Wylie and Falconer
[2017] FCCA 1404
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WYLIE & FALCONER | [2017] FCCA 1404 |
| Catchwords: FAMILY LAW – Parenting & property – relocation – small asset pool – section 75(2) factors given greater weight. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 65D, 65DAA, 65DAB, 65DA, 69ZT, 75(2) |
| Cases cited: Morgan and Miles (2007) FLC 93 Palmer & Hammer(No.2) [2011] FamCAFC 196 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MS WYLIE |
| Respondent: | MR FALCONER |
| File Number: | DNC 457 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 9 November 2016 |
| Date of Last Submission: | 16 December 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls Lawyers |
| Counsel for the Respondent: | Mr Bond |
| Solicitors for the Respondent: | Maley Barristers & Solicitors |
ORDERS
Parenting
That all previous interim parenting Orders be discharged.
That the parties have equal shared parental responsibility for the children X, born (omitted) 2009 and Y, born (omitted) 2010 (“the children”).
The children live with the mother and the children spend time with the father during school terms from the conclusion of school on Wednesday until the commencement of school on the following Monday in each alternate week.
That during school holidays the children spend time with the parties as follows:
(a)With the father for the first half of term 1, 2 and 3 school holidays in each year and with the mother for the second half; and
(b)In even years from 16 December to 09 January the following year and in odd years from 23 December to 13 January the following year.
That Orders 3 and 4 be suspended on the following days of significance and the children spending time as follows:
(a)With the Respondent father on Father’s Day from 10am to 5pm and with the mother from 10am to 5pm on Mother’s Day.
(b)With the mother on (omitted) in each year from 10am to 4pm if a non-school day and from after school until 5pm on a school day.
(c)With the father on (omitted) in each year 10am until 4pm on a non-school day and from after school until 5pm on a school day.
(d)With the party who is not ordinarily spend time with the children on their birthdays on (omitted) and (omitted) of each year from 10 – 2pm on a non-school day and from after school until 5pm on a school day.
Changeovers are to take place at the children’s school. The party who has spent time with the children shall deliver the children to school in the morning, and the other party shall collect the children from school in the afternoons after school.
Any other changeover on a non-school day shall occur at McDonalds Family Restaurant, (omitted) at 12pm.
The children are at liberty to communicate with the father on the telephone or Skype at all such times as the children reasonably request but otherwise Wednesday at 5.30pm and Saturday at 5.30pm central standard with the father to initiate the call to the mother’s mobile telephone and the mother to ensure that the children are available to receive the call.
The children are at liberty to communicate with the mother on the telephone or Skype at all such times as the children reasonably request but otherwise each Wednesday at 6pm and Saturday at 5.30pm with the mother to initiate the call to the father’s mobile telephone and the father to ensure that the children are available to receive the call.
That in years when the children are travelling to Victoria to spend time with the mother’s extended family the children will be made available to speak to the father between 5.30pm and 6.30pm on Christmas Day with the father to initiate the call to the mother’s mobile telephone and the mother to ensure that the children are available to receive the call.
Unless agreed in writing, the parties shall communicate via email or SMS text message only with such communications to be limited to the welfare of the parties’ children only.
Each party is to keep the other informed of their mobile telephone number, email and residential address at all times and inform the other in writing of any changes to these details within forty-eight (48) hours of such change.
Each party keep the other informed of the names and addresses of any treating medical practitioner, other health practitioner and/or dental practitioner in relation to the children.
Each party notify the other party by telephone or SMS text message in the case of serious illness, hospitalisation and/or accident.
Each party provide all required authority and consent to each health practitioner and school and/or tutor attended by the children to allow both parties to undertake parent/teacher interviews, to discuss the education of the child, to forward to both parties copies of all school reports and notices concerning activities to be undertaken by the children, and to permit the parties to attend any school and extracurricular activities which they are invited to attend.
Each party shall sign a passport application or passport renewal for the children within fourteen (14) days of a written request of the other party to do so.
The children’s passports shall be held by the mother. The passports shall be provided to the other party (“the travelling party”) for the purpose of international travel within fourteen (14) days of a request in writing by the travelling party and returned to the party (“non-travelling party”) who holds the passport forthwith upon return to Australia.
If either party wishes to take the children out of the Northern Territory the following provisions apply:
(a)That the travelling party must provide at least twenty-one (21) days’ notice in writing to the non-travelling party, together with a copy of the proposed itinerary, address and telephone contact details (whilst interstate or abroad) and proposed return flight / travel details;
(b)If the non-travelling party is caused to miss out on time they would ordinarily spend with the children as a result of such interstate or international travel, then they shall be entitled to “make up time” as soon as reasonably practicable upon the children’s return to the Northern Territory.
That the parties are to consult each other to consult each other and agree on a single counsellor to provide counselling for the children.
That each party is restrained from using physical punishment on the children.
That the parents undertake and complete the Anglicare ‘For the Kids’ parenting program as follows:
(a)Each parent, within seven days (7) of the date of these Orders are to enrol in the course;
(b)The parents will attend all sessions of the course and comply with all reasonable directions of the course providers;
(c)At the conclusion of the course each parent provide the Court and the other parent with a certified copy of the certificate of completion.
That the mother continue to receive such medical treatment as is recommended by her treating doctors.
Property
That the sum of $50,282.24 held in Withnalls Lawyers trust account be paid as follows:
(a)Payment to the husband of $5,000.
(b)Balance to be paid to the wife.
That within seven (7) days the husband transfer to the wife the Toyota (omitted) NT registration (omitted).
That within seven (7) days of compliance with Order 23, the husband facilitate access for the wife to secure possession of and sign any documents necessary to transfer to the wife the (omitted) camper trailer.
That within seven (7) days the wife do all acts and sign all documents necessary to transfer to the husband all right, title and interest in the party’s (omitted) Vacation Club membership and the husband shall indemnify the wife with respect to the loan.
That the wife be entitled to retain for her sole use and benefit the following investments:
(a)Her personal music Equipment;
(b)(omitted) Camper Trailer;
(c)Honda (omitted) Motorbike;
(d)Suzuki (omitted) Motorbike.
(e)Suzuki (omitted) Motorbike;
(f)All monies standing to her credit in her personal bank accounts;
(g)All household contents and jewellery in her possession; and
(h)All member entitlements in the Wife's (omitted) Superannuation account.
That the husband be entitled to retain for his sole use and benefit the following investments:
(a)All monies standing to his credit in bank accounts in the Respondent’s sole name;
(b)(omitted) boat;
(c)Honda (omitted) motorbike;
(d)Honda (omitted) motorbike;
(e)(omitted) motor bike;
(f)All monies standing to his credit in his personal bank accounts;
(g)All household contents and jewellery within his possession;
(h)All member entitlements in the husband’s (omitted) Super account not subject to these orders.
The (omitted) jet ski and the (omitted) trailer are to be sold and the proceeds of sale divided equally between the parties.
The husband will indemnify the wife in relation to any liability for any and all loans, credit cards, hire purchase agreements and line of credit in his sole name as at the date of these Orders including the following:
(a)(omitted) Bank Loan number (omitted);
(b)(omitted) Bank Loan for the purchase of a (omitted) motorbike;
(c)(omitted) MasterCard number (omitted);
(d)(omitted) MasterCard number (omitted); and
(e)(omitted) Salary Solutions for Toyota (omitted).
That pursuant to the s.90MT(1)(a) of the Family Law Act1975, whenever a splittable payment becomes payable with respect to the husband’s superannuation interest in (omitted) Super Member Number (omitted) (“fund”):
(a)The wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 as to forty seven thousand nine hundred and forty seven dollars ($47,947) out of the husband’s fund; and
(b)There be a corresponding reduction in the entitlement of the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.
Whenever the Trustee of the Fund makes a splittable payment out of the husband’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 1 of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
These Orders have effect from the operative time and the operative time is four days after the date of the service of a certified copy of these Orders.
That having been accorded procedural fairness in relation to the making of these Orders, the Orders are binding on the Trustee of the Fund.
That unless specified in these Orders and except for the purpose of enforcing the payment of money due under this or subsequent Order:
(a)Each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order
That unless otherwise specified in these Orders, each party shall be solely liable for all loans, credit cards, mortgages and any other liability, in that person’s sole name as at the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Wylie & Falconer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DNC 457 of 2015
| MS WYLIE |
Applicant
And
| MR FALCONER |
Respondent
REASONS FOR JUDGMENT
This is an application for parenting and property orders. I will call the parties the ‘mother’, ‘father’, ‘wife’ and ‘husband’ as the context requires.
The parties met in 2008 and married later that year. The father was at that time and remains a (occupation omitted). The mother moved from her home town in (omitted), Victoria to live with the father in (omitted). The mother is a (occupation omitted) but she is not working as a (occupation omitted) at the moment because her registration was suspended in 2015 following a period of illness from bipolar disorder. The parties separated in 2015. Both are 39 years old.
Parenting
There are two children of the marriage: X who is seven years old and Y who is six years old. The mother also has two children from a previous relationship, A who is 15 years old and B who is 13 years old.
In 2012, while on duty, the father was involved in the accidental death of a member of the public. In consequence, in 2013, the husband had eight months away from work because of post-traumatic stress disorder (PTSD). He said that during this period he was the primary carer for the children while the mother was employed. The mother says that the father was in fact recovering from PTSD and disputed that he was the primary carer. In 2013 the mother herself was hospitalised for three weeks and diagnosed with bipolar disorder. In May 2015 the mother was again hospitalised due to a bipolar episode. The parties separated in June or July 2015.
The father commenced a new relationship at that time with Ms B and began living with her in (omitted) 2015. Ms B has a daughter called C who is seven years old.
Following separation the father and mother reached an agreement that the children would spend equal time with each parent on a week about basis and that arrangement was followed for a period. A and B spent some time with the father after separation but this appears to have ceased by early 2016. In June 2016 the mother filed an application seeking to reduce the time the children spent with the father, claiming that the children, particularly X, were not coping with the shared care arrangement. She subsequently unilaterally withheld the children from the father. The father responded by attending at the children’s school and withholding them from the mother. The father asserted that he had seen the mother a couple of days before, on 18 and 19 June 2016, at two separate sporting events where she appeared under the influence of alcohol and was displaying manic behaviour. He said he was concerned for the welfare of the children. The father filed an application seeking orders that the children live with him.
On 25 July 2016, I made interim orders that the children live with the mother and spend time with father from after school Wednesday until before school the following Monday every second week, that is, for five nights a fortnight. The mother deposes in her trial affidavit that:
“the children have adjusted well to the new arrangements. They are more settled at school and I have not experienced the serious problems which occurred … on a week about basis.”
The competing proposals of the parties are as follows. The mother seeks orders permitting her to relocate with the children to (omitted), Victoria with the children to spend time with the father for half of each of the Victorian school holidays. If she is not permitted to relocate the residence of the children, she seeks orders that provide for the continuation of the present arrangement whereby the children live with the mother and spend time with the father for five nights a fortnight. The father opposes the mother’s proposal to relocate. In his amended response he sought orders for equal time but in final submissions he sought orders for the continuation of the present arrangements. If the mother relocates to Victoria, the father seeks orders that the children live with him and spend the first half of each of the term one, two, three and four holidays with the mother, with the mother to bear the costs of travel.
The mother deposed that the children are doing well at home and at school under the present arrangement whereby they spend nine nights a fortnight with her and five nights with the father. She said both children have a close relationship with their older half siblings, B and A. She says the children have a strained relationship with Ms B and C. She was very critical of the father, pointing, in particular, to his alcohol consumption and sometimes harsh discipline of B and A. She says that he used physical intimidation to coerce and control her during the marriage although she does not provide any specific instances. Despite her criticisms she deposes that the father is a “good dad” and she would “never try to take his children away from him”.
There is, of course, no question of a legal onus of proof in a relocation or any other parenting case, nor is the party proposing to relocate required to provide a good reason for the proposed relocation. Nevertheless, to understand the issues bearing on the best interests of the children as the paramount consideration, it is necessary to consider the reasons given by the mother for the proposed relocation.
The mother says that her current situation is “very difficult and impractical/unsustainable” due to a number of factors. She says that she is currently living in a three bedroom unit provided as public housing by the Department of Housing. She pays rent of $145 a week. She says that her unit is one of 10 units that house families in financial hardship (it is unclear if by this she meant anything other than it is public housing). She describes what appears to be a degree of social dysfunction in the surrounding area including family violence and conflict. She says she has called the police on two occasions in response to the behaviour of her neighbours. She says the conflict has a negative impact on the health and well-being of her and the children. She says that she could obtain better and cheaper housing in Victoria.
She says that she finds it difficult to cope “financially, emotionally and environmentally” living in Darwin. The mother is on extended unpaid sick leave from her employment as a (occupation omitted) for the (employer omitted). Her suspension is due to be reassessed sometime in 2017 by the (omitted). She says that due to the suspension of her (occupation omitted) registration, because of her illness, she is unable to earn an income and is in receipt of Centrelink payments. She deposes that her income from Centrelink payments is $652 a week. In addition she receives child support payments of $295 a week from the father and $128 a week from the father of A and B. This is a total of $1,075 a week. She deposes that she does some work (occupation omitted) but her financial statement does not disclose what income, if any, she earns from this work.
The mother says she needs support as a single mother of four children with her “mental health vulnerability and issues”. She says that she feels “challenged and isolated” living in Darwin. She says she has a large network of friends and family in (omitted) including her mother, father, cousins, aunties and uncles. She says that if she returns to (omitted) she will “cope better and… ultimately be a better parent”. She says that there are better employment prospects in (omitted) and she has a relevant work history with employers in (omitted). She says that A and B would prefer to relocate to Victoria because that is where their father and his family live.
The mother also asserts that the father could relocate to Victoria and could obtain employment with the (employer omitted).
The mother also alleged that the father was controlling and intimidating towards her. She alleged he used unduly harsh techniques of physical discipline with A and B including shutting them in the laundry as a form of punishment, refusing to let them drink water and on one occasion kicking B in the bottom and on another grabbing him by the throat. She accused him of being violent while under the influence of alcohol towards a dog on one occasion after it strayed into a family gathering. The general intention of this evidence was to throw doubt on the father’s parenting capacity.
The mother was cross-examined about some of these claims. She conceded that she considered herself to be a “resilient” person and a “role model for others”, apparently a reference to her charitable activities raising money for the (omitted) in Darwin. It appeared that she also intended to climb (omitted) as part of a fundraising venture sometime in 2017. She continued her activities as an (hobby omitted) including (hobbies omitted) in Darwin. She worked as an (occupation omitted). She admitted she had met new people and made new friends in recent times. She was cross-examined about her alcohol consumption. During July, August and September 2015 there appeared to be relatively frequent expenditure at pubs and bottle shops which the mother admitted was for alcohol for her own consumption. The evidence of alcohol consumption in 2016 was more limited. The mother asserted that expenditure on three occasions in July 2016 was, on one occasion, a hospital fundraising event where she did not consume alcohol and on two other occasions she had purchased food or alcohol in the company of family members but she had not consumed alcohol herself. It is not possible to make definitive findings about the mother’s alcohol consumption in 2016 but the examination of the mother’s expenditure undertaken by counsel for the father would appear to indicate that her alcohol consumption, if any, was much reduced in 2016 in comparison with 2015.
The mother was cross-examined about her relationship with her family in (omitted) and agreed that it was “sometimes rocky”. She agreed that she had sometimes gone months without talking to them and sometimes for months without speaking to her mother. She agreed that in 2008 there had been an episode of family violence involving her brother Mr C. She denied that he had spat on her but agreed that he had spat “in my direction”. The mother herself deposed in her affidavit that immediately after separation she and the children had moved in with her brother Mr B, a (occupation omitted) living in Darwin. She said that “following a disagreement with my brother (in front of the children) and irreconcilable differences, the children and I moved out of my brother’s home”. No further explanation of her relationship with her brother Mr B was given. She was not cross-examined about the matter.
My general impression of the mother’s evidence was that it was coloured by her hostility to the father. I am satisfied she has underplayed the sometimes strained relations with her own family in (omitted). I do not doubt that she is unhappy in Darwin but there are some indications that a significant element of her unhappiness stems from a sense of lack of support from the husband during her illness at the time of separation and the father’s subsequent re-partnering with Ms B and consequent resentment against him.
The wife also relied on the evidence of two psychiatrists, Dr A and Dr K. Dr A, who has been the mother’s treating psychiatrist since January 2015, described her psychiatric history in detail. When she was first seen by Dr A in 2015, she described a first manic episode occurring in 2013 precipitated by antidepressant medication. She described a history of domestic violence with post-traumatic stress disorder from her first marriage. She had some symptoms of depression. Dr A adopted a treatment plan involving changes to her medication regime which he thought were likely to lead to a better outcome. Throughout the first part of 2015 it appeared that the mother’s mental health was improving. In June 2015, a little before the time of the separation of the parties, Dr A considered that the mother experienced a further manic or hypomanic episode. In August 2015 Dr A asked the mother to completely abstain from alcohol. In September 2015 the mother reported that she was smoking and drinking again due to stresses associated with the breakup from her husband (this appears to be consistent with the mother’s evidence of her alcohol consumption in cross-examination). In December 2015 she told Dr A that she had not used any illicit drugs (apparently a reference to smoking cannabis in June 2015) and had consumed only a “small amount of alcohol” over the preceding months. In March 2016 Dr A warned the mother against “overdoing things” after she told him she had become very active in raising money for the (omitted). On 18 June 2016 she told Dr A that she had been very busy raising money. She also told him that she had attended a (occupation omitted) presentation that had included a video portraying domestic violence and that caused such an adverse reaction that she realised she was not fit to return to work at that time. It is noteworthy that the father alleges that on 18 June 2016 and on the following day, 19 June 2016, he observed the mother to be drinking alcohol and behaving in a manic way. There is no indication in Dr A’s report that the mother was displaying an elevated mood or any other suggestion of mania during the consultation on 18 June 2016.
Dr A’s report offered no particular prognosis for the mother. However, during cross-examination by the father’s counsel, Dr A said that the mother was compliant with her medication regime and he thought that regime was effective. When asked if he expected any further manic episodes, he replied that it was always difficult to predict because the nature of bipolar disorder is relapsing but he thought it was likely that she would remain in remission. Dr A appeared to be guarded about the likelihood of the mother’s return to work as a (occupation omitted) in the immediate future. He made the point that for a (occupation omitted), it is essential that that person be “very fit” before they can care for others and that she should not return to work until she is better. However, he said that he had seen nothing to suggest that the mother was not capable of caring for the children. Asked in re-examination by the mother’s counsel about the beneficial effect of relocation to Victoria, Professor Dr A said that he had not considered the matter in terms of where the mother might be located but he said that he thought the mother would feel better once the stress of proceedings was over.
Dr K, a consultant psychiatrist, was asked to provide a medico-legal opinion on various matters including the mother’s diagnosis, prognosis, the likelihood of her returning to employment, the effects of medication, the benefit to the mother of returning to live in her “home town of (omitted)”, returning to Victoria and “extended social and family support networks”, the impact on the mother’s mental health of a relocation to (omitted) with the children, the impact on the mother’s mental health if she is not permitted to relocate with the children and any “additional supports, treatment or medication” that may be necessary if she continues to reside in Darwin”. He examined the mother once in September 2016.
Dr K took a history from the mother that was consistent with the history recounted by Dr A. He agreed with his diagnosis of bipolar disorder with episodes of mania and perhaps periods of depression. His prognosis for the mother was that she would require long term psychiatric treatment and follow-up and that she will need medication for the long term if not indefinitely. He thought that if she adhered to her treatment regime her prognosis was “excellent”. He thought she would be able to return to full-time (occupation omitted) in future once she had completed the “process of reorganising her life since the separation and these disputes”. In relation to her medication, he did not see anything significant in the way of side-effects and he did not think her need for medication would restrict her capability of a return to full-time employment.
Dr K thought that for the mother a “return to the bosom of her family where she will feel much more supported and in which area she feels she belongs is clearly beneficial to her and likely to improve her general mental health and stability”. He thought a relocation to (omitted) would have a “marked effect on her mental health and capacity to parent” and that “[e]motional support and stability in this familiar environment would be of great advantage to her in terms of her overall ability to cope”.
When asked about the situation if the mother is not permitted to relocate and remains in Darwin with the children Dr K said:
“she is at the stage now were I think she is getting back to her normal self. She has some reorganisation to do in her life and I think she would probably cope even if she has to stay in the Northern Territory but the stability of her mental health and inability (sic) to cope would be improved by return to (omitted) where she feels she belongs more”.
Dr K said that if the mother remained well she would not require any further additional support, treatment or medication if she remained in Darwin.
Dr K was cross-examined about the history given by the mother about her relationship with her family. He was not aware of any of the negative aspects of the mother’s relationship with her family and I am satisfied that the mother gave him a rather one-sided picture of that relationship. Dr K was asked in cross-examination whether the more negative aspects of the history recounted above changed his opinion. He replied that the information cast doubt on the nature of the mother’s relationship with her family. He still adhered to his overall opinion but was of the view that it meant that proximity to her family was less of an advantage to the mother than he previously believed.
The mother also called evidence from Ms R who had been a family friend of the mother and the father for some years. Ms R deposed that she had observed the father to be “loving and attentive” to his biological children. However, she described an incident about four years earlier where she had seen A complain that B had “strangled” him and the father respond by grabbing B by the throat, lifting him off the ground. Ms R said she protested against this treatment and the father responded “don’t you ever tell me how to raise my kids”. Ms R said that, in retrospect, she regretted not raising the matter with the child welfare authorities. She also gave her observations of the mother. She said she had never seen the mother harm her children but she had observed her prior to her hospitalisation in 2015. She said the mother had no insight into her behaviour or illness at that time and she was concerned about her use of alcohol and other extreme behaviour. Ms R was, I am satisfied, attempting to be even handed in her evidence and description of the parties. The father denied the incident with B had occurred and Ms R was cross-examined by counsel for the father with a view to establishing that her memory of the incident was unreliable. Ms R was an impressive witness. I am satisfied that her evidence about this incident was both honest and accurate.
The father’s trial affidavit focused significantly on the mother’s mental health issues, particularly during the episodes of mania in 2013 and 2015, and the history of conflict later in the marriage. He also referred to episodes where he alleged that the mother drank alcohol to excess, particularly during the episodes of mania. His descriptions are generally consistent with the mental health history of the mother recorded by Dr A and Dr K. There is nothing in the father’s affidavit material to suggest that the mother is not capable of caring for the children adequately if her bipolar disorder is properly managed with medication, as appears to be the situation at present.
The father refers to the incident with the dog recounted in the mother’s affidavit. He admits he was drinking but denies he was intoxicated. He said a neighbour’s dog strayed into the backyard of a neighbour’s house while the parties and the children were present and scratched Y on the face. He said he “grabbed the dog by the scruff of its neck and threw it out the front of the house”. Another man who was present at the time objected to the father’s treatment of the dog which then led to a physical altercation, with the father pushing the man over. This apparently occurred, if not in the presence of the children, at least while they were in the house. The father’s description does not appear too dissimilar from the mother’s description of the same incident. It seems regrettable that it occurred while the children were nearby.
The father also refers to the mother withholding the children in June 2016. He says that on 18 June 2016 he saw the mother at the children’s (hobby omitted) training. He said that her speech was “slurred and her conversation was scattered”. He reported that “several other parents” commented on the mother’s behaviour. They were generally not identified although the father annexed to his affidavit two statements from persons who profess to have observed various things about the mother. One was a statement from the mother of his present partner and another from a parent at (hobby omitted) training. They were not available for cross-examination and I excluded the statements from evidence on that basis and on the basis of relevance. The father asserted that the mother appeared to be under the effect of medication and alcohol on 18 June 2016. He said he also saw her the next day drinking alcohol and exhibiting similar behaviour. In relation to 18 June 2016 Dr A, as noted, saw the wife on that day and did not notice anything out of the ordinary.
Much of the father’s affidavit was hearsay, including reports of what the children had told him. His affidavit even included a section titled “Concerns Raised by Others” which included hearsay evidence from unidentified people commenting, for example, that the “children are so much happier in your care” and the like. It was difficult, if not impossible, to assess the truth of many of his claims. The father gave evidence that in June 2016 the children had told him that they regularly stayed up late on school nights watching movies and playing games; the mother took them out to visit her friends or go to the pub on school nights; they were eating takeaway food most nights when they were with the mother; the mother often left them in the care of a babysitter while she went out to friends; they were taking many sick days off school and the mother was discussing family law proceedings with the children or in front of the children. There was no other evidence to support these claims.
The mother denied the allegation that the children missed many days from school. In cross-examination the father asserted that Y had been absent from school without notice for 15 days. It was put to him that she had been absent for 10 days due to hospitalisation for the removal of her tonsils. The father denied this. It seems that Y, at least, was absent from school for some period but I am unable to make any finding about the precise period and whether her absence was adequately explained. In cross-examination the father appeared to concede that the children’s attendance records may not be accurate, although these records were not tendered. The only school record in evidence was X’s school report for the end of semester one 2016. He was described as a “curious and knowledgeable boy who enjoys spending time with his peers”. He was said to be easily distracted but was a “joy to teach”. There were some other unexceptional comments. There were no remarks about his attendance.
There were other claims by the father including that the children’s hygiene was bad, including bad breath and unwashed hair. The father asserted that the mother failed to inform him of important matters. He gave an example of the children reporting to him that the mother’s car had hit a kangaroo and she had not reported this to him. He also said that X had lost two front teeth in an accident on a slide in February 2016 and the mother had not informed him. He also asserted that the mother discussed inappropriate matters in front of the children according to “one of the dads at (hobby omitted)” and that “other parents regularly” told him that the mother discussed proceedings and said negative things about him and his partner. He asserted that he had seen the mother driving at excessive speeds with the children in the car in June or July 2016. He said the mother passed his car in a 100 km an hour zone travelling at 140 to 150 km an hour. He said “friends have also told me they have seen her travelling well above the speed limit”. Again, these witnesses were not identified and did not give evidence. The father asserted that the mother did not facilitate a good relationship between the children and his partner, Ms B. The mother was given leave to respond orally to these allegations. She denied many of them although she did not specifically address the hearsay assertions. Nevertheless, I am not persuaded that the father’s allegations are correct. I have reservations about the reliability of many of the father’s claims. As noted, I have accepted Ms R’s evidence about the episode involving the father grabbing B by the throat, which was expressly denied by the father.
The father also gave evidence about why it was not practicable for him to relocate to Victoria. He said that he is currently a (occupation omitted), sometimes (occupation omitted) with the (employer omitted) with an annual salary of about $140,000 a year. He said that if he sought employment with the (employer omitted) he would be employed at the lower rank of (occupation omitted) at a salary of approximately $80,000. This evidence was not challenged. He also gave hearsay evidence that his partner, Ms B, has flatly refused to contemplate a move to Victoria.
The father’s affidavit also contained detailed descriptions of some of the disputes between himself and the mother since separation, including statements made by the children. I found this material of very limited assistance. It is clear that the relationship between the parties is very strained. I have little doubt that this is adversely affecting the children.
The father’s affidavit does not specifically deal with the current situation of the children. However, he deposes that the children have a good relationship with Ms B and her daughter C. He claimed, on the basis of things that children are said to have told him, that the mother is attempting to undermine the children’s relationship with Ms B and C. He referred to hearsay evidence from family friends who saw the children “getting on so well together” and hearsay statements by his father and stepmother and by Ms B’s mother who is said to have said much the same thing.
Although hearsay evidence in child-related proceedings is admissible under subsection 69ZT(1) of the Family Law Act 1975 subsection 69ZT(2) allows a court to give such weight (if any) as it thinks fit to that evidence. I found the hearsay evidence in the father’s affidavit lacking in probative value and I give it little weight.
The father also relied on an affidavit from a work colleague, Mr D. The affidavit was largely in the nature of a reference based on shared work experience. The affidavit also described a volatile and aggressive altercation between the husband and the mother at the home of Mr D in May 2015. Although the affidavit makes no reference to the mother’s illness, the timing would suggest that the incident described occurred during the mother’s bipolar episode in May 2015. Mr D was not cross-examined but I found the affidavit of limited usefulness.
A family report was prepared. The family consultant observed that there was a “limited effective co-parenting relationship” although both parties agreed that recent communication had been respectful. An example of the parties’ lack of communication was that both parents were taking the children to different counsellors. The mother did not know until the family report that the father was taking the children to counselling.
The parents repeated various allegations against each other to the family consultant. The mother alleged that the father used physical intimidation to ensure compliance with his wishes and the father alleged the mother was verbally abusive and threatening during the relationship. The mother admitted being verbally abusive but said this was only in the last six months of the relationship as she stood up to the father. The mother referred to the dispute with her brother (who resides in Darwin) after separation and said she now saw him only every two or three months. The mother admitted that she had been found guilty of assaulting her previous husband and had been sentenced to community service.
In relation to parenting capacity, the father admitted kicking B once in 2009 as a form of discipline and stated that he regretted his actions. He admitted placing A and B in the laundry for “time out” but denied that it was for an extended period and he said he had done so only after consultation with the mother. He denied using his height and size to intimidate A and B. As noted above he denied grabbing B by the throat. He denied a lack of sympathy and support for the mother in 2013 when she experienced an episode of mania preceding her admission to the psychiatric ward at (omitted) Hospital. The father said that he sees a psychologist and a psychiatrist about every two months to help him manage his PTSD. In relation to alcohol and drugs, the mother said she continues to consume alcohol about once a month socially. The father denied that he consumed alcohol to excess during the relationship. He said he has two or three drinks about once a fortnight.
In her discussion of the parties the author of the family report noted that the mother required refocusing to the questions at times and her account was peppered with frequent references to the father being “manipulative and narcissistic”. She observed, nevertheless, that the mother’s narratives and interaction with children indicated that she had a good understanding of their needs.
The mother indicated that the overarching motivation for her wish to relocate was to access “the love and support of both our families”, this being a reference to the fact that as well as members of her own family, the father’s father, step-mother and sister lived in the (omitted) region. However, she told the family consultant that since the breakdown of her relationship with father, she had not spoken to father’s family. She said she hoped to find her own accommodation in (omitted) but may initially live with her own parents.
The mother reported that the children had difficulty coping with the previous equal shared care arrangement and were unsettled and anxious at times. The mother reported that this was particularly the case with X. The mother also claimed that X reported disliking Ms B and C.
According to the family consultant, the mother described an “adequate daily routine” for the children although she wondered whether 8PM was too late for bedtime considering the children must be up and leaving for school at 7:40 AM. The mother said she needed to “work on time management” while caring for four children.
The mother described some support in Darwin but said there was no one she could rely on in a crisis. She has two cousins in the Darwin area but they have their own families and work and do not live nearby.
The family consultant said that the father was calm in interview but tearful when discussing the mother’s mental health problems and breakdown of the marriage. He spoke positively of the mother during the interview. His interactions with the children indicated that he had a good understanding of their needs.
The father also described some issues with the children being uncomfortable with changeovers. X, in particular, was tearful most Monday mornings on returning to school and his mother’s care.
The father described the children’s relationship with C as close, being “like brothers and sisters”. The family consultant observed that the father’s perception was quite different to the views expressed by the children.
The family consultant interviewed each of the children in the family constellation: X, Y, A, B and C. X described the positives of his time with his mother, including swimming and patting his dog. He rated his time with his mother as “10/10”. He also described his activities with A and B and said he liked playing on the PlayStation and playing frisbee with A. He liked playing on his bicycle and playing (hobby omitted) with B. He rated his time with his half-brothers as “10/10”. He described the positives of his time with his father as motorbike riding and going to the park with him. He rated his time with his father as “8/10”. He described the positives of his time with Ms B as “cooking sausages with her” and rated his time with her as “5/10”. X rated time with C as “1/10” and said she tells lies about him and he gets into trouble. He said he had spoken to his mum about it but she could not stop it. The family consultant had the impression that X did not want to tell his father about C because he feared being reprimanded.
Y said the positives of her time with the father were going to the swimming pool. She rated her time with him as “10/10”. Initially she rated her time with Ms B as “10/10” but on the family consultant summarising what she understood her views to be, she changed it to “1/10”. She later said she did not like Ms B because “She is mean to me. She doesn’t believe me when C is mean to me”. She rated time with the mother as “10/10”. Y said that if she was the judge she would say “Two nights with dad and 14 nights with mum because I feel sad and cry at night at dad’s and (omitted) cuddles me”. She said she did not cry at night at the mother’s home.
A said that the positives of spending time with his mother were that he loved playing music with her and she had set up a band in the lounge room. He said he loved going swimming and walking the dog with her. He rated his time with his mother at “8.5/10”. He rated his time with the Mr Falconer at “5.5/10”. He said that he “used to go motorbike riding”. He said he had loved “staying at his place and doing footy”. Asked if there was anything that made him feel sad, scared or worried in Mr Falconer’s care he said that:
“When we used to live together he was a bit tough on us. He would lock us in the laundry [him and B] if we were lying or back chatting - he hasn’t done this recently, more recently he’s taken away privileges. Once when B was back chatting Mr Falconer put soap in B’s mouth and grazed it against his teeth and wouldn’t allow him a drink. When we were in (omitted) we would be outside gardening and he wouldn’t let us have a drink of water; we’d beg for water and he wouldn’t let is have a drink - I felt bad, I didn’t really see there was a need [to withhold a drink] I was confused. Once he [Mr Falconer] kicked B in the bottom; B looked like he was hurt a fair bit - he was limping. It was no way to treat a kid. Mum has good punishments like going to bed early or not seeing friends.”
B said the positives of spending time with his mother were that she taught him “how to play bass guitar and we have jams”. He mentioned going for walks and walking the dog. He rated spending time with his mother as “10/10”. He mentioned that he did not like it when X and Y “come back from their dad’s crying.
B rated spending time with Mr Falconer “4/10” and said the positives of spending time with him were “We watch movies – I don’t know; he’s got Netflix. Not a lot he takes us to footy.” Asked if there is anything that made him feel sad, scared or worried in Mr Falconer’s care he said:
“Not so much anymore. I was kicked by him in (country omitted). He used to lock us [A and B] in the laundry for hours; then when we asked for a drink he gave as hot water. One time A and I were wrestling and Mr Falconer picked me up by the throat and threw me; it made me feel sad – mum was away with Y [giving birth to Y]. Mr Falconer treated us a lot worse when mum was away. I worry about Mr Falconer treating X and Y that way. I lied once in (omitted) when I was seven, eight or nine; he put a bar of soap in my mouth and hit my mouth shut so I bit it and that he wouldn’t give me a drink. He then told me he just washed his balls with the soap. He was screaming and yelling in my face and later wouldn’t let me have lunch or dinner – it made me feel angry. There were 2-3 times when he put soap in my mouth.”
B expressed a wish to move to Victoria and that “everyone would be happy”. He said that he was referring to his mother and Mr Falconer having arguments about Mr Falconer’s treatment of A and B. He said that everything was “good” since they had moved out and that “mum’s got better contact with her friends; her friends were worried about me and my brother”.
C said the positives of spending time with Mr Falconer were that they go to the waterpark, motorbike riding and fishing. She rated spending time with him “5/10”. There was nothing that made her sad, scared or worried when she spent time with him. She rated her time with X as “5/10” and said the positives were “we play together and have fun together”. She rated her time with Y as “6/10” and the positives were the same as with X.
The family consultant observed interactions between the mother, A, B, X and Y. The mother was observed to divide attention evenly between X and Y while providing appropriate to support to A and B as required. All five participants appeared relaxed in each other’s presence, there was good turn taking, along with smiles and laughter. The family consultant considered the interactions were positive and demonstrated the mother’s attunement to the children’s needs and an ability to maintain a supportive structure.
The father was observed with X and Y and Ms B and C joined later. The father divided his attention equally between X and Y and there was good turn taking during conversations. All three participants seem to appreciate each other’s company and there were smiles exchanged. After Ms B and C joined the group there was much laughter between participants at times as they appeared to delight in each other’s company. The father demonstrated attunement to X and Y’s needs. X and Y presented as enjoying spending time with Ms B and C.
The family consultant also gathered collateral information and interviewed others. She interviewed Ms Wylie, the maternal grandmother, who supported the mother’s proposal to relocate to Victoria and confirmed that the mother and the children could live with her and her husband while they found appropriate accommodation. She said that her relationship with the mother was fine apart from a period in 2010/2011 when Mr Falconer allegedly made the mother too fearful to contact her. She interviewed Ms B, who was supportive of the father’s proposal. She said she was close to Y. She did not express any concerns about the relationship between X, Y and C describing any problems as the “usual sibling rivalry”. She did not have any concerns regarding family violence, alcohol or drugs in her relationship with Mr Falconer.
The family consultant interviewed Y’s preschool teacher from 2015 who said that Y was slightly ahead in terms of meeting her development milestones. She had good social skills but was a little shy. The teacher had the impression that Y had “a lot on her mind” and that when in the mother’s care she would say she missed the father and when she was in the father’s care she missed the mother. She also interviewed the principal of the (omitted) School where the children attended in 2016. She confirmed that X found the separation of his mother and father very difficult and that he was emotional and upset when with the mother and “ratty and noisy” when he was with the father. The principal indicated that his behaviour was no longer an issue but on most mornings in 2016, X had been upset and sobbing and had to be “peeled” from whichever parent had care of him and tried to follow that parent when they left. She said that Y showed no signs of distress at school. She had not identified any concerns in the interaction between X, Y and C. The principal said that historically in 2015 there had been concerns about the mother talking loudly about the breakdown of her marriage to other parents at the back of X’s classroom and talking about her personal circumstances with front desk staff when she had Y in her care. She clarified that there were never concerns about the mother denigrating the father in conversations and explained it was more of a commentary. She said that there had also been concerns in 2015 when the father commenced collecting C and X, who had to attend after-school care, had become upset. The problem was solved by having the father collect C from the front desk of the school.
The family consultant’s evaluation included observations that, despite the expressed concerns by the children about their relationship with C, there were no manifest problems in the relation dynamics and they all appeared to appreciate spending time with one another. The school had not noticed any difficulties in their relationship. Information indicated that X was struggling with the previous week about arrangement. The family consultant said that the allegations of family violence would be a matter for evidence. While the interviews with X and Y did not raise any concerns in this area, interviews with A and B suggested the verbal abuse between the parties was a significant and long-term feature of their relationship. The mother disclosed that X and Y were exposed to family violence by her brother when they temporarily resided with him. The family consultant considered that exposure to family violence was likely to have had a damaging effect on X and Y’s sense of security and that the distressed behaviours displayed by the children at various times might be symptomatic of this.
The family consultant noted that the father admitted regretfully having once kicked B. She observed that whether he regularly used excessively harsh disciplining methods with A and B and whether there was a risk that he would use such methods with X and Y was a matter for evidence.
She observed that the parties admitted having had mental health problems and that they continue to receive psychiatric treatment although Mr Falconer said that he no longer takes medication. The family consultant noted that the mother admitted allowing A to wear an apron with a penis on it when her mental health was in decline in 2013. She considered that whether there was a risk of such inappropriate parenting occurring in future was a matter for evidence. The family consultant considered that the mental health issues of the parties may have compromised their capacity to be emotionally sensitive to X and Y’s needs.
The family consultant also referred to the substantial changes in the lives of the children in recent times: relocation as the father was stationed in different parts of the Northern Territory, the mother moving house four times after separation and the father entering a new relationship with Ms B and cohabiting with her and her daughter. She believed these changes probably caused the children to feel insecure at times.
The family consultant believed that the parties have a “limited effective co-parenting relationship”. She believed the mother was annoyed with the father and repeatedly referred to him as “manipulative and narcissistic” whereas the father impressed as being supportive of the mother. She was concerned that both parties independently organised for the children to attend counselling and their failure to communicate about that was unlikely to have promoted the best interests of the children. The family consultant’s assessment was that the children needed to attend counselling and the parents needed to agree on a single counselling service. She recommended that both parents attend a post-separation parenting program as a matter of priority.
The family consultant considered that both parents possess strengths in providing a structured and supportive environment for X and Y. She believed that the best interests of the children would be most effectively served by the parents remaining living in the same location. She did not support the mother’s relocation with the children to Victoria. She was concerned that if the children relocated to Victoria with the mother that would be difficult for the children to maintain a meaningful relationship with their father. She was also concerned that the children had experienced large changes in their short lives and she was unconvinced that a further major change would be beneficial to them.
She concluded that X, especially, was not coping with the week about arrangement and that the children’s needs would be best served by one parent being the primary carer. In terms of parenting capacity, she believed that there was little clear evidence that one party was definitely better positioned to care for the children. Nevertheless, the children stated a preference to spend more time with the mother and the children reported a positive relationship with A and B while reporting a problematic relationship with C. She supported the mother’s proposal to be primary carer of the children.
The family consultant acknowledged that there were risks associated with her recommendations as the mother’s mental health has been fragile and that she has a limited support network to rely on in an emergency in Darwin. Nonetheless, she noted that Dr A’s report suggested that his view was that the mother was unlikely to experience ongoing problems with her mental health. The family consultant thought that it was necessary to mitigate potential risks for the mother to be obliged to comply with a mental health treatment plan and for the children to spend substantial time with the father.
She recommended that the parties have equal shared parental responsibility, that the children live with the mother and spend time with the father in alternate weeks from Wednesday until Monday during term time and spend half the school holidays with the father. She recommended that changeovers take place at school during term time and that the children’s school be provided with a copy of the family report. She recommended that there be telephone/video contact with the children at reasonable times, that the parties agree on one counsellor for the children and the counsellor be provided with a copy of the family report, that the mother follow the treatment plan from her psychiatrist, that the parties be restrained from consuming alcohol or using illicit drugs while they have the care of the children and that the parties undertake Anglicare’s “For The Kids” parenting program as a matter of priority. Although it was not in issue in the proceedings, she recommended that A and B continue to have contact with Mr Falconer as agreed between the parties.
I generally agree with the factual observations made by the family consultant which were supported by the evidence in the trial.
The mother’s desire to return to Victoria is a genuine one. It is probably the case that housing, whether to rent or to buy, is cheaper in rural Victoria than in Darwin. The mother is presently dependent upon welfare payments and her consequent reliance on public housing is less than ideal. However, the mother does not suggest that her reliance on public housing would be necessary if her (occupation omitted) registration was reinstated. The employment prospects described by the mother in Victoria are all in the (employment omitted) area and her employment prospects there would also depend upon reinstatement of her (occupation omitted) registration.
The mother’s emphasis on the beneficial aspects of her family relationships in (omitted) underplayed the equivocal nature of those relationships over time. Dr A, the mother’s treating psychiatrist, did not suggest that it was necessary, or even beneficial, for the mother to return to (omitted), rather he considered that the mother’s outlook would improve with the end of proceedings. Dr K, who based his medical opinion on the history provided by the mother, was of the opinion that her return to (omitted) would be beneficial for her mental health. While he maintained this opinion, he conceded that the degree of benefit would be reduced if her relationship with the family was not as good as she described. While I do not disregard Dr K’s opinion, I consider that opinion of Dr A, as the mother’s treating psychiatrist, should be given more weight.
Dr A considered that the mother’s mental health was presently well-managed and that he did not expect a recurrence of symptoms of her bipolar disorder while she continued treatment. Although the mother genuinely wishes to return to (omitted) and would possibly be happier there I am not satisfied that her return to (omitted) is necessary for her mental health. I am not satisfied that, should she remain living in Darwin, her mental health is likely to be impaired in a way that undermines her parenting capacity.
There was no express evidence about the likelihood of the reinstatement of the mother’s (occupation omitted) registration in 2017. However, it might be inferred from the evidence of Dr A that with the end of proceedings and the continued good management of her condition, that there is a probability that her registration will be reinstated.
There is an unavoidable element of speculation in these matters. It must be acknowledged that it is not certain that the mother’s (occupation omitted) registration will be reinstated with a consequent return to her career and relatively well paid work, it is not certain that there will not be a recurrence of the symptoms of the mother’s bipolar disorder and it is not certain that her mental health and outlook would not be better in (omitted) than in Darwin. However, I consider that the most likely outlook is that the mother’s bipolar disorder will be well managed under Dr A in Darwin, that her (occupation omitted) registration will be reinstated, probably in 2017, and she will return to professional work. If so, the mother ought to be able to afford improved housing.
The evidence of the father was that his substantive rank in the (employer omitted) was (occupation omitted) and he sometimes acted at (omitted) level. He said that if he were to return to Victoria and join the (employer omitted), he would be employed at a lower rank, probably as a (occupation omitted) with a consequent reduction in salary from about $140,000 a year to about $80,000 a year and the loss of a housing subsidy. This evidence was not challenged. There was no evidence of any other occupation which would be likely to be as remunerative for the father. I accept that while it would be possible for the father to relocate to Victoria, it is unreasonable to expect him to do so. Ms B did not give evidence and I give no weight to the father’s hearsay assertion that Ms B would refuse to move to Victoria, even if I considered that a relevant factor.
In a relocation case the court is bound to follow the same legislative pathway as in other parenting cases. Relocation is not to be treated as a discrete issue in the making of parenting orders[1]. The core principle to be applied is the “paramountcy principle”. The court must have regard to the best interests of the child as the paramount, but not sole, consideration: Starr & Duggan[2]. The competing proposals are to be separately evaluated: Sayer & Radcliffe[3].
[1] Morgan and Miles (2007) FLC 93, 343 [72], [73]; Palmer & Hammer (No 2) [2011] FamCAFC 196, [28].
[2] [2009] FamCAFC 115.
[3] [2012] FamCAFC 209, [80].
Section 60B(1) of the Family Law Act 1975 (the Act) provides that that it is an object of the Part VII of the Act to ensure that the best interests of children are met by:
“ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child”.
Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations to be taken into account in determining what is in the child’s best interests are listed in section 60CC. Section 61DA requires the court 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 unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
Section 65D(1) provides that the court may make such a parenting order as it thinks proper, subject to the provisions of sections 61DA and 65DAB (concerning parenting plans).
Section 65 DAA(1), which is headed “Equal time”, provides:
… if a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interest 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 (including a provision in the order) the child spend equal time with each of the parents.
Section 65 DAA(2), which is headed “Substantial and significant time”, provides:
… if
(a)a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, and
(b)the court does not make an order (included provision in the order) for the child spend equal time with each of the parents;
the court must:
(a)consider whether the child spending substantial and significant time with each of the parents would be in the best interest of the child; and
(b)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (including a provision in the order) the child spend substantial and significant time with each of the parents.
Section 65DAA(5) provides that in determining what is reasonably practical for the purposes of subsections (1) and (2) the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind: and
(d)the impact that an arrangement of that kind would have on the child: and
(e)such other matters as the court considers relevant.
Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the matters in subsections (2) and (3). Subsection (2) provides that the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection (2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b).
While there is evidence that family violence has occurred within the family, particularly the father grabbing B by the throat and the father’s admission of having kicked him, there is no evidence that X and Y were exposed to that incident. There is some indication in the family report that X and Y may have been exposed to an ugly incident between the mother and her brother but that evidence is inconclusive. In any event there appears to be no evidence that, apart from the latter incident, the children had been exposed to family violence since the separation of the parties. I am satisfied that there is no particular ongoing risk to the children.
The mother says that if she relocates to (omitted) the difficulties of her present position in Darwin: poor housing, lack of employment and her vulnerable mental health, will disappear or be ameliorated with consequent improvement in her parenting capacity as primary carer. The validity of this assertion is a central issue. She says, in addition, they will be closer to extended family and good schools. She says that the children will be able to have a meaningful relationship with their father through school holiday time.
The family consultant was of the opinion that if the mother relocates to Victoria with the children, it will be difficult for the children to maintain a meaningful relationship with the father. The family consultant did not expressly list the factors she took into account in reaching that conclusion but she said both parents had strengths in providing a structured and supportive environment for the children, she considered that the father’s regular involvement in the children’s lives was a protective factor having regard to the mother’s mental health and that the children had already experienced major changes in their young lives. Other factors that might be taken into account include that telephone or other electronic communication between the children and their father is unlikely to be a satisfactory substitute for regular and frequent face-to-face communication. Spending time during the school holidays, while important, does not support a relationship to the same degree as a parent’s regular and frequent involvement in the day to day life of a child and the children presently spend five nights a fortnight with the father and nine nights with the father. According to the mother the children are doing well in this arrangement. This appeared to be supported by information from the children’s school.
In determining what is in the best interests of the children the court must, in addition, consider the matters set out in subsection 60CC(3).
(a) any views expressed by the children…
The children have expressed views that seem to indicate a preference to live with their mother. X said “I want two weeks with mum and two weeks with dad because I want longer with mummy”. Y said “two nights with dad and 14 nights with mum….” Having regard to the age and level of maturity of the children I give some but not substantial weight to these wishes. The children did not express any views about the mother’s proposal to relocate to Victoria.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children have a close and loving relationship with each parent but I am satisfied that they are more emotionally dependent on their mother. The children each have an important and close relationship with their half-brothers B and A and it is important that the relationship be maintained. The children should not be separated from B and A.
(c) the extent to which each of the child’s parents have 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;
The parents have each taken the opportunity to participate in decision-making about the children, spend time with the children and communicate with the children.
(ca) the extent to which each of the child’s parents are fulfilled, or failed the fill, the parent’s obligations to maintain the child;
Each parent has fulfilled their obligation to maintain the children.
(d) the likely effect of any changes in the child 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 the child), with whom he or she is been living;
Having regard to the young age of the children, in particular, I am satisfied that a separation from either of the children’s parents is likely to have a deleterious effect on the children’s relationship with that parent. I am satisfied that any separation of the children from their half-brothers A and B would be detrimental to the children and is not in their best interests.
(e) the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the children were to relocate to (omitted), the children would be able to spend time with the father only during school holidays. At other times communication could only be by electronic means. I am satisfied that if that were to happen it would substantially affect the children’s right to maintain personal relations and direct contact on a regular basis with their father. If the children remain in Darwin this is not the case.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative the child;
to provide the needs of the child, including emotional and intellectual needs;
Both parents have significant mental health histories. The mother’s bipolar disorder has seen her committed to a psychiatric ward in past. Her illness is presently well-managed and she is compliant with her medication regime. However, should her symptoms recur there is a significant doubt about her parenting capacity. There is evidence that she has had little insight into her illness and behaviour during past manic episodes. The opinion of the family consultant was that it was necessary that the mother continue to see her psychiatrist and follow medical advice. Her treating psychiatrist was of the same view. Against this background, the family consultant believed that there was a protective aspect to the father’s continued close involvement in the children’s lives. There is substance in that view. A countervailing consideration is the mother’s desire to return to live in Victoria which includes a wish to be closer to some members of her family. In the context of the mother’s history of mental illness, there is a serious question about whether her capacity as a parent will be undermined or diminished if she does not return to Victoria. Dr K was of the view that it would be beneficial for the mother’s mental health to return to Victoria although his opinion was based on an unjustifiably rosy depiction of her relationship with her family. Given a more realistic assessment of her relationship with her family, he thought the benefits were less but still considered that they existed. Dr A, the mother’s treating psychiatrist, did not express an opinion that the mother’s return to (omitted) was necessary for her full recovery but rather emphasised that the end of litigation would be most beneficial for her. Both the mother and Dr A appeared to consider that the reinstatement of the mother’s (occupation omitted) registration was likely to occur. Both Dr K and Dr A gave evidence that bipolar disorder was an underlying condition and external events such as stress were not factors in causing to the illness although some external factors such as continuing treatment and abstention from alcohol were necessary for recovery. Subject to those matters, Dr A did not expect a recurrence of symptoms. The mother appears to be well at the moment. She gave evidence that she was involved in community activities and had made friends in recent times. She plans to travel to (country omitted) and climb (omitted) this year. I cautiously conclude that return to Victoria is not necessary for preservation of the mother’s parenting capacity. Conversely, I conclude that if the mother remains in Darwin her parenting capacity will not be compromised as a result.
The father suffers from PTSD and continues to receive psychiatric and psychological treatment. Some of his past behaviour, particularly his excessively harsh treatment of A and B, raises concerns about his parenting capacity and his insight into the effect of his conduct on the children. Apart from this there is no evidence to suggest there is a risk he would use unduly harsh discipline on X and Y. Nevertheless, I propose to make an order restraining each parent from using physical punishment on the children and I propose to make an order that each parent attend a post-separation parenting course. The family consultant observed that the mental health issues of the parents could have compromised the capacity to be emotionally sensitive to the children’s needs. I agree with that assessment. Despite these concerns the family consultant was of the view that the father possessed strengths as a parent and was attuned to the needs of the children. This was an important factor in her support for the father’s proposal for the current arrangements to continue. I accept this view.
There was no evidence from Ms B but the family consultant’s interview and observations did not raise any concerns about her.
(g) the maturity, sex, lifestyle and background … of the child and of either of the child’s parents…
Not relevant.
(h) if the child is and Aboriginal child or a Torres Strait Islander child…
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
There is nothing to suggest that the parents are not devoted and loving parents. To the extent that there are deficiencies these appear to be closely related to the mental health characteristics of the parents discussed above.
(j) any family violence involving the child or a member of the child’s family;
I am satisfied there have been episodes of family violence as particularised above. There is no evidence of any further family violence between the parties since separation. I am satisfied that there is no reason to expect any further family violence between these parties.
(k) if a family violence order applies…
Not relevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Not relevant.
(m) any other fact or circumstances that the court thinks is relevant.
There are no other relevant factual circumstances.
Both parties proposed that there be equal shared parental responsibility and, notwithstanding my finding that there has been family violence and that consequently the presumption of equal shared responsibility does not apply, I am satisfied that it is in the best interests of the children for the parents to have equal shared parental responsibility.
Consequently it is necessary to consider the provisions of section 65DAA.
I am satisfied that spending equal time with each of the parents is not in the best interests of the children. In reaching this conclusion I have taken into account the assessment of the family consultant that it is necessary that there be a primary carer for these children. This flows from the evidence that the children, particularly X, were finding the previous equal time arrangement difficult. In any event, the father’s position was that the present arrangements whereby the children spend five nights a fortnight with him should continue.
Because I do not propose to make an order for equal time it is necessary to consider the provisions of section 65DAA(2). The correct approach is to consider whether spending substantial and significant time with each of the parents would be in the best interests of the children and, if so satisfied, to then consider whether the children spending substantial and significant time with each of the parents is reasonably practicable: MRR v GR[4].
[4] [2010] HCA 4.
I am satisfied it is in the best interests of the children to spend substantial and significant time with the father for the reasons discussed above including, primarily, that it will be difficult for the children to maintain a meaningful relationship with the father if they live in Victoria.
Since such parenting will be possible only if the mother remains in Darwin it is necessary that I consider the circumstances of the parties, particularly those of the mother, to determine if the arrangement is reasonably practicable[5]. In determining whether it is reasonably practicable the court must have regard to the factors set out in subsection 65DAA(6) including how far apart the parents live from each other, their current and future capacity to implement the arrangements, their current future capacity to communicate with each other to resolve difficulties, the impact of the arrangement on the child and other relevant matters.
[5] Ibid, [15].
An arrangement for substantial and significant time is possible only if the parties continue to live in Darwin. The question of the parents’ current and future capacity to implement the arrangement depends critically on the whether the mother’s happiness, well-being and mental health is likely to be undermined if she does not return to Victoria. Central to the determination of that issue is the mother’s assertion that her present housing arrangements, her present lack of employment and her mental health status means that it is not reasonably practicable for her to remain in Darwin. I have found difficulty in coming to a clear conclusion about these issues. I accept that the mother’s current public housing is unsatisfactory to her, I accept that she is presently unable to return to her profession and that her income has been significantly reduced. I accept that she genuinely desires to return to Victoria. Notwithstanding that I am satisfied the mother has underplayed some of the indications of strained relationships with her family, I accept that she believes she would be happier living nearer to them in (omitted). On the other hand, I accept that her mental health is currently well managed and she is in remission from the symptoms of bipolar disorder. Dr K’s view was that it would be beneficial for the mother’s mental health to return to (omitted). Dr A did not point to a return to (omitted) as being beneficial to the mother’s mental health. Instead, he emphasised that he believed that the mother is likely to feel better once proceedings are complete. Although there is not a formal inconsistency between these views there was a distinct and important difference in emphasis. I consider that more weight should be given to the opinion of Dr A as the treating psychiatrist. Although there was no evidence to say when the mother will have her (occupation omitted) registration reinstated both she and Dr A considered that reinstatement was likely. I am satisfied that she is likely to return to her profession within a reasonably short time, probably in 2017. If so, the mother’s income will increase and she will be in a position to improve her standard of housing.
There is evidence that the parents’ current capacity to communicate with each other to resolve difficulties is limited, for example, each parent enrolled the children in separate counselling without prior consultation with the other parent. There was also the episode when the parents each withheld the children in 2016. On the other hand, the mother says the children are currently doing well and some difficulties, such as X becoming upset when C was collected from school, have been resolved. The family consultant also noted that the father spoke positively of the mother during interview which gives some grounds for optimism that future communications will be improved. I propose to make orders for the parents to enrol in a post-separation parenting course with a view to improving their communications.
Consideration of the impact of the arrangement on the children must include consideration of the impact on the children of the mother remaining in Darwin. If that involved a likelihood that, as a result, the mother’s mental health or her ability to parent the children would be compromised then the arrangement would not be reasonably practicable. For the reasons set out above I have concluded that this is unlikely to be the case.
For these reasons I conclude that it is reasonably practicable for the mother to remain in Darwin and reasonably practicable for the children to spend substantial and significant time with the father. I propose to make an order that the children live with their mother and spend substantial and significant time with the father by spending five nights a fortnight with him under the current arrangements.
Property
The parties married and began to live together in 2008 and separated in 2015. Their marriage was of about 7 year’s duration. The wife says that at the beginning of the marriage she owned a house subject to mortgage in (omitted), Victoria. She says the mortgage debt was $130,000 at the time of the marriage. She says she sold this property for $270,000 in 2013, although she does not say how much the mortgage debt was at that time. She says she owned a car worth about $10,000 and had superannuation of about $90,000. She says that she worked as a (occupation omitted) or was at home caring for the children throughout the marriage, although in the latter period she suffered from illness which prevented her working as a (occupation omitted).
The wife does not say how the net proceeds of sale of the (omitted) property were applied but she says that in early 2013 the parties purchased an investment property in Property M, Victoria. She was unable to say what deposit was paid and she says that she is “unsure” how much of the “deposit” on the purchase of the Property M property was supplied from joint funds. It seems probable that some part of the proceeds of sale was applied to the Property M property but I am unable to make any definite finding.
She says her father lent the parties $60,000 for the purchase and the balance was borrowed from the (omitted) Bank. The wife later undertook further borrowing with a (omitted) Bank line of credit to repay her father.
The Property M property was sold in 2016. The net proceeds of sale were $95,261. The sum of $34,979 was used to clear the (omitted) Bank line of credit debt used to repay the wife’s father. An amount of $10,000 was paid to the wife by consent on 2 November 2015 with the amount to be characterised at trial. A balance of $50,282 remains in the wife’s solicitors’ trust account.
The husband appears to submit that the (omitted) Bank line of credit debt ought to be seen as the wife’s alone and the payment of the debt taken into account as an “add back”. I do not accept that submission. The borrowing from the father was undertaken for a joint purpose and the repayment of the debt was joint responsibility, whether legal or otherwise.
The parties also owned many motor vehicles and other similar assets. These are listed in the balance sheet below.
The wife referred to “Qantas points” accrued by the husband as a result of using his credit card. No value is suggested for this item and I will ignore it. The wife also referred to the “(omitted) Vacation Club” which appears to be a contractual arrangement permitting the use of (omitted) accommodation, both local and international, on payment of an annual fee. This arrangement was apparently entered into by the husband before the marriage. The wife suggested this was worth $25,000 but there is no evidence of value. She relied on an admission against interest by the husband in his financial statement that the value of this right is $10,000. I will accept this value, subject to a deduction for outstanding contractual payments. The husband proposes to retain this interest and will keep up the annual payments which appear to be about $2,500 a year. The current value of this interest seems to reflect the regular payment of annual payments and as the payments during the marriage exceed its current value I propose to treat this as accrued through the equal contributions of the parties.
The wife is a beneficiary or potential beneficiary of a family trust set up by her family. She deposes that she has not received any income or benefit from the trust. That was not challenged. There was minimal information about the family trust, whether discretionary or otherwise, and I am unable to find that it constitutes property or a financial resource of the wife.
The present value of the wife’s superannuation interest is $143,704.
The wife said in her affidavit that she was “unsure as to where a lot of our money has gone” and said that the family had many holidays including holidays overseas and skiing holidays. This appears to be borne out by the evidence which indicated that the asset pool of the parties was less at the end of the relationship than at the beginning.
The husband says he purchased a property in (omitted) in 2003 for $240,000. He said that the property was sold in 2009 for $425,000. He says the net proceeds of sale, which were not specified, were used to purchase a (omitted) boat for $98,000. The unspecified balance was, he said, used to pay off loans and debts accrued by the parties.
In 2008, shortly before the parties began the relationship, the husband purchased a property in (omitted) for $310,000. It appears the entire purchase price was borrowed. The property was sold in 2014 for $425,000 (it appears coincidental that the sale price was the same as the other property but this was not challenged). The husband says the net proceeds of sale, which were not detailed, were used to pay outstanding debts accrued by the parties during the relationship.
The husband retained possession of a Toyota (omitted) after separation. He sold this to the dealer and received $2,969 after payment of the finance debt.
At the time of or shortly after separation the husband purchased a (omitted) motorcycle for $30,000 using borrowed funds. He owes $23,000 on the borrowings. The husband will retain the motorcycle and will remain responsible for the liability in respect of it.
It is difficult to calculate the initial financial contributions of the parties as the evidence about the equity each owned in their respective properties was vague. The husband in his affidavit asserted that he owned various motor cars, motorcycles and household furniture at the commencement of the relationship. He gives asserted values. There is no admissible evidence to support those valuations and I do not take them into account.
He claims that he had a superannuation interest of $95,000 at the beginning of the relationship. As noted above, the wife asserted that her superannuation interest at that time was $90,000. These claims were not challenged.
I am unable to find that the initial contributions of the parties were anything other than equal.
Both parties were employed throughout the relationship with the exception of periods when they were ill or, in the case of the wife, caring for children. The husband provided some support for the wife’s children, B and A, from a previous relationship. Their father paid regular child support but I am satisfied that there were contributions made by the husband such as contributing to family holidays which included B and A.
The husband also pointed to significant post-separation contributions including payment of house and contents insurance, payment of child care for Y, private health cover for the family, private school fees for X and Y and, until December 2015, B and A, vehicle payments for the Toyota (omitted) used by the wife and payment for computer tablets used by B and A. The husband calculates these payments are $28,272 in total. With the exception of the payments for B and A’s school fees, which are not individually specified, these payments relate to the children’s education, private healthcare and provision of a car when the wife was responsible for the joint care of the children. During this period she was suffering from the effects of an illness and unable to work. Notwithstanding the absence of any order there are elements of spousal maintenance about these payments and I am not persuaded that they should be given significant weight as a contribution to property.
The parties have agreed on the majority of the balance sheet and values, although there some minor discrepancies in some values of no more than a few hundred dollars. Neither the husband nor the wife wishes to retain these items and there will be an order for their sale and the division of the proceeds. The wife estimated the value of the (omitted) boat at $60,000 but there was no evidence of that. The husband, who will retain the boat, admitted against interest that its value is $55,000. That is the value I adopt. The husband asserted in his financial statement that there was artwork and jewellery with an estimated value of $20,000 and household contents also worth an estimated $20,000. There were no details of these items and it is not stated in whose possession these items are now. Neither party sought an order for their sale. I propose to ignore these items. The wife appears to own some musical equipment. Again there was no evidence of the value of this equipment and I do not propose to take these into account. The wife also asserted that the husband had accrued significant “Qantas points”. No attempt was made to value these and I will ignore them.
The balance sheet is set out below. I have also included in brackets after the description of the item an indication, where there is agreement, of whether a particular item is to be retained by the husband or the wife.
1
Proceeds of sale of Property M property, held in trust
$50,292
2
Husband's (omitted) Bank account
$1,271
3
Husband’s (omitted) Vacation Club membership
$10,000
4
(omitted) Camper trailer (W)
$6,500
5
(omitted) boat (H)
$55,000
6
Wife's (omitted) Bank account
$775
7
Wife's (omitted) Bank money card accounts
$4
8
Wife's Toyota (omitted) car (W)
$9,500
9
Husband's (omitted) motorcycle (H)
$30,000
10
(omitted) jet ski
$2,000
11
Honda (omitted) motorcycle (H)
$6,500
12
Honda (omitted) motorcycle (W)
$3,500
13
Honda (omitted) motorcycle (W)
$750
14
Suzuki (omitted) bike (W)
$750
15
Suzuki (omitted) motorcycle (W)
$400
16
(omitted) trailer
$3,000
17
Transfer of funds to Wife pursuant to orders of 2 November 2015.
$10,000
Total assets
$190,242
18
Wife's (omitted) Bank loan (omitted) (line of credit)
$47,963
19
Husband's (omitted) Mastercard
$18,085
20
Husband's (omitted) Mastercard
$24,764
21
Husband's (omitted) Bank loan for (omitted) motor bike
$23,015
22
Husband's (omitted) Bank loan (omitted) (line of credit)
$28,894
23
Husband’s (omitted) Vacation Club loan
$3,812
24
Toyota (omitted) car loan
$11,661
Total liabilities
$158,194
Net assets
$32,048
24
Wife's (omitted) superannuation (accumulation interest)
$143,704
25
Husband's (omitted) superannuation (accumulation interest)
$204,752
Total superannuation
$348,456
I have found that the initial contributions of the parties were equal. The contributions of the parties during the marriage were somewhat different in kind. The husband was employed as a (occupation omitted) throughout the marriage. The wife was also employed for much of the marriage as a (occupation omitted) but with time out of the workforce when the children were small. Towards the end of the marriage her capacity for employment was reduced due to illness. Nevertheless, this was for a relatively short period and I see no reason to find that the contributions of the parties were not equal because of that factor. The husband also participated in the care of B and A who were not his biological children. Their father made payments of child support but I am satisfied these were less than the true cost of supporting the children and some acknowledgement of the father’s contribution in this regard is merited. An unusual aspect of the financial history of the parties appears to be that the net worth of their assets is probably significantly less at the end of the marriage than at the beginning. The present net worth of the parties is very small.
The wife complained that shortly after separation the husband withdrew the sum of $8,395 from the joint account which represented an overpayment by the wife’s employer that had to be repaid by her. As far as I can understand the wife’s evidence she then withdrew $2,050 from the joint account which represented the husband’s salary. The net effect is that the husband has withdrawn money that the wife has had to repay to the extent of about $6,350. The husband did not challenge the wife’s assertion but maintained that he has been responsible for payment of joint credit card interest which he estimated at $7,635 and, in addition, claimed that the wife had withdrawn amounts from the joint account and utilised his personal credit card to a total amount of $11,093. He was vague about the period in which this occurred simply referring to “over the period of the separation”. It is not clear to me from an examination of the various bank statements attached to the husband’s affidavit that this expenditure should necessarily be seen as the wife’s alone. Some of it relates to travel to Victoria at the time of separation by the wife but other items of expenditure appear to be for childcare and other items of family expenditure. He also sold the Toyota (omitted) car owned by the parties after separation and kept the net proceeds of $2,969. Although I cannot make a detailed calculation of the net effect of these transactions I think it is likely that they have favoured the husband. Given the very small asset pool, I consider that this largely balances the husband’s support for A and B mentioned in the previous paragraph.
There was evidence of indebtedness for a car loan for the Toyota (omitted) of $11,661 in the husband’s name. The wife drives the car. In cross-examination it was suggested to the husband that he did not have the capacity to pay out this loan. He answered that he did not have the capacity to do so immediately but he was able to “cash leave” to pay the debt. This was not pursued further in cross-examination or re-examination but the husband’s answer indicated that he had access to a financial resource, being the ability to convert accrued leave to cash. This was not disclosed in any of his affidavit material. There was no evidence about how much leave was accrued, the nature of the leave, whether accrued during the marriage or afterwards, or the conditions for converting accrued leave to cash. In family law litigation there is a duty of frankness and I think it is probable that the husband has not fully discharged that duty. In all the circumstances I consider that it is appropriate that the husband be obliged to pay most of the debt. I will make an adjustment by ordering that $5,000 of the money held in trust be paid to the husband to compensate him, in part, for the obligation to pay the debt.
The parties each accrued considerable debt after separation. The wife’s (omitted) Bank loan was paid in full from the settlement monies from the sale of the Property M property after separation. The wife has incurred further indebtedness of $47,963 since then. The husband increased his indebtedness with a line of credit and has increased his indebtedness by borrowing for the purchase of a motorcycle. While I will take those matters into account in assessing contributions, it seems that as they are post-separation developments that should largely be removed from the assessment.
The wife said that in May or June 2015 shortly before or at the time of separation, the husband increased his indebtedness by taking out a (omitted) Bank line of credit. She said that this had been intended to be a means of consolidating credit card debt but that rather than consolidating debt the husband merely increased it. The husband in his affidavit material substantially agrees with this claim although he says the (omitted) Bank line of credit was first taken out in April 2015. He says that it was later used to “meet ongoing family expenses, relating to health care, schooling and other general expenses, as well as legal fees”. I am satisfied that a substantial part of the debt, if not all, is for expenditure after separation. In the absence of any more detail from the husband, I do not believe this debt ought to be taken into account as a matrimonial liability.
The wife similarly says that the increase in indebtedness of her (omitted) Bank line of credit from when it was cleared after separation to its current level is due to the need “to support myself and the children financially and to cover part of my costs from my legal proceedings”. In final submissions the wife says that she has paid legal fees of $13,356 and proposes that these be an “add back”. The husband has also incurred legal fees. In cross-examination he said he had paid $7,000 in legal fees but it this is unlikely to be the full extent of his liability. I am not able to treat each party’s legal fees on a consistent basis and I am not prepared to treat those fees as an “add back”.
I consider that the (omitted) Bank line of credit accounts of both the wife and the husband, which include amounts for legal fees, should be considered as post-separation indebtedness of each of the parties and set apart from the final calculation. I am also concerned that there is evidence that some of the debt is debt for consumption and was incurred recklessly or at least imprudently. As mentioned the husband’s increased indebtedness for the purchase of the (omitted) motor cycle. The debt and the asset itself should be excluded from the final calculation.
Taking these matters into account, I find that the contributions of the parties pursuant to subsection 79(4) to their assets and superannuation are equal.
Where the asset pool is small section 75(2) factors may be given greater weight. The wife submitted that the appropriate division of the assets is 60% to her and 40% to the husband taking into account the husband’s greater earning capacity. She also submitted that an appropriate division of the superannuation pool is 65% to her and 35% to the husband.
The husband submitted that appropriate division of the assets was 50% to each party and that each party retain their current superannuation interests or a de facto split of superannuation interests of about 41% to the wife and 59% to the husband.
Another factor that must be taken into account is the payment of $10,000 to the wife on 2 November 2015. I am satisfied this should be treated as a partial property settlement.
The wife is presently in receipt of welfare payments as she recovers from illness. Although I have found that she is likely to return to full-time employment within a reasonably short period, her earning capacity will still be less than the husband’s. I am also conscious that she has a significant debt with limited means to service it. It appears to me that she is likely to be in need of cash rather than superannuation at the moment. The husband, on the other hand, has significant debts but he has the ability to service them and perhaps reduce them. After taking into account section 75(2) factors, particularly the health and earning capacity of the parties, I find that it is just and equitable to alter the property interest of the parties to provide that the wife receives 74% of the net assets and 55% of the superannuation pool, after exclusion of certain assets and liabilities acquired after separation. The effect of these orders will be as follows:
Asset
Wife
Husband
1
Pay to the wife from proceeds of sale of Property M property, held in trust
$45,292
Pay to the husband from proceeds of sale of Property M property, held in trust
$5,000
2
Husband's (omitted) Bank account
$1,271
3
Husband’s (omitted) Vacation Club membership
$10,000
4
(omitted) Camper trailer (W)
$6,500
5
(omitted) boat (H)
$55,000
6
Wife's (omitted) Bank account
$775
7
Wife's (omitted) Bank money card accounts
$4
8
Wife's Toyota (omitted) Car (W)
$9,500
9
Husband's (omitted) motorcycle (H)
$30,000
10
(omitted) jet ski (to be sold and proceeds divided equally)
$1,000
$1,000
11
Honda (omitted) motorcycle (H)
$6,500
12
Honda (omitted) motorcycle (W)
$3,500
13
Honda (omitted) motorcycle (W)
$750
14
Suzuki (omitted) bike (W)
$750
15
Suzuki (omitted) motorcycle (W)
$400
16
(omitted) trailer (to be sold and proceeds divided equally)
$1,500
$1,500
17
Transfer of funds to Wife pursuant to orders of 2 November 2015.
$10,000
Total Assets
$79,971
$110,271
18
Wife's (omitted) Bank loan (omitted) (line of credit)
$47,963
19
Husband's (omitted) Mastercard
$18,085
20
Husband's (omitted) Mastercard
$24,764
21
Husband's (omitted) Bank loan for (omitted) motor bike
$23,015
22
Husband's (omitted) Bank loan (omitted) (line of credit)
$28,894
23
Husband’s (omitted) Vacation Club loan
$3,812
24
Toyota (omitted) debt
$11,661
Total Liabilities
$47,963
$110,231
Net assets
Net assets excluding items 9, 18, 21, 22
$32,008
$79,971 (74%)
$40
$28,362 (26%)
24
Wife's (omitted) superannuation (accumulation interest)
$143,704
25
Husband's (omitted) superannuation (accumulation interest)
$156,805
Splitting order in favour of Wife
$47,947
Total Superannuation
$191,651 (55%)
$156,805 (45%)
Items 10 and 16 in the table above were not the subject of any agreement about who is to retain them. Accordingly, unless it is otherwise agreed between the parties, those items are to be sold and the proceeds of sale divided equally.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 23 June 2017
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Procedural Fairness
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Remedies
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Costs
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