A and A
[2007] FMCAfam 646
•29 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & A | [2007] FMCAfam 646 |
| FAMILY LAW – Parenting – relationships with parents – encouraging involvement of other parent – relationships with new partner and her child – staged arrangements for time with parent for young child – communication difficulties – equal time inappropriate – property – add back for proceeds of share sale – capital gains tax. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA, 75, 79 |
| Chorn and Hopkins (2004) FLC 93-204 VR v RR (2002) 29 Fam LR 39 |
| Applicant: | BA |
| Respondent: | FA |
| File number: | SYM 6060 of 2006 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 13, 14 February 2007, 13 April 2007 |
| Delivered at: | Canberra |
| Delivered on: | 29 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Maurice |
| Solicitors for the Applicant: | W. M. Bruce Associates |
Counsel for the Respondent: | Ms J. Godtschalk |
| Solicitors for the Respondent: | Gain Kent McRae |
ORDERS
Parenting Orders
The parents have equal shared parental responsibility for the children AJA, born May 2000, ACA, born September 2001 and TCA, born June 2005.
The children live with the wife.
AJ and AC spend time with the husband as follows:
(a)During school terms, for two periods each fortnight as follows:
(i)In the first period from after school Thursday to the following Monday before school and each alternate week thereafter;
(ii)In the second period from after school on Thursday to before school on Friday and each alternative week thereafter.
(b)For one half of each period of school holidays, being the first half in odd years and the second half in even years.
(c)Such further time as agreed between the parents in writing.
TC spend time with the husband as follows:
(a)During school terms, for two periods each fortnight as follows:
(i)In the first period from 3:30pm Thursday to 9:30am Friday and 8:30am Saturday to 6:00pm the following Sunday and each alternate week thereafter;
(ii)In the second period from 3:30pm Thursday to 9:30am Friday and each alternative week thereafter;
(iii)From 1 April 2008 the weekend in the first period be extended to end at 9:30am Monday;
(iv)From 1 October 2008 the same two periods as AJ and AC set out in Order 3(a).
(b)Until 1 October 2008 for a block of three nights during term school holidays.
(c)For three five night blocks during the 2007 December/January school holidays.
(d)For school holidays from 1 October 2008 for the same periods as for AJ and AC as set out in Order 3(b).
(e)Such further time as agreed between the parents in writing.
For the purposes of Orders 3 and 4, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a)The first half of school holidays is deemed to commence at 10:00am on the day after the last day of school, and to end at 5:00pm on the day before the new school term commences.
(b)The school holidays are deemed to include pupil free days.
(c)The second half of the December/January school holidays is deemed to commence at 5:00pm on the Saturday in January that falls approximately three weeks after the last day of the fourth school term of the previous year.
(d)The second half of all other school holidays is deemed to commence at 5:00pm on the middle Saturday of the school holidays.
(e)The wife shall deliver the children to the husband and the husband return them to the wife except on school days.
The children shall spend time with the husband from 3:00pm Christmas Eve to 3:00pm Christmas Day in odd years and from 3:00pm Christmas Day to 3:00pm Boxing Day in even years.
Notwithstanding any other orders the children shall spend time with the husband between 9:00am to 6:00pm on Father’s Day and with the wife between 9:00am to 6:00pm on Mother’s Day.
Notwithstanding any other orders each child shall spend at least three hours with each parent on that child’s birthday and at least three hours with the parent on that parent’s birthday.
The parent with whom the children are not living be at liberty to communicate with the children between 6:00pm and 7:00pm on no more than four nights in any one week.
The parties purchase two communications books for exchanging relevant information about the children’s needs and activities, one to be handed over at TC’s changeover and the other at the changeover for AJ and AC. From 1 October 2008 only one book will be required.
The parties attend upon such therapist as may be recommended by Ms S Connor (being not any therapist previously seen by the parties or the children) for the purposes of improving their capacity to communicate and resolving differences in relation to the upbringing of the children.
The parties attend upon the therapist for such periods and at such times as may be recommended by the therapist.
The parties share the cost of the therapist equally.
The husband use his best endeavours to ensure:
(a)He is always able to care for the children when they are spending time with him.
(b)He takes the children to their sporting and social activities.
Property Orders
The wife pay to the husband the sum of $30,000 within eight weeks of the date of these Orders.
Contemporaneous with the payment of the $30,000 the husband sign all documents as may be required to transfer to the wife all of his interest in the real property situated at 12 W Place, W, being the whole of the land more particularly described in Certificate of Title Folio Identifier 26/1060936.
Contemporaneous with the transfer of 12 W Place, W the husband and wife sign all documents and do all things necessary to discharge the mortgage on the property and the wife be at liberty to refinance the mortgage on the property.
The wife indemnify the husband against all payments and liabilities pursuant to the mortgage on the 12 W Place, W property and all rates, taxes and outgoings in respect of the property.
In the event that the wife fails to comply with Order 15, the husband and wife take all necessary steps to sell the 12 W Place, W property, and upon completion 7.05 per cent of the gross proceeds of the sale shall be applied to the husband with the balance, after discharging all outstanding mortgages and liabilities, to the wife.
The husband sign all documents and do all things necessary to transfer to the wife all interest he has in the Toyota Prado motor vehicle registration number AJK 76H.
The wife sign all documents and do all things necessary to transfer to the husband all interest she has in the Toyota Echo motor vehicle registration number AA 88 UH.
The wife sign all documents and do all things necessary to transfer to the husband all interest she has in the jointly held Telstra shares.
Except as otherwise specified in these orders each party be solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.
In the event that either party fails, refuses or neglects to execute any documents necessary to give effect to these Orders then under s.106A of the Family Law Act 1975 the Registrar of this Court be appointed to execute the documentation in the name of the defaulting party.
Each party have liberty to apply on seven days notice on matters concerning the implementation of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERAA |
SYM 6060 of 2006
| BA |
Applicant
And
| FA |
Respondent
REASONS FOR JUDGMENT
The applicant father and husband, Mr BA, and the respondent mother and wife, Ms FA, have three children. The parents separated in June 2005 and subsequently divorced. They now seek parenting orders for their children and distribution of their property.
For convenience in these reasons I will refer to the applicant as the husband and the respondent as the wife when considering both the parenting orders and the property distribution.
Background
The husband was born in 1971 and is almost 36 years old. The wife was born in 1972 and is 35. They married on 24 January 1998 and separated on 5 June 2005. The husband later moved to the nurses’ accommodation at the Wagga Wagga Base Hospital. The marriage was thus for almost seven and a half years. In December 2005 the husband moved into a unit he had purchased. The wife continues to live in the home which is jointly owned.
There are three children of the marriage:
·AJ born May 2000 – currently seven years
·AC born September 2001 – almost six years
·TC born June 2005 – two years.
The three children have lived with the wife since separation.
Interim consent orders were made on 27 September 2006 providing for:
·the children to live with the wife
·AJ and AC to spend from 3:00pm Friday to 6:00pm Sunday each alternate week with the husband
·AJ and AC to spend from 5:00pm Wednesday to 9:00am Thursday in each other week with the husband
·AJ and AC to spend half school holidays with the husband
·progressively increasing time for TC with the husband leading to each alternate weekend from 8:30am Saturday to 4:00pm Sunday.
The husband has a new partner who has a seven year old daughter C. The husband and his partner are not sharing a household as she maintains her own residence.
For the reasons set out below I have decided:
·to significantly increase the time AJ and AC spend with the husband
·to provide progressively increasing time for TC with the husband leading to the same time as AJ and AC from 1 October 2008
·the net pool of property and superannuation should be distributed so that the wife receives 57.5 per cent and the husband 42.5 per cent.
Parenting orders
I have considered in turn below the principal matters in issue on parenting matters. They are:
·relationships with the parents
·wife’s attitude to encouraging involvement with the husband
·relationships with husband’s new partner and her daughter
·orders for TC
·communication difficulties.
Relationships with parents
The wife alleges that AJ has told her that he does not want to live with his father. She says that AJ has regular nightmares after returning from overnight contact with the husband. In her view AJ has lost respect for his father “because of the way that his father has spoken to him over the times, the way he has, I suppose, manipulated AJ.” She grudgingly accepts that AJ is attached to his father and enjoys at least some of the time with him.
Under cross-examination of the husband the question of him keeping AJ’s school merits certificates was raised. In my view the husband displayed a surprising degree of insensitivity towards AJ in the way he kept these certificates. This was matched by his apparent lack of concern when questioned.
The husband’s new partner says the husband has a loving relationship with his children. He shows them love and respect, is not aggressive or abusive to them and provides appropriate discipline. She denies that the children have been disturbed or suffered nightmares on nights when she has seen them at the husband’s.
Wife’s attitude to encouraging involvement with the husband
The husband says that for the twelve months following separation he tried to exercise contact with his children without seeking court orders. The contact progressed smoothly for a short time in relation to AJ and AC. The contact however became problematic as the wife always attached conditions and restrictions. He was told that the children were ill or had other activities to attend. He was denied access from late February 2006 until early April 2006 following an incident at the wife’s home on 11 February 2006 when he was returning AJ and AC.
The husband was not able to have contact with TC at all as the wife alleged TC suffered separation anxiety. His only contact was through visiting the day care centre, something he stopped in December 2006 before the Christmas break. Nevertheless the wife was happy to leave TC with friends and at day care for two days a week.
In July 2006 the husband took the two elder children to Canberra for two days during the school holidays to visit Questacon. As a consequence he says that the wife made it a condition of contact that the children not leave Wagga. She was quite critical of the husband for visiting Canberra for Questacon without advising her. Nevertheless she conceded in oral evidence that she had done precisely the same when she had spent a couple of days with the children at the Central Coast.
One of the orders the wife seeks would require a parent to notify the other parent if they were planning taking the children overnight outside Wagga.
The husband states that the wife arranged AC’s school enrolment without consulting him. Further she did not include him as an emergency contact but nominated a friend. He agreed under cross-examination however that the wife had provided his details as a parent.
The wife says that at the time of the first request for overnight contact the husband was living in the nurses’ home. She consequently requested details of where the children would stay, to which he replied she had no right to know. The husband is aggressive and angry towards her so much so she is frightened at times. The children have witnessed the anger and verbal abuse.
Under cross-examination the wife said that the circumstances of the breakdown of the marriage should have nothing to do with how much time the children spend with their father. She has got over that now and it was no longer an issue for her. But she referred to it in her affidavit when dealing with financial matters. It is clear that the wife still retains bitterness towards the husband because of the marriage break up. She agreed this made her exaggerate “a little bit”. It is a reflected in her attitude towards the husband’s contact with the children. She also saw the husband as money hungry which was part of his motivation for coming to court.
The wife’s affidavit material is completely and uniformly negative about the husband – certainly more so than the husband’s. In oral evidence she was only prepared to concede that “there’d be probably a couple of little positive things that they [the children] say about their father.”
Relationships with the husband’s new partner and her daughter
The husband says that C is sometimes present when his children are with him. He says that they play and interact well although like all children they have the usual childhood squabbles. He does not agree that AJ has a problem with C and fights with her quite significantly. There is not real hostility between them.
The husband’s new partner says that her relationship with AJ, AC and more recently TC has progressed smoothly. They appear to accept her, show each other proper respect and friendship and get on very well. C and AJ are competitive. They did not start off very friendly but have established a better relationship over time. They now get along very well. C and AC have always got on and TC is forming a new bond with C. But C is not present every time the husband’s children spend time with him.
Orders for TC
The wife says that after TC’s birth until quite recently the husband barely acknowledged TC. This he vigorously denies and asserts that the wife prevents him having access to TC. The wife says she would not allow contact on conditions to which she would not agree. She says he is a clingy child and very dependent on her. He is susceptible to childhood illnesses – but so are most young children. He does not go to other people well but was gradually introduced to day care two days a week. At one stage the wife suggested that the husband have contact with TC at AJ’s soccer match where he could wheel him around in his pram.
The wife agreed that the three children preferred if possible to be together. They are very attached to each other. TC relies on his older siblings for comfort and support. She accepted that eventually TC should spend the same amount of time with the husband and the other two children. But at this stage she did not propose that he have the same school holiday time until he was five. She said that it was a big step for a little child who has never lived with his father and at the time of the first two days of the hearing had yet to have overnight visits. This was despite the wife sending him to day care for two days a week from quarter to nine to quarter to four when he was seven months old. This was phased in over three weeks.
The wife had asserted that the husband had never been interested in TC. She said under cross-examination that he now took an interest although she could not give a time when this started. She had not included any proposal for time with TC in the orders she initially sought. She denied she was against contact but said she just could not decide how much.
TC was enjoying the time he spends with the husband – “he seems to be getting a lot better.” His relationship with his father is steadily improving.
Communication difficulties
According to the husband the wife does not tell him of school happenings or absences from school. Early in the peace the wife suggested that communication be by way of SMS or e-mail and then only in relation to the children. But she did not reply to his e-mails.
Under cross-examination the husband agreed that for the equal time arrangements he originally sought to work there needed to be stable arrangements, lacking in conflict, movement from one household to the other without problems, consultation, communication and mutual respect. Currently these were not present but “not for the want of me trying”. He acknowledged that for whatever reason “there appears to be enormous difficulty between you and your ex-wife cooperating in relation to the children”.
The husband accepted on one recent occasion he sent a text message to the wife rather than speaking with her, even though he had been in close proximity to her moments previously. He also told his wife that they should use a communication book and he set the rules for it without consulting her. He did ask for feedback and suggestions. But the wife has not returned the book.
In response to questions I asked the husband gave evidence of the poor state of communications between the parties – they rarely speak by phone, occasionally send SMS messages, say no more than hello at changeover.
The wife states that she always advises the husband about the children’s health, their special activities and whether she is planning to take them out of town for overnight or longer periods. Despite her attempts the husband refuses to communicate or cooperate with her.
The husband had told her only to communicate by SMS or e-mail. The wife says she has sent a number of e-mails on various issues such as enrolling AC at primary school. The husband says he did not receive them.
Under cross-examination the wife agreed that although she was critical of the husband for not attending AJ’s presentation day she had not advised him of it. He should have read about it in the school newsletter.
The wife contends that the husband displays verbal aggression and is abusive towards her. Her brother gave evidence of two occasions when he had observed this behaviour. He has seen “some good things and … some things that concern” him about the husband’s behaviour as a father.
It is often the case for significant correspondence between solicitors to be annexed to the affidavits of parties. The volume and nature of that correspondence in this case bears testimony to the very great communication difficulties the parties are experiencing.
The family report
In the family report of 15 January 2007 the Clinical Psychologist Ms Sue Connor said:
·AJ thought the current arrangements “were not too good” and he would rather stay with his mother all the time
·he fought with C and wanted to see his dad not her
·he thought his dad’s new partner was “pretty good” although testing suggested he was having difficulty with this relationship
·he said his father did not get angry very often
·testing showed his strongest positive attachment was with his mother
·he scored in the normal range on measures of children’s anxiety
·AC said she would rather spend more time with her mother and liked visiting her father whom she might visit more when she was older
·AC got on well with her father’s partner and C.
Ms Connor’s assessment and recommendations are set out below:
7. Assessment
7.1 The circumstances of the A’s separation i.e. Mr A’s extramarital relationship during his wife’s last pregnancy perhaps inevitably resulted in distress and acrimony. As well as coming to terms with her husband’s behaviour and decision to leave their family, Ms A had to cope with the impact on two young children while managing a new baby by herself. She now also faces the prospect of moving from the marital home where she and the children appeared both comfortable and settled.
7.2 To Ms A’s credit, the three children seemed to be well adjusted and happy when I visited them at the marital home. She coped well with managing them and attending to them while I interviewed her during the early evening. All three children also appeared happy at their father’s. The parties handled a changeover in my presence in a pleasant, non-confrontational manner. Ms A commented that this was not typical however and that the children were distressed afterwards.
7.3 Ms A continues to manage her commitments around the children’s needs and activities. She was not in a new relationship. Mr A combines his work with his contact schedule and is in a new relationship. It was perhaps unwise of Mr A to involve Ms S so quickly in the children’s lives. AJ particularly appeared to be having problems with this and was especially hostile towards C, Ms S’s daughter. While to some extent AJ no doubt echoes his mother’s views, I think his hostility is genuine and would be best addressed by his father devoting more time to him and his siblings without Ms S and C being present.
7.4 A successful shared arrangement depends among other factors on parents’ ability to co-operate. The circumstances of the A’s separation coupled with the post-separation period have not been conducive to them establishing such an approach. The threat of Ms A and the children being further disrupted if they have to move out of the marital home is a further impediment.
7.5 Mr A was undoubtedly distressed by his separation from his children and keen to spend more time with them. His current arrangements whereby the children variously sleep at his place or at Ms S’s are not the most stable and hopefully will be addressed once the parties’ property is resolved. To his credit, Mr A was at pains to avoid any denigration of his ex-wife.
7.6 Both AJ and AC wanted the current arrangements whereby they spent most time with their mother to continue. Ms A was undoubtedly their primary attachment figure. TC has never resided with both of his parents. Ms A has been TC’s primary carer with Mr A having much more minimal involvement. I would anticipate that TC will gradually establish a meaningful relationship with his father if his parents avoid any conflict, allow him to see his father for short, frequent periods and if Ms A can genuinely promote his father to him. Mr A advised that he ahs been trying to visit TC at day care as much as possible.
7.6 The parties in this matter might best achieve a co-operative approach if Mr A contents himself with a lesser amount of time for some years, perhaps until all the children are at school. Mr A might well perceive this as unfair. In the longer term, however, a patient approach might result in Ms A feeling more amenable to agreeing to the children spending more time with their father and being able to genuinely facilitate this. A slower approach might assist in the children to adjust better to Ms S and C. While AJ inevitably would sense his mother’s feelings towards his father’s new relationship, his own hostility and resentment appeared genuine.
7.7 In conclusion, I would not recommend an equally shared arrangement for these children at the present time. Having said this, it would beneficial for the children to see their father more frequently than now and for him to have more day to day involvement in their schooling, for example. The addition of the Wednesday night in the other week would assist in this for the older children.
7.8 The current orders provide for a gradual regime of weekend day time contact for Mr A and TC increasing to overnight contact by mid February. Mr A has been visiting TC at day care a couple of times a week but was concerned that the centre might soon object to this. If this contact could be formalised through the centre it would be helpful or otherwise perhaps Mr A could take TC home. Ideally TC should see his father frequently. His adjustment to overnight visits cannot be assessed as yet.
8. Recommendations
8.1 I recommend that all three children spend the majority of time with their mother. AJ and AC should continue their current arrangements with the addition of the other Wednesday night. If practicable, TC should spend a couple of hours with his father on at least one day a week as well as having his sleepovers each fortnight.
Under cross-examination Ms Connor:
·acknowledged that the children should have increased time with their father
·this should include more day to day involvement in things such as schooling
·at some point it would be desirable for the three children to spend the same amount of time with their father
·she did not have any concerns about the children with their father
·AJ was not saying he did not want to see his dad but rather expressing a preference for living with his mum
·AJ’s reluctance for increased time with his father centred on C and leaving his mother
·AJ’s testing suggested a close relationship with both parents
·Ms Connor was of the view that the wife was still bitter about the marriage breakdown but could separate that from issues about the best interests of the children – the wife said she was happier now
·if children live with a parent who is unable to contain their bitterness the children often align with that parent
·they can potentially become alienated from the other parent
·this is one reason for recommending more time with their father
·Ms Connor’s impression was that the parents did not communicate well although the changeover in front of her went quite well
·she expected communication to pick up once the property dispute was settled
·while the children are relatively young they are probably better off seeing their father for less time more often
·longer blocks could be considered once they were all at school
·Ms Connor’s proposal for the two older children is a split of 4/10 each fortnight – Friday to Sunday in alternate weeks plus each Wednesday
·for a longer block would require more cooperation between the households
·TC could now have an additional night a fortnight if he is coping
·she would prefer that a child of TC’s age “go in a night at a time but more frequently” – say each Wednesday with the other children plus a weekend night after another six months
·when TC is three he could go to a block of two nights plus two individual nights a fortnight – this would align him with Ms Connor’s recommendation for the elder two children
·this would all be dependent on TC coping
·Ms Connor agreed that the wife is very protective of the children with some problems in letting go of them
·it would be fair to describe the wife’s approach as “controlling” and over prescriptive.
The children’s best interests – section 60CC factors
Section 60CA of the Family Law Act 1975 makes clear that in deciding whether to make a particular parenting order the Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets a range of matters which the Court is bound to consider in determining what is in a child’s best interests. Section 60CC(2) contains two primary considerations and s.60CC(3) a series of additional considerations. As is often the case some of these matters are not relevant and I will not say anything more on them. Others on which there is no dispute will be briefly discussed.
From the evidence AJ and AC presently benefit from a meaningful relationship with each parent (s.60CC(2)(a)). This will continue if the Court accepts the proposals of either of the parents. TC is only developing his relationship with his father. Despite some concerns I hold for some aspects of the proposals of the wife for his time with the husband, I do not think that this will prevent them having a meaningful relationship.
The wife has made allegations about one or two instances of violence by the husband and about verbal aggression by him. The husband has made one allegation against the wife. There is nothing of substance in the evidence which suggests that the children are at risk of physical or psychological harm from either parent (s.60CC(2)(b)).
Both AJ and AC have expressed views to Ms Connor (s.60CC(3)(a)). AJ was six and a half and AC was five at the time. The husband says AJ’s wishes were coached by his mother. I think it likely that there was some influence but as Ms Connor says he was genuine in his views. In light of their tender ages however I do not intend to place much weight on their views.
There is no doubt that the three have a deep and loving relationship with the wife (s.60CC(3)(b)). She has been their primary source of attachment.
The wife raised questions about the children’s relationship with the husband, particularly that of AJ. There is nothing out of the ordinary in the evidence which would concern me in this relationship. Clearly the husband loves and cares for the children. He is still developing his ties with TC. The wife accepts that this is going well.
There was some initial hostility between AJ and C but that seems to have settled down. In any event the evidence appears to be that C was not at the husband’s all that often when the children visited. In my view there is nothing remarkable about this relationship. The husband’s partner appears to have fostered a warm and comfortable relationship with the children.
I have some concerns about the wife’s approach to encouraging and facilitating a close and continuing relationship between the children and their father (s.60CC(3)(c) and (4)). The husband says that he has been thwarted in his attempts to spend more time with the children by the wife. In my view there is a fair measure of truth in this.
The wife has allowed her bitterness at the breakdown of the marriage to cloud her decisions on contact between the children and the husband. This is reflected in her initial opposition to significant time for the husband with TC while at the same time putting him in day care for two days a week. Unfortunately that bitterness was still evident at the hearing.
Not unnaturally the wife is protective of the interests of the children. But I am satisfied that she has adopted an over protective, indeed controlling approach, to the parenting arrangements. I instance her attitude to the husband taking the two elder children to Canberra during the time they spent with him. I accept the husband’s evidence of her placing conditions on contact. He has been loathe to criticise the wife except in relation to contact matters.
I am encouraged by Ms Connor’s view that the wife can separate her bitterness from consideration of the children’s best interests. Hopefully also cooperation and communication will improve with the resolution of these proceedings. But the wife will need to show more flexibility and put the past behind her.
The principal change in the children’s circumstances if I give effect to the proposals of both parties is that the new arrangements will involve increased time for all the children with their father (s.60CC(3)(d)).
I do not agree with the wife that this is likely to cause any distress for AJ. The only evidence of such distress came from the wife and was not supported by the testing undertaken by Ms Connor. This scored him in the normal range on measures of children’s anxiety. The husband and his partner say that the children show no signs of separation anxiety from their mother.
The wife says TC is still a clingy infant with special needs. Nevertheless in oral evidence she said that TC was enjoying the time he spends with the husband – “he seems to be getting a lot better.” According to the wife TC’s relationship with his father is steadily improving.
The orders which I propose will take into account the need for children of these ages not to be separated from either parent for extended periods.
I do not accept the wife’s submission that the husband is lacking insight into the children’s needs. Apart from one instance of insensitivity which I mentioned earlier, I am satisfied that he like the wife has the capacity to provide for the emotional, intellectual and other needs of the children (s.60CC(3)(f)). Ms Connor does not suggest otherwise.
Apart from the very real concerns mentioned above under s.60CC(3)(c) about the wife’s attitude to encouraging and facilitating a close and continuing relationship between the children and their father, I am satisfied that both parents have shown an appropriate attitude to the responsibilities of parenthood (s.60CC(3)(i) and (4)).
I have already indicated that despite some allegations there is nothing of substance or concern in relation to violence (s.60CC(3)(j)). An apprehended violence order was obtained by the wife against the husband when he consented without admissions (s.60CC(3)(k)).
I am enjoined to make orders which are least likely to lead to the institution of further proceedings (s.60CC(3)(l)). The husband seeks more time with the children. Ms Connor agrees and this should be increased over time. I propose to make orders to give effect to this. With commonsense and goodwill further proceedings should be able to be avoided. Given their common commitment to the children I would expect that the two parents would look to the future once these proceedings are concluded.
Equal shared parental responsibility
This is a case where there is absolutely no reason why the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility should not apply (s.61DA). Both parents accept this.
Parenting orders – conclusions
As I propose to make an order for equal shared parental responsibility I must consider whether the children should spend equal time with each of the parents or substantial and significant time (ss.65DAA(1) and (2)).
At the commencement of the hearing the husband’s application was for three children to spend their time equally with each parent. During the hearing he changed this to:
·AJ and AC spending time with him from Thursday to Monday in the first week and Thursday nights in the alternate week plus half school holidays
·TC to spend time with him from Friday to Sunday in alternate weeks until August 2007 and then at the same times as for the older children during school terms
·TC to spend time with him for three nights in the first school holidays and the first and third weeks of the 2007 Christmas holidays.
At the commencement of the hearing the wife sought for AJ and AC to be with the husband from Friday to Sunday in the first week and each alternate Wednesday night, with half school term holidays and two blocks of ten days at Christmas. She suggested a staged arrangement for TC. During the hearing she agreed to AJ and AC having each Wednesday night immediately and a staged arrangement for TC which progressed more quickly. In six months for example she proposes that he would have the same weekend time as AJ and AC.
Having regard to the evidence before me and the s.60CC factors, I am more than satisfied that an immediate increase in time with the husband is in the children’s best interests. I do not consider that it is in their best interests however to spend equal time with both parents at this stage. This is principally because of the ongoing communication and cooperation problems between the parents, the age of TC and the very little time he has spent with the husband, and the ages and attachments of AJ and AC. I do not intend to repeat here what I have said about these matters above. I agree with Ms Connor that more frequent, short periods are appropriate for TC at this stage. In addition neither parent currently seeks equal time. It is neither reasonably practicable (s.65DAA(5)) nor in the children’s best interests (s.65DAA(1)).
It is however in the best interests of the children to spend substantial and significant time with each parent (s.65DAA(2)). Although for the reasons given by Ms Connor TC’s regime should be different from that for AJ and AC, it should eventually be the same. There should not be long gaps between visits, the number of changeovers should be kept to a minimum and the arrangements should be such that the husband’s participation in every day aspects of the children’s lives should be increased and enhanced. I am also of the view that on the evidence that the children are ready for more time than Ms Connor suggests.
I propose that AJ and AC spend time with the husband:
·from after school on Thursday to before school on Monday in the first week
·from after school Thursday to before school Friday every alternate week
·for half of all school holidays.
These are the orders sought by the husband and provide one more night a fortnight than that which Ms Connor suggests and which the wife wants.
Since early this year TC has been spending from 8:30am Saturday to 4:00pm Sunday on alternate weekends with the husband. I propose times with the husband as follows:
·from 8:30am Saturday to 6:00pm Sunday each alternate weekend being the same weekend when the older children are with the husband
·from 3:30pm Thursday to 9:30am Friday every week
·the alternate weekend period to be increased to include Sunday nights from 1 April 2008 and Friday from 1 October 2008 – that is TC will have the same school term time from 1 October 2008
·for a block of three nights during term holidays and three five night blocks during the 2007 Christmas holidays to coincide with the elder children
·the same school holidays as AJ and AC from 1 October 2008
The evidence is that TC has coped with the move to overnight time with the husband. The wife says that the phasing in with TC has been quite good. What I propose for him is consistent with Ms Connor’s views although the progression to the same time as AJ and AC from 1 October 2008 is faster than she would suggest.
The wife stated that the older children adapted satisfactorily to the new term arrangements when the interim orders were imposed. They experienced more difficulty with longer school holidays.
I have taken into account the differing needs of the three children, particularly TC as opposed to the two older children, and all the evidence including that of Ms Connor. I am satisfied that the arrangements that I propose are the most practicable and appropriate in the circumstances for enhancing the best interests of AJ, AC and TC. The number of changeovers, although more than desirable because of the separate arrangements for TC, are not impracticable. They will reduce as TC moves towards the same regime as AJ and AC. The arrangements will allow both parents to participate in all aspects of the children’s lives and the development of full and meaningful relationships with them. They will reduce the risk of alienation from either of them.
I will not make the order requested by the wife requiring each party to notify the other whenever they intend to take the children out of Wagga overnight. This is an illustration of what I have described as an undesirable controlling or over prescriptive bent in the wife’s approach to the husband. What parents do with the children while they are with them provided their welfare is not at risk is for the parents (VR v RR (2002) 29 Fam LR 39).
There are a number of orders to which both parents have agreed which I will make:
·telephone contact four nights a week
·a communications book
·communications counselling for the parents
I am satisfied that the parenting orders set out at the commencement of these reasons are in the best interest of AJ, AC and TC.
Property distribution
Relevant law
The approach to the determination of an application under section 79 of the Act is well established by authority, requiring a four-stage process.
The first stage involves making a finding as to the parties' assets and liabilities – the asset pool. The second stage requires consideration of the contributions of various types made by the parties, and, if appropriate, an alteration of the property interests. The third stage involves consideration of such of the matters set out in section 75(2) of the Act as are applicable and again, if appropriate, altering the interests of the parties in the property. The final stage requires an overview of the result derived from the second and third stages to determine if overall that result is just and equitable.
The asset pool
The size of the pool of property and superannuation is largely agreed by both parties. There are however two areas of contention:
·whether there should be an add back of $27,595 for funds used by the husband from the sale of shares in September 2005
·whether a liability of $6,300 for unpaid Capital Gains Tax by the husband should be included.
Sale of shares – add back
At the end of September 2005 shortly after separation the husband sold a package of CSL shares for approximately $51,600. From this he used $20,000 for a deposit on his unit and $4,000 towards the mortgage on his unit. The wife says the balance of $27,595 should be added back into the pool following the principles laid down in Townsend and Townsend (1995) FLC 92-569, and more recently Chorn and Hopkins (2004) FLC 93-204.
In Omacini and Omacini (2005) FLC 93-218 the Full Court of the Family Court said at [30]:
To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-816 the Full Court said at 85,262:
“11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.”
In Chorn and Hopkins another Full Court stated at [24]:
We will refer again later in these reasons to the decision in Townsend, but we would in the present context draw attention to the following observations by later Full Courts:
2.11 There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. (Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ.)
...
46. Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. (Cerini [1998] FamCA 143, 8 October 1998, per Nicholson CJ, Ellis, Kay JJ.)
In the current case the evidence on how the husband spent the $51,600 is not very precise or illuminating. He had three attempts at explanation, not all consistent. It is clear that over $28,000 went into the purchase and associated expenses for his home unit and $4,000 was used to reduce the mortgage.
I note also that the husband says he spent about $3,200 on furniture for his unit which he has not included in his list of assets, unlike the household contents of the wife that have been disclosed. The husband was also unable to substantiate some of the other expenditure from the proceeds of the share sale.
Undertaking this type of accounting exercise can never be an exact science. Nevertheless having regard to the principles on add backs enunciated in the authorities above I am satisfied that I should add back about $8,000 of the $51,600 as not appropriately accounted for.
Capital Gains Tax
The husband seeks inclusion of his liability for Capital Gains Tax. Both parties accept that the liability is $6,300.
The sale of the CSL shares produced this liability. It had not been paid at the date of the hearing. The shares represented matrimonial property. I have considered the use of the proceeds from their sale above. In these circumstances the Capital Gains Tax liability should be included. In reaching my conclusions about add backs and Capital Gains Tax liability I have been conscious of the need to avoid double counting.
Net pool of property and superannuation
Both parties have included their superannuation entitlements in the asset pool and want them treated with the remaining assets. I propose to do so.
Noting the findings above as well as the items agreed by the parties at the hearing, I find that the parties’ assets and liabilities including superannuation at the date of the hearing are as set out in the table below:
| Assets | $ |
| 12 W Place, W Property (joint) | 425,000 |
| Toyota Prado (joint) | 30,000 |
| Telstra shares (joint) | 1,464 |
| Total joint assets | 456,464 |
| 25/160 F Street W (husband) | 189,500 |
| Bank Accounts (ANZ) (husband) | 1,007 |
| NAB Joint Account (50%) (husband) | 2,038 |
| Qantas shares (husband) | 16,436 |
| Fairfax shares (husband) | 10,020 |
| IAG shares (husband) | 3,267 |
| Woolworths shares (husband) | 22,320 |
| Pacific Brands shares (husband) | 3,100 |
| Toyota Echo (husband) | 12,000 |
| First State Super @ 15.11.2006 (husband) | 64,904 |
| SP Ausnet (husband) | 2,820 |
| AMP Super @ 14.11.2006 (husband) | 7,947 |
| Add back from sale of shares (husband) | 8,000 |
| Total assets husband | 343,359 |
| IAG shares (wife) | 4,205 |
| Household contents (wife) | 7,125 |
| MLC Super (wife) | 5,439 |
| Total assets wife | 16,769 |
| Total assets | 816,592 |
| Liabilities | $ |
| Mortgage (F Street) (husband) | 160,000 |
| Mortgage (W Place) (joint) | 160,000 |
| CGT on sale of shares (husband) | 6,300 |
| Total Liabilities | 326,300 |
| Net asset pool | 490,292 |
I therefore find that the net asset pool including superannuation is $490,292.
Contributions
The parties married in January 1998 and separated in June 2005. Their marriage was thus for almost seven and a half years.
At the commencement of the marriage the husband says in his first affidavit that he brought with him:
·shares valued at $12,260
·term deposits and cash of about $80,000
·superannuation of about $5,400.
Just prior to the marriage he bought a half share from the wife’s brother in 44 M Street, W he says using $64,000 cash from his accumulated savings.
Under cross-examination however the husband agreed that his half share in the property was not purchased from his savings but rather totally through a joint bank loan of $108,000. He thus brought no equity into this venture.
The wife brought equity in the M Street property of about $35,000, a motor vehicle the husband says was worth $4,000 and furniture and chattels. She possibly had some superannuation.
Thus at the commencement of the marriage the relative financial contributions were about 70/30 in favour of the husband.
The wife asserts that her contribution of the M Street property had a springboard effect. This can be given some weight as the husband had no initial equity in the property, having borrowed from the bank to purchase his share.
During the marriage the parties purchased and sold a number of properties at Glenwood, Cowra and a couple of locations in Wagga. The last purchase in Wagga involved a land and house construction package and is the property where the wife presently resides. After separation the husband bought a two bedroom unit in which he now lives. The parties also traded shares in public companies from time to time.
Both parties were employed during the marriage. The wife initially had two jobs. She worked full time and on weekends until the birth of the first child AJ in May 2000. Thereafter she has worked part time. She is now a kitchen designer working part time. The husband worked in both newspaper and health industries. He also studied and held part time jobs while studying full time. He is now employed as a registered nurse and radiographer.
In 2001 the parties established a home based business for selling and installing kitchens. They were both involved in the business which ceased in 2006. Both made non financial contributions to improvement of their properties. The wife’s father also helped install kitchens, wardrobes and other fixtures in their homes.
The parties shared parenting and domestic duties during the marriage. But it is obvious that these burdens fell more heavily on the wife as the husband was studying and away from home for significant periods. He was working part time while studying full time for example from 2002 to 2005. The wife acknowledges that the husband gaining his professional qualifications was a goal for them both not just of him. She also agreed that he made the more significant financial contribution at this time.
Since separation the husband has paid child support of about $1,430 a month for the children. The wife has had care of the children apart from those times when the two elder ones in particular have had time with the husband. The wife has paid the outgoings on the matrimonial home where she continued to reside after separation.
The wife seeks an equal entitlement based on contribution, the husband a 55/45 split in his favour.
I do not believe that the relative contributions during the marriage can be realistically assessed as other than equal. Since separation the wife’s contribution may have been marginally greater. The husband brought to the marriage significantly more financial assets and the wife provided a fairly low equity in a house which may be said to have provided some springboard. The marriage was for almost seven and a half years.
Accordingly I assess the contributions as being 52.5 per cent by the husband and 47.5 per cent by the wife. The pool is in the order of $490,000. This then is equivalent to about $24,500 between the parties’ entitlements on a contribution based division.
Section 75(2) factors
Relevant considerations include:
·the parties were married for almost seven and a half years
·the wife is 35 and the husband almost 36
·there is no evidence that either suffer health problems
·the husband is in full time employment as a registered nurse and radiographer
·the wife works part time as a kitchen designer
·the husband earns significantly more than the wife and has a higher income earning capacity
·the husband meets his child support commitments for the children
·the parenting orders I am making will increase the time the three children spend with the husband and reduce the time they are with the wife
·nevertheless the wife will still be faced with much more significant time commitments for the children than the husband
·as the youngest of the children is just two years old this commitment is for many years
·the husband has repartnered but is not sharing households with his new partner –it seems however that there is an intention to cohabit in the future
·the wife has not formed a new partnership.
I note here that I am not confident that either party made a full and frank disclosure of their financial circumstances. For example the husband had to concede under cross-examination that some of the material in his affidavits was not accurate. I am not satisfied that the wife was completely forthcoming about her employment relationship and income from UK. I am thus only able to make general findings on some of these matters.
The husband submits that on the evidence an adjustment in favour of the wife for section 75(2) factors of 5-10 per cent is appropriate. The wife wants an adjustment of 15-20 per cent.
I have had regard to the relevant matters set out in section 75(2) including the income, property and financial resources of both parties.
In the circumstances outlined above an adjustment under section 75(2) of 10 per cent in favour of the wife is warranted.
Property distribution – conclusions
For this exercise I am not concerned with precise figures. The end result of examination of the contributions and section 75(2) factors is that an adjustment should be made in favour of the wife whereby she receives 57.5 per cent of the net pool of property and superannuation and the husband 42.5 per cent. In money terms, this results in the wife receiving in the order of $282,000 and the husband $208,000, a difference of $74,000.
I propose that this distribution be effected by:
·the wife becoming the sole owner of the W Place property and being solely responsible for its mortgage
·the wife becoming the sole owner of the Toyota Prado
·the husband becoming the sole owner of the Telstra shares
·all other assets and liabilities held by one or other of the parties becoming the property or liability of that party.
The effect of the arrangement set out at [105] is that the wife will receive $312,000 and the husband $178,000 from the net assets and superannuation. The wife will therefore have to pay the husband $30,000.
Taking all matters into account, and in particular the contributions of the parties, the fact that the wife will have greater responsibilities for care of the children for many years, and the requirement for the wife to refinance her home and pay a cash sum to the husband, I am satisfied that this result is just and equitable within the meaning of s.79(2).
Conclusions
This matter has concerned both parenting orders for the children and the distribution of property. I have decided:
·AJ and AC should have significant increased time with the husband
·TC’s time with the husband should be increased progressively so that from 1 October 2008 he will have the same school term time and holiday time as AJ and AC
·the net pool of property and superannuation should be distributed so that the wife receives 57.5 per cent and the husband 42.5 per cent
·in money terms this results in the wife receiving in the order of $282,000 and the husband $208,000, a difference of $74,000
·with the distribution of the joint assets and liabilities I propose the wife will receive $312,000 and the husband $178,000
·the wife will therefore have to pay the husband $30,000.
The orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and nine paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Angela Kelly
Date: 29 August 2007
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