WALTON & WALTON
[2013] FCCA 1559
•9 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALTON & WALTON | [2013] FCCA 1559 |
| Catchwords: FAMILY LAW – Property – property pool – addbacks – contributions – justice and equity. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75(2), 79 Evidence Act 1995 (Cth), s.140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Cahill & Cahill (2006) FLC 93-253 Sebastian & Sebastian (No.5) (2013) FamCA 191 Stanford v Stanford [2012] HCA 52 Watson & Ling (2013) FamCA 57 |
| Applicant: | MS WALTON |
| Respondent: | MR WALTON |
| File Number: | BRC 7124 of 2012 |
| Judgment of: | Judge Howard |
| Hearing dates: | 7 and 8 August 2013 |
| Date of Last Submission: | 8 August 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 9 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
ORDERS
That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 16 October 2013.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 23 October 2013.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Walton & Walton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7124 of 2012
| MS WALTON |
Applicant
And
| MR WALTON |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant was born on (omitted) 1967. The Respondent was born on (omitted) 1969.
The parties commenced cohabitation in (omitted) 1996. The parties married on (omitted) 1997.
I have heard the different versions between the wife and the husband in relation to the date of separation. The wife maintains that separation occurred under one roof from September 2010. I prefer the wife’s evidence. I found the wife to be a witness with a clear recollection of events. On the other hand, the husband was, on many occasions vague and uncertain in his evidence. I also accept the wife’s evidence that whilst this separation under roof occurred in September 2010 – the parties stopped living at the same residence in approximately April or May 2011. The husband highlighted one or more holidays on which the family went together between September 2010 and May 2011. I accept the wife’s evidence that she went on those holidays with the children and the husband – for the benefit of the children. I also accept the wife’s evidence that she did not broadcast to the parties’ family and friends that the parties were in fact separated under one roof. I also accept the wife’s evidence that – at the husband’s 40th birthday party – she did not broadcast to the parties’ family and friends that the parties were separated under one roof and I accept that the wife said some nice things in a speech about the husband on that occasion – as was appropriate to such occasion – in the circumstances.
The parties were divorced on (omitted) 2012.
The parties had two children from their relationship namely X born (omitted) 1999 and Y born (omitted) 2002.
The parents have been able to substantially agree in relation to the broad outline of parenting arrangements. Both parents revealed this to the Court at the trial callover on 19 June 2013. Accordingly, in relation to the parenting issues – an order was issued on 19 June 2013 which contained the following paragraph –
“4. That the parenting issues will be limited to:
a. pick up times;
b. drop off times; and
c. changeover points.”
The parties have also been unable to agree on how to divide their property.
I will deal firstly with the parenting issues.
Section 60CA
In deciding whether to make a particular parenting order in relation to a child – section 60CA of the Family Law Act 1975 mandates that a Court must regard the best interests of the child as the paramount consideration.
The statute then goes on to state in s.60CC how it is that a Court is to determine what is in a child’s best interests.
The Primary Considerations – Section 60CC(2)
Section 60CC(2) states:-
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
It is apparent from the evidence of the parents and the evidence of Mr F that there are benefits to the children in having a meaningful relationship with both the mother and the father in this case.
As to s.60CC(2)(b) – there was some evidence in relation to family violence. There are two particular instances to which I will refer. Both the mother and the father gave evidence about these instances.
On one occasion when the family was living at (omitted) – the mother heard some disturbance or raised voices in one of the bedrooms. When she went into the bedroom the father was walking out of the room. X was in the room also and he was in some distress. The child (X) told his mother that the father had tried to choke or was choking him. The mother took the child and the child Y and left the house and went to a park. The mother and the children were extremely upset. They were sitting in the park crying.
X was so upset about this that he told the school counsellor. X drew a diagram. It is a circle with dots. When one reads the notation on the document it is apparent that the dots are supposed to be X’s tears. The notation on the document (which, quite, apparently was written by the school counsellor) states:-
“X described his feelings as upset and said his tears were hurt and scared tears. Speaking about an incident recently when his dad was angry and rough with him (grabbing by the neck hard enough to hurt and throwing him onto his bed).”
That document with the diagram is dated 11 March 2008. It appears as annexure 9 to the mother’s affidavit which was sworn on 8 July 2013 and filed on 9 July 2013. As part of annexure 9 it is stated to be page 77 of 78.
On the next page of the annexure – stated to be annexure 9 page 78 of 78 on the same affidavit of the mother – there are three stick drawings of three people. Again the document is dated 11 March 2008. And it reads:-
“X 11/3/08
Y, Mum and I are at the park. We’re crying and sad and mum is telling us that she and dad are splitting up.”
In fact the parents remained together and did not separate under one roof until September 2010.
In any event the evidence shows a contemporaneous report by the child (X) to a school counsellor. At that stage X was attending the local (omitted) primary school – (omitted) Primary School.
The father denies that this incident occurred.
I accept the evidence of the mother. I accept that the incident occurred. I find that the father has lied to the Court by denying this incident. It is apparent from the evidence of the mother that the incident related to some disciplinary issue between the father and the child. Obviously the method used by the father to attempt to discipline the child was inappropriate.
I also accept the evidence of the mother concerning an incident which occurred on the day when the father signed an acknowledgment or agreement to the effect that the father would agree to repay to the mother the sum of $27,500. That issue related to money lent by the parties to the paternal grandfather, Mr M. The document which has been signed by the mother and father is dated 20 May 2011. It is annexure 8 – page 69 of 78 of the mother’s trial affidavit filed 9 July 2013. I note the statement made by the mother to the Queensland police. This statement is dated 22 May 2011. It is exhibit 1 in the proceedings. During evidence on 8 August 2013 the mother specifically put this incident to the father.
The father also denied this incident occurred. I do not accept the father’s evidence in relation to this issue. I find that he has lied to the Court in relation to this issue. I accept the mother’s evidence in relation to this issue.
In assessing the credibility of the mother and the father – I had the opportunity to assess carefully both the mother and the father whilst they gave their evidence on 7 and 8 August 2013.
I note that May 2011 was the date when the parties ceased residing at the same residence. I note and accept the evidence of the mother that at that time the mother had been living in a separate part of the house.
I do not accept the father’s evidence that he only signed the acknowledgment or agreement of debt because the mother had threatened him with domestic violence proceedings.
I reject the father’s evidence in relation to that issue.
On the two occasions that I have outlined above – the father clearly lost his temper to a significant degree and the children and the mother were witnesses to and, indeed, victims of family violence.
Of great concern to the Court are the father’s attempts to deny what actually occurred.
The mother made a very serious further allegation against the father concerning the drugging of the mother by the father leading to sexual assault by the father of the mother.
These matters were specifically put to the father. The mother recalls one evening when the parties were drinking wine. The mother saw the father with a thimble full of clear liquid. The mother said to the father “What are you doing?”. The mother could see that he was putting this liquid into her wine. The father denied any wrongdoing. The mother had noticed – over several years that, on occasions, the wine that she had been drinking may have tasted somewhat strange. The mother also noticed that she, on occasions, would completely forget what had happened the night before – but noticed that she had engaged in sexual intercourse. She had no recollection of engaging in the sexual intercourse. She was concerned about this and it was not until she saw the father with the thimble full of clear liquid that, she says, it dawned on her that the father may well have been drugging her over a period of time.
The father himself says that there were occasions when the parties would drink alcohol to excess and then engage in sexual intercourse. He put it all down to the consumption of alcohol by both he and the mother.
For the Court to make a finding against the father in relation to these allegations by the mother, the Court would need to be satisfied to a sufficient standard. Section 140 of the Evidence Act 1995 (Cth) states:-
“140. Civil proceedings: standard of proof
(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 that the 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 proceedings; and
(c) the gravity of the matters alleged.”
In the annotated version of the Commonwealth Evidence Act entitled – “Uniform Evidence Law 9th Edition” the learned author Stephen Odgers has noted at page 793:-
“In applying the civil standard of proof, it is appropriate to take into account the factors listed in s.140(2). One of those factors is “the gravity of the matters alleged.” In an often quoted passage, Dixon J stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362:
“[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.”
Dixon J stated further in Briginshaw (supra) at page 362:-
“In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
These well-known statements of Dixon J have become known as the “Briginshaw Scale” or the “Briginshaw Standard”. The allegations made by the mother against the father do, indeed, involve “grave moral delinquency” by the father – if proven to the requisite standard.
I have come to the conclusion that the state of the evidence is not such that I am prepared to make a finding against the father in relation to this issue. In the absence of some form of medical or scientific evidence to support the mother’s contentions or suspicions – I do not consider that the Court is in a position to make the findings sought by the mother. I am well aware that I have already made findings that the father lacks credibility as a witness. I have also, essentially made findings that the evidence of the mother is to be preferred to the evidence of the father where there is a conflict between their testimony. But the gravity of the matters alleged by the mother against the father concerning this issue are so severe that I have come to the conclusion that the evidence is not sufficiently persuasive for the Court to reach the conclusions suggested by the mother.
As noted, I have made two findings of concerning family violence against the father. It is apparent that both of those instances occurred during extremely stressful periods of the marriage. This does not in any way excuse the father’s appalling behaviour.
But I do also note that the children both have expressed wishes to spend time with the father. Mr F recommends that the children spend time with the father. I have come to the conclusion that it is in the best interests of the children to spend time with the father notwithstanding the fact that those instances of family violence occurred.
I note that the mother is also of the view – in the best interests of the children – that they should spend time with their father – notwithstanding what had previously occurred (as outlined above).
Section 60CC(3)(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 views.
I note that X told Mr F that he is involved in Scouts, Karate and would like to be involved in debating in school. He finds his school work fairly easy and likes to use computers and is interested in technology. He said that the parents separation did not come as a surprise to him because he had seen and heard them arguing. X told Mr F that his mother does not ever talk to this father and the parents do not talk over the telephone. I note the following evidence from Mr F concerning his discussions with X:-
“67. I asked him what he might like to wish for his family if he could have three wishes and he replied, “We wouldn’t argue about money because we would have all the money in the world. Probably that we just change it so if I wanted to go to Dad’s I could say oh yeah, we are going to go”.
68. He spoke about seeing his father every second weekend and at times during the holidays. He said that he gets no say about when he gets to see his father and he would like to be able to have some say about this. I talked about how parents can make arrangements and then change their minds. I asked him what he thought it might be like if his parents decided to keep things much as they are, so that he sees his father every alternate weekend from Saturday to Sunday. He said, “Fine. It’s okay but it would be good to just choose which weekends and stuff. I’m trying to get a job soon.” I talked about the idea of spending more time with his father such as having a week with his father and week with his mother. I asked him what it would be like if his parents decided to try such an arrangement and he replied, “Not the best. Dad is not so good at getting us to school.” He was smiling as he said this. He said, “He would do his best, but it is not the same.” I talked about the idea of spending a bit longer on weekends with his Dad so as to go perhaps from Friday to Sunday when he goes over there. I asked what he thought that might be like and he said, “Yeah, it’d be okay.” He spoke again about the idea of being able to choose when he can to go to his father.
69. I asked him about how he gets from his mother’s place to father’s place. He told me that he gets collected at a police station. I asked him why and he said, “I don’t know. There is a car park next to the police station”.”
Y’s comments to Mr F are contained in paragraphs 76 and 77 of Mr F’s report. That evidence is as follows:-
“76. I talked about the arrangements she has in place with her father. I talked about how sometimes parents change their minds about these things but sometimes the arrangements stay the same. I asked what might be like if Mum and Dad decided to change things a bit with the arrangements and she said, “I would like it if I could spend half of my time with Dad and half of my time with Mum. But seeing Dad less, I wouldn’t like it.” I talked about how sometimes parents decide to keep things as they are and I asked her what she thought it might be like for her if her mother and father decided that nothing would change. She said, “I don’t like it like this. I don’t really see Dad that much. I would like to at least see him Friday to Monday.” I talked about the idea of children spending longer blocks of holidays between mothers and fathers and I asked what it would be like if she could have half of the Christmas holidays with her father. She said, “That would be pretty cool.”
77. I asked her if she worried much about these arrangements and her mother and father deciding things. She said, “Only sometimes. Like not seeing Dad as much.” She told me that she speaks with her father on the telephone, when he calls. She can also telephone her father if she wants to.”
X is certainly old enough to have his views given close consideration. I do consider that there needs to be some definite orders in place. There has been such a lack of communication between these parents that – it would be unfair on the children to leave uncertainty in the orders.
My general impression from the comments made by the children (as recorded in the report of Mr F) is that the children would quite like to spend a bit more time with their father. Unfortunately, the father doesn’t seem to be able to get his act together sufficiently to make this happen.
Section 60CC(3)(b) – the nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
It is apparent that the children have a close and loving relationship with each parent. The children are particularly close to their mother. Having said that – they also clearly love their father.
The children have a loving relationship also with their maternal grandmother. The children both also seem to have a good relationship with the father’s new partner, Ms H.
Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child.
The mother has taken all opportunities to be involved in the children’s lives as outlined in this subsection.
On the other hand, the father, whilst wanting to be involved in the children’s lives – to some extent – has not, in my view, taken all reasonable opportunities to spend time with the children. That is very apparent from his unwillingness to agree to have the children spend time with him for one night with him in the off week.
Section 60CC(3)(ca) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
There does not appear to be any particular issue in relation to this subsection. There have been ongoing child support disputes between the parents – but that is not particularly unusual in family law litigation situations.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
There are no contemplated significant changes in the children’s circumstances. The father – at one stage during the hearing – commented that he was considering applying to amend his case so that the children might live with him – making references to the mother’s reactive depression. These comments by the father were not well thought through. He did not apply to amend his case. He does not have the ability to care for the children full time. He does not have the organisational skills to organise the children to and from school. The children do not want to live full time with the father. There is no health issue on the mother’s part that would in any way prevent her continuing as the primary carer for the children. In any event, it would be apparent that I have concluded that it would not – even if the father had sought leave to amend his case – be in the best interests of the children to either allow the father to amend at such a late stage and nor would it have been in the best interests of the children to change their primary residence.
Section 60CC(3)(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.
There are no particular practical difficulties and expenses related to the children spending time with the parents. The parents live at (omitted) and (omitted) respectively. The mother may move – but it is her intention that the children would remain at their same schools. The mother will not therefore be moving particularly far. I do not consider it appropriate that any order be made restricting the movement of the parents in relation to their residences. Such an order was sought by the father.
Section 60CC(3)(f) – the capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
Both parents have the capacity to provide for the needs of the children including their emotional and intellectual needs.
Section 60CC(3)(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.
There are no particular findings relevant under this subsection in this case.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:
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
the likely impact any proposed parenting order under this part will have on that right.
Section 60CC(3)(h) is not relevant in this case and nor is s.60CC(6).
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother definitely has an appropriate attitude to the children and to the responsibilities of parenthood and this is been demonstrated by her actions since they were born.
On occasions, some of the father’s actions have been less than appropriate. I have made reference to some instances of family violence. The father’s unwillingness to have the children come and spend time with him in the off week (when they clearly would like to spend a bit more time with him) does not, in my view, evidence an optimum attitude by the father towards the responsibilities of parenthood.
In relation to the family violence issues referred to in s.60CC(3)(j) and (k) – I have already fully canvassed the issue of family violence when having regard to s.60CC(2)(b).
Section 60CC(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 child.
The Court will attempt to put in place orders which provide certainty for these parents. That is why there will be definite orders concerning alternate weekend time and holiday time. I have also come to the conclusion that the mother’s proposal concerning Christmas time is appropriate. It will provide certainty for the children. It will allow both children to spend time with each parent on Christmas Day.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
The mother has been the children’s primary carer since they were born. Since separation the children have lived primarily with the mother. The mother looks after all of their needs including cooking, cleaning, washing, ironing and ensuring that the children participate in extracurricular activities. The mother also ensures that the children have regular health and dental check-ups – and counselling as required.
The current parenting arrangement is such that the children are only spending one night per fortnight with the father – being a Saturday night. This arrangement commenced in January 2012. Prior to that time – I accept the evidence of the mother – to the effect that the father only spent time with the children on an infrequent basis after the separation.
In relation to the parties’ proposals for parenting – the mother would like to see the father collect the children from after school Friday and for the children to remain with the father until 6:30pm on Sunday – on the alternate weekends.
The father is happy for the Sunday afternoon changeover to occur at 6:30pm. Concerning the Friday pickup though the father prefers a 5:30pm pick up at a place partway between the parents residences (namely (omitted) (the mother) and (omitted) (the father)).
The father maintains that his employment is such that – he is uncertain of the time he may be available to pick the children up on the alternate Friday afternoon. Accordingly he says that he would be unable to collect the children from school.
I note that the father has used a similar argument to seek to avoid an order that would require him to spend time with the children in the off week. The mother had been hoping for an order that would require the father to spend time with the children in the off week from Thursday after school until Friday before school. The father – once again – maintains that his employment situation was such that it would make such an arrangement difficult for him.
The father’s evidence and explanation concerning his employment was vague. Indeed, the explanation that he did provide seemed to indicate that his work arrangements were flexible. In any event I have come to the conclusion that it is not appropriate to make an order requiring the father to spend time with the children in the off week – if he does not wish to do so. I do not consider that such an order would be in the best interests of the children because it may well become apparent to the children that the father is only spending time with them in the off week – because he has been ordered to do so by the Court.
However, concerning the alternate weekend arrangement – I do think that the father must – in the best interests of the children – take some appropriate steps to ensure that he is available on a Friday afternoon to collect the children after school. I note that there are several possibilities. I note that the child, Y, who is in grade 5 at the (omitted) Primary school situated at (omitted) – should be able to access after school care. The father will need to make those arrangements and the father will need to pay for such after school care. X is in grade 8 at (omitted) College. X will be able to get the train from his school back to the (omitted) school and meet his sister Y and the father at the (omitted) school on a Friday afternoon.
This proposal put forward by the mother is appropriate and child focused. I consider that such a proposal is in the best interests of the children. However, the order that I will make is that the father must collect the children from after school Friday. If the father then wishes to make the type of arrangement as outlined above – that is a matter for him. If he wants to access after school care – then (as noted) he will have to make those arrangements and pay for the after school care.
It will be seen that I have rejected the father’s argument that changeovers on a Friday afternoon should take place at a midway point between (omitted) and (omitted) at 5:30pm. In my view it is in the best interests of the children that changeovers occur on a Friday after school. It will minimise contact between the parents. This is in the best interests of the children – having regard to the quite significant animosity between these two parents.
On a Sunday afternoon the mother has proposed the church adjacent to the (omitted) school at (omitted) at 6:30pm as the changeover point. The mother says that she will be present at the church to collect the children. The mother says that there should be other parishioners nearby – because there is a Sunday Mass that will take place at that church at or around that time. This is a reasonable proposal. Given that the children live primarily with the mother and during those times the mother is required to take all necessary steps to fully provide for the children (in relation to their school activities and extracurricular etc.) I do not consider it unreasonable for the changeover on a Sunday afternoon to also occur at the (omitted) school – or to be more particular at the church which is adjacent to the school situated at (omitted).
In relation to holiday time – the mother seeks an order that would require the children to spend time with the father for one half of each school holiday period. The mother seeks that such an order would stipulate that the children spend the first half of each holiday period with the father.
The father seeks an order that the children spend up to four weeks of holiday time with the father each year – provided the father gives notice in relation to such holiday time. The father points to comments made by the family report writer and also to his work situation.
One half of all school holiday time for the year would only amount to approximately six weeks in any event. The parents in this case need certainty. I accept the mother’s evidence that the father’s approach to holiday time leaves the children in a very uncertain situation. In my view – this is unfair on the children. The children should be entitled to know with certainty at the beginning of each year where exactly they will be spending their holiday time. These parties have been unable to agree on many issues. They have required the Court’s intervention. It is highly likely that if an order were made as requested by the father concerning holiday time – that the matter would return to Court because the parties would be unable to agree. In my view, the proposal put forward by the mother is in the best interests of the children. I have no doubt that the father will be able to make appropriate arrangements for the care of the children during holiday time – if he is not available to do so himself. I have already noted that the father’s work arrangements are, in fact, on a close examination, quite flexible.
There should also be a non-denigration clause in the orders and orders that provide for Mother’s Day time with the mother and Father’s Day time with the father. Also, there should be an order that the parents communicate via email or text message. The parents should both be able to spend some time with the children on the children’s birthdays. Both children should attend on both occasions.
I have also come to the conclusion that the parties in this case should enrol and complete the parenting orders program. They have significant difficulty communicating. I have come to that conclusion after listening to the parties in Court for over one and a half days. I note paragraph 90 of the family report of Mr F (exhibit 8). He noted that the biggest risk to the children relates to the children being exposed to ongoing parental conflict. I also note some more of Mr F’s comments from that paragraph:-
“90. …. The Court can impose mechanisms within orders to assist the children in this regard, by providing more certainty when it comes to the weekend and holiday arrangements as well as for the sharing of special events. To do so, removes doubt and the need for the parents to struggle to negotiate these arrangements. It appears to me, when they do so, the children become at risk of being embroiled in the issues at hand. Furthermore, the Court may require the parents to communicate with one another in a certain way that protects the children. They may also benefit from some psycho-education to assist them to learn ways of communicating with one another in a more productive fashion.”
I accept this evidence of Mr F.
In my view – noting the age of these children – both parents should be responsible for taking the children to extracurricular activities when the children are spending time with that parent. It is not reasonable (for instance) for a teenager such as X to miss out on sporting events or other extracurricular activities – because one parent (in this case the father) may not have been particularly interested in transporting the child to extracurricular activities. In my view – it is in the best interests of the children for them to participate in extracurricular activities. Having said that – I did comment during the hearing – and I confirm in these reasons for judgment – it would not be appropriate for the mother to book up the father’s entire weekend requiring him to take the children to extracurricular activities.
Section 61DA
There will be an order for equal shared parental responsibility. There will be an order that the parents must attempt to agree in relation to important long term decisions for the children. If they are not able to agree the parents must attend mediation. I note that I have earlier made findings in relation to family violence. In the particular circumstances of this case – the presumption of equal shared parental responsibility would be rebutted by the findings of family violence. However I still consider that an order for equal shared parental responsibility is appropriate and is in the best interests of the children. Notwithstanding the findings of family violence and notwithstanding the difficult issues regarding communication between the parents in this case – it is, in my view, apparent that both children have a close and loving relationship with each parent. The children, in fact, want to spend more time with their father. In the circumstances of this case I think than an order for equal shared parental responsibility is appropriate.
Section 65DAA
Equal time is not in the best interests of the children. I note the evidence of Mr F. I note the extremely poor communication skills between the parents. I note that Mr F recommends that the children spend time with the father on each alternate weekend. I note that the father does not seek anything other than that.
I do note that it would possibly be reasonably practicable from the point of view of the fact that the parents live reasonably close together. But there are other issues – relating to the father’s apparent inability to organise the children to such an extent to have them at school on time. I note X’s comments to the report writer in this regard.
The orders contemplated do, in my view, come within the definition of substantial and significant time under s.65DAA. It is both in the children’s best interests and reasonably practicable within the parenting orders framework as anticipated.
Property
The husband put forward a document which indicates that he has just over $3,000 in a bank account. I have not included that amount in the pool – because there is no evidence of the wife’s bank account. It would not be equitable to include one party’s current bank account and not the other party’s.
The husband maintains that he owes money to the tax office. From his evidence – it appears that he owes money to the Australian Taxation Office in respect of obligations which arose post separation. The wife also owes some tax (according to her evidence).
The wife does not have any estimate of the amount of tax that she owes. The husband gave a verbal estimate of how much tax he thinks he owes for the 2012/2013 taxation years. In my view the husband’s estimates are not amounts that should be taken into account as liabilities in the property pool. The husband could have obtained an accountant to calculate his taxation liabilities. In any event I note that it ought to be the husband who is responsible for his own tax debts – especially post separation. Further the wife should be responsible for her own tax liabilities – especially post separation. For those reasons there will be no taxation liabilities included in the property pool.
In Stanford v Stanford [2012] HCA 52 – the High Court of Australia – when referring to s.79 of the Family Law Act 1975 indicated that a Court should first turn its mind to the question as to whether or not it is just and equitable to make an order. Accordingly – the High Court has indicated that this is the first matter for consideration. The High Court shed light on their reasoning in paragraph 43 of the decision in Stanford (supra). In that paragraph the High Court stated:-
“42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).”
In the present case – the parties separated on a final basis under the one roof in September 2010. The parties stopped living at the same residence in May 2011. The husband and wife have most definitely separated on a final basis. The husband and the wife are no longer living in a marital relationship. In this case it will be just and equitable to make a property settlement order. In this case “there is not and will not thereafter be the common use of property” by the husband and the wife.
Accordingly, it is just and equitable to make an order. The Court must then determine which order should be made and include also a consideration of whether it is appropriate to make “the order” contemplated.
To a large extent the process (formerly known as the four step process) is still applicable.
As to the first step – it is convenient and helpful and include the High Court’s comments from their decision in Stanford (supra):-
““36. The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition[21]. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules"[22], nevertheless, three fundamental propositions must not be obscured.”
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed[23] that a power[24] to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong[25]:
"The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down".
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law"[26]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses"[27]. The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down"[28]. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”
The first step is to ascertain the pool of property. Many of the items in the property pool in this case are essentially agreed between the parties. I have already made some findings concerning tax debts. There are some disputes. It is appropriate for superannuation and non-superannuation assets to be included in the one pool in this case. I find that the property pool in this case is as follows:-
Proceeds of sale of the house situation at Property V, Queensland
Joint
$233,496.30
(omitted) motor vehicle
Husband
$15,000.00
Camper Trailer
Husband
$3,000.00
Boat Trailer
Husband
$600.00
Chattels
Wife
$2,500.00
Chattels
Husband
$2,500.00
Superannuation
Wife
$7,298.00
Superannuation
Husband
$121, 159.23
(omitted) Shares
Wife
$1,270.00
(omitted) Shares
Husband
$3,870.00
TOTAL
$390,693.53
In relation to the (vehicle omitted), the Camper Trailer, the Boat Trailer and the chattels of the husband – the amounts stated have been included because they are the amounts which the husband admits that those items are worth. There is no expert valuation evidence concerning those items.
Similarly, in relation to the wife’s chattels – the wife concedes that her chattels are worth $2,500 and that amount should be included.
The parties had queried whether or not there should be an addback into the pool of $80,000 because of cash withdrawn by both of them in the sum of $40,000 each.
The parties, from the evidence, used the money in question to fund their living expenses and to purchase essential items. Whilst it is the case that the wife purchased a motor vehicle with the money and also has retained some of the money in a bank account – I have come to the conclusion that an equitable approach when considering the property pool is to decline to include in the pool any of the items purchased by either the husband or the wife with the cash that they both received (namely $40,000 each). There wasn’t any particular argument from the parties concerning that approach.
The High Court in the decision of Stanford (supra) particularly highlighted the word “existing” in paragraph 37 which has been quoted above. That is – “the existing legal and equitable interest of the parties in the property”. I gained the impression from the evidence in this case – to a large extent – the $40,000 received by each party was utilised for the purpose of living expenses. In that sense the funds no longer “exist”. On the authority of Stanford (supra) and noting comments made by Murphy J in Watson & Ling (2013) FamCA 57 and comments made by Young J in Sebastian & Sebastian (No.5) (2013) FamCA 191 (especially from paragraph 798) – the amounts received by the parties in the sum of $40,000 each ought not be added back into the property pool.
In any event – there was no valuation evidence concerning the wife’s motor vehicle and no evidence of her current bank balance. It will be noted from my comments earlier that – in any event – I have concluded that it would not be equitable to include in the pool any item of property the wife may have acquired with part of the sum that she received – if there is not going to be an equal examination of items purchased by the husband with the money to determine whether or not any of his items purchased should be included in the pool. The parties were – practically entirely – silent in relation to what had happened with the money that they received. Certainly there was no clear evidence on amounts or valuations of items of property that may have been purchased with the money. In all the circumstances I consider that the appropriate approach in this instance is not to include the cash amounts ($40,000 each) in the property pool and I have also concluded that it is not appropriate to include any items purchased by the parties with that money in the property pool. I do not consider that either party has been completely candid with the Court in relation to what they did or did not purchase with the cash amounts of $40,000. In so far as the husband is concerned – in answer to a question by the Court – he answered that he had spent the money in paying child support. Having regard to other evidence concerning the amount of child support paid by the husband – his answer is plainly untrue.
The husband had sought to have included in the property pool an amount of $1,300 relating to rent. That item could only relate to a question of contributions. It is not a “pool” issue.
The wife is the recipient of a particular superannuation policy which is paying to her approximately $3,500 per year. This pension is therefore in the payment phase. It is part of the (omitted) Superannuation Scheme. Exhibit 4 notes that the (omitted) pension is payable for the wife’s lifetime. That exhibit is in fact a letter dated 7 August 2013 from the “(omitted) Superannuation Scheme”. The letter states further:-
“This pension cannot be reverted to a lump sum, and must continue to be paid as a fortnightly pension.”
In my view this type of pension is similar in some respects to pensions which have been considered in earlier cases. In particular some members of the military are entitled to a pension known as a DFRDB pension. Like the DFRDB pension – the pension received by the wife in this case is in its payment phase – once in its payment phase it cannot be commuted to a lump sum. It is the case that the applicable regulations to the Family Law Act dealing with superannuation require a formula to be applied. When the formula is applied the total amount calculated in respect of this pension to which the wife is entitled is $74,357. But it is not a capital sum. It can never be capital. To quote Coleman J in Cahill & Cahill (2006) FLC 93-253 at paragraph 77:-
“To apportion ($74,357) as if it were an asset would be an exercise in artificiality no matter how it was approached. If one had regard to it and if one concluded that the (husband’s) entitlement was any significant percentage that would be, in the Court’s view, grossly unjust so far as the (wife) was concerned.”
In the passage above I have included the words wife and husband as appropriate to this current case before the Court. I also note and rely upon the comments made by Coleman J at paragraph 81 of the decision in Cahill (supra) – to the effect that the Court is not obliged to make a contribution entitlement finding in respect of this kind of pension.
The wife does have a guaranteed income stream of approximately $3,500 per annum. It is not a substantial amount of money. It will, however, be taken into account within the context of s.75(2) later in this process.
The wife maintains that the parties lent to the paternal grandfather two separate amounts of money. The first amount was lent in 2006 in the sum of $40,000. The next amount that was lent was in 2009.
Annexures 11(b), 11(c) and 11(d) of the husband’s affidavit filed 10 July 2013 – seemed to refer to the transfer of the initial $40,000 from the parties to Mr M in 2006. The date is in fact 11 December 2006. I accept the wife’s explanation as to why the particular words were used as the reference – namely “(omitted) Shares” and “(omitted) Shares”.
In relation to the first amount of money the wife agreed that the parties could loan that money to the paternal grandfather – essentially to help him with his business.
In relation to the second amount of money the wife maintains that she did not agree that the money should be lent to the paternal grandfather and that the husband – contrary to her wishes – withdrew the sum of $38,000 from the parties’ home loan and lent it to the paternal grandfather.
Both the father (Mr Walton) and the paternal grandfather (Mr M) maintain that the sums of money forwarded to the paternal grandfather were meant to be an investment in two separate companies namely (omitted) Pty Ltd and (omitted) Pty Ltd.
I had the opportunity to observe the wife, the husband and the paternal grandfather give evidence in relation to these issues. I accept the evidence of the wife. I reject the evidence of the husband (Mr Walton) and I reject the evidence of Mr M in relation to these issues.
Mr M says that he was the victim of a fraud perpetrated by other persons. In particular he made mention of an individual whose surname is (omitted). This may well be the case.
The wife essentially maintains that after it became apparent that the paternal grandfather was not going to be able to repay the parties – he gave to the parties the (omitted) motor vehicle (apparently then worth approximately $30,000) and he gave to the parties approximately $10,000 – which was said to represent assistance in the payment of school fees for the two children of the marriage.
The paternal grandfather (and the husband) seem to maintain that the (omitted) motor vehicle was in fact given to the parties. That much was conceded by the paternal grandfather in the witness box. But he then proceeded to give evidence that would indicate that he now expected to be repaid some funds in respect of the (omitted) motor vehicle which he had “given” to the parties. I must say – the paternal grandfather’s evidence in relation to these issues was vague, uncertain, confusing, and, frankly, incredible – I refer (for example) to paragraph 13 of the affidavit of Mr M filed 10 July 2013.
The paternal grandfather seemed to be saying that after the initial “investment” (as he termed it) by the parties in a company known as (omitted) Pty Ltd – because of a fraud perpetrated by (omitted) – that company had gone broke. The paternal grandfather had felt bad and had given the (omitted) motor vehicle and $10,000 to the parties. Mr M then went on to say that because things had not gone well in respect of the parties’ “investment” in the (omitted) Pty Ltd – he wanted to do the parties a good turn by getting them to invest in (omitted) Pty Ltd – and so he arranged for the parties to “invest” in that company. A document purporting to be a share certificate in (omitted) Pty Ltd was produced to the Court. (Note annexure 11(a) of the husband’s affidavit filed 10 July 2013). I accept the wife’s version that she had not seen that document until 2012. I am not satisfied in any way that the document itself is legitimate. The party or parties responsible for producing the document were not called as witnesses.
To continue with the incredible evidence of Mr M – the “good turn” that he says he was seeking to assist the parties with – once again turned into a disaster. The individual involved in (omitted) Pty Ltd – according to Mr M – disappeared. I infer that Mr M was possibly – again – the victim of a fraudulent enterprise.
Incredibly, the version put forward by the husband and his father (Mr M) would have the Court believe that the parties in this case should be repaying money – from the property pool – to Mr M. I reject any such contention by the husband (or his father).
There is no credible evidence whatsoever to the effect that Mr M had lent money to the parties. There is no credible evidence that Mr M is owed any money by the parties. To the extent that the husband considers – in some way – money is owed to Mr M – that is a matter for the husband and he will have to be responsible to pay any money that he sees fit to Mr M – from the husband’s own share of the property pool.
Mr M had maintained that he was owed money by the parties in respect of various sums allegedly forwarded to the parties over time. There is no evidence of any agreements to repay any funds that may have been forwarded by Mr M to the parties over time.
There was also a claim by the husband (and his father) to the effect that money was owed by the parties to Mr M in respect of a pool that had been built by Mr M (or his company) in a residence that was owned by the parties at one stage. I am not satisfied that the parties owe Mr M any money in respect of this so called “show pool”. In paragraph 13 of his affidavit filed 10 July 2013 I note that Mr M has stated, inter alia:-
“… and $20,000 approximately is owed, due to a show pool being sold before it could be used.”
The husband maintained in evidence that the pool in fact cost $65,000 – but that only $20,000 would have to be repaid to the paternal grandfather because he (the husband) had performed work in and around the pool and he therefore deduced or concluded that only $20,000 should be paid to Mr M. Once again this is pure fantasy on the part of the husband and Mr M. There is no credible evidence whatsoever that would allow the Court to conclude that the parties in any way owe Mr M any money in relation to a pool that either he or his company may have built in premises that were at one stage owned by the parties.
To the extent that there is any conflict in the evidence given by the wife (on the one hand) and the husband and the paternal grandfather (on the other hand) – I accept the evidence of the wife.
Contributions
There is no question that the husband has worked hard throughout the marriage. It seems that he has worked primarily for his father – either in a personal capacity or for companies owned by his father. Further, he has done subcontracting work for or on behalf of his father’s companies. The wife concedes that the husband has worked hard and he provided his income for the benefit of the family. The husband seems to be earning about $70,000 per annum.
The wife was the primary homemaker. She worked outside of the home for a salary prior to the birth of the first child.
The wife also did some paid work outside the home after the birth of the children.
The husband did outside work at home and some amounts of homemaking – especially during the period of time when the wife was being treated for cancer in 1999 following the birth of the parties’ first child.
I reject any contention that the wife was unkind or harsh in respect of the husband’s two older children. The photographs which are in evidence before the Court certainly seem to confirm the wife’s version of events.
I accept that the wife contributed at the outset $30,000 by way of cash (apparently from the sale of an earlier property) and $2,000 from the sale of a car.
The husband made an initial contribution from a motorcycle sale which was worth approximately $9,500-$15,000. The husband also withdrew a long service leave entitlement which seems to be in the vicinity of $6,000-$8,000.
The husband has built up a reasonably large sum in respect of superannuation (approximately $120,000 as noted in the pool).
The parties were together for approximately 13-14 years.
In an affidavit filed 16 October 2012 the husband in paragraph 21 set out what he says were his initial contributions. I accept that it is highly likely that he did have superannuation of approximately $30,000 at the commencement of the relationship. I do note there is no documentary evidence to support any of the items listed there – but nor is there documentary evidence to confirm that the wife had $30,000 at the commencement of the relationship. It may well be that the husband had $10,000 – or $20,000 more than the wife at the commencement of the relationship. In any event – in my view – it will not make a great deal of difference in the overall assessment of contributions.
I have come to the conclusion that the contributions based entitlements of the parties up until the date of the final hearing should be assessed as equal. I note in this regard the husband’s superannuation may well have increased since the time of separation – but I also note that the wife has had the primary care of the two children.
I do note that the husband has paid child support – but I also note that there has been a long running dispute between the parents in relation to the child support assessment situation.
Section 75(2) Factors
I noted earlier that the wife was diagnosed with breast cancer in 1999. Luckily she recovered from that episode.
The wife had a breast cancer scare earlier in 2013. Luckily that has not lead to a further diagnosis of cancer. However I do note the medical evidence contained in exhibit 7 in these proceedings. I also note annexure (f) to the affidavit of Ms Walton (the wife) filed 31 July 2013. That is a document dated 11 July 2013 which has been written by a medical specialist from the (omitted) Hospital – Dr I. That doctor has noted:-
“In summary, Ms Walton has required active surgical surveillance for new and established breast changes and is at increased risk of recurrent breast cancer or non-primary breast cancer. She will need ongoing review regarding surveillance at the (omitted) Hospital.”
I also note that the wife has been diagnosed with reactive depression. In this regard I note annexures 17(a), (b) and (c) of the husband’s affidavit filed 10 July 2013.
I note that the husband himself suffered an injury when he was badly assaulted in January 2013. In particular the husband seems to have suffered an injury to his left leg. There is no evidence that the husband has suffered any permanent disability as a result of the injuries. I note that the husband continues to work – and he did not give any indication to the Court that he might not be able to continue to work.
It seems that the husband income is in the vicinity of $70,000 per annum and the wife’s income is in the vicinity of $25,000-$30,000 per annum.
So there is a significant difference in the parties’ earning capacities. Further, I note that the wife has the full time care of the two children. In addition, I note the wife’s health issues.
I also have taken into account the fact that the wife will continue to receive $3,500 per year from the (omitted) Superannuation pension to which I have referred.
The wife is currently renting premises in (omitted). The wife indicated to the Court that she will seek to purchase a property for her and the children to live in. This will of course require capital and relatively significant expense.
The husband lives in a new relationship with Ms H in a property owned by Ms H in (omitted). Ms H pays the mortgage on the property and the other outgoings. The husband is not required to pay for anything other than groceries – and perhaps another small amount by way of board.
I have come to the conclusion that the s.75(2) factors favour the wife. I have come to the conclusion that there should be an uplift of 15% in favour of the wife.
Conclusion
That means there should be a division of the parties’ property 65% in favour of the wife and 35% in favour of the husband.
Whilst not dealing with an identical pool – I do note that the husband had contended for a 65/35 split but the wife had contended for a 70/30 split. Both submissions had the higher apportionment in favour of the wife.
I have come to the conclusion there is no need in this case for there to be identified a separate pool for superannuation. The lion’s share of the husband’s superannuation was accumulated after the time that the parties commenced cohabitation.
Justice and Equity
In my view the proposed property adjustment is just and equitable. In particular I note:
a)The wife will need to find accommodation for herself and the children;
b)The wife has an increased risk of breast cancer as noted by the medical specialist Dr I;
c)The husband lives in accommodation provided for him by his partner – with very few outgoings on the part of the husband;
d)Whilst the husband does pay child support – it is not significant and it will reduce once the particular medical items for orthodontic treatment etc. are deleted;
e)The husband’s earning capacity is significantly higher than the wife;
f)The percentage split referred to above – which will form the basis of the property adjustment order – is reasonably similar to the submissions made by the parties. I do concede that some aspects of the property pool are different to what the parties contended;
g)For the reasons included here and for all the reasons contained in these reasons for judgment – I have come to the conclusion that the proposed property adjustment order is just and equitable.
I will allow the parties time to attempt to reach an agreement in relation to the final wording of the property orders. In the absence of an agreement the matter will be relisted.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 8 October 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Abuse of Process
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