WARE & HARLEY
[2017] FCCA 1405
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARE & HARLEY | [2017] FCCA 1405 |
| Catchwords: FAMILY LAW – Property – de facto relationship of approximately nine years – two dependent children who live with the mother – where father is a bankrupt for a period of time – mother retain former matrimonial home – mother retain own superannuation – father retain remaining real property – mother’s future needs with children significant. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 62G, 68L, 106A |
| Applicant: | MS WARE |
| Respondent: | MR HARLEY |
| File Number: | AYC 203 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 6, 7, 8 & 9 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gates |
| Solicitors for the Applicant: | Griese Lawyers |
| The Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Ms Glaister |
| Solicitors for the Independent Children's Lawyer: | Rama Myers Family Lawyers |
THE COURT ORDERS THAT:
PARENTING
The mother have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2008 (‘the children’).
The children live with the mother.
That within three months of this date the father attend upon a psychiatrist for a psychiatric assessment as to his general mental health function including his parenting capacity. The Independent Children’s Lawyer is to nominate such psychiatrist. The psychiatrist is to have available to him or her the family report and its addendum as prepared by Ms J on 31 October 2015 and 8 February 2016 respectively. The costs of such attendance and subsequent report are to be borne by the father. The attendance and report process is to be completed within 6 months of this date.
The psychiatric assessment report as provided for in order 3 above be provided to the Independent Children’s Lawyer and to each of the mother and father.
The father forthwith enrol and complete the Men’s Behaviour Change program offered through (omitted) Community Health as previously ordered (on two occasions) by the Court.
The parties within 14 days hereof do all such acts and things and sign such documents as may be required to facilitate the children spending supervised time with the father, and the father only, at the (omitted) Children's Contact Service (‘the Contact Service’).
The children spend supervised time with the father for a period of six months from the commencement date at the Contact Service each fortnight at times as determined by the Service and with commencement to occur as soon as is practicable. The father is to bear the costs of such supervised time. Supervised time shall not commence until evidence of the completion of the Men’s Behaviour Change program as provided for in order 5 above is provided by the father to the Independent Children’s Lawyer and to the mother.
Following the supervised time spent between the father and the children as provided for in order seven herein, and subject to the father’s compliance with order 3 of the orders made 15 May 2015 and proof of same, the father spend a further period of supervised time with the children being a period of up to six months with a supervisor to be agreed by the parties in writing and failing agreement by a person or persons nominated by the mother. The time spent with shall occur weekly on a Sunday between 10.00am and 5.00pm. During this period of time the father is at liberty to have his extended family members join he and the children. Any supervisor is to provide an undertaking to be filed with the Court prior to such time spent with commencing.
At the expiration of twelve months from this day the children shall spend unsupervised time with the father as follows:-
(a)in week one commencing Saturday at 10.00am until Sunday 5.00pm and each alternate weekend thereafter;
(b)in week two on Thursday from after school to 7.00pm and in each alternate week thereafter;
(c)each school term holidays commencing in the September/October 2018 school term holidays and excluding the Christmas/January school holidays, for three consecutive days in addition to the continuation of (a) and (b) above;
(d)from 3.00pm Christmas Day to 3.00pm Boxing Day in 2018 and each year thereafter;
(e)in the January school holiday period from 12noon on the first Saturday after or on the 3 January until 12noon the following Saturday commencing 2019;
(f)in the January school holiday period from 12noon on the second last Saturday of the holiday period to 12noon on the last Saturday of the holiday period commencing 2019;
(g)by telephone each Wednesday between 6.00pm and 6.30pm with the father to initiate the call; and
(h)otherwise of further by agreement in writing between the parties.
Changeover is to occur inside the (omitted) police station, if the father is not collecting the children from school.
The parties are to advise each other as soon as practicable of any significant illness and/or injury suffered by the children or either of them whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same and receive a copy of any reports prepared in relation to the child or children.
Both parties shall be entitled to receive a copy of all school reports, notices, letters, photograph order forms and correspondence normally provided to parents and shall make their own arrangements with respect thereto.
The parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence and/or hearing of the said children, and from permitting any other person so to do.
There is liberty to apply on short notice in the event the psychiatric assessment of the father does not support supervised time spent with outside the Contact Service.
The mother is to refer to the father as ‘Dad’ when speaking with the children about him and matters related to him.
The appointment of the Independent Children’s Lawyer continue for a period of twelve months from this date, and then be discharged.
PROPERTY
The Applicant have sole occupation of the former matrimonial property situated at and known as Property B in the State of New South Wales and the Respondent is restrained by injunction from attending at, entering into or remaining at, the former matrimonial property.
Within 60 days of the making of these Orders the Respondent pay the Applicant the sum of $123,000.00 (‘the payment’).
Immediately from the making of these orders the Respondent commence to pay all instalments pursuant to the loan with the (omitted) Bank secured by Mortgage No. (omitted) (‘the Property M mortgage’) and pay all rates taxes and like apportionable outgoings of the property known as Property M, in the State of Victoria (‘the Property M property’) more particularly described in Certificate of Title Volume (omitted) Folio (omitted) as they fall due.
The Respondent within 90 days of the making of these orders refinance into his sole name the Property M mortgage and discharge the Applicant from any obligation in respect of the Property M mortgage.
In the event that the payment as per order 18 is made, and the Property M mortgage is discharged or refinanced, the Applicant contemporaneously with her release from any obligation pursuant to the Property M mortgage, do all such things and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent, all of her right title and interest in the Property M property and the Respondent continue to be liable for and indemnify the Applicant against all apportionable rates, taxes and outgoings with respect to the Property M property of whatsoever nature and kind.
In the event that the Respondent defaults in making the payment and/or is unable to refinance the (omitted) mortgage within the time frame stipulated in these orders, then the Respondent sign all documents and do all things necessary to transfer to the Applicant the Property M property to be held on trust for sale (‘the sale’) and upon completion of the sale, the proceeds of the sale be applied in:-
a)payment of agent's commission and advertising expenses and legal expenses of the sale;
b)payment of any money due and owing to the mortgagee;
c)if it remains unpaid, payment of the debt owed by the Respondent to his Trustee in Bankruptcy pursuant to the deed of composition dated 29 July 2015;
d)the net balance thereafter to be divided between the parties as follows:
i)$123,000 together with interest thereon at the rate from time to time prescribed pursuant to the Family Law Rules from the payment date provided for in order 18 above to the Applicant;
ii)the remainder to the Respondent.
Until the sale of the Property M property if required pursuant to these orders, the Respondent pay any council and water rates as they fall due and all regular instalments in respect of the mortgage. If any arrears have accumulated from the making of these orders and are not paid prior to settlement, then the Respondent will make a payment to the Applicant equal to all arrears (of the mortgage, council and water rates) prior to any division of the net balance of the sale proceeds as provided for in order 22 above.
Upon the completion of the transfer or the sale of the Property M property, whichever occurs later and within 30 days thereof:-
a)the Respondent do all such acts and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant all of his right title and interest in the real property situate at and known as Property B in the State of New South Wales (‘Property B’) and being the whole of the land described as Lot (omitted) on Deposited Plan (omitted); and
b)contemporaneously with the transfer, the Applicant refinance the mortgage with (omitted) Pty Ltd Loan Account No. (omitted) (“the mortgage”) over the Property B property into her sole name and indemnify the Respondent against all payments and liability pursuant to the mortgage and all rates taxes and like apportionable outgoings of or with respect to the Property B property of whatsoever nature or kind.
Within 60 days following compliance with the preceding property orders or otherwise with the written consent of the Applicant, the Applicant transfer to the Respondent all of her right title and interest in the following properties:
a)Property O, being the land described in Certificate of Title Volume (omitted) Folio (omitted); and
b)Property G, being the land described in Certificate of Title Volume (omitted) Folio (omitted).
All chattels located at the Property B property are deemed to be the property of the Applicant to be retained by her to the exclusion of the Respondent save as otherwise provided for in orders of the Court.
All chattels located at the Property M property are to be deemed the property of the Respondent to be retained by him to the exclusion of the Applicant save as otherwise provided for in orders of the Court.
The Respondent indemnify the Applicant against any claims, demands, suits or actions arising out of his Bankruptcy including but not limited to the Deed of Composition he entered with his Trustee in Bankruptcy dated 29 July 2015.
The Applicant retain all motor vehicles registered in her name and currently in her possession.
The Respondent within 14 days of these orders is to return the Toyota (omitted) motor vehicle registration number (omitted) registered to the Applicant, to the Applicant.
The Respondent retain all motor vehicles registered in his name or the name of his business entities.
The Applicant and the Respondent retain all their right title and interest in their own superannuation entitlements and forgo any claim that they may have or have had to the superannuation entitlement belonging to or accrued by the other.
The Respondent and Applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
There is liberty to apply with respect to the putting into effect of these property orders.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the mother to employ an advocate.
Otherwise all extant applications are dismissed and the matter removed from the list.
IT IS NOTED that publication of this judgment under the pseudonym Ware & Harley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
AYC 203 of 2014
| MS WARE |
Applicant
And
| MR HARLEY |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to both parenting and property matters. The Applicant mother, Ms Ware, born (omitted) 1969 and now aged 47 years, and the Respondent father, Mr Harley, born (omitted) 1964 and now aged 52 years commenced their relationship whilst both married to other persons and commenced their subsequent cohabitation in around 2001. There is disagreement as to the length of the de facto relationship, the mother claiming the date of separation to be in 2012 and the father claiming the date of separation to be in 2009. Certainly by 2009, the father had commenced a relationship with another woman with whom he was living, on a part time basis, in Melbourne. That relationship with Ms S, persists to this day. The father was rarely at home with the mother and children. He did not however, convey to the mother that the relationship was over. The mother did not consider the relationship had ended until 2012. The father continued a financial relationship with the mother for some years post 2009 including the provision of support for the mother and the children in some manner, until about November 2014. The Court ordered on 15 May 2015 that the de facto relationship commenced “no earlier than 2000” and that separation occurred “no earlier than Easter April 2009”.
There are two children of the relationship, X born (omitted) 2007, now aged ten years (‘X’) and Y born (omitted) 2008, now aged 8 years and nine months (‘Y’) (collectively, ‘the children’). Y has been diagnosed with attention deficit hyperactivity disorder and has some learning and behavioural difficulties. These issues for the child have been comprehensively addressed by the mother in Y’s attendance on various specialists; the mother liaising with the school Y attends to ensure relevant assistance in the learning environment; and by the many activities undertaken by the mother with her son. The mother has acted without input or support from the father, in part because of his far distant geographical location from the mother and children over many years, and in part because he left such decisions entirely within her domain. He accepted then, and acknowledges still, that she is a responsible and caring mother who acts to advance her children’s welfare. He has been content to be absent from the children for large parts of their lives, at least up until the end of 2014, assured in the knowledge that what was necessary to be done for the children would be recognised and attended to by the mother. He described her to Ms J, the family consultant, as a ‘perfect mother’.
By orders of Judge Harman of this Court, dated 3 February 2015, an Independent Children’s Lawyer (‘ICL’) was appointed pursuant to s.68L of the Family Law Act 1975 (Cth) (‘the Act’) to separately represent the children, in these proceedings. On the evidence the real issue for consideration is whether the children spend time with the father, and if so, in what circumstances.
Background and Court orders
During the cohabitation period the parties resided in the (omitted) area in the State of New South Wales. Both parties were externally gainfully employed save those times when the mother took extended maternity leave. At those times she worked in the father’s business. The father was initially a (occupation omitted) but over many years he has acquired significant skills and qualifications in relation to (employments omitted) and other related activities.
The father operated a (omitted) business in Melbourne from 2007 to 2011. This business expanded to include approximately thirty employees he claimed, and required him to be absent from the home for long periods of time. It was a stressful job. In cross-examination, the mother estimated the father spent on average ten days per year with the children in the years 2009-2012. The father’s (omitted) business failed and on 3 December 2014 a sequestration order was made against the father’s estate. In July 2015 the father entered into of a Deed of Composition with his Trustee and the Australian Taxation Office as the other parties to the Deed.
In October 2012, the father relocated to Western Australia with his partner, Ms S. The evidence suggests he may have substantially relocated in 2011. The mother was unaware of this. No evidence from Ms S as to relevant matters was before the Court.
Between 2007 and 2011 the father’s life was mostly lived in Melbourne. His children were then in their infancy. They were afforded no real opportunity to get to know him. The father then lived in Western Australia for approximately three years. He did not see the children after about July 2012. In early 2014, the father informed the mother of his intention to move back into the (omitted) area with Ms S.
The proceedings were initiated by the mother on 23 April 2014. She sought property orders only. The mother then filed an amended initiating application on 15 August 2014 in which she sought both property and parenting orders.
Following the mother initiating these proceedings, on 7 August 2014, the father, still residing in Western Australia and still not served with the mother’s application, left the following voicemail message on the mother’s mobile phone:-
“…
Ms Ware, some fucking mole from (omitted) solicitor just rang me about serving papers on me from the Family Law court. If that’s fucking right you get your fucking shit together cunt and get out of that fucking house because if you ring me back by fucking tonight then I’ll be fucking in (omitted) and I will fucking boot you out of that house as quick as you can spin your fucking head around. Now you fucking ring me tonight or I’m on a fucking plane. And I will fucking rein down on you like nothing you ever fucking seen.
…”[1]
[1] Affidavit sworn by Ms Ware on 20 February 2017 at [W23].
(errors in original.)
The father was duly served. On the first return date after service, the Court ordered until further order (on an undefended basis) on 26 September 2014 the following:-
“…
5. The Applicant mother shall have sole parental responsibility for the children of the relationship, X born (omitted) 2007 and Y born (omitted) 2008.
6. The children, X and Y shall live with their mother.
…
8. The Applicant and the children shall have the sole occupation of the former matrimonial home situate at and known as Property B, in the state of New South Wales, and the Respondent father is restrained by injunction, from attending at, entering into or remaining at the former matrimonial home.
9. The attorney’s for Ms Ware are to give notice of the above orders to Mr Harley by email to (omitted)”
The father has never seriously sought to disturb the above parenting orders.
The father claimed that in November 2014, he was passing through (omitted), and attempted to contact the mother by phone to arrange to see the children but received no response. He proceeded to attend at Property B (the former matrimonial home) to visit the children and drop off some Christmas presents. At this time, the father had not seen the children since 2012. Upon seeing the father enter upon the property of the former matrimonial home the mother told her sister (to whom she was on the phone) to call the police. The police made an application on behalf of the mother, for an interim Apprehended Violence Order (AVO) returnable in the Albury court.
The father considered it his ‘right’ to, on 28 November 2014, after almost two and a half years without seeing the children or the mother, arrive unannounced at the former matrimonial home. His attendance disregarded the then existing Court injunction that prohibited him from doing so. His evidence to the Court was that it was his property, owned by him prior to cohabitation, and his to enter upon at will. The father left the property prior to the police arriving and took a house key of the mother’s with him. Thereafter the mother received a call from Y’s teacher saying that the father had attended the children’s school but was unable to locate the children. The father, having attended the school to see his children and discovering they had finished for the day, then proceeded to attend the swim centre the children were having lessons at. The father entered the swimming pool where the children were. Y did not know who Mr Harley was. X thought it may have been her father, but was not sure.
Two days later, on 30 November 2014, as the mother was driving into the carport of the former matrimonial home the father approached her car. The mother then altered her course and drove to the (omitted) police station to make a report. When she returned home again, the father drove his car in behind her vehicle, blocking her exit. The father banged on a car window attempting to coax the children out of the car. The mother called 000 and police attended. The police made a further application, on behalf of the mother and children, for an AVO. The father did not attend the hearing and a final AVO was made against the father.
The father returned to live in (omitted) with his partner, Ms S, in December 2014. They have continued to reside in the area and occupy the parties property on Property M. They have done so since February 2015 despite the mother’s attempts to deny that property to the father. The mother has paid the insurances, rates and mortgage repayments with respect to that property.
On 11 December 2014, the father filed a response, financial statement and affidavit to commence his involvement in the proceedings. On 11 December 2014, the Court made orders and listed the matter for final hearing. No time spent with between the children and the father was provided for.
On 15 May 2015, the Court ordered relevantly:-
“1. Pursuant to section 90SM(10) of the Family Law Act 1975, Mr A in his capacity as trustee of the bankrupt estate of Mr Harley shall be joined as a party to these proceedings, hereinafter to be referred to as the Second Respondent.
2. The father, Mr Harley, communicate with the children X born (omitted) 2007 and Y born (omitted) 2008, by sending letters and gifts, to be facilitated by:
a. The father shall send the letters and gifts to the Independent Children's Lawyer at first instance.
b. The Independent Children’s Lawyer may read the letters and inspect the gifts and ensure their content is appropriate prior to forwarding them to the children.
c. In the event that the Independent Children’s Lawyer is of the view that any of the contents of the letters and gifts forwarded by the father to the children are inappropriate, she will return the letter / and or gift to the father.
d. The mother shall ensure:
i. That the Independent Children’s Lawyer has her current residential and / or postal address; and shall promptly notify the Independent Children’s Lawyer, via her solicitor of any change to same; and
ii. That the children receive all letters and gifts sent to her by the father via the Independent Children’s Lawyer.
3. That the father forthwith enrol and complete the Men’s Behaviour Change program offered through (omitted) Community Health.
…
7. Pursuant to section 44(6) of the Family Law Act 1975 leave is granted to the Applicant to commence and continue proceedings with respect to property adjustment pursuant to Part 8AB of the Family Law Act 1975.
…”
The Court also ordered on the 15 May 2015 that pursuant to s.62G of the Act a family report be prepared. It was released to the parties on 2 November 2015. Although the father was now able to send letters and gifts to the children, he did so on only a handful of occasions. He never really availed himself of this order in any consistent way to re-establish his relationship with the children. The father also did not attend the men’s behaviour change program and thus at trial nearly two years later, had failed to comply with order 3 of the orders made on 15 May 2015. This was a matter raised at trial. The father had indicated to the Court at an earlier interim hearing that he would comply with the Court order before trial. He failed to do so. During the running of the trial the father again indicated his preparedness to comply with orders of the Court. Consequently, on 9 March 2017 order number two was included in the below orders made:-
“(1)The Applicant make available to the Respondent (together with the chattels referred to in the orders made 8 March 2017):
(a) The Respondent’s grandmother’s black and white television together with its rosewood cabinet; and
(b) A wedding photo of the Respondent’s grandparents in round glass if the Applicant is able to locate same.
(2) The Respondent forthwith comply with Order 3 of the orders made 15 May 2015.”
The transcript clearly reveals that the father was urged by the Court to attend to compliance in the period prior to delivery of judgment. The Court is satisfied the father knew precisely what the order required, and that he was to attend to the matter forthwith. On 20 June 2017, on the hearing of a misguided application in a case filed by him, possibly vexatious, the father again indicated to the Court his lack of compliance to date with the order first made in May 2015. Any time spent with between the children and their father will not progress outside a supervised Contact Service setting until such time as the father complies with this specific Court order. It is an order necessary to promote the best interests of the children and a recommendation, which the evidence supports, made by the family consultant, Ms J.
The Deed of Composition earlier referred to was entered into on 29 July 2015. Accordingly, on 6 November 2015, an order was made by the Court wherein the trustee of the father’s bankrupt estate, Mr A, ceased to be a party to the proceedings. The Court also ordered on that day that the Family Report writer, Ms J, prepare an addendum to the Family Report and consider material produced on subpoena.
The addendum to the Family Report was released to the parties on 15 February 2016.
The proceeding was listed on two further occasions, being 17 March 2016 and 16 June 2016. The matter was adjourned on both occasions.
On 10 November 2016, the Court ordered the following:-
“ 1. Until further Order, both parties be restrained from selling or otherwise disposing of any joint property pending the final hearing date.
2. The matter be adjourned to 20 March 2017 at 10.00am in the Federal Circuit Court of Australia at Melbourne for final hearing with priority (with an estimated hearing time of 3 to 4 days).
…”
The hearing
At the final hearing, the mother relied on her final amended initiating application filed on 14 October 2016 by which she sought the Court make the following orders:-
“Children
1. That the applicant mother have sole parental responsibility for the children of the relationship, X born (omitted) 2007 and Y born (omitted) 2008.
2. That the said children live with the mother and spend time with the father at the mother's discretion.
3. The Respondent Father communicate with the children by sending letters and gifts to the children, by posting them to the mother's address. Such communication shall not exceed one per month.
4. The Applicant Mother may read the letters and inspect the gifts and if deemed appropriate pass them on to the children.
5. The Applicant mother and the children have sole occupation of the former matrimonial property situated and known as Property B, in the State of New South Wales and the Respondent Father is restrained by injunction from attending at, entering in to or remaining at the former matrimonial property.
Property
Payment to Applicant
6. That within 30 days of the making of these Orders the Respondent pays the Applicant the sum of $83,000.00 (‘the payment’).
Property M
6. That immediately from the making of this Order:-
(a) The Respondent commence to pay all instalments pursuant to the loan with the (omitted) Bank secured by Mortgage No. (omitted) (‘the Property M mortgage’) and pay all rates taxes and like apportionable outgoings of the property known as Property M in the State of Victoria, (‘the Property M property’) more particularly described in Certificate of Title Volume (omitted) Folio (omitted) as they fall due;
(b) The Respondent within 30 days of the making of these orders refinance into his sole name the Property M mortgage and discharge the Applicant from any obligation in respect of the Property M mortgage.
(d) That in the event that the payment as per order 6 is made, the Property M mortgage is so discharged or refinanced, the Applicant contemporaneously with the discharge, do all such things and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent, all of her right title and interest in the Property M property and the Respondent continue to be liable for and indemnify the Applicant against all apportionable rates, taxes and outgoings with respect to the Property M property of whatsoever nature and kind. ~
7. That in the event that the Respondent defaults in making the payment and/or is unable to refinance the (omitted) mortgage within the time frame stipulated in the previous order, then the Respondent sign all documents and do all things necessary to transfer to the Applicant the Property M property to be held on trust for sale (‘the sale’) and upon completion of the sale, the proceeds of the sale be applied:
(b) Payment of agent's commission and advertising expenses and legal expenses of the sale;
(c) Payment of any money due and owing to the mortgagee;
(d) If it remains unpaid, payment of the debt owed by the Respondent to his Trustee in Bankruptcy pursuant to the deed of composition dated 29 July 2015.
(e) The net balance to be divided between the parties as follows:
(i) $83,000.00 together with interest thereon at the rate from time to time prescribed pursuant to the Family Law Rules from the payment date to the Applicant mother;
(ii) The remainder to the Respondent.
Property B
8. That upon the completion of the transfer or the sale of the Property M property, whichever occurs later:
(a) The Respondent do all such acts and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant all of his right title and interest in the real property situate at and known as Property B in the State of New South Wales, (“Property B”) and being the whole of the land described as Lot (omitted) on Deposited Plan (omitted); and
(b) Contemporaneously with the Transfer, the Applicant refinance the mortgage with Secure Funding Pty Ltd Loan Account No. (omitted) ("the mortgage") over the Property B property into her sole name and indemnify the Respondent against all payments and liability pursuant to the mortgage and all rates taxes and like apportionable outgoings of or with respect to the Property B property of whatsoever nature or kind except for the arrears referred to otherwise herein.
9. That until the sale of the property the Respondent to pay any unpaid council and water rates as they fall due all regular instalments in respect of the mortgage, council rates and water rates in respect of the property and pay forthwith any arrears in respect of the said instalments. If such arears are not paid prior to settlement, then the Respondent will make a payment to the Applicant equal to all arears and unpaid council rates contemporaneously with the Transfer.
Property O and Property G
10. That within 30 days of this Order the Respondent does all acts and things and sign all documents necessary to transfer to the applicant all of his right title and interest in the following properties:
a) Property O, being the land described in Certificate of Title Volume (omitted) Folio (omitted);
b) Property G, being the land described in Certificate of Title Volume (omitted) Folio (omitted).
Chattels
11 . That all chattels located at the Property B property are deemed to be the property of the Applicant to be retained by her to the exclusion of the Respondent.
12. That all chattels located at the Property M property are to be deemed the property of the Respondent.
Bankruptcy
13. That the Respondent indemnifies the Applicant against any claims, demands, suits or actions arising out of his Bankruptcy including but not limited to the Deed of Composition he entered with his Trustee in Bankruptcy dated 29 July 2015.
Vehicles
14. That the Applicant retain all motor vehicles registered in her name and currently in her possession.
15. That the Respondent within 30 days of these Orders will return the Toyota (omitted) motor vehicle registration number (omitted) registered to the Application (sic), to the Applicant.
16. That the Applicant within 30 days of these Orders will return the boat motor which is currently in her possession to the Respondent.
17. The Respondent retain all motor vehicles registered in his name or the name of his business entities.
Superannuation
18. That the Applicant and the Respondent retain all their right title and interest in their own superannuation entitlements and forgo any claim that they may have or have had to the superannuation entitlement belonging to or accrued by the other.
19. That other than as otherwise set out in this agreement the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
20. That the respondent and applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
21. That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
22. Any other or further orders as deemed appropriate by this Honourable Court.”
The mother relied on the following affidavit and other evidence:-
a)trial affidavit of Applicant sworn 14 October 2016;
b)updated financial statement of Applicant sworn 10 October 2016;
c)affidavit of Mr P sworn 14 October 2016;
d)family report prepared by Ms J on 31 October 2015 and addendum report prepared 8 February 2016; and
e)Affidavit of Applicant sworn 20 February 2017.
The mother tendered in evidence various exhibits.
At the final hearing, the father relied on his final amended initiating application filed on 21 October 2016 by which he sought the Court make the following orders:-
“1. That that Court award me physical and phone contact to the children X & Y.
2. That the Court make the Orders with regards to the access to our children and these not be at the discretion or via contact with the Applicant.
3. I ask the Court to award me no less than 30% custody. That I be afforded every 2nd Easter Holidays, every Father’s Day, every other Christmas, 2 weeks of every Christmas School Holidays. That the Applicant be awarded the same including Mother’s Day.
4. That the children be allowed to call me one night per week or that I be allowed to call them. The Court to decide, day, time and length of call.
5. That I retain all the Property M properties and chattels which remain there.
6. That the Applicant if she so wishes retain Property B and all chattels that remain there with the exception of the list of personel (sic) items which I seek Court Orders to be made to be returned to me in original condition or reimburse me their value.
7. That the Court take into account my pre relationship assets and financial contribution towards those assets during and after the relationship with the Applicant.
8. That I am afforded 4 months from the date of the Final Orders to get finance sorted.
9. That both parties superannuation be included in the total family pool assets.
10. That 100% of the Deed of Arrangement be included in the assets and liabilities of the total family assets.
11. That the Applicant’s Landcruiser and my (omitted) Nissan be included in the total family assets.
12. That the (omitted) Motor Bike be return (sic) to me at the Applicants (sic) expense of the Applicant or that the Applicant reimburse me the market value of the motor bike and not just the value for which it was sold by either the Applicant or the dealer.
13. That the Applicant pay her own legal fee’s (sic) and I pay mine.”
The father relied on the following affidavit and other evidence:-
a)trial affidavit sworn 12 October 2016;
b)financial statement filed 21 October 2016; and
c)document titled ‘case information’.
The father tendered in evidence various exhibits.
The Independent Children’s Lawyer relied on the Family Report prepared by Ms J, Family Consultant, dated 31 October 2015 and 8 February 2016 addendum thereto together with a case outline dated 6 November 2016.
The Independent Children’s Lawyer tendered in evidence various exhibits.
Parenting
Legislation
Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) requires the Court to make orders that are in the best interests of the child:-
“FAMILY LAW ACT 1975 - SECT 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In determining the best interests of the child, the Court is required to consider the matters set out in s.60CC(2) and (3) of the Act which are relevantly as follows:-
“ (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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the extent to which each of the child's parents 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;
(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;
(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;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
…
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.”
The Court is mindful of these mandatory considerations when examining the evidence canvassed in these reasons.
The Court also sets out here the legislation pertaining to the circumstances in which the presumption of equal shared parental responsibility is discharged:-
“FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) 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.
(3) 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.
(4) 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.”
On the facts of this case, family violence is established and the matters set out in 61DA(4) of the Act apply for the reasons as set out in this judgment. The presumption is rebutted.
Family Reports
Ms J, Family Consultant, prepared a Family Report dated 31 October 2015 and an addendum to that report dated 8 February 2016.
Neither party nor the ICL wished to cross examine Ms J as to the contents of her reports and thus her evidence was not challenged. The evidence is accepted by the Court and helpful in its determination.
At the time of the Family Report, X was aged approximately eight years and five months and Y was aged approximately seven years and one month. Ms J interviewed both children, the mother, the father and Ms S (the father’s partner). The children were observed interacting with both of their parents. Ms J observed that the parties have a “very cut off, hostile and nasty relationship with no communication”.
In her family report dated 31 October 2015, Ms J noted the following:-
“71. … X and Y seemed to enjoy being with Mr Harley, smiling easily and often, making eye contact with Mr Harley. Mr Harley was appropriate at all times otherwise I would have ceased this session.
72. X had nothing positive to say about Mr Harley but plenty to say that was not good. It was of note that X and Y reported the same not so good things about Mr Harley that Ms Ware had claimed. They each reported how Mr Harley had cut off the wings of a bird with slightly different accounts, they each reported a story about Mr Harley leaving Y in the pool and also the account of how one time Mr Harley had tried to choke Ms Ware. X said that the alleged cutting off the bird’s wings happened when she was four so at that time Y would have been about between two to three. In my view it is too much of a coincidence that X and Y would have the same issues about Mr Harley as Ms Ware had. Y must have a remarkable memory recall from when he was aged two to three. It is my view that it is difficult to place too much credence on these accounts given the ages of X and Y at those times. It also raises some doubts on whether Ms Ware has tried to influence X and Y against Mr Harley. That is not to say such incidents did not occur but clearly such allegations would need to be tested in Court. If such incidents did occur then it would raise concerns about Mr Harley but if such incidents did not occur then it would raise concerns about Ms Ware’s motivation for making such claims.
73. Initially X was unsure about seeing Mr Harley and also reluctant about spending time with him in a safe setting but X’s behaviour in the observation session was not consistent with her account of Mr Harley. When with Ms Ware, X’s answer to how she would feel about spending time with Mr Harley at a children’s contact centre confirmed that X is very conscious of how Ms Ware feels about her spending time with Mr Harley. It is my view that given the inconsistency between X’s account of Mr Harley and her behaviour when with Mr Harley that consideration needs to be given to factors other than X’s verbal view.
74. Y like X was also inconsistent with his verbal account of Mr Harley compared to how he behaved when with Mr Harley. Y was unclear and confused about his feelings which in my view raises a concern that Y may have been unduly influenced by Ms Ware to think of Mr Harley in a negative light but if he was about four at the time Ms Ware claimed was the time of separation, Y may not have a very clear memory of Mr Harley. In addition, it seemed that from about 2008, Mr Harley has not been present a great deal so from the age of about one, Y has not had a great deal of contact with Mr Harley. If X and Y had been exposed to the violence all through the relationship as claimed by Ms Ware then in my view the expectation would have been for X and Y to have been in fear of Mr Harley but that was not evident from their behaviour when with him. Neither X nor Y distanced themselves or exhibited any signs of fear when with Mr Harley. It is my view that other factors need to be considered rather than Y’s view.
75….
It is my view that Ms Ware did stop Mr Harley from having phone communication with X and Y out of hurt and anger she suffered on discovering Mr Harley was with Ms S. Ms Ware was inappropriate in using the children in this way but this still does not excuse the verbal abuse of Ms Ware by Mr Harley.
…”
Ms J noted that Mr Harley had “no concept of how his violent behaviour affected Ms Ware” and recommended that he attend an anger management program to gain insight into his anger issues. Ms J further made comment that if the children were exposed to violence perpetrated by Mr Harley as alleged by the mother, then it is worrying that she has not had them attend upon a counsellor.
Ms J was of the view that it would be “impossible” for the parties to negotiate and therefore recommended the mother, as the children’s primary carer, have sole parental responsibility for the children. However, she also held the view that the children needed to spend time with the father so that they could form their own views of him that are separate to the views of their mother.
Ms J made the following recommendations to the Court:-
“ 85. It is recommended at this time that there is consideration for Ms Ware to have sole parental responsibilities for X and Y.
86. It is recommended that X and Y live with Ms Ware.
87. It is recommended that X and Y spend time with Mr Harley at the Children’s Contact Centre in (omitted) on condition that Mr Harley attends a counsellor/psychologist (as referred by his GP on a health care plan) and an anger management program at an accredited agency.
88. It is recommended that Ms Ware attends counselling as referred by her GP on a health care plan.
89. It is recommended that the children attend a counsellor as referred by their GP on a health care plan (but a different psychologist to that of Ms Ware).
90.It is recommended that the Independent Children’s Lawyer remain involved for twelve months to monitor the progress of the children.”
In the addendum to the Family Report dated 8 February 2016, Ms J stated that she had considered the subpoenaed material and that her view and recommendations referred to above did not change.
Violence
The father claimed that he was not physically violent towards Ms Ware at any time in their relationship apart from an incident he concedes in his affidavit sworn 10 December 2014:-
“38. Out of rage I hit Ms Ware with an open hand to the back of her head and said ‘this is the beginning of the end’.”
In his affidavit sworn 12 October 2016 the father said further as to the volatility of the parties’ relationship:-
“66. … We have both been guilty of pushing and shoving each other. We have both been guilty of saying unsavoury and heated things to one another. I regret that things got so out of control that things resorted to this. I realise now looking back that I was under extreme pressure professionally and the personal pressure with the Applicant only magnified the situation. Looking back now, I realise I should have asked for some professional help.”
When asked by Ms J, Family Consultant, about violence in the relationship, the father:-
“denied physical violence apart from pushing Ms Ware away on one occasion”.[2]
[2] Family Report prepared by Ms J dated 31 October 2017 at page 7.
The father justified some of his behaviours directed toward the mother in his trial affidavit sworn 12 October 2016 in paragraph 24 wherein he said, as to the period in 2011:-
“The (omitted) business fails. At this point I am suicidal. I found myself ranting and raving not knowing what I was saying or doing half the time unable to pay the business debts”.
The mother claimed that the father was physically and verbally abusive to her throughout their relationship. Her evidence was that the violence included:-
“hitting me, pushing me around, threatening me, controlling my movements and attempting to control who I was able to spend time with or communicate with. Mr Harley predominately controlled my access to funds. Mr Harley tried to isolate me from my friends and family.”[3]
[3] Affidavit sworn by Ms Ware on 14 October 2016 at [10]
The mother swore in her trial affidavit that in June 2011 she received a number of threatening phone calls from the father. Further, that in January 2012 the father tried to choke her in the presence of the children and punched her in the face. The mother did not make a statement to the police as to these assaults.
The mother’s further evidence was that on 10 January 2014 and 3 November 2014, the father telephoned her and threatened to kill her.
The Court listened to recordings that the father had left on the mother’s voicemail. They are also outlined in the mother’s affidavit sworn 20 February 2017. Some examples are set out below:-
“Recording on message bank on 5 August 2010.
Listen here Miss I pay the fucking bills for those kids to go up there and if I want to fucking ring there and speak to my children I’ll ring there or you get your fucking lazy arse out and get a job and you fucking pay for it.”
“Recording on message bank on 16 August 2010
Here’s a message for Ms Ware you fucking low cunt. Stop fucking hanging up when I’ve got fucking stuff to tell you, you fucking stupid cunt.”
“Recording on message bank 29 September 2010
Listen you cunt if you don’t fucking ring me back in the next 10 minutes with these numbers, do not ring me again you fucking dead cunt and I will fucking come down on you like a ton of fucking bricks and punish you harder than you’ve ever been punished in your fucking life.”[4]
[4] Affidavit sworn by Ms Ware on 20 February 2017 at [W23].
The father has an historic and significant criminal history of violence. He has also been the subject of findings of guilt in respect of stalking the mother with his appeal dismissed in March 2016. It has been necessary to obtain both an AVO in New South Wales and an IVO in Victoria for the protection of the mother and children. I note breaches of those orders as found in the local court were overturned on appeal in August 2016. Much time has been spent by the parties in litigating family violence. The Court accepts the father engaged in violent physical and verbal abuse of the mother during cohabitation and for a time after, including punching her to the face in January 2012. Many obscene messages were forwarded by him. One typical example was that of 13 October 2012 which read as follows:-
“Fuck off and die. Start hawking yourself on (omitted) because I’m not going to give you a cent. I don’t give a fuck if you can’t feed the kids. You are a lazy fat cunt”.
The father continues to show no real insight into his behaviours or their impact upon the mother nor is there a lessening of his antagonism towards the mother.
Ms J’s observations of the children with their father are important in the entire context of the evidence. There is no doubt the mother does not support the children spending time with their father. She considers he has nothing really to offer. She has been and continues to be the only parent to provide the children with consistent emotional and physical support. The father wishes to engage in providing some part of that into the future. Whether he is capable of sustaining a genuine involvement is to be seen, but the children need to be given an opportunity to get to know their father and make some assessment of him uninfluenced by their mother’s adverse view. They are well aware of their mother’s views and seek to align with her. In their adulthood they may well regret being denied the opportunity of a relationship with their father. The father is willing he claims, to commence with supervised time at a contact centre. It is in the children’s best interests that if that proceeds well, time spent with should move into a more normalised setting and not at the inordinately slow pace proposed by the ICL. Much time has already past. The children are robust enough and curious enough to be allowed a relationship with their father. The ICL urged the Court to accept the mother as a genuine and credible witness. The Court does so. In that vein, the Court notes that the mother gave evidence that she could reflect upon her relationship with the paternal aunt, in particular, and her failure to remain engaged in that relationship. The paternal aunt may well be an appropriate supervisor.
Property
There is significant dispute as to what constitutes the pool of assets and liabilities and the value of same. The Respondent was evasive in giving evidence as to the parties assets. He failed to disclose assets and failed to put any corroborative, readily available to him, evidence before the Court. He further failed to provide necessary documentary or other evidence as to any payments made or still to be made under the terms of his Deed of Composition to his Trustee.
The assets are as follows:-
Asset
Registered ownership
Value
Property M (‘the Property M Property’)
Joint names
$400,000
Property B (‘Property B Property’)
Respondent
$400,000
Property G (‘Property G Property’)
Joint names
$20,000
Property O (‘Property O Property’)
Joint names
$20,000
Toyota Land Cruiser
Applicant
$45,000
Liability
Registered Ownership
Value
Mortgage to (omitted) over Property B Property
Respondent
$254,810
Mortgage to (omitted) Bank over the Property M Property
Applicant
$202,332.53
Deed of Composition
Respondent
On the evidence the Court cannot establish what sum remains outstanding, if any, by the Applicant to his Trustee but accepts that a tax liability exists of $13,000 for income earnt post separation and in 2012.
Loan- Toyota Finance
Applicant
$10,886
The asset pool further includes:-
Asset
Registered ownership
Value
(omitted) Truck
Respondent
The Respondent received a $49,000 insurance payment for this vehicle.
(omitted) Truck
Respondent
$5,000
Toyota (omitted) ,registration (omitted)
Applicant
$500 estimated
Vehicles/chattels not disclosed by the Respondent including any debts attaching thereto
Respondent
Value unknown
In her financial statement, the Applicant disclosed $141,203 ($71,000 in June 2009) in superannuation entitlements. At the commencement of cohabitation her superannuation was something in excess of $18,000. The Respondent has no superannuation entitlements.
The Applicant claimed the Respondent has ownership of the following vehicles and chattels, all of which are in his control and in respect of which there are no valuations before the Court:-
a)Mitsubishi (omitted) Truck, registration: (omitted);
b)Mitsubishi (omitted) Truck, registration (omitted);
c)Mitsubishi (omitted) Truck, registration (omitted);
d)Mitsubishi (omitted) Truck, registration (omitted);
e)(omitted) Trailer;
f)(omitted) forklift;
g)(omitted) Truck;
h)(omitted) Toyota 24 seater bus, registration (omitted);
i)Toyota (omitted) 4 Tonne Truck, registration (omitted);
j)(omitted) Truck, registration (omitted);
k)Nissan (omitted) (4x4), registration (omitted);
l)Mitsubishi (omitted) Cab 6x4, registration (omitted);
m)(omitted) Vehicle, registration (omitted);
n)(omitted) forklift;
o)Stock on land;
p)Boat 3.7 metre metal (omitted) and trailer, registration (omitted);
q)Quad bikes;
r)(omitted) motor bikes; and
s)Shipping container.
The Applicant claimed the above vehicles and chattels had a total estimated value of approximately $350,000.
Contribution
The Applicant claimed she entered the relationship with $40,000. The Respondent claimed it was $10,000. The Applicant claimed such funds were in cash. Subsequently her evidence was that such amount was represented by savings. No documents or other supporting evidence was provided by her and the Court could not be satisfied her initial contribution was in the sum claimed.
At the commencement of the relationship, the Respondent owned the former matrimonial home. He had purchased the property, a vacant block of land with the help of his mother. Thereafter, assisted by his mother and first wife he built a brick home on the property and later added a swimming pool. In the early stages of the parties relationship, the Respondent was concluding a court case as to property orders sought between himself and his former wife. He was required to pay her a lump sum. Precisely what he was left with by way of equity was not sufficiently established for the Court. The Court accepts however his initial contribution exceeded by some not inconsequential amount that of the Applicant.
The hearing
On the third day of the hearing, Orders were made with the consent of both parties as follows:-
“(1) Within 14 days hereof, the Applicant make available to the Respondent the following chattels to become the property of the Respondent absolutely:
(a) The (omitted) outbound motor;
(b) The customised dining table; and
(c) The rodeo horse saddle (said by the Respondent to be above the fridge in the shed) if same can be located by the Applicant.
(2) Within 14 days hereof, the Respondent make available to the Applicant the following chattels to become the property of the Applicant absolutely:
(a) The 6 foot by 4 foot (approximately) glass and wood display cabinet.
(3) Each of the parties shall arrange for an agent to act on their behalf to collect the chattels from the other party’s residence with such agent being paid by each of the parties independently.”
The parties further agreed on the final day of the hearing to the following orders being made:-
“(1) The Applicant make available to the Respondent (together with the chattels referred to in the orders made 8 March 2017):
(a) The Respondent’s grandmother’s black and white television together with its rosewood cabinet; and
(b) A wedding photo of the Respondent’s grandparents in round glass if the Applicant is able to locate same.”
By the conclusion of the final hearing, the parties expressed agreement to the following:-
a)the Respondent would have ownership of the Property M Property, subject to the mortgage encumbrance, and the two blocks of land situated next to and/or near the property;
b)the Applicant would have ownership of the Property B property, subject to the mortgage encumbrance;
c)the Applicant would retain her superannuation entitlements;
d)the Applicant would retain her (omitted) Land Cruiser;
e)the Respondent would be liable to pay the debt owed to Mr A, his trustee; and
f)the Respondent would retain his Nissan (omitted).
The Applicant sought a payment additionally to her of $123,000 or $83,000 if the Applicant became the sole proprietor of the two blocks of land at (omitted). The Respondent rejected the payment of any amount and then resiled from any agreement as to property division as set out in the preceding paragraph reverting back to his response application.
The Respondent disclosed ownership of a (omitted) Truck with registration (omitted) (‘the truck’) in his financial statement sworn 10 December 2014 and estimated the value to be $50,000 at that time. The Respondent did not include the vehicle in his updated financial statement sworn 14 October 2016.
In cross-examination, the Respondent stated that the vehicle was involved in an accident in 2015 for which he received an insurance payout in the sum of $49,000 in June 2016. The Respondent claimed $16,709 of this went to the Child Support Agency for arrears in child support payment and the remainder of the monies went to repairing the truck. The Respondent says the truck is currently unregistered.
The Respondent claimed the bobcat referred to in paragraph 57(g) herein was sold together with the tipper referred to in paragraph 57(d) herein for a sum of $9,000.
As to the crane truck referred to in paragraph 57(b) herein, the Respondent claimed it was sold approximately seven years ago. He claimed he originally paid $10,000 for the truck.
The Respondent has filed civil proceedings in respect of the (omitted) motor bike formerly owned by him and in respect of other chattels. This is despite the ongoing nature of these proceedings where competing property applications, which include a consideration of those matters, is before the Court. On 17 March 2017 the Respondent gave evidence when cross-examined by Counsel for the ICL that he was “going to get rid of the civil side”. The Respondent further stated “… my word is my bond”. Thereafter, as referred to on page 278 of the transcript the following exchange occurred:
“All right… you would be prepared to give an undertaking, make a promise to the Court, that you will withdraw those proceedings?
Yes”.
The Respondent has not withdrawn from the civil proceedings and is causing further legal costs to be expended by the Applicant. The Respondent is fixated on his (omitted) motor bike. He brought this into the relationship. He left it in the shed of the parties property when he relocated to Western Australia to work in (employment omitted). The motor bike was unregistered and not roadworthy. It had not been used for some five years. The Applicant sold the motorbike in approximately December 2015 for the sum of $10,000. In her evidence she provides a valuation from the purchaser, Mr C, of ‘(omitted) Bikes’ dated 3 December 2015. That is in the sum of $10,000. The Applicant needed immediate funds. The Respondent had ceased his support of the family in November 2014. Child Support payments were in arrears and the Applicant was required to pay school fees for the children and partial legal costs. She applied the funds received in such manner. Ongoing the school fees are currently $700 per term per child and paid for entirely by the Applicant.
When the Respondent left for Western Australia he left the Applicant to manage the parties rental property at Property B and attend to payment of its various liabilities. The Applicant did so. On his return in 2014, the Respondent immediately had the rental receipts of $250 per week re-directed to him. He did not however apply same to the loan outstanding. Eventually this property was required to be sold to avoid a forced mortgagee sale. The Respondent’s actions in respect of this property cost the parties an indeterminate amount in reduced equity. The Applicant claimed it to be $70,000. This decreased the value of the Respondent’s initial contribution at commencement of the relationship.
The Applicant seeks return of the Toyota (omitted) motor vehicle which the Respondent removed in 2011. The Respondent gave that vehicle to Ms S’s daughter. It has no real value but remains registered in the Applicant’s name. That registration has caused the Applicant to receive fines and other penalties imposed in respect of the driving of the vehicle. It needs to be returned to the Applicant forthwith.
s.90SF(3) Factors
The Court is required to consider the factors set out in s.90SF(3) of the Act.
The Applicant has an average weekly income of $1,946.00. She works as a (occupation omitted) at (employer omitted) in (omitted). The Applicant claimed that her position in her employment will soon become obsolete. She has been employed by (employer omitted) since 2000 although with considerable absence around the time of the birth of Y. She has derived a clear earning capacity from her experience in the workplace.
The Respondent disclosed in his financial statement that he earns an average of $1,200 per week and that he is currently working as a (occupation omitted).
Both parties are in good health.
The Respondent has a greater earning capacity than that which he currently exercises. His de facto’s financial details were not before the Court. His support of the children is now fairly minimal.
Consideration
The Respondent made a larger direct financial contribution than the Applicant at the commencement of the relationship and provided significant financial support to the family during the relationship until the end of 2014.
The Applicant’s contribution has been both consistent direct financial contribution of some significance and an almost sole indirect financial contribution.
The Applicant seeks essentially up to a 70/30% split in her favour of the property assets of the parties and retention of her superannuation entitlements. Her superannuation entitlements accrued before the relationship, significantly after the relationship, and, of course, during the relationship though the Applicant was not in receipt of salary from her employer over a number of years of unpaid leave during cohabitation. The Respondent did not formally seek a splitting order and nor did he advise the trustee of the superannuation fund of the Applicant of any proposal to do so. The Court is satisfied that it would be just and equitable as between the parties to make the orders as sought by the Applicant. She has many years ahead of support for the children of the parties and is unlikely to receive any significant contribution from the Respondent. She has not done so in the last two years save for the enforced lump sum payment.
The Applicant has preserved and maintained the parties assets. The Respondent appears to have been able to dispose of prior to his bankruptcy and/or hide assets from his Trustee in bankruptcy and from the Applicant. His evidence was not credible as to his equipment and machinery and his dealings with same. By way of examples, the Respondent placed $100,000 in a term deposit in his name on 28 September 2011. On 29 March 2012 those funds were withdrawn by him. The sum withdrawn was $101,458.54. The Applicant knew nothing about these dealings and it is not clear what the Respondent did with such funds. The Respondent also sold (omitted) after 2011 but again made no relevant discovery as to his application of the proceeds nor provided any credible evidence as to the sale quantum. It has been necessary in the interests of justice to take these matters into account in making the property orders so made.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 23 June 2017
Key Legal Topics
Areas of Law
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Family Law
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Insolvency
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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Constructive Trust
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