BAGSHOT & BAGSHOT
[2010] FMCAfam 785
•19 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAGSHOT & BAGSHOT | [2010] FMCAfam 785 |
| FAMILY LAW – Parenting – eight year old boy – learning disability – boundary problem with mother – time with father. FAMILY LAW – Property – whether there should be an addback – division of pool. |
| Family Law Act 1975, Part VII, ss.60B, 60B(3), 60CA, 60CC(1), 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61DA, 65DAA, 75(2), 79, 79(2), 79(4) |
| Hickey v Hickey (2003) FLC 93-143 AJO v GRO (2005) FLC 93-218 |
| Applicant: | MR BAGSHOT |
| Respondent: | MS BAGSHOT |
| File Number: | BRC 8245 of 2009 |
| Judgment of: | Riley FM |
| Hearing dates: | 23 & 24 June 2010 |
| Date of Last Submission: | 5 August 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2010 |
| Orders made: | 20 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Barry & Nilsson |
| Counsel for the Respondent: | Mr Shoebridge |
| Solicitors for the Respondent: | Simonidis Shoebridge Lawyers |
THE COURT ORDERS BY CONSENT THAT:
The mother and father have equal shared parental responsibility for the child, [X] (“[X]”), born in 2001.
In the exercise of equal shared parental responsibility, the parents shall consult with one another about decisions to be made in relation to the major long term issues, as such issues may arise, including but not limited to:
(a)[X]’s schooling, including decisions about the type of schooling and the schools at which [X] shall attend;
(b)[X]’s health, with the parents to keep each other informed and make joint decisions relating to [X]’s health, in particular the need for any operations, dental treatment, speech therapy, physiotherapy, specialist treatment, any alternative medical treatment and medicating [X] on a long term basis, as well as attendance by [X] for any purposes upon a child psychologist, counsellor, family therapist or psychiatrist;
(c)[X]’s religion;
(d)[X]’s involvement in any sporting, cultural, artistic or community activity, including competition and training.
The father and mother each have sole responsibility for making decisions about the day to day care, welfare and development of [X] during periods when [X] is living with them, except as otherwise provided for in these orders.
Notwithstanding any other orders included herein, [X] spend time with the mother and father on Christmas Eve, Christmas Day and Boxing Day each year as agreed and in the absence of an agreement as follows:
(a)in even numbered years:
(i)with the father from 4.00pm on Christmas Eve until 11.00am on Christmas Day;
(ii)with the mother from 11.00am on Christmas Day until 4.00pm on Boxing Day;
(b)in odd numbered years:
(i)with the father from 11.00am on Christmas Day until 4.00pm on Boxing Day;
(ii)with the mother from 4.00pm Christmas Eve until 11.00am on Christmas Day.
The parents each authorise and direct any school that [X] may attend from time to time to provide to both parents:
(a)copies of all school reports, newsletters, photograph order forms and any other documents associated with [X]’s school; and
(b)all information that either parent may from time to time seek in relation to [X]’s schooling.
Both parents be at liberty to attend and be involved in any and all school events.
The parents take all reasonable steps and sign all necessary documents authorising the school to list the mother as [X]’s first emergency contact and the father as [X]’s second emergency contact.
The parents each authorise and direct any person providing medical attention to [X] to provide details and documentation in relation to such treatment to each parent.
Each parent inform the other forthwith if [X] receives any medical attention whilst in that parent’s care, including the name and contact details of any person providing such attention.
Both parents are at liberty to be present at any medical appointment in relation to [X] regardless of when that appointment is and the parents shall give the other reasonable notice of any such appointment.
Either parent may speak to any health care or education provider associated with [X].
Except in the case of emergency, the parents are to take [X] to a medical practitioner agreed between the parents.
Neither parent will facilitate [X]’s participation in any recurring extra-curricular activity or pursuit without first obtaining the other parent’s permission and the parents coming to an agreement as to the payment for the said activity.
Both parents shall ensure that [X] attends at all scheduled practices, rehearsals and events [X] has for his agreed recurring extra-curricular activities, regardless of whether [X] is already undertaking such activity, or commences it in the future.
Both parents shall ensure that [X] practices and carries out all activities required by him in relation to his extra-curricular activities wherever practicable.
If the parents are unable to agree about a decision of a significant issue to be made in the exercise of their equal shared parental responsibility, the parents shall submit to the following dispute resolution process:
(a)the parent with the complaint (the complainant) will provide written details of the nature and extent of their complaint, and confirmation that the complaint is pursuant to this part of the orders, to the other parent (recipient), with a proposal for resolution of the complaint;
(b)the recipient will provide a written response to the complaint within seven days of receipt of the complaint, detailing the elements of the complaint with which the recipient disagrees, and if there is disagreement, a counter-proposal for resolution of the complaint;
(c)the complainant, within seven days of receipt of the recipient’s response, will provide written confirmation of whether the complainant considers that there is still a dispute;
(d)if there is still a dispute, the complainant will contact Relationships Australia, and the parents will participate in mediation about the dispute with Relationships Australia;
(e)both parents are at liberty to attend any mediation about the dispute with Relationships Australia by telephone; and
(f)the costs of mediation be shared equally between the parents.
Unless otherwise agreed, the parents communicate about issues in relation to [X] via email.
Neither parent shall denigrate or make derogatory remarks about the other parent, or members of the other parent’s family or their friends, in the presence of [X].
If one parent cannot care for [X] for one overnight period of time (or longer), the other parent is to be given first option to care for [X] during the period of time that the first parent cannot care for him, with the first parent to provide a reasonable period of notice to the other parent in relation to same.
Neither the mother nor the father is to place [X] into day care or vacation care whilst [X] is spending time with them without the express consent of the other parent.
Upon receiving a written request to do so, each parent shall sign any and all documents necessary to facilitate the production of an Australian passport for [X].
Upon the issue of same, [X]’s Australian passport shall be held by a mutually agreed bank, in safe custody, and shall not be released to either parent except in accordance with orders of the court, the express written permission of both parents, or both parents signing any and all bank documentation necessary to authorise the release of the passport.
The bank safe deposit be established by the parents as a joint account, and the costs of obtaining and retaining said account be paid by the father.
Should either parent remove [X]’s passport for any reason whatsoever including, but not limited to, overseas travel or identification purposes, that parent shall return the passport to the safe deposit box within seven days of the conclusion of requiring the passport.
Either parent shall be permitted to travel overseas with [X] during the periods of time that [X] is living or spending time with that parent provided that:
(a)the parent wishing to travel provides written notice of intention to travel to the other parent;
(b)such notice is provided not less than 45 days prior to the intended date of departure;
(c)such notice contains a detailed itinerary in relation to the planned travel including flight times and a copy of a return flight confirmation and contact details, including address details and telephone contact details, for [X] during the travel;
(d)any proposed travel with [X] is limited to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, and which are not the subject of a travel warning issued by the Australian government.
Unless otherwise agreed, the parents shall ensure that no other individual is responsible for the collection and/or return of [X] at the beginning and conclusion of each contact period.
THE COURT ORDERS THAT:
[X] live with his mother.
Until the beginning of term 3 in 2011, [X] spend time with his father during term time from after school on Friday until before school on Tuesday in each alternate week.
From the beginning of term 3 in 2011 onwards, [X] spend time with his father during school term from after school on Friday to before school on Wednesday in each alternate week.
[X] have telephone contact between 6.30 pm and 7 pm:
(a)with his mother, when he is with his father, on Monday evenings; and
(b)with his father, when he is with his mother, on Monday and Thursday evenings.
Each parent facilitate the telephone contact between [X] and his other parent and ensure that [X] has privacy during the calls.
[X] spend half the March/April, June/July and September/October school holidays with each parent, with the father to have the first half in even numbered years and the second half in odd numbered years and the mother to have the first half in odd numbered years and the second half in even numbered years.
School term holiday time is to be divided on the following basis:
(a)if [X] is not otherwise living with the parent with whom he is going to spend time in the first half of the school holidays, that parent will collect [X] from the other parent’s residence at 8.30am on day 1 of the school holiday periods;
(b)the parent with whom [X] is spending time in the second half of the holidays be responsible for collecting [X] from the other parent’s residence at 8.30am on the day that falls in the middle of the school holiday period for holiday periods with an odd number of days or at 8.30am on the morning of the first day of the second half of the holiday period for holiday periods with an even number of days;
(c)the parent with whom [X] is spending the second half of the school holidays be responsible for returning [X] to the other parent at 6.00pm on the last day of the school holidays, unless [X] is continuing in that parent’s care;
(d)for the purposes of calculating the number of days in a holiday period the first day after the break up of school is to be regarded as ‘day 1’ and the day before [X] re-commences school as the last day.
Each parent will spend time with [X] during [X]'s December/January school holiday periods as follows:
(a)on a week about basis such that the mother will spend the first week in 2010 and the father the second week in 2010, with the father to spend the first week in 2011 and the mother the second week and this arrangement to alternate on a year about basis;
(b)each party be at liberty to extend one of their week blocks with [X] to a two week block, and, if the other parent agrees, a three week block, in each school holiday period and in this regard:
(i)the party wishing to exercise a two or three week block will advise the other in writing 30 days prior to the time taken;
(ii)the other party will notify the other party in writing of his or her agreement to the three week block within 10 days of the request;
(iii)the other parent will then spend a two or three week block with [X] following the period of time taken by the other parent pursuant to order 34(b) and after that time the time between [X] and the parents will revert to a week about arrangement.
Except where otherwise specified, changeover shall be effected by the parent with whom [X] has been spending time delivering him to the home of the other parent.
In the event that [X] is unable to spend holiday time with his father due to the father’s work commitments, [X] will spend time with his father each alternate weekend during the school holiday period from 6.00pm on Friday until 8.00am on Monday, with the father collecting [X] from the mother’s residence at the start of time and the mother collecting [X] from the father’s residence at the end of time.
In the event that Easter does not fall in school holiday periods, [X] will spend Easter in each odd numbered year with the father and each even numbered year with the mother on the following basis:
(a)if [X] is not otherwise living with the parent with whom he is to spend Easter at the start of the Easter period, that parent will collect [X] from the other parent’s residence at 6.00pm on Holy Thursday; and
(b)if [X] is not otherwise continuing to live with the parent with whom is he to spend Easter following the Easter period, that parent will return [X] to the other parent at 6.00pm on Easter Monday.
On [X]’s birthday, [X] shall spend time with the parent with whom he is not living on that day as agreed and failing agreement:
(a)in even numbered years:
(i)with the mother from 3.00pm until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting [X] from school or the father’s residence and returning [X] to school the next day (or the father’s residence if it is not a school day); and
(ii)with the father from 3.00pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the father being responsible for collecting [X] from school or the mother’s residence and returning [X] to school the next day (or the mother’s residence if it is not a school day);
(b)in odd numbered years:
(i)with the father from 3.00pm until 8.30am (or the commencement of school) the next day with the father being responsible for collecting [X] from school or the mother’s residence and returning [X] to school the next day (or the mother’s residence if it is not a school day); and
(ii)with the mother from 3.00pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting [X] from school or the father’s residence and returning [X] to school the next day (or the father’s residence if it is not a school day);
(c)2010 is to be regarded as an ‘even’ year, 2011 an ‘odd’ year, and so on.
Notwithstanding any other orders included herein, [X] spend time with the mother from 9.00am on Mother’s Day until 4.00pm on Mother’s Day each year, with the mother to be responsible for collecting [X] at the commencement of such time and returning [X] to the father’s residence at the conclusion of this time (if applicable).
Notwithstanding any other orders included herein, [X] is to spend time with the father from 9.00am on Father’s Day until 4.00pm on Father’s Day each year, with the father to be responsible for collecting [X] at the commencement of such time and returning [X] to the mother’s residence at the conclusion of this time (if applicable).
Each parent within 14 days enrol in and complete as soon as possible a post-separation parenting program run by Relationships Australia or such other organisation as offers a similar program.
The parents comply with any reasonable direction of the program
co-ordinator and in particular attend and participate in the program as requested.
For the purposes of the program:
(a)a copy of these orders be provided by the parents to the program co-ordinator; and
(b)the parents be at liberty to supply to the program co-ordinator a copy of any family report that has been prepared for this proceeding.
The husband receive an amount equal to 40% and the wife receive an amount equal to 60% of the parties’ assets and superannuation taking account of the following.
Except as otherwise provided in these orders, the husband retain the following assets and liabilities:
(a)the property situate at and known as Property C;
(b)furniture and chattels at Property C;
(c)the husband's motor vehicle;
(d)the daughter's motor vehicle;
(e)the business conducted by the husband as “[omitted]”;
(f)Company A;
(g)Company D;
(h)all funds in the Bank B Bank Account;
(i)all funds in the Bank B Business Account;
(j)his entitlement in the Bagshot Superannuation Fund;
(k)his Superannuation A;
(l)the husband’s Bank B Mastercard;
(m)the husband’s Bank B personal loan;
(n)the husband’s vehicle loan for the husband’s motor vehicle; and
(o)the husband’s [omitted] loan.
Except as otherwise provided for in these orders, the wife retain the following assets and liabilities:
(a)Property A in the State of Queensland (Property A);
(b)the furniture and chattels in Property A;
(c) the furniture and chattels in Property B in the State of Queensland (Property B);
(d)the wife's motor vehicle;
(e)Company C;
(f)Bank B Business Account
(g)Company B;
(h)Bank A Bank Account;
(i)the proceeds of the action against [omitted];
(j)the mortgage secured against Property A;
(k)Bank A Home Loan Account (1);
(l)Bank A Home Loan Account (2);
(m)the wife’s Bank B Platinum;
(n)the wife’s vehicle loan for the wife's motor vehicle;
(o)the wife’s entitlement in the Bagshot Superannuation Fund.
The husband and the wife do such things, acts and deeds and sign all documents necessary to cause the sale of the property situated at Property B, in the State of Queensland and more particularly described as [omitted], on the following terms and conditions:
(a)the listing price be agreed by the parties and failing agreement as may be nominated by the chief executive officer of the Real Estate Institute of Queensland or his nominee;
(b)a real estate agent be engaged, as agreed by the parties and failing agreement as nominated by the chief executive officer of the Real Estate Institute of Queensland or his nominee;
(c)should the property not sell by private treaty for a period of three months, the said property be sold by public auction unless otherwise agreed by the parties within six weeks;
(d)the reserve price be set by agreement between the parties and failing agreement at a reserve nominated by the chief executive officer of the Real Estate Institute of Queensland or his nominee;
(e)the parties agree upon the auctioneer and in the event that the parties are unable to agree on the auctioneer then the auctioneer be nominated by the chief executive officer of the Real Estate Institute of Queensland or his nominee;
(f)the wife shall allow the husband to inspect Property B at a time agreed between the parties in the next 14 days and the parties shall thereafter confer between themselves as to whether or not any alterations need to be made to Property B for the purpose of sale and, if the parties agree that alterations need to be made to Property B, they shall share equally the costs of any alterations;
(g)the proceeds of sale (whether by private treaty or auction) of Property B be disbursed in the following manner:
(i)firstly, to meet all reasonable costs of sale including agent’s commission, legal fees, auction expenses (if applicable) and payment of all rates, body corporate charges and usual adjustments of sale;
(ii)secondly, to discharge any and all registered mortgages secured over the property;
(iii)thirdly, to discharge the parties’ Bank A line of credit;
(iv)fourthly, to make provision for any capital gains tax payable on Property B; and
(v)fifthly, to the parties, in such amounts as to enable the husband to receive 40% of the parties’ assets and superannuation and the wife 60%, after taking into account the items to be retained by each party.
In the event that the cash amount obtained from the sale of Property B does not meet the husband’s entitlement to 40% of the parties’ assets and superannuation, then the wife pay to the husband at the settlement of Property B an amount to ensure that the husband receives 40% of the assets and superannuation of the parties.
The wife forthwith indemnify and keep indemnified the husband with respect to the liabilities the wife is to retain pursuant to these orders.
The husband forthwith indemnify and keep indemnified the wife with respect to the liabilities the husband is to retain pursuant to these orders.
Upon settlement of the sale of Property B, the wife sign all documents and do all acts necessary to refinance the debts outlined below into her sole name and/or in the name of the companies controlled by the wife and effect a full discharge of the husband’s liability in relation to the debts:
(a)the mortgage secured against Property B Bank A account;
(b)the mortgage secured against Property A Bank A account;
(c)Bank A Home Loan account;
(d)Bank A Home Loan account;
(e)Bank A line of credit; and
(f)the vehicle loan for the wife's motor vehicle.
The wife indemnify the husband in relation to any and all capital gains tax payable in relation to the sale of Property B.
Each party indemnify the other with respect to any expenses, outgoings and liabilities related to those items of property that each of them retains or receives pursuant to these orders.
Except as otherwise provided for in these orders, each party remain individually liable for any taxation liability that may accrue or has accrued up to and including the date of these orders and shall continue to remain individually liable for any such liability accruing thereafter and shall indemnify the other regarding same.
Within 30 days of the date of these orders, the husband and wife do all acts and things and sign all documents as may be necessary to:
(i)instruct and direct the Accountants of the Bagshot Superannuation Fund (the Fund) to do such acts and prepare such documents as is necessary to calculate the net member benefit of the husband in the Fund;
(ii)effect the rollover or transfer of the husband’s entitlements in the Fund to a superannuation fund of the wife’s choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994;
including, but not limited to, exercising a request pursuant to Rule 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994.
That contemporaneously with the rollover or transfer of the husband’s entitlement in the Fund, the husband and the wife jointly instruct the Accountants of the Fund to prepare a valuation of the husband and the wife’s respective entitlements in the Fund.
The value of the husband’s interest in the Fund, as outlined at order 45(j), be that calculated by the Accountant of the fund as outlined in the immediately preceding order and the value of the wife’s interest in the Fund, as outlined at order 46(o), be that calculated by the Accountant of the fund as outlined in the immediately preceding order.
Within 45 days of the date of these orders, the husband and wife shall sign all necessary documents produced by the wife at her expense to:
(a)resign the wife as secretary of the Bagshot Superannuation Fund Pty Ltd;
(b)resign the husband as a director of the Bagshot Superannuation Fund; and
(c)transfer to the wife the husband’s shareholding in the Bagshot Superannuation Fund.
Contemporaneously with the transfer of his interest in the Fund and resignation from the Fund, the husband provide to the wife any and all documents in his power, possession or control in relation to the Fund.
The wife indemnify the husband in relation to all liability arising under any loans and/or guarantees and/or indemnities given by the wife in relation to the Bagshot Superannuation Fund for which the husband may be liable arising from the course of the marriage and forthwith provide a release to the husband from such loans and/or guarantees and/or indemnities.
The husband indemnify the wife and keep her indemnified in relation to all actions, claims or demands by the Commissioner of Taxation in relation to any taxation liability (including income tax, capital gains tax, GST or fringe benefit tax) that the husband may incur by way of assessments, reassessments, penalties or interest or tax however so arising as a result of his/her involvement or association as a director or shareholder or employee of the Bagshot Superannuation Fund.
The parties have liberty to apply.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bagshot & Bagshot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 8245 of 2009
| MR BAGSHOT |
Applicant
And
| MS BAGSHOT |
Respondent
REASONS FOR JUDGMENT
This is an application for parenting and property orders.
The father presented in the witness box as calm and composed. He readily made concessions in appropriate circumstances. His evidence was generally credible and consistent. However, the husband did claim that he gave financial assistance to his daughters from a previous relationship. On examination, he conceded that they are adults, and his assistance actually consisted of money for birthday and Christmas presents.
The mother was by far the most intense person I have ever seen in the witness box. She initially paused for a long time before answering even straightforward questions. However, the mother soon settled in and became animated and argumentative. She sometimes appeared to be trying to overbear counsel for the father. The mother was unable to see the contradictions in her evidence and was often unable to concede obvious points.
I did not find the mother to be an entirely truthful witness. Most blatantly, the mother claimed in her affidavit evidence that, at the time of separation, the debt in the parties’ line of credit stood at about $98,000. However, when presented with the relevant bank statement during cross-examination, the mother initially said that the debt in the line of credit at the time of separation actually stood at about $72,000. When asked to look again at the bank statement, the mother conceded that the debt at the time of separation stood at about $43,000.
The mother’s errors would have been considerably to her advantage, because she had made further withdrawals from the line of credit post separation. It is also relevant in considering the mother’s credibility that the mother described herself as working in the finance industry. One would expect such a person to have no difficulty in reading a bank statement.
PARENTING
Background
The parties have one child, [X], who was born in 2001. [X] is almost nine years old. His parents commenced a relationship in 1995, married in 1999 and separated in 2008, when [X] was seven years old. [X]’s father is working in the legal industry and his mother is working in the finance industry. [X] is in Grade 3 at [omitted] School.
[X] has three older siblings from his father’s earlier marriage. They are [V], who is now 26, [Y], who is now 24 and [Z], who is now 22. When they were younger, they lived with their mother and spent alternate weekends and half school holidays with their father, the mother in this proceeding and [X].
Since separation, [X] has lived predominantly with his mother and spent some time with his father. Immediately after separation in 2008, [X]’s parents made informal arrangements whereby he lived with his mother and spent one or two nights a fortnight with his father. Usually, that meant from Friday to 6pm Sunday with his father. Additionally, [X]’s father would drive him to school on Mondays, Tuesdays and Fridays. [X] also spent a week with his father in Queensland in September 2009.
Interim orders were made by Federal Magistrate Demack on
3 December 2009 pursuant to which [X] was to live with his mother and spend time with his father:
a.from 6pm each alternate Friday until 8.30am the following Monday, until the commencement of term 1 in 2010; and then,
b.from 6pm each alternate Friday until before school the following Tuesday; and
c.for ten days over Christmas; and
d.for half of the term 1 holidays.
[X]’s parents apparently agreed that, additionally, the father would continue to take [X] to school on Mondays, Tuesdays and Fridays. The arrangement for the father taking [X] to school continued until 20 May 2010, when the mother stopped it.
Notwithstanding the orders made on 3 December 2009, the mother told the father in about January 2010 that [X] would have difficulty adjusting to the alternate Monday nights with his father. The father agreed to delay the commencement of [X] spending alternate Monday nights with him until the commencement of term 2 in 2010. [X] currently spends with his father alternate weekends from 6pm on the Friday to before school the following Tuesday.
Proposals
[X]’s parents agree that they should have equal shared parental responsibility for him and consented to a broad array of miscellaneous orders.
The father principally proposed that:
a)until the commencement of term 1 of 2011, [X] live with his mother and spend time with his father from after school on alternate Fridays to before school the following Tuesday;
b)from the commencement of term 1 of 2011 until the commencement of term 1 of 2012, [X] live with his mother and spend time with his father from after school on alternate Fridays to before school the following Wednesday;
c)from the commencement of term 1 of 2012 until the commencement of term 1 of 2013, [X] live with his mother and spend time with his father from after school on alternate Fridays to before school the following Wednesday;
d)from the commencement of term 1 of 2013, [X] spend alternate weeks with each of his parents.
However, during the course of the hearing, the father accepted that [X] has various stresses at the beginning of the school year and, accordingly, it would be easier for [X] if the increases in his time with his father occurred mid-year. The father amended his proposal accordingly.
The mother principally proposed that [X] live with her and spend time with his father during school terms from after school on alternate Fridays to before school the following Tuesday.
The issues
The principal issues in the matter are:
a)[X]’s learning difficulties and how they can best be managed;
b)the positive and negative aspects of the relationships between [X] and each of his parents;
c)whether the mother genuinely encourages [X]’s relationship with his father; and
d)the avoidant relationship between [X]’s parents.
The family report
Mr M prepared a family report dated 29 March 2010. He conducted interviews on 15 March 2010. Mr M noted that:
a)[X]’s parents agreed that [X] has learning difficulties, but appeared to disagree on the amount of support [X] needs;
b)the father considered that [X] was a “Mum’s boy” and his relationship with his mother was too close;
c)the father considered that he and [X] always had a good time together, although [X] was sometimes initially aloof;
d)the father anguished over whether an increase in his time with [X] might distress him;
e)the mother said that she spent over two hours each day helping [X] with his home work;
f)the mother said that [X] was scared of his father and hates visiting him;
g)the mother said that she was entirely supportive of [X] spending time with his father.
Specifically in relation to [X]’s learning difficulties, Mr M noted:
53.Ms Bagshot maintains that [X] requires almost constant stimulation and assistance with his homework. She states that she does up to two hours per day extra work with him just to get him at a functioning level, and that both she and [X] are proud of the fact that he received Cs for his last report card, this being a significant improvement from previously.
…
56.Mr Bagshot maintains that he can provide [X] with equal help with his schooling although he was not in complete agreement that that amount of time was necessary for [X]. He conceded that he finds it difficult to be authoritative with [X] as the time with him is limited to weekends and it doesn’t involve after school. He feels that [X] needs to develop more independence, citing a comment from [X]’s teacher that this should occur. Nevertheless, he agrees that ‘I think he needs a lot of support, learning support’.
Mr M’s observations of [X] were as follows:
38.[X] attended the interviews with his mother. He was generally happy and boisterous in his manner. In his language he appeared to attempt to use words that he sometimes didn’t understand and his mannerisms were often exaggerated.
39.Comparing the content of his speech with his behaviour was often difficult, particularly in relation to [X]’s expressed views about his father.
40.[X] was anxious to speak about the subject of his relationship with his father. He is very aware of the dispute and the nature of the Court involvement.
41.[X] said that he goes to his father’s place and ‘has a good time but then I want to come home. Every child that is in me and mum’s situation would want to do that’. He rings his mother on the phone and asks her when he can come home and sometimes he cries. He misses his mother when he is away from her but he does not miss his father.
42.Gleaning an explanation of this perception from [X] was difficult. He perceives his father as ‘just a mean person to me and mum’. Asked how he thought that his father was mean to his mother, he said ‘[First name omitted] has responsibility and now he has given up those responsibilities to pay for half of my school fees for which he is not’. He said that he liked to call his father ‘[First name omitted]’, rather than Dad, as he did not think he was like a father. Separately Ms Bagshot told me that she always corrected [X] on this.
43.Asked if he knew what the word “responsibility” meant, [X] said that he thought that it meant that you have to look after the family. He went on to exclaim ‘why can’t he just let us be, he is trying to bully me and mum’. He listed off on his fingers in a dramatic fashion his complaints about his father, these being (1) treating mum badly; (2) treating me badly; and (3) calling me names. He said that his father had called him a moron.
44.He has some vague memories of his parents before they separated which was ‘they always yelled at each other’. He knew about the subject of the school fees because his mother had told him and this correlated with the sense that his father doesn’t treat his mother well.
45.He says that he is very scared of his father as ‘he has this really angry voice when he gets angry’. Asked about when his father had last got angry at him, he recalled the previous weekend when they had been at a skating rink and [X] had told his father that he was going off to catch one of the fastest skaters and his father got mad at him and told him not to. When this was later raised between [X] and his father, [X] laughed about the incident and it was apparent that this father hadn’t said anything as such to him.
46.Although he is scared of his father he told me that he has (sic) does not do what his father tells him to do. In his interaction with his father his behaviour was relaxed and boisterous; there was no sign of any anxiety.
47.His father doesn’t speak to him about his mother but he is aware that his mother feels it is ‘all just bullshit, if dad wants me so badly why can’t he just take me to dinner and bring me home to mum’, this seemingly representing his view with a mixture of his mother’s.
48.He is aware that his mother gets very upset; he stated ‘she just says I know how you feel’. His perception is that ‘mum doesn’t want me to spend time with dad because she is fighting (against that)’. He believes that his father wants him to spend from Friday to Thursday and his mother is ‘fighting that’. He then changed tack, saying that his mother did want him to go but she didn’t want to force him to go because ‘I hate going’.
49.He complained that his father left him alone at home and ‘the judge says don’t leave me at home and where does he go’. He says that he hears footsteps and believes that his father is not there so he rings his mother. It is not clear that he is ever aware that his father has actually left. His father denies this.
50.Observed with each of his parents, [X] behaved very differently to what his comments indicated. With his father he was active and responsive and also affectionate. Over the period that I was interviewing his mother and over later times throughout the day all that I could hear and see from his interaction with his father was laughter and [X] apparently having a good time.
51.In an interview with his father, which included a discussion of how they spent their time together, it was clear that they spend it mostly doing things that [X] wants to do, mainly skating. His father goes skating with him, they skate together and they generally have a full weekend. [X] is apparently quite fixated on skating and doesn’t want to do anything else.
52.With his mother he was overtly affectionate. He displayed less robust behaviour with his mother but closely related to her and it was obvious that they have a close relationship.
In his conclusions and recommendations, Mr M said:
63.The question of what level of support [X] requires is separate to the fact that Ms Bagshot is intensely involved in all aspects of [X]’s care and seemingly spends most of her waking hours helping him in some way. It is my view that she prefers it this way. The natural result of this is that she and [X] have formed a very intense bond. Either as a result of this, or also because of boundary problems in this relationship, [X] has adopted a position that is emotionally akin to his mother’s.
64.It was noticeable that the pronounced rejection of his father by [X] did not correlate with his behaviour. This behaviour was positive and involved, and his affection for his father was difficult for him to hide in that context. I did form the view that [X]’s relationship with his father revolves too greatly around special activities rather than the everyday routines that form the bulk of normal parenting, but the comments about his father and the degree to which he attempted to reject him were – in my view – artificial. The relationship that they have developed in this context lacks normalcy and would be fragile over time if continued in such a vane.
65.My view is that the time which [X] currently has with his father is minimal and does not reflect his best interests in developing a more normal and sustainable bond. It is notable that changes to [X]’s routine will invariably cause him distress as such changes are not consistent with his wishes, he is an only child, and he has an intense bond with his mother, who is – at the least – ambivalent about the changes. It is also a consideration that his developmental problems make it more difficult for him to cope with stress partly due to his frustration intolerance. I think that this is an issue in Mr Bagshot’s mind and the reason that he agreed to delay the current order.
66.It is my view that a shared time arrangement would be too much for [X] – for the reasons mentioned above – but also due to his level of confusion and the lack of continuity available for him between his parents. I think that the current Order does reflect a needed balance wherein four days per fortnight with his father allows him time to develop their relationship around a normal schedule.
67.One difficulty is that [X] will oppose this Order – as he has already done – and that it is now made more difficult by the fact that the parents have since retreated from it. Nevertheless, I am of the view that this arrangement should occur irrespective of his short term reaction, and hopefully with the support of both parents to ensure it causes the least short term distress possible. His father collecting him from school on the Friday and returning him to school on the following Tuesday (on alternate weekends) may be a preferable arrangement.
In summary, in his written report, Mr M recommended that [X] spend four nights a fortnight with his father, as the mother proposed.
The family consultant’s oral evidence
Mr M was cross examined by counsel for each of [X]’s parents.
Mr M said in oral evidence that [X]’s relationship with his father, as demonstrated in the interview, was significantly better than [X] had described it.
In relation to the “boundary problem” mentioned in the written report, Mr M said that many of [X]’s stated views coincided with his mother’s although she denied having influenced him. Mr M considered that the most concerning feature of the “boundary problem” was the anxiety that [X] exhibited about going to see his father. If the “boundary problem” continued, Mr M considered that it would be very difficult for [X] to have “proper relationships with both of his parents”.
Mr M considered that [X] “liked the attention” that resulted from him complaining to his mother about the worst aspects of his time with his father. Mr M considered that [X]’s anxiety was not based on his time with his father, but the stress of handover. Mr M considered that it would be in [X]’s best interests for both of his parents to genuinely give him permission to enjoy his time with his other parent.
Mr M said that the father was sensitive to [X]’s needs in agreeing to delay the introduction of the alternate Monday nights.
Mr M said in oral evidence that the father’s proposal of [X] spending gradually increased amounts of time with him could work, provided that there were improvements in the parents’ communication with each other, improvements in their relationship, and the four nights a fortnight was established as a base. Mr M agreed that the numerous orders that [X]’s parents consented to were a promising marker for their future ability to successfully co-parent [X]. Mr M said that to make any arrangement work, and for [X]’s best interests in the future, his parents needed to be able to sit down and talk to each other, parent [X] authoritatively, take positions jointly and “realise maturely” that they “need to sit down and work it out”.
Mr M agreed that, because of [X]’s intolerance of frustration, change needed to be managed more carefully for him than was usually the case.
The mother’s counsel asked Mr M whether it was necessary to “get right” the amount of homework [X] was doing in his father’s household, before [X]’s time with his father was increased. Mr M said:
Well, in terms of the amount of work, … the mother was saying at least two and a half hours a day with him … I don’t know how much of that was core work that should be done and how much of it is extra work that she feels should be done …
I would think that the father, having had lesser contact before with [X], would be struggling with that amount of work at this juncture … .
… their relationship up until now … has often been based around fun things … they need to try to develop a more normalised parenting arrangement … I do think, though, for most parents, having an eight year old doing over two hours a night would be onerous for any parent …. (emphasis added)
Mr M was asked about [X]’s distress that had been described by his teachers. Mr M said that [X]’s concept of his father was very negative, so it was unsurprising that [X] would say negative things about spending time with him. However, Mr M said that, from his observations, [X]’s relationship with his father was actually very positive. Mr M considered that the recent increase in [X]’s time with his father might have caused him some anxiety, which needed to be handled sensitively by his parents.
Mr M said that one of the most important things for [X] was that his parents jointly gave him single messages, both through their words and their actions.
Mr M said that he had not changed the opinions expressed in his oral report. More particularly, he said that a shared time arrangement would be too much for [X] at present.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
[X]’s parents do not dispute that it is in his best interests to have a meaningful relationship with each of them. It is obviously integral to [X]’s happiness, and to his proper emotional and psychological development, that he is able to have a meaningful relationship with each of his parents.
Mr M observed that [X]’s three nights a fortnight with his father were “minimal” and did not permit the development of a more normal and sustainable bond. Mr M considered that [X]’s relationship with his father lacked the normality that arises from sharing everyday routines, rather than just the fun times, and would be fragile if allowed to continue on the same basis. Clearly, in Mr M’s opinion, it is necessary for [X] to spend more than three nights a fortnight with his father in order for them to have a meaningful relationship.
There was no dispute that [X] has a meaningful relationship with his mother. It seems clear that their relationship would not be harmed by a reduction in the time that they spend together.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father argued that [X] was at risk of psychological harm if he continued to spend the majority of his time in the mother’s care. This was because of the “very intense bond” and the “boundary problem” identified by Mr M that led [X] to adopt the mother’s very negative views of his father.
It is clear from Mr M’s evidence that [X] suffers from anxiety. Mr M considers [X]’s anxiety is caused by his parents’ approach to changeover, rather than because of the nature of the relationship between [X] and his father. More particularly, it can be inferred that [X]’s anxiety is the result of him adopting his mother’s very negative view of his father, and feeling that his mother requires him to demonstrate to her (especially at changeover) that he has a negative view of his father. [X]’s actual feelings about his father are characterised by humorous and boisterous play. Naturally, the gulf between [X]’s actual feelings for his father, and the feelings he perceives that he is obliged to express, lead him to feel anxiety, and could, ultimately, cause him to suffer long term psychological damage.
The mother concedes that the father would never intentionally cause [X] physical or psychological harm. However, the mother maintained that the father had called [X] a moron. The father denied that. I prefer the father’s evidence. For reasons explained elsewhere, I found the father to be a more truthful witness than the mother.
The mother also sought, under this heading, an order that the father complete certain remedial work and specified extra-curricular activities with [X]. This question is dealt with below, in the context of [X]’s intellectual needs.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] has expressed strong views, to Mr M and to his mother and father, to the effect that he would prefer to spend less time with his father. The mother reported that [X] had gone so far as to say that he wished his father had an accident and died. The father himself said that [X] gave him a note, in the middle of a telephone conversation with his mother, in which [X] said:
I like spending time with you, but at the end of the day I just want to go home.
However, the observations of [X]’s interaction with his father present a very different picture. They show [X] being active, responsive and affectionate with his father. [X] himself said that he really enjoys skating with his father, which is an activity that they share often. During the interviews with Mr M, he observed that:
… throughout the day all that I could hear and see from his interaction with his father was laughter and [X] apparently having a good time.
… his affection for his father was difficult for him to hide ….
Taking the family report and the other evidence as a whole, it seems clear that [X]’s stated views are not his real views. The reality is that [X] has a lot of fun with his father. They enjoy each other’s company and they share a warm and loving bond.
As stated above, because of the intense bond [X] has with his mother, the boundary issues identified by Mr M, and the antipathy that the mother feels for the father, [X] feels obliged to say things to his mother about his father that do not reflect [X]’s real experience or real feelings.
Accordingly, I do not consider that any weight should be given to [X]’s stated views. On the contrary, I consider that considerable weight should be given to his actual view, namely, that he has a great time with his father.
I note at this point that the parents have given too much weight in the past to [X]’s stated views, as opposed to his real views. Federal Magistrate Demack ordered on 3 December 2009 that, commencing at the start of term 1 in 2010, [X] should spend with his father from Friday after school to Tuesday before school in alternate weeks. The mother claimed that [X] was distressed at that prospect. She persuaded the father in January 2010 that the increase in [X]’s time with his father should be delayed.
When the family report was released at the end of March 2010, the parties saw that Mr M had said that the then current arrangement of three nights a fortnight was minimal and did not reflect [X]’s best interests in developing a more normal and sustainable bond with his father. Shortly afterwards, the parties agreed to introduce the four nights a fortnight, in accordance with Mr M’s recommendations.
In paragraph 67 of his report, Mr M identified the problem that had been created by the parents yielding to [X]’s stated view, as opposed to his real view, in January 2010.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[X]’s relationship with each of his parents has already been discussed to some extent. However, it is very important to note at this stage that the family report referred to the “boundary problem” in [X]’s relationship with his mother that had resulted in him adopting a position that was emotionally akin to his mother’s. When asked what she understood by that, the mother said that the father was not a good communicator.
After several questions, the mother said that she had not understood the family report to say that she had boundary problems with [X]. She then denied that she had boundary problems with [X] and said that the family report was wrong to say she did. She said that, even though Mr M has a certain expertise, he had not seen [X] and her at home on an everyday basis.
The mother persisted in her denials, even after the family report was explained to her in some detail, that she has a boundary problem with [X]. However, the mother did accept that [X] had got from her the following words that he said to Mr M:
[First name omitted] has a responsibility and now he’s given up those responsibilities to pay for half my school fees, for which he is not.
It was also put to the mother in cross-examination that [X] in effect took it upon himself to run his mother’s case before Mr M. The mother denied that [X] was “running her case” before Mr M, notwithstanding the numerous statements [X] made to Mr M that coincided exactly with the mother’s perception of the case.
I accept Mr M’s evidence that there is a boundary problem in the relationship between [X] and his mother. It seems to me that the boundary problems in [X]’s relationship with his mother are causing considerable difficulty in [X]’s relationship with his father, and, as a result, considerable difficulty for [X].
The mother adduced oral evidence from various people at [X]’s school. The mother maintained that this evidence showed that [X] was distressed at the prospect of spending time with his father. However, in view of the family report, it seems that, in reality, [X] is distressed and anxious about changeover and distressed as a result of the boundary issues with his mother.
The father claimed that [X] has a close and loving relationship with his three half sisters. They have dinner together each Sunday that [X] spends with his father. However, the mother said that [X] told her that he does not really like them because of the way they treated the mother.
I consider that it is very much in [X]’s best interests that he have a warm and loving relationship with his half sisters. I consider that [X]’s negative comments about them, if he actually made them, have the same source as the negative comments about his father. That is, [X] feels that he has to say bad things about his paternal relatives to please his mother.
The father said that [X] has a good relationship with the paternal grandmother, who he sees in Queensland every eight weeks, and who he speaks to on the telephone each time he is with the father. The mother conceded that [X] has a reasonably good relationship with his paternal grandmother.
For her part, the mother said, and I accept, that [X] has a good relationship with all of her friends who have become family.
All in all, it is obviously in [X]’s best interests to have good relationships with as many people as possible, but, most importantly, with all of the members of his family.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There is no doubt that the father is willing and able to facilitate and encourage a close and continuing relationship between [X] and his mother. Having said that, any increase in [X]’s time with his father will necessarily reduce [X]’s time with his mother. There is no reason to suppose, however, that a reduction in the time [X] spends with his mother would adversely affect their relationship.
The mother claimed to Mr M that she has done everything humanly possible to facilitate and encourage a close and continuing relationship between [X] and his father. However, this claim is undermined by [X]’s statements to Mr M. Clearly, the mother has shared with [X] her views about the father and his actions. [X] has to an extent absorbed the mother’s views of the father, and this has led to [X] expressing resistance to spending time with his father. It has also led to [X] suffering considerable anxiety at changeover. None of this amounts to a genuine willingness and ability on the mother’s part to facilitate and encourage a close and continuing relationship between [X] and his father.
Consistent with that pattern is the mother refusing in May this year to allow the father to take [X] to school on Mondays, Tuesdays and Fridays. Although the mother said this was the result of [X]’s discomfort which was caused by the father, it is apparent from the family report that the real source of [X]’s discomfort is the mother’s extreme negativity towards the father.
In cross-examination, it became apparent that when the mother said that the father could spend time with [X] whenever the father wanted, she meant that the father could spend time with [X] on her weekends if he wanted. The mother remained strongly opposed to [X] having overnight time with his father before a school day. The mother admitted that she had only reluctantly agreed, in the context of the family report, and the orders made on 3 December 2009, for [X] to spend alternate Friday, Saturday, Sunday and Monday nights with his father.
The mother also maintained that the father had only recently become interested in spending time with [X], even though the father filed his application in November 2009. The mother claimed that the father did not genuinely want to spend time with [X], but was financially motivated. I do not accept these arguments. The father’s words and actions all seem to me to indicate that he has a genuine wish to spend additional time with [X], without any ulterior motive.
It is also of great concern that [X] does not call his father “Dad”, or any such thing in the mother’s presence, but calls him [First name omitted]. The mother should not have allowed this practice to develop. It undermines [X]’s relationship with his father, and the father’s role in [X]’s life. The mother should ensure that [X] immediately starts to call his father “Dad”, or a similar name.
The mother seeks orders that each parent be able to telephone [X] at any reasonable time. In normal circumstances, such an order could be expected to be complied with in a reasonable way. However, in view of the intensity of the relationship between the mother and [X], such an order is liable to be abused. For example, the father said that [X] and his mother generally speak twice every day for up to
30 minutes when [X] is in the father’s care. This is excessive.
The father also said that on 16 May 2010, [X] was speaking to his mother by telephone at 8.30pm. The father asked him to say goodnight to his mother as it was time to go to sleep. [X] handed the telephone to his father. He told the mother it was time for [X] to go to sleep and terminated the call. [X] said he had not been able to say his prayers with his mother and started crying. The mother called back. They said prayers together and the call was then terminated.
When [X] is with his father, the father should be attending to day to day matters such as settling [X] for bed and saying prayers with him. The whole point of [X] spending time with his father is to allow the father and [X] to have ordinary day to day time together to enable them to develop and maintain a meaningful relationship. The mother should not interfere.
The mother sought an order that the parties should have appropriate regard to any wishes [X] expressed about spending time with either of his parents. The mother said that the proposed order did not mean that [X] would not have to go to his father if he did not wish to. However, the proposed order would clearly give a foundation for such a result. In the context of this case, such an order could prove disastrous.
It is also noteworthy that, when discussing the proposed order, the mother said twice that the existing orders are “very harsh”. That is clearly the mother’s real view of the existing orders, notwithstanding that they reflect the considered view of Federal Magistrate Demack and the considered view of an experienced family report writer.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The changes that the father proposes are gradual, namely, an extra day each year, starting mid-year, until equal shared care is achieved. The father maintains that [X] has now adjusted to spending the extra day a fortnight with him, and could be expected to similarly adjust to spending an extra day a fortnight with him each year.
Mr M said in oral evidence that [X] could benefit from such a regime, if his parents’ relationship and communication improved, and if the four nights a fortnight was established as a base. It seems that the four nights a fortnight has now been established, but the parental relationship and communication is still vexed.
The mother claimed that any increase in [X]’s time with his father would adversely impact on his emotional and academic development. This issue is discussed below, in connection with [X]’s needs.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
[X]’s parents live within a few minutes drive of each other.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
[X]’s parents agreed that he has some particular intellectual needs arising from his ongoing learning deficits. Having said that, [X] is in a mainstream school and has recently achieved grades of about a C average.
[X]’s learning deficits, and the management of them, were central to the mother’s case that [X] should not spend additional time with his father. Basically, the mother argued that the father could not or would not give adequate assistance to [X] with his therapeutic work, and she had given [X] enormous amounts of assistance in the past and would continue to do so in the future.
The father conceded that some degree of therapeutic work was very important for [X], but that he had difficulty persuading [X] to do the amount of work the mother prescribed. He said that he had taken steps to address the problem, consisting of speaking to [X]’s teacher. The father said that he was unable to exercise discipline over [X] because whenever he tried, [X] would complain to his mother and she would support [X]. The mother conceded, when pressed, that [X]’s relationship with his father might be more important than doing some homework.
The mother sent the father an email (exhibit 1) containing the therapeutic work and the usual homework she required the father to do with [X]. It was undated but apparently related to a period when [X]’s time with his father had just increased to the four nights a fortnight. It contained the following, with, as I understand it, the father’s annotations about what he and [X] had done:
Weekend Recount
1.A processing exercise for [X] in preparation for the school recount which is generally done at the beginning of the week in class. He has to write about something that he did or enjoyed over the weekend. He needs to write a heading, sentences and paragraphs.
This wasn't done although we discussed what he might write.
Why is Australia a great place to live?
1.Australian Places crossword puzzle no
2.Australia Anagram no
Muddle Heads
1. Letter Hunt no
2.Spot What's the Same no
Accelerated Reading (AR)
1.Prue Theroux - The Cool Librarian - Please make sure that [X] has read and understands this book by asking him lots of different questions for his comprehension quiz. This quiz is known as the AR Quiz and you'll need to take [X] to the Library after school on Monday so he can complete this on his own (I tend to step away so he can't ask me questions). We have read this book but you will need to get him to re read and ask him a bunch of questions from the book. yes
2.Hopper Hunts for Spring - please make sure that [X] had read and understands this book in readiness for when I pick him up on Tuesday afternoon to complete his second AR Quiz. yes
3.[X] has generally been achieving between 80 - 100% on these quizzes so please ensure that he maintains this level otherwise he will not be able to progress to the next level of reading. He got 100%
Mathletics
1.One to two quizzes to be completed morning and afternoon. Yes
AR Reading
1.A minimum of 15 minutes of reading morning and afternoon. yes
Homework Grid - Week 2
1.We start with the Spelling List and [X] must complete writing the two columns and then you need to test him on those words and make sure that he understands what the word (sic) are and the context that they are used. yes
2.Also you will need to pick some words (five) at random from the back of his homework book (180 word list) to maintain his knowledge of those. yes
3.We then complete the Monday and Tuesday columns of the maths sheet. No not sure what maths sheet you were referring to
4. Complete the Write a story component of the fortnightly grid. no
5.Complete the 3 things you would like to learn about in Science this term component of the fortnightly grid. no
6.Practise 3 x tables. yes
7.Revise 1,2 and 5 x tables. yes
Speech Pathology
1. Complete A is for?? sheet. no
2. Complete Give 'em the Boot sheet. no
Viola
1.[X] needs to take Viola to school for Monday afternoon's class lesson. yes
2.Needs to refresh practise for Now Compose Your Own as he will need this for Monday afternoon's lesson.
3.Complete Open Strings on the Viola sheet so we can have the rest of the week to practise it. no
4.Needs to complete 10 minutes of viola plucking daily but will need more time to learn new song. no
Piano
1.Learn second part of Edelweiss in Popular Piano Solos (page 9). yes
2.In orange AMEB book (for music exams) practise James Bond (page 20). yes
3.Learn new song called Safari (page 15). yes
4.Practise scales in C Major and G Major (make sure he uses the correct fingers for each of the ascending and descending notes otherwise he will be marked down). yes
5.We generally have Note Speller (theory) homework as well but since first week back [name omitted] was considerate!! We also would have had one more new song to learn but she was pleased with the work that [X] did over the holidays!!
6.[X] needs to practice a minimum of 20 minutes both morning and afternoon/evening and please record this practice time in his music book. yes
7.New song learning needs to be completed over the weekend
The father said that, while he and [X] managed to do some of the therapeutic work and homework required by the mother, [X] was resistant and, in any event, the regime the mother required was oppressive. The father accepted that [X]’s therapeutic work and homework were important for him but also submitted that academic achievement is only one part of a good and balanced life.
The mother adduced expert evidence, in the form of reports from an occupational therapist, an audiologist, a speech pathologist and a psychologist. The reports were exhibited to the mother’s affidavit filed on 20 October 2009. The authors of the reports did not swear affidavits themselves. In any event, their evidence was not questioned.
However, there was no expert evidence about why all of the particular tasks specified by the mother in her email were necessary, or whether they all had to be done routinely, or what the consequences would be if some or all of them were not done from time to time, or how [X]’s limited time should be shared between academic pursuits and other pursuits that are important for his proper development, such as socialising with peers, having fun and having down time to reflect or engage in activities of his choice.
Mr M alluded to this gap in the mother’s evidence when he said in oral evidence, when being pressed by the mother’s counsel about the importance of [X]’s therapeutic work, that:
Well, in terms of the amount of work, … the mother was saying at least two and a half hours a day with him … I don’t know how much of that was core work that should be done and how much of it is extra work that she feels should be done …
I would think that the father, having had lesser contact before with [X], would perhaps be struggling with that amount of work at this juncture … .
… [the] relationship [between [X] and his father] up until now … has often been based around fun things … they need to try to develop a more normalised parenting arrangement. I do think, though, for most parents, having an eight year old doing over two hours a night would be onerous for any parent …. (emphasis added)
Because [X]’s therapeutic work was so central to the mother’s case, I will deal with the expert evidence she adduced in some detail.
[X] was referred by his teacher at five years of age to an occupational therapist, Ms W. Ms W assessed [X] on 16 May 2007 and again on
3 December 2007. His parents were still together at that stage. Neither of them had detected that [X] had any developmental delays.
In her first assessment, Ms W described [X] as a confident and talkative child who easily developed a relationship with the therapist, though he occasionally became distracted. She said he had a “chatty personality”. Ms W found that [X] had below average short and long term auditory memory. She said such children find it difficult to recall spoken information such as discussions and instructions. Ms W recommended that parents and teachers use strategies such as getting [X]’s attention before attempting to give him instructions.
Ms W also found in her initial assessment that [X] had slightly below average fine and gross motor skills, low muscle tone, reduced proprioception (that is, the unconscious awareness of where one’s body is positioned in space, without visual cues) and below average visual perception (that is, the ability to understand and interpret what is seen). These deficits were associated with such things as [X] tiring easily during desk work, slouching at his desk, having difficulty controlling his pencil movements, reversing letters, and having difficulty with positioning letters on the page.
Ms W also noted that [X] had limited skills with scissors. The mother told Ms W that [X] had not used scissors before starting school. The mother told Ms W that [X]’s parents had often completed tasks on his behalf. The mother also told Ms W that [X]’s difficulties with kicking and catching balls may have resulted from lack of exposure to those tasks, as his sports were golf, tennis and swimming.
Ms W recommended that the set up of [X]’s desk be addressed in specific ways, that he do finger exercises as writing warm ups, that he do certain exercises to improve his muscle tone, and that he use songs associated with each letter to improve his letter formation. Ms W also recommended that [X] spend more time kicking, throwing and catching balls, and that he practise putting his body in different positions. Ms W said this could be achieved by formal activities such as soccer and karate, or just through playing at home or in the local park. Ms W also recommended that [X] undertake four to six occupational therapy sessions.
A speech pathologist, Ms P, provided an assessment following testing of [X] on 17 October 2007. Again, [X] was referred by his teacher. His parents were still together at that stage.
The mother reported to Ms P that Ms W’s recommendation in her first report of a short burst of weekly occupational therapy had not been taken up at that stage. The mother also said that [X] had a mild stutter but she expected him to grow out of it. The mother said that [X] had been overprotected and may be a bit slow in his development but she expected him to catch up. She was concerned about the impact of him being singled out for therapy.
Ms P described [X] as quite talkative and well mannered. She said he appeared to undertake all tasks in the test to the best of his ability and responded well to encouragement and praise.
Ms P noted that [X] had a stutter but was able to speak fluently when shown smooth speech in a singing voice. Ms P also noted that [X] substituted /f/ or /v/ for /th/ and /w/ for /l/ and /r/ but was quite intelligible.
Ms P considered that [X]’s speech was average in some areas but that he lacked rhyme awareness, which could affect his literacy. Ms P said that [X] might need specific therapy support in literacy areas, but did not give details.
Ms P said that [X] had difficulty understanding longer sentences with more complex linguistic concepts and grammatical structures. She also said [X] had difficulty interpreting everyday language, applying rules of grammar and recalling sentences.
Ms P said that [X] would benefit from:
a)concept and vocabulary development;
b)“grammatic language skills”;
c)phonological awareness and phonemic awareness/phonetic production training;
d)introduction and monitoring of smooth speech; and
e)an auditory processing assessment.
Ms P’s recommendations were at a high level of generality. She did not descend to the level of detail that the mother’s email provided. Ms P did not say, for example, which tasks should be performed, how often they should be performed or what the consequences would be if they were not performed. Moreover, the recommendations were made more than two years ago. That is significant, given that [X] is not yet nine years old.
In her second report, based on an assessment on 3 December 2007, Ms W noted that the mother had worked with [X] on his letter and numeral formation and scissor skills. He had achieved the desired pencil grip and age-appropriate hand-writing. [X]’s use of scissors had improved, he was not slouching so much and his drawing had improved. For further improvement, Ms W recommended games such as Pictionary. Overall, Ms W considered that [X]’s involvement in swimming and circus skills had improved his core stability, and he was no longer at risk of motor difficulties.
Ms W also noted improvements in [X]’s visual perception, from the ninth to the thirteenth percentile. Ms W considered this to be significant. For further improvement, Ms W recommended games such as Where’s Wally and puzzles.
Ms W noted that the mother reported that [X] was doing better with organising himself in the morning, and the mother was more inclined to allow [X] to complete tasks himself. For further improvement with his organisational ability, Ms W recommended that [X] use a visual checklist of the various tasks that he needs to complete to get ready in the morning.
Ms W said that [X] still had deficits with his visual perception and visual memory. She recommended a multisensory approach (tactile, pictures and rhymes) to make learning new visual information easier for him. Otherwise, Ms W recommended that [X] continue with his organised activities (swimming, circus and so on) to continue developing his gross motor skills.
It is not clear that Ms W’s recommendations coincide with the program stipulated by the mother in her email. In any event, Ms W’s recommendations are now two and a half years old.
An audiologist, Ms F, provided a report dated 28 September 2009. [X]’s parents had been separated for about 10 months at that stage. Ms F said that [X] presented as a friendly, attentive and well-behaved young boy. She said that [X] had normal hearing but central auditory processing difficulties. Ms F said that children with such difficulties were likely to have difficulty understanding speech when there was competing background noise, or the speech was unclear or accented. Consequently, they may give inappropriate responses or not understand the tasks assigned to them. They may also suffer from auditory overload and fatigue, and display boredom and inattention. Such children perform best in quiet environments and where visual or multimodality cues are provided.
Ms F made various recommendations that concerned reducing the effects of competing noise, such as [X] sitting near the front of the class and away from air conditioning units, getting his attention before giving instructions, and repetition.
A psychologist, Ms R, assessed [X] on 19 June 2009. She found that [X] had average verbal comprehension, extremely low perceptual reasoning, low average working memory, extremely low processing speed and borderline overall intelligence (third percentile). Ms R considered that [X]’s overall intelligence score was not reflective of his actual intelligence. Ms R noted that her findings in relation to [X]’s verbal comprehension seemed contrary to the 2007 assessments, but attributed the improvement to the work done by
Ms P and the mother.
Ms R considered that [X] had poorer attention than would be expected for his age and ability level. Ms R recommended that [X] continue to work with Ms P, and recommended that the speech and language assessments be repeated in the near future. There was no evidence that those assessments have been repeated. Ms R said that [X] may benefit from learning strategies to assist him in pattern recognition, sequencing, discriminating key elements in a picture and noticing differences. Ms R also recommended that “key figures in [X]’s home and school environments use similar strategies to assist his learning.”
It is obviously in [X]’s best interests that he is supported in his learning. However, as I have indicated, it is not at all clear that the regime put forward by the mother in her email to the father has the approval of a qualified expert. More particularly, there is no expert evidence that deals with the question of whether the regime proposed by the mother is excessive or essential or somewhere in between. Accordingly, I am unable to conclude that the father’s inability to finish all of the tasks stipulated by the mother would be detrimental for [X]. Clearly, [X] has limited time, and many things to do to ensure that he has a good and balanced life.
Following the hearing, I invited the parents to file and serve written submissions on whether telephone contact should be confined to between 6.30pm and 7pm twice a week, when [X] is with his mother, and once a fortnight, when [X] is with his father. The parties filed and served written submissions. The father supported the court’s proposal, largely on the grounds that excessive telephone contact between [X] and his mother compromises [X]’s relationship with his father. The mother opposed the court’s proposal, largely on the grounds that frequent telephone contact was necessary to help manage [X]’s anxiety.
The mother claimed that Mr M had said at the trial that:
I think that anxiety is a feature, maybe the handover or perhaps some telephone calls but I’m not entirely sure about that.
The mother submitted that the court should place no weight on this evidence as Mr M was unsure where the anxiety had come from.
In fact, pages 116 to 117 of the transcript shows that Mr Jordan and Mr M said the following:
… anxiety is not the feature upon which this report rests in the same way that it might have been at first glance?‑‑‑Yes. I think anxiety is a feature but I think it’s a feature of the stressful points of the child’s arrangements, and those stressful points are the handover.
Yes?‑‑‑I’d say that would be the main stressful point, and perhaps some telephone calls – I’m not entirely sure about that. But the actual substantial part of his time with each of his parents, I think, is natural and robust and he appears to enjoy different aspects of each of them because they are different personalities and [X] is an only child. So I think the way he interacted with his father was a bit different to the way he interacted with his mother. He was rougher with his father – physically rougher.
So, Mr M, might it not be that if the mother was to give emotional permission for [X] to go and have a good time, not just mouth the words but actually live that talk, that [X] really might be able to manage this situation a whole lot better than he currently appears to be from the mother’s perspective, because the father says he doesn’t have problems?‑‑‑I think if the parents were able to send a message to [X] that they’re of the same mind about what’s best for him and that message was consistent over time and that there was no implication or inference that they didn’t actually think that, that would be the best thing for [X]. I think perhaps for [X], he perceives double messages about what his parents might think about each other, and that is confusing and causes anxiety for him and he’s inclined to think the worst of his father because of that.
Contrary to the mother’s submissions, Mr M was not unsure about the majority of the causes of [X]’s anxiety. Mr M said very clearly that handover and mixed messages from [X]’s parents about what they think of each other caused [X] anxiety. Additionally, Mr M initially said that telephone contact was perhaps a stressful point for [X], but then said that he was unsure about that. It is worrying that the mother continues to see the evidence in this case entirely from her own perspective, and recasts the evidence to suit her own perspective.
The clear inference from Mr M’s evidence was that it was not time with his father as such that causes [X] anxiety, but the mother’s attitude to [X] spending time with his father. Accordingly, the less often [X] is reminded of that attitude, and the less often the mother is able to interfere in [X]’s time with this father, the better [X]’s time with his father will be, and the better [X]’s relationship with his father will be. It is very much in [X]’s best interests that his telephone time with each parent be restricted to the specific times I have mentioned.
One issue on which there was a substantial difference between the parties was Easter. The mother proposed that it be broken up with changeover at 5pm on Easter Saturday. The father proposed that the whole of Easter alternate between the parents. In the absence of any submissions on the issue, I consider that the father’s proposal is in [X]’s best interests. It is the more usual order. It enables [X] to go away at Easter time with each of his parents.
The mother proposed that [X]’s wishes be taken into account by the parents in relation to the time he spends with and communicates with each parent. The father opposed any such order. Given the boundary issues in this case, and the intensity of the relationship between [X] and his mother, I do consider that such an order is in [X]’s best interests. He is not yet nine years old. It would be unusual for parents or the court to abdicate their responsibility for determining the best interests of a nine year old to the child himself.
The mother sought a specific order that the father use his best endeavours to ensure [X] completes all of his homework tasks and homework grids. As discussed, I am not persuaded that [X]’s homework grids necessarily reflect an amount of work that it is in [X]’s best interests that he do. The homework grids are set by the mother. On the evidence before me, they do not have the imprimatur of a relevant expert.
Obviously, it is in [X]’s best interests that he do his homework and some therapeutic work. It seems to me that the father has demonstrated that he is willing and able to help [X] with his homework and to do a reasonable amount of therapeutic work. I do not consider that it is necessary or desirable to make a specific order requiring the father to ensure [X] completes certain work.
The mother also sought an order that both parties be at liberty to attend any extra-curricular activities that [X] is involved in. It seems to me that this proposal goes too far. It would include attendance at routine music lessons for example. Obviously, both parents should be permitted and encouraged to attend special extra-curricular events, such as school concerts or sporting competitions. However, each parent should refrain from attending routine extra-curricular activities that occur during [X]’s time with his other parent. In the context of this case, it seems to me to be unnecessary to make orders about these matters.
There were some minor differences between the parties on some of the other miscellaneous proposed orders. The parents did not deign to make submissions on why their proposals for these matters were to be preferred. In the absence of any submissions on the issues, I consider in general that the father’s proposed orders are preferable.
There will be orders accordingly.
PROPERTY
The legislation
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Subsection 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the court must take into account when considering what orders should be made for the alteration of the interests of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under subsection 75(2) of the Act are as follows:
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
The four step approach
In Hickey v Hickey (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
STEP 1
The assets and liabilities
The parties were in substantial but not complete agreement about the content and value of the asset pool at the time of hearing. The parties agreed on the following items and values:
| ASSETS | VALUE |
| Property A | $787,500 |
| Property B | to be sold |
| Property C | $33,800 |
| Furniture and chattels in Property A | $4,393 |
| Furniture and chattels in Property B | $3,193 |
| Furniture and chattels | $4,405 |
| Wife's motor vehicle | $20,900 |
| Husband's motor vehicle | $24,700 |
| Company C | $0 |
| Company B | $0 |
| “[omitted]” | $0 |
| Bank B Bank Account | $569 |
| Bank B Business Account | $855 |
| Bank A Bank Account | $0 |
| LIABILITIES | VALUE |
| Mortgage - Property A – Bank A Account (1) | $556,832 |
| Mortgage - Property B - Bank A Account (2) | $257,369 |
| Bank A Home Loan Account (1) | $74,598 |
| Bank A Home Loan Account (2) | $48,037 |
| Bank B Mastercard | $8,364 |
| Bank B Personal Loan | $13,697 |
| Bank B Platinum | $14,866 |
| Bank A Line of Credit | $163,762 |
| Vehicle Loan – Wife's motor vehicle | $48,037 |
| Vehicle Loan – Husband’s motor vehicle | $31,774 |
| Wife’s tax debt | $9,000 |
| SUPERANNUATION | VALUE |
| Bagshot Self-Managed Superannuation Fund | $65,953 |
| Bagshot Self-Managed Superannuation Fund | $105,751 |
| Superannuation A | $15,623 |
In addition, the wife alleged that the husband should be treated as owning another motor vehicle worth $750. He said he had given it to one of his daughters and it should not be included in the pool. Although the daughter's motor vehicle is a trifling matter in the overall context of this case, it should be included in the pool, and go onto the husband’s account. It was his choice to give it to his daughter. As there is no evidence about value, but no real dispute about it either, I consider that it is appropriate to attribute a value of $750 to the daughter's motor vehicle.
The wife also alleged in cross examination that a number of payments that the husband stated he had made to the wife for the care of [X] were not for that purpose at all, but were repayments of loans made by the wife to the husband. The husband denied the allegations, which the wife’s counsel pursued in detail and at length. The following day, the wife in cross-examination retracted the allegations.
The husband argued that there should be an addback of $120,439. He said that after separation the wife had drawn that sum down from the parties’ Bank A Line of Credit. The wife disputed the amount and argued that the additional drawings should not be treated as an addback. She said that the additional drawings were used to meet joint expenditure, such as the mortgage payments on the two properties, and her and [X]’s living expenses.
The wife agreed that the balance outstanding on the line of credit at the time of trial was $163,762. She claimed in her affidavit that at separation the balance had been $98,961. The relevant bank statement was shown to the wife during cross-examination. She was asked what the balance had been at separation, that is, on
3 November 2008. The wife said it was $72,076.74. When asked to look at the statement again, the wife conceded that the outstanding balance had been $43,323.69 at the time of separation. Accordingly, since separation, the wife had drawn an additional $129,439 approximately from the parties’ line of credit.
At separation, the husband left the family home, which was Property A and began renting. He has subsequently paid a deposit on Property C. The wife and [X] remained in the family home post separation.
The parties also own Property B. The wife has continued since separation to use Property B as her office. The husband sought the sale of Property B when the parties were in court in April 2009 and subsequently, but the wife refused. She said that she wanted to restructure her business to keep Property B. She also said that it could not have been sold for a fair price during the global financial crisis. The parties now agree that it will have to be sold.
The mortgage repayments on Property A are $3800 per month and on Property B are $1200 per month. Since separation, about 18 months have passed. That makes a total of about $90,000 in mortgage repayments on both properties and $21,600 on Property B.
The wife said in her affidavit that she had managed her finances to ensure that none of the loans on the matrimonial property had fallen into arrears. She said that the husband had made “no contribution whatsoever” to the ongoing costs of the relevant loans. However, in cross-examination, the wife when pressed conceded that she had used the parties’ joint funds, from the line of credit, to pay the loans on Property A and Property B, both of which properties she was using. The wife also conceded in cross-examination that the husband had paid her $5000 per month for [X]’s care, including his school fees and other expenses.
It is clear that the wife post separation has used the parties’ joint funds in the line of credit largely for her own benefit. Since separation, the husband did not have the use of either Property A or Property B. He was obliged to pay rent on another property and is now in the process of buying another place to live. The husband has paid child support as assessed by the child support agency and has voluntarily paid $5000 a month for [X]’s care. The wife has a declared taxable income for 2009 of $80,000.
It is by no means certain that the wife will have the financial capacity to retain even Property A. The two properties might now sell for considerably more than they would have a year ago. That is something that will never be known with certainty.
Taking into account all relevant matters, it seems to me that the additional drawings made by the wife from the parties’ joint line of credit post-separation should not be treated as an addback but should be taken into account in considering contributions. This matter will be revisited later in these reasons.
Beyond that, however, the wife claimed in cross-examination that she had paid into the account of her company, Company B, a further $27,000, being the proceeds of an action against [omitted]. The wife said she had redrawn the $27,000 for loan repayments and living expenses.
The husband also alleged that the parties had a Bank B Business Account with a credit of $24,302. The wife said it had a credit of $2,000. The wife conceded in cross-examination that the difference, being $22,000, had also been used by her.
It seems to me that the funds from [omitted] and the funds that have gone from the Bank B Business Account should be included in the asset pool and treated as being on the wife’s account. Her explanation about what had happened with those funds was vague and unpersuasive. It was not supported by documentary evidence. I am unable to conclude that the funds were spent on any legitimate, joint purpose. It seems to me to be proper to treat those funds as a premature distribution of matrimonial property of the type falling within the second category referred to in AJO v GRO (2005) FLC 93-218.
The wife argued that the asset pool should include the Company A, which the husband bought on 1 September 2009 for about $27,000. He said it was a franchise that he intended to profit from but had not done so as yet. In the absence of any valuation evidence, I consider that it is appropriate to treat the Company A as an asset worth $27,000 to be retained by the husband.
Similarly, the wife argued that the asset pool should include another franchise bought by the husband. It was apparently called Company D. The husband said he bought it for $3,500. I consider that it should be treated in the same way as Company A.
The husband said that the pool should include a liability of $3,857, being a [omitted] Loan. This was said to be for furniture bought by the husband with borrowed money. The wife said that the liability should not be included in the pool because the furniture had not been included in the pool.
There was no cross-examination or submissions on this issue. It seems from the list of assets used during the trial as a working document that it includes furniture in Property A and Property B and some other furniture that is said to be owned by the husband. In the absence of any evidence to the contrary, I take this to be the furniture referable to the loan. Accordingly, I consider that the [omitted] loan should be included as a liability.
Additionally, there is furniture with an agreed value of $4,393 in Property A and an agreed value of $3,193 in Property B. The husband sought orders that the chattels in the two properties be divided equally between the parties, based on a valuation to be agreed upon, or by alternating choices. The wife proposed that she keep all of the furniture in Property A and Property B. Given that a valuation has now been agreed upon, I consider that the best solution is for the wife to keep all of the furniture in both properties, with the value to go on to her account.
Therefore, the asset pool is as follows:
| ASSET | VALUE |
| Property A | $787,500 |
| Property B | To be sold |
| Property C | $33,800 |
| Furniture and chattels in Property A | $4,393 |
| Furniture and chattels in Property B | $3,193 |
| Furniture and chattels | $4,405 |
| Wife's motor vehicle | $20,900 |
| Husband's motor vehicle | $24,700 |
| Company C | $0 |
| Company B | $0 |
| “[omitted]” | $0 |
| Bank B Bank Account | $569 |
| Bank B Business Account | $855 |
| Bank A Bank Account | $0 |
| Daughter's motor vehicle | $750 |
| Proceeds of action against [omitted] | $27,000 |
| Bank B Business Account | $24,300 |
| Company A | $27,000 |
| Company D | $3,500 |
TOTAL ASSETS: | $962,865 plus proceeds of sale of Property B |
LIABILITY ITEM | VALUE |
Mortgage – Property A | $556,832 |
Mortgage – Property B | $257,369 |
Bank A Home Loan Account (1) | $74,598 |
Bank A Home Loan Account (2) | $48,037 |
Bank B Mastercard | $8,364 |
Bank B Personal Loan | $13,697 |
Bank B Platinum | $14,866 |
Bank A Line of Credit | $163,762 |
Vehicle Loan – Wife's motor vehicle | $48,037 |
| Vehicle Loan – Husband’s motor vehicle | $31,774 |
[omitted] Loan | $3,857 |
TOTAL LIABILITIES: | $1,221,193 plus selling costs of Property B plus capital gains tax on Property B |
SUPERANNUATION | VALUE |
| Bagshot Self-Managed Superannuation Fund | $65,953 |
| Bagshot Self-Managed Superannuation Fund | $105,751 |
Superannuation A | $15,623 |
TOTAL SUPERANNUATION | $187,327 |
Based on the matters that the parties seemed to have agreed and that the court has found, the assets and liabilities to be retained by the husband are as follows:
| ASSET | VALUE |
| Property C | $33,800 |
| Furniture and chattels | $4,405 |
| Husband's motor vehicle | $24,700 |
| Daughter's motor vehicle | $750 |
| “[omitted]” | $0 |
| Company A | $27,000 |
| Company D | $3,500 |
| Bank B Bank Account | $569 |
| Bank B Business Account | $855 |
TOTAL ASSETS: | $95,579 |
LIABILITY | VALUE |
Bank B Mastercard | $8,364 |
Bank B Personal Loan | $13,697 |
| Vehicle Loan – Husband’s motor vehicle | $31,774 |
[omitted] Loan | $3,857 |
TOTAL LIABILITIES: | $57,692 |
SUPERANNUATION | VALUE |
| Bagshot Self-Managed Superannuation Fund | $105,751 |
Superannuation A | $15,623 |
TOTAL SUPERANNUATION | $121,374 |
Based on the matters that the parties seemed to have agreed and that the court has found, the assets and liabilities to be retained by the wife are as follows:
| ASSET | VALUE |
| Property A | $787,500 |
| Furniture and chattels in Property A | $4,393 |
| Furniture and chattels in Property B | $3,193 |
| Wife's motor vehicle | $20,900 |
| Company C | $0 |
| Bank B Business Account | $24,302 |
| Company B | $0 |
| Bank A Bank Account | $0 |
| Proceeds of action against [omitted] | $27,000 |
| TOTAL ASSETS | $867,288 |
| LIABILITY | VALUE |
| Mortgage - Property A | $556,832 |
| Bank A Home Loan Account (1) | $74,598 |
| Bank A Home Loan Account (2) | $48,037 |
| Bank B Platinum | $14,866 |
| Vehicle Loan – Wife's motor vehicle | $48,037 |
| Income tax debt | $9,000 |
| TOTAL LIABILITIES | $751,370 |
| SUPERANNUATION | VALUE |
| Bagshot Self-Managed Superannuation Fund | $65,953 |
In addition, the asset pool includes Property B, which has an estimated value of $737,500 and a mortgage of $257,369. Property B, on paper, is owned by Company C. However, the parties are properly treating it as a matrimonial asset. The parties intend that Property B will be sold. They anticipate that there will be certain costs associated with selling Property B, and a capital gains tax liability of about $113,000, which I gather will be the wife’s personal liability. There is also the line of credit. Accordingly, the following asset and liabilities need to also be taken into account.
| ASSET | VALUE |
| Property B | $737,500 |
| LIABILITY | VALUE |
| Mortgage - Property B | $257,369 |
| Bank A Line of Credit | $163,762 |
| TOTAL | $421,131 |
Financial resources of the parties
It was not suggested that the parties have any financial resources other than their income and assets that have already been discussed.
STEP 2
Initial contributions
The wife agreed in cross examination (but did not include in her evidence in chief) that the husband had contributed $54,000 in superannuation at the commencement of the relationship.
The wife claimed that she contributed about $20,000 or $30,000 from the sale of a townhouse. She said the proceeds were contributed to the cost of a number of holidays and establishing the girls’ rooms. The husband disputed that, saying he had never seen any sign of the money.
The wife’s evidence was vague and unsupported by any bank records or documents concerning the sale of the property. In view of her false evidence about the outstanding balance of the line of credit at separation, and her failure to acknowledge the husband’s initial contribution of superannuation, I am unable to give the wife the benefit of the doubt.
The wife also said that at the commencement of the relationship, she had a car that was worth a few thousand dollars. That does not appear to have been disputed.
Contributions during the marriage
The parties agreed that they both worked to capacity during the marriage and that their contributions were equal. The husband worked in the legal industry and earned about $260,000 per year plus $88,000 gross from private work. The wife worked part time in the finance industry earning about $70,000 or $80,000 per year. The wife was the primary carer of the parties’ child but the husband also contributed to his care.
Contributions post separation
The parties continued to earn much the same amounts as they had earned during the marriage. The husband left the family home, which was Property A and began renting. He has subsequently paid a deposit on Property C from post separation earnings. The wife and [X] remained in the family home post separation.
The parties also own Property B The wife has used that as her office. The parties now agree that it will have to be sold. The husband tried to persuade the wife to sell it in about April 2009, but the wife refused. The mortgage repayments on Property A are $3800 per month and on Property B are $1200 per month. Since separation about 18 months before trial, the mortgage repayments have amounted to about $90,000. The wife has largely had the benefit of those repayments, as she has had possession of both properties. The husband has had to make his own arrangements for accommodation. Arguably, there has been some increase in the value of the properties since separation.
Additionally, since separation, the wife has drawn down additional funds from the parties’ line of credit for her living and other expenses. The husband now shares the liability for the wife’s post separation expenditures. This is in the context of the husband paying the wife $5000 per month for a period as support for the parties’ child, and in the context of the husband formally asking in April 2009 that Property B be sold. The wife now accepts that the sale of that property at least is inevitable.
Contribution based entitlements
It seems to me that the parties’ initial contributions were more or less equal and that their contributions during the marriage were more or less equal. However, in all the circumstances, I consider that there should be an adjustment of the contribution based entitlements of the parties to reflect the wife’s considerable increase in the line of credit post separation. While these things can never be worked out with mathematical precision, I consider that there should be an adjustment in the husband’s favour of 5%.
STEP 3: The other factors – s.75(2) etc
The wife argued that the husband had a significantly greater earning capacity than her. The husband earns about $260,000 per year from his employment in the legal industry. The wife also said he had a demonstrated ability to earn an additional $88,000 per year from private business conducted out of normal office hours. The husband said that was his gross earnings and the net earnings were more like $15,000. I prefer the husband’s evidence on this issue, given my view of the wife’s truthfulness on other matters.
The wife in the past has earned $70,000 to $80,000 per year from her part time work in the finance industry. She said that she had a realistic expectation, and I accept, that she would be able to increase her earnings to about $140,000 per year in the foreseeable future.
The parenting orders discussed previously provide for [X] to live with his mother and to spend initially four nights a fortnight with his father and, after a year, five nights a fortnight with his father.
The parties have been assessed for child support. The husband is an employee. It seems likely that the appropriate amount of child support will be paid by the husband to the wife in the future.
The parties did not rely on any other factors under s.75(2) of the Act. That seems appropriate. There was no suggestion of any health or other issues that the court should take into account.
STEP 4: What orders are just and equitable
The wife argued that she should receive 65% of the asset pool, because of the discrepancy in the parties’ earning capacity and because of her greater share of the care of [X]. The husband argued that each party should receive 50% of the asset pool, given that, on his case, within a few years, [X] would be cared for by each of his parents equally.
In all of the circumstances of this case, I consider that a just and equitable division of the property pool would be 40% to the husband and 60% to the wife. The wife has a lower earning capacity than the husband and will have the greater share of the care of the parties’ child, who is only eight years old. I consider that those matters lead to a 15% adjustment in the wife’s favour. As there was a 5% adjustment as a result of the wife’s post separation increase in the parties’ line of credit, the final result is a 60:40 split.
As Property B is yet to be sold, the parties requested that the orders be cast in terms of a percentage split, rather than a fixed sum of money. The orders for the sale of Property B should include orders for the payment of the costs of sale, discharge of the mortgage on Property B, discharge of the liability for the line of credit and the balance to be apportioned between the husband and the wife so as to give the husband 40% of the assets and the wife 60%.
The parties agreed that they should each keep their own superannuation. The husband had some superannuation with Superannuation A and the husband and wife each had an interest in their self-managed superannuation fund. The parties sought various orders concerning superannuation but made no submissions to the court about the rationale behind their proposals.
The parties also sought various miscellaneous orders to finalise matters between them, but made no submissions about them.
In the circumstances, I will provide with these reasons draft orders that seem to me to be convenient to the parties, and ask counsel to make any further submissions on the final form the orders should take. I will give liberty to the parties to apply in case there are any problems with the implementation of the orders.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 9 August 2010
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