Weiss and Weiss
[2014] FCCA 14
•6 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEISS & WEISS | [2014] FCCA 14 |
| Catchwords: FAMILY LAW – Child matter – relocation – property settlement – contributions – section 75(2) factors. |
| Legislation: Family Law Act 1975 Federal Circuit Court Act 1999 Federal Circuit Court Rules 2001 |
| Paskandy v Paskandy (1999) FLC 92-878 MRR & GR (2010) 240 CLR 461 |
| Applicant: | MS WEISS |
| Respondent: | MR WEISS |
| File Number: | MLC 5930 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 2 - 4 December 2013 |
| Date of Last Submission: | 4 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mawson SC |
| Solicitors for the Applicant: | Coote Family Law |
| Counsel for the Respondent: | Mr Serra |
| Solicitors for the Respondent: | Moores Legal |
ORDERS
Child’s order
That the wife and the husband have equal shared parental responsibility for the child X (“X”) born (omitted) 2012.
That X live with the husband each week between Sunday at 5:00pm and Wednesday at 5:00pm (it being understood that such time coincides with the wife’s employment) unless otherwise agreed between the parties.
That X live with the wife in each week between Wednesday at 5:00pm and Sunday at 5:00pm unless otherwise agreed between the parties.
That the parent expecting to receive X into his or her care collect X from the other parent’s home at the appointed times unless otherwise agreed.
That in any event the wife be permitted to travel to Perth with X for a period of not longer than 3 weeks each summer school holidays commencing December 2014 provided that such time not commence before 26 December in 2014 and in each alternate year thereafter and such time not commence before 23 December in 2015 and in each alternate year thereafter.
That the wife be permitted to travel to Perth with X for one further extended period for not more than two weeks in each calendar year (including 2014) provided that the wife give the husband not less than 28 days prior notice in writing of her intention to so travel.
That the time for X with the husband be suspended during the time contemplated by orders 5 and 6 hereof.
Provided that the times contemplated by orders 5 and 6 hereof not be conjoined.
That X, in any event, spend time with the husband in 2014 and in each alternate year thereafter from 5:00pm Christmas eve until 5:00pm Christmas Day.
That within 28 days of the date of these orders the parents each do all things and sign all documents necessary to enrol in and then attend as directed at Conflict Dispute Intervention Counselling (as recommended by the family reporter) being with the same counsellor and as arranged by the wife and advised to the husband by the wife and that for these purposes either of the parties have leave to provide a copy of the family report of Ms L and the affidavit of Dr G sworn 15 November 2013 to a counsellor conditional upon that report and affidavit not being provided to any other professional or person without leave of the Court.
That the wife attend as directed and referred by her general practitioner for psychiatric therapy with Dr C or such other psychiatrist as referred by her general practitioner until her general practitioner recommends in writing that such therapy cease and the wife comply with any directions from her psychiatrist including the taking of prescribed medications and that, upon his request, the wife provide the husband with a copy of her general practitioner’s advice of cessation of psychiatric therapy
Property
That within 28 days of the date of these orders the husband shall:
(a)Pay to the wife a lump sum of $12,150;
(b)Transfer and vest all his right, title and interest in the following to the wife absolutely:
(i)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(ii)The wife’s term deposit and the balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders;
(iii)The Holden motor vehicle;
(c)The wife’s superannuation policies and entitlements;
(d)Be solely responsible for and indemnify the wife in respect of the following:
(i)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone;
(ii)Any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these orders.
That contemporaneously with the payment in order 12 hereof the wife shall:
(a)Transfer and vest all her right, title and interest in the following to the husband absolutely:
(i)The property situated Property M in Victoria and comprised in certificate of title volume (omitted) folio (omitted);
(ii)All personalty and chattels in the possession of under the control of the husband as at the date of these orders;
(iii)The Subaru and (vehicle omitted) motor vehicles;
(iv)The balance of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders
(v)The husband’s superannuation policies and entitlements but subject to these orders.
(b)Be solely responsible for and indemnify the husband in respect of the following:
(i)Any and all liabilities incurred by the wife since separation in either joint names or in her name alone;
(ii)Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
That pursuant to section 90MT(1)(a) of the Family Law Act 1975:
(a)whenever a splittable payment becomes payable in respect of the interest of the husband Mr Weiss in the (omitted) Super Trust, the non-member spouse Ms Weiss shall be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $53,000 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
(b)The base amount allocated to the non-member spouse as of the interest held by the member spouse in the (omitted) Super Trust is $53, 000.
(c)That this Order has effect from the operative time.
(d)That the operative time for the purpose of this Order is the fourth business day after the date on which a sealed copy of this Order is served on the trustee of the (omitted) Super Trust.
(e)That the trustee of the (omitted) Super Trust and the parties in accordance with the obligations set out in the Family Law Act 1975, the Family Law (Superannuation) Regulations Act 2001 and the Superannuation Industry (Supervision) Regulations Act 1994 shall do all such acts and things and sign all documents as may be necessary to calculate the entitlement of, and make payment to, the non-member spouse in accordance with this order.
IT IS NOTED that publication of this judgment under the pseudonym Weiss & Weiss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5930 of 2013
| MS WEISS |
Applicant
And
| MR WEISS |
Respondent
REASONS FOR JUDGMENT
Parenting
The husband is the applicant in these proceedings which involve parenting orders for the parties’ only child X born (omitted) 2012 (aged 22 months) known as “X” and property settlement. The wife in her response seeks an order to be able to relocate with X to live in Perth, Western Australia. This being the case, it was agreed that the wife would effectively prosecute the case as the applicant.
The parties married and commenced cohabitation in Melbourne in November 2005. There is a dispute as to date of separation. The husband says that they separated in May 2011 when intimacy between them ceased. He concedes that they remained living under the one roof and continue to do so until this day. The wife says that separation occurred on or about 28 June 2013 when the parties communicated to each other that the marriage was at an end.
The wife is originally from Perth. She is a (omitted) by occupation. She has lived in Melbourne for the past ten years. She is 32 years of age.
The husband has most recently worked in the (employment omitted) Industry. He was made redundant in 2013 and remains unemployed. He has qualifications as a (omitted) but has not yet worked at this trade. He was raised in Melbourne and his extended family remain living here.
The Wife’s Case
The wife has been diagnosed with clinical depression. She concedes that she has some problems with anger management. She says that she endured difficulties as a first-time wife, and in particular, X having trouble sleeping and necessitating the employment of a sleep consultant. The wife has consequently herself suffered sleep deprivation. She argues that her conditions, including her anger issues, have been exacerbated by the poor living conditions provided in a home which has been in a process of renovations, and continues to be so, over a number of years. She criticises the husband in this regard. She says that she has no family or strong friendship support networks in Melbourne. She argues that her own health, and consequently her parenting of X, will be enhanced by her living in Perth with the emotional and actual support of her parents and sisters. She proposes to continue her employment on a part-time basis and to pursue the recommended psychiatric treatment for her conditions.
The wife proposes that X spend time with the husband on one weekend each month alternatively in Melbourne and Perth. She would accompany the child to Melbourne until he is of age to travel alone. Alternatively, if the relocation is not permitted then she proposes that X live with her but spend time with the husband weekly from Sunday to Wednesday being effectively close to an equal shared care regime.
The property pool is now agreed by the parties. The wife argues that the tangible assets be divided as to 55% to the husband and 45% to herself if she be the primary carer of X in Perth. If, however, X is to remain in Melbourne on the above regime, then she concedes that the husband receive 60% of the tangible assets given his acknowledged superior initial contribution. The wife concedes that she be the beneficiary of a splitting order from the husband’s superannuation entitlements with a base amount $77,872 which also acknowledges that the husband had accrued entitlements at the date of the marriage.
The Husband’s Case
The husband argues that he and X have a strong and established bond and attachment by reason of them still living in the same household. He has been actively involved in X’s care although he acknowledges that the wife was the primary carer of X for his first 18 months when she was on maternity leave and the husband was still employed. He says that, despite the strong bond, X is still very young and that the gaps in direct contact for he with X on the wife’s proposal would seriously damage that relationship. He fears that his involvement in X’s day-to-day life; being present at milestones; and being involved in school and extra-curricular activities would not be practical on the wife’s case and would not and could not be compensated by contact through media such as Skype and telephone.
The husband says that the wife has lived in Melbourne for ten years and that her alleged support networks in Perth are now tenuous. He suggests that the wife’s medical condition can be best treated by her current practitioners in Melbourne and that her depression will be eased by the forthcoming property settlement and the parties no longer living under the one roof.
The Relevant Law – Child’s Matter
The matter now before me is a prime example of the difficulties facing parents and Courts where issues of relocation of children are raised. Such difficulties are extenuated when the child, like X, is an infant or very young. In arriving at a child’s best interests the Court is mandated to reference many considerations which are often amplified by reasons of distance and impact on relationships with parents and other important people. Put simply, whatever order the Court makes in allowing a relocation or refusing one, one or other of the parents will inevitably be left aggrieved. If the move is allowed then time and contact between the remaining parent and the child inevitably becomes less regular or frequent and/or takes a different form. The primary parent conversely will take a greater role and presence in the child’s life than might be otherwise anticipated. There will be an inevitable sense of loss and bitterness in the remaining parent. There will be a flow-on affecting the abilities of the parents to communicate and cooperate in respect of their child into the future. If, however, the relocation is not permitted then the primary parent will be aggrieved at the loss of their ambitions and expectations. They will need to re-adjust their own personal lives and commitments. Again, the relationship with the other parent will be severely tested. These senses of loss often impact on extended family members. Ultimately, a child’s network of relationships is necessarily impacted and influenced by the determination as to whether relocation be permitted.
The jurisdiction of this Court comes from the Family Law Act1975 (“the Act”) which at Part VII sets out its powers in respect of children. Whilst a Court may permit or refuse the relocation of the child, that Court cannot per se make orders which prevent the freedom of movement of an adult. Nevertheless, in many matters, including the one now before me, the parent wishing to relocate commits to remaining with the child if the relocation is not sanctioned.
The Act itself is silent as to the notion of relocation of children. In that sense, relocation is neither prohibited by law nor is there a presumption against it. Rather, a proposal by one parent to relocate a child, be that intrastate, interstate or internationally is just one matter for the Court’s consideration among many in arriving at orders which on balance the Court find to be in the best interest of the child. It is those best interests of the child that are the paramount consideration for the Court[1].
[1] Section 60CA of the Act
Importantly, issues of relocation are not to be treated separately to the overall determination of a child’s best interest. That is, a “relocation case” is not a specific category of parenting case. A relocation case falls to be determined like any other parenting case. As the Full Court observed in Paskandy v Paskandy[2]:
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have a residence and a further or separate issue as to whether the relocation should “permitted”.
[2] (1999) FLC92-878 at [AB6456]
Section 60B of the Act sets out the objects and principles underlying those objects in respect of children’s matters. This provides the framework for determining the best interests of children. That section provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC of the Act then sets out the mandatory considerations that a Court is to reference in respect of the proposals of the parties and the probity of evidence given and adduced. That section provides:
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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).
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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(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) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or (ii) the making of the order was contested by a person;
(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.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Generally, the Court is to follow a statutory pathway of consideration in arriving at parenting orders[3]. Firstly, there is a presumption at s.61DA of the Act that parents have equal shared parental responsibility for the children. “Parental responsibility” is defined as:
… in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[3] Goode & Goode (2006) FLC 93-286
In practical terms such responsibility usually manifests in the making of decisions of long term importance for children including issues of education, religion, medical procedure and similar.
The presumption of equal shared parental responsibility applies unless there is evidence sufficient for the Court to find that a parent or a person living with a parent has engaged in family violence within the broad definition in the Act. The evidence of both parents and the concessions of the wife allow such findings in this matter. It remains, however, for the Court then to determine if X’s best interests are served by there being an order for equal shared parental responsibility despite the presumption not applying.
If the presumption applies or an order is made for equal shared parental responsibility then the Court is obliged to consider a series of parenting options. Firstly, the Court considers whether the child spending equal time between the parents is both in his best interests and reasonably practicable. If the answer to either of these questions is in the negative then the Court turns to consider whether the child spending “substantial and significant” time with each parent is both in his best interests and reasonably practicable[4].
[4] MRR & GR (2010) 240 CLR 461
Substantial and significant time is defined in the Act as:
(a)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays; and
(b)The time that the child spends with the parent that allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The husband’s proposal in this matter is effectively for equal time for X with each parent. By reason for her quest to relocate and the practicalities of distance, the wife’s proposes an order that fits with neither equal time nor substantial and significant time.
Significant amendments to the Act in 2006 enlivened judicial and academic debate as to the effect, if any, on the established principles in children’s matters involving a proposed relocation. It seems, however, that the authorities agree that the relevant principles remain:
·Relocation matters are parenting cases to be determined in accordance with Part VII of the Act and in the context of making necessary findings in respect of the relevant s. 60CC factors but also within the context of the s. 65DAA considerations of equal time or substantial and significant time and “reasonably practicable”;
·The best interests of the child remain the paramount but not the sole consideration;
·The child’s best interests must be weighed and balanced with the “right” of a parent to “freedom of movement” but such must ultimately defer to the child’s best interests;
·Neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party’s proposal generally including the advantages and disadvantages of a relocation or, may itself formulate proposals in the best interests of the child[5].
[5] See Taylor & Barker (2007) FLC93-345; McCall & Clark (2009) FLC 93-405; Sealy & Archer [2008] CAFC 142
The Wife
The applicant wife relied on her two affidavits filed on 26 August and 11 November 2013, together with a financial statement filed 11 November.
Ms Weiss was cross-examined intrusively and extensively. She maintained that her own emotional health and consequently X’s best interests would be served by her moving to Western Australia. She presented in the witness box as consistent with the observations of her in the family report and by the forensic psychiatrist, Dr G. She appeared generally vulnerable although at times some answers to her questions suggested a degree of stoicism. For instance, she was cross-examined as to her alleged negative reactions to the ongoing renovations in the home and the fact that she continued to work as a (omitted). She volunteered a response “that’s just what (omitted) do.” Whilst Ms Weiss’ evidence was generally honest and candid, she, not surprisingly, tended to emphasise factors which supported her own case and downplay those that did not. For example, cross-examination elicited evidence that her relationship with her sisters might not be as strong as she had indicated and relied upon, in part, for her relocation for Perth.
Ms Weiss gave evidence that she had only recently established a relationship with a therapeutic psychiatrist, Dr C, and volunteered that “there is still some work to be done”.
Ms Weiss was cross-examined as to her understanding of the potential effect on X of being removed from his husband. Her initial responses indicated that she may not have given any real consideration to this prospect and its potential impact. Her response at one point was:
I haven’t stopped to consider it because, as a parent, I would go where X was.
She later, after a break in the evidence, again volunteered:
Yes, I would make sure that the time is quality time.
Similarly, after her cross-examination, I gleaned that Ms Weiss had not given full consideration to the practical aspects of X maintaining a relationship with his husband if the relocation is permitted. Her evidence suggested to me that she had not thoroughly considered her own proposal in which involves X travelling at least six times a year from Perth to Melbourne in circumstances where he would need to be accompanied.
Ms Weiss however presented as a caring and devoted parent to X albeit perhaps one confused by her own wants and preferences as opposed to X’s needs and interests.
Mr N and Ms J
Mr N and Ms J are the wife’s parents. They were generally supportive of the wife’s proposal to move with X to Perth. They both gave evidence of then having established a bonded and beneficial relationship with X despite them living in Perth. Both have been regular visitors to Melbourne. I am satisfied that they would be supportive of Ms Weiss whether she moved to Perth or remained in Melbourne.
The Husband
The husband relied on three affidavits filed 19 July, 26 August and 18 November 2013 together with a financial statement filed 26 August.
Mr Weiss was cross-examined extensively as to his insight into the effect on his wife, as a young wife, living in a home that was allegedly still in the throes of renovation and unsuitable for the inherent difficulties for a first time wife. He generally denied the arguments of the wife and at times was dismissive of the matters put to him in cross-examination. Certainly, I noted, at the very least, a lack of empathy to the difficulties felt by this wife being a combination of being a first time parent, inadequate facilities and herself suffering from depression and other emotional problems. Much of his evidence was given in a calculated, pragmatic and often emotionless manner. Such is evidenced by his view as to the date of separation which he saw as being as early as May 2011. The evidence makes clear that Mr Weiss is of an entirely different personality and temperament to his wife. He saw separation as simply involving the cessation of intimacy. I am not satisfied, however, that he conveyed his views to his wife at that particular time. Mr Weiss has undoubtedly been able to develop a bonded and attached relationship with X, but has done so almost separately than within the family unit and without any real apparent understanding or sympathy of the difficulties that his wife was enduring personally and as a wife.
Mr Weiss was adamant that he would not move to Western Australia if the relocation of X is permitted. He says that he has family support in Victoria and that this is important to him. No doubt this is the case. However, whilst espousing this view, he appeared dismissive of the wife’s similar argument that she as a parent was in need of her own family support. Again, this lack of empathy was demonstrative of the difference in personality of these two parents. Mr Weiss is unemployed. He has no ties to Victoria other than his family connections. Such, I expect, is the fundamental conundrum of parenting matters involving a potential relocation where again there is inherent conflict between one’s own needs and preferences together with a want of freedom of movement as against the needs and attachments of a young child.
Ms M and Mr M
These witnesses are the husband’s wife and brother respectively. They were notable both in their support of the husband and his case to parent X in Melbourne and in their lack of empathy for the wife, her emotional history, and her argument to relocate to Perth. Mr M had assisted with the renovations to the former matrimonial home. He was dismissive of the wife’s concerns and her argument as to the state of the property and even when confronted with evidence that this wife and infant child came home to a house that had no cold running water in the kitchen.
The evidence of Ms M and Mr M satisfied me that they are supportive of Mr Weiss and X remaining in Melbourne. Equally, however, such evidence satisfied me that they would and could provide little in the way of emotional support to the wife if she is to remain in Melbourne.
Dr G
Dr G is a consultant psychiatrist and he provided an assessment in respect of both parents. He found Mr Weiss to be of unremarkable psychiatric history and current health. The assessment makes it clear that Mr Weiss is and was a passive personality and even in response to his wife’s outbursts of anger. Such is consistent of my observations of Mr Weiss in the witness box when his evidence was notable for being devoid of any emotion.
Dr G described Ms Weiss as having a complex type of depression and it being likely to take her longer to improve than a person who might simply be suffering situational depression. He noted a genetic disposition to depression exacerbated by a thyroid condition and a number of general stressors. He regarded the wife as a “vulnerable personality” and that:
…in an ideal world someone with that degree of depression would benefit from family support…
Specifically, Dr G was of the view that the wife’s depression might be exacerbated by remaining unhappily in Melbourne. However, he was open to the idea that the wife leaving the former matrimonial home and living separate from the husband would assist her recovery. Significantly, at the end of his cross-examination, Dr G volunteered the following statement:
We talk about cure and we talk about cure of an episode. Yes. We probably shy away a bit from using the word, “cure” for that kind of reason but I would, on the other hand, strongly state that depression is very manageable. An example we often use is diabetes or a physical condition like that. It can be a chronic condition but people can live ordinary, completely ordinary, successful lives with diabetes, just as they can with depression, so if I was seeing her as a treating psychiatrist I would still, despite everything, be quite optimistic about the long-term future, particularly given that she didn’t seem to have received robust and expert psychiatric treatment.
Dr G’s assessment of the wife can be summarised in his report at page 10 as:
The examiner is also of the opinion that Ms Weiss’ view that extra support from her family might be of assistance with regard to the management of depression is realistic, although robust psychiatric treatment must be the priority and a geographical relocation in the absence of such is unlikely to cure Ms Weiss of her depression.
In the absence of geographical relocation, a treating psychiatrist would explore other local options with regard to providing more psychosocial support for Ms Weiss.
Upon the history available, it would appear that ongoing part-time care by Ms Weiss of her son is not contraindicated for psychiatric reasons, however this examiner is not convinced that Ms Weiss is well enough to be a full-time carer of her son at this point in time.
Furthermore, any further deterioration in Ms Weiss’ mental state is likely to become a significant factor with regard to her ability in being an appropriate caregiver.
Family reporter – Ms L
Ms L provided a family report under affidavit of 22 November 2013. Her report is dated 8 November and interviews for its preparation took place on 8 October 2013. Ms L had the advantage of Dr G’s psychiatric assessments when preparing her report.
Ms L observed Mr Weiss as:
…a person who was reserved, gentle, cooperative and willing to participate in joint interviews with the wife. He appeared open and genuine, although he did display considerable distress regarding the prospect of separation from his son should the wife be permitted to relocate. However, the writer found Mr Weiss at times limited and reserved in his responses, demonstrating some difficulty in his own self-expression and ability to openly and confidently communicate.
Ms L noted Mr Weiss’ ultimate proposal that he and the wife have shared care of X with the assistance of medical intervention for the wife.
Ms L observed the wife as:
…presented as fragile and vulnerable. She was anxious and nervous, but was open, engaging and respectful during joint interviews with the husband. She appears overwhelmed by her current predicament and appears genuinely distraught upon the failure of her marriage. She feels the current involvement in legal proceedings is not her choosing, despite numerous efforts to seek a satisfactory outcome for both parents. Ms Weiss was insightful to recognise her role in promoting high quality husband-child relationships post-separation will benefit their son, but still seeks relocation to Perth in order to reconnect with her most substantial emotional supports, her family.
Ms L was made aware of the wife’s difficulties with X as an infant, including his sleeping problems and the home environment.
Ms L summarises the wife’s quandary at paragraph 30 of her report as:
In relation to her wish to relocate, this appears mostly to reflect her current level of despair and misery whilst continuing to live under the same roof as Mr Weiss. Ms Weiss recognises the absence of emotional support and access to her family, especially when she observes the strength of the support Mr Weiss receives from his family. It would be Ms Weiss’ wish that both parents could relocate to Perth, as she believes this would provide X with two very happy, secure and settled parents as she stated, “it would give X the best”. However, in preparation that she may not be supported to relocate to Perth, Ms Weiss would consider living in close proximity to the husband, engage X in local child care, support his transition to kindergarten, whilst seeking cooperative arrangements with the husband to share the care of X on an equal, flexible and friendly basis.
Ms L was able to observe X with both parents. She described him as “delightful, happy and thriving little boy. He is gorgeous, energetic, robust and curious.” She noted both parents as being active in his care and being able to provide details of his routine and interests.
Ms L noted a highlight of this matter being:
…the highly conflictual parents who remain distrustful of one another, as they refuse to communicate and acidulously avoid one another, as they have engaged in arguments and undermined and sabotaged each other’s role as parent. Most worrisome is the kind of violence that the husband alleges that the wife most denies, …
Significantly and in respect of X’s attachments, Ms L opines at paragraph 44:
Consideration of X relocating with the wife is with the understanding that his primary attachment would have been established with the wife given that she was the primary carer of the child since birth. However, upon interviews and observations, it was apparent that X’s attachments are equally significant and strong with both parents, as the writer observed him to be equally reliant and responsive to them both. Therefore, the writer would not support separation of the child from either of the parents for any great length of time.
The wife’s proposal together with X’s age drew comment from Ms L at paragraph 48, where she notes:
In considering recommendations for the care of X, it is critical to consider his age and stage of development, as it is essential that the level of contact X has with both parents should be frequent and substantial in order to maximise the relationship with each parent and maintain the child’s normal supports. During this stage in his life, X will thrive from predictability, consistency and routine, which provides for a safe platform from which to experiment with periods of greater separateness. X’s connectedness to both parents is highly active, competent and nurturing in the primary care of him should be considered in any care arrangements.
Ms L was cross-examined vigorously by Senior Counsel for the wife in respect of the premises for and her conclusions generally. It was put to her, for instance, that the notable strong bond and attachment between X and his husband might, in fact, give cause for optimism for a successful relocation to Perth. Ms L was dismissive of such a notion and was emphatic that for a child under three years of age contact on a minimum of a weekly basis is important and desirable. She said:
Attachment doesn’t “finish”. That is, if a secure attachment basis formed then a young child might tolerate short periods of separation but long periods of separation from an attachment figure will increase stresses and are impacted by memory retention issues.
Ms L, in cross-examination, described X as “almost unique” for a 21 month old child in that he has had the benefit of regular time and an established relationship and attached relationships with both parents.
It was put to Ms L in cross-examination that her report and opinion is somewhat “idealist” in that it contemplates leaving an unhappy, depressed wife without support in Melbourne where there is entrenched conflict between she and the child’s husband. Ms L’s response, put vigorously in both her report and evidence in court, is that these parents should have had, and need, the benefit of conflict dispute intervention with the implication being that therapy for the wife is desirable rather than simply a geographical move. In this respect she is in agreement with Dr G.
Ms L agreed that there was no evidence to support, and that she did not get the impression, that the wife’s motivations to move to Perth were other than bona fide.
Child’s best interests – Section 60CC factors. Primary considerations:
Section 60CC(2)(a) – Benefit to the child of having a meaningful relationship with both parents
X is just 22 months of age. On the evidence, particularly of Ms L, he has an established, bonded and attached relationship with both parents. He has had the benefit of regular time with both parents by reason of them living, albeit unhappily, under the one roof.
The task for the Court is to craft orders which assist children’s relationships with parents to flourish and to be meaningful and successful into the future. The authorities and the experts in the field are clear that such meaningful relationships are achieved not through simple quantity of time but through the quality of time between child and parent. In this respect, Ms L’s evidence is important, as she was indignant that frequency plus quality of contact is necessary in young children so as to sustain an already established attachment. She noted in cross-examination that:
“Relocation for pre-school children is very difficult because of their limited capacity to tolerate separation.”
Nevertheless, the consideration under section 60CC(2)(a), albeit a primary consideration, is just one of numerous considerations to be addressed by the Court. In Champness & Hanson[6] the Full Court observed:
“The submissions of Counsel for the husband also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, s. 60CC(2)(a) directs the Court to consider ‘the benefit to the child’ of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.”
Section 60CC(2)(b) - The need to protect the child from physical or psychological harm, from being subject to, or exposed to, abuse, neglect or family violence.
[6] [2009] FamCAFC 96 at 103
Recent amendments at subparagraph (2A) oblige a court to put greater weight in the balancing process of this subsection. The relevance here is the wife’s propensity for anger and the actual or potential exposure of X to such violence. The wife’s case, at its most simplest, is that she will be happier being removed from Melbourne and the husband and that this will address her anger management problems. Ms L and Dr G suggest professional assistance would be more appropriate and a greater priority. This is notable in Dr G’s report and quoted above, where he acknowledges the need for the wife to have family support, but recognises that “robust psychiatric treatment must be the priority and a geographical relocation in the absence of such is unlikely to cure Ms Weiss of her depression.” On the assumption that the wife’s depression and her anger management difficulties are somehow related, I give some real weight to Dr G’s comments. Ms L’s evidence was similar in its tenor and emphasis, noting that conflict counselling intervention was preferred.
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.
X is just 22 months old. He is not able to formulate or rationalise feelings and preferences as to his parenting arrangements.
Section 60CC(3)(b) – the nature of the relationship of the child with each of his parents and with other relevant persons.
This factor has been discussed at length above. The nature of X’s relationship with each of his parents is a familiar, regular attached and bonded one. The wife was the primary parent for the first period of X’s life. Nevertheless, the husband has always been an active and involved parent and more lately has been a continuing presence and contributor by reason of his unemployment and the parents living under the same roof.
Similarly, X has, on the evidence, had the benefit of developing strong and familiar relationships with his grandparents on both sides. Significantly, the maternal grandparents claim to have developed such a relationship despite living in Perth. They are regular visitors to Melbourne and have spent time with X. The question for the Court, and also in respect of the wife’s capacity, is the ongoing benefit for X and the wife of these frequent visits continuing. Obviously, if a relocation takes place then X’s relationship with his husband and with his paternal extended family would suffer a similar impact from distance and travel.
Ms L described the nature of X’s relationships with all important persons in his life as “developing by reason of his age”. She described his attachments as being established but still “in the development process”.
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 making major long-term issues in respect of the child and to spend time and communicate with the child.
Despite their personal difficulties, each of these parents has acknowledged the need for X to develop and maintain a relationship with the other parent. Neither has been guilty of failing to encourage or facilitate those relationships. Each of the parents, as evidenced by the family report, and confirmed by my observation of them in the witness box, is a dedicated and active parent.
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.
The parents remain living under the same roof with X. They both provide for his ongoing financial support. That situation might be re-addressed after the property settlement is finalised and the wife leaves the former matrimonial home. At this stage, the husband is unemployed and unless that circumstance is rectified then it is likely that the greater responsibility for X’s financial support would fall on the wife. Nevertheless, my observations of the husband are of a capable and qualified individual and one who is likely to return to the workforce shortly.
Section 60CC(3)(d) – the likely effect of any change in the child’s circumstances, the likely effect on the child of any separation from either of his parents or other relevant person.
This consideration is at the crux of any matter involving the potential relocation of a child. The current relationship is a daily, regular and informal one for X with both his parents. Should the wife relocate to Perth then inevitably such time will become less frequent and require structure, planning and agreement between the parents. There are suggestions from the wife that these changes can be accommodated or addressed at least in part, by the use of Skype, telephone and other media. I agree, with Ms L that such alternatives would be of limited value for a child so young and certainly not a substitute for regular and frequent face to face time.
Changes for children in relationships with their parents resulting from relocations can be more than personal or direct. For example, the ability of a parent to participate in educational and extra-curricular activities, and particularly those of a spontaneous nature, will be limited if not impossible. It may be impractical to share in important milestones for children. These are the factors anticipated in the definition of equal time and “substantial and significant time” in the Act as well as the notion of “reasonable practicability”.
Section 60CC(3)(e) – the practical difficulty and expense of the child spending time communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.
The wife’s proposal, if permitted to relocate to Perth with X, is for there to be a basic regime of monthly times for X with the husband. This would occur alternatively in Perth and Melbourne, resulting in X having at least six trips per year to Melbourne. The husband would travel to Perth on six occasions of each year. As mentioned above, the wife’s evidence in the witness box did not convince me that she had thoroughly thought through such a proposal. Such travel may be onerous for a child as young as X and will become onerous in other respects when he reaches school age and when he inevitably develops other interests and commitments which might conflict with a regular obligation in Melbourne. The cost of travel would not be insignificant given the requirement for some years of an accompanying adult. Conversely, the wife’s proposal that the husband travel to Perth each second month would potentially impact on any employment, be expensive, and would require him to obtain accommodation in Perth for such visits. In summary, I see both practical and financial impact of the wife’s proposal on both X and the parties.
Section 60CC(3)(f) - the capacity of each of the child’s parents and any other person to provide for the physical, emotional and intellectual needs of X.
This consideration is the thrust of the wife’s argument. She says that her capacity as a parent, and as primary parent of X, would be compromised by her being required to remain in Melbourne. I accept that she has a serious and continuing depression. She has manifested anger management problems. There is little doubt that the wife is grossly unhappy in her current living circumstances and I accept the bona fides of her evidence in this respect.
Nevertheless, the wife presented with interesting contradictions of vulnerability and fragility on the one hand and a sense of being stoic and extremely capable on the other. For instance, and despite her personal and relationship difficulties together with the trials of being a wife, she has maintained her onerous position as a (occupation omitted) (although Dr G expressed some concern as to this wife successfully carrying out these duties). Both Dr G and Ms L says that the wife’s difficulties may be addressed by her moving from the family home and undertaking various psychiatric and counselling assistance. I infer from the evidence of these experts that they are dubious of the wife’s capacity, both personally and as a parent, being addressed simply by geographical relocation. The wife has commenced psychiatric therapy in Melbourne and appears content with that professional relationship. The wife’s parents and other family members have been frequent visitors to Melbourne and might continue to give her support by ongoing regular visits.
The evidence of the husband and his witnesses, the family report, and my observations of the husband suggest that he is a capable parent. He presents with a passive and more detached temperament than does the wife. Nevertheless, the wife is not actively critical of the husband’s capacity to care for X, as evidenced by her proposal that X spend block times with the husband should he visit Perth.
Any issues of capacity of these parents is in their ability to recognise and understand their own different personalities and to deal with the consequent issues of communication, cooperation and mutual respect required for successful co-parenting.
Section 60CC(3)(g) – the maturity, sex, lifestyle, and background (including lifestyle, culture, and traditions) of the child and either of the child’s parents and any other characteristic of the child that the court thinks relevant.
The relevance of this subsection is X’s youth. The expert evidence of Ms L is that a child as young as X needs regularity and frequency of direct contact with the parent in order to maintain important attachments. This is so even if there is an established attachment. In this sense I distinguish the facts of this matter from a situation of a young teenager relocating where that child and the remaining parent have established such a strong and bonded relationship so as to be able to endure any changes in the frequency of direct contact and nature of their relationship brought about by a relocation.
Section 60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander.
Not relevant.
Section 60CC(3)(i) – the attitude to the child, and the responsibilities demonstrated by each of the child’s parents.
The wife is critical of the husband in this regard. She argues that he did not prioritise providing a fit and comfortable home environment for her as a wife of their child. The evidence is that the former matrimonial home has been in a process of almost perpetual renovation. The husband undertakes those renovations himself during weekends and holidays. Clearly this home has been and remains “a work in progress”. The obvious observation is that Mr Weiss seems completely oblivious to, firstly, the desire of this young wife to experience the joys of raising her infant in a comfortable and completed home and, secondly, as to the effect on her emotional health and happiness in this not being provided to her. The result has almost certainly been the demise of this marriage and a substantial impact on the emotional health of the wife.
Section 60CC(3)(j) and (k) – any family violence involving the child or a member of the child’s family and any family violence orders that are applicable.
Undoubtedly, on the evidence, the wife suffers episodes of anger. She has been physically violent. She has destroyed property. She properly concedes anger management issues and agrees that these must be addressed. From seeing and hearing these two parents in the witness box, I expect that the husband’s extreme passiveness, whilst commendable, serves only to irritate and antagonise the wife in her attempts to argue her various grievances. I infer that it is a part of the wife’s argument that these issues would be addressed by her moving away from the husband and moving to Perth with the support of her family. The tenor of the expert’s evidence is that a simple physical separation from the husband might also contribute positive results in this regard.
Section 60CC(3)(l) – whether it will be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the child.
It is, of course, the aim of trial judges to make orders workable in practice, that are both in the child’s best interests and lasting given that continued litigation is certainly not in a child’s interests. However, the prospect of further litigation remains real when dealing with issues of proposed relocation. For instance, if the relocation is permitted then it will be tested by the success of and reality of the wife’s proposals for X to maintain a regular and meaningful relationship with the husband. If her optimism proves unjustified then further litigation is likely. Conversely the experts suggest that the wife's personal and emotional difficulties are properly addressed by therapy and not necessarily simply by a relocation to Perth. They do however acknowledge her need for support and my observations of the husband and members of his family who gave evidence satisfied me that she will not receive necessary personal support from them if she is to remain in Melbourne. If, however, the wife’s unhappiness is not addressed successfully then again further litigation is possible. If the experts are wrong and the wife was to remain in Melbourne depressed, lonely and unhappy and with a consequent impact on her parenting capacity then further litigation is probable.
Discussion and Conclusions
This matter is a prime example of the complexities and competing considerations prevalent in parenting matters involving a potential relocation. There are strong and valid arguments on both sides. I am satisfied on the evidence that the wife is a vulnerable and dependant personality. She was initially the primary parent of X and has a strong attachment accordingly. She undoubtedly has a strong desire to live in Perth and enjoy the proximity of her family. There is little evidence of any alternative established support network for her in Melbourne. She does not have an easy or supportive relationship with the husband's parents. The nature of the parties’ own relationship was not such as to introduce a wide social circle and appears limited mainly to members of their church.
The husband concedes Ms Weiss to be a good wife and despite her psychological and anger problems. The wife argues her proposal to move to Perth to be enhanced by X, at 22 months, having an established, bonded and attached relationship with his husband and also with the extended paternal family. She acknowledges a change in that relationship but says it can endure and succeed.
The wife is a professional and I accept she could easily obtain employment in Perth. She offers a proposal which would give X regular direct time with his husband on a number of days each month. She offers the husband the opportunity to live in Perth and spend a shared care arrangement with her for X. She argues that the husband's reluctance to move to Perth, based only on his family support being in Melbourne, only emphasises her own predicament and her need for a support network.
The husband also mounts a strong argument. In doing so he has the support of the Family Reporter. He says that X is still young and that the attachment process is a continuing one. He argues that, like the wife, he too relies on a family support network in Melbourne. He has no connections to or history in Perth whereas the wife has lived in Melbourne for many years. He argues that the wife's proposal for X’s travel between Perth and Melbourne may not be practical in the long term and, in any event, will not address the need for such a young child to have a high frequency of direct contact with both parents. He says with some merit that a relocation to Perth will not allow him to participate in important parts of X’s life involving his education and other interests.
On reflection, I am satisfied that X’s best interests are served by him remaining living in Melbourne. I am mindful of the wife's right of a freedom of movement and again say that her proposal is a bona fide one. Nevertheless, I place considerable weight on the independent and expert evidence of Dr G and Ms L. Dr G is of the view that the wife's difficulties are primarily addressed, and as a priority, by psychiatric therapy and counselling. This process has already commenced in Melbourne. Similarly, Ms L says that conflict resolution counselling is of primary importance to these parents and vicariously to X.
Whilst I accept that the wife is diagnosed with serious depression and suffers other emotional difficulties, I am satisfied on the evidence that she would benefit from an actual separation from the husband and continuing therapy. She has lived in Melbourne for 10 years and since she was 22 years old. She has worked in a responsible position and has continued to do so despite her personal difficulties. Her parents have been frequent visitors to Victoria and the evidence suggests that they would continue to be so. The wife’s sister has visited. The wife herself has been able to travel to Perth with X. She could continue to do so.
I place considerable weight on the evidence of Ms L as to the need for a young child, such as X, to maintain regular and frequent contact with a parent so as to keep and develop important attachments. I am satisfied that various media, such as Skype and telephone, are not a complete or satisfactory alternative. I have concerns on the evidence as to the ongoing practicability and actual practical benefit of the wife's proposal for X spending time with the husband. He is young. The travel is relatively long and onerous. The period of time would be short with relatively long gaps of three weeks or more. There would be an ongoing expense for the parties by way of accommodation and travel costs involving accompanying adults. Whilst both parties have substantial financial resources, there are practical considerations of suitable accommodation that must be addressed.
The husband's proposal is one involving a roughly shared care arrangement for X between the parents in Melbourne (although he seems to weigh the days in his favour). These parents have actively shared the care of X thus far and Ms L notes that X is almost "unique" in having this benefit. By the wife vacating the former matrimonial home and obtaining alternative accommodation in Melbourne then such a regime is realistically capable of continuing. It remains a practical arrangement. It allows the wife to continue her professional therapy with Dr C. Such an arrangement would accommodate the wife’s employment with minimal disruption for X on the need to obtain alternative carers. I am therefore satisfied that the husband’s proposal, on it’s face, is a reasonably practicable one.
The Family Reporter makes a recommendation, both prior to and upon physical separation of the parents as follows:
… The husband is responsible for the day-to-day care of the child for three days (coinciding with the wife's work) with the wife responsible for the care of the child three days. At the remainder, the child is supported to be enrolled in child care.
The wife in her case outline proposes, should she not be permitted to relocate, that X live with her and spend time with the husband from Sunday to Wednesday each week. The husband's proposal is for shared care but that he have X for four nights per week. I repeat that it is now well established that it is the quality of time for children with parents rather than the days, hours and minutes that is important. I note, however, that the wife was the primary carer for X during his formative months. I also accept the husband's evidence that he is seeking work and that he would be reliant to a degree on his own family members should his work impose on his time with X. In all of those circumstances, I prefer the wife's proposal, which I assume works well with her own work commitments.
There will be an order that X live with the husband from Sunday at 5 pm until Wednesday at 5 pm each week or otherwise as agreed between the parties with the intention being that X is with the husband during the days on which the wife is working. I am of the view however that the wife should be permitted to travel to Perth with X for extended periods on at least two occasions per year at her discretion by giving some allowance for festive occasions. This, together with the likely visits from her family will assist in addressing her need to be with family.
I am satisfied in all of the circumstances that it is in X’s best interests for these parents to exercise equal shared parental responsibility. In doing so, I am mindful of the current communication difficulties. Such, however, is not unusual in separating couples and perhaps to be expected when they remain living under the one roof. My observations are of two dedicated but perhaps temperamentally diverse parents. This is not and should not be prohibitive of them objectively making decisions and cooperating in respect of their young child.
Property - The Relevant Law
The power to alter the property interests of parties to a marriage is provided for in section 79 of the Act in the following terms:
S79(1) - In property settlement proceedings, the court may make such an order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property...
S79(2) – The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
S79(4) – In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account -
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them...
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them...
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
(d) the effect of any proposed order upon the earning capacity of either party to the marriage;
(e) the matters referred to in sub-section 75(2) so far as they are relevant;
(f) any other order made under this act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Pursuant to section 79(4)(e), section 75(2), allows the court to consider the following, but not limited to the following, factors in determining an adjustment of property interests over and above any adjustments on account of contributions:
·The age and state of health of each of the parties;
·the income, property and financial resources of each of the parties and the physical capacity of each of them for appropriate gainful employment;
·whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
·the commitments of each of the parties that are necessary to enable that party to support to himself or herself;
·whether the parties have separated or divorced, and standard of living that in all the circumstances is reasonable;
·the duration of the marriage and the extent to which it has affected the earning capacity of the parties.
There has been recent re-consideration of the jurisprudence of section 79 of the Act by superior courts and, in particular, the High Court in Stanford & Stanford[7] and the Full Court in Bevan & Bevan[8], addressing the statutory and intellectual process for trial judges. Until recently it was considered well-settled that a judge entered into a multi-step process of consideration in arriving at orders which themselves (not just on a percentage division) be just and equitable. That process travelled through section 79(4) of the Act by firstly determining and attributing value to the property of the parties including assets, liabilities and financial resources with superannuation to be “treated as property” for this purpose. Secondly, the court considered the various contributions of the parties to that property pool including direct and indirect contributions and those as homemaker and parent. Thirdly, and after often reaching a percentage distribution on the basis of contributions, the court addressed any relevant matters under section 75(2) of the Act in determining where they be any further adjustment to either of the parties. Arguably, and fourthly, the court would “stand back” and consider whether it’s proposed orders be justice and equitable pursuant to section 79(2) of the Act. It is the orders themselves that must demonstrate just and equitable and not just the percentage division. However, some judges (notably Walters J now of the Family Court of Western Australia) argued there to be only three stages in the process and that the notion of justice and equity was to be considered throughout the process but did not stand alone as a particular stage in the determination.
[7] [2012] HCA 52
[8] [2013] FamCAFC 116
Now, and following the above mentioned judgments, the notion of justice and equity must permeate the entire process of consideration for the trial judge. At paragraph [72] in Bevan, the Full Court observed in respect of the “four step process”:
It follows that judges would be well advised to avoid what we consider to be arid discussion of the “stage in the process” at which “adjustments” are permissible. Such distinction tends to elevate the four step process to the status of a statutory edict, when in fact it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.
The High Court in Stanford has laid down three “fundamental propositions” as a guide to trial judges through the section 79 process and summarised in Bevan at [73] as follows:
(1) Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (As determined by common law and equity);
(2) The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
(3) A determination that a party has a right to a division of property fixed by reference only to the matter in s.79(4), and without separate consideration of s.79(2), would erroneously conflate what are distinct statutory requirements.
Importantly, the Full Court in Bevan observed that it may now be inappropriate for trial judges to make “notional add-backs” of property to a pool where one party has disbursed or had the benefit of an asset prior to the trial. Rather, the Full Court confirmed that such matters are properly dealt with under section 75(2) (o) of the Act, being:
any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
In summary, therefore, the trial judge must firstly determine the legal and equitable interests of the parties in property as of the date of the trial. There must be a determination then as to whether it is just and equitable, in the particular circumstances of the parties, to make any orders altering their property interests. In reality, however, this is not normally a difficult issue where parties have mixed their finances, made various contributions to assets, and had common use of those assets prior to a separation. Such is the case with the matter now before me. The Court considers and attributes weight to the various contributions of the parties and addresses the relevant matters under section 75(2) of the Act. The issue of justice and equity is considered throughout the process but in my view, it remains for the Court to consider the justice and equity of it’s proposed orders separate from any calculated percentage distribution[9].
[9] Russell & Russell (1983) FLC 91-356
Property Pool
The parties, to their credit, and with the assistance of valuation evidence, have agreed the property pool. The only minor issue is the quantum of the husband’s cash deposit. The wife and her case outline attributes a sum of $175,000 as at August 2013. The husband agrees but says that he has spent $10,000 of this amount on family and household expenditure since August. I accept his evidence in this regard. He is unemployed and has contributed from his cash resources. I expect the wife to have contributed from her earnings. His evidence as to the purpose of this expenditure was not challenged. Consequently, the property pool is as follows:
Assets
Former Matrimonial Home
$600,000
Husband’s Cash at Bank
$165,000
Wife’s Term Deposit
$265,000
Wife’s Part-Property settlement received
$30,000
Wife’s Motor Vehicle
$20,000
Husband’s Motor Vehicle ((omitted) and Subaru)
$10,500
TOTAL ASSETS
$1,090,500
Superannuation
Wife’s Entitlements with (omitted) Super (30 June 2013)
$22,000
Husband’s entitlements with (omitted) Super Trust (30 June 2013)
$275,000
TOTAL SUPERANNUATION
$297,000
TOTAL ASSETS AND SUPERANNUATION
$1,387,500
Neither party disclose any significant liabilities.
There remains an issue between the parties as to the date of separation and hence the length of cohabitation. The husband relies on his version of the length of the relationship in respect of her contributions and notably to his superannuation entitlement.
The husband says that the parties separated under the one roof in May 2011. He was clear that the parties slept in different bedrooms and that sexual intimacy had ceased by May 2011, being around the time of X’s conception. The wife acknowledges these facts, but argues that the marriage continued until June 2013.
In an affidavit sworn 26 August 2013, she says;
In his application and at paragraph 8 of Mr Weiss’s affidavit Mr Weiss states that we discussed separation in 2007 and separated under the one roof in May 2011, immediately following X’s conception. I do not agree. While I have in many ways been a single parent since X was born, I disagree with paragraph 8 of Mr Weiss’s affidavit and say that we separated on a final basis in June of this year under the one roof. It is true that Mr Weiss and I have not had sex since X’s conception. We were, however, both ecstatic about our being pregnant with X and celebrated with a holiday together to (country omitted) when we got to 12 weeks gestation. We took a family holiday to (omitted), in February 2012 and celebrated Christmas together in 2012. We attended joint marriage counselling until April 2013. It is true that we have not slept in the same bed since long before 2011, however this is as a result of us both working night shifts and being light sleepers, not because we were separated.
After considering the evidence, and on the balance of probabilities, I prefer the wife’s version that the parties finally separated in June 2013. It is clear from a long line of authorities, mainly those dealing with divorce, that “separation” is not synonymous with simple physical separation. Rather, it means the breakdown of a relationship. As long ago as 1976, Watson J, in Todd & Todd[10] commented,
“Separation” means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses formed the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.
[10] (1976) FLC 90-008
There is also a significant difference between a marriage which has “irretrievably broken down” and one which his “breaking down”. The crucial element of separation is the unambiguous conveyance by one party to another that the marriage has ended. I am not satisfied that this has occurred in the matter now before me. Obviously this marriage was deeply troubled for some time. The parties attended counselling. They continued to parent their child. The husband may have expressed his dissatisfaction, and perhaps even his intentions, to members of his family but I am not satisfied on the evidence that he did so unambiguously to the wife. The parties continued to socialise in public and with family members; they holidayed together; the wife continued to wear her wedding ring. In all of the circumstances, I find that the parties separated unambiguously in June 2013 when the evidence is that there were statements and actions by and between both parties consistent with them determining to separate.
This marriage therefore continued from 5 November 2005 until mid-2013 being a period of some seven and a half years.
Given the duration of the marriage and the various contributions of these parties, I am satisfied that a global approach to the property settlement is appropriate. It is, of course, open for me to adopt the alternative of an asset-by-asset approach[11]. The husband, in his case outline, appears to argue for the asset-by-asset approach although by the time of final submissions where his counsel seeks “a loading of 25 per cent to the husband on contributions” he seems to be accepting of the global approach.
[11] Norbis & Norbis (1986) FLC 91-712 and McMahon& McMahon (1995) FLC 92-606
The husband argues that he should receive a loading of 25 per cent on account of his superior contributions and that there be no adjustment in respect of section 75(2) considerations. The wife acknowledges the husband’s superior initial contribution and says that an adjustment of 20 per cent in his favour accordingly is just and equitable given a consideration of all subsequent contributions. She then argues for an adjustment in her favour after consideration of the section 75(2) factors being 10 per cent if she remains in Melbourne with X and 15 per cent if she assumes the more arduous primary carer role in Perth.
The parties agree that the husband owned the home at Property M prior to cohabitation. Valuation evidence before me by consent attributes a value of $330,000 to that property in November 2005. Its current value is $600,000. The parties agree that the husband had a mortgage liability of only approximately $20,000 at the date of the marriage.
I am also satisfied that the husband at the date of the marriage had accrued superannuation entitlements of approximately $150,000.
Both parties were substantially employed during the marriage, albeit for periods on a part time basis for the wife. The husband was made redundant in April 2013 and remains unemployed.
The wife was the acknowledged primary carer for X and homemaker until April 2013 when the husband lost his employment.
I am satisfied that the parties contributed equally and to their potential both directly and indirectly during the course of the marriage. The husband had a greater income, but the wife productively pursued her employment. In making this finding, I reject any argument that the wife’s contributions as homemaker and parent were made more difficult by the parties’ arguments and different opinions as to the course of renovation of the former matrimonial home. The wife’s counsel argues that the wife’s emotional difficulties and her parenting of X were compounded by issues in respect of the home. Whilst I accept that the parties were in vicious disagreement as to the process of renovation, I am not satisfied on the evidence before me that these disagreements resulted in the wife’s contributions being any greater or more onerous in an objective sense although I do accept her own personal dissatisfaction with the domestic situation and her own unhappiness which perhaps compounded her genetic disposition to depression.
The parties have continued to live in the former matrimonial home since separation. They have both continued to make contributions and, as set out above, I am satisfied that the husband’s particular financial contributions are now noted in the asset pool in respect of his savings although in doing so he has, of course, reduced the asset pool.
I also accept that the relatively significant cash resources of these parties are in part due to the redundancy received by the husband in April 2013 involving a package of some $147,000 and which is attributable to his employment of more than thirteen years with that company and noting the marriage of seven and a half years duration.
I am satisfied that the husband’s initial contribution by way of equity in the former matrimonial home, together with the pre-marriage employment aspect of his retrenchment package is significant. In doing so, however, I accept the submissions of counsel for the wife that the process for the Court is not one of simple mathematics or accounting. As the Full Court said in Garret & Garret[12]:
The wide and indefinite terms of para. (a) themselves suggest that where appropriate, and certainly in a case like the present, a broad estimate of the financial contribution of each party must be made. Under sec. 79(4)(v) non-financial contribution of each is to be taken into account. This must, of necessity, be a matter of judgment, and not of computation. Similar indications can be found amongst the relevant matters in s 75(2). It is also worth noting that para. (a) and (b) refer to the “contribution” and not the contributions of each party.
In this case it has been possible to determine with some degree of accuracy what the parties brought into the marriage, and what they received during co-habitation from their respective families. However, the long term significance of these contributions is not determined as a mathematical exercise. They enhanced the lifestyle of the parties and their children, who all benefited from them.
[12](1984) FLC 91-539 at 79,372
In respect of the husband’s superior initial contributions, and within the context of the duration of the marriage, the comments of the Full Court in Pierce & Pierce[13] are pertinent:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was as substantial contribution to the purchase price of the matrimonial home…
[13] (1999) FLC 92-844 Full Court are noteworthy at P85,881
The former matrimonial home is now unencumbered and valued at $600,000. The husband’s equity in that same property at the date of marriage was in excess of $300,000. His pre-marriage employment manifested in his redundancy package in 2013 also carries weight. Given the subsequent and various contributions of the parties and the length of the marriage, I am satisfied that a loading of 25 per cent of the tangible assets is appropriate and just and equitable.
The wife continues her employment as a (omitted). That employment is part time and impacted by her obligations to care for X although such obligations will now be shared by the husband. The wife’s income from this employment is approximately $26,000 per annum. The evidence suggests that full time work would bring her around $50,000 per annum. Notably, the wife has broadened her post-graduate qualifications and did so during the course of the marriage. She continues to work despite what I have found to be her emotional health problems.
The husband is currently unemployed. He has previously held work which brought him in excess of $100,000 per annum. He impresses me as a capable and keen individual and I share his optimism that he will soon return to the workforce albeit perhaps not at such a high level of remuneration.
Both parties will have the continuing responsibility for the care of X.
The husband’s counsel mounted an argument that there should be recognition of the husband being older than the wife and hence being potentially in the workforce for a lesser period. He argues for a consequent loading to the husband under s.72(2). Such an argument might have merit if a party was close to retirement. The husband in this case, however, is 45 years of age, and potentially has a further 20 years in the workforce. Historically, he has earned more than the wife. The vagaries and variables are such that I do not accept the husband’s argument in this respect.
The orders that I make will, by agreement between the parties, see the husband retain the former matrimonial home. This will in all likelihood involve the wife having the additional expense of either renting for herself and X or incurring the costs associated with purchasing a property. The husband will not have these outgoings.
Given the husband’s potential for higher earning capacity than the wife, although also taking into account his current unemployment and the fact that he will retain the former matrimonial home, I am of the view that an adjustment to the wife of five per cent of the tangible assets is appropriate.
Consequently, after consideration of the contributions in section 75(2) factors in respect of the asset pool, I am satisfied that it is just and equitable to be a distribution of the assets as to 70 per cent to the husband and 30 per cent to the wife.
The husband will retain the following:
Home at Property M
$600,000
Husband’s Cash at Bank
$165,000
Husband’s Vehicle
$10.500
TOTAL
$775,500
The wife will retain the following
Term Deposit
$265,000
Part-Property Settlement
$30,000
Motor Vehicle
$20,000
TOTAL
$315,000
The wife’s entitlement of 30 per cent of the asset pool is $327,150. The husband’s entitlement at 70% translates to $763,350. Consequently, there will be a cash adjustment from the husband to the wife of $12,150.
I intend to deal with the parties’ superannuation entitlements separately from the tangible assets. Neither party is in a position where their superannuation will crystallise or vest in the near future. The husband also brought far superior superannuation entitlements into the relationship. I accept his entitlement to have been approximately $150,000 at the date of the marriage. And the wife’s entitlements were minimal. The husband’s current superannuation entitlement is $275,000, and the wife’s $22,000. Again, a strict mathematical approach is inappropriate given that the husband’s entitlement at the date of the marriage is likely to have accrued interest, but also subject (like an asset) to the indirect subsequent contributions by the wife[14]. The wife at paragraph 63 of her trial affidavit proposes:
I also propose that the increase in value of our superannuation entitlements from marriage to date be equalised. If Mr Weiss’ evidence in relation to the separation date is accepted, I still propose the contributions I made during the period as homemaker and parent mean that I ought to share in the increase in value of Mr Weiss’ superannuation entitlements.
[14] C & C (2005) FLC 93-220
Without being mathematically precise, I agree that the husband’s initial contributions of superannuation should be given weight. Both parties then contributed to the superannuation policies generally. The increase mathematically during the course of the marriage is approximately a joint $144,000. If the parties were to have this increase “equalised” then they each achieve $72,000 from the increase. The wife’s current policy already “holds” about $19,000 of that increase. Consequently, I am of the view that it would just and equitable for there to be a split in her favour from the husband’s superannuation entitlement of $53,000. In all of the circumstances, I am satisfied that such a process is just and equitable.
The orders that I make, therefore, give recognition to the circumstances of the parties both now and prior to their marriage. The husband will retain the former matrimonial home, and the wife will remain in Melbourne and be required to obtain alternative accommodation for herself and their child. There will be a superannuation split from the husband’s policy so as to acknowledge the contributions made by each of the parties to their superannuation during the course of the relationship. As such, I am satisfied that the proposed orders are just and equitable.
I certify that the preceding one-hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 6 February 2014
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