BALSTAD & BALSTAD
[2018] FamCA 838
•14 September 2018
FAMILY COURT OF AUSTRALIA
| BALSTAD & BALSTAD | [2018] FamCA 838 |
| FAMILY LAW – CHILDREN – Parenting – parents have equal shared parental responsibility for the children FAMILY LAW – PROPERTY | ||
APPLICANT: | Mr Balstad | |
| RESPONDENT: | Ms Balstad |
| FILE NUMBER: | BRC | 11695 | of | 2017 |
| DATE DELIVERED: | 14 September 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 12 & 13 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Galloway |
| SOLICITOR FOR THE APPLICANT: | Adrian Hawkes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Streit |
| SOLICITOR FOR THE RESPONDENT: | Pippa Colman & Associates Law Practice Pty Ltd |
Orders
Parenting
That the parents have equal shared parental responsibility for the children:-
(a)X born …, 2004 now 14 years and 2 months;
(b)Y born …, 2006 now 12 years and 5 months;
(c)Z born …, 2008 now 10 years and 3 months;
(“the children”), in respect of all major long-term issues as defined in the Family Law Act 1975.
That the parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c) They shall make a genuine effort to come to a joint decision.
Live With and Communicate With Arrangements
That the children live with and communicate with each of the parents at all times as may be agreed between the parents, but failing agreement as follows:
(a)Commencing from the date of this Order i.e. Thursday 13 September, 2018:
(i) With the father until before school (or 8.00 a.m.) Monday 17 September 2018;
(ii)Then with the mother until Thursday 20 September 2018 after school (or 4.00pm) to before school Friday, 21 September 2018 (or 8.00am);
(iii)Then with the mother for the first 8 days of the September 2018 school holidays;
(iv)Thereafter with the father until the end of the school holidays;
IT IS ORDERED
(b)Thereafter during the school term per the following fortnightly schedule commencing when school resumes after the September 2018 school holidays,
(i) In week 1:
a. From the first day school resumes, with the mother to Thursday after school;
b. From Thursday after school (or 4.00pm) to before school Friday (or 8.00am) with the father;
c. From Friday with the mother; and
(ii)In week 2:
d. With the mother to Thursday;
e. From Thursday after school (or 4.00pm) to before school Monday (or 8.00 a.m.) with the father;
f. Then to the mother. (“the fortnightly schedule”)
IT IS ORDERED BY CONSENT
(iii)During school holidays the fortnightly schedule shall be suspended and in lieu thereof:
a. The parents will each spend one half of the school holiday periods with the children and specifically that:
A. In 2018 and even years, the children will spend time with the mother in the first half of the holiday periods and the children will spend time with the father in the second half of the holiday periods;
B. In 2019 and odd years, the children will spend time with the father in the first half of the holiday periods and the children will spend time with the mother in the second half of the holiday periods.
(iv)And after school holidays, the children’s time with the father per the fortnightly schedule shall resume as follows:
b. If the children have spent time with the father in the last week of the holidays, then week 2 shall commence on the first Thursday after school starts;
c. Otherwise, week 1 shall commence on the first Thursday after school starts.
(v) The children may telephone / skype / Whatsapp with their parents at any reasonable time; and the parents may answer the phone / respond;
(c) The parents may telephone / skype / Whatsapp with the children at any reasonable time.
Commencement of School Holidays
For the purpose of these Orders, school holiday time shall commence:
(a)If a parent’s time falls in the first half of the school holidays, from after school on the day the school term finishes and conclude at 3.00 pm on the day calculated to be half of the holidays;
(b)If a parent’s time falls in the second half of the school holidays, from 3.00 pm on the day calculated to be half of the holidays and conclude before school on the day the next school term commences.
AND the number of nights in each school holiday period is to be used to calculate one half of the school holiday period
AND if there are an uneven number of nights the father will have the additional night in even years and the mother will have the additional night in odd years.
Changeover
Unless otherwise agreed in writing between the parents, changeover will occur:
(a)If on a school day, at the children’s school; and
(b)If on a non-school day then the father shall collect the children from the mother’s residence at the commencement of time and the mother shall collect the children from the father’s residence at the end of the time.
If either parent anticipates that they will be in excess of ten (10) minutes late for changeover, for whatever reason, they will advise the other parent, as soon as the lateness is known or anticipated, by forwarding an SMS text message to the other parent’s mobile telephone.
Conduct of the Parents
The parents shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully and positively;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d)Not attempt to discuss any court proceedings or issues in dispute between the parents with the children, or allow a third party to do so nor show nor provide to them any written materials relating to these proceedings;
(e)Not attempt to discuss any adult issues with the children other than adult issues appropriately raised by the children having regard to their ages, or allow a third party to do so; and
(f)Not expose the children to domestic violence.
Both parents shall:
(a)Keep the other informed of their respective residential address and contact telephone number; land line, mobile telephone or both if parents have both connected; and
(b)Advise the other parent within forty-eight (48) hours of any change occurring.
Both parents will notify the other immediately by telephone in the case of an emergency concerning the children.
Travel
That each parent shall be permitted to travel with the children locally and internationally, PROVIDED THAT if a parent proposes to travel overseas (i.e. travel requiring a passport), then that parent shall:
(a)Provide to the other parent in writing at least 1 month before the proposed travel date a full travel itinerary setting out proposed dates of travel and destinations;
(b)Not make arrangements to travel in the other parent’s usual time with the children, without the other parent’s prior written consent;
(c)Wherever possible, travel within the school holiday periods, and the parent shall ensure that the children do not miss more than 5 days of school per year due to that parent’s travel;
(d)Unless otherwise agreed, the parents shall not be permitted to travel with the children to a country that is:
(i) Listed as Level 3 (“Reconsider your need to travel”) or Level 4 (“Do not travel”) on the SmartTraveller or Department of Foreign Affairs and Trade websites; or
(ii)Is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
(e)The travelling parent shall facilitate contact via Skype/WhatsApp, phone or other similar method, between the children and the non-travelling parent, twice per week at times as agreed by the parties in writing but in any event is between the hours of 6.00am – 8.00pm at the time where the non-travelling parent resides;
(f)The travelling parent shall ensure that the travelling parent and the children have appropriate travel insurance for each day of travel, at the travelling parent’s expense.
Subject to Order 10 above, that neither parent will remove the children from their country of habitual residence without the prior written consent of the other parent or further Order.
Each parent shall in a timely manner do all things necessary upon request in writing by the other party to ensure that the children are able to travel as set out above including by ensuring the parents maintain all necessary passport and/or visa documentation and if the children are on a Watch List or similar at that time, take all steps necessary to remove them.
Schooling and Extracurricular Activities
That both parents may attend parent teacher interviews and all other activities which parents ordinarily attend at the school.
No parent will alter the children’s usual place of school without prior written consent of the other parent or further Order.
Each of the parents shall be at liberty to enrol the children in extracurricular activities during the time the children live with them. They shall not enrol the children in an extracurricular activity in the other parent’s time without the prior written consent of the other parent.
Authorities
(16)This Order is authority from each of the parents to any professional care provider of the children, whether a school, doctor, hospital or otherwise, to release the same information concerning the care, welfare and development of the children to both parents. Each of the parents may seek any information/documentation in relation to the children, including but not limited to school notices, school reports, and school photograph order forms, and the parent seeking any documentation shall pay any expenses incurred.
Alternate Dispute Resolution
(17)That unless there is an emergency, before any application is made to a Court for an Order relating to the children, the parents shall take these steps: -
(a)The parents shall consult each other with a view to resolving any issue between them;
(b)If the parents are unable to agree via personal consultation, then the parents shall consult with a qualified Family Dispute Resolution practitioner to assist with resolving any dispute or reaching agreement about changes to be made if the parent lives outside Australia, that parent will attend by telephone;
(c)They shall equally pay the costs of the Family Dispute Resolution Practitioner.
Passports
(18)The father will hold the children’s passports.
(19)When the mother wishes to travel with the children outside of Australia, provided she complies with the terms hereof:
(a)The father will provide the children’s passports within 5 days of request by the mother; and
(b)Upon the children’s return, if they return to Australia, and the father is then in Australia, the mother will deliver the children’s passports back to the father within 5 days of her return and otherwise the children’s passports will travel with the children.
Parents’ and Children’s Applications for Permanent Residence in Australia
(20)The parents will forthwith do all acts and things necessary to obtain at the earliest opportunity, visas which enable them, and the children, to reside permanently in Australia, and without limiting the generality of the foregoing:
(a)The mother will consent to the current application by the father for permanent residency in Australia for himself and the children and will do any and all things necessary, including the provision of written consent, to ensure the grant to the Father and children of permanent residency;
(b)The mother will instruct Mr B to:
(i) Make an application to extend the life of her current subclass 600 Visitor Visa which expires on 30 September 2018;
(ii)Ensure that the mother does not have to spend time outside Australia, pending her obtaining permanent residence in Australia, and if necessary, to appeal any decision which requires her to do so; and
(iii)Make an application for the mother to become a permanent resident in the most expeditious way possible, as soon as the children are permanent residents of Australia
(c)The mother will use her best endeavours to ensure the favourable processing of her Application;
(d)The father will upon receipt of any invoice from Mr B or request for payment to any Government Department in connection with the above matters, pay Mr B or the Government Department.
Spousal Maintenance
(21)Commencing on the day of this Order, the father pay to the mother by way of Spousal Maintenance, the sum of $1,100 per week to the bank account of her choice and weekly thereafter to be increased annually by the CPI Brisbane (All Groups).
Property
That the father is entitled to occupation of the property situated at C Street, D Town, Queensland (“the home”) to the exclusion of the Mother.
That within 45 days (“the settlement date”) and contemporaneously:
(a)The father pay to the mother’s solicitors trust account the sum of
$120,000;
(b)The mother shall transfer to the father all her right, title and interest in the home;
(c)The father shall refinance the existing P Bank home loan over the home into his name and indemnify the mother thereafter in respect of the home loan and all costs of and incidental to ownership of the home;
(d)The mother will collect the items on lists A & B mentioned in clause 46 hereof; and
(e)The mother will deliver to the father a USB or similar containing all photographs formerly on his computer in an unaltered form.
If the father does not comply with the preceding Order forthwith the parties shall cause the home to be sold as follows:
(a)They will forthwith list the home for sale by private treaty;
(b)The listing price for the home shall be $1,100,000 or as agreed in writing between the parties from time to time and if there is no agreement the listing price shall be as advised by the nominee of the Chief Executive Officer of the Real Estate Institute of Queensland (“REIQ”) which listing price shall be reduced by $10,000 per month or as otherwise agreed, while the home remains unsold;
(c)The home shall be listed with any real estate agent or agents, nominated by either party, in the area in which the home is located.
(d)In the event that the home has not been sold within three (3) months from the date of listing, the father and the mother shall then make all such arrangements and do all such acts and sign all documents and the father shall pay all moneys necessary to procure a sale by public auction of the home upon the following terms: -
(i) The auctioneer shall be an auctioneer as agreed in writing by the parties and if there is no agreement as nominated by the REIQ;
(ii)The auction shall take place within two (2) months of the deadline date for sale by private treaty;
(iii)The reserve price shall unless agreed in writing by the parties be as proposed by the auctioneer;
(iv)The father shall pay the auction expenses payable before the home is auctioned.
(e)That the father and mother co-operate in every way with the real estate agent and/or auctioneers in relation to the sale and auction of the home including making a key available for allowing inspection of the home at the times requested by the real estate agents and/or auctioneers.
(f)The father shall ensure that the home and yard is maintained in a neat and clean condition.
(25)If the home is not so sold by auction or by private negotiation within fourteen (14) days after the auction then the parties shall do all acts and sign all necessary documents and the father shall pay all moneys necessary to procure a second auction within five (5) weeks of the date of the first auction and otherwise upon substantially the same terms and conditions as applied to the first auction.
(26)The father may at any time prior to the parties signing a contract for the sale of the home / the auction, make the payment to the mother, provided that at the same time, the father pays to the mother:
(a)Interest on the payment; and
(b)If the mother has incurred any costs in relation to the sale of the home / auction, those costs.
(27)Upon completion of the sale of the home, the proceeds of the sale be applied as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale and to pay any rates and levies outstanding in respect of the home;
(b)Secondly, to discharge the mortgage to the P Bank (“the mortgage”);
(c)Thirdly, to the mother’s solicitors’ trust account the sum of $120,000; or If the home sells for more than $1million, 65 per cent of
1. the sale price
2. less the costs of sale, commission and mortgage whichever is the greater or
if the home sells for less than $1million, the sum to be received by the wife will be reduced accordingly
PROVIDED that one-half of the sum paid by the father to the selling agent/auctioneer for the sale of the home in accordance with the terms of this Order shall first be deducted and paid to the father;
(d)To the solicitors for the father, the balance.
When a contract for the sale of the property is signed, both parties shall do all things necessary to instruct Mr E, Solicitor, to conduct the conveyancing and thereafter the parties must do all things necessary to settle the Contract;
That the father be responsible for all outgoings associated with the home including the mortgage, rates, home insurance and the like up to and including the date of settlement of the sale of the home and shall pay same as and when they fall due.
Superannuation Split
That this Order is binding on the Trustee of the N Superannuation Fund (“the Fund”).
That the base amount of $71,576.25be allocated to MS BALSTAD (“the mother”), out of the interest of MR BALSTAD (“the father”) in the Fund.
That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the father in the Fund, the mother shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 “the Regulations” using the base amount and there be a corresponding reduction in the entitlement of the father to whom the splittable payment would have been made but for this Order.
That the two preceding Orders have effect from the operative time.
The operative time is four (4) business days after the date of service of this Order upon the Trustee of the Fund.
That until such time as the Superannuation split to the mother pursuant to this Order can be split or paid out or rolled over into a separate account to the mother:
(a)The father provide to the mother no less than 28 days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund.
(b)The father direct and authorise the Trustee of the Fund to communicate with the mother and/or any person authorised by her in writing:
(i) To answer any reasonable inquiries as may be made by the mother or on her behalf from time to time in relation to her entitlement in the Fund; and
(ii)To provide to the mother and/or her authorised representative a copy of any notice of any application or request by the father which seeks release of entitlements in the Fund in so far as that release may affect the mother’s entitlement in the Fund pursuant to this Order.
The father by himself, his servants and/or agents be and hereby is restrained from doing any act or thing which would prevent the mother, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to this Order.
In the event that the Superannuation split to the mother pursuant to this Order can be split/rolled over into a separate account to the mother, and the mother so requests, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
Parties to Retain Property in Their Possession
The father shall retain in his possession the following:
(a)The balance in the Superannuation Fund, less the split of super to the mother;
(b)The interests of the parties in the F Trust;
(c)His furniture and personal effects including those in the home, apart from those in collected by the mother in accordance with the terms hereof;
(d)All bank accounts and debts in his name;
(e)All of the shareholdings of the parties in G Pty Ltd.
The mother shall retain in her possession the following:
(a)The super split from the father and her existing superannuation;
(b)The Motor vehicle and the parties shall do all necessary things to transfer same into the sole name of the mother;
(c)Her furniture and personal effects in her home and those collected by the mother in accordance with the terms hereof;
(d)All bank accounts and debts in her name.
Registrar to Sign
If either party refuses or neglects to do any act or thing or to sign any document necessary to give effect to this Order, then pursuant to Section 106A of the Family Law Act 1975 (Cth), the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all documents in the name of the father and/or the mother and do all acts and things necessary to give validity and operation to the said Order. An Affidavit of the solicitor of the party seeking to enforce the terms of the Order against the other party who has refused or neglected to comply with the provisions shall be sufficient evidence to the effect that here has been a refusal or neglect to comply and that the Registrar is entitled to rely upon that Affidavit to exercise his or her power under Section 106A of the Family Law Act 1975 (Cth).
G Pty Ltd
On the payment of the last of all monies due and owing to the mother pursuant to the terms of this Order, the mother shall:
(a)Transfer to the father or his nominee at the father’s expense any shares held by the mother in G Pty Ltd (herein called “the company”);
(b)Resign in favour of the father or his nominee any office she holds in the company;
(c)Relinquish and forgive any entitlements owing to her as a beneficiary of the F Trust (which trust is herein called “the trust”) PROVIDED THAT the father shall indemnify the mother in relation to any loan account in her name in respect of any indebtedness by her to the trust;
(d)Relinquish any power of appointment she might have in relation to the trust;
(e)That the father will forthwith use his best endeavours and do all things necessary to secure the release of the mother from any personal guarantees given by the mother in relation to the company/the trust or otherwise and shall indemnify and keep the mother indemnified with respect to any and all liability pursuant to such personal guarantees;
(f)That the Father indemnify the Mother in respect of any liability to pay tax including income tax, goods and services tax (“GST”), capital gains tax (“CGT”), penalty tax and interest which she may in the future have in respect of any tax returns lodged on behalf of the father, the company, the trust, the fund or the Mother or any entity in which the Mother has an interest in respect of transactions up to the date of payment of all monies due to the mother, or in respect of any transactions pursuant to this Order and to remove any ambiguity which might exist the Father shall pay or cause to be paid all taxation, whether GST, CGT, PAYG, BAS or any like impost in relation to the income of the father, the mother, the company, the trust, the fund (“the entities”) PROVIDED HOWEVER that:
(i) The Father shall be solely responsible for all costs associated with the preparation and lodgement of all financial documents and tax returns for the entities and shall pay all tax assessed for each of the entities.
(ii)Subsequent to the date of this Order, the parties shall each be solely responsible and liable for the preparation and lodgement of their individual tax returns for the year ended 30 June 2019 and thereafter.
(iii)The Mother shall attend any meeting necessary to facilitate the foregoing provided the Father has upon providing anydocumentation for signature by the mother, to the Mother, made available to the Mother or her nominated advisors, all documentation in support of such documents.
Superannuation Fund
If:
(a)Any fines are imposed on the parties as their capacities as trustees of the N Superannuation fund (“the Super Fund”) or otherwise, arising out of the father’s moving the funds (“the funds”) from the bank accounts of the Super Fund into the trust account of the father’s solicitors; or
(b)Any accounting or similar costs are incurred;
then the father shall pay same, and shall indemnify the mother in respect of same.
The father shall, at his cost, forthwith on the making of this Order do all acts and things necessary to ensure the Super Fund is a compliant Fund, including as directed by Mr O of Q Associates, Town R (“the accountant”), and without limiting the generality of the foregoing, the father shall: -
(a)Pay the funds to the bank account from which the funds were taken;
(b)Pay any necessary accounting / audit fees / other monies as directed by the accountant.
Mother to Receive Possessions
On or before:
(a)The day agreed in writing between the parties; and
(b)if there is no agreement then on the settlement date;
the father shall provide the mother the personal possessions listed in A & B below.
List A
1. The mother’s deceased brother's architecture drawings (which are framed);
2. The drawing given to the mother by her friend (rolled up);
3. Christmas decorations/ items:
a. The sugar and milk set;
b. Glass ornaments given to the mother by her mother;
4. The glass flower bowl;
5. Vase;
6. The remaining items of garden crockery;
7. The wife’s sweaters and clothing;
8. Scanpan (oven dish) plus lid;
9. Cheese slicer (pointed);
10. Purple embroidered table cloth;
11. Any sweaters in plastic vacuum bags above the closet or shirt in white bag (pillowcase) which might be in the towel closet
12. Any other personal item belonging to the wife (labelled or otherwise).
List B
1. Beige sofa;
2. Coffee table, white;
3. Spare room double bed;
4. Sheets, doona and pillow (1/2);
5. Approximately half by number of the Towels and table cloths;
6. Approximately half by number of kitchen supplies;
7. Dining room table;
8. Closet in spare bedroom;
9. Printer in spare bedroom;
10. Bedside tables;
11. A Desk;
12. Fridge and Freezer both of which are in the garage.
NOTATIONS
A.IT IS NOTED THAT:
(a)The spousal maintenance payable by the father to the mother is intended by both parties to cover both the mother’s and children’s expenses;
(b)The parties have agreed that the children will attend H School and the father will pay any fees, levies and costs, including uniform costs, excursions and the like, for the children until Z attains the age of 18 years, or completes her secondary education, whichever last occurs; and
(c)That no departure Order has been made because the mother does not require the Child Support Agency to collect from the father, Child Support for the children.
B.The agreed property pool and its division is as set out in the following table:
| No | Particulars | Ownership | Agreed value | Father Receives | Mother receives |
| 1 | Home at C Street, D Town | Joint | $1,000,000 | $1,000,000 | nil |
| 2 | Motor Vehicle | Joint | $7,000 | nil | $7,000 |
| 3 | Proceeds of sale 4WD | Joint | $11,520 | $11,520 | nil |
| 4 | Contents of home | Joint | $20,000 | $20,000 | nil |
| 5 | Contents of home with mother | Joint | $2,000 | Nil | $2,000 |
| 6 | SMSF Husband $110,817.85 Wife $1,301 | Joint | $112,118.85 | $39,241.60 | $72,877.25 |
| 7 | Mortgage over the home | Joint | ($727,252.94) | ($727,252.94) | |
| 8 | ATO tax debt a/c 001 | Father | ($33,581.68) | ($33,581.68) | |
| 9 | ATO tax debt a/c 003 | Father | ($34,619.57) | ($34,619.57) | |
| 10 | ATO SMSF tax debt | Joint | ($1,154.00) | ($1,154.00) | |
| 11 | School fee debt | Joint | ($6,120.42) | ($6,120.42) | |
| 12 | Country J tax debt | Father | ($28,000) | ($28,000) | |
| 13 | Country J visa card | Father | ($13,614.95) | ($13,614.95) | |
| Assets | $1,152,638.85 | ||||
| Liabilities | ($844,424.46) | ||||
| Net assets | $308,214.29 | ||||
| Balancing payment from father to mother | ($120,000 | $120,000 | |||
| Division of assets | $107,875 35 per cent | $200,339.29 65 per cent |
C.The circumstances of the parties, particularly those of the mother and the children in this matter are both compelling and inspire compassion.
D.This Order is made on the basis that it is in the best interests of the children that the mother be able to remain in Australia, until the grant of her, the father’s and children’s Permanent Residence 186 Visa, to enable the mother to care for the children and share parenting responsibilities for the children with the father.
E.The parties have accepted the conclusion of the joint expert, Ms K that the sharing of the parenting responsibilities by the father and the mother is in the best interests of the children.
F.The Order made today has been made after the irretrievable breakdown of the marriage, a change of circumstances for the mother which was not anticipated at the time the mother came to Australia. The subsequent disruption to the lives of the children was beyond the control of the mother and the father and an aim of this Order is made to minimise that disruption.
G.It is the view of this Court that significant hardship, disruption, stress and trauma will be caused to the lives of the children, and it will not be in the best interests of the children if their mother is not able to live in Australia, to care for them.
H.As a consequence of this Order, the mother has the financial means and ability to support herself, at all times.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Balstad & Balstad has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11695 of 2017
| Mr Balstad |
Applicant
And
| Ms Balstad |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ms Balstad and Ms Balstad are the parents of three children, X, aged 14 (born in 2004), Y, aged 12 (born in 2006) and Z, aged 10 (born in 2008).
When the matter came before the Court on 12 September 2018 it was for all intents and purposes what might conveniently be called an international relocation case. There were financial issues as well but it was the international relocation component that was the reason, at least in part, that the matter was transferred to this Court in March 2018.
In May 2018, the matter came before me on an interim application and on that date I allocated trial dates for the matter to be heard on a final basis commencing 12 September 2018.
On the first day of trial it became apparent that the mother had capitulated and had decided to remain in Australia with the children, she having accepted the recommendation of the family report writer Ms K that this would be the best outcome for the children. The only issue preventing that might be whether or not the mother can obtain a permanent residence visa but again the parties have agreed about a mechanism for that to occur, if possible, and the father is to meet what are expected to be quite extensive costs associated with that process.
When the matter was stood down for discussion on the first day of the trial and over the following two days the parties were able to resolve their dispute, including financial matters, with the able assistance of their legal representatives save for one issue, that is, whether or not the children’s time with the father should increase in 2019 from the current five nights per fortnight to week about. The five nights are currently spent with the father in this way - In week one they spend overnight Thursday with him from after school until before school the next day, and then in week two they spend from after school Thursday to before school the following Monday. That has been the arrangement that has been in place since early March 2018.
As it was clear on the first day of trial that the matter no longer met the criteria relevant to the appointment of an independent children's lawyer, an application was made on her behalf for her discharge and that Order was made unopposed.
The remaining issue between the parties involves, of course, a parenting order and as such, the provisions of Part VII of the Family Law Act1975 (Cth) apply, so far as relevant.
legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[1] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[2]
[1] See Family Law Act 1975 (Cth) s 65D.
[2] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[3]
[3]Baghti & Baghti [2015] FamCAFC 71.
The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC). In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case the parties agreed to equal shared parental responsibility and I made that order by consent as being in the best interests of the children in this case.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]
[4]Banks & Banks (2015) FLC 93-637.
brief background
By way of brief background, Mr Balstad is 47 years of age and was born in Country L. He has lived and worked in the United Kingdom, Country J and Australia. He is a health professional.
Ms Balstad is 40 years of age and was born in Country J. She has lived in the United Kingdom and Australia. She is tertiary educated but has for the entirety of her marriage to Mr Balstad been the homemaker and the stay at home mum.
Mr and Ms Balstad were married in 2003 and separated in August 2017.
Ms Balstad left Australia with the children and returned to Country J without Mr Balstad’s knowledge or consent. The parties were then engaged in International Child Abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. The children were ordered to be returned to Australia and an appeal by Ms Balstad failed. As noted the children and mother returned to Australia in March of this year.
The children attend a private school in M Town and their father will continue to pay their education costs as well as spousal maintenance of $1100 per week. Both parties were confident that the mother would be able to manage financially with that assistance.
application of legal principles
Turning then to apply the legal principles, it is clear from the legislation that I must consider equal time, which is what the father seeks in this case, and whether such an order is in the children’s best interests and reasonably practicable. I also have to consider whether the children’s best interests would be served by them spending significant and substantial time with their father. The parties have of course agreed for that to occur i.e. the latter.
The mother also agreed to the father’s fall back position, that is, in 2019 the five nights would occur in a block. There is no issue as to the practicability of either significant and substantial time or equal time as the parties live in close proximity to each other.
The children have a close and loving relationship with each of their parents, despite the upheaval associated with their parents’ separation in August 2017 and their consequent removal to Country J, not returning to Australia until 8 March 2018. Mr Galloway for the father asked the rhetorical question, why not seven nights if the father is already having five nights? That is a reasonable question to pose.
The mother does not cavil with the father’s capacity to parent the children as he does currently. He has flexible work arrangements. The children and he have a close and loving relationship. But in the end I have come to the conclusion that the best interests of the children are met by a continuation of the current arrangements subject, of course, to the parents right to change those arrangements in the future by consent.
The reasons I have decided to not increase the father’s time to week about are as follows:
a)The father works full time in a busy environment while the mother is not employed and cannot obtain employment until permitted to do so under her visa, which could take up to three or four years. She is therefore more available than the father to provide attentive day-to-day parenting. While it is submitted by the father that the children are at school each weekday and the father has flexible work hours so there is in fact little difference in their availability, I disagree. There is a lot more to parenting than just being physically available. It was submitted that the father could make up his hours on the week the children were not with him. I noted with some concern that the father saw 50 clients in the space of four hours. In my view, that is an extraordinary workload. He has had few days absent in the time that he has been at his current workplace and he is regarded as a reliable and valued employee. The financial demands upon the father pursuant to the order I made by consent yesterday will be considerable for some years until the mother is permitted to take employment;
b)The arrangements the parents had prior to separation were that the mother was the primary carer and the father was employed full time so the children are well used to their mother being their primary day-to-day carer;
c)The wishes of the older child, in particular, were to spend more time with her mother not less. I appreciate that the interviews for the family report were at the end of April and things may have moved on but that is the most recent evidence I have as to X’s wishes as set out in paragraph 137, in particular, of the family report. In paragraph 137, it was suggested to X the hypothetical of both parents living in Country J and she was asked how she would divide her time. She said she would choose to live with her mother but spend “at least every second weekend with dad and maybe one day during the week”. She said that it is not that she loves her father, it’s just that she is “13 years old and female” so she wants to be with her mother. I also note that X was initially reluctant to express a view that might cause pain to her parents but in the end she said she wanted to have her say and did so;
d)Although Y expressed a view to spend week about if he were able to return to Country J, he is younger and experiencing, at least at that time, some behavioural issues so I am inclined to place less weight on his views;
e)The family report recommendations of Ms K were for the current arrangements to continue, that is, the nine/five arrangement of a Thursday overnight one week and Thursday to Monday the following. And while Mr Galloway submits that the family report failed to give reasons, I do not agree. It is clear, in my view, from the content of the report and the observations made why such recommendation was made. Ms K is a very experienced social worker and very experienced in considering and making recommendations as to what orders might best meet the needs of the children. And I note in particular at paragraph 174 that the children conveyed to her that their strongest bond was with their mother;
f)The children at the time of interview all wished to return to Country J and their wishes are not being acceded to, so they may well need more attentive care than the father may physically and mentally be able to provide given his significant workload and financial pressures;
g)Y has experienced some school resistance and although that may have resolved itself by now, he would benefit from a more available parent;
h)The parents have agreed to equal shared parental responsibility, and that is an order that I made yesterday having considered that it would be in the best interests of the children. That is a positive for the children as their parents have agreed to make joint decisions about major long-term issues so I have some confidence that if the children need to spend more time with the father, that is something about which agreement may be reached. The parents know their children better than anybody, certainly better than I do. When and if the time is right for a change to the arrangements, they can make that decision by agreement;
i)The most important thing is for the children to maintain their relationship with each parent and in my view the current arrangements achieve that outcome.
Accordingly I propose to make an order in terms of the draft handed to me yesterday, such that the words in paragraph 3(b) “until 2019” will not appear, and the subparagraph numbered 3(d) will not be included.
I do not propose to make the fall back order, that is, that the five nights the children spend with their father are in a block. The Order agreed to by the parties yesterday enable them to agree to vary the Order but in my view it is important for the children to spend time with each parent each week and that is the order that I propose to make.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 14 September 2018.
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Key Legal Topics
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Family Law
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