Wilburn & Wilburn
[2019] FCCA 2131
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILBURN & WILBURN | [2019] FCCA 2131 |
| Catchwords: PROPERTY – Valuation of farming property – whether the father has disposed of matrimonial property – whether the father has disclosed his obligations of full and frank disclosure – whether the Court should draw adverse inferences from the father’s purported failure to provide full and frank disclosure. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 74 and 75 Family Law (Family Disputes Resolution Practitioners) Regulations 2008, r.25 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Taylor v Barker [2007] FamCA 1246 Weir and Weir (1993) FLC ¶92-338 |
| Applicant: | MR WILBURN |
| Respondent: | MS WILBURN |
| File Number: | DGC 1426 of 2018 |
| Judgment of: | Judge McNab |
| Hearing dates: | 12, 13, 14, 15 March 2019 and 1 and 2 April 2019 |
| Date of Last Submission: | 2 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2019 |
| Orders pronounced: | 2 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Laidlaw |
| Solicitors for the Applicant: | Tyler Tipping and Woods |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Aston Legal |
ORDERS
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for X born the …, Y born … 2012 and Z born … 2014 (‘the Children’).
The Respondent Wife be restrained by injunction and hereby is restrained from relocating the residential address of the Children from the Town D / Town E area unless otherwise agreed by the parties in writing.
The Children live with the Respondent Wife.
The Children spend time and communicate with the Applicant Husband as follows:
(a)during school terms, in a Three-Week cycle, commencing on 12 August 2019 as Week 1:
(i)weeks 1 and 2 – from after school or 3:30pm Friday until the commencement of school or 9.00am Monday;
(ii)week 3 – on Thursday from after school until the commencement of school or 9.00am Friday;
(b)for half of all school term and long summer holidays, as agreed, and in default of agreement:
(i)the first half of all term holidays, commencing at the conclusion of the school term and concluding at 5.00pm on the middle Saturday; and
(ii)in 2019 and each alternative year thereafter, the second half of the long summer holidays, and in 2020 and each alternate year thereafter, the first half;
(c)for Christmas, for the period Christmas Eve to Boxing Day as follows:
(i)from 5.00pm Christmas Eve to 3.00pm Christmas day in odd years;
(ii)from 3.00pm Christmas Day to 6.00pm Boxing Day in even years;
(d)as may be otherwise agreed between the parties from time to time;
(e)subject to the following:
(i)for avoidance of doubt, the Three-Week cycle of the Children’s time with the Applicant Husband during school terms shall be suspended for the period of each school term holiday and long summer holiday and thereafter continue in the said cycle, unaffected by the said period of suspension;
(ii)if the Children’s time with the Applicant Husband does not fall on Father’s Day, then the Children shall spend time with the Applicant Husband from 5.00pm the day prior to Father’s Day until the commencement of school the day following Father’s Day;
(iii)if the Children’s time with the Respondent Wife does not fall on Mother’s Day, then the Children shall spend time with the Respondent Wife from 5.00pm the day prior to Mother’s Day until the commencement of school the day following Mother’s Day; and
(iv)if the any of the Children’s birthdays fall on a day that the said Children are not with either parent then the Children spend time with the parent they are not then with, for a two hour block as agreed and in default of agreement, from 3.30pm (or the conclusion of school) until 5.30pm.
Changeover for the purposes of these Orders shall occur at the Children’s respective school or Children’s centre wherever possible and, if not a day when the Children so attend, then changeover shall occur at the residence of the parent who currently has the Children in their respective care.
That each parent shall immediately inform the other parent (including as soon as practicable via SMS) of any significant illness, medical treatment or specialist consultation required by the Children, or any of them, during the time spent with that parent.
The parties not criticize or denigrate the other party, or the other party’s family or any other associate of the other party, in the presence of or within the hearing of the Children.
The parties shall advise the other of any change of telephone number, contact mobile number, email or residential address within 24 hours of such change occurring.
Each parent is authorised by these Orders to obtain from the Children’s respective schools; all notices, letters, school reports and invitations, and be permitted to attend parent/teacher interviews or other activities to which parents are usually invited.
In the event that one or other of the parties view that a material change in circumstances arises in the future as to these Parenting Orders, the parties shall each do all things reasonably practicable to attend Family Dispute Resolution with a view to resolving any necessary changes, prior to issuing any fresh Application.
The parties do all things necessary to distribute the funds presently standing to the joint credit of the parties in the several accounts held with Commonwealth Bank of Australia,(‘CBA’), (being those account numbers ending #…, #… and #…, in the sum total of $535,000 or thereabouts), as follows:
(a)firstly, as to the Respondent Wife $471,600;
(b)secondly, as to the Applicant Husband $68,400;
(c)thirdly, as to any remaining balance, 45% to the Applicant Husband and 55% to the Respondent Wife;
(d)the funds in the accounts ending #… and #…, to be distributed within 7 days of the date of these Orders, or as soon as reasonably practicable, to the Respondent Wife in partial satisfaction of her entitlements herein; and
(e)the funds in the account ending #…, to be distributed contemporaneously with the Applicant Husband refinancing the existing mortgage to CBA as provided below.
The Applicant Husband shall retain as his absolute property the real property known as C(2) Street, Town D, (‘the C(2) Street, Town D’ property).
Within 60 days of the date of these Orders, the Applicant Husband shall do all such things necessary to cause the discharge of the mortgage affecting the title to the C(2) Street, Town D property so as to discharge any liability that the Respondent Wife has to the mortgagee (‘the discharge’) and the Applicant Husband shall indemnify the Respondent Wife in respect of any liability arising under the said mortgage. The receipt by the Respondent Wife of a letter from the mortgagee stating the Respondent Wife is released from personal liability in respect of any actions, claims, suit and demands arising under the said mortgage or any personal covenant or any personal guarantee it contains be sufficient evidence of compliance by the Applicant Husband with this Order.
In the event that the Applicant Husband fails, omits or neglects to comply with paragraph 13 of these Orders, the Applicant Husband do all acts and things and sign all documents necessary so as to effect a sale of the C(2) Street, Town D property (‘the Sale’) for the best price reasonably obtainable in the following manner:
(a)list the C(2) Street, Town D for sale by public auction to occur within 180 days from the date of these Orders, with such agent as the Applicant Husband may elect;
(b)the reserve sale price at which the C(2) Street, Town D property be auctioned be the price nominated as the fair market value by agent;
(c)the parties each co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i)allowing inspection of the C(2) Street, Town D property at all reasonable times requested by the agent;
(ii)doing or saying nothing to hinder or prevent a sale being effected; and
(iii)signing all documents requested by the agent in relation to the listing for sale of the property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
On settlement of the sale of the C(2) Street, Town D property as provided by paragraph 14 of these Orders, the proceeds of sale be applied in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agents commission, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
(b)the amounts required to discharge the mortgage;
(c)the amounts required to pay all municipal and water rates outstanding with respect to the C(2) Street, Town D property; and
(d)the balance then remaining will be property of the Applicant Husband.
The parties have liberty to apply on 3 days’ notice for implementation of these Orders in respect of the Sale.
Pending the completion of the Sale:
(a)the Applicant Husband have the sole right to occupy and receive the rents and profits of the C(2) Street, Town D property ;
(b)the Applicant Husband be solely responsible for the payment of any mortgage liability and other outgoings; and
(c)neither party encumber or further encumber the C(2) Street, Town D property without the consent of the other party or prior order of the Court.
The Applicant Husband shall retain as his absolute property, the farming business, including plant, equipment and any stock conducted on or from the C(2) Street, Town D property and or in the style “…”.
The Respondent Wife do all such things and sign all such documents in order to:
(a)resign from any office as trustee in the “Mr Wilburn and Ms Wilburn Family Trust” (the trustee of which is the owner of shares in G Company Pty Ltd);
(b)confirm or appoint the Applicant Husband as trustee thereof; and
(c)vest or transfer any property held in the said trust to the continuing or new trustee
(d)within 14 days of being provided such documents by the Applicant Husband.
The Respondent Wife shall retain as her absolute property, the mortgage broking business conducted by her.
Each party shall indemnify the other in respect of any liability whatsoever arising out of or in connection with the said businesses retained by each of them.
Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), the base amount allocated to the Wife out of the interest held by the husband in the Super Fund H superannuation fund (Member No. …) (‘the fund’) is $66,230.
Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of MR WILBURN interest in Super Fund H, the trustee shall pay MS WILBURN the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $66,230 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
Order 22 has effect from the operative time, being the beginning of the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee.
The Trustee of the fund, the Applicant Husband and the Respondent Wife, in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001, the Superannuation Industry (Supervision) Act 1993 and Superannuation Industry (Supervision) Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to the wife in accordance with Order 22.
Upon receipt of the Respondent Wife of the payment split notice issued by the Trustee pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Respondent Wife exercise her election pursuant to Rules 7A.05 and Rule 7A.06 of the Superannuation Industry (Supervision) Regulation 1994 to request the Trustee create a new interest in the Respondent Wife’s name in the fund or to rollover or transfer the transferable benefits to such Fund/Funds of the Respondent Wife’s choosing.
Until the happening of any of the following (whichever is the earlier):
(a)the creation of a new interest in the fund, transfer or roll-over into another superannuation fund, of the payment split created by Order 22; or
(b)the Respondent Wife satisfies a condition of release in accordance with Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994, and is paid the payment split created by Order 22.
The Applicant Husband be and is hereby restrained by himself, his servants and agents from executing a binding death nomination in favour of any person other than the wife or from doing any such act or thing which would render any part of his interest in the Fund a non-splittable payment within the meaning of Rules 12 and 13 of the Family Law (Superannuation) Regulations 2001.
The solicitor for the Respondent Wife serve a sealed copy of these Orders on the Trustee of the Fund within fourteen days of the making of these Orders.
Unless otherwise specified in these Orders, each party shall be entitled to ownership and possession to the exclusion of the other of all other property (including choses-in-action) as is in the possession of such party down to the date he role of, and for this purpose:
(a)each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date;
(b)plant and equipment, household furniture, domestic effects and chattels personal located within or about the real properties are to be the property of the respective transferee thereof;
(c)superannuation entitlements are deemed to be in the possession of the party whose working future provides the conditions for payment out of such entitlements, and each party hereby forgoes any claim either has against the other for any share of superannuation entitlements;
(d)all insurance policies to become the sole property of the beneficiary named therein;
(e)each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
Pursuant to section 81 of the Family Law Act1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
The value of the transferable benefits to be transferred from the Applicant Husband’s interest to the Respondent Wife’s interest will be calculated by the Trustee of the fund in accordance with regulation 7A.11 of the Superannuation Industry (Supervision) Regulations.
Pursuant to rule 14F of the Family Law Superannuation Regulations 2001, any payments made for the Applicant Husband’s interest in the fund after the Trustee has created a new interest in the Respondent Wife’s name as contemplated by Order 22 are not splittable payments.
IT IS NOTED that publication of this judgment under the pseudonym Wilburn & Wilburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1426 of 2018
| MR WILBURN |
Applicant
And
| MS WILBURN |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
On 1 May 2018 the Applicant father (‘father’) filed an Initiating Application in this Court seeking parenting orders. The father by this application sought that the three children (‘children’) of their relationship live in his primary care.
The children are:
a)X born … 2012;
b)Y born … 2012; and
c)Z born … 2014.
The Respondent mother (‘mother’) filed a Response on 2 July 2018 seeking primary care of the children, a division of property and that she be permitted to relocate from Town D to Melbourne (particularly Suburb HH) with the children.
A significant issue in this matter is whether the mother should be permitted to relocate to Suburb HH with the children. The father disagrees with this proposal.
The father sought orders, by his Closing Submissions handed up in Court, that if the mother is restrained from relocating the children to Melbourne, the children live on an equal time basis with each parent.
Alternatively, the father seeks:
During school terms, in a two week cycle –
Week 1 – from after school or 3:30pm Thursday until before school or 8:30am Tuesday;
Week 2 - from after school or 3:30pm Thursday until before school or 8:30am Friday.
For half of all school term and long summer holidays, as agreed, and in default of agreement, the first half.
The father also sought orders for half of the school holidays and special occasions.
At trial, the central issues of the property dispute were:
a)the existence of any livestock, with the mother asserting that the father owned cattle which he had not disclosed and that the value of those cattle (which the mother estimated to be $90,000) should be added to the pool of assets;
b)the value of the farm at C(2) Street, Town D;
c)the appropriate split of assets:
i)the mother submitting that the assets should be divided 75% in her favour and 25% for the father; and
ii)the father submitting that the assets ought to be divided equally.
Background
The parties
At the time of the hearing, the mother was 36 years old and the father was 41.
The parties had been living together since … 2005 and were married on … 2008 in Country JJ.
The parties have lived, owned property and worked in the Town E and Town D area during their relationship.
They have raised their three children in this region. The two elder children, X and Y, aged 7, are twins and they attend Town D Primary School. The youngest child, Z is aged 5 and attends a Community Children’s Centre.
On 15 October 2017 the parties separated. They have not divorced.
Court history
This proceeding began on 1 May 2018 when the father filed his Initiating Application.
The parties did not attend a Family Dispute Resolution as the practitioner determined this matter was not appropriate for mediation. The Family Dispute Resolution practitioner relied on rule 25(2) of the Family Law (Family Disputes Resolution Practitioners) Regulations 2008, that:
In determining whether family dispute resolution is appropriate, the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:
(a) a history of family violence (if any) among the parties;
(b) the likely safety of the parties;
(c) the equality of bargaining power among the parties;
(d) the risk that a child may suffer abuse;
(e) the emotional, psychological and physical health of the parties;
(f) any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.
This decision is puzzling given the absence of family violence allegations sufficient to engage the provisions of the regulations. This proceeding should have been the subject of mediation prior to the proceeding being issued.
The matter came before Judge Small on 16 July 2018 and orders were made:
a)with respect to parenting issues, that:
i)the children live with the mother;
ii)the children spend each weekend with the father (from afterschool Friday to 5pm Sunday);
iii)the parties attend upon Ms A, a Family Consultant; and
iv)the parties do all things to conduct a mediation upon the release of the Family Report, discovery and valuation of all assets in dispute;
b)with respect to property issues, that:
i)the parties agree to be enjoined from disposing of assets or withdrawing funds held in joint accounts;
ii)they agree to appoint a mutually agreed single valuer to value C(2) Street, Town D, the livestock and the farming machinery should they disagree on the value of those items (which they did); and
iii)that they may request, and will receive, financial documents sought by the other party.
On 18 September 2018 further orders were made by consent, reiterating the orders made on 16 July 2018 in relation to the appointment of a single valuer to value the property, machinery and livestock.
Proposals of the parties
By final submissions, the father sought orders in summary that:
1. That the parties have equal shared parental responsibility for the children X born the … 2012, Y born … 2012 and Z born … 2014, (“the Children”).
2. The Respondent mother be restrained from relocating the children from the Town D / Town E area.
3. The Children live with the parties on an equal time basis.
4. Alternatively to order 3, the Children live with the Respondent mother and spend time and communicate with the Applicant Father as follows:
(a) During school terms, in a two week cycle –
(i) Week 1 – from after school or 3:30pm Thursday until before school or 8:30am Tuesday;
(ii) Week 2 - from after school or 3:30pm Thursday until before school or 8:30am Friday.
(b) For half of all school term and long summer holidays, as agreed, and in default of agreement, the first half.
(c) If the Children’s time with the Applicant Father does not fall on Father’s Day, then the children shall spend time with the Applicant Father from 10.00am on Father’s Day until the commencement of school the following day;
(d) If the children’s time with the Respondent mother does not fall on Mother’s Day, then the children shall spend time with the Respondent mother from 10.00am on Mother’s Day until the commencement of school the following day;
(e) If the children’s birthday falls on a day that they are not with either parent then the children spend time with the parent they are not then with, for a two hour block as agreed and in default of agreement, from 3.30pm (or the conclusion of school) until 5.30pm;
(f) For Christmas, for the period Christmas Eve to Boxing Day as follows:
(i) from 9.00 am Christmas Eve to 1.00 pm Christmas day in even years
(ii) from 1.00 pm Christmas Day to 6.00 pm Boxing Day in odd years
(g) as may be otherwise agreed between the parties from time to time.
Property
5. That the property of the parties be divided on an equal basis with the Applicant Father to retain the property at C(2) Street, Town D and pay such sum as required to the Respondent mother.
The orders sought by the mother are:
1. That there be an adjustment of the parties’ property interests as to 75% to the mother and 25% to the Father of the non-superannuation property pool.
2. That there be an equalisation of the parties’ superannuation.
3. That the children reside with the mother.
4. That the mother be permitted to relocate to the Suburb HH area or surrounds in Melbourne with the children.
5. That the children spend time with the Father:
a. three out of four weekends from 5pm Friday until 5pm Sunday;
b. half of all school holidays; and
c. on the usual special occasions.
Evidence
Evidence of the parties
The father relies on the following documents:
a)Initiating Application of Mr Wilburn filed 1 May 2018;
b)Reply of Mr Wilburn filed 12 September 2018;
c)Financial Statement of Mr Wilburn filed 12 September 2018;
d)Trial affidavit of Mr Wilburn filed 7 November 2018;
e)Affidavit of Mr J filed 7 November 2018; and
f)Affidavit of Mr K filed 9 November 2018.
The mother relies on the following documents:
a)Amended response to Initiating Application filed 28 February 2019;
b)Financial statement of the mother filed 2 July 2018;
c)Affidavit of Mr L filed 5 November 2018;
d)Affidavit of Ms M filed 5 November 2018;
e)Affidavit of Mr N filed 14 November 2018;
f)Affidavit of Ms O filed 14 November 2018;
g)Affidavit of Mr P filed 16 November 2018;
h)Affidavit of Ms A filed 16 November 2018; and
i)Trial Affidavit of the mother filed 26 February 2019.
Living Arrangements
Father’s evidence in relation to parenting
The father works as a professional – for G Company Pty Ltd– in Town E. He works full time and has a share in the equity of G Company Pty Ltd.
The father asserts that the parents equally co-parented the children and when one parent was busy working, the other would care for the children.
The father notes that he has limited flexibility each Wednesday and every second Thursday when he is required to attend market. Attending and preparing for market requires the father to leave home very early at around 4am. The father says the mother also had obligations that took her out of the house and away from the children: ‘[the mother] works long and irregular hours’. [1] When this occurred (and ‘after they had been bathed and fed’) he would be in charge.[2]
[1] Mr Wilburn trial affidavit filed 7 November 2018 [31].
[2] Ibid [17] and [54].
The father deposes to being the ‘principal conveyor’ of the children to their extra-curricular activities: specifically, attending sports for X, and Y.[3]
[3] Ibid [18].
The father says that since separation, the mother’s intentions ‘are not clear as she changes her mind frequently’.[4] He asserts that she had plans to purchase a house in Town D for ‘around $1 million’[5] and had planned to purchase a property in Town D that her parents owned. Shortly after this proposal, she proposed moving to Melbourne.[6]
[4] Ibid [33].
[5] Ibid [40].
[6] Ibid [42].
The father deposes to being interested in the children’s schooling. He responds to the mother’s assertion that he does not attend school assemblies by saying that he does and that he rarely sees the mother there. He also claims to attend the school sports programs and productions. I accept the father’s claim that he is interested in his children’s schooling and wishes to be present at their school events.
The father also led evidence that his workplace was flexible and would allow him to care for the children during the week. Mr K, the general manager of G Company who employ the father, said that the firm is mindful of family responsibilities and that they would support the father in his role as a parent.
Mr K gave evidence by a letter attached to his affidavit of 9 November 2018 that stated that the father’s ‘future terms of employment with G Company can be restructured to accommodate a single parenting role and the needs of his children’.
Mr K did note that he is running a business and the father has a large number of clients that he deals with and is required to travel to their farms. He also travels to other rural locations and it was not unusual for the father to start at 4am on those days. Whilst noting these circumstances, Mr K stated that G Company would do everything in their power to support the father.
Mother’s evidence in relation to parenting
The mother gave evidence that she was the primary care giver while the parties were married. She maintains that she continues to be the primary carer, given that she has the children the five weeknights each week.
She deposes that she took 10 months of maternity leave each time she gave birth and was:
responsible for all domestic duties including cooking, cleaning, washing, grocery shopping and [was the] primary care giver to the children.[7]
[7] Ms Wilburn trial affidavit filed 26 February 2019 [29].
The father in contrast, claims that:
I was predominately responsible for undertaking the laundry, garden maintenance, domestic duties and bathing the children.
THAT since [the mother] commenced her own business in 2016, I attended to most of the care of the children whilst [the mother] was setting up her business.[8]
[8] Mr Wilburn trial affidavit filed 7 November 2018 [13]-[14].
The mother stated that the father was, in fact, responsible for the ‘maintenance around the home such as the gardening and would occasionally cook on the barbecue’.[9]
[9] Ms Wilburn trial affidavit filed 26 February 2019 [29]
The mother contests the father’s evidence as to his involvement in the children’s lives. She lists notable occasions where the father has not been present, from the twins’ first day of grade 1, to the youngest child’s first day of Kinder, to sports lessons.
Since separation, the mother deposes that her and the father’s ability to parent has been difficult. She gave evidence that the father has been disinterested in parenting and has left many parenting responsibilities to her.
On financial matters relating to the children’s care, the mother states that:
I have been responsible for paying for all of the children’s expenses including school fees, uniforms, clothing, extra-curricular activities, entertainment, and all other living expenses while the children are in my care with minimal assistance from [the father].[10]
[10] Ibid [31]
She asserts that the father refused her requests to help her pay for the children’s needs and extra-curricular activities. In one instance, she alleges that the father refused to supply the child’s health insurance card. This caused her to have to pay for the child’s glasses in full, without the benefit of insurance.
The mother further asserts that the father’s taxable income, and therefore his Child Support, is significantly lower than it should be because of the ‘heavy farming loss deductions he receives’.[11]
[11] Ibid [33]
The mother also claims the father is not interested in having more time with the children. She recounts times she has offered to give the father more access, which he has declined to take up.
The mother also gave evidence that she has requested more time with the children, particularly the ability to spend time with them on the weekends. She asserts the father, rather than asking the mother for help and allowing her to have more time with the children, paid for a babysitter or utilised family friends.
The mother gives further advice that the father is attempting to alienate her from the children by telling the children she is attempting to sell their farm. The mother alleges that the father makes this claim often, noting specific times when he made the claim in the presence of her and the children and other times where the children have returned from their father asking why she is selling their farm. She further alleges the father is not facilitating phone calls from the children to her.
The mother is also concerned that the father does not always take appropriate precautions with the children. She recounts events where the children were not in the correct car seats, instances where the children were not wearing helmets while riding motorbikes, and that the father can be generally distracted from caring for the children while working on the farm.
Domestic Violence
The mother deposes that the father has called her ‘bitch’ and ‘slut’ on a number of occasions post separation, and claimed to others that she ‘took pills and went silly’ and that he told the children that she was ‘selling their farm’.[12]
[12] Ibid [66].
She recounts two instances where she says that the father has been in her house without her consent. The first instance is where the father sent the mother stock images of women’s underwear, asking the mother whether she ‘liked’ those items. The mother deposes that the underwear in the photos were of similar underwear she had recently purchased.
The second instance was when the mother received flowers on Valentine’s Day. She deposes that the father later questioned her about these flowers.
The father denied the allegations made by the mother, particularly the allegations that he had been in her house. The allegations of family violence did not feature as a significant aspect of this case and the mother withdrew the notice of risk she had filed prior to hearing.
Relocation
The mother is proposing to move to Suburb HH with her children. The mother intends to rent in the Suburb HH area and stated that she is ‘hopeful that I will eventually be in a financial position to purchase a home for the children and I to reside’.[13]
[13] Ibid [113].
The mother’s evidence indicates that she has given considerable thought to this proposal. She has researched the school the children could attend and the extra-curricular activities available.
She gave evidence that she has built strong friendships and work acquaintances in Melbourne. She stated that the move to Melbourne would improve her mental and emotional well-being as she would be able to socialise with friends and have deeper connections with work colleagues.
The mother claimed this was in contrast to her current situation in Town D. She said that since the demise of her relationship, the father has spread rumours that she had affair and/or has problems with prescription drugs. She said these rumours had caused her to lose long-standing friendships and made it difficult for her to socialise in the community. She claimed that she no longer enjoyed going out in Town D and that she is ‘completely alienated from my friends’.[14] No evidence was called from any third party to verify the allegations she raised as to being socially isolated or to corroborate allegations that the father had sought to alienate her from her friends or in the community generally.
[14] Ibid [122].
The mother also contends that Melbourne offers her better work opportunities. The mother gave evidence that she is currently working from home on weeknights and weekends. She stated that due to a lack of administrative support, she is forced to work long hours running the business on her own from home. She states she would like to work with the Company Q and has offices in Melbourne CBD, and Suburb KK.
The mother said that she would like to work three days per week in an office environment and otherwise stop working from home. She gave oral evidence that she would like to work during school hours. She also gave oral evidence that, presently, most of her clients are local and/or in the Suburb LL/Suburb MM area.
If she was to conduct her business through Company Q, she anticipated earning about $80,000 gross per annum which she described in the evidence as salary. She gave evidence that her current taxable income for the year up to the end of January 2019 was about $100,000.
The mother claimed that, if she relocated to Suburb HH, she would be able to work between the hours of her children attending school. In this way, she would be able to drop them off and pick them up.
The mother believes that working for a company such as Company Q is better than working independently (as she currently does), as companies such as Company Q do much of the administrative work.
The mother relied on an affidavit from Mr N filed 14 November 2018. Mr N is a principal at Company Q . His evidence consisted of a signed letter dated 13 November 2018 addressed to “whom it may concern”. The letter, which referred to the mother, is purportedly written by Mr N.
Mr N’s letter describes Company Q’s business model and explained that if the mother was to become associated with Company Q , she would retain her ‘corporate entity’ and ‘contract to Company Q’. She would continue to receive upfront and trail commissions on the work that she generated in her business. The mother would pay a fee to Company Q to cover the administration costs, technology, phone, memberships, insurance and accounting and Company Q would otherwise support her in progressing her work.
Importantly from the mother’s point of view, Mr N stated that Company Q would enable her to have the work life balance she desires. The letter stated as follows:
Ms Wilburn has been specific in her request to continue to build her business and generate income, whilst also having flexibility around the care of her three children. We believe we will reach a positive outcome, whereby Ms Wilburn will be able to balance both her home and work life, and we are keen to show the industry that established professionals, and mothers with young families can become very successful, provided the right support structure is implemented.
Ms Wilburn would be employed under a contract with Company Q, and as such would not have any specific working hours that she is required to be present in the Melbourne office. She has indicated she would like to be in the office during school hours. By joining our business, we know Ms Wilburn will have the work/life balance she desires, and increased income and provide every opportunity for her children to spend more quality time with their mother.
The directors of Company Q are aware of, and sympathetic to Ms Wilburn’s current custody and relocation issues.
Mr N was cross-examined on his affidavit. His oral evidence did not bear out what was set out in the letter purportedly written by him. In his oral evidence, Mr N was unequivocal that the expectation was that employees who were engaged with Company Q worked at least 40 hours per week and he referred to the 80 hours that he worked per week as a high achiever. He stated that employees were not able to work three days a week or only during school hours, and that there was no capacity for part-time employment. He also gave evidence that the role was not fully flexible – that employees generally worked ‘quite a few hours in the office’.
He gave evidence of different models of engagement, one being direct employment whereby an employee agent working full time could earn up to $80,000 plus commissions of up to $20,000 per annum. The other form of engagement was whereby the employee was engaged through a company and the relationship was one where Company Q provided support through services for a share of commission.
As a consequence of the evidence given by Mr N, the mother sought and was given leave by the Court to rely on the evidence of Mr U, another principal of Company Q. Mr U’s affidavit was filed 28 March 2019. That affidavit attached two letters written by Mr U: one dated 27 March 2019, the other dated 23 May 2018. Parts of the letter from Mr U dated 23 May 2018 are identical to the letter written by Mr N referred to above.
The letter from Mr U dated 27 March 2019 purports to correct the evidence of Mr N by stating that Mr U is more concerned with staffing and human resources whereas Mr N is focused on business and seeing clients. It also states to the effect that Mr N has not been directly involved in the discussions that occurred between the mother and Mr U and that Mr N is ‘one hundred precent supportive of any business decisions I make, staffing or otherwise’.
The letter then goes on to state:
Ms Wilburn has advised me that she is responsible for the care of her children from Monday to Friday each week. She has told me that any work opportunity would need to be flexible to enable her to attend our office during school / kindergarten hours, to give her the ability to be back in Suburb HH for school pick up each day.
Ms Wilburn has advised me that at this stage of her life, quality time with their children is of the upmost importance to her, which we respect. I believe that with the structure we have in place within Company Q, we will be able to help Ms Wilburn achieve the balance she desires as well is flexibility around income.
In his oral evidence before the Court, Mr U stated that the mother could work three days per week in the office but that otherwise she could network and seek out clients in the hours spent out of the office.
The contrast between Mr N’s oral and written evidence is such that I have real doubts as to whether he had written the letter. The fact that a significant part of Mr N’s and Mr U’s letters were identical also makes me doubt whether Mr N had written the letter.
Family Report
Ms A, a Family Consultant prepared a Family Report dated 22 August 2018.
The Family Report was received into evidence by an affidavit sworn by the Family Consultant on 16 November 2018 and filed on behalf of the mother. The Family Report was prepared after the Family Consultant interviewed and then observed each of the parties with the children. The Family Consultant gave oral evidence by telephone and was cross-examined by Counsel for the father.
The report sets out the background to the family dispute. The Family Consultant noted that the parents described different levels of parental involvement. The mother claims that she was the primary carer as she provided the majority of care for the children due to the father’s work. The father asserted that parental duties were shared and he looked after the children on weekends when the mother worked.
The Family Consultant noted the parties’ competing proposals, particularly the father’s proposal that if the mother relocated to Suburb HH the children should live with him and spend time with the mother as agreed by the parties. The Family Consultant also noted the father’s opposition to the mother’s relocation. The Family Consultant expressed that the father held a ‘fixed view’ that there was no benefit to the children if they were to relocate and that he in fact ‘felt that it would be emotionally devastating to them to adjust to a new place and a new way of life after being ripped away from their familiar school, friends and relatives as well as the community that they belonged to at present’.[15]
[15]Ms A, Family Consultant, filed 16 November 2018 [18].
The Family Report refers to the father having ‘shared that although the children would be traumatised if they are separated from their mother, he felt he had no option but to seek orders for the primary care of the children’ if she relocated to Suburb HH.[16] The father, in his evidence, did not accept that he told the Family Consultant that the children would be traumatised if he has primary care of them.
[16] Ibid [20].
The Family Consultant noted that the mother presented as an affectionate parent and a thoughtful person who was keen to move away from her current location and start a new life in Melbourne.[17] The Family Consultant recorded, in relation to the mother’s interview with her, that:
[17]Ibid [21].
a)the issue of relocation was a painful topic for the parents;
b)the mother felt that her move from Town D to Melbourne was not an impossible distance (being a 90 minute drive);
c)such a distance would not prevent the father from attending the children’s school events in Melbourne;
d)the relocation had not been decided on a whim and that the mother had made the decision after weighing up her options in relation to her job, future income and achieving the work-life balance she desires;
e)the most important factor behind the application to relocate to Melbourne was based on her wish to work within an established office (such as Company Q);
f)the mother did not wish to open her own office and wanted a job with fixed hours so that she could enjoy time with the children after work;
g)Company Q had very efficient systems and processes in place and she would have the luxury of support staff to assist her with files;
h)that she initially wished to work part-time; and
i)the mother spoke in detail and confidently about her plans in relation to her future work, the children’s school, the children’s education, the children’s extracurricular and social activities, the proposed rental home in Suburb HH and the arrangement for the children’s time with the father if she was allowed to relocate with the children to Melbourne.
In evaluating the matter and making recommendations, the Family Consultant expressed the view that:
Ms Wilburn presented as a confident and capable mother. She is proficient in providing wholesome and protective care for the children irrespective of where she resides. She makes it clear that she is not moving to find a new life partner. She has undeniable evidence to state that Mr Wilburn is in a new relationship with Ms V. Ms Wilburn stated that she wants Mr Wilburn to be happy in his new relationship. On the same note, she also asks for a chance to be happy and content with her life as she chooses to be and, in a location, where it is possible.
The writer is of the view that the children emotionally thrive better if they perceive their primary care figure as happy and content. The children are physically and emotionally healthy and they appear capable of adjusting to new location and circumstances as long as they retain meaningful relationships with both parents.
The writer is of the view that Ms Wilburn has carefully considered her relocation to Melbourne, being mindful of various factors such as her office set up, hours of work, the new rental home, children’s school and other activities in her new location etc. She has the support of her parents in Melbourne as she has in her current location. She is a protective and mindful mother and capable of providing a good level of care to her children. Most of all, she is willing and happy to allow the father and children to continue substantial time together in the future as she has done in the past. She values the importance of the father in her children’s upbringing.[18]
[18] Ibid [51]-[53].
The Family Consultant recommended that if the Court does not allow the mother to relocate the children to Melbourne, then:
the children spend time with the father two weekends out of three from after school Friday until Monday 9.00am. In the third week, the children spend time with the father after school until 6.00pm on a week day, so that there is frequency of visits.[19]
[19] Ibid [57].
The Family Consultant recommended that if the Court does allow the mother to relocate to Melbourne with the children, then:
the children spend time with the father three weekends out of four from Friday 5.00pm until Sunday 5.00pm.[20]
[20] Ibid [58].
If orders were made allowing the children to relocate, the Family Consultant recommended that changeover should occur at Suburb NN or as agreed by the parties.
The Court asked the Family Consultant when there is no particularly compelling reason to shift, such as the need to escape a violent relationship – what are the factors that you analyse in assessing what’s in the best interests of the children rather than the best interests of the adult?[21] For the reasons set out below, the Court recognises that compelling reasons are not needed to justify the relocation of a parent. The question was asked in order to ascertain the Family Consultant’s views on why the proposed move was in the best interests of the children.
[21] Transcript, 2.58pm Friday 15 March 2019
The Family Consultant’s response was to the effect that if the mother is happy and flourishing, the children will be better off. She further stated that because it would be just 90 minutes between the parties there is an opportunity for the children to spend time with the other parent and the well-being of the children is very connected to the well-being of the parents. She also made reference to the future benefits of the children – although without any elaboration of what the future benefits were –arising from relocating to Suburb HH rather than remaining in Town D. The Family Consultant considered that the mother would be able to ‘come up in life and make money’ if she relocated to Melbourne and was able to work in an office with support.[22]
[22] Transcript, 2.58pm Friday 15 March 2019
Conclusions on the Family Report
The recommendations of the Family Consultant both in the Family Report and oral evidence were predicated, in a large part, on accepting the mother’s evidence in relation to the work arrangements and living arrangements that she would be able to organise in Melbourne.
The notion that the mother would ‘come up in life and make money’ as a result of relocating to Melbourne and working through Company Q was not borne out by the evidence given before the Court by representatives of that business.[23]
[23] Ms A, transcript, 2.58pm Friday 15 March 2019
The notion that the children would be happy because the mother would be happy because of her better financial position, her independence and her capacity to work part-time falls away when dealing with the likely scenario as presented by the cost of housing in Suburb HH, the difficulty of sustaining the same or similar income she currently commands in Melbourne, and the lack of viable part-time employment which would deliver the same or similar income.
The Family Consultant also failed to put assertions made by the mother to the father in relation to the father’s work commitments and the effect these commitments have on his capacity to spend time with the children.
The Family Consultant, in her recommendations, does not engage with the father’s concerns arising from the children moving from a regional town to Melbourne. Whilst the Family Consultant makes reference to Melbourne being only 90 minutes away, no reference is made to the lifestyle change and the pressures on both parents arising from travelling with the children. The travel would involve travelling at peak hour, particularly on Friday afternoons. Whilst the Family Consultant was aware that the mother had been somewhat critical of the father’s lack of attendance at school events, the Family Consultant did not consider the difficulties faced by the father attending before or after school events if the children attended a school in Suburb HH.
Consideration in relation to relocation and parenting
The Family Law Act 1975 (Cth) (‘the Act’) is clear that the primary consideration in “relocation cases” is the best interests of the children. This means that the Court will consider the relocation aspect as just one of the proposals put forward by the party. As helpfully expressed by the Full Family Court in Taylor v Barker [2007] FamCA 1246 at [53]:
the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible.
Consistent with the focus being on the best interests of the children, a parent does not need to show compelling reasons to justify moving. Malcom & Munro [2011] FamCAFC 16 at [83], an authority relied by the mother’s Counsel, stated:
it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259–260. Equally, there is no onus on a parent who may be "left behind" to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court's inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
The approach taken by this Court will follow the logical approach suggested by the Full Family Court in Taylor v Barker,[24] with s 60CC factors being considered first before s 61DA and s 65DAA.
[24] [2007] FamCA 1246.
Additionally, the Court will take into account the principles to be applied in relocation cases as they have emerged from the authorities. These principles were summarised by Neville FM (as he then was) in F & F [2007] FMCAFAM 831 at [7]-[8]:
[7] There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders.7 Drawing from the authorities listed, those principles may be summarised as follows:
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. Powell v Ptolemy, [48]).
b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],9 Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217–219]; A v A, [67] cf. Goode v Goode, [72]).
c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40–45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).10 Freedom of movement, however, takes second place to the paramount interests of the child.
d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par 85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f) Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation”[93]).
g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; Bolitho v Cohen, [83–85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led — and affording procedural fairness to all — a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
[8] In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt”. The primary consideration in this case is not, per se, Ms F’s application to relocate; it is ‘what is in M’s and D’s best interests’ in the context of that application? It is time to consider and apply these principles to the facts and proposals of this case in the light of the evidence.
Best Interests of the Child
s 60CC(2) – Primary Considerations
s 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both the children’s parents
Both parents have meaningful relationships with the children and would continue to do so in each of the proposals before the Court.
s 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother has made allegations that the father has made derogatory remarks to her and has told the children that the mother is planning to sell their farm. She asserted that there was a risk of the father continuing this conduct.
In my view, the mother’s worries can be addressed by appropriate injunctions restraining this kind of behaviour. Having seen each parent give evidence, it is clear that they take their roles as parents seriously and once these proceedings are concluded, will work towards ensuring that all the needs of the children are met.
s 60CC(3) – additional considerations
s 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.
The children are currently too young to express a view about their mother’s plans to relocate or how much time they should spend with each parent.
The Family Consultant stated that X presented as a child skilled in using his hands to build things and that he wished to be a builder. He worked on the farm with his father as well as helping his mother with house work.
The Family Consultant expressed the opinion that Y was shy and sensitive, that she refused to sleep in her bed and needs a lot of cuddles from her parents. It was said that she came across as a conflicted and confused child.
The youngest child, Z, appeared as cuddly and curious and seemed to have a close relationship with his mother.
It is evident that the children are close to both of their parents and the stress and anxiety arising from the separation has particularly affected Y.
s 60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The mother has questioned the father’s level of engagement in the children’s lives, drawing to the Court’s attention to, amongst others, an instance where the father missed the youngest child’s first day at kindergarten.
I was not convinced by these assertions. On any measure, both of these parents are closely involved with their children and contribute to their care, including taking them to sporting and social activities.
Both sets of the children’s grandparents are involved in the children’s lives and in their care, particularly the maternal grandparents who deposed to be willing to travel to Melbourne to assist and support their daughter and grandchildren.
The children also have the benefit of relatives living nearby, and were reported to be close to their cousins and participate in activities with them.
s 60CC(3)(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
Both parents have been actively involved in making decisions about the long-term needs of the children and have taken the opportunity to spend time and communicate with each of them.
As was noted by the Court in the course of the hearing, these are both competent parents who are employed and successful in each of their occupations. They have both worked hard to acquire assets and are not drug affected or abusers of alcohol. Each parent is doing their best to look after the children in what has been a difficult time for both of them.
s 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 mother alleged that the father has failed to pay child support until required to do so by the child support agency. Prior to this, the mother went without support for a period of months following separation. The father is now paying child support and his failure to financially support the children post separation was regrettable.
s 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (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
If the mother relocates to Melbourne with the children, this will significantly impact their relationship with their father and not be in their best interests. I do not regard the move from Town D to Melbourne as being one of little consequence.
The move will result in the children spending substantial time travelling and remove the children from the town and their family connections within that town. The children, if in Melbourne, will not be physically close to their father and consequentially, significantly impact their relationship. Nor will they be as close to their grandparents. The travel time will, certainly on a Friday evening, be well in excess of 90 minutes. The change is likely to lead to the children spending less incidental time with the father and the paternal grandparents. Given the anxiety that the older children have exhibited, this change may further negatively impact them.
Upon considering the mother’s evidence and the evidence of Mr N and Mr U, I do not believe her proposal vis-à-vis employment in the city and her desired work life balance to be achievable.
The mother’s proposal was that she would rent a three bedroom house in Suburb HH at a rate between $600-$800 per week. This is a considerable sum, being between $31,200 and $41,600 per annum.
The mother asserted that she would, as she described it, earn a salary of $80,000 per year from Company Q while working part time and only during school hours. Even on the mother’s proposal, her proposed rent would consume a significant portion of her take home remuneration. Even with a property settlement and access to capital, the mother will be under significant financial stress under the proposal she has put forward. Her financial stress will be more significant if she is to fund the relocation on her own.
The evidence that came before the Court was that the mother will not earn the sum she asserts while working part time and only during school hours.
The evidence of Mr N was unequivocal and he gave the strong impression in his evidence that he was aware of the practices of the business in relation to what hours were required to be worked in order to earn $80,000 whether as a wage or revenue. Mr N was clear that if the mother intended to earn an income of about $80,000 plus commission of $20,000, the role was a full time one and could not be done part-time. He was also clear that employees were not engaged on a part time basis either as contractors or employees.
I do not accept that the hours worked by her in order to achieve the income she presently commands would be reduced by a move to Melbourne. I do not accept the evidence of Mr U that Company Q’s business model engages with individuals on a part time or school hour basis, whether they are engaged as independent contractors or as an employee. Mr U did not give evidence in relation to any other employee working school hours or part time. In light of Mr N’s unequivocal evidence regarding the employment practices of Company Q and the absence of any evidence of any other employee or contractor working school hours in the office, I do not accept the proposal put forward by the mother to be achievable whilst working for Company Q. No other proposal was put.
It may be further noted that the hours needed to be spent achieving her proposed level of income, on the evidence before me, is the same whether in the country or in Melbourne. No evidence or explanation was provided why the mother could not continue to work in her current location and obtain the administrative assistance of a firm like Company Q to assist in progressing the work.
Further, the father challenge the mother’s proposal that she would be able to drop the children at school, travel to the Melbourne CBD office and then back to the children’s school while working a full day. The time required to drive from Suburb HH to Melbourne CBD (being 50 minutes during peak hour) mean that her proposal would be difficult to achieve Further she would have to pay for parking in the city.
The mother has also sought to rely on evidence that her parents would assist in helping her achieve this work-life balance, noting that they were willing to travel from Town OO to Suburb HH and that they would sleep on the floor. I accept that they may do this and, if they are to visit regularly, could sleep on a sofa bed. However, unless the maternal grandparents lived with the mother, their help would be intermittent and not resolve the difficulties of working effectively full time and being able to deliver and collect the children from school or child care. Given the mother sought to rely on her parents support to strengthen her proposal, it is clear that she is aware that working full time and delivering and collecting the children is very difficult to achieve without assistance.
Given the children are settled in school and kindergarten in Town D and spending time with each parent and wider family, I do not think that a relocation to Suburb HH on the basis of the mother’s proposal is in the best interests of the children. No meaningful or substantial submission was put on behalf of the mother to explain how her proposal could proceed.
s 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
As noted above, a move from Town D to Suburb HH would add to the expense and difficulty of the father spending time with the children. Whilst the father could arrange to travel to Melbourne for school events, it would require the father having sufficient notice, require planning and making arrangements with his employer. A trip to Melbourne for a school event by the father would become a 3 to 4 hour exercise in terms of travel. I do regard that as something that gives rise to a real difficulty.
The mother pointed to examples of the father travelling to Melbourne on weekends to watch his sister play sports in Suburb PP or to watch the football as the basis of a submission that he could travel to Melbourne to attend school events if he wished. Travel to a sporting event on the weekend on a particular occasion is self-evidently different to travelling before or after work to a school event and taking hours out of the working day to do that. The regularity of the travel is also significantly different.
s 60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs
Both parents have the capacity to contribute to the emotional and intellectual needs of the children. The Family Consultant did notice that the children were particularly close to their mother and that she has been their primary carer.
The Family Consultant did not spend any length of time analysing the father’s proposal for shared care. However, on the material before the Court, it is clear that he is working in an occupation that demands reasonably long hours particularly on work days when he has to be at farms at about 4am. It would difficult for him to assume shared care of the children in the manner that he proposes. This is the case given that the children are still young and will be relying on him to get them ready for, and take them to, school or kindergarten. He would also have to arrange to get them to afterschool activities and events.
The Court is aware that the father may have some flexibility within his role, as deposed to by his employer, Mr K. Mr K also noted that whilst there is some flexibility, he is conducting a business and that the father had some inflexible commitments, as his role required him to travel to his client’s farms to look at the stock and that his work began at 4am on market days.
The Court is of the view that the father’s proposal for shared care if no relocation was ordered is inappropriate as the nature of the father’s work and the hours required to fulfil that role may undermine his capacity to care for the children and may create unnecessary stress for both him and the children at the time.
s 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
No submissions were made in relation to this subsection and otherwise, this subsection is not relevant.
s 60CC(3)(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;
This subsection is not relevant.
s 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
As noted above, both these parents are fully aware of their parental responsibilities.
The mother made reference in her material to the daughter being injured after falling off a fence at the farm whilst in the father’s care. I do not regard the evidence in relation to that as suggesting the father lacks responsibility. The incident is simply indicative of the fact that accidents can happen when children are climbing fences. Nothing was raised by the Family Consultant to indicate that the father showed any lack of insight into his responsibilities as a parent.
s 60CC(3)(j) – any family violence involving the child or a member of the child's family;
I do not accept that the father has engaged in a campaign of vilification within the local community such that the mother is compelled to leave. No corroborating evidence was lead to support this allegation. If the conduct of the father was such as alleged, the Court is of the view that evidence of that kind would be available. Neither of the parents of the mother (who both gave evidence) made any reference to conduct of that kind on the part of the father.
As noted earlier, family violence was not a significant feature of this case. The father may have spoken rudely to the mother and in strongly derogatory terms on one or two occasions but it seems that this occurred in the context of the stress and unhappiness surrounding this separation. There is no evidence of repeated behaviours of this type of behaviour and I accept the father’s evidence that he did not attend the mother’s house in her absence.
s 60CC(3)(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;
This sub-section is not relevant.
s 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child
It may be said that an order restraining the mother from relocating to Melbourne at this stage may invite a further application if circumstances change in relation to her relationships or business arrangements. I note the evidence of the mother that, although she would not be happy, she would accept the decision of the Court if the Court made orders restraining the relocation.
Given that the mother’s evidence before the Court that she has spent $147,000 in legal fees at the date of trial and had placed a further $20,000 in trust to cover further anticipated legal fees, one would hope that both parties might appreciate that litigation of this kind may not be in the best interests of the children if only because of the financial and emotional stress this places each parent under. If there is a change in circumstances the parties must engage in a process of mediation with a suitably qualified person to do all that can reasonably be done to resolve matters outside of the Court room.
s 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances that were raised before the Court.
Conclusion regarding relocation
On the basis of the evidence before the Court, I do not accept that the mother’s proposal to relocate to Melbourne is in the children’s best interest. The children currently have the benefits of living close to family, grandparents and cousins and it seems that the older children are well-settled at their local school.
Further I do not accept that if the mother does not move to Melbourne she will be an unhappy person and therefore the interests of the children will suffer as a result. The mother, in her evidence, said that she was a positive person and that whilst she would not be happy if she was prevented from relocating the children to Melbourne, she would present a positive face. She said that she would be able to shield the children from her disappointment but noted that the children would still be aware of what goes on.
In circumstances where the mother’s proposed reasons to relocate (being purported financial benefits, a desire to work and socialise with like-minded professionals, and achieve a better work-life balance) are not supported by the evidence before the Court (particularly in relation to financial benefits and work-life balance), then the reasons for the relocation fall away to a great extent. As there were no other reason were advanced for her relocation the Court finds that the mother’s proposed relocation is not in the best interests of the children.
I do not make this finding because the mother has not demonstrated compelling reasons to explain the move. I make the finding because the reasons that the mother put for the move are not established to the satisfaction of the Court and that if she did move, that move would not be in the best interests of the children. I do not accept the premise that because the mother moves to Suburb HH and sets herself up in accordance with her proposal that she will therefore be happy and the children will be happy. I regard that analysis as simplistic and striking in its lack of consideration of the father’s role in ensuring that the best interests of the children are met.
I do not accept that a shared care arrangement would currently be in the best interests of the children. The children are young and primarily attached to their mother. I accept the father has and continues to make significant contributions to the care of children and by any measure, he is not an absent father. The time that he has been spending with the children has been largely on the weekend both during the course of the marriage and following separation. In my view the best interests of the children would be to live with the mother, and spend significant and substantial time with the father. The Family Consultant’s recommendations where the children do not relocate are a sensible response to the issues in this matter.
Equal Shared Parental Responsibility
As with all parenting orders, I am bound by s 61DA(1) to:
[…] 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.
Each parent is proposing that there be shared parental responsibility and it is the Court’s view that this is appropriate.
Spend Time Arrangements
As the Court is proposing to order equal shared parental responsibility, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[25]
[25] Family Law Act 1975 (Cth), s 65DAA(1).
For the preceding reasons, I do not believe that it is appropriate to order equal time with each parent.
As the Court is not ordering the children to spend equal time with each parent, I must consider s 65DAA(2):
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the Court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Substantial and significant time is defined as:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It is appropriate that the father spend substantial and significant time with the children.
The present arrangements have the mother spending no weekend time with the children which is something that has understandably upset her. I think it is reasonable and appropriate that the mother have the opportunity to spend weekend time with the children.
The spend-time arrangements proposed by the Family Consultant in the event that relocation was not ordered, accommodate the interests of both parents and are in the best interests of the children. The Family Consultant’s recommendations in this regard, subject to a modification that the time spent during the third week of the cycle be an overnight stay, ensures that the father will spend time with the children on days that do not include the weekend.[26]
[26] Family Law Act 1975 (Cth) s 65DAA(3)(a)(ii).
The Family Consultant’s spend-time arrangements in this context are that:
the children spend time with the father two weekends out of three from after school Friday until Monday 9.00am. In the third week, the children spend time with the father after school until 6.00pm on a week day, so that there is frequency of visits.[27]
[27] Ms A, Family Consultant, filed 16 November 2018 [57].
The parents are also in agreement that school holiday time should be split evenly. This will further allow both parents to spend quality time with the children.
Property issues
Approach to Property proceedings
The Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143 identified a preferred four-step process in property matters under the Act:
a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Act;
c)to consider the factors as are relevant contained in s 75(2) of the Act; and
d)finally, to determine whether the order the Court proposes to make is just and equitable to both parties.[28]
[28] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143, [39] (Nicholson CJ, Ellis and O’Ryan JJ).
This approach was approved in Bevan & Bevan [2013] FamCAFC 116, where the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52 (‘Stanford’).
Asset pool
The father’s asset pool summary (as produced from the Applicant’s Closing submissions):
Assets Owner
Value by the Father
To be retained by the Father
To be retained by the mother
Notes
C(2) Street, Town D
[Father]
900,000
$900,000
Per valuation of Mr J
BB Shares
Joint
$132,000
$E132,000
As conceded by mother in cross examination
Motor Vehicle CC
[Father] (in [mothers’] possession)
$80,000
$E80,000
Agreed
Funds held in CBA accounts Joint $635,000 $217,956 $417,044 On the basis that each party has received and retained $50,000 ANZ Banking
[Mother]
$2,662
$2,662
Mother’s financial statement filed 2 July 2018, part O
NAB account
[Father]
$6,180
$6,180
Livestock (cattle)
[Father]
NIL
Father refers to Exhibit A1
Farming machinery
[Father]
$41,550
$41,550
Including the motor vehicle cc valued at $5,000
W Shares
$12,600 Mother’s value. Father offers same to mother if they have any value. Current location of share script unknown to father
Shares in QQ
[Father]
$1,027
Total
$1,798,419
$1,298,713
$499,706
Liabilities
Owner
Value by [father]
Value by [mother]
Mortgage
Joint
$784,897
$E790,400
Total
$784,897
$E790,400
Equity
$815,451
E$1,287,812
Superannuation
Owner
Value by [father]
[Father]
$227,660
[Mother]
$91,980
$303,369.31
The father raised in his Case Outline that he also had AA Shares worth $3,030.
The father annotates his table with a notation that his shares in QQ are employee shares. This is important as there is a 3 year prohibition on selling the shares after purchase. The 163 shares given to him in March 2018 will be able to be sold in March 2021. The 117 shares from March 2017 may be sold in March 2020.
Like the father, the mother provided an asset and liability balance sheet in her case outline and handed up a hand-written copy during final submissions. I use the ‘description / owner’ information from the case outline and the values from the hand-written copy:
The mother’s asset pool summary (with her comments):
ASSETS
DESCRIPTION / OWNER
VALUE [MOTHER]
COMMENTS
C(2) Street, Town D (Father)
$1,025,000
In dispute.
BB Shares (Joint)
$140,000
Held in the PM & Ms Wilburn Family Trust.
AA Shares (Father)
$3,100
The Father has not provided disclosure
W Shares (Father)
$11,900
The Father has not provided disclosure
QQ shares (Father)
$1,026
The Father has not provided full disclosure.
Super Fund H and RR Shares (mother)
$5,000
Agreed.
Motor Vehicle CC (Father [in the mother’s possession])
$80,000
Agreed.
Motor Vehicle CC (Father)
$5,000
Agreed.
Gift from the mother’s grandfather. In the Father’s possession.Funds held in CBA bank accounts (Joint)
$535,000 Agreed. Parties have received $50,000 each from these funds pursuant to Interim order made 16 July 2018. Livestock (Father) $90,000 In dispute. Farming Machinery (Father) $36,500 Agreed.
Total Assets $2,032,526
Liabilities CBA Mortgage (Joint) $777,540 Secured against the C(1) Street, Town D property. NET TOTAL $1,254,986
SUPERANNUATION Super Fund H super (Father) $227,600 . Super Fund H super (mother) $95,200 As at 20 February 2019.
TOTAL SUPER $322,860 NET TOTAL INC. SUPER. $1,577,846
Valuing the Asset Pool
C(2) Street, Town D
Consistent with the orders made by Judge Small on 16 July 2018, F Valuer Pty Ltd (‘F Valuers’) were appointed to value C(2) Street, Town D property . Mr J on behalf of F Valuers attributed a market price of $800,000 to the property.
The mother deposed in trial that this value was less than what the property was purchased for and notified the Court that she had sought another valuation. The father opposed the introduction of evidence from this second valuer. After hearing submissions, the Court granted leave to the mother to rely on the evidence of another valuer. The Court gave reasons for this decision in the course of the hearing.
The mother’s valuer, Mr P, attributed a value of $1,025,000 to the property. Mr P did not have access to the property as the father would not supply a key to Mr P.
Mr P stated in his report that the ‘best sales for comparison with the subject property’ include:
a)C(1) Street, Town D (also known as C(1) Street, Town D);
b)FF(1) Street, Town D;
c)FF(2) Street, Town D;
d)GG Street, Town E;[29] and
e)S Street, Town T .
[29] The value of this property was revised to $1,843,899; reflecting three lots being sold (two lots to one purchaser, the third to another).
Pursuant to orders made on 15 March 2019, the two valuers consulted prior to the matter returning on 1 April 2019. They were unable to reach agreement, but did come closer in terms of valuation.
Mr J’s summary of this meeting, tendered into evidence as exhibit R6, stated the valuer’s updated positions:
In order to reach a comprise [sic] I was prepared to recalculate my valuation as follows:
63.16ha @ $13,500/ha = $852,660
Plus shedding and yards $45,000
TOTAL $897,660 Round to $900,000
Mr P indicated he was prepared to adjust his valuation to $965,000.
This reflected the narrowing of valuations. Per exhibit R7, being a letter from Mr P, Mr J ‘appears to believe a cleared hectare rate of land of $13,500 to $14,224 per hectare from sales analysis, would apply to the [C(2) Street, Town D property]’. Mr P believes the range to be ‘$14,407 as a minimum, to $15,350 per cleared hectare, and beyond, by later sales’. Based upon the range of figures put by Mr P, he values the property between $909,496 and $969,506.
Mr P provided, via exhibit R7, that the disagreement was, amongst other things, due to the valuers being unable to agree:
a)on how to interpret sales evidence;
b)how much adjustment may occur for date of sale, towns water and particularly topography; and
c)whether property with town’s water added a premium other than for dwellings or residencies.
There was significant disagreement with respect to the treatment of C(1) Street, Town D. Mr J asserted that the property is not comparable, in part due to C(1) Street, Town D being significantly larger, having greater infrastructure, having more titles, and not being as steep as C(2) Street, Town D.
Counsel for the father put it to Mr P that, exempting C(1) Street, Town D from his best sales comparators (above), Mr P’s range of values fell into a similar range as Mr J’s range of values. Mr P responded that the parties had originally cited the incorrect sale price of the GG Street, Town E property: the three parcels of land which combined the 81 hectares sold in two lots, one for $1,229,083 (being around 54 hectares) and the other for $614,816 (being around 27.12 hectares). Mr P asserted that this increase meant that even excluding C(1) Street, Town D, that his range of values exceeded the range proposed by Mr J.
The father also raised concerns about Mr P’s independence, particularly that he had not disclosed his letters of instructions from the mother where she mentioned the recent sale of C(1) Street, Town D. This earlier letter of instruction occurred via email from the mother to Mr P and became exhibit A4. Counsel questioned Mr P whether he considered C(1) Street, Town D because of the mother’s email. Mr P denied that it had any effect on his opinion.
Counsel for the mother put to Mr J that he referred to properties as ‘inferior’, despite ascribing these properties a higher per hectare rate than C(2) Street, Town D. Mr J responded that he used the term ‘inferior’ in reference to a property with an overall value lower than C(2) Street, Town D; and the ‘inferiority’ was not reflected in the per-hectare rate.
Consideration on C(2) Street, Town D
I am inclined to the view that an appropriate value to ascribe to C(2) Street, Town D is in the lower range estimate contended by Mr P – being $909,946.
Mr P placed significant reliance on the property at C(2) Street, Town D as a comparator. C(1) Street, Town D has some notable features which suggest that its value was higher per hectare than C(2) Street, Town D. Firstly, it was used for vegetable growing. Mr P noted in his report that C(1) Street, Town D includes 2 homes, a dairy and associated milking infrastructure. Mr P stated that C(1) Street, Town D had ‘very good improvements and very substantial. Upgraded laneways. Seven titles which total 70.10 hectares. Potential future subdivision (STCA). 100% tractorable land’.[30] On this basis, Mr P valued C(1) Street, Town D at $73,469 per hectare or, per exhibit R7, at $19,400 to $20,000 per cleared hectare.
[30] Mr P, affidavit filed 20 November 2018, annexure 2, page 16.
Mr P stated that the C(1) Street, Town D property is less steep than C(2) Street, Town D property and was, therefore, of greater value. Both valuers agreed that vegetable growers may pay a premium but did not agree that C(2) Street, Town D was suitable for vegetable growing.
Given the difference between the low end valuation of Mr P and the compromise suggested by Mr J, the Court will adopt the lower valuation adopted by Mr P. The Court accepts the evidence of Mr J that C(1) Street, Town D and C(2) Street, Town D are not directly comparable. I also accept that Mr J has direct knowledge and experience valuing properties in the area and had visited both properties.
I also got the impression from Mr P’S evidence, particularly the tone he adopted when giving oral evidence, that he was an advocate for his own position and seemed unwilling to move from his position or to consider the opinions of Mr J.
It is disappointing for the parties that the valuers could not reach a compromise. The cost of their time and the litigants’ legal costs are far greater than the amounts in dispute.
Value of Cattle
The mother asserts there were cattle owned jointly at the point of separation. She gave evidence that she has seen the father tending to cattle and that the father received money for the sale of cattle since their separation.
The mother believes that there are 76 cattle currently on the C(2) Street, Town D property. She relies on inconsistencies between the Property Identification Code (‘PIC’) and the National Livestock Identification System (‘NLIS’) as proving his ownership of the cattle. The mother explained that the PIC numbers (which shows when and how many cattle are moved on and off a property) do not match with the NILS numbers (a unique identification number).
The mother further attests that she recently saw 42 cattle in the father’s possession and that the father told her he has purchased 41 cattle since separation.
The father gave evidence that ‘all of the Partnership cattle have been sold following separation and disclosed to [the mother] and her solicitor’ and there is no cattle on partnership property.[31] The father denies the accuracy of the PIC system, as failure to accurately update the PIC system means that it is inaccurate, stating:
The PIC system can only be accurate if all information is uploaded and balanced with all transactions […] There have been deaths, lost tags and transfers not completed correctly which have resulted in the discrepancies.[32]
[31] Mr Wilburn trial affidavit filed 7 November 2018 [50]
[32] Ibid [54]
Counsel for the mother contends that the father ‘simply could not be believed on the cattle issue’ and that by failing to produce bank accounts until 2 days prior to trial, he had failed to make full and frank disclosure.
Counsel for the mother relied on Weir and Weir (1993) FLC ¶92-338 (‘Weir’) at [79-593] referring to the proposition:
We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.[33]
[33] Weir and Weir (1993) FLC ¶92-338 (Nicholson CJ, Strauss and Nygh JJ).
Upon deliberate non-disclosure, per Weir at [79-593]:
It seems to us that once it has been established that there has been a deliberate non-disclosure […] then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.[34]
[34] Ibid.
The Court was also taken Justice Callinan’s comments in a special leave application in Chang v Su [2002] HCA Trans 549:
It does not matter what the principle might be said to be, a Court has to do the best it can. It does the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings that the Court can make.
I must, therefore, consider whether there has been deliberate non-disclosure and if so, the consequence of that non-disclosure on the ascertainment of the value of cattle.
Consideration on cattle
I accept the submission of the mother that the father’s evidence explaining what became of cattle that were on the property at the date of separation is unsatisfactory. When cross examined, the father gave evidence that the cattle that he had at the date of separation were transferred to the lessee of C(2) Street, Town D to pay for pasture improvement works performed by the lessee.
No records were produced to prove the transfer of the cattle to the lessee (who the father admitted was his cousin) and there was no evidence of any pasture improvement works performed by the lessee. There was no reference to this transaction in the father’s trial affidavit and his admission stands in contrast to his claim that ‘all of the Partnership cattle have been sold following separation and disclosed to [the mother] and her solicitor’ and there is no cattle on partnership property.[35] The whole arrangement as described by the father lacks credibility, particularly having regard to the fact that the father is a professional.
[35] Mr Wilburn trial affidavit filed 7 November 2018 [50].
Taking into account that the father admitted to having cattle which he did not disclose, the Court will not be unduly cautious in making findings in favour of the innocent party. Allowing for some reduction for death of cattle and poor record keeping, the Court will take into account the value of 50 cattle being in the possession of the father at the date of separation which have not been accounted for. I do accept that a number of cattle ‘may’ have been transfers of cattle which are not accounted for. Again, the Court is simply doing the best it can on the material before it with the view to doing justice to the parties.
The evidence is uncertain in relation to the value of those cattle and the father did little to assist himself or the Court in relation to fixing a true or fair value for those cattle.
The mother tendered a detailed saleyard report compiled by the National Livestock Reporting Service dated 13 March 2019 (exhibit R4) which reported sales from the Town E saleyards on 6 March 2019. The price for cattle at those sales present a wide variation of prices for particular classes of beasts. The father gave evidence that of the cattle he transferred to his cousin, 17 were heifers and that the price range for grown heifers was between $550 and $1,439. As to the balance of the cattle, the evidence does not disclose the age or weight of the animals. The sales document provides that the price range for steers was between $1,258 and $2,117.
Given the range of figures and doing the best I can, I will assume a value of $1,500 per head for 50 cattle making a total of $75,000. This will be treated as an asset to be divided between the parties according to the formula found by the Court.
It is unsatisfactory on the father’s part that he did not provide adequate disclosure in relation to this party of the asset. It is notable that his cousin was not called to give evidence.
Financial contributions – prior to cohabitation
The father gave evidence that he and the mother were both working full time when they began to cohabitate. The father gave evidence that he is a professional with G Company and was earning around $20,000 per annum more than the mother when they first started cohabitating. The mother disagrees, claiming to have been earning a similar income (of around $50,000 per year).
The father deposes that, at the commencement of cohabitation, the parties had the following assets:
a)the mother owned a motor vehicle estimated at $18,000;
b)the mother had ‘some’ superannuation;[36]
c)the father owned a property at S Street, Town T, for which he received around $120,000 when it was sold in 2007; and
d)the father had shares in G Company (of which he paid 10% upfront) and used the dividends to purchase the outstanding amount.
[36] Ibid [5].
The mother’s evidence is in agreement as to the value of her car, to having some superannuation and also some cash savings. She further states that:
a)the father had 3 shares in G Company (and agrees that the dividends were used to purchase the outstanding amount); and
b)the proceeds of the S Street, Town T property was around $80,000.
The mother conceded in cross examination that the father brought a property into the relationship and the value of the net proceeds of sale of that property are about $120,000.
Financial contributions – during marriage
Shortly after marrying on … 2008, the parties purchased DD Street, Town E, for approximately $100,000. The father asserts that he paid $95,000 of this sum, with the mother paying around $10,000. In contrast, the mother asserts the father paid around $80,000 and she paid approximately $20,000.
The mother deposes that the parties lived at her parents’ property for 18 months from … 2007 to … 2008 while DD Street, Town E was being built. This enabled the parties to make substantial savings as they were not contributing to any outgoings nor paying rent.
In … 2008, the parties purchased a one third share in C(2) Street, Town D, for approximately $253,000 (or $239,200 according to the mother). The father’s father and brother-in-law purchased the other two thirds. In 2015 the mother and father purchased the shares owned by the father’s father and brother-in-law, becoming sole owners of the C(2) Street, Town D property. The parties paid $540,000 for this share. The mother’s evidence aside from the amount (noted above) is broadly similar to the father’s in this respect.
DD Street, Town E was sold around … 2010 for about $425,000.
The parties then purchased land and built a home at R Street, Town D, (‘the former matrimonial home’).The former matrimonial home was sold in … 2017 with the proceeds of the sale being held in a joint bank account. The mother’s evidence as to the former matrimonial home is substantially similar to the father’s, noting that the proceeds of this sale are held in a joint bank account (with roughly $535,000 being in that bank account).
According to the father, the parties paid their wages into a joint bank account, from which the mortgage and expenses were paid. These joint funds were also used to purchase 2 extra G Company shares (in 2010 and 2012). The cumulative total of the 5 shares is approximately $132,000.
Financial contribution – after marital break down
The father asserts that, since separation, he has paid the mortgage for C(2) Street, Town D. The fortnightly rate is $1,818.[37] This money is, at least partly, offset by the lease to EE Company, a company controlled by his cousin.[38]
[37] Ibid [26].
[38] Ibid [42].
Consideration
From the evidence before the Court, it is apparent that the contributions of the parties to acquiring property was equal.
The father made the greater initial contributions with the introduction of $120,000. Thereafter, the parties' contributions have been equal, with the mother making a greater contribution as a carer and home maker and the father being the principal income earner.
In relation to the relevant factors referred to in s 79(4) (and the ancillary considerations in s 75(2)) of the Act, each of the parties are to the knowledge of the Court healthy and have the capacity to continue working towards the maintenance of the children. The father is well regarded by his employer, and the witnesses called by the mother in relation to her work as a professional gave glowing references in relation to her capacity and reputation. I do think that there should be some allowance for the fact that the mother will remain the primary carer of the children and that her capacity to work the long hours that she presently works may be affected as the children get older (whether she lives in Town D or in the city).
Taking all those matters into account, I find that an equitable distribution of the assets is 55% in favour of the mother and 45% in favour of the father.
Superannuation
Both parties contended that there should be an equalisation of superannuation, which the Court accepts as just and equitable.
Conclusion
In respect of parenting, I find that:
a)it is in the children’s best interests to remain in Town D;
b)it is in the children’s best interests to live with the mother primarily;
c)the children should spend time with the father in accordance with the Family Consultant’s recommendations subject to the modification contained in [143] as they pertain to mother remaining in Town D, which, set out, are:
i)the children spend two weeks out of three with the father from after school Friday until the commencement of school Monday;
ii)in the third week, the children spend one night with the father, from the conclusion of school on that weeknight to the commencement of school the following day; and
d)the children should spend equal time with each parent during the school holidays.
In respect of property, I have determined the asset pool to be:
Asset
Value
C(2) Street, Town D
$909,496
Cattle
$75,000
BB Shares (Joint)
$132,000
AA Shares (Father)
$3,100
W Shares (Father)
No value established.
QQ shares (Father)
$1,026
Super Fund H and RR Shares (mother)
$5,000
Motor Vehicle CC (Father [in the mother’s possession])
$80,000
Motor Vehicle CC (Father)
$5,000
Funds held in CBA bank accounts (Joint)
$535,000
ANZ Bank Account (Mother)
$2,662
NAB Account (Father)
$6,180
Farming Machinery (Father)
$36,500
Total
$1,790,964
Liabilities
CBA Mortgage (Joint)
$778,082.23
Superannuation
Super Fund H super (Father)
$211,400
Super Fund H super (mother)
$95,200
TOTAL SUPER
$306,600
I will make orders that 55% of the asset pool (excluding superannuation) will go to the mother and the other 45% to go to the father.
I will further order that the parties’ superannuation be equalised, pending trustee approval.
I direct the parties to convene and draft orders appropriate to give effect to these findings.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 6 August 2019
CORRECTIONS
The following changes have been made:
The line ‘subject to a modification that the time spent during the third week of the cycle be an overnight stay’ has been added into [143].
The line ‘subject to the modification contained in [143]’ has been added into [203](c).
The asset being ‘Joint Interest or dividends’ in [204] has been removed.
The value of the farming machinery in [204] has been changed from $41,500 to $36,500.
The value of the total assets in [204] has been changed from $1,846,191 to $1,790,964.
The value of the ‘CBA Mortgage (Joint)’ in [204] has been changed from $777,540 to $778,082.
‘Orders pronounced’ date added to coversheet.
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