Austin & Schaw
[2008] FMCAfam 495
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTIN & SCHAW | [2008] FMCAfam 495 |
| FAMILY LAW – Parenting – equal time or substantial and significant time – parental conflict – young child. PROPERTY – Contribution – s.75(2) factors – just and equitable. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Goode v Goode (2006) FamCA 1346 Lee Steere & Lee Steere (1998) FLC 91-625 D & D (2003) FamCA 473 M& M(1998) FamCA 42 |
| Applicant: | MS AUSTIN |
| Respondent: | MR SCHAW |
| File Number: | ADC 3064 of 2007 |
| Judgment of: | Kelly FM |
| Hearing dates: | 17, 18 January & 12 March 2008 |
| Date of Last Submission: | 10 April 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 16 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr McQuade |
| Solicitors for the Applicant: | Adey Lawyers |
| Counsel for the Respondent: | Mr Whittle |
| Solicitors for the Respondent: | Monteleone Rai Lawyers |
ORDERS
Parenting
That the parties share equally in parental responsibility for their daughter K born in 2005.
K live with the mother save as otherwise provided in these orders.
K live with the father as follows:
(a)for a period of three calendar months:
(i)each Sunday from 10.00am until 5.00pm;
(ii)each alternate Friday from 10.00am until 5.00pm;
(b)commencing August 2008:
(i)each alternate weekend from 10.00am Saturday until 10.00am Sunday;
(ii)each intervening Friday from 10.00am until 5.00pm;
(c)commencing January 2009:
(i)each alternate weekend from 10.00 Saturday until 5.00pm Sunday;
(ii)each intervening Friday from 9.00am until 5.00pm;
(d)commencing June 2009:
(i)each alternate weekend from 10.00am Saturday until 5.00pm Sunday;
(ii)each intervening week from 5.00pm Thursday until 5.00pm Friday;
(e)commencing January 2010:
(i)each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(ii)each intervening week from 5.00pm Thursday until 5.00pm Friday;
(f)upon K commencing school in 2011:
(i)on alternate weekends from the conclusion of school Friday until the commencement of school Monday (or Tuesday in the event of a public holiday);
(ii)each intervening week from the conclusion of school Thursday until the commencement of school Friday;
(iii)for one half of each short school holiday period;
(iv)for one half of the Christmas school holiday period at times to be agreed between the parties or in default of agreement on alternate weeks with handover at 5.00pm on Friday.
K spend time with each parent on special occasions as follows:
(a)with the mother:
(i)from 2.30pm Christmas Eve until 2.30pm Christmas Day 2008 and each alternate year thereafter;
(ii)from 2.30pm Christmas Day until 4.00pm Boxing Day 2009 and each alternate year thereafter;
(iii)from 10.00am until 5.00pm on Mother’s Day each year;
(iv)for a period of at least three (3) hours on K’s birthday and the mother’s birthday each year at times to be agreed between the parties;
(v)on other special occasions as may be agreed between the parties.
(b)with the father:
(i)from 2.30pm Christmas Day until 4.00pm Boxing Day 2008 and each alternate year thereafter;
(ii)from 2.30pm Christmas Eve until 2.30pm Christmas Day 2009 and each alternate year thereafter;
(iii)from 10.00am until 5.00pm on Father’s Day each year;
(iv)for a period of at least three (3) hours on K’s birthday and the father’s birthday each year at times to be agreed between the parties;
(v)on other special occasions as may be agreed between the parties.
Handovers take place at the [X] playground [A] and in the event of inclement weather at the Hungry Jacks Restaurant, [Y] upon notice by either party to the other by SMS message.
The parties use a Communication Book to exchange information regarding K’s care and welfare.
The parties consult and endeavour to reach agreement about K’s long term care, welfare and development, including her education.
The parties enrol K at a school to be agreed between them.
The parties participate in family dispute resolution appointments in the event they are unable to reach agreement about issues relating to K’s long term care, welfare and development.
Property settlement
Within 28 days the husband pay to the wife the sum of ONE HUNDRED AND TWENTY FIVE THOUSAND DOLLARS ($125,000.00).
Contemporaneously with the payment, the wife do transfer all her estate and interest in the whole of the land comprised and described in Certificate of Title Register Book Volume [X] situate at Property L, [I].
The wife transfer to the husband her interest in all shareholdings held in the parties’ joint E-trade account portfolio number [1].
The husband retain the following property free from any claim by the wife:
(a)all motor vehicles in his possession;
(b)any moneys standing to his credit in any bank or financial institution;
(c)all furnishings and household effects;
(d)all his estate and interest in any Superannuation Scheme, Retirement Benefit, Early Retirement, Redundancy Benefit or Rollover Fund SAVE AND EXCEPT as provided for in paragraph 18 herein.
The wife retain the following property free from any claim by the husband:
(a)any motor vehicle presently in her possession;
(b)all moneys standing to her credit in any bank or financial institution;
(c)all furnishings and household possessions;
(d)all her estate and interest in any Superannuation Scheme, Retirement Benefit, Early Retirement, Redundancy Benefit or Rollover Fund;
(e)all shareholdings in her E-trade account portfolio no [2].
The husband indemnify the wife with respect to:
(a)all rates, taxes, levies and other outgoings with respect to the house property situate at Property L, [I];
(b)all other debts and liabilities in the husband’s sole name including, but not limited to ,any personal loans, credit card and store accounts in his name.
The wife indemnify the husband with respect to all debts and liabilities in the wife’s sole name including, but not limited to, any personal loans, credit card and store accounts in her name.
In default of payment by the husband in whole or in part as provided for in paragraph (1) herein, the former matrimonial home situate at Property L, [I] shall be forthwith placed on the market for sale by private treaty or by public auction on such terms and conditions as may be agreed between the parties or in default of agreement as may be ordered by this Honourable Court.
From the net proceeds of sale of the former matrimonial home the following payments shall be made:
(a)to the wife the sum of ONE HUNDRED AND TWENTY FIVE THOUSAND DOLLARS ($125,000.00) or such portion as remains outstanding, together with default interest at the rate of 10% per annum;
(b)to the husband the balance remaining.
In accordance with s.90MT(1)(a) of the Family Law Act 1975 whenever the Trustee of the [S] Scheme makes a splittable payment out of the husband’s interest in the [S] Scheme, the Trustee shall:
(a)pay to Ms Austin or to her administrators, executors, beneficiaries, heirs or assigns the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount in the sum of THIRTY THOUSAND DOLLARS ($30,000.00);
(b)make a corresponding reduction in the entitlement that Mr Schaw would have had in the [S] Scheme but for this order.
Paragraph (18) hereof has effect from the operative time, being the fourth business day after the service of these orders upon the Trustee.
If either party fails to take a necessary step in accordance with these orders a Registrar of the Federal Magistrates Court at Adelaide is appointed and empowered, pursuant to s.106A of the Family Law Act 1975 to execute all documents and perform all acts necessary to implement the terms of these orders.
Liberty to apply with respect to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Austin & Schaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3064 of 2007
| MS AUSTIN |
Applicant
And
| MR SCHAW |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Austin and Mr Schaw married in August 2000. They separated on 7 September 2006. There is one child of their marriage, K, born in 2005. K is now two years old.
The parties have been unable to reach agreement regarding parenting issues for K. They are also in dispute regarding their property settlement. It now falls to the court to determine these issues.
The wife was born in 1967 and is 40 years old. The husband was born in 1969 and is 38 years old. Prior to the marriage, the husband purchased a property at Property M, [I]. He has a son from a previous relationship, D, who is now 14 years old.
The parties lived together prior to their marriage, but disagree about the date they commenced cohabitation. The husband acknowledges that the wife moved in to live with him sometime in mid 1998, but says they did not start living together “as a couple” until December 1999. Prior to that date he says the wife was a tenant, paying rent.
Having heard the evidence from each party, I prefer the wife's evidence on this topic. The husband conceded that he and the wife were sharing a bedroom. She was contributing to household expenses. I am satisfied that the parties had commenced an intimate relationship prior to the wife moving into the Property M property, and that they commenced living together as a couple when she moved into that home. I am satisfied that cohabitation commenced in mid‑1998.
There was a small mortgage outstanding on the property at this time. The wife concedes that the husband made a greater initial financial contribution by virtue of the assets owned by him at the time of cohabitation, including his equity in the Property M property, his shareholdings, savings and superannuation.
The parties purchased a further property at Property L, [I] in January 2000, which they rented out. In November 2003 the parties sold Property M and commenced living at Property L. The parties invested most of the sale proceeds from Property M in share trading. Both parties worked during the marriage, but the wife ceased employment at the time of K’s birth.
Their daughter K was born in 2005 after a lengthy period on the IVF program. It is clear that K is a much loved and treasured child and that her parents are devoted to her welfare.
The parties separated in September 2006, when K was just nine months old. The wife and K left the former family home and moved into rental accommodation. Since that time, K has been in the primary care of the wife. The parties endeavoured to negotiate K's care arrangements informally but were unable to reach agreement.
History of Court Proceedings
The wife commenced proceedings on 13 November 2006 in the Family Court of Australia, seeking orders with respect to parenting arrangements and property settlement. The husband filed his answering documents on 13 November 2006, and his interim application was listed for a case assessment conference on 23 January 2007. The conference was unsuccessful and the matter was listed for urgent argument on 31 January 2007.
Following argument, orders were made for K to live with the mother until further order and to spend time with the father from 5.00pm until 6.00pm each Monday and Thursday and each Sunday from 12.00noon until 2.00pm. The mid week visits increased to two hours in mid February 2007. All visits were ordered to take place in the presence of the mother's parents until 18 February 2007, and the parties were directed to register at the Children's Contact Service for a regime of supervised visits to take place, with a report to be provided by the Children's Contact Service.
The orders were continued with minor variations on 30 April 2007, and it was noted the parties were to commence confidential co‑parent counselling/mediation with Ms T. The report from the Children's Contact Service was not yet available, and the proceedings were adjourned to 18 June 2007. Prior to this date the proceedings were transferred to the Federal Magistrates Court.
The report from the Children’s Contact Service was completed in June 2008. On 18 July 2007, this Court made directions to prepare the matter for trial and trial dates were allocated on 3 and 4 December 2007. A family assessment was ordered.
The parties achieved some progress through their sessions with Ms T and in July 2007 they informally varied K’s care arrangements. She commenced spending time with her father each Sunday and each alternate Friday from 9.00am until 3.00pm. The alternate Friday arrangement coincided with the father’s rostered day off.
The parties were unable to agree about who should prepare the family assessment report and a further interim application was filed. On 15 October 2007, various directions were made for the preparation of the family assessment by Mr Laurence Field and for property valuations to be prepared.
The parties also varied the orders to reflect K spending time with her father from 10.00AM until 4.00pm each Sunday and alternate Fridays. Handovers were to take place at the Children's Contact Service at [X] where possible, and otherwise to take place at the [Y] carpark on those days when the Children's Contact Service was not available.
Appointments for the family assessment took place in early November 2007. Mr Field completed his report on 2 November 2007.
The trial was not reached on 3 December 2007 and was listed instead on 17 and 18 January 2008. The evidence concluded on 12 March 2008 and counsel then presented written submissions.
At the conclusion of the hearing on 18 January 2008 the parties agreed to move the location of handovers to a playground at [A]. They also agreed to participate in further parenting mediation/counselling with Ms T.
The wife relied upon the following documents:
a)Her amended application filed 19 February 2007.
b)Her trial affidavit filed 9 November 2007.
c)Her Form 13 Statement of Finances filed 13 November 2006.
d)Affidavit of T.A. filed 5 November 2007 (annexing report of Laurence Field, psychologist, dated 1/11/2007).
e)Affidavit of T.A. filed 12 November 2007 (annexing documents regarding value of Property M property as at date of cohabitation and date of sale).
f)Affidavit of T.A. filed 5 December 2007 (annexing statements regarding wife's superannuation interests with [T] Super).
g)Affidavit of T.A. filed 18 June 2007 (annexing Children's Contact Service report dated 6 June 2007).
h)Affidavit of T.A. filed 1 February 2007 (annexing wife's superannuation particulars as at July 2006 and October 2006).
i)Affidavit of T.A. filed 6 February 2007 (annexing valuation of [X] Auctions dated 6 February 2007).
j)Affidavit of wife's sister, Ms A, filed 15 October 2007.
k)Affidavit of T.A. filed 31 October 2007 (annexing valuation by [X] regarding property at Property L, [I]).
The husband relied on the following documents:
a)Response filed 29 November 2006.
b)Financial statement filed 29 November 2006.
c)Affidavit filed 5 April 2007.
d)Husband's trial affidavit filed 16 November 2007.
Both parties gave evidence and were cross‑examined. The wife's sister was not required for cross‑examination. Mr Field attended as the court's expert and was cross‑examined by both parties.
The Court ruled against receiving any report from Ms T, other than a report indicating any agreed outcome negotiated by the parties. That matter was argued again on 12 March, and I again declined to receive a report from Ms T. It is clear that her involvement with the parties has been by way of family counselling and mediation. I consider that such processes should remain confidential. It is inappropriate to conflate Ms T’s role as counsellor with a family assessment role. That task has been undertaken very comprehensively by Mr Field.
It is necessary to determine the parenting issues before proceeding to consider the parties' applications for property settlement. Obviously each party’s parenting responsibilities are a relevant factor in deciding the financial issues.
Parenting Issues
The Wife's Position
The orders sought by the wife are set out in her amended Outline of Case. In summary, she seeks orders that K live with her and spend time with the father as follows:
a)each Sunday and alternate Friday from 10.00am until 4.00pm until K turns three in December 2008.
b)thereafter, each alternate weekend from 10.00am Saturday until 10.00am Sunday, and each alternate Friday from 10.00am until 4.00pm.
c)commencing June 2009, on each alternate weekend from 10.00am on the Saturday until 5.00 pm on Sunday;
d)commencing September 2009, from 11.30am until 5.00pm on alternate Fridays, as K will be attending kindergarten until 11.15am.
e)upon K commencing school in 2011, on alternate weekends from 9.00am Saturday until 5.00pm on Sunday and for three hours after school each Wednesday, to commence at 5.00pm on Friday in March 2011;
f)for one week during each school holiday period.
The wife proposes K spend time with the father on special occasions such as Father's Day and Christmas Day. She also seeks leave to change K's surname from "Schaw" to "Schaw‑Austin".
The wife is silent on the issue of parental responsibility both in her Outline of Case and in closing submissions.
The parties are generally in agreement regarding handover arrangements, but disagree about where handovers should move to in the event of inclement weather in the winter months. In this regard the wife proposes that handovers either take place inside the foyer of the [A] Hospital or at the play area at Myer in the [M] shopping centre.
The Husband's Position
The husband seeks an order for equal shared parental responsibility. He acknowledges that K is not yet old enough to manage living with each parent on an equal time basis but proposes a progressive parenting regime leading towards week about shared care.
The father proposes that day visits continue for a period of four weeks before progressing to overnight visits as follows:
a)each alternate weekend from 9.00am Saturday until 9.00am Sunday, with day visits continuing on alternate Fridays and intervening Sundays from 9.00am until 5.00pm for a period of four weeks;
b)from 9.00am Saturday until 5.00pm Sunday on alternate weekends and from 9.00am until 5.00pm on the Friday of each intervening week, to continue for a further four months;
c)thereafter from 5.00pm Friday until 5.00pm Sunday on alternate weekends, and from 5.00pm Wednesday until 5.00pm Friday on each intervening week;
d)commencing December 2008, from 5.00 pm Thursday until 5.00pm Sunday on intervening weeks and 5.00pm Tuesday to 5.00pm Friday on the alternate weeks.
e)Upon K commencing school in 2011 for four nights each alternate week, from the conclusion of school Thursday until the commencement of school on Monday and from the conclusion of school on Wednesday until the commencement of school Thursday in the intervening week;
f)commencing first term 2013, K live with each parent on a week‑about basis from the conclusion of school or 3.30pm on Friday;
g)for one half of all school holiday periods.
The husband proposes arrangements for special occasions such as Christmas Day, Father's Day and K's birthday. Both parties agree that K should celebrate Christmas in each parent’s care, but disagree about Christmas Eve/Christmas morning. The parties' proposals regarding Mother's Day, Father's Day and K's birthday are similar.
Legal Principles
When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining what outcome will be in a child’s best interests. In the case of Goode & Goode[1], the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.
[1] (2006) FamCA 1346, para.10
Section 60CC is divided into primary considerations and additional considerations. The primary considerations again focus on children having a meaningful relationship with both of their parents and the need to protect children from the physical or psychological harm that can follow from being subjected to, or exposed to, abuse, neglect or family violence. At times these considerations are in direct conflict.
There are thirteen additional considerations in s.60CC(3) which must be taken into account and I will address those further in these reasons. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities.
The Court must consider s.61DA. This section presumes that it is in a child’s best interests for his or her parents to have equal shared parental responsibility, unless the presumption does not apply or is rebutted.
If I proceed to make an order for equal shared parental responsibility then I must also consider s.65DAA. This requires the Court to decide whether a child should spend equal time living with each parent, assuming such an outcome is reasonably practicable and in the child’s best interests. If equal time is not appropriate, then the Court must still consider whether a child should spend substantial and significant time with each parent (which is defined as including week days, weekends, holidays and special occasions).
Section 65DAA(5) defines how the Court determines whether an order for equal time or substantial and significant time is “reasonably practicable” having regard to:
a)how far apart the parents live from each other;
b)the parents’ current and future capacity to implement an arrangement for equal time or substantial and significant time;
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise;
d)the impact that an arrangement of that kind would have upon a child;
e)such other matters as the Court considers relevant.
Section 60CC(2) - Primary considerations
Notwithstanding the criticisms that each parent makes of the other party, I am satisfied that K enjoys a meaningful relationship with each of her parents. This is clear from the evidence of Mr Field, who commented positively upon K's interaction with each parent. He noted that “K showed signs of being securely attached to each of her parents.” (at page 14)
The second primary consideration relates to the need to protect K from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am confident that neither parent exposes K to abuse, neglect or violence. While there were clearly difficulties between the parties in the latter years of their relationship, I do not consider those difficulties equate to abuse or family violence. The issue in this case is not whether K has a meaningful relationship with both parents but how to best promote K's ongoing relationship with each of her parents in the future.
Section 60CC(3) - Additional considerations
a) any views expressed by the child
K is just two years old. I agree with Mr Field that it would be inappropriate to seek K’s views, given her age.
b) the nature of K's relationship with each parent and other significant persons
K has satisfactorily established a meaningful relationship with each of her parents and she should be given every opportunity to nurture these relationships as she grows older. However, it is clear from Mr Field's report that K's primary attachment is with her mother. This is not surprising, given that Ms Austin has been K's primary caregiver. Mr Field is equally clear that K's attachment to her father is progressing satisfactorily.
The Children's Contact Service report discusses visits that took place between K and her father in April/May 2007. This report indicates that there were no obvious signs of distress for K during those handovers. Mr Field also reported that handovers proceeded easily during his appointments.
Mr Field was concerned that the process of handover directly between the parents had become problematic for K. The father considers that the mother overreacts at handovers and exacerbates K's “natural separation anxiety” by excessive comforting and reassuring of the child. In turn, the mother feels that the father is insensitive to K’s needs and insists on rushing the handovers without allowing time for her to reassure and settle K.
Having heard each party, I consider there is some truth in both parents' perceptions of the way handovers have been conducted to date. However, it is important the mother accept that these difficulties at handover do not necessarily reflect any intrinsic problem in K’s relationship with her father. I conclude that K is simply at an age where managing any transition away from her primary caregiver (presently her mother) requires some effort and patience from both parents.
Regarding K's relationship with other family members, I am satisfied that both parents will promote and facilitate K’s relationship with, and sense of place within, their extended families.
K clearly has established relationships with her extended maternal family who assist the mother with child care from time to time. She is developing equally important relationships with her extended paternal family. The mother criticises the paternal grandmother’s attitude to K and is concerned that the father’s relies upon his mother to assist with K’s care, but I do not place great weight upon these concerns.
c) The willingness and ability of each of the child's parents to facilitate K’s relationship with her other parent
The father has little faith in the mother's willingness to facilitate and encourage his ongoing relationship with K. He believes the mother is unnecessarily critical and that she takes every opportunity to disrupt and undermine his role in K’s life.
He considers the mother has frustrated any reasonable increase in K’s time with him and believes she will continue to do so. He refers to the mother's behaviour at handovers as but one example of these problems.
Mr Field discusses the parties’ “personality type” based on a psychometric assessment. He describes the mother as "generally apprehensive, nervous and prone to worry". He goes on to say:
“She has considerable ability to motivate and drive herself to commence and complete tasks. However, Ms Austin is hasty and often speaks and acts without considering the consequences.” (page 3)
He describes the father as follows:
“Mr Schaw has a strong proclivity for deferring to others, inhibiting aggression and forgiving and forgetting. He is quite mild and meek in his dealings with others.” (page 9)
It is easy to see how the parties’ different personalities have affected their co-parenting relationship. The mother considers the father is an inattentive and uncommitted parent; the father, in turn, sees the mother as overanxious and unwilling to allow K’s separate relationship with him to develop.
Notwithstanding the mother’s concerns she has consented to various arrangements extending K’s time with her father. I am satisfied that the mother supports K’s right to a relationship with her father, but her support is contingent upon the relationship developing at a pace that the mother feels is age‑appropriate for K. Unfortunately the parents disagree about K’s emotional readiness in this regard.
d) the likely effect of any changes in K's circumstances, including the likely effect of any separation from either of her parents or other significant persons
There are no anticipated changes in K's life that will impact upon her welfare or upon her ongoing relationship with each of her parents and significant others in her life.
e) practical difficulty and expense
The father is unhappy that the mother moved to live at Property C, given that he remains living at [I] in the former matrimonial home. The mother says that she and K had been staying with extended family and needed to organise independent accommodation. C was the suburb in which she could first obtain appropriate, affordable accommodation.
While the distance is problematic, the mother is still residing within the metropolitan area of Adelaide. In the circumstances, I do not consider her decision to take up rental accommodation in Property C was unreasonable.
However, clearly both parties need to co-operate and share responsibility for the travel involved. This has been achieved by choosing a handover location midway between the parties, which is a sensible solution.
K will be commencing school in 2011. That may cause some practical difficulties for the father in terms of collecting K from or delivering her to school, given that the mother has presently enrolled K in a school near to her home. This is a matter the parties will need to consider further.
f) each parent's capacity to provide for K's physical, emotional and intellectual needs
I am satisfied that both parents are capable and attentive in their care of K. Mr Field’s observation of the interaction between K and the mother is positive, and clearly indicates that the mother is a confident, attentive parent. Mr Field is equally positive about the father. His report describes how the father engaged with K in an age‑appropriate manner, verbally cautioned her where appropriate and settled K for a nap towards the end of the session.
The mother has little faith in the father’s parenting capacity, as indicated in her trial affidavit. She considers the father is inattentive to K’s daily care and safety. She believes that he dismisses advice about K’s separation anxiety and her need for a settled routine. She says the father prioritises his own needs over his relationship with K, such as his recent attendance at the Clipsal 500 Races.
The mother argues that the father has no capacity to learn from past mistakes and that he rejects any productive feedback or advice that she may provide. I agree that the father is unwilling to act upon any feedback or advice from the mother. However this reflects the lack of trust and mutual respect between the parties rather than any intrinsic inability in the father to provide safe and appropriate parenting for K.
I accept the mother’s concerns are genuine. Incidents such as the father leaving K unsupervised in a bath (even if only for a short period of time) have done little to encourage the mother’s faith in the father's parenting skills. However at times I consider she is overcritical of the father. His attendance at the Clipsal 500 Races is one such example. This is not a situation where the father routinely fails to make himself available for K when she is in his care. The father did not disclose his plans to the mother because he feared precisely the reaction that he received from her. The mother’s critical response makes it unlikely that the father will feel confident in seeking advice or guidance from the mother about K’s care in the future.
When I consider the evidence before me as a whole, I conclude that the criticisms made by either parent indicate a difference in parenting style and approach rather than any significant flaw within their parental capacity.
g) K's maturity, sex, lifestyle and background (including culture and traditions)
The husband struggles to accept that K may indeed be suffering separation anxiety. Indeed, in the course of closing submissions he argues that K has not suffered separation anxiety from her mother. This assertion is at odds with the evidence before the Court.
Concerns about K experiencing separation anxiety were discussed in the medical reports from Dr L dated 25 October 2006[2] and Dr K dated 12 April 2007[3].Both reports confirm that it is not unusual for children of K's age to suffer from some separation anxiety and that such problems should settle with time.
[2] annexed to husband’s affidavit filed 29 November 2006
[3] annexed to the wife's affidavit filed 1 May 2007
Mr Field considered the medical opinions in light of the report from the Children’s Contact Service and his own observations. He noted “…there is reason to believe that K may be developing positively with regard to her separation anxiety” (at page 17). However he also concluded that K was not yet ready for shared parenting given that the process of overcoming her separation anxiety was not yet complete (at page 19).
(i) each party's attitude towards K and the responsibilities of parenthood
I need hardly repeat that both parents love K deeply and are devoted to her welfare. They have different views about how best to promote K's welfare in the future, but this does not reflect any failing by either parent. Unfortunately, the parties have failed in their parenting responsibilities by allowing their hostility to impact upon K’s welfare. This is particularly true of the parties' inability to facilitate easy handovers for K.
Some of these difficulties have improved in recent times. Both parties have made an effort in that regard, but their evidence to the Court on 12 March 2008 indicates that they are still focussed on the most negative and critical interpretation of the other party's behaviour.
The impact of the parties’ hostility and poor communication
The parties' hostility and mistrust is a significant concern. It reflects poorly on their commitment to their daughter's future welfare. From K's point of view, she has two parents. She loves them both deeply and is entitled to have a meaningful relationship with each of them. Her parents’ inability to put aside their own animosity for their daughter’s sake is, and will continue to be, a source of sadness for K as she grows up.
The mother outlined numerous examples of the father’s hostility and distrust towards her. The father in turn pointed to a similar array of incidents which illustrate the mother's hostility and distrust towards him. Both parents need to step back from the hostility and carping criticisms they make and develop a more co-operative and respectful parenting dynamic so that K will not be burdened by the acrimony between them.
This was very much the focus of Mr Field’s evidence. He was confident that the parties could improve their relationship and indeed was confident that they could develop a sufficiently co-operative parenting relationship such that equal time for K with each of her parents was viable in the future.
Mr Field considered that the parties would benefit greatly from further counselling. Mr Field recommended:
“… that Ms Austin and Mr Schaw seek the services of a suitably trained and experienced psychologist to supervise the process of overcoming K's separation anxiety, and training K to be at ease with handovers.” (at page 18)
To their credit, the parties agreed to resume counselling with Ms T in January 2008. Unfortunately, this proved unsuccessful. By the resumption of the hearing on 12 March 2008, the parties had ceased counselling with Ms T. The father gave evidence that he felt little benefit was gained from the process.
Parent’s behaviour at handovers
Both parties are at fault in the way they have conducted themselves at handovers. Regarding the particular incidents involving K’s balloon and toy horse, I find the father’s evidence more reliable insofar as I am satisfied there was a balloon, contrary to the wife’s assertion. I am satisfied that the mother did take K’s balloon and throw it away. Whether she deliberately kicked it under the car or simply knocked the balloon as she turned to leave with K is another matter.
Regarding the toy horse, I am satisfied that the mother rejected this toy. While she may well have said words to the effect that K has plenty of such toys at home, I am equally satisfied that her actions and tone would have conveyed to K her disregard for the father’s gift. The mother’s attitude fails to grasp K’s need to integrate her “divided world” through the sharing of symbolic objects, such as gifts.
The father’s failure to acknowledge that K experiences any separation anxiety has been equally problematic. He maintains this position, despite professional evidence to the contrary. This attitude is unlikely to engender any confidence in the mother that he understands and will react sensitively to K’s emotional needs. I consider he has been equally responsible for the “passive hostility” at handovers. Again, he fails to recognise the negative emotional impact this has upon K.
Given her young age, these transitions are an uneasy emotional experience for K. Her separation anxiety is not a figment of the mother’s imagination. Nor does it mean K is unable to settle and enjoy her time with the father, once she has “processed” the transition. From K’s point of view, the handovers may be easier if her mother takes a more robust approach, confident that the father will be able to settle K should she experience any distress. In turn, the father needs to relax and allow K the time she needs to separate emotionally from her mother and move between her parents.
j)family violence
I do not consider that family violence is a factor in this matter.
k)family violence orders
There are no family violence orders in operation.
l) Whether it would be preferable to make orders that would least likely lead to further proceedings.
I am satisfied that the orders I make today are in K's best interests. I am unable to predict whether or not they are the orders least likely to lead to further proceedings the parties. That is a matter for the parties to determine.
I have no doubt that these Court proceedings have been extremely stressful for both parents. It is invariably the case that parents will seek to promote their position before the Court by criticising or undermining the other party. It is now up to each parent. They can choose to operate within the framework of these orders and work towards co-operatively parenting K in the future. Or they can continue to hand over their parental responsibility to this Court and expose their daughter to the conflict that ongoing Court proceedings will inevitably involve.
Conclusion – Children’s issues
Section 61DA - Equal shared parental responsibility
Having assessed the parties' evidence in light of the relevant considerations in section 60CC, I conclude that it is in K’s best interests that her parents share their parental responsibility equally. Clearly there are difficulties within the present co-parenting relationship. However, both parents love K and are devoted to her welfare. Her future will be enhanced by the knowledge that each of her parents are actively involved in decisions about her long‑term care.
The parties will struggle to engage in the negotiation and compromise necessary to give proper effect to an order for equal shared parental responsibility. They may need further professional assistance, whether from Ms T, or other mediation services such as a Family Relationships Centre or some other agency. Nonetheless, I conclude that it is K's best interests that they make a proper attempt to do so.
Equal time or substantial and significant time?
Having determined that an order for equal shared parental responsibility is appropriate, the court must then consider whether it is appropriate for K to live with her parents equally or whether some other parenting arrangement is more appropriate and in K's best interests.
K is only two years of age. Mr Field gave evidence that she is not yet ready to spend significant time away from her primary caregiver, the mother. Indeed, Mr Field’s report recommended that:
“The present process [ie, day visits] continues and does not proceed to a graduated transition to equal shared care until therapy has been successfully completed.” (at point 2.2 on page 19)
The husband argues that K has a safe and secure attachment to him (as confirmed by Mr Field's report) and she will adjust easily to the introduction of overnight stays and eventually equal time. He contends that once final orders are in place, neither party will have any vested interest in determining the outcome. Implicitly therefore, neither parent will be inclined to behave in ways that undermine K's developing relationship and attachment with both parents.
In cross‑examination, Mr Field made it clear that he considered an order for K to spend equal time in the care of each parent was appropriate in the longer term. Mr Field was asked to comment on each party’s proposals. He considered the father's proposals were appropriately sensitive to K's age and present degree of primary attachment to her mother. He did not express the same confidence in the mother’s proposal. He was concerned that the mother’s suggestion of taking a "wait and see" approach would not necessarily be productive, as the parents were unlikely to agree future changes. By contrast he considered a Court‑ordered parenting regime would require the parties to comply with those arrangements and support K’s progress through them.
While Mr Field clearly supported a shared equal time outcome for K’s future parenting arrangements, his recommendations are predicated upon the parties successfully engaging in appropriate counselling. I have already discussed Mr Field’s concerns regarding the parents' capacity to support K as she learns to manage her separation anxiety and difficulties in her sleep and night‑time routines. He maintained the view expressed in his report, that a graduated transition to equal shared care should not proceed until the parents' therapeutic interventions have been successfully completed.
When asked how the Court would know whether the parental counselling processes had been successful, Mr Field suggested that another assessment could be undertaken. At the same time, he noted that neither parent had any intrinsic “personality difficulties” that needed to be addressed. It was more a matter of the parties learning more positive parenting behaviours and skills, in terms of their interpersonal interaction.
As we now know, the parties' further counselling with Ms T was unsuccessful. However, the husband urged the court to accept that the issues that Mr Field intended to be addressed by the counselling are already improving insofar as the handovers are occurring more easily.
The wife argues that Mr Field is "an unashamed advocate" of equal parenting time who was unable to concede any circumstance in which equal shared care would not be an appropriate parenting outcome for a child. Counsel for the wife was particularly critical of Mr Field's refusal to rule out such an equal time parenting arrangement, even where there was significant conflict or ongoing violence between the parents.
While this is an accurate reflection of Mr Field’s evidence, I consider that he found himself caught in a trap laid by skilful cross‑examination. Taken as a whole, my assessment of Mr Field's evidence on this topic is that he was not prepared to say that equal time would never be an appropriate parenting outcome even where there is ongoing family violence. I interpret Mr Field's evidence as expressing a reluctance to rule out equal time as a possible parenting option, without having all the facts of a particular case scenario before him.
Mr Field acknowledged that family violence is a serious issue in assessing the suitability of any parenting arrangement, whether the Court was considering equal time or some other outcome. He also pointed out that in a clinical setting the therapist would monitor the child's welfare and any future decisions would be based upon the child's presentation.
Ongoing monitoring may be appropriate in a therapeutic context but it conflicts with the Court’s desire to bring proceedings to an end and to hand the parental responsibility for K back to her parents. In any event, these general views expressed by Mr Field do not undermine the weight I attach to his careful and considered recommendations for this family and this child.
Mr Field gave evidence that in the next 12 months K’s separation anxiety should resolve. She should be able to make the transition between her parents more easily as she develops the emotional and cognitive capacity to understand that leaving her primary caregiver will be temporary and therefore unthreatening. In his view the real issue was not about K’s capacity to manage a different parenting regime (including spending equal time in the care of each parent once she is older) but about the parents' behaviour and their capacity to support this parenting regime.
Mr Field acknowledged that lack of trust between the parents, geographical distance and poor communication can be problematic for a shared parenting regime, but felt that those difficulties can be overcome. He was less concerned about the parties' capacity to "trust each other" than about their willingness to change their behaviour and to understand the impact of their hostility upon their daughter. At the end of the day, however, Mr Field's support for a progression to an equal time parenting regime was dependent upon the parties' capacity to engage in the counselling necessary to bring about this change in the parents’ attitudes and behaviour.
In response to a question from the bench, Mr Field agreed that K can maintain a meaningful relationship with both parents in circumstances where she spends substantial and significant time with each of them. He said:
“In order for her [K] to be able to continue to develop and enjoy an attachment relationship with her parents, she will need regular contact with them, but it does not need to be equal time, equal contact.”
He went on to say:
“I’m not aware of any research that suggests that children’s relationships with their parents or children’s developing sense of self and wellbeing is impaired if they do not spend exactly equal time with each parent What is more important in the research is that they share regular and frequent time and that it is quality time: it’s the quality of the relationship”.
Mr Field is optimistic about the parties’ capacity to make the necessary emotional adjustments, but the recent attempt at counselling with Ms T suggests that his optimism in that regard may be misplaced. When I consider the parties’ present and future capacity to implement an equal time parenting regime, to communicate with each other and to resolve difficulties that may arise, I am much less optimistic.
In light of the findings I have made about the parties’ present interpersonal relationship I consider a more cautious approach is warranted. There may be many reasons why the recent counselling with Ms T was unsuccessful. It may be that both parents are still unable to move their focus away from criticising each other towards a focus upon their daughter's future welfare. It may be that they simply differ in their assessment of K’s stage of development and emotional readiness for a different parenting regime.
There is a sense in which the reason why counselling was unsuccessful is irrelevant. What is clear is that the present co-parenting relationship is not sufficiently developed to support a parenting regime where K spends equal time in the care of each parent. There is little evidence before me to suggest that this is likely to improve in the short or medium term.
The order for equal shared parental responsibility already imposes a significant responsibility upon the parties to negotiate co-operatively and respectfully about K’s long term welfare. In light of the caution I have expressed about the parties’ co-parenting relationship, I am reluctant to impose further stress upon their parenting dynamic (and therefore potentially upon K) by introducing an equal shared care arrangement, which would involve many more day to day issues to be negotiated and resolved.
At the end of the day, I must make orders that I consider to be in K’s best interests. I am confident that K will adapt to an increasing parenting regime in the care of the father and that overnight time should commence for K in the near future. However I am in no way confident that the parents have the necessary degree of communication and co-operation to facilitate a shared or close to equal time parenting regime for K.
K will be spending longer time in the care of her father as she becomes older. Mr Field acknowledged that any change - for example, the introduction of overnight visits - may cause a negative reaction by K as she makes the adjustment. She may become more clingy, or “act out” following longer visits with the father. It is the responsibility of both parents, but particularly her primary caregiver, to enhance K’s capacity to manage those changes.
The challenge for the mother will be to support K in a positive way rather than view any negative reaction as an indicator that K is not enjoying longer time in the care of the father. In the Court's experience children can and do adapt and move through these transitions provided they are given support and encouragement from both their parents to do so.
Equally, the father will need to be sensitive to K's needs and ensure that he does not dismiss any concerns about K's behaviour as the mother’s over-reaction. The reality is that K may not react negatively while in his care, but may nonetheless react differently when returning to her mother’s care. If K takes some time to adjust to her changing care arrangements then more likely than not it is the mother who will experience those behavioural difficulties, not the father.
I am satisfied that K should spend substantial and significant time in the care of her father and that the parenting orders I now make allow the father to be involved in K’s daily routine, including her school routine. This outcome will allow K to enjoy “substantial and significant time” in each parent’s care. More importantly, it ensures that K enjoys the full benefit of both parents’ participation in all aspects of her life while minimising the potential impact of the parental conflict upon her emotional development.
Bearing in mind K is not yet three years old I will introduce overnight visits on a fortnightly basis in the first instance, before progressing to a more substantial care regime. I consider such an approach will allow K time to settle and be reassured in the care of her mother in between visits. The regime will then be extended to two full days, eventually progressing to two nights and then more frequent overnight time as K becomes older and better able to manage time away from her mother.
Mr Field gave evidence that K’s progress towards increased time with the father could be relatively swift. However he gave his evidence before we knew that the parents’ further counselling with Ms T was unsuccessful. I conclude that a slower regime is appropriate as it will allow both parties more time to work on improving their co-parenting relationship.
K’s schooling
The father seeks to restrain the mother from enrolling K at any school save as may be agreed between them. Rather than restrain one party, I will order that the parties agree about K’s school enrolment. Both parties need to discuss this matter sensibly. The mother has already enrolled K in a local school and she should provide details to the father immediately. The father may agree with the mother's chosen school as an appropriate educational institution for K. He may put forward other schools that the mother will then need to consider.
The mother cannot simply ignore other schooling options put forward by the father. The parents should focus on choosing a school that will meet K's educational and developmental needs. She will also begin developing her social networks and proximity to her primary home base allows these friendships to continue out of school hours. Distance and convenience is a factor, but should not be the prime focus of either the father or the mother. If the parties are unable to reach agreement they should attend mediation to resolve the dispute.
K’ surname
The mother seeks permission to change K’s surname to “Schaw-Austin”. It is an issue that often assumes great importance from a parent’s point of view, more so than from the child’s perspective.
I note that the parties were married and that the mother adopted the surname “Schaw’ at that time. She has chosen to revert to her maiden name. The mother argues that the father’s son D has a hyphenated name. She refers to this child as “D.F.” in her affidavit but I note the father refers to him as “D.S.”. I have no reliable evidence about D’s surname.
Many children grow up with a different surname from one or other of their parents. This does not undermine the strength of their relationship with that parent. Kindergartens and schools are well used to managing these matters in an administrative sense.
There is no evidence before me that would indicate this change is in K’s best interests. I decline to make this order.
Special occasions, holidays and other parenting issues
Regarding special occasions, the parties agree on arrangements regarding Mother's Day, Father's Day and K’s birthday. The mother would prefer that there be a set Christmas Day routine such that K always spends Christmas Eve and Christmas morning in her care, and spends Christmas afternoon and Christmas night in the father's care. The father seeks to alternate these times.
While I understand the mother's desire to enjoy that special time with K into the future, I am equally confident that K will enjoy waking up in either parent’s care on Christmas mornings. It will give her the opportunity to share this special occasion with each parent and with her extended family on both sides. I will order that the parties alternate Christmas Eve/Christmas Day arrangements into the future.
Once K is of school age, the father seeks to share school holidays. I note the mother intends increasing her working hours once K starts school. Insofar as it is possible, I would expect each parent to arrange leave during K’s school holiday time with them, but there may be times when they are unable to do so. Provided both parents make appropriate arrangements for K’s care (with extended family or holiday care, for example) I see no reason why school holidays should not be shared equally between the parties, and will order accordingly.
As I understand it, the existing handover arrangements are working reasonably smoothly and are supported by both parents. I will continue those arrangements, with a variation to facilitate handovers at a nearby sheltered venue in the event of inclement weather.
In that regard the father proposes the Hungry Jacks restaurant at [Y], which is relatively close to the playground the parties presently use. The mother proposes an alternate venue; inside the foyer at [A] Hospital or at the [M] shopping centre. The mother was generally opposed to the notion of handovers at a fast food outlet, and I understand her hesitation in that regard. However, bearing in mind these occasions will be relatively few, I will order that handovers move to the Hungry Jacks restaurant in the event that weather requires it.
Property Settlement
Relevant legal principles
Section 79 of the Family Law Act 1975 sets out the factors that the Court must consider when deciding a property settlement. Various Full Court authorities have confirmed that the Court must follow a number of discrete steps when determining any adjustment of matrimonial property[4].
[4] Lee Steere & Lee Steere (1998) FLC 91-625
First the Court must identify the assets and liabilities arising from the parties’ marriage. Once the asset pool has been identified, the Court must then assess each party’s contribution during the marriage. The relevant factors pursuant to s.79(4)(a)-(c) include the parties’ direct and indirect financial contributions, any other contribution the parties may have made to the “acquisition, conservation or improvement of the matrimonial assets” and their respective contribution to the overall welfare of the family as a whole – what is often described as the “home maker or parent” contribution.
The third step requires the Court to consider a range of factors set out in s.79(4)(d), (e), (f) and (g), including a range of considerations set out in s.75(2). Finally, the Court must be satisfied that the orders to be made are just and equitable as between the parties in accordance with s.79(2). As was noted by the Full Court in D & D[5]:
“… the task of the court in proceedings under s.79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions.”
[5] (2003) FamCA 473 at 49
The Asset Pool
The parties agree about the value of most of the matrimonial assets. However, they disagree about the extent to which each party's post‑separation expenditure should be added back into the asset pool and whether the joint E-Trade account should be included as a matrimonial asset.
The parties’ E-Trade account
The husband says he established this account prior to the parties' relationship and that he subsequently augmented the account balance with funds that he received on behalf of his son D. The husband therefore argues that the value of this account ($7,552) should be excluded from the asset pool, and seeks a declaration that those funds be transferred to him to be held on trust for his son.
The wife argues that she also contributed funds to the joint E-Trade account. She concedes that some of the funds deposited into the joint E-Trade account may have arisen from shares held by the husband on behalf of D and therefore seeks to bring into account only one half of the value of the joint E-Trade account as a matrimonial asset. The husband argues that any payments claimed by the wife actually reflect payments made by him. He would provide cash to the wife, often consisting of monetary gifts received for D. The wife would then draw a cheque on her account to pay an equivalent amount into the E-Trade account.
It is impossible for me to determine whether all the subsequent contributions to the E-Trade account reflect gifts received by the husband on D's behalf. In the absence of any reliable independent documentary evidence in this regard, I conclude that a portion of the E-Trade account reflected the shares held by the husband on D's behalf. As the evidence does not enable me to determine what percentage of the account is held on D’s behalf, I will proceed on the basis of the concession made by the wife.
Both parties have provided statements for the E-Trade account, portfolio number [1]. In January 2007, the account was valued at $8,600 (annexure “C” to the wife's affidavit filed 9 November 2007). On 5 November 2007, the account was valued at $7,552 (annexure “KS11” to the husband's affidavit filed 16 November 2007). That is the most up‑to‑date valuation made available to the court and I will proceed on that figure. One half of $7,552 is $3,776, and I include that amount within the asset pool.
Post separation expenditure and add backs
The parties agree that the husband's savings and investments disposed of since separation should be added back into the asset pool in the sum of $26,748. The husband argues that the same should apply to the funds that the wife has withdrawn from her own E-Trade account. While there is no dispute that this account is a matrimonial asset, the wife argues that only the amount she has spent on legal fees should be added back. She contends that all other expenditure was reasonably incurred by her and should not be added back into the asset pool.
Both parties relied upon the Full Court decision of AJO v GRO[6] in this regard. The Full Court held that there are three clear categories where it is appropriate to add back post separation expenditure:
a)where the parties have expended money on legal fees;
b)where there has been a premature distribution of matrimonial assets;
c)where a party has deliberately or recklessly diminished the asset pool.
[6] (2005) FLC 93-218
The authorities are clear that parties are entitled to "get on with their lives" post‑separation. In NHC v RCH[7] the Full Court cited with approval from an earlier decision of M & M[8] :
“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 or the case law requires 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 their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial judge.”
[7] (2004) FLC 93-204 @ para 42
[8] (1998) FamCA 42
The wife has withdrawn the sum of $58,625 from her E-Trade account. The wife agrees that the amount she has spent on legal fees should be added back in, which counsel argued was the sum of $28,085. An examination of Adey Lawyers Trust Account ledger indicates she has paid in excess of $44,700 towards her legal fees, as at 14 January 2008 (see exhibit marked “W2”).
The wife's gave evidence that she spent approximately $11,000 on furniture and in payment of her bond ($2,000) and rent in advance ($1,500). She also relied upon the proceeds withdrawn from her E-Trade account to pay her rent. The husband argues that the wife's expenditure has not been sufficiently justified or established by documentary evidence, and accordingly the court should place no weight upon her evidence and should add back the full $58,625 withdrawn from her E-Trade account.
It seems to me this disregards the reality of the wife's circumstances upon separation. She left the family home and needed to establish new accommodation for herself and K. In that regard it is reasonable that she would purchase furniture and household effects necessary to provide an appropriate standard of accommodation. I consider such expenditure to be reasonable and well within the type of expenditure anticipated by the Full Court.
The husband argues that the bond and at least one half of the rent in advance should also be added back, as it was paid on behalf of the wife’s co-tenant, her sister. I am satisfied that the wife would expect to receive her bond payment at the end of her tenancy and will include the bond of $2,000 in the asset pool. I do not intend adding back in one half of the advance rent paid by the wife. The wife has the ongoing benefit of cohabiting with her sister. This does not mean that she would be paying substantially less rent if she and K were living alone. I consider this expense is within that range of post‑separation expenditure that is reasonable and therefore should not be added back.
While I decline to add back into the asset pool the amount spent by the wife in re-establishing her household after separation, she nonetheless has the benefit of the furnishings and effects purchased by her. I do not accept the husband’s contention that these items should be included at their purchase value, as it is well understood that furnishings and electrical goods do not retain their value after purchase. There is no evidence regarding the present value of these items. In those circumstances I am unable to attribute a value to these items in assessing the matrimonial asset pool, but I will take the fact of the wife’s ownership of these items into account in my final determinations.
The pool of matrimonial assets to be divided is as follows:
| Former matrimonial home at Property L, [I] (agreed) | $265,000 |
| Balance of E-Trade account in wife's name | $27,751 |
| Half value of parties' joint E-Trade account | $3,375 |
| Wife’s Subaru motor vehicle (agreed) | $13,250 |
| Wife’s furniture and effects owned pre‑separation (agreed) | $1,760 |
| Wife’s furniture and effects purchased after separation | Not known |
| Husband’s Ford Fairlane motor vehicle (agreed) | $7,000 |
| Husband’s Toyota motor vehicle (agreed) | $1,950 |
| Husband’s furniture and effects owned pre-separation(agreed) | $7,406 |
| Husband’s car trailer (agreed) | $150 |
| Add back husband’s savings at separation (agreed) | $9,957 |
| Add back husband’s shares and investments sold post‑separation (agreed) | $16,790 |
| Add back wife’s legal fees and rental bond | $46,700 |
| TOTAL ASSET POOL | (E) $401,089 |
Superannuation Interests
The wife argues that the parties' superannuation should be included in the total asset pool and the total divided accordingly. The husband argues that the superannuation interests should be dealt with separately. The value of the parties' superannuation interests is substantial in terms of the overall asset pool. In accordance with the Full Court’s decision in C[9], I am satisfied that it is appropriate to proceed to deal with the parties’ superannuation and other assets as two separate pools. The authorities confirm that the same approach must be taken to each pool of assets, but at times different considerations may apply to the various relevant aspects set out in section 79, such as contribution and the impact of section 75(2) factors (C[10]).
[9] (2005) FLC 93-220 at para 63
[10] (supra) at para 65
As at January 2008, the husband’s superannuation with [S] Super Scheme was valued at $147,765 and wife’s entitlement with [T] Super was valued at $52,354. The husband sought to rely upon an updated Superannuation statement on the resumption of the hearing in March, at which time the value of his superannuation had dropped by 5.3% to $139,871. The parties agreed to adjust the wife’s superannuation by an equivalent reduction, rather than adjourn for the wife to obtain a similar updated superannuation statement and the value of the wife’s superannuation was agreed at $46,432.
In written submissions, counsel for the husband alerted the Court to the fact that counsels’ calculations regarding the wife’s superannuation were inadvertently based on the wrong figure. A deduction of 5.35% from $52,354 results in a figure of $49,553, not $46,432. The parties’ total superannuation entitlements are calculated as follows:
Husband’s superannuation (agreed)
$147,765
Wife’s superannuation (adjusted)
$49,553
Total superannuation
$189,424
Contribution
. Initial Financial Contributions
The wife concedes that the husband made a substantially greater initial financial contribution by virtue of the assets owned by him at the commencement of cohabitation. However, they disagree about the weight to be attached to their initial financial contributions.
The husband says that his Property M property was worth approximately $88,500 when the parties commenced cohabitation in mid 1998. The wife provided an historical valuation of the property which estimates the value to be between $75,000 and $85,000 (annexure “A”, affidavit of T.A. filed 4 December 2007).
The husband argued that this valuation is of limited assistance, as the valuer was unable to enter the property and inspect the site or the interior. He argues this valuation would reflect a decline in value, given that he paid $87,000 for the property some years earlier and therefore the valuation cannot be reliable.
The reality is that the property market does go up and down at times. In the absence of any contrary independent evidence, I accept the valuation evidence before me. However, in light of the initial purchase price I will rely upon the upper figure in the valuation range provided by the historical valuation and I value the Property M property at approximately $85,000 as at the date of cohabitation in mid 1998.
The husband's bank records (annexures “KS1” and KS2” to husband’s affidavit filed 16 November 2007) show that the mortgage balance at 1 July 1999 stood at $19,189. The husband made a lump sum payment of $5,000 towards the mortgage on 19 January 1999. This indicates that in mid 1998, the mortgage balance owing would have been at least $5,000 higher, in the region of $25,000. Accordingly the husband’s equity in the property would have been approximately $60,000 at the time the parties commenced living together.
The parties disagree about the quantum of their other initial contributions. The wife concedes the husband owned other assets including his shares, savings, Nissan Skyline motor vehicle, antique toys, furniture, effects and trailer. The wife also brought various assets into the relationship but she concedes their value was modest.
I do not intend making formal findings on each item in dispute. The husband may have over-estimated the value of his shareholdings. The wife may have over-estimated her savings. However it is clear on either party’s version that the husband made a substantially greater initial financial contribution to the relationship. In addition, the husband’s ownership of Property M brought a significant boost to the matrimonial assets as the property increased in value across the relationship.
. Other direct and indirect financial contributions
Both parties have provided detailed information regarding their financial dealings during the marriage. At times one party or the other may have made a greater direct contribution to the family finances. For example, the wife argues that her income was greater during the periods she was working. The husband argues that he made a greater contribution through his capacity to save and then through his investment in share trading.
I note each party’s contributions. At the end of the day, I am satisfied that both parties worked hard and made an equally significant contribution, both directly and indirectly, to the overall improvement of the family's situation. This is reflected in the pool of assets they had accumulated across their cohabitation. The only differential between the parties relates to their initial financial contribution.
. Non financial contributions
Regarding the parties' non‑financial contributions, I am satisfied that the wife was primarily responsible for K's care following her birth. She took maternity leave and became K’s primary care-giver. The husband continued in full‑time employment and to that extent was less available to assist with K's care. This is not a criticism of the husband. His income was required to support the family. As with so many families, the parties made appropriate decisions to meet all aspects of their family responsibilities, whether financial, domestic or parental.
As is often the case, both parties look back at their married life together and view their domestic arrangements through the prism of their present hostility. The wife argues that the husband demonstrated little interest in K's care but I am satisfied that the father participated in K’s care to the extent that he was available to do so.
Having considered all the evidence before me, I conclude that both parties made a significant contribution to domestic life within the household. Both parties contributed indirectly by maintaining and improving their assets, particularly the two properties. Both parties contributed to K's parenting, but the wife took on a more substantial role in this regard due to her greater availability.
The wife has continued in the role of primary caregiver to K since separation. This is not a situation that the husband has consented to. On the contrary, he seeks a much more substantial role in K’s life. However, the reality is that the wife has continued in that role and has made a significant contribution to K's parenting in the 18 months since separation. In light of the parenting orders I now make, the parties will each be playing a significant role in K’s future care.
When I take into account all the evidence, I am satisfied that the parties’ contributions were generally equivalent, aside from the husband’s greater initial financial contribution. I find that the husband’s overall contribution should be assessed at 57.5% and the wife's contribution at 42.5%.
. Contribution to superannuation interests
Both parties had modest superannuation entitlements at the time they commenced cohabitation. Their interests were equivalent in value – the husband’s superannuation was valued at $16,094 (see annexure “G” to wife’s affidavits filed 9 November 2007) and the wife’s superannuation with an agreed estimated value of $15,000.
Clearly the husband’s superannuation has increased significantly across the parties’ relationship. He argues that prior to K’s birth, the parties kept their finances separate and the wife chose not to save or prioritise superannuation investments in the same way. The husband chose to salary sacrifice a substantial amount of his annual income into his superannuation and he argues that there should be an adjustment in his favour of 10% accordingly.
While I accept that the husband made these greater contributions by way of salary sacrifice, it is inappropriate to look at one party’s income during the marriage and assess payments made from that income as a contribution solely on behalf of that party. Such an approach is misguided. That the parties kept their finances separate to some extent does not mean that they did not otherwise understand that the financial decisions made by the other party were for the joint benefit of each of them and the family unit as a whole. I find the parties’ contributed equally to their superannuation interests across the period of cohabitation.
At the date of separation, the husband’s superannuation was valued at $123,183 (see annexure “KS16”, husband’s affidavit filed 16 November 2007). The wife’s superannuation was valued at $46,933. The husband’s superannuation has since increased in value by $16,688 or 8% of the total superannuation asset pool. The wife’s superannuation has increased by $2,620 or 1.3% of the superannuation asset pool.
The husband should receive some acknowledgement for this post separation increase, but any adjustment should also take into account that a portion of the increased value relates to interest earned on the superannuation accumulated during the marriage. I find the husband contribution to the parties’ superannuation interests should be assessed at 52.5% in favour of the husband and 47.5% in favour of the wife.
Section 75 (2) factors
The wife is aged 40 years and is in good health. She presently works part‑time, but gave evidence that she hopes to increase her working hours once K commences school.
The husband is aged 39 years. While he is still suffering the effects from an earlier back injury, he is nonetheless able to work full time and earn a reasonable income. At the present time, the husband's salary is significantly greater than that of the wife.
In light of my decision regarding K's parenting arrangements, the mother will continue in the role of K's primary carer. This may impact upon her capacity to take on full‑time employment. In the meantime, the husband continues to enjoy the benefits that flow from full‑time employment, including increased superannuation contributions and growth, both from employer contributions and from salary sacrifice payments made by him.
The husband is paying child support in accordance with the child support formula. I am satisfied he will continue to meet his obligations in this regard. Neither parent is cohabiting with any other person, nor does either party have any responsibility to assist with the support of any person other than their daughter K.
The husband argues that the wife’s income will exceed his earnings, once she returns to the full‑time workforce. However, that reality is still some years away and is predicated upon the wife returning to full‑time employment, as opposed to some other employment arrangement structured around her parenting responsibilities for K.
When I take into account all the above factors, I consider it is appropriate that there be an adjustment of 7.5% in the wife's favour on account of the section 75(2) factors.
Section 75 (2) factors - superannuation pool
In my view the s.75(2) factors carry different weight when considering the parties’ superannuation interests. Given that a superannuation splitting order is appropriate, such an order is unlikely to come into operation for many years yet, given the parties’ are still relatively young.
Factors such as parenting responsibilities therefore carry less weight. However, the parties’ present and future income is relevant. Even if there is a superannuation split, the husband is able to increase his remaining superannuation by ongoing contributions. The wife’s capacity in this regard is more limited, at least until she resumes full time work. I am satisfied an adjustment of 2.5% in the wife’s favour is appropriate.
Conclusion – Financial issues
The above analysis results in the husband’s greater contributions being offset by the adjustment in favour of the wife on account of her future needs and s.75(2) factors. These findings result in the net notional asset pool and the parties’ superannuation interests being divided equally between them.
The nett asset pool is $401,089. The wife is entitled to receive assets totalling $200,545 (rounded off). She presently holds or has had the benefit of assets valued at $89,461, including the legal fees and accommodation bond paid by her and added back into the asset pool. Therefore the husband is required to pay to the wife a cash adjustment in the sum of $111,084.
The parties’ superannuation interests are valued at $189,424. Fifty percent of this amount is $94,712. The wife presently holds superannuation valued at $49,553 therefore a splitting order in the sum of $45,159 in the wife’s favour is required to achieve an equal division of the superannuation interests.
Having reached this point, the Court must step back and consider whether this outcome will be just and equitable. Each party retains modest savings, the use of a motor vehicle and their household furnishings – including those items the wife purchased after separation. In determining what percentage of the assets and what percentage of the superannuation each party should receive, it is important to consider each party’s actual circumstances and their future needs, particularly their accommodation needs.
The husband will need to take out a mortgage in order to meet his obligations under these orders. Accordingly both parties will have ongoing housing costs in the foreseeable future, but the husband enjoys the significant advantage of already owning his home. No doubt the wife hopes to re-enter the property market to ensure she and K have secure accommodation in the future. The wife’s capacity to purchase a home is a relevant factor in assessing what percentage division of the superannuation and non-superannuation assets is ultimately just and equitable.
Clearly the wife’s income is presently very modest. She will incur substantial costs associated with the actual purchase of a new home, not to mention the cost and inconvenience of moving. In order to maximise her capacity to re-enter the property market I conclude it is just and equitable for the wife to receive a greater proportion of the asset pool and a smaller percentage adjustment by way of a superannuation splitting order.
The following adjustments are not made on a strict arithmetical basis, but in an attempt to achieve an outcome that is just and equitable between the parties overall. If the wife receives an additional cash settlement of $13,916 (rounded up), this would result in a total cash settlement to the wife in the sum of $125,000, or approximately 53% of the non superannuation assets. This greater cash amount will enhance her capacity to enter the property market and secure appropriate accommodation for her and K.
This adjustment represents approximately 30% of the amount the wife would otherwise have received by way of a splitting order. On a “dollar for dollar” basis her interest in the superannuation pool will be reduced to the sum of $31,243. However she will receive the immediate benefit of an extra cash adjustment in her favour, rather than having that portion of her property settlement locked away in superannuation. She has the benefit of the furnishings purchased by her after separation. I take these matters into account in setting a slighter lower base amount of $30,000 by way of a splitting order in the wife’s favour. This sum still makes a significant contribution to the wife’s long term financial security.
The husband will need to increase his borrowings to meet this outcome and that is a relevant consideration. However he will retain a substantial equity in the former matrimonial home. I am satisfied he has steady ongoing employment and that his wages are sufficient to meet his anticipated mortgage repayments. He should be able to recover his financial position reasonably swiftly. Obviously he will also retain a greater percentage of the superannuation pool, which will be to his long term advantage.
I am satisfied that the orders I now make are just and equitable as between the parties.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Kelly FM.
Associate: G Kroon
Date: 16 May 2008
Hickey & Hickey (2003) FLC 93-143
AJO & GRO (2005) FLC 93-218
0
2
1