Walter & Walter
[2007] FamCA 491
•25 January 2007
FAMILY COURT OF AUSTRALIA
| WALTER & WALTER | [2007] FamCA 491 |
| FAMILY LAW - CHILDREN - With whom children live - Impact of wife’s relationship with her new partner and strong views of three eldest children against the relationship - Actions of husband encouraging children to “report” on their mother and undermining their relationship with her - Allegation of sexual abuse by wife against the husband - Unable to make a positive finding according to Briginshaw standard - Order: Children to spend equal time with each parent FAMILY LAW - INJUNCTIONS - Husband restrained from assaulting, molesting, harassing, abusing or otherwise interfering with the wife - Wife restrained from permitting the children to have any contact with her partner unless the children express a wish to do so FAMILY LAW - PROPERTY SETTLEMENT - Agreement as to value of assets and appropriate division FAMILY LAW - SPOUSAL MAINTENANCE - Appropriate for husband to continue to pay spousal maintenance for further 12 months - Husband has greater income and earning capacity- wife required to retrain to earn regular income |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 72, 74(3), 75(2) & 77A |
Briginshaw v Briginshaw (1938) 60 CLR 336
| APPLICANT: | MRS WALTER |
| RESPONDENT: | MR WALTER |
| FILE NUMBER: | ADF | 237 | of | 2005 |
| DATE DELIVERED: | 25 January 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Burr J |
| HEARING DATE: | 27-30 November 2006, 1 December 2006, 19 January 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bowler |
| SOLICITOR FOR THE APPLICANT: | John Cusack Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Berman |
| SOLICITOR FOR THE RESPONDENT: | David Burrell & Co |
IT IS NOTED IN CONNECTION WITH THESE ORDERS THAT THE JUDGMENT OF THE COURT DELIVERED THIS DAY WILL FOR ALL PUBLICATION AND REPORTING PURPOSES BE REFERRED TO AS WALTER & WALTER
Orders
That all current previous Orders of this Court be and the same are hereby discharged.
That the parties have equal shared parental responsibility for the children the first son (“[first son]”) born … January 1994, the second son (“[second son]”) born … November 1995, [the third son] (“[third son]”) born … October 1997 and the daughter (“[daughter]”) born … September 2001.
That the parties undertake all such actions and sign all such documents, and the husband pay all such fees, as are necessary to ensure the enrolment of the first son at M High School for the 2007 school year and for the balance of his secondary school education.
That the children live with the mother as follows:-
(a)Each alternate week from the conclusion of school on the Friday (or 3.30 pm in the event that the Friday is not a school day) until the conclusion of school on the immediately following Friday (or 3.30 pm in the event that the Friday is not a school day), commencing on Friday 26 January 2007;
(b)For one-half of each school holiday period at times to be agreed between the parties and in default of agreement, for the first half of each school holiday period, subject to the provisions of paragraphs 4(f) and 4(g) of these Orders.;
(c)If Mother’s Day falls on a weekend when the children are not living with the mother, from 10.00 am until 5.00 pm on Mother’s Day UPON NOTING that the children are to live with the father for an equivalent period in the event that Father’s Day falls on a weekend when the children are not living with the father;
(d)If the mother’s birthday falls on a day when the children are not living with the mother, from the conclusion of school until 6.30 pm on the mother’s birthday in the event of it being a school day and from 12 noon until 7.00 pm in the event of it being a non-school day UPON NOTING that the children are to live with the father for an equivalent period in the event that the father’s birthday falls on a day when the children are not living with the father;
(e)If any of the children’s birthdays falls on a day when the children are not living with the mother, from the conclusion of school until 6.30 pm on each child’s birthday in the event of it being a school day and from 12 noon until 7.00 pm in the event of it being a non-school day UPON NOTING that the children are to live with the father for an equivalent period in the event that the birthday of any child falls on a day when the children are not living with the father;
(f)From 6.00 pm on 24 December 2007 until 3.00 pm on 25 December 2007 and each alternate year thereafter;
(g)From 3.00 pm on 25 December 2008 until 10.00 am on 26 December 2008 and each alternate year thereafter;
(h)For one-half of each Easter holiday period which does not constitute part of a school holiday period;
(i)At such other times as may be agreed between the parties.
That the children live with the father at all other times, including:-
(a)from 3.00 pm on 25 December 2007 until 10.00 am on 26 December 2007 and each alternate year thereafter; and
(b)from 6.00 pm on 24 December 2008 until 3.00 pm on 25 December 2008 and each alternate year thereafter.
That on the occasions when the handover of the children is not possible at the children’s school(s), then handovers are to occur at or outside of the M Library.
That each party be at liberty to attend all school organised events, activities or functions routinely attended by parents in respect of each of the children including (but not limited to) parent / teacher interviews, sports days, speech nights, school concerts, graduations and the like.
That each party be at liberty to receive a copy of all school newsletters, school reports and school photographs at their own expense in respect of each of the children.
That the parties do keep the other informed as soon as is conveniently possible of any medical emergency affecting any of the said children.
That both parties be restrained and an injunction is hereby granted restraining each of them from discussing any aspect of these proceedings or any issues in dispute between the parties, with the children or in the presence of the children and from permitting any other person to do so.
That the husband be restrained and an injunction is hereby granted restraining the husband from assaulting, molesting, harassing, abusing or otherwise interfering with the wife.
That the wife be restrained and an injunction is hereby granted restraining the wife from permitting the children to have any contact with Mr T unless it is the children’s expressed wish to do so.
That in full and final settlement of any claim that either party may have against the other by way of property settlement:-
(a)The wife do forthwith transfer to the husband at the husband’s expense in all respects the whole of her right, title, estate and interest in the former matrimonial home property situate at D in the State of South Australia (known as “[D]”) and being the whole of the land comprised and described in Certificates of Title Register Book Volume … Folio … and Volume … Folio … to the intent that the husband shall be entitled to be the sole registered proprietor thereof.
(b)The husband do hereafter duly pay and discharge all outgoings in relation to the “[D]” property to the exoneration of the wife and do indemnify the wife against any liability for any such outgoings.
(c)The wife’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the husband:-
A.The husband’s personal effects, clothing and jewellery;
B.Australian Central Credit Union account;
C.ANZ cheque account;
D.Livestock;
E.Plant and equipment at “[D]”;
F.Hay;
G.The husband’s C Super;
H.191 A shares;
I.Furniture;
J.Mazda Bravo; and
K.Caravan.
(d)The husband’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the wife:-
A.The wife’s personal effects, clothing and jewellery;
B.Westpac Bank account;
C.Camper trailer;
D.Land Rover Discovery;
E.The wife’s C Super;
F.A whole of life policy;
G.B Trust;
H.O Portfolio;
I.S Fund; and
J.Furniture.
(e)The properties situated at:-
A.W in the State of South Australia (known as “[W]”) and being the whole of the land comprised and described in Certificates of Title Register Book Volume … Folio … and Volume … Folio …; and
B.F in the State of South Australia and being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio …
be forthwith placed on the market for sale with such agent and upon such terms and conditions as the parties may agree or in default of agreement as may be determined by the President of the South Australian Division of the Australian Property Institute and that the gross proceeds of sale thereof be distributed as follows:-
(i)Firstly, in payment of all and any real estate agents and auctioneers fees and commissions and any other costs associated with the aforesaid sale of the said properties;
(ii)Secondly, to discharge memorandum of mortgage number … registered on the title of the F property in favour of Perpetual Trustees Australia Ltd;
with the balance then remaining being described hereafter as “the net proceeds of sale”.
(ea)That the wife then be paid an amount calculated as follows:-
(i)52.5% of the total of:-
A. $824,528.00; plus
B. the net proceeds of sale
(ii)LESS $85,064.00, being the value of the assets to be retained by her pursuant to paragraph 13(d) above
and that such amount be paid to the trust account of John Cusack Solicitors on behalf of the wife from the net proceeds of sale, and that in the event that there is any balance of the net proceeds of sale then remaining, that they be paid to the trust account of David Burrell & Co on behalf of the husband.
(eb)That in the event that an amount is still due and owing to the wife after payment of the net proceeds of sale to her, then the husband shall pay that amount to the trust account of John Cusack Solicitors on behalf of the wife within thirty [30] days of settlement on sale of either W property or F property, whichever is the later.
(ec)That if the husband do make default in payment of any sum or any part thereof due to the wife as specified in paragraphs (13)(ea), (13)(eb) and (13)(f) of these orders then and in such event the husband do pay to the wife interest thereon at the rate prescribed by the Family Law Rules AND FURTHER that the property situate at D aforesaid (known as “[D]”) be sold and the net proceeds of sale applied in the manner following:-
A.To the wife the sum or any part thereof specified in paragraphs (13)(ea), (13)(eb) and (13)(f) of these orders or such balance as then remains due and outstanding together with interest thereon at the aforesaid rate calculated from the said due date for payment to the date of payment to the wife of the said sum or such balance as at that time shall remain due and outstanding to the wife; and
B.To the husband the balance thereof.
(f)That in the event that the 300 sheep on the W property have not been included in the valuation of livestock at $53,477.00 as detailed in paragraphs 91 and 92 of the Reasons for Judgment hereunder, then the said sheep be sold and the net proceeds of sale divided between the parties as to 52.5% thereof to the wife and the balance then remaining to the husband.
(g)That in the event that the parties become liable to the wife’s father in the amount of $50,000.00 or some other amount, then each of the parties shall pay one-half of that total liability to the wife’s father.
(h)That in accordance with Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the superannuation interest held by the husband in The P Superannuation Fund (member number …):-
A.The Trustee shall pay to the wife the entitlement calculated in accord with part 6 of the Family Law (Superannuation) Regulations using a base amount of NINETY EIGHT THOUSAND TWO HUNDRED AND FIFTY FIVE DOLLARS [$98,255.00];
B.There shall be a corresponding reduction in the entitlement that the husband would have had but for these Orders;
C.This Order shall have effect from the operative time;
D.The operative time shall be thirty [30] days after the date of this Order;
E.That this Order binds and shall bind the Trustee of The P Superannuation Fund;
F.Liberty to apply is reserved generally to the Trustee
(i)Forthwith upon the preceding Order having been carried out in full each party shall thereafter retain free of all further claim or demand or right or entitlement of the other their respective superannuation entitlements.
(j)If either party shall refuse or neglect to execute any documents necessary to give effect to these Orders within seven [7] days after the same shall have been tendered to him / her by or on behalf of the other for that purpose then and in such case a Registrar upon proof by Affidavit of such refusal or neglect is hereby appointed to execute and if, in his or her opinion it shall be necessary so to do, to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
(k)Henceforth each party shall discharge without calling upon the other to contribute thereto their debts and liabilities contracted for or by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
That by way of spousal maintenance the husband do pay to the wife the sum of $250.00 per week until the 2nd day of February 2008.
That all applications be removed from the pending list.
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 237 of 2005
| MRS WALTER |
Applicant
And
| MR WALTER |
Respondent
REASONS FOR JUDGMENT
The applications
The issues presented for my determination relate to the parties’ four children, matters of property settlement and spousal maintenance.
On the issue of property settlement, the parties are in agreement as to the assets and liabilities which comprise the relevant pool for my consideration and are further in agreement on matters of contribution and Section 75(2) factors. It will therefore not be necessary for me to explore factual issues surrounding the matter of property settlement, in any great detail.
Each seeks an order that the children live with them and spend time with the other parent. Their four children are the first son (“[First son]”) born on … January 1994, the second son (“[Second son]”) born on … November 1995, the third son (“[Third son]”) born on … October 1997 and the daughter (“[Daughter]”) born on … September 2001. Thus the children are 13, 11, 9 and 5 years of age respectively.
Background
The parties are both 40 years of age. They were married in March 1991 and separated some 14 years later on 10 February 2005.
The husband commenced work with I Company in 1985 and continued in that employment almost throughout the parties’ cohabitation until he took a redundancy in January 2004. Upon his redundancy he received an amount of $130,000. He now works for the company V Company as a service technician.
The wife had been working at a major Bank since she finished school in 1983 and continued in that employment after marriage until 2000 when her position became redundant. After the birth of each of three sons the wife took 12 months maternity leave and thereafter resumed in part-time employment.
The parties were in general agreement as to what assets they owned at the date of their marriage. The husband owned a Land Cruiser motor vehicle, some shares, a small quantity of household goods, held some savings and deposits and had a small amount accumulated in his superannuation fund. For her part, the wife owned a home unit at E, a Nissan motor vehicle and a small quantity of household goods and some shares.
After their marriage the parties lived in a farmhouse on the wife’s parents’ property and carried out improvements to that house in lieu of the payment of rent.
In June 1991 the parties purchased their first house property together at L.
In January 1993 the parties purchased a farming property at D, known as “[D]”.
Also in 1993 the parties sold their L property and in 2000 the wife sold her unit at E.
In February 1997 the parties purchased a townhouse at F.
In 2001 the parties purchased a property at W known as “[W]”.
In late 2004 the husband became convinced that the wife had formed a relationship with a Mr T and after an altercation on the issue of that relationship, the parties separated in February 2005. The wife moved into the “[W]” property but left the children with the husband at “[D property]” as “[W property]” was not suitable for occupation by the children as well as the wife. After the parties’ separation, the wife’s relationship with Mr T became a matter of serious concern for the husband. I will deal with the implications of that relationship and of the husband’s reaction to that relationship, later in these reasons.
A Domestic Violence Restraining order was granted in favour of the wife by the local Magistrates Court as against the husband, in February 2005.
Since orders were made by Senior Registrar Kelly on 25 February 2005, the children have lived with the wife and spent time with the husband each weekend and for half of each school holiday period. Among other orders made by the Senior Registrar on that day was an order that the wife be restrained from allowing Mr T to reside with the children or to remain overnight in the wife’s home whilst the children were in her care.
On 7 April 2005 Judicial Registrar Forbes ordered that the husband pay the wife interim spousal maintenance of $250 per week and that he deliver up specified items of furniture to the wife.
In August 2005 the wife moved with the children from the “[W]” property into a rented property in M. She has resided there with the children since. The husband remains in the “[D]” property.
The evidence
Each of the parties gave oral evidence and relied upon identified trial affidavits filed by them. The husband called no other evidence. The wife called oral evidence from Mr T.
The parties further requested that I have regard to the Family Report of Ms U dated 7 January 2006. They did not ask that Ms U be called to give oral evidence. They further requested that I rely upon a further Family Report of 22 November 2006 prepared by Ms D. Ms D gave oral evidence by telephone link.
Relevant Law
Significant amendments were made to the Family Law Act with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006. I set out and deal with the relevant provisions below:
Section 60B
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.
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 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).
One matter of critical importance was not altered by the amending legislation. Section 60CA still requires the Court to “regard the best interests of the child as the paramount consideration” in deciding what, if any, parenting order to make. In making that determination as to what would represent the best interests of the child, the Court is guided by the provisions of Section 60CC which is divided into primary and additional considerations. I will deal with those matters now.
Section 60CC
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Some guidance is found in the legislation as to what might constitute a “meaningful relationship”. That can be found in the Objects and Principles outlined in Part VII of the Act. In particular Section 60B(1) states one of the objects as:-
(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.
As to the principles enumerated in Section 60B(2), the first three appear the most relevant in the enquiry as to what constitutes a “meaningful relationship” and they are:-
(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 share duties and responsibilities concerning the care, welfare and development of their children;
Each of the parties is significant to their children. Each of them enjoys a significantly meaningful relationship with their children and their children with them. Any orders I make will recognise the need for the maintenance of the children’s relationships with both of their parents.
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
None of the children has been a victim of abuse, neglect or family violence. They have though witnessed some very unpleasant incidents between their parents and are clearly psychologically and emotionally affected by the conflictual relationship between their parents. I will deal with this issue more specifically when dealing with the other relevant provisions of the legislation.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
Over a lengthy period of time now the three boys, have consistently expressed the view that they wish to live with their father. Ms U, when preparing her Family Report of 7 January 2006, was left in no doubt as to the views and wishes of the three boys when she interviewed them and observed them in interaction with each of their parents. Such was the tenor and conviction of their views that Ms U, despite the fact of the wife having been their primary care giver since birth, recommended that the four children henceforth live with the husband. However, what is equally clear from Ms U’s report is that the children’s views and expressed wishes were affected and conditioned by their negative and antagonistic view of Mr T with whom the wife has continued to associate since the separation of the parties. Those views too were despite the injunction made by Senior Registrar Kelly almost a year before, namely on 25 February 2005, that Mr T not be allowed to reside with the children or remain overnight in the wife’s home whilst the children were in her care.
Almost a year later and two years after the separation Ms D prepared a second report. In that report Ms D recorded almost identical views being expressed by the three boys and made the same recommendation as did Ms U, namely that the four children live with their father. Again Mr T’s relationship with their mother and evident background presence, clearly influenced the decision of the three boys in that regard. I am satisfied though that the three boys did not come to their views about Mr T, unaided. They have clearly been influenced, and to quite a significant degree, by their father, his parents and the wife’s parents. I will return to this issue in greater detail later in my reasons.
The wife has been isolated from and ostracised by all of her close family members. They have been relentless and unforgiving in their view of the wife’s role in the breakdown of the marriage and in her relationship with Mr T. I am satisfied that their views have not only not been hidden from the children, but actively expressed to the children.
However, I am also satisfied on the evidence that the children’s antagonism towards Mr T is also as a consequence of their own independent views formed of him and his relationship with their mother. It is not just the fault of the husband, his family and the wife’s family that the children hold such strong negative views about Mr T and as a consequence about their mother for pursuing a relationship with Mr T.
For her part, whilst understandably bearing an acute sense of being friendless and clearly in need of some emotional support, support which she was unable to get from her own family, the wife continued her relationship with Mr T either naïve, blind or careless as to the consequences it might reap upon her relationship with her children. She chose to continue in her relationship with Mr T, despite very clear signals since the date of separation almost two years ago that her three sons were entirely intolerant and highly critical of and concerned about her relationship with Mr T.
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
I accept that the evidence is clear that the daughter’s closest bond is that with her mother. The daughter is far younger than her three brothers and has spent most of her life being nurtured in the primary care of her mother. Her relationship with her father and with her siblings is also a close and loving one. Each of her parents and all three of her brothers are important in the daughter’s life. Although the parties have agreed that whatever Orders I make, the children should not be separated, the evidence supports a finding that any parenting orders I make would need to reflect the daughter’s greater dependence upon her mother at her still tender age. The daughter also enjoys close, affectionate and important relationships with her paternal and maternal grandparents.
The relationships of the three boys with their parents though is more complex and more troublesome. I am satisfied that prior to the advent of Mr T, the three boys enjoyed their closest bond with the wife. She was their primary carer since birth and attended to most of their nurturing, their emotional needs and their daily extra curricula and educational needs. Save as to the stubborn pursuit of her relationship with Mr T, it is not possible to find on the evidence that the wife has been anything other than exemplary as a mother to her children.
It was the evidence of the wife and Mr T that their relationship did not become intimate until quite recently. Whether or not that is the case, the three boys believe otherwise and attribute the loss of their seemingly happy and cohesive family, to the intervention, intrusion and interference of Mr T and of their mother’s commitment to him. They clearly despise him and they are openly antagonistic, aggressive and rude towards him. Whilst the wife has taken great care for a lengthy period of time to keep Mr T out of view and out of her children’s lives, they are clearly alert to his continuing existence in the background and are aware that their mother and Mr T communicate on the telephone at times whilst they are there and at other times when they are not. Within a relatively small community I find that it would be impossible for the children not to be alerted on a regular basis to the continuing relationship between their mother and Mr T. I am also satisfied that, even if the children had not by their own enquiry or observation been aware of the continuing relationship, their father, his parents and the wife’s parents would have made sure that they were aware and were continually reminded of Mr T’s perceived negative impact upon their family.
Both Ms U and Ms D make comprehensive and clear reference to the negative impact of the wife’s association with Mr T upon her relationship with her children. In pursuit of her understandable need for companionship and comfort in the face of angry and antipathetic responses from the husband, his parents and her own parents, the wife has chosen to “gamble” on her relationship with her three sons by continuing the relationship with Mr T, a relationship which she wishes to continue into the foreseeable future.
Whilst a significant proportion of the blame can be laid at the feet of the husband, his parents and the wife’s parents for the serious deterioration in the relationship between the wife and her three sons, the stark reality is that her previously close and loving relationship with her children has been damaged, possibly irreparably, by her continuing association with Mr T. It is clearly the most significant issue to the three boys and looms large in the ultimate determination of the children’s issues in these proceedings.
That is not to say though that the children do not enjoy healthy, close and loving relationships with their father. Both Ms U and Ms D in reports almost 12 months apart, report very favourably upon the children’s relationships with their father and indeed upon the husband himself. Aside from his openly antagonistic behaviour and stance adopted towards Mr T and hence towards the wife, there is little if any criticism that can be levelled at the husband in terms of his parenting role. The children, particularly the three boys, speak warmly and fondly of him, speak warmly and fondly of life on the farm and speak clearly of the desire to live with him.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
and
(f)the capacity of:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In my view it is appropriate to deal with these three sub-sections together as they raise similar issues for my consideration. The greatest concern I have within the context of these sub-sections is the quite blatant role the husband has assumed in assisting the children to a very negative view of their mother’s relationship with Mr T. In that way he has demonstrated an inability to separate his own needs and concerns from those of his children. He was clearly distressed by the separation and blamed entirely the wife’s relationship with Mr T. The evidence does not support that. I am satisfied on the wife’s evidence that there were many concerns that she had about her marriage and that Mr T was not the cause of the separation. Being consumed as he was by his grief over the loss of his relationship with the wife and the happy family which he perceived he enjoyed, the husband’s subsequent actions and words clearly led to a situation where he failed to facilitate or encourage a close and continuing relationship between the children (particularly the three boys) and their mother. I am satisfied that if he had been able to separate his own issues with the wife, from any issues the children may have had with their mother, the children would enjoy a far closer relationship with their mother than they presently do. A mature and child focussed response from the husband would have shielded the children from much of the emotional grief which they have suffered since the separation and possibly led to the children being able to form stable, loving and suitable arrangements and relationships with each of their parents.
It is not though entirely the fault of the husband. As I said earlier, the wife has stubbornly refused to discontinue her association with Mr T despite the very clear and obvious signals that she was receiving from her children from the very earliest time in her separation. Whilst moulded to their views to a very large extent by the husband and other members of the extended families, the children have nonetheless had many an opportunity to bear witness to the continuing relationship that their mother pursues with Mr T. It is an important and significant thing for them and they clearly perceive their mother as having chosen Mr T ahead of themselves. Thus in her own way the wife has demonstrated to a degree an unwillingness or inability to facilitate and encourage a close and continuing relationship between herself and her own three sons particularly.
Unlike the approach of the husband, no criticism can be levelled at the wife in terms of the husband’s continuing relationship with his children. She has supported and encouraged the relationship, and apart from her continuing association with Mr T, has done everything that she can to shield the children from the adult issues surrounding the separation. She recognises the children’s love for their father and the importance of their relationship with their father. She further recognises the important relationships the children have with extended family members. Whilst I have concerns about the husband’s capacity to provide for the emotional needs of his children, I nonetheless have concerns about the wife’s capacity in that regard as well. Each of them has demonstrated a capacity to cater for their children’s educational needs (although the predominance of that role has been willingly assumed and undertaken by the wife) and it is thus not an issue for consideration in this matter.
This topic cannot be left though without reference to the role and impact of both the paternal and maternal grandparents. Whilst it is perhaps not surprising that the husband’s parents would closely align themselves with their son and with his emotional distress, of concern is the clear antithesis demonstrated by the wife’s own parents towards her and the absolute lack of support they have provided at any time since the breakdown of the parties’ relationship. They have failed to identify that their daughter was hurting emotionally and that she was in need of support and assistance. If indeed they had come to her aid at that time there is a strong possibility in my view on the evidence, that the children’s relationships with their mother could well have been rescued to a significant degree. In a sense they left her with no-one to turn to but Mr T.
In her report, Ms D provides a quite damning record of her interview with the wife’s mother and makes a very negative assessment of the maternal grandmother’s attitude towards her daughter. At paragraph 20 she says:-
“[The maternal grandmother] said that she had ‘taught my children to never lie. Since then lying has been as easy as breathing for [the mother]’.”
On this topic, I believe it is instructive to quote paragraphs 22 and 23 of Ms D’s Family Report in full:-
“[The grandmother] painted a picture of a daughter who had completely abandoned her family and who had ‘destroyed’ her husband ‘financially and emotionally’. [The grandmother] conveyed that she had wondered if her daughter had had a ‘breakdown’. She also said that she did not believe [the mother’s] claims that [the father] had been abusive toward her. [The maternal grandmother] said, ‘We spent a lot of time with them’. [The maternal grandmother] made comments about her daughter which indicated how deeply she felt that [the mother] had made the wrong choices, such as ‘I can’t really look at [the mother], what she has done to her children’.
It was of note that in regard to the deep rift between [the mother] and her parents, each portrayed that the other was actively refusing any communication or greeting. [The maternal grandmother’s] description of how deeply she blamed her daughter for the breakdown of the marriage was likely, in the view of the writer, to make it difficult to be anything but rejecting of her daughter. In the writer’s view, there was little evidence in [the maternal grandmother’s] comments, of any understanding of the deeper reasons which may have caused the rifts to begin to occur in her daughter’s marriage.”
In this way the wife’s own parents have demonstrated a telling and alarming incapacity to support their grandchildren’s emotional needs. They have played a significant part in fraying the emotional bonds between the wife and her children and in diminishing for the children the value of one of their significant emotional safety nets in the person of their mother.
(d)the likely effect of any changes in the child's 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 other person (including any grandparent or other relative of the child), with whom he or she has been living;
The impact upon the children of any change in their living arrangements is to a degree unpredictable. Whilst Ms D in her written report supported Ms U’s earlier recommendation that the children move from living with their mother to living with their father, Ms D sounded a note of caution. She expressed that a change of living arrangements could indeed be risky in emotional terms, for the children. In fact by the conclusion of her evidence, under questioning from me, Ms D indicated that she no longer adhered to her recommendations. However, it was also obvious from Ms D’s evidence, that she was deeply troubled by the various conflicting issues which have emerged in this matter and was in reality unable to make any clear recommendation to the Court.
Whilst there is very clear evidence expressed over a long period of time as to the three boys wishes and views as to where it is they should live, there is also very clear evidence that they could well have arrived at that decision for a number of very wrong reasons. However, I draw some comfort from the fact that each of the parents will remain within close physical proximity to the children, no matter what the result of these proceedings. Thus the impact of any changes upon the children’s living circumstances and arrangements can be ameliorated by there being regular and frequent contact with both of their parents.
The daughter though is different. Her primary attachment is clearly with her mother and I need to bear that in mind when making my decision and framing my Orders. However, as is also noted by Ms U and Ms D, the daughter’s relationships with her three brothers are also very important to her and a significant factor. The parties, in recognition, agree that the children should not be separated.
(e)the practical difficulty and expense of a 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;
No issues of concern arise for my consideration pursuant to this sub-section. Both parties will remain living within relatively close proximity and thus there will be no physical or practical barriers to the children spending regular and substantial time with each of their parents and extended family members.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The three sons are 13, 11 and 9 years of age respectively. I need have regard to their level of maturity in gauging the weight to be attached to their expressed views. Both Ms U and Ms D formed very similar views of the first and second sons. Ms U described the first son variously as “assertive and confident” and “straightforward” (paragraph 28 of her report). Ms D, for her part, described the first son as “an intense young boy with very strong views” (paragraph 24 of her report). Both recorded the significant intensity of the antagonism they felt and feel towards Mr T.
The second son was described by Ms U as “a sensitive young boy”. Ms D recorded him as being “an expressive, thoughtful boy”.
Clearly though in the almost 12 months between the two reports, the third son had matured considerably. Ms U described him as being “more quietly spoken and reserved” whilst Ms D records him “as a confident boy with a strong sense of his future”.
Their sensitivity to the wife’s relationship with Mr T and their clear antagonism towards him emerges in both reports and therefore has clearly remained as a sustained negative in their lives and been very influential in the formation of their views about with whom they should live.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
There are no issues of relevance for my consideration pursuant to this sub-section.
(j)any family violence involving the child or a member of the child's family;
A very serious allegation has been made by the wife that just prior to their separation she was digitally raped by the husband. The husband denied that allegation but admitted to aggressively grabbing the wife’s buttocks. Whilst there was a compelling nature to the wife’s evidence on that incident I am not able, by adopting the requisite standard of proof, to make a positive finding in that regard.
Whilst I must apply the civil standard of proof and be satisfied as to that allegation on the balance of probabilities, the seriousness of the allegation and the potential consequences and ramifications of same require a variation of that standard as defined by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 where Dixon J said:-
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
The Briginshaw test has been adopted in Section 140 of the Evidence Act 1995 (Cth) and is expressed in the following terms:-
“140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.”
I have applied that test when making my finding in relation to the allegation.
In February 2005 the husband also behaved particularly poorly and caused the daughter considerable distress. He noticed the wife and Mr T in the car park at the local Hospital. He drove up to them and forcibly removed the daughter from the wife’s car which prompted an extremely unpleasant altercation between the parties. The husband then drove off with the daughter. I am satisfied that the daughter was extremely upset and distraught by the actions of her father. I further accept on the evidence that it was entirely the fault of the husband. His behaviour was appalling and provides yet another example of the husband’s inability at times to remain child focussed.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
If I did not acknowledge the strongly expressed views of the three boys in any orders that I make, I am satisfied on the evidence that they will continue to express those views and that of itself could lead to the institution of further proceedings. They could even in the future make their own decisions and “vote with their feet”. This then would also likely lead to the institution of further proceedings.
It was the evidence of the wife and Mr T that they would be continuing their relationship and indeed advancing the closeness and permanency of their relationship. Given the consistency of vehemence of the views expressed by the three boys over a lengthy period of time, any continuance or escalation of their mother’s relationship with Mr T is quite clearly likely to affirm their views and increase their resolve. To resist that would, as I said, likely lead to the institution of further proceedings by the husband.
(m)any other fact or circumstance that the court thinks is relevant.
No additional matters of relevance emerge from my consideration pursuant to this sub-section.
Section 60CC(4)
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Matters relevant to this Section have been canvassed in full earlier in these reasons. As I said, I am satisfied that the wife has discharged all of her responsibilities as a parent within the meaning of this Section. The husband has not done so. As a result of his jealous fixation upon Mr T (as one example, Counsel for the wife counted 68 references to Mr T in the husband’s trial affidavit), he has failed consistently to facilitate the wife’s relationship with the children. The children’s enjoyment of their time with their mother has been detrimentally affected by the husband’s actions. I repeat though that the wife contributed to her own problems in that regard.
No other issues of relevance emerge for my consideration pursuant to this Section.
Section 61DA
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parties have agreed that they should enjoy equal shared parental responsibility for their children. I am satisfied that none of the matters canvassed by me above, in particular the isolated occasions of abuse, would disqualify either party from enjoying equal shared parental responsibility for the children. The husband’s failure to support the wife’s relationship with the children is a matter of serious concern but in almost all other respects the parties’ attitudes to one another and their capacity to cooperate historically in decisions impacting upon their children, all point to the appropriateness of equal shared parental responsibility.
The first son’s schooling
The parties have not been able to agree on one specific matter and that relates to the first son’s secondary schooling. The husband wishes the first son to attend M High School. The wife wants him to go to W College in G. During the course of the trial proceedings I indicated to the parties and their Counsel that I thought one way of resolving that issue was to identify one of the parents as being the person to bear that responsibility and make that decision rather than it being a decision of the Court. However, having reviewed all of the evidence and reached the conclusion that the parties should retain equal shared responsibility, I believe that it is appropriate that they do so in all respects, including issues of schooling.
Thus it is for me to make the decision as to which school the first boy is to attend from the commencement of this school year in 2007. The parties have asked me to make that determination.
The wife sets out her reasons for wanting the first son to attend W College in her affidavit filed in these proceedings on 9 November 2006. However, I am satisfied that it is presently appropriate for the first son to attend M High School. There is not a lot to choose between the two schools on the evidence presented to me, but I do so for the following reasons:-
a)The children and their parents reside in M.
b)The first son’s brothers and sister will continue their schooling in M for the foreseeable future.
c)W College is in G which would require a round trip of some 100 kilometres each day.
d)Pursuant to the Orders made by me herein, the first son will be spending more time with his father than he has in the past and the logistics of changeover between the parties will be assisted by all children being in the same area in the same township each school week.
e)The first son told Ms D that he does not want to go to W College.
Having determined that the parties should continue to enjoy equal shared parental responsibility, I now need turn my attention to Section 65DAA.
Section 65DAA
Equal time
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
At the conclusion of the evidence and before Counsel’s addresses, I provided a preliminary intimation to the parties that I was of the view that the children ought to live predominantly with the husband. In his final address, Mr Bowler for the wife urged me to consider at least an equal shared parenting arrangement if I was inclined to alter the present parenting regime. As he expressed it, the wife seeks as much time with her children as I am prepared to order. I indicated to Mr Bowler some reluctance to do so but the legislation quite clearly obliges me to consider it. I am guided to various factors I need consider by the provisions of sub-section (5) which is in the following terms:-
Reasonable practicality
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Having now had the opportunity of considering all of the evidence and Counsel’s final addresses, in my view there are a number of factors which would favour Orders being made for the children to spend equal time with each of their parents. They include:-
a)The parties and the children all reside in M. The husband will remain on the “[D]” property. The wife said that if she retained a significant parenting role she too would remain in M as the children’s friends and family were there. She said that she and the children had looked at buying a house in M.
b)The parties live in relatively close proximity to one another which would enable the children to freely visit the other parent should they choose to do so outside of the parameters of any orders I make, something they are likely to do as they grow older and make more of their own decisions.
c)The issue of close proximity would readily assist handovers at the end of each parent’s period of time with the children.
d)As a consequence of existing arrangements and my proposed Order in relation to the first son, all children will be attending school in M which would also facilitate easy exchanges of the children and their belongings.
e)Aside from the issue of the first son’s secondary schooling and the husband’s clear antithesis towards Mr T, the parties have been able to agree in most respects on the parenting of their children and thus the children will not need to cope with substantially differing parenting attitudes.
f)It will enable the children and their parents to engage equally in their schooling and extra curricular activities.
g)It will enable the children to maintain existing friendships and relationships without the major disruption caused by parents who reside in significantly different locations.
h)Despite the clearly expressed preference of the three boys to reside with their father, they have thrived and benefited from their mother’s parenting.
i)An equal shared parenting arrangement would accommodate the wishes and views of the three boys to a degree but maintain the important and beneficial influence and input of their mother.
j)The daughter’s primary bond is with her mother but her relationships with her father and brothers are important to her and her development. A shared care arrangement will accommodate and sustain the daughter’s needs in that regard and also acknowledge the parties agreement that the children should not be separated from each other.
k)No issues of expense or practicality provide an impediment to an equal shared parenting arrangement.
l)The children have been accustomed for some time to being in the care of each parent for significant periods of each fortnight. Since the orders of 25 February 2005, the children have spent 9 of 14 nights with the wife and 5 of 14 nights with the husband.
In my view, factors contraindicating an equal shared time arrangement are fewer and of lesser significance. They include:-
a)The three boys expressed to both Ms U and Ms D their concern and irritation at having to suffer the inconvenience of moving from house to house when change over occurs.
b)It does not acknowledge the three boys’ expressed wish to reside effectively full time with their father.
c)It may lead to a continuation of the developed habit of the three boys of “reporting” on their mother and afford to the husband increased opportunities to cross-examine the children about their mother’s relationship with Mr T or otherwise.
d)It may not adequately recognise the wife’s primary role as their carer for the whole of their lives and the important influence and impact she has had upon them.
I am though satisfied on balance that this is a matter where it is entirely appropriate that the children spend equal time with each of their parents and that such an arrangement acknowledges the children’s best interests as being the paramount consideration.
Substantial and significant time
If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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
(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.
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Given my determination that the children should spend equal time with each of their parents, it is not necessary for me to consider the provisions of these sub-sections.
Summary
Apart from one discrete area of the wife’s application to her parenting role and her love of her children, her devotion to her children has been obvious and exemplary. That one area I have canvassed in great detail and is, of course, her continuing relationship with Mr T in the face of quite serious concerns being raised by the children about that relationship. The husband’s conduct has been less than exemplary. He has promoted and encouraged the children’s antithesis towards Mr T. He has failed to separate his own issues from those of the children. He has involved the children in his own emotional turmoil and his own jealous reactions. He has actively encouraged the children to report upon the wife’s conduct in relation to Mr T and on that issue undermined the children’s relationship with their mother and vice versa.
This is a finely balanced matter. The wife has erred in only one area. The husband has erred in many. The wife has exhibited a commendable devotion to her children in circumstances made extremely difficult by the husband, his parents and her own parents. As Ms D observed, all barometers of the children’s progress including schooling, peer relationships, extra-curricular activities and absence of behavioural problems, were appropriate and encouraging in the wife’s care. All of those factors point to the wife retaining her primary role in the care of the children.
However, it is not proper for me to ignore the strongly expressed views of the three boys, views which have been consistently expressed over an extended period of time. It would not be in the best interests of 13 year old first son not to give considerable weight to the following:-
a)“[The first son] expressed disappointment in his mother describing her as having changed from a ‘nice’ mum, but not any more’.” (Ms U – paragraph 30).
b)“[The first son] expressed a responsibility for the other children when [Mr T] is in the home, stating he did not want to live with his mother while [Mr T]is in her life ….” (Ms U – paragraph 30).
c) “[The first son] made it clear that he wanted to live with his father, that he enjoyed the life on the farm and that things appeared more normal when they were with [the father]” (Ms U – paragraph 31).
d)The aforementioned views expressed by the first son were from a young man described by Ms U (paragraph 28) as “assertive and confident” and “straightforward”.
e)“He said that he wanted to live with his father” (Ms D – paragraph 24).
f)“[The first son] said that he had told his mother of his wish to live with his father” (Ms D – paragraph 24).
g)“Tell her I don’t want to live with her”. (Ms D’s notes – Exhibit 6 – page 11).
h)The first son was described by Ms D (paragraph 24) “as an intense young boy with very strong views.”
It is appropriate too to have serious regard to 11 year old second son’s views, a person who was described by Ms U (paragraph 32) as “a sensitive young boy” and by Ms D (paragraph 29) as “an expressive, thoughtful boy”. Those views, over a 12 month period, include:-
a)“[The second son] stated he wants to live with [the father], emphasising that he wants all the children to live with him and see their mother on weekends, stressing he would not miss her” (Ms U – paragraph 35).
b)“For him, the ‘swapovers’ were the saddest times. He expressed that it was difficult because he would be enjoying his time with his father, and did not want to have to go back to his mother.” (Ms D – paragraph 29).
c)“[The second son] said that he wanted to live with his father” (Ms D – paragraph 30).
d)“[The second son] went on to say, ‘I’m a lot happier at dad’s. At dad’s, can see cousins and everyone.” (Ms D – paragraph 30).
e)“[The second son] repeated that he ‘think I would only be as happy as I can be at dad’s full time.” (Ms D – paragraph 31).
Regard must be had also to 9 year old third son’s views, which include:-
a)“[The third son] stated he would like to live with [the father] saying that he does not boss them around as much and that he does not let other people just walk into their home.” (Ms U – paragraph 39).
b)“[The third son] expressed that he wanted to live at the farm with his father.” (Ms D – paragraph 32).
c)In having regard to the views of the third son I note Ms D’s description of him (paragraph 32) “as a confident boy with a strong sense of his future”.
The daughter is too young to have any views that should seriously influence the decision of this Court. It is suffice to say, as observed by Ms D, “[The daughter] was clearly comfortable with both her parents, and very much a comfortable part of the sibling team.” (paragraph 33).
I further acknowledge the discomfort and irritation expressed by the three boys at having to move from house to house when sharing their time between their parents. Their clear preference was to live “full time” with their father. I have certainly had regard to the children’s expressions of concern in that regard but in my view the positive influences that the wife has upon her children and the many benefits which the children will derive from her devoted and nurturing style of parenting, make it necessary for me to depart from the children’s wishes and views in that regard.
In what is a difficult decision, I am satisfied that the children’s best interests will be represented by an arrangement that acknowledges their strongly expressed views and wishes to spend more time with their father but retains to a significant degree within their lives, the positive, loving and nurturing input of their mother.
Injunctions
In her amended Form 1 Application filed on 30 October 2006 the wife seeks a non-molestation injunction and an injunction restraining any discussion with the children about issues surrounding the breakdown of the marriage. I am satisfied that it is appropriate to grant the first of those injunctions sought by the wife. As I have indicated earlier in these reasons, the husband has been responsible for initiating a number of unpleasant altercations. It is appropriate for the children’s sake that such incidents cease.
The second of the injunctions sought by the wife is entirely appropriate and fully supported on the evidence. The children have already been engaged in the adult issues between the parties to an alarming degree. That should also cease. Whilst it is the husband who has been almost totally at fault in that regard, I believe it appropriate to make a mutual injunction. The evidence also supports a finding that the wife herself at times got caught up in discussions with the children about the issues surrounding the breakdown of the marriage.
In his amended Form 1A Response filed on 22 November 2006, the husband seeks an injunction restraining the wife from bringing the children into contact with Mr T. Whilst I contemplated leaving it as an issue for the wife to determine, the evidence is overwhelmingly to the effect that the children do not wish to have any contact with Mr T, albeit that they have largely been persuaded to that view by the husband. The impact upon the children has already been significant and a good deal of their discomfort and indeed trauma is associated with the issues surrounding the wife’s relationship with Mr T. In those circumstances, I believe the evidence supports the granting of such an injunction.
Property Settlement
As I said earlier, the parties are essentially agreed in all respects on the issue of property settlement. They are agreed as to the structure and value of the asset pool. They are agreed that their contributions should be seen as equal and that if the children were to essentially live full time with the husband, then there ought to be an adjustment of 10% in his favour. If the children were to live predominantly with the wife then they agreed that there ought to be an adjustment of 15% in her favour.
However, the parties did not initially put anything before the Court as to what should be the outcome in the event of an equal shared parenting regime. Accordingly, I called the matter back on for further submissions on 19 January 2007. Acknowledging that the parties agreed that an additional loading of 5% in favour of the wife was appropriate if she was to be the primary carer of the children rather than the husband, Counsel conceded that a logical and proper consequence and an outcome within the range of my discretion was that the asset pool should be divided 52.5% / 47.5% in favour of the wife in the event of an equal shared parenting arrangement. Neither Counsel sought leave to adduce further evidence.
The parties further agreed on matters of superannuation. They agreed that the two small C superannuation funds should constitute part of the asset pool for division between them but more significantly agreed that they should split equally at the payment phase the husband’s superannuation benefits held in the P Superannuation Fund. In a letter to the husband’s solicitors dated 1 December 2006 (Exhibit 7) the Trustee of the P Superannuation Fund acknowledged that they had been accorded procedural fairness and agreed to the orders proposed by the parties for a split of the husband’s entitlements in the payment phase.
Essentially the one and only area where the parties were not able to reach agreement was as to who was to occupy the “[D]” former matrimonial home property. It was a very late decision by the wife to make an application to the Court that she live there. She acknowledged that it was related to the children’s desire to live on that farm property. She further acknowledged that if the children did not reside principally with her, then she did not wish to pursue her application in relation to the “[D]” property.
In my view, it would be inappropriate to make an order that the wife assume occupation of the “[D]” property. The husband has resided there since the separation and the children are well used to spending time with their father on that property. They clearly enjoy many activities with their father on that property, activities which they associate with their father and not with their mother. An adjustment to that accustomed arrangement and routine cannot be justified and would not represent the children’s best interests. As it is, they need to engage and experience a number of changes in their lives as a consequence of my orders. They do not need more.
Assets and Liabilities
Neither party wants to retain the “[W]” or F properties. Both are to be sold. My orders therefore will need to accommodate the sale of those properties and the distribution of proceeds between the parties.
When the “[W]” property is sold, then it would also be necessary to sell some 300 sheep. The parties have agreed the value of the livestock as set out below. Counsel were not certain whether the 300 sheep on the “[W]” property were included in that valuation. If they were then the appropriate outcome is for the husband to sell the sheep (if he wishes) and retain the proceeds. The wife’s entitlement would then be accommodated by the orders I make in relation to the asset pool including the full value attributed by the parties to the livestock. If they have not been included in that valuation, then it is appropriate that I make a further order in respect of same.
The parties have agreed that the asset pool for distribution and its value is as follows:-
Assets
Former matrimonial home at D
(known as “[D]”) $570,000.00
Australian Central Credit Union (husband) $46,836.00
ANZ cheque account (husband) $15,343.00
Westpac Bank (wife) $2,200.00
Livestock $53,477.00
Plant and equipment at “[D]” (husband) $17,310.00
Hay (husband) $2,720.00
Camper trailer (wife) $6,500.00
Land Rover Discovery (wife) $4,000.00
C Super (wife) $4,400.00
C Super (husband) $4,396.00
191 A shares (husband) $1,857.00
A Whole of Life policy (wife) $3,359.00
B Trust (wife) $5,000.00
O Portfolio (wife) $29,852.00
S Fund $26,813.00
Furniture (husband) $10,525.00
Furniture (wife) $2,940.00
Mazda Bravo (husband) $9,000.00
Caravan (husband) $8,000.00
Total assets for distribution between the parties $824,528.00Agreed Sales
The parties agree that the value of the “[W]” property is in the vicinity of $570,000 and the F property approximately $340,000. There is a mortgage registered on the title to the F property and the parties agree that there is an amount in the order of $200,000 due and owing to Members Equity in respect of same. The properties are to be sold and the net proceeds divided between them in the proportions 52.5 / 47.5 in favour of the wife.
Furniture
Of the furniture listed above with an agreed value of $10,525.00, the husband wishes to exclude certain pieces inherited from his grandmother to the value of $1,380.00. He wishes to pass them on to the children. In my view, on the evidence, that is not sufficient reason for them to be excluded. The wife too introduced assets to the marriage received from other sources.
Cows
The wife questioned whether all livestock had been accounted for in that she thought 7 cows were missing. The husband said they had died. I accept his evidence.
Debt to wife’s father
The parties (the wife particularly) borrowed $50,000.00 from the wife’s father to assist in the purchase of “[W]” in 2001. By Exhibit 5, the wife’s father purports to forgive the debt. The parties though have agreed that I should make an order that in the event that the wife’s father sought to recover that debt and was successful in so doing, they should each be liable for one-half of the debt, namely $25,000.00.
Superannuation
The parties agreed the value of the husband’s P Superannuation Fund to be presently $196,515. They have agreed though to split those entitlements equally in the payment phase. The orders to which they agree in that respect are as outlined in Exhibit 7.
Just and equitable
The consequence of the parties’ agreement is that the husband will retain the following assets:-
Former matrimonial home at D
(known as “[D]”) $570,000.00
Australian Central Credit Union $46,836.00
ANZ cheque account $15,343.00
Livestock $53,477.00
Plant and equipment at “[D]” $17,310.00
Hay $2,720.00
C Super $4,396.00
191 A shares $1,857.00
Furniture $10,525.00
Mazda Bravo $9,000.00
Caravan $8,000.00
Total $739,464.00The wife will retain:-
Westpac Bank $2,200.00
Camper trailer $6,500.00
Land Rover Discovery $4,000.00
C Super $4,400.00
A whole of life policy $3,359.00
B Trust $5,000.00
O Portfolio $29,852.00
S Fund $26,813.00
Furniture $2,940.00
Total $85,064.00Pursuant to the parties’ agreement, the wife is to receive 52.5% of the total asset pool of $824,528.00, being a figure of $432,877.00, plus 52.5% of the remainder of the net proceeds of sale of the “[W]” and F properties after the shortfall in payment has been made up to her. The wife is retaining assets to the value of $85,064.00 and thus is due to receive a further payment of $347,813.00. She should receive that amount from the proceeds of sale of “[W]” and F before the balance of same is distributed on a 52.5 / 47.5 basis in favour of the wife.
Given the parties’ agreement in almost all respects, my enquiry as to whether or not the outcome is a just and equitable one as between the parties is particularly limited. I am satisfied though on the evidence led before me and upon the submission of Counsel together with the agreement of the parties, that the property settlement proposed and ordered herein, does indeed represent a just and equitable resolution of the parties’ property issues.
Spousal maintenance
In her amended Form 1 Application filed on 30 October 2006, the wife sought an order for spousal maintenance in the sum of $400.00 per week. Her application is expressed as being pursuant to Section 77A(1) of the Act. That is clearly incorrect. In her amended Case Outline document there is no mention of the wife seeking any order for spousal maintenance. However, during the course of the trial proceedings the wife agitated her application for spousal maintenance and the husband understood that she was seeking orders in that regard. At the commencement of the wife’s case her Counsel sought spousal maintenance of $250.00 per week for a further period of four years but in his closing address sought that it continue for another 6 to 12 months.
The wife’s application for spousal maintenance is properly brought pursuant to Section 72 of the Act, the relevant provisions of which (sub-paragraph (2) not being relevant) are expressed in the following terms:-
72(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable support herself or himself adequately whether –
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason,
having regard to any relevant matter referred to in sub0section 75(2).
.
The wife is already favoured by an interim spousal maintenance order in the sum of $250.00 per week, made by Judicial Registrar Forbes on 7 April 2005. The Judicial Registrar also ordered that the husband pay the wife’s motor vehicle expenses (save for fuel) of up to $1,000.00 per annum. In his final address, Counsel for the wife sought a continuation of the order in respect of the payment of $250.00 per week for a further 6 to 12 month period in order to enable the wife to retrain and ready herself for active employment.
I turn now, as I am obliged to do by Section 72(1), to the factors enumerated in Section 75(2).
(a)the age and state of health of each of the parties;
Both parties are 40 years of age and both enjoy good health.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
A comprehensive summary of the parties’ assets and financial resources is detailed above. Each of them will be left with significant property resources and an income stream in retirement from the splitting of the husband’s P Superannuation Fund. The husband is gainfully employed as a service technician at V Company earning $62,130.00 per annum gross (Exhibit 3). In his Form 13 Financial Statement filed on 1 March 2006, he also discloses farming and rental income of an additional $62,400.00 per annum. However, I accept that when “[W]” is sold, that income will drop to something in the order of $12,000.00 to $13,000.00 per annum.By comparison, the effective totality of the wife’s income is made up of the interim spousal maintenance she receives, the child support paid by the husband and Government benefits received by her. The consequence of my orders establishing an equal shared parenting regime will be that she will receive less by way of Government benefits and less by way of child support. Thus in an income sense, the husband enjoys a vastly superior income to that of the wife. She will though clearly be in a position to earn some investment income from her property settlement, even allowing for the purchase of a residence. No evidence was led though which provided me with any detail of same.
The husband clearly retains the capacity for gainful employment for some years hence. He did not contend otherwise. The wife though has not worked since she accepted a redundancy from the major Bank in 2000. She has otherwise devoted herself to the full time care of the four children. She gave evidence of her desire to pursue studies in horticulture, interior design or as a school services officer. It is her wish to acquire sufficient skills and qualifications to re-establish herself in the work force. She contends that she requires some financial assistance from the husband until she has acquired those qualifications. It was her evidence that some of those courses require a four year period of study. One or two of those courses could be undertaken on a part-time basis which would fit comfortably with her obligations as a parent pursuant to the orders made by me.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Pursuant to my orders for a shared parenting arrangement, each of the parties’ obligations in respect of the care of their four children, will be essentially identical.
(d)commitments of each of the parties that are necessary to enable the party to support:-
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
Both parties will need to support themselves and the children during the time that they are in their care. The husband will have no difficulty doing so. The wife will need assistance.
(e)the responsibilities of either party to support any other person;
This sub-section is not relevant to the matters requiring my determination. In fact the wife receives some limited financial assistance from Mr T to assist in the financial care of the children.
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -
(i)any law of the Commonwealth, of a State or Territory or of another country;
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party.
The wife receives Federal Government benefits in the form of family allowances. They will be reduced now that the children are to spend less time in her care. Full details of the parties’ superannuation entitlements have previously been canvassed. It will probably be some 20 years though before either will be able to draw upon the splittable payment agreed between them.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
No additional relevant matters arise for my consideration.
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This sub-section is particularly relevant. I accept the evidence of the wife that she intends to undergo re-training in order to secure paid employment in the future. If she had support for a period of time in the form of spousal maintenance, she would be assisted in her re-training.
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This matter is not relevant to these proceedings.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
By the wife undertaking the role of primary carer for the children throughout most of the parties’ marriage, the husband has been able to pursue full time employment, something he could not have done without the wife’s dedicated assistance.
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The parties were together for some 14 years. It is 16 years since they married. The wife’s earning capacity has been detrimentally affected by her commitment to the marriage and the children of the parties. It is now some 7 years since the wife was employed.
(l)the need to protect a party who wishes to continue that party’s role as a parent;
and
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
No additional matters emerge for my consideration pursuant to these sub-sections.
(n)the terms of any order made or proposed to be made under section 79 in relation to:-
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
I have had regard to the property settlement that each of the parties will receive. Each will have quite significant resources.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage;
In addition to the interim spousal maintenance paid by the husband, he pays child support of $250.00 per week direct to the wife. His obligations in that regard will almost certainly reduce as a consequence of the new parenting regime put in place by my orders made in these proceedings.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
and
(p)the terms of any financial agreement that is binding on the parties.
No additional matters of relevance require my consideration pursuant to these sub-sections.
In framing my orders for spousal maintenance, I have disregarded the Federal Government allowances received by the wife, as I must pursuant to Section 74(3) of the Act.
Having considered the aforesaid relevant matters, but in particular:-
a)the husband’s significantly superior income and earning capacity;
b)the inability of the wife to secure regular paid income without further retraining;
c)the reduction in amounts the wife will receive by way of child support and Government allowances;
d)the wife’s increased capacity to study and seek work, given the reduction in her parenting role
I am satisfied that it is appropriate that the husband continue to pay spousal maintenance to the wife in the sum of $250.00 per week for a further period of 12 months.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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