airline tickets including any necessary accompanying adult travel and the father to provide the mother with not less than twenty eight days notice of his intention to exercise the other week in each year;
(v)Such other times as agreed between the parties in writing from time to time; and
(vi)By telephone, skype or e-mail on a reasonable basis with the mother to facilitate the children’s communication with the father.
PROPERTY
The parties both forthwith do all acts and things and sign all documents necessary to discharge the following liabilities from funds in the parties’ joint “(omitted) offset account”:
(i)The parties’ joint credit card liability;
(ii)The wife’s taxation liability for the tax year 2012;
(iii)The next instalment payable of the parties’ taxation liabilities for the tax year 2013 (calculated on income earned in the 2012 financial year);
and the balance to form part of the nett tangible property pool.
The parties forthwith do all things necessary and sign all such documents to place for sale and sell the property situate at Property S, in the State of Victoria (“the Property S property”) comprised in certificate of title Volume (omitted) folio (omitted) and that the proceeds of sale be applied as follows:
(i)To discharge any mortgage secured by the said Property S property;
(ii)Payment of reasonable costs and disbursement on the sale of the Property S property;
(iii)To satisfying outstanding taxation liabilities of the parties or either of them;
(iv)As to the amount of $50,500 to be held in escrow to satisfy final taxation instalments for the 2013 tax year (on income derived in the 2012 financial year – estimated to be $35,000 for the husband and $15,500 for the wife)
(v)The balance between the parties so as to give effect to an overall 70% nett distribution of tangible property to the wife and 30% to the husband;
Contemporaneously with the settlement of the sale of the property, the wife transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(i) the property situate at Property E, in the State of Victoria comprised in certificate of title Volume (omitted) folio (omitted);
(ii) the (vehicle omitted) motor vehicle;
(ii) the balance of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders but subject to these orders;
(iv) all personalty and chattels in the possession of or under the control of the husband as at the date of these Orders.
Contemporaneously with the transfers in Order (5) hereof, the husband provide the wife with a release of her liability under (omitted Bank Mortgages) numbered (omitted) and (omitted).
Contemporaneously with the transfers in Order (5) hereof the husband transfer and/or vest to the wife all his right, title and interest in the following absolutely:
(i)The (vehicle omitted) vehicle;
(ii)The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders but subject to these orders;
(iii)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(iv)The wife’s interest and entitlement in her (omitted) Superannuation Fund.
Each party be responsible for, subject to these orders, any and all liabilities attaching to any of the assets to be retained by that party pursuant to these orders.
The Court allocate as required by S. 90MT(4) of the Family Law Act 1975 (as amended) (“the Act”) a base amount of $45,000 to the wife, Ms Wagner, out of the husband’s interest in the (omitted) Superannuation Fund (“the Fund”).
Pursuant to S.90MT (1)(a) of the Act, whenever a splitable payment becomes payable in respect of the interest of the Husband in the fund, the wife shall be entitled to be paid an amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 (“the regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for these Orders.
Order (11) has effect from the operative time.
The operative time for the purposes of Order number (11) hereof is five (5) business days after the date of service of these orders upon the trustee of (omitted) Super Fund.
Paragraphs (10), (11), (12) and (13) of these Orders are binding on the Trustee of (omitted) Super Fund.
AND THE COURT NOTES THAT:
(A)Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
(B)Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Wagner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10988 of 2012
| MR WAGNER |
Applicant
And
| MS WAGNER |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings concern the two children of the parties being:
(1)X born (omitted) 2007 (aged 5 years); and
(2)Y born (omitted) 2009 (aged 3 years).
The father commenced these proceedings by application of 30 November 2012. He sought orders inter alia as follows:
(1)An order for equal shared parental responsibility;
(2)That the children live with the mother;
(3)That the children spend time with him each second weekend from after school/kindergarten on Friday until the commencement of school/kindergarten on Monday, together with each Wednesday overnight and one-half of school holidays and time on special days.
He deposes to bringing that application so as to regularise his time and to secure some mid-week time with X and Y. There were no previous orders in respect of the children.
The husband’s application was filed in the Family Court of Australia. The wife filed a response on 12 December 2012 and an Application in a Case seeking transfer of the matter to the Relocation List of the Federal Magistrates Court (as it then was). The wife sought orders inter alia as follows:
(1) An order for equal shared parental responsibility;
(2) That X and Y live with her;
(3)That she be permitted to relocate the children’s primary place of residence with her from Melbourne to Canberra;
(4) That the children spend time with the father as follows:
(a)Each second weekend from 10 am Saturday until 5 pm Sunday in Canberra;
(b)Each second weekend from 10 am Saturday until 5 pm Sunday in Melbourne;
(c)For five consecutive days in the Christmas and term school holidays;
(5) That the husband pay the travel costs;
(6)Injunctive orders restraining the father from abuse, insult, belittling, rebuking or denigrating of the mother or members of her family.
An amended application and response were filed in January 2013 raising property issues. The parties attended a private mediation on 30 January 2013 in respect of financial matters.
An order was made for the preparation of a Family Report by Mr P, psychologist. The matter was listed for final hearing on 6 May 2013 in the Federal Circuit Court of Australia.
On 10 December 2012 the mother obtained an interim intervention order against the father in the Melbourne Magistrates’ Court. That order was made final for a period of 12 months on 28 March 2013 by consent but without admissions to the facts therein by the father.
The parties’ dispute in respect of property settlement is limited in ambit. In opening submissions I was told that the wife sought a 73.5 per cent settlement in her favour. The husband argued for a 70/30 division in favour of the wife. There was then dispute as to the valuation of the former matrimonial home at Property S in Victoria. That dispute was resolved early in the trial. The wife initially sought an order whereby the Property S property be sold and she receive the net balance proceeds of sale less a set $75,000 payment to the husband. The husband argued that the unknown variable, being the sale price and net proceeds of sale, favoured a percentage distribution of the proceeds rather than a set payment to him.
The wife sought an order that each party retain his and her superannuation entitlements as part of the overall percentage division of property. The husband preferred a superannuation split giving the parties a 50/50 division of total superannuation.
Finally, there was a dispute and some evidence as to the figure, if any, to be included in the property pool for the husband’s bank accounts, being two (bank omitted) accounts into which his salary/drawings are paid and from which the mortgage and other outgoings are paid out.
Background
Both parties are 41 years of age. They commenced cohabitation in (omitted) 2004 and married (omitted) 2005. They separated 23 September 2012.
There is evidence that the wife suffers from chronic asthma and decreased lung function. She has been diagnosed with Diffuse Idiopathic Pulmonary Endocrine Cell Hyperplasia. She has previously required surgery for a diagnosis of tongue dysplasia. The mother is a (omitted) by occupation.
There is no evidence that the mother has re-partnered.
The father is an (omitted) and has been a (omitted) with (omitted) in Melbourne since January 2011. His unchallenged evidence is that his particular field of expertise within the company does not allow him to transfer to Canberra but he could work in Melbourne or Sydney.
The father has suffered stress, anxiety and depression following separation and has spent time in a Melbourne psychiatric clinic. He has not re-partnered.
Evidence
The father gave evidence and relied on his trial affidavit filed 29 April 2013 and his sworn financial statement filed 21 January 2013. He adduced evidence in the form of three letters tendered during his case as follows:
(1)Letter from (omitted) dated 3 May 2013 setting out his employment arrangements;
(2)Letter from (omitted) dated 3 May 2013 confirming his capital contributions to the partnership;
(3)Copy letter 12 March 2013 from the husband’s solicitors to the wife’s solicitors in respect of discovery.
The mother gave evidence. She relied on her affidavit filed 23 April 2013 and financial statement filed 26 April 2013. She tendered one document being a copy of a calendar from October 2012 to June 2013 prepared by the mother or her solicitors and noting dates on which the children had seen the father.
The mother also relied on an affidavit of her mother, Ms H, filed 26 April 2013. Ms H was not required for cross-examination. That affidavit deposes as to Ms H living and working in Canberra. She sets out the assistance that she has previously given the parties and the children in Melbourne and her willingness to accommodate and assist the mother with the children in Canberra should there be a relocation. Ms H makes some general comments as to her observations of the relationship breakdown.
Mr P’s family report dated 7 March 2013 and annexed to his affidavit filed 26 April 2013 was read into evidence. Mr P was not required for cross-examination.
Issues – wife’s case
The mother wants to relocate with the children to Canberra. She says that she has physical and emotional support there, namely in the form of her mother, that is not available to her in Melbourne. She lived in Canberra until 1989.
The mother and the children currently live in a one-bedroom unit in (omitted) owned by her father. The mother argues that this accommodation is unsuitable in the long term. She says, without any corroborating evidence, that rental properties in Canberra for herself and the children would be les expensive than in Melbourne.
The mother says that she suffers from ongoing health difficulties and may require further surgery. She says that it is her own mother who has historically provided her and the children with actual and emotional support and that this is and will be more readily available to her in Canberra. The mother argues that the father has not previously provided her with personal support and assistance with the children when required. She says that the father would prioritise his work at such times, including when she needed medical procedures, and that her own mother would have to travel from Canberra to give actual and emotional support.
The mother argues that the relationship between herself and the father is a poor one. She has had cause to take out an intervention order. She gives evidence that the father has continued to harass her, directly and indirectly, with a view to reconciliation, which is a prospect that she does not share. She says that he has done so in the face of Intervention Orders and that a relocation for her with the children to Canberra, and the putting of some distance between the parents, will alleviate her concerns in this regard and have a vicariously positive effect on her parenting and hence the children’s welfare.
The mother argues generally that there are some economic advantages in her and the children moving to Canberra with particular reference to lesser accommodation costs. The mother works part-time as a (omitted) in Melbourne and would intend to do so in Canberra.
The mother agrees with the father that he has a strongly attached and bonded relationship with the children and hence this relationship could survive a change of residence for them to Canberra and, in any event, her proposal for the children’s time with the father, should they live in Canberra, is not far removed from the current arrangement which sees the children having time with the father each second weekend. She says that the father has chosen not to participate more fully by way of time with the children or in their activities, most likely due to his work commitments, and that, therefore, her proposals for time with the children living in Canberra would not impact negatively on the children’s relationship with their father.
Issues – father’s case
The father says that he has rearranged his work commitment so as now to prioritise time with the children. He says that he has developed an insight into the needs of the children and that he maintains an excellent relationship with them. He says that he wants to be more involved with the children and that his work hours can now be flexible.
Mr Wagner says that the financial costs of the mother’s proposal for him to spend time with the children, should they live in Canberra, is prohibitive.
Mr Wagner says that he can now provide assistance or respite for the mother in Melbourne should she need it.
The father argues that there are practical aspects of the mother’s proposal which would have the effect of limiting his time with the children. Specifically, he says that the time for travel between cities and to and from airports for both he and the children would significantly limit quality time between them on weekends.
The father says that the children’s best interests are served by them enjoying “substantial and significant time” with him within the definition in the Family Law Act. That is, he says that the children would benefit from having both weekday and weekend time with him and from he being able to participate in their schooling and extra-curricular activities. He says that such a regime of “substantial and significant time” would not realistically be available to the children and him if X and Y relocated to Canberra.
Evidence of Mr P – family report
Mr P noted the father as being distressed, emotional and despondent. Those observations were made at least two months prior to the trial but are in accordance with my observations of Mr Wagner in the witness box and despite his protestations that he has come to terms with the separation, understands that there will be no reconciliation with Ms Wagner, and that generally he is in control of his emotions. It is clear from Mr P’s report that, at least at the time of the interviews, Mr Wagner’s focus was very much on the possibility and hope of a reconciliation. My own observations of him and the tenor of his answers in the witness box lead me to doubt whether he has actually accepted that reconciliation of his marriage is not likely.
Mr P noted Mr Wagner as describing himself as “quite isolated”, working within a stressful environment with long hours, and not being able to “share his burdens”. Again, this accords with the history given to me and the evidence of both parents in court. The thrust of Mr Wagner’s comments to Mr P is that the separation came as something of a surprise to him in that he was not able to, or had been unwilling to, recognise the difficulties brewing in that relationship.
Mr Wagner gave his version of events to Mr P of an incident where a laptop computer was allegedly thrown or pushed at Ms Wagner during an argument. In cross-examination Mr Wagner indicated that the laptop was pushed across a table at his wife, albeit vigorously. She alleges that it was thrown at her. Both parties agree that a black eye resulted. The father says that the children were in another room. The mother maintains that they were adjacent and able to view the incident. Mr P’s reporting of events uses the word “threw” and he notes:
His recollection was that he was working on the laptop, Ms Wagner wanted access to it, she demanded the computer when he was working on their tax returns; she threatened to break the iPad if he didn’t give to her the computer when she wanted it; he became angry and threw the laptop at her. Mr Wagner somewhat rationalised his behaviour on the basis that it was not intentional, but I suspect what he really meant was that he didn’t intend to hit her to the face. His actions in this regard clearly conveyed a sense of building frustration, lowered tolerance and an angry outburst. He rationalised his position simply by stating, “I’m ashamed of what I did. It should never have happened but she knows I’m not a violent person and I’m so remorseful.”
Mr P notes Mr Wagner’s “greatest fear” is that relocation of the children will profoundly change his relationship with them and that he wants the children to be proximate and be an ongoing part of their future.
Mr P observes the conundrum for Mr Wagner in that he recognises that his own lack of time and focus with the children has had an effect on them and caused or contributed to the situation in which he now finds himself. He has had his epiphany and wants to rectify that situation by spending more regular and consistent time with the children. He also told of the re-evaluation of his priorities and work commitment to the extent that he would be prepared to stop work altogether for a year or work down to two days per week should the mother require assistance herself or with the children post any future surgery.
Mr P had the advantage of observing the children with the father. This confirmed the good, comfortable and confident relationship between them.
Mr P also met with the mother. She repeated her need for support and assistance and her preference that this come from her mother and those in Canberra. She stated that she did not feel comfortable in the presence of Mr Wagner because of his behaviour towards her, his vigorous pursuit of a reconciliation, and highlighted by the violent incident with the laptop. She indicated that she feared repeat manifestations of violence due to the father’s stress and anxiety which in turn is due to his inability to accept the marriage to be at an end.
Ms Wagner was able to objectively tell Mr P of the positive traits of the father as a parent. Indications from Ms Wagner to Mr P were that, despite the husband’s revelations and his new-found insight, the reality of his heavy work commitments are such that he will lapse back to his previous priorities or, at least, will not be able to live up to his claims of being able to devote more time to the children and organise his work commitments accordingly. She noted that the children needed “more security and routine” with the implication being that the father’s best intentions would be severely tested by any short-term or spontaneous need for his assistance.
Generally, however, Mr P notes Ms Wagner in the following light:
Ms Wagner is finding it difficult to deal with Mr Wagner and remains palpably angry with him. She wants him to get on with his life so as to allow her to get on with hers, and through this lens and belief, she views everything about him as controlling and intrusive. “He needs a reality check. There is no hope of reconciliation, not ever.”
From Ms Wagner’s perspective, the problems they have experienced have been longstanding, she has made these clearly known, she has encouraged them to seek assistance but Mr Wagner has been unreceptive and unwilling to reflect upon any contribution that he or his situation may have made, instead announcing, “The problem is you not me. You need help.”
Ms Wagner sums up the husband’s wish for a reconciliation as follows:
Throughout, Ms Wagner considers herself to have focused unequivocally on the best interests of the children, including having stayed in a toxic, destructive relationship for the sake of the family, and she has tried to endure. Even though not an easy decision, in the circumstances, separation was the only tenable option. She told me, “I know if we were to reconcile he would see it as a win and the emotional abuse would continue and it would probably be physical abuse as well. It is just an intolerable prospect. I can’t even imagine moving back into the house. It reminds me of how frightened I was. The children were standing right there next to me. He knows that but he denies.”
At paragraph 33 of his report, however, Mr P suggests that there may not have been any notable power imbalances in the relationship between Mr and Ms Wagner.
The children were also seen by Mr P with the mother. He summarises their relationship as:
She impressed as the central hub in their lives and they responded accordingly.
Mr P spoke with X who volunteered a version of events in respect of the laptop incident more in accordance with that of the mother. Significantly, Mr P describes X at paragraph 36 of his report:
Despite the circumstances of the separation and her awareness of the conflict, X nonetheless portrayed a very happy, positive disposition and impressed as psychologically very healthy. She described both parents in unequivocally positive terms, she enjoys the time spent with her father but she is clearly dependent and primarily reliant upon her mother. Her psychological material revealed themes of confidence, optimism and she impressed as very well adjusted. Notwithstanding the circumstances of her family, the conflict and the separation, X views things positively. She seems well connected to her parents, socially confident, there were no themes of anxiety, she described feeling safe, secure and happy in her family. She loves her family but is reliant on her mother.
Mr P concludes, and concurs with my own observations, that this dispute is much to do with the relationship breakdown of the parents and “the different points along the post-separation continuum in which they find themselves”.
Mr P, was equivocal in any recommendations as to the proposed relocation. He noted the positives and negatives of the parties’ proposals. He also noted the ages of the children and at paragraph 44 of his report says:
There is a considerable body of social science opinion that the consolidation of attachment relationships is not complete until about four years of age. Whilst there may be some debate around this issue, there is general consensus that for young children, it is better to have more contact with parents, to consolidate and secure relationships, and for preschoolers, relocation creates a particular problem. They are less able to sustain long distance relationships, when all things are equal they benefit from the physical care and affection of the absent party and the security of their relationship with both parents is based on, amongst other things, frequency of contact. Relocation directly challenges these fundamentals, and imposes upon children of Y’s [sic] and X’s age particular stresses.
Not surprisingly, the father, through his counsel, emphasised these observations and comments by Mr P and in particular:
Ideally, the children should be seeing their father regularly and more frequently than they are currently, and ideally each alternate weekend and a night at least in the overnight each week and probably each week [sic]
Nevertheless, Mr P also noted that the mother is the primary parent of X and Y and that there has been an imbalance in this family in respect of the obligations towards these two children.
Mr P summarises his own “best outcome”, again adopted by the father, at paragraph 46:
The best outcome for the children would be for them to remain in Melbourne, for them to see both parents regularly, for their father to be able to commit to them, to genuinely be able to collect them from school, and deliver them to school or childcare as the case may be, and to be actively and consistently involved in their lives in a real and meaningful manner and to genuinely prioritize them and his time with them above and beyond all other considerations.
Ms Wagner has and will continue to do so prioritize. Mr Wagner has not but is adamant that he will.
However, the following paragraph of Mr P’s report sees him noting the considerations that may weigh against the optimum or ideal result. He notes:
It is not reasonable for the children to remain in Melbourne with the hope that their father will be able to organize and change his life in order to accommodate them. The cost to Ms Wagner, emotionally and financially, will be great. However, this is not an unreasonable request or expectation of her depending on the genuine capacity of Mr Wagner.
Mr P then goes on to suggest a third, perhaps compromise, option whereby the father move to Sydney. On reflection of the evidence, this was not seriously proposed by either party, although the mother perhaps entertained it whereas the father outright rejected it. Such an option would present its own practical and travel hurdles.
Mr P’s report is of some real assistance in respect of the attitudes and peculiarities of each of the parents, it does not provide a solution for the parties to the discrete question of relocation which, of course, must always be seen amongst many factors in respect of the ultimate best interests of the children.
The law
The orders that I am asked to make are parenting orders in respect of X and Y. In doing so, I am to have the best interests of the children as my paramount consideration[1]. The jurisdiction of the court, therefore, is in respect of children. Whilst I can make orders which allow or prevent the relocation of children, the court cannot make orders per se which prevent the freedom of movement of adults. Nevertheless, as is the case here, the mother’s position is that she would remain in Melbourne if I do not permit the relocation of X and Y.
[1] Section 60CA of the Family Law Act 1975 (“the Act”)
The Act itself is silent as to the notion of relocation of children. It follows that relocation is neither prohibited nor is there a presumption against it[2]. That is, a proposal by a parent to relocate children is just one of many considerations for the court in arriving at orders which, on balance, are in the best interests of the children in respect of their living arrangements and parenting relationships. As the Full Court noted in Paskandy & Paskandy[3]:
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have the residence and a further or separate issue as to whether the relocation should be “permitted”.
[2] Morgan v Miles [2007] FAMCA 1230
[3] (1999) FLC 92-878 at [86,456]
In this matter both parties ask the court to make an order that they have equal shared parental responsibility for the children. There is a rebuttable presumption in section 61DA of the Act accordingly. The presumption is rebuttable if contrary to the children’s best interests. The presumption does not apply if the Court is satisfied that there has been relevant family violence. Parental responsibility is defined in the Act[4] as:
... in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[4] Section 61B
If the presumption applies and is not rebutted then there is a pathway for consideration by the court as to parenting options for the children. Those considerations are within the context of what is in the best interests of the children and whether such a regime is “reasonably practicable”. Firstly, the court is to consider whether a preferred option is equal time between the parents? If the determination be that equal time is either not in the children’s best interests or not reasonably practicable then consideration turns to a regime of “substantial and significant time” and whether this regime is both in the children’s best interests and reasonably practicable. Significantly, in the matter now before me, the father argues that “substantial and significant” time is in the children’s best interests and would not be reasonably practicable should they relocate to Canberra. “Substantial and significant” time is defined in the Act[5] as:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
[5] Section 65DAA(3)
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining the best interests of the children, the court is obliged to consider the matters set out in section 60CC of the Act. Those factors are divided into “primary” and “additional” considerations. I am to address each of them in respect of the probative evidence before me and the proposals of the parties. The two 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.
There is now a broad definition of family violence in the Act[6], including but not limited to the following:
[6] Section 4AB
·An assault; or
·A sexual assault or other sexually abusive behaviour; or
·Stalking; or
·Repeated derogatory taunts; or
·Intentionally damaging or destroying property; or
·Intentionally causing death or injury to an animal; or
·Unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
·Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
·Preventing the family member from making or keeping connections with his or her family, friends or culture; or
·Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Act provides that the child is “exposed” to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.
There are numerous additional considerations which can be pragmatically referenced to the evidence and the parties’ proposals. These include matters such as the views of the children, the capacity of the parties to attend to the children’s needs, the practical difficulty and expense of children spending time with parents, and the extent to which each of the parents has taken, or failed to take, the opportunity to participate in the decision-making roles of the children and to spend time and communicate with the children.
The evidence focused considerations in section 60CC must be read against the framework of Part VII of the Act and its objects and principles set out in section 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 subject 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 sho share that culture).
A set of general principles has emerged from cases involving the potential relocation of children. In Morgan & Miles (supra) at [80], her Honour Boland J stated following the significant 2006 amendments to the Act:
It follows from my exposition of the legislation, that earlier core principles:
(i) that the child’s best interests remain the paramount but not sole consideration;
(ii) that a parent wishing to move does not need to demonstrate “compelling” reasons;
(iii) that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
(iv) the child’s best interests must be weighed and balanced with the “right” of the relocating parent’s freedom of movement,
remain valid.
Children’s Best Interests – Section 60CC Factors
Primary Considerations
Section 60CC(2)(a) The Benefit to the Children of Having a Meaningful Relationship With Both of the Children’s Parents.
Both the mother and the father identify X and Y as having a bonded, attached and loving relationship with each of them. Mr P observed a comfortable and easy relationship for the children with Mr Wagner.
It is the father’s case that a move to Canberra may impact negatively on his relationship with the children.
The parties agree that the father’s actual direct time with his daughters has been limited by his heavy work commitments and he prioritising his career. He says that he is now willing to address those priorities and wants to spend more time with the children. The orders he seeks are that he spends each second weekend and one night each week with the children together with half school holidays and special days. This is essentially the regime that operated at least until the start of this year when the mother considered weeknights away from her not suitable for the children. It follows then that the parties’ agreement as to the strong and successful relationship between the children and their father and which accords with Mr P’s observations, has been achieved within this context both pre and post-separation.
Mr Wagner now argues that his relationship with the children will be enhanced by them being proximate to him and he being able to be more spontaneously involved in their education and extracurricular activities.
The Act itself does not contain a definition of the adjective “meaningful” which appears in section 60B(1)(a) and section 60CC(2)(a), the latter being a primary consideration in determining the children’s best interests. The Full Court in McCall & Clark[7], observed:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
[7] (2009) FLC 93-405 83,475
The Court in McCall & Clark (supra) then accepted the views of Brown J in Mazorski v Albright[8], and Bennett J in G & C[9] in concluding that the consideration of a “meaningful relationship” for children is a “prospective one” and a “qualitative one”. That is, the Court is to look forward in respect of the relationship but must, of course, consider the current state and nature of such relationships in doing so. Further, it is the quality of the relationship rather than simply quantity of time which is relevant. That is, experience suggests that children and parents can have a successful, significant and meaningful relationship of high quality regardless of the quantity of time spent together. Similarly, substantial periods of time do not necessarily guarantee meaningful relationships. Nevertheless, relocation of children and a change in the frequency or regularity of contact may potentially impact on the nature of a child’s relationship with the remaining parent.
[8] [2007] 37 FamLR 518
[9] [2006] FamCA 994
Similarly, the current nature of that relationship and, in particular, the strength of attachment will assist in successfully maintaining a relationship should a relocation take place.
Whilst s.60CC(2)(a) is a primary consideration, I is simply one among many for the Court to consider and balance in arriving at the determination which is in the best interests of the children. In Champness & Hanson[10]:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
Section 60CC(2)(b) The need to protect the children from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.
[10][2009] FamCAFC96 at 103
Particular incidents of family violence does not feature heavily in this matter although Ms Wagner maintains she is fearful of the father on account of some event and also because of his continuing and aggressive pursuit of a reconciliation. There has been, however, one incident highlighted in the evidence where the wife was hit with a laptop computer and suffered a black eye. In my view after hearing the father’s evidence he downplays his role in this event. I prefer the version of the mother. I note X’s comments to Mr P that she witnessed the assault or its immediate aftermath which are consistent with those of the mother and also the father’s concession that the mother suffered a black-eye.
Whilst the mother alludes to a previous episode where she was kicked by the father during the relationship, I consider generally the laptop episode to be an aberration. It does, however, have significance and relevance as to the strain within the household and the relationship between the parents. The mother says that she fears further incidents of violence at the hands of the father. In this sense, his continued inability to accept a final separation and to actively pursue reconciliation together with his own emotional vulnerability and fragility is relevant and give some force to the mother’s fears.
The father’s continued communications, both directly and indirectly, to the mother are unsolicited and inappropriate and would be likely to cause the mother stress and anxiety. She has obtained an intervention order against the father. He candidly concedes his regular breaches of that order, and as such, I can only assume that the mother’s altruism and her general desire for her children to have a continuing relationship with their father have caused her to refrain from bringing proceedings against him for breach.
I have had the opportunity to observe the mother in the witness box giving her evidence. Whilst she presented generally as a person of strong character and stoicism, her demeanour when dealing with the father’s continued communications and approaches to her was demonstrable in her upset anxiety and frustration with him.
Additional Considerations
Section 60CC(3)(a) ─ Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
The children are aged five and three years. They are not of an age whereby they could rationalise or articulate any views as to their living arrangements which would be given any weight. The significance of the children’s demeanour is their apparent comfort and ease in the care of each of the parents.
Section 60CC(3)(b) – The Nature of the Relationship of the Children with Each of the Children’s Parents and any Other Persons (Including Grandparents or Other Relatives of the Children.
The mother has been the primary carer of these children. The separation of duties and responsibilities within the household has seen the mother devoting her day-to-day time with the children whilst working part time only. The father has devoted his time primarily to his career and financial support for the family unit. The result is not unexpected. Mr P at paragraph 34 of his report observes the children with the mother as follows:
Both girls responded with much enthusiasm and affection to their mother. There was a great deal of unconscious touching, physical closeness, and whilst there wasn’t the same level of excitement, there was an unmistakeable sense of calm, confidence, a sense of security of them using their mother as a secure base and a safe haven. She impressed as the central hub of their lives and they responded accordingly.
Similarly, at paragraph 20 the children were observed with Mr Wagner:
He described a wonderful relationship with them, that they love him, that they are happy to be with him and that they enjoy their time when with him. This was certainly my observation of the children in the company of their father. They were clearly joyous. They separated from their mother easily and embraced their father warmly and confidently. They both clambered for his affection and attention, there was an abundance of physical contact, and the children were excited and demanding of their father’s attention. Mr Wagner responded easily, effortlessly and comfortably. He settled quickly and effortlessly with them, they played cooperatively and he impressed as sensitive and attuned to them and their feelings. Mr Wagner responded easily and confidently to them and their requests. He placed firm and reasonable limits around them, he seemed very much in control, and both girls seemed especially happy in his company.
These observations as to the nature of the relationship are relied upon by the father in arguing that the children should remain in Melbourne and that the relationship be maintained. The mother argues that those same observations of a strong, successful and comfortable relationship equally demonstrate that the children and the relationships would be able to successfully endure the proposed relocation.
I am satisfied that the nature of the children’s relationships with each of the parents understandably reflects the relative time spent with each parent and the distinct roles of the parents within the household. The children look to their mother for their security. Their relationship with their father is a familiar, happy, easy and comfortable one but one where the girls excitably seek his attention as he in not the constant presence in their lives as is their mother.
At paragraph 18.8 of her trial affidavit, the mother says in respect of the children and the maternal grandmother:
My mother has been my primary support person and the person who has assisted me the most with the children arising out of circumstances resulting from my ill health. She is extremely close to the children and I say the children need to have her close by at this time.
And at paragraph 21.9:
On the days that I work I propose to drop X at school and then take Y to pre-school before going to work. My mother has agreed to assist me to collect the children from pre-school and school. My mother works part time and is willing to have Y on the day that she does not work. It is possible that X will have to attend afterschool care on the days that I work, something that she would have to do in the event that I am not permitted to relocate to Canberra with the children.
The maternal grandmother, Ms H, gave an affidavit but was not required for cross-examination. The mother’s evidence in respect to the children’s relationship with the maternal grandmother was not challenged. I am satisfied that the children have a regular and loving relationship with their grandmother and one enhanced by the time she has spent caring for them during periods when the other has been incapacitated.
Section 60CC(3)(c): Extent to Which Children’s Parents Have Taken, or Failed to Take the Opportunity to: (i) To Participate in Making Decisions About Major Long-Term Issues in Relation to the Children; and (ii) To Spend Time With the Children; and (Iii) To Communicate With the Children.
It is the mother’s case that the father has prioritised his career and effectively delegated the children’s care primarily to her. Mr Wagner would generally agree. Whilst this might be a fact, any criticism by the mother may be opportunistic and unbalanced. The evidence suggests that the parties agreed and accepted that there would be a separation of roles within the household. Mr Wagner has pursued his career as an (omitted) to the level of (omitted). In doing so, he has been obliged to work long hours but the family has benefited by his career progress and increased remuneration. Any criticism of him should be seen within this context. Further, the evidence of both parties and Mr P as to the good and bonded relationship between children and father is testimony to Mr Wagner being able to maximise the quality of his relatively limited time with the children. I accept however, that Ms Wagner has at times sought time and assistance form the father for the family and it has not always been forthcoming.
Section 60CC(3)(ca): The Extent to Which Each of the Children’s Parents Have Fulfilled, or Failed to Fulfil, a Parent’s Obligation to Maintain the Children.
Not relevant.
Section 60CC(3)(d): The Likely Effect of Any Changes in the Children’s Circumstances, Including the Likely Effect on the Children of any Separation From Either of Their Parents.
It is almost inevitable that any relocation of the children will cause some change to the nature of those children’s relationship with their parents. The primary parent will be likely to assume an even greater hands-on role. Any potential for flexibility and spontaneity in the relationship between the remaining parent and the children is removed. Changeovers become problematic and onerous and are dictated by travel and transport timetables. The ability of the “remaining parent” to enjoy children’s school and extracurricular activities is often not practical or even made impossible. Mr Wagner argues all these factors are against the proposed relocation.
Nevertheless, we live in a mobile community in the 21st century with efficient and relatively inexpensive modes of transport. Options of communication such as telephone, email, and Skype are readily available and advanced in their technology. All of these may assist in maintaining successful relationships albeit not necessarily of the same nature or quality as direct physical contact.
In this matter the mother proposes to move from Melbourne to Canberra. The likely mode of transport for the children and the father would be by air. This would involve some pragmatic issues and some inconvenience for the children and the parents. However, I am not of the view that such issues are insurmountable or prohibitive of the children having a continuing regular relationship with the father. The mother proposes that Mr Wagner will travel to Canberra one weekend each per month and the children will travel to Melbourne for one weekend each month thereby effectively maintaining the current fortnightly weekend time which is, in fact, what is sought by the father albeit until the Monday mornings together with a week night. There would be provision for block periods of time in school holidays. The mother says in her evidence that she would be flexible and generous in the children spending more time with the father dependent upon his availability and requests. Importantly, the father volunteered in his evidence that he now has a high degree of flexibility within his employment. A letter from his employer was tendered into evidence in this respect albeit not providing any great detail. Whilst the father’s evidence in this regard was directed to his availability to spend time with the children in Melbourne and, if necessary, to give respite or assistance to the mother, that same evidence must be relevant to the father now having flexibility in his work so that he could have more and flexible options and even more time to travel to Canberra.
If there has been any routine for these children in spending time with their father since separation then it has been limited to each second weekend and, for a period, a weeknight. The parties agree that the father’s work commitments have not enabled him to spend any greater time with the children. The mother’s proposes the continuation of the children spending each second weekend with the father. There would not, therefore, be any substantial change for the children in quantity of time with their father although the travel might be more onerous and inconvenient.
Section 60CC(3)(e): The Practical Difficulty and Expense of the Children Spending Time With and Communicating With a Parent, and Whether that Difficulty or Expense Will Substantially, Affect the Children’s Rights to Maintain Personal Relations and Direct Contact With Both Parents on a Regular Basis.
The father argues that the expense of travel and accommodation on the mother’s proposal may be prohibitive of it being a practical one. The mother proposes that Mr Wagner meet the travel costs for the children each fourth weekend when they travel to Melbourne but that she would meet the costs of any compulsory or voluntary travel with them by an adult. She proposes that the husband meets his own travel costs and accommodation costs each fourth weekend when he comes to Canberra.
There will be additional expense for the father on this proposal. He would be required to obtain appropriate accommodation for himself and the children in Canberra each fourth weekend. Nevertheless, Mr Wagner gives evidence that he has substantial income from his employment at around $290,000 per annum and sometimes increased by bonuses. He says that he has accrued a significant number of frequent flyer points. It would be available to him at law, if so inclined, to argue for some reduction of any child support assessment under that legislation on account of the costs incurred of time between he and the children.
In all of those circumstances, I am not of the view that the expense of Mr Wagner maintaining a relationship with the children on the mother’s proposal would be prohibitive.
The children would be required, on the mother’s proposal, to travel to Melbourne once every four weeks. This weekend time with the father would be dependent upon their school obligations, travel times to and from airports, and airline itineraries. However, the flight from Canberra to Melbourne is not a long one and I expect that flights would be frequent. As mentioned above, it is not the quantity of time between children and parents in terms of hours and minutes that creates a successful or meaningful relationship but the quality of time spent together as demonstrated already by Mr Wagner in establishing such a successful relationship with his children despite relatively limited time.
Section 60CC(3)(f): The Capacity of Each of the Children’s Parents and Any Other Person (Including Grandparents or a Relative of the Children) to Provide For the Needs of the Children, Including Emotional and Intellectual Needs.
Mr Wagner does not challenge the mother as primary carer and, as such, concedes her capacity to attend to the children’s needs.
The mother says that her capacity to care for the children requires assistance and support. She has historically worked about two days each week. She has had serious and ongoing health problems. The mother’s evidence is that she has been reliant upon her own mother to assist her personally and with the children during these times. The mother anticipates that she will need continuing actual and emotional support and that this will come from her mother. Ms Wagner says that the father’s newfound insight and willingness to assist her is neither welcome nor realistic in the long term. She doubts his recent claimed “epiphany” as being simply convenient and opportunistic in arguing against her proposed relocation. It is her evidence that she tried unsuccessfully during the marriage to enlist the assistance of Mr Wagner but to no avail. She says that she unsuccessfully sought to change his work/home-life balance. She argues that he has now achieved the responsibility of partnership and any claims of flexibility in his work to the extent of even taking lengthy periods off work are unrealistic and unlikely. She says, in any event, that the relentless communications and unwelcome approaches to her by Mr Wagner, even in the face of intervention orders, means that he is not her preferred option when needing assistance or support.
The mother proposes that the children spend weekend and holiday time with Mr Wagner and therefore concedes his ability to care for them during these periods.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents, and any other characteristics of the children that the Court things are relevant.
This reference is not directly relevant to the issues before me.
Section 60CC(3)(h): if the child is an Aboriginal or Torres Strait Islander child
Not relevant.
Section 66CC(3)(i): the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.
As mentioned above, the mother criticises the father for prioritising his work. Whilst I accept that during the marriage Ms Wagner attempted to have Mr Wagner become more involved with the family and the children, she also understood him to be pursuing his career for the ultimate benefit of the family. It is not a case, for instance, where he is accused of pursuing extra-curricular or selfish interests to the detriment of the family. He worked hard and long hours and should not be criticised for doing so although he must also accept the impact that these choices have had on the marriage and the roles of the parties within that marriage.
Mr Wagner can, though, be criticised for his lack of insight as to the effect of his behaviour and attitude towards the mother post-separation. It is clear on the evidence that he has incessantly and vigorously pursued a reconciliation. In doing so he has approached, harassed and annoyed the mother consistently. She has asked him to desist. She has unambiguously rejected his advances. She has obtained Court intervention orders to keep him away. None of this has deterred him. She is the primary carer of his children and he must respect her dignity and privacy in carrying out this role. Ms Wagner, on occasions, became very upset in the witness box when speaking of the father’s behaviour towards her post-separation. I found the father unconvincing in his claims in Court of acceptance of the marriage being irretrievable given that his behaviour had continued virtually to the date of the trial and his willingness to breach intervention orders in doing so.
Section 66CC(3)(j): any family violence involving the children or a member of the children’s family.
The mother highlights the incident with the laptop manifesting the stresses within the family. She is not without some culpability in this incident given that she agrees that she threatened to snap the father’s IPad if he did not hand a laptop computer to her. The father’s response remains disproportionate, inappropriate and unfortunate, and aggravated by the event and/or its aftermath being witnessed by the children.
The mother in her affidavit material says that she was subjected to belittling and control by the father. She refers to, but does not particularise, other incidents of objects being thrown. She says she was kicked on one occasion. The mother raises these matters not specifically in respect of any potential direct danger for the children, in my view, but rather to highlight the husband’s attitude and the highly stressed state of the household throughout the relationship and post-separation. In this respect I note that the mother proposes unconditional time for the children with the father and therefore cannot be arguing any direct danger to the children from the father’s anger management issues.
Mr Wagner annexes to his affidavit a letter from a psychiatrist, Dr M, dated 26 April 2013 and addressed to his lawyer. On page 2 of that letter Dr M opines:
Also, I must state that Mr Wagner is not a risk to himself or anyone and in my opinion he should have unsupervised access to his children.
Mr Wagner’s psychiatric involvement is basically due to a normal but perhaps intense emotional reaction to what has happened in his life in recent months, namely marital breakup and separation from his children. He has always repeatedly expressed a strong desire to be with his ex-wife as well and work on their marital issues.
From psychiatric viewpoint, his prognosis is good and in my opinion every effort should be made to restore his family to normalcy, otherwise all four of them are going to suffer from the consequences of their family break up.
Section 66CC(3)(k): if a family violence order applies, or has applied, to the children or a member of the children’s family – any relevant inferences that can be drawn from the order.
The mother obtained an intervention order against the father by application of December 2012. In his affidavit at paragraph 54(j) the father says:
I confess to sending numerous emails/texts to Ms Wagner since our separation; however, each was in relation to our relationship. Given my feeling for Ms Wagner, it was naturally difficult to turn my feelings for her off like a tap overnight, and hence the emails/texts simply expressed my love for Ms Wagner; my remorse; and my desire to try and reconcile our relationship. I believe it is these notes and not the allegations of violence which is the primary reason for the Intervention Order.
The terms and conditions of the intervention order do not impact on the children’s time with the father in that it is not anticipated that such time be supervised or conditional.
Section 66CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
The avoidance of further proceedings is always desirable as being in the best interests of children. However, the circumstances of children and adults inevitably change and the term “final order” is often a misnomer. Continued litigation comes with a financial and emotional cost to parents and children and parents should understand that it is not the task for courts to make optimum or ideal but unrealistic orders for their children. Rather the court is to make the orders which, in the circumstances and on the evidence adduced, and on balance, are in the best interests of those children within that context. Relocation orders bring their own particular difficulties as it is difficult to determine in any definitive and prospective sense the success of a new regime in all of these aspects. Parental roles and expectations will usually change, as will the nature of relationships between children and parents.
Discussion, findings and conclusions
Both parties propose an order for equal shared parental responsibility. The communication and trust between them has been severely tested. There have been instances of family violence. However, the mother wants to involve the father in all aspects of these children’s lives. She can differentiate, according to Mr P, between her own difficult relationship with Mr Wagner and the needs of these children to have a full involvement of their father in their lives. I am of the view that the children’s best interests are served by there being an order for equal shared parental responsibility although the presumption does not necessarily apply given the instances of family violence and I am not therefore obliged by the statutory pathways of consideration.
Matters involving a proposed relocation of children are among the more difficult to come before these courts. Inevitably one or other of the parents will be aggrieved by the result. If the children are permitted to relocate then there will be a sense of loss suffered by the remaining parent. If the relocation is not permitted and the primary parent remains in his or her original venue then there are likely to be feelings of unhappiness and bitterness. Either way, previous successful communication, cooperation and trust between parents is to be greatly tested. There will be a need for adjustment of personal views and expectations.
The father’s proposal is that the children remain living in Melbourne and that the mother continue to be their primary carer. He proposes that he sees them each second weekend and one night during the week as well as school holidays. The advantage of the father’s proposal is that there is opportunity for spontaneity and that he can participate easily in the children’s schooling and extracurricular activities. His proposal sits squarely with the definition of “substantial and significant” time in the Family Law Act.
The children have an existing good and close relationship with their father. They enjoy his company. They would undoubtedly enjoy his presence at school and other activities. He professes to having a newfound insight into the responsibilities of parenting. He says that he has now accepted the demise of the marriage. However, it is clear that the father’s unwelcome advances and communications to the mother have continued unabated and the mother’s trepidation remains warranted regardless of the veracity of the father’s claims.
The father’s proposal is a reasonably practicable one. It would see the children being available to him and they being able to enjoy time together and outside of the formal “time with” periods. There would be benefits to the children accordingly.
I am also satisfied that the mother’s proposal that the children relocate with her to Canberra is a reasonably practicable one. The mother’s proposal brings with it some expense and some travel logistics. Nevertheless, this must be seen within the context of these children, on any proposal, spending each second weekend and school holiday periods with the father. The difference in the two proposals is the midweek overnight and the duration of the weekend. The father, however, deposes that he now has flexibility in his employment and I am satisfied that the mother would facilitate, encourage and give some flexibility to the father’s time with the children.
The travel costs and logistics are not, in my view, prohibitive to the mother’s proposal being reasonably practicable. The father has a significant income. There may be some set-offs as child support available to him. He would require accommodation in Canberra only for possibly two nights per month.
Leaving aside the likelihood of some flexibility, the mother’s proposal for the children’s time with the father is in the traditional form and not in accordance with the definition of “substantial and significant” time. Given that I find both parties’ proposals to be reasonably practicable, I must determine which serves the children’s best interests. In this sense, the mother’s role as primary carer of the children assumes some significance. I am satisfied that she has been subjected to an almost unrelenting course of post-separation harassment from the father. He is fortunate that the mother has not made complaint of breach of intervention orders. I am satisfied that she has not done so in order to preserve the good relationship between the children and their father. She does depose, however, to this situation causing her anxiety, stress and fear. I accept her evidence in this respect. Either party’s version of events post-separation, and indeed the father’s concessions, suggest to me that it would not be unreasonable to conclude that the mother’s upset is reasonable and legitimate. Ms Wagner is entitled to dignity, privacy and respect in her role as primary parent of the children. I am satisfied that she is a person who has and will continue to require assistance and support, both emotionally and actually. She suffers a number of medical conditions which have historically required assistance for her care and for that of the children. It is the maternal grandmother who has provided that assistance. The father now announces his availability and willingness. I am satisfied that he chose not to be available to the mother and despite her requests during the marriage.
It is, in my view, reasonable for Ms Wagner to have some certainty and security in her support networks. The father’s behaviour towards her makes it reasonable for Ms Wagner to prefer other options of assistance. The material before the court from the husband’s employer being one short letter and one lacking detail and particulars does not convince me that Mr Wagner will be able to juggle his onerous work commitments and potential far greater responsibilities for the children into the long term.
The mother presents as a very capable and competent parent. I observed the strength of her character in the witness box. I generally accept her history of the marriage and the roles delegated to and accepted by her. Despite these strengths there was an apparent vulnerability in her when giving her evidence. She at times became visibly upset when discussing the behaviour of the father and her perception of his lack of support for her and the children throughout the marriage and since separation. Within this context the mother’s role as primary parent should be secured and assisted. I accept that she has lived in Melbourne for some considerable time and that she has established friendships. However, her main support has come from her own mother. Whilst the mother appeared to understate the extent of these potential support friendships in Melbourne during her evidence in order, I expect, to shore up her own case for relocation, the fact remains that during periods of need she has enlisted the assistance of her mother. The maternal grandmother has been able to travel to Melbourne when needed and on occasions has stayed for prolonged periods. However, she lives and works as a (omitted) in Canberra.
Consequently, and it is well established, that one of the matters that is relevant to the welfare of the children is the emotional state of their primary carer. The full court in B and B: Family Law Reform Act 1995[11] at paragraphs 9.66 and 9.67 observed:
The interests of the children may be affected by a proposed relocation in two broad ways. Firstly, the relocation may be of benefit not only to the parent but also to the children in a direct way. That is, the lifestyle of that family unit and those children may be enhanced by the move. Secondly, in some cases the inability of the resident parent to relocate will impose significant pressures upon that parent and diminish his or her capacity to cope and so diminish the quality of the lifestyle in that home. A very important aspect of a child’s best interests is to live in a happy family environment. That may be significantly impacted upon where the resident’s parent is required to live in circumstances which diminish his or her future life either in an economic or social sense, perhaps in a long term way. If that had an adverse impact upon the children’s best interests, that may be an important matter to consider. Similarly, the prospect that the lifestyle of members of that family will be enhanced by the move is a positive factor to be considered as part of an assessment of the children’s best interests.
Ordinary common sense experience indicates that long-term unhappiness by a resident’s parent is likely to impinge in a negative way upon the happiness and therefore the best interests of the children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinate is the best interests of the children; the wishes and desires of the parent per say give way to that.
[11] (1997) FLC 92-755
This is not a case where there is medical or psychological evidence adduced by the mother that she suffers some depression or similar so that a relocation for her is compelling in the sense of her parental capacity. However, the mother’s evidence in her trial affidavit at paragraphs 9.5 – 9.11 is demonstrative of the effect on her and the children of the father’s behaviour:
(9.5) On 29 January 2013, Y stated, “Daddy can’t play with us any more.” I replied, “why not”. Y then stated, “He’s too sad and needs to see us all the time.”
(9.6) The husband regularly tells the children and in particular X, who is 5 years, that he loves not just them but also that he still loves me. The last time I heard him doing so was when he was talking to X on Skype on 27 March 2013.
(9.7) On 4 April 2013, whilst the children were in the husband’s care for the school holidays, he telephoned me in a distressed state sounding as if he was about to burst into tears, wherein he wanted to discuss our relationship;
(9.7.2) said I was “too proud” to ask him to move to Canberra with the girls and myself;
(9.7.3) asked me if I wanted him to quit his job to facilitate the move; I told him, yet again, that the marriage was over and that I wanted him nowhere near me nor did I want him to either quit his job or follow me to Canberra. Thereafter he sent me numerous text messages wherein he remains fixated on a reconciliation.
(9.8) Also on 4 April 2013 Y stated, “Mummy, you need to come to Daddy’s house because Daddy loves you and Daddy has a surprise for you in his fridge.” X asked me if I wanted to have pizza with her, Y and the husband. I declined.
(9.9) On 18 April 2013, the children were talking about cars and mentioned that “Daddy” would buy a new car next year. I told them that when we sell the Property S property we may be able to afford a new car. X became very upset and said that she did not want to sell it. Y stated that we all needed to move back in with “Daddy” so that he is happy again.
(9.10) The husband remains “hopeful for a miracle” as noted by Mr P at paragraph 8 of his Report dated 7 March 2013.
(9.11) The husband continues, up until this day, to send me text messages seeking a reconciliation.
I accept this evidence of the mother, much of which is unchallenged in its particulars and generally conceded by the father as his conduct. The mother’s own feelings and state of mind are best put by Mr P at paragraphs 30 and 31 of his report as follows:
Despite the more idealized account given by Mr Wagner, according to Ms Wagner, the relationship was unravelling for a long time, things were conflicted and unsettled, but that she endured for the ideal of the family unit and for the sake of the children, this presumably connecting her own family of origin experience and her parent’s separation. Nonetheless, her experience was confronting, unrelenting toxicity and hatred, living in fear and uncertainty about his mood, frightened by his potential response, unable to commit to her own career because of the lack of consideration given to her and the importance of her work, and his flagrant unreliability, overt and direct as it was, that he would not be at home, that he would not be able to care for the children and that she would not be able to work.
Ms Wagner gave an account of having been desperately unhappy, that she was unable to rely on Mr Wagner for support, either with the children or during times of her illness, that he was not able to prioritise her and that everything was secondary to him and what was happening to him.
She described feeling like a single parent who was criticised and berated, denigrated in front of others without remorse or insight.
Whilst these comments are to be considered within the context of my own observations of the mother’s strong character and generally being prior to separation, Mr P’s reporting is generally consistent with the mother’s evidence and of her becoming upset when confronted with giving that evidence and being cross-examined. I am satisfied that she was desperately unhappy in the marriage. I am satisfied that the father’s pursuit of her since separation has been unwanted and unrelenting and continued that sense of unhappiness.
Taking the evidence as a whole, I am satisfied that the mother is unhappy at the prospect of remaining in Melbourne with the children. She does not accept the legitimacy of the father’s offers of assistance in light of his failures during the marriage and following separation. She does not welcome contact and communication with him, other than in a formal sense regarding the children. I am satisfied that the father’s behaviour has had a negative impact on the mother’s demeanour. I am satisfied that he has used the children as a conduit for messages of his affection for and desire to reconcile with the mother. I am satisfied that she does not accept his offers of respite and assistance as she sees it only as his desire to keep a connection with her. I consider the evidence in this matter to be sufficient to enable me to infer on impact on the children and the mother’s parenting of them from her unhappiness and despite no specific expert evidence, taking it outside of the realm of simple and not unexpected unhappiness of any parent whose application to relocate has been rejected[12].
[12] Hepburn and Noble (2010) FLC 93-438
On the evidence before me the mother’s claims of an economic advantage for her and the children in the move to Canberra is tenuous at best. She would have some assistance from her mother in caring for the children. She would be working on the same terms as she does in Melbourne. There would be no obvious or significant improvement in her financial position save some assistance with accommodation and what she says is a cheaper rental market.
I am mindful of the evidence of both parents and of Mr P that X and Y have strong and attached relationships with their father. Taking into account the history of time spent during the marriage, time spent between child and father post-separation, and the proposals of each of the parties, I am satisfied therefore that a meaningful and successful relationship between the children and the father would endure a relocation of them to Canberra. The relationships are established and successful. They are based, since separation, in the main on fortnightly weekend time. This regime can continue.
There is no onus of proof on the mother in respect of her proposed relocation. She does not have to give compelling reasons to satisfy the court. I am of the view, nevertheless, that there must be some reasons of sufficient probity in respect of the children’s best interests to justify such a relocation. I also take into account the right of adults to freedom of movement albeit subject to the best interests of children. I am satisfied, as Mr P points out[13] that the mother is able to make a distinction between her relationship with the father and the children’s relationship with him. I am satisfied that the father’s behaviour towards the mother has impacted on her, has made her parenting more onerous, and rationalises in part her desire to move to Canberra. In my opinion the mother has shown bona fide and good reasons to want to move to Canberra. In this regard Mr Wagner is in part the author of his own difficulties.
[13] Family report, paragraph 24
Consequently, I am satisfied that the children’s best interests are served by them living with the mother and relocating with her to live in Canberra. I’m satisfied that such a proposal is reasonably practicable. I am satisfied that the children’s relationship with their father can be successfully maintained.
Property
Alteration of property interests between parties to a marriage involves a process of consideration for the Court under section 79 of the Act and now settled following the recent decision of the High Court in Stanford v Stanford[14]. I must consider whether it is just and equitable as between the parties to make orders for property settlement. These parties have separated. They are the joint owners of two pieces of real estate. There are particular and discrete contributions by each of them. There were a number of considerations under section 75(2) of the Act that are relevant. In my view it is just and equitable that there be alteration of their property interests and to give them the required finality under section 81 of the Act.
[14] (2012) 293 ALR 70
Firstly, the Court is to identify and attribute value to the property of the parties being their assets, resources and liabilities. Superannuation is to be “treated as property” for these purposes. It is normally accepted that the date of the trial is the relevant date for determining the content and value of the property pool.
Secondly, the Court must consider and attribute weight to the various contributions of the parties including direct and indirect contributions and those of parent and homemaker. The Court then considers any further adjustment following reference to the relevant factors as set out in section 75(2) of the Family Law Act.
These parties are essentially in agreement as to the variables in this matter. They agree that contributions in an overall sense are equal. They agree the relevant section 75(2) factors which favour the wife by reason of her primary care of the children and the husband’s superior earning capacity. There was dispute as to the value of the property at Property S. This is now resolved and comprises:
| Asset | Ownership | Value |
| Property S, | Wife | E$1,760,000 |
| Property E | Husband | E$825,000 |
| Interest in firm partnership | Husband | NIL |
| (omitted) motor vehicle | Wife | E$15,000 |
| (vehicle omitted) motor vehicle | Wife | E$15,000 |
| (omitted) Bank mortgage offset account | Joint | E$85,000 |
| (omitted) Bank Account | Husband | E$35,000 |
| Bank accounts | Wife | Unknown |
| Chattels | Joint | E$10,000 |
| Total | E$2,745,000 | |
| Liability | Ownership | Value |
| Mortgage encumbering Property S | Wife | E$1,130,000 |
| Mortgage encumbering Property E | Husband | E$900,000 |
| Income Tax (for Year end 31/12/2012) | Husband | E$71,000 |
| Income tax (FY12 assessment) | Wife | E$26,000 |
| Income tax (for year end 31/12/12) | Wife | E$22,000 |
| Credit card (bank omitted) | Husband | E$13,000 |
| Credit card | Husband | NIL |
| Total | E$2,162,000 | |
| NET PROPERTY POOL | E$583,000 |
The pool of property, inclusive of superannuation, is now settled. The husband proposes a 70/30 split in favour of the wife. The wife originally sought orders whereby the Property S property be sold and the husband receive a set payment of $75,000. She has retreated from this view. She agrees that the husband should be given the opportunity to retain the home and that there be a percentage distribution between them. I concur that this is the preferred course.
I am satisfied in all the circumstances that a distribution of the tangible assets on a 70 per cent to the wife and 30 per cent to the husband basis is just and equitable and gives appropriate recognition to the contributions of the parties and the relevant section 75(2) factors.
There is one remaining dispute as to the property pool in respect of the husband’s working bank accounts. The wife argues that a balance of $35,000 - $45,000 should be attributed. There are, in fact, two bank accounts and the most recent figures available to me they total $44,393 in balances. However, having heard the husband’s evidence, I am satisfied that these are working and mortgage accounts in a sense that the balances vary considerably throughout the month and that they decrease to minimal or very low balances prior to further injection of the husband’s salary/drawings each month. Mr Wagner’s evidence was as follows in respect of a payment of $1500 per month to the wife:
…this is effectively what I have left in a month, but I was also told by my lawyer that it would be best payable for “Child Support”.
I am satisfied that there is no accruing of savings in the true sense and that the husband’s bank accounts are used for payment of necessary ongoing expenses and outgoings and Child Support and will be effectively exhausted in any given month. I will not therefore include in the pool any figure for bank account balances.
The dispute then focuses on whether there be a superannuation split. The husband says that the parties’ superannuation entitlements should be split so as to give a 50/50 division. The wife wants her entitlement to be from the tangible assets and the parties each keep their superannuation entitlements. The husband has superannuation of approximately $140,000 and the wife in a quantum of approximately $50,000.
I note that the entitlements are unlikely to vest for some considerable time. I note that the husband wishes to retain the Property S property and that there is some evidence, albeit not in great detail, of his ability to do so from his discussions with his bank. I note the husband’s far superior current income and earning capacity. I note the relatively modest pool of tangible assets. All of these factors are relevant in respect of the parties re-establishing themselves after the property settlement and in respect of whether there should be a superannuation split and, if so, the proper percentage split or, alternatively, whether one or other of the parties should retain more tangible assets and the other a greater proportion of the superannuation. Balancing these considerations, I am of the view that justice and equity is served by there being a superannuation split between the parties so as to give them each a 50/50 division of total superannuation. Each of them needs to re-establish themselves financially. Superannuation will not vest for many years. The asset pool is otherwise modest.
There will be a splitting order in respect of the husband’s greater superannuation entitlement so as to give the parties each one half of the total superannuation entitlements.
I certify that the preceding one-hundred and thirty-six (135) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 27 June 2013
Key Legal Topics
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Civil Procedure
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Administrative Law
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Judicial Review
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Standing
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Procedural Fairness
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