BARTEK & BARTEK
[2020] FamCA 992
FAMILY COURT OF AUSTRALIA
| BARTEK & BARTEK | [2020] FamCA 992 |
| FAMILY LAW – CHILDREN – Two children aged 11 with special needs – Parties agree to orders for equal shared parental responsibility and for the children to live with the wife – Dispute as to the amount of time the children spend with the husband during school term – Order that the children spend four night per fortnight with the husband during school term as proposed by the Independent Children’s Lawyer and the mother – Other parenting orders made by consent FAMILY LAW – PROPERTY – Competing applications for a property settlement – Relatively small property pool – Superannuation - Parties married for over 20 years – Four children of the marriage – Parties’ contributions over the course of the marriage assessed as equal – Consideration of the wife’s role as primary caregiver for the children – 10 per cent adjustment in favour of the wife – Order that the wife transfer her interest in the matrimonial home to the husband upon the husband making a lump sum payment to her – Alternative order for the matrimonial home to be sold in the event of default – Order by consent for an equal split of the husband’s superannuation |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 75(2), 79, 117 and 117(2A) |
| Cachia v Hanes (1994) 179 CLR 403 Donnell & Dovey [2010] FamCAFC 16 J v C in [1969] 1 ALL E.R. 824 Keane & Keane [2020] FamCA 99 Mauldera & Orbel (2014) FLC 93-602 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158 Penfold v Penfold (1980) FLC 90-800 Stanford & Stanford (2012) 247 CLR 108 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Ms Bartek |
| RESPONDENT: | Mr Bartek |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2549 | of | 2017 |
| DATE DELIVERED: | 24 November 2020 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 18, 19 & 20 August 2020 final written submissions provided by 1 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Katsinas |
| SOLICITOR FOR THE APPLICANT: | Antonenas Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr O'Reilly |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr McConaghy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting Orders
Parental responsibility
BY CONSENT the parents Ms Bartek (‘the wife’) and Mr Bartek (‘the husband’) shall have equal shared parental responsibility for the children, X born … 2009 and Y born … 2009 (collectively ‘the children’).
The children’s time with the parents
BY CONSENT the children shall live with the wife.
BY CONSENT the children shall spend time with the husband as agreed in writing between the parents or failing agreement:-
3.1BY DETERMINATION during school terms, each alternate week commencing the first week of each school term as follows:-
3.1.1Week 1: from after school on Friday in week 1 until before school on Monday in week 2; and
3.1.2Week 2: from after school on Thursday in week 2 to before school on Friday in week 2.
3.1.3IT IS NOTED that the effect of this Order means that the subject children will then spend the week 2 weekend living with the wife.
3.2BY CONSENT during school holidays: for the first half of each NSW school holiday period in odd-numbered years and the second half of each NSW school holiday period in even-numbered years.
3.3BY CONSENT for the purpose of these Orders the school holidays are deemed to commence at 9.00 am on the first day after the NSW school term ceases and changeovers shall occur at 5.00 pm on the Saturday in the middle of the school holiday period.
3.4BY CONSENT notwithstanding any other order herein, on the following special days:-
3.4.1on Father’s Day: From 9.00 am until 5.00 pm;
3.4.2on the birthdays of the husband and the children’s siblings: from 9.00 am until 5.00 pm if it falls on a non-school day and from 3.00 pm until 7.00 pm if it falls on a school day;
3.4.3on the children’s birthdays: if the children are not otherwise spending time with their father and it is a school day, from 3.00 pm until 7.00 pm, or if it falls on a non-school day from 1.00 pm until 5.00 pm;
3.4.4at Christmas: from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even-numbered years and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd-numbered years;
3.4.5at Orthodox Christmas: From 3.00 pm on Orthodox Christmas Eve until 3.00 pm on Orthodox Christmas Day in odd-numbered years and from 3.00 pm on Orthodox Christmas until 3.00 pm the day after Orthodox Christmas (8 January) in even-numbered years;
3.4.6at Easter: From 3.00 pm on the Thursday before Easter Day until 5.00 pm on the Saturday before Easter Day in even-numbered years and from 5.00 pm on the Saturday before Easter Day until 5.00 pm on Easter Monday in odd-numbered years; and
3.4.7at Orthodox Easter: From 3.00 pm on Orthodox Easter Saturday until 3.00 pm Orthodox Easter Sunday in odd-numbered years and from 3.00 pm on Orthodox Easter Saturday until 3.00 pm on Orthodox Easter Monday in even-numbered years.
3.4.8In the event that Christmas and Orthodox Christmas fall on the same day, then Order 3.4.4 shall apply.
3.4.9In the event that Easter and Orthodox Easter fall on the same day, then order 3.4.6 shall apply.
BY CONSENT notwithstanding any other order herein, the children shall spend time with the wife as agreed in writing between the parties or failing agreement on the following special days:-
4.1on Mother’s Day: from 9.00 am until 5.00 pm;
4.2on the wife’s birthday: From 9.00 am until 5.00pm on the wife’s birthday if it falls on a non-school day and from 3.00 pm until 7.00 pm if it falls on a school day.
4.3on the children’s birthdays: if the children are not otherwise spending time with the wife and it is a school day, from 3.00 pm until 7.00 pm, or if it falls on a non-school day from 1.00 pm until 5.00 pm;
4.4at Christmas: from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd-numbered years and from 3.00 pm on Christmas Day until 3.00pm on Boxing Day in even-numbered years;
4.5at Orthodox Christmas: From 3.00 pm on Orthodox Christmas Eve until 3.00 pm on Orthodox Christmas Day in even-numbered years and from 3.00 pm on Orthodox Christmas until 3.00 pm the day after Orthodox Christmas (8 January) in odd-numbered years;
4.6at Easter: From 3.00 pm on the Thursday before Easter Day until 5.00 pm on the Saturday before Easter Day in odd-numbered years and from 5.00 pm on the Saturday before Easter Day until 5.00 pm on Easter Monday in even-numbered years; and
4.7at Orthodox Easter: From 3.00 pm on Orthodox Easter Saturday until 3.00 pm Orthodox Easter Day in even-numbered years and from 3.00 pm on Orthodox Easter Saturday until 3.00 pm on Orthodox Easter Monday in odd-numbered years.
4.8In the event that Christmas and Orthodox Christmas fall on the same day, then Order 4.4 shall apply.
4.9In the event that Easter and Orthodox Easter fall on the same day, then order 4.6 shall apply.
BY CONSENT both parents are at liberty to attend any school or extra-curricular event to which parents are invited, including but not limited to:-
5.1sporting fixtures;
5.2extracurricular activities that allow for parental attendance; and
5.3school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
Changeovers
BY CONSENT changeovers shall occur at the school on the days which the children attend school; and on all other occasions, each parent shall collect the children from the other parent’s residence at the commencement of his or her time with the children.
Communication
BY CONSENT the parents shall be at liberty to have reasonable communication with the children including, but not limited to, by telephone, video call, or email.
BY CONSENT the wife shall ensure the children are available to receive telephone and/or video calls from the children’s siblings each Wednesday and Saturday between 5.00 pm and 6.00 pm and at other times as agreed.
BY CONSENT for the purposes of communication in accordance with Orders 7 and 8 herein, any party who seeks to make communication with the children via mobile telephone shall ensure that their caller identification remains visible on their mobile telephone.
BY CONSENT during communication with the children in accordance with Orders 7 and 8 herein, the parent who has the care of the children shall ensure the children have privacy during communication with the other parent.
BY CONSENT the parents shall notify the other parent of their current mobile telephone number and residential address, and shall advise the other parent of any change to their mobile telephone number and residential address within forty eight (48) hours of such change occurring.
BY CONSENT in the event of either or both of the children suffering a medical emergency or serious illness, the parent in whose care the child/children are at that time shall as soon as practicable:-
12.1notify the other parent;
12.2provide the other parent with the name and contact details of the medical practitioner or medical facility upon which the child/children attends; and
12.3advise the medical practitioner and/or medical facility that both parents are to have access to the child/children’s medical records and information retained by them upon request.
BY CONSENT both parents shall inform the other parent in writing as soon as practicable of any specialist medical appointments the child/children may have, including, but not limited to with psychologists, psychiatrists, counsellors, paediatricians, speech therapists and other allied health practitioners (hereinafter referred to as ‘the children’s consultants’).
BY CONSENT both parents be authorised to communicate with the children’s consultants and for this purpose, that the each parent sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist upon whom the child/children attend while in their care to forward to the other parent, at his or her expense, copies of any medical reports.
Children’s health and schooling
BY CONSENT the parents shall do all acts and things necessary to ensure that X attends upon a speech therapist at times directed by the speech therapist, and shall follow all recommendations and referrals in relation to the child.
BY CONSENT the wife and husband do all acts and things to ensure the child/children attend upon the paediatrician at times directed by the paediatrician, and shall follow all recommendations and referrals in relation to the child/children.
BY CONSENT in respect of orders 13 and 14 herein, the parties equally share the costs of the child/children’s attendance on medical specialists or allied health practitioners as may arise from time to time.
BY CONSENT both parents shall do all things necessary to facilitate the children complying with and completing all compulsory homework, projects and tasks as allocated to each of the children by the school.
Restraints
BY CONSENT both parents shall be and are hereby restrained from denigrating the other parent of members of the other parent’s family in the presence or hearing of the children, and shall remove the children from the presence of any third party who attempts to do so in the presence or hearing of the children.
BY CONSENT the husband shall be and is hereby restrained from consuming alcohol or taking illicit drugs while the children are in his care.
Travel
BY CONSENT both parents are permitted to take the children out of the Commonwealth of Australia, and provided that, unless otherwise agreed in writing between the parents:-
21.1such travel occur during that parent’s time with the children pursuant to these Orders; and
21.2such travel occur during the NSW school holidays.
BY CONSENT for the purpose of Order 21 herein, the parent proposing to travel with the children shall provide no less than twenty one (21) days prior to the intended date of departure:-
22.1copies of return airline and/or shipping tickets;
22.2dates of departure from and return to Australia;
22.3copy of the proposed itinerary;
22.4contact details for the children for the duration of the travel, including the address and telephone numbers of their accommodation; and
22.5written confirmation of travel insurance with respect to the children and the parent with whom they are travelling.
Passports
BY CONSENT the parents shall do all acts and things necessary to enable an Australian passport to issue in each of the children’s names.
BY CONSENT the children’s passports shall be retained by the wife.
BY CONSENT upon the husband giving notice to the wife of his proposal to travel out of the Commonwealth of Australia in accordance with Order 21 herein, the wife shall release the passport she holds for the children to the husband not less than seven (7) days prior to the notified date of departure and the husband shall return the passport to the wife within seven (7) days of returning from any travel with the children.
Generally
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The costs application by the Independent Children’s Lawyer for a costs order against each of the husband and wife is dismissed.
All extant parenting applications be dismissed except costs applications between the parents, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
At the expiry of twenty eight (28) days from the date of this order or such other time as is agreed or ordered all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Property Orders
PROPERTY
Within one hundred and twenty (120) days from the date of this Order or such alternate time as is agreed in writing between the parties or ordered by this Court:-
1.1Mr Bartek (‘the husband’) shall pay to Ms Bartek (‘the wife’) the sum of $758,073;
1.2simultaneously, the wife shall transfer all of her interest in property B Street, Suburb C (‘the Suburb C property’) to the husband;
1.3simultaneously, the husband shall either discharge the mortgage over the Suburb C property or secure a release for the wife in respect of her personal covenants in regard to the mortgage over the Suburb C property; and
1.4the husband shall indemnify the wife in respect of mortgage payments and expenses, council rates, water rates and other liabilities arising out of the wife’s ownership of the Suburb C property.
In default of the husband paying to the wife the sum referred to in Order 1 hereof within one hundred and twenty (120) days from the date of these Orders, or such other time as is ordered or agreed, the husband and the wife shall:-
2.1sign all documents and do all things to cause the Suburb C property to be listed for sale;
2.2direct the listing for sale of the Suburb C property by private treaty (or at the request of either party by way of public auction) with such selling agent and auctioneer as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days of the date of these Orders with such agent as the President of the Real Estate Institute of NSW or his/her nominee shall appoint (‘the agent’) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
2.3the sale price at which the Suburb C property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement reached within fourteen (14) days of the date of these Orders shall be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Australian Property Institute (Inc) or his nominee (‘the valuer’) the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when they fall due for payment;
2.4the valuer shall, if requested by either the husband or the wife at a date three (3) calendar months after the date upon which the Suburb C property is listed for sale pursuant to these Orders and thereafter at three (3) calendar monthly intervals until the Suburb C property is sold, nominate a sale price other than the originally nominated sale price, the cost of such valuation to be borne by the parties equally;
2.5the parties shall each cooperate in every way with the agent including (without limiting the generality of the foregoing): -
2.5.1making the key available to the agent;
2.5.2allowing inspection of the Suburb C property at all reasonable times requested by the agent;
2.5.3doing or saying nothing to hinder or prevent a sale being effected;
2.5.4the husband ensuring the Suburb C property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
2.5.5signing all documents requested by the agents in relation to the listing for sale of the Suburb C property except a contract or agreement for sale which has not been authorised by the parties solicitors;
2.6the parties shall each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer pursuant to Orders
2.7the parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement being reached within fourteen (14) days of the date of the making of these Orders shall instruct such solicitor to act on the sale as may be appointed by the President for the time being of the Law Society Of New South Wales the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
2.8neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Suburb C property or to any commission.
That on settlement of the sale of the Suburb C property, the husband and wife forthwith do all acts and things to cause the settlement of the sale of the Suburb C property, the proceeds of sale to be paid in the following manner and priority:-
3.1all costs and expenses of sale including legal costs and disbursements, agents’ commission, advertising expenses and auction expenses of and incidental to the sale;
3.2the amounts required to pay all municipal and water rates outstanding with respect to the Suburb C property (if a debit, it is to be deducted from the husband’s share of the proceeds of sale or if it is a credit, it is to be reimbursed to the husband);
3.3the amount required to discharge the Suburb C mortgage;
3.4subject to order 3.2 above the balance shall be disbursed as follows:-
3.4.1such amount as is payable to the wife being an overall distribution to her of 55 per cent of the property of the parties, plus $50,000 (reduced by 50 cents in the dollar for every dollar the sale gross sale price exceeds $1,500,000 up to $1,600,000); and
3.4.2such amount as is payable to the husband being an overall distribution to him of 45 per cent of the property of the parties, plus $50,000 (increased by 50 cents in the dollar for every dollar the sale gross sale price exceeds $1,500,000 up to $1,600,000).
Notation
BY CONSENT the husband and wife each acknowledge that each of them has made full enquiry and disclosure of their superannuation entitlements. The husband and wife each declare that in reaching the agreement contained in the Terms of Settlement herein that Superannuation Entitlements have been taken into account and to bring about a just and equitable division of their matrimonial property it is the wish of both the husband and wife that the superannuation entitlements which each presently holds in their individual names remain the property of the party in whose name such entitlement stands.
Order to specify base amount
BY CONSENT pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Mr Bartek's (the husband’s) interest in Super Fund 1 being Accumulation Member Number …, the trustee shall pay to Ms Bartek (the wife) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $68,751.42 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders. This Order has effect from the operative time which is four (4) business days after a sealed copy of these Orders has been served upon the Trustee.
Chattels and personal property and the like
The husband shall provide to the wife, within thirty (30) days of the date of this order, the following:-
6.1the wife’s clothing and personal possessions as are located in the matrimonial home;
6.2the baby clothes of the parties two younger children;
6.3one half of the children’s christening clothes; and
6.4the two younger children’s white low line drawers located in the matrimonial home; and
6.5the massage table, ironing press and overlocker.
Each of the parties shall be entitled to family photographs, videos and photograph albums, and to give effect to this order:-
7.1Within thirty (30) days of the date of this order, each of the parties shall obtain a quote for the copying of family photographs, videos and photograph albums or they may agree on a company to undertake such work.
7.2If requested by the wife the husband shall make available the family photographs, videos and photograph albums to a copying service nominated by the wife.
7.3The parties shall pick the less expensive quotation and each shall pay one half of such fee in advance. If one party refuses or neglects to pay his or her one half, such sum may be paid by the other party and that amount may be added to or deducted from the amount otherwise payable to the wife.
7.4Such copies of the photographs and videos can be provided to the wife (in such form as the wife reasonably requests).
That except as specifically provided for by any paragraph contained in these property Orders to the contrary, as against the husband, the wife is the sole owner of and the husband has no interest in:-
8.1the wife’s bank accounts;
8.2the wife’s superannuation;
8.3the wife’s motor vehicle; and
8.4all other property (including choses in action) and resources of whatsoever nature and kind in the possession of the wife at the date of the making of these Orders and in the future.
That except as specifically provided for by any paragraph contained in these property Orders to the contrary, as against the wife, the husband is the sole owner of and the wife has no interest in:-
9.1the husband’s bank accounts;
9.2the husband’s superannuation;
9.3the husband’s motor vehicle; and
9.4all other property (including choses in action) and resources of whatsoever nature and kind in the possession of the husband at the date of the making of these Orders and in the future.
Generally
Both parties shall do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these property Orders.
Except as specifically provided for by any paragraph contained in these property Orders to the contrary:-
11.1the husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband; and
11.2the wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
Except as specifically provided for by any paragraph contained in these property Orders to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
As to the parties respective legal costs:-
14.1Each of the solicitors for the husband and for the wife are precluded from charging any legal costs for the instructions, conferences, attendances and correspondence or any other work relating to determining the value of the parties respective superannuation funds, providing procedural fairness to the superannuation fund, issues regarding chattels and the like as and from the conclusion of the last day of hearing and the making of these Orders.
14.2Each of the solicitors shall write to their respective clients, within thirty (30) days from the date of this order, informing them of the amount of money in legal costs which will be reduced or not charged as a consequence of these Orders.
All extant property and financial applications be dismissed except costs applications between the parties, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
At the expiry of twenty eight (28) days from the date of this order or such other time as is agreed or ordered all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
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 Bartek & Bartek 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 SYDNEY |
FILE NUMBER: SYC 2549 of 2017
| Ms Bartek |
Applicant
And
| Mr Bartek |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Ms Bartek (‘the wife’) and Mr Bartek (‘the husband’) relating to parenting issues in regard to their two younger children, Y (‘Child Y’) and X (‘Child X’) who are twins aged 11 (collectively ‘the subject children’). The husband and wife are also in dispute as to the adjustment of their property.
An Independent Children’s Lawyer has been appointed and represents the interests of the subject children.
Each of the parties were legally represented at the hearing.
The Issues
The issues with parenting were essentially limited to:-
(a)whether the children live primarily with the wife and spend about three days per week with the husband during school term (as sought by the wife);[1]
(b)initially the husband sought orders that the children live with him most of the time during school term and spend five days per fortnight with the wife. [2] This was later changed to his request for orders that the children live with him from after school Friday until Wednesday morning each alternate week during school term; or
(c)as sought by the Independent Children’s Lawyer, that the children live with the wife and spend significant and substantial time with the husband during school term.
[1] Exhibit E2 the wife’s case outline.
[2] Exhibit E3 the husband’s case outline.
The parties seem to be in agreement with regard to parental responsibility, school holidays, special occasions, overseas travel and the like.
The issues as to property fell into a number of areas including:-
(a)the valuation of the matrimonial home: whether it is worth $1.5 million or $1.6 million;
(b)whether there should be an adjustment in favour of the husband, if any, given his significant additional financial contributions and alleged non-financial contributions; and
(c)the so-called s 75(2) factors in favour of the wife.
BACKGROUND
The wife was born in 1969 and at the date of the hearing she was aged 50. The wife deposes that she is in reasonably good health apart from eczema and alopecia. She is currently in receipt of the JobSeeker payment of about $654 per week plus Family Benefits of $205 per week and child support for the subject children of about $297 per week.
The wife works in retail and says that she generally earns between $350 and $500 net per week, although that is sometimes increased to $650 per week on special occasions.
The wife has the capacity to work longer hours, but she wishes to devote time to care for the subject children. The wife was cross-examined in relation to that aspect of her evidence and I accept the veracity of it.
The husband was born in 1970 and was also aged 50 at the date of the hearing. He works in allied health and has worked in this position since about May 2018. He has some health difficulties. He contends that his back continues to cause problems for him in terms of his mobility and capacity to bend or lift weights or to undertake tasks such as gardening, painting or other physical maintenance. I treat his expression as to the impact of his back on his ability to work with some scepticism, given that he works full time in allied health and has done so for over three years. He earns about $1,733 per week gross.
The parties commenced a relationship in the late 1980s and married and began cohabitating on 23 November 1991.
There are four children of the marriage; the parties’ elder daughter currently aged 23, their second daughter currently aged 20 and the subject children, twins aged 11.
The parties separated under the same roof at their property at Suburb C (‘the matrimonial home’) in June 2011 and in February 2013, about a year and a half later, the wife and the subject children moved out of the matrimonial home.
Their marriage was dissolved by order made 30 April 2019, which became absolute on 1 June 2018.
The parties managed parenting with the subject children living with the wife and the elder daughters living primarily with the husband at the matrimonial home.
On 28 April 2017 the wife commenced proceedings in the Federal Circuit Court of Australia seeking property orders. In about June 2017 the husband filed a Response to the property proceedings.
In about July 2017 the wife amended her Application to seek parenting orders and the husband filed a Reply in August 2017 seeking orders that the subject children spend equal time with each parent.
In December 2017 the husband filed an Application in a Case seeking orders that the subject children spend time with him on each alternate weekend and each Monday and Wednesday after school. The parties then entered into an agreement where the subject children spent each alternate weekend with the parents during school term and on Monday nights with the husband.
On 30 July 2020 the husband changed his Application to seek orders that the subject children live substantially with him.
In relation to property, the parties purchased a property from the husband’s parents at Suburb D in 1992 for $50,000. The $50,000 had been saved during a period of time that the parties were living together with the husband’s parents.
The parties asserted to the Land Titles Office and the Revenue Authority of New South Wales that the property had a value of $180,000. On the evidence before me including the transfer, I am satisfied that this was a gift by the husband’s parents of $130,000 to the parties.
The parties then developed three villa units on that property and moved into one of the villa units in about 1996.
In November 1996, when the wife was pregnant with the parties’ elder daughter, the parties were involved in a serious motor vehicle accident. Both parties were injured. The wife received about $68,500 net and the husband received about $201,000 net by way of compensation.
After the motor vehicle accident the parties were unable to fund the finalisation of the development of the Suburb D property. An advance was made by the husband’s parents of $100,000, by payments of $70,000 and $30,000. I accept that a gift was also made to the parties by the wife’s parents of about $4,000.
In 1998 two of the Suburb D villa units were sold. Villa 1 and Villa 2 were sold for $215,000 and $210,000 respectively. In May 2001 the parties purchased a property at Suburb C. This property was leased out until 2004/5.
When the parties purchased the matrimonial home they borrowed about $450,000 from the National Australia Bank. The $450,000 was used to build the new home which was completed in late 2005 or early 2006.
In 2006 the parties sold Villa 3 of the Suburb D development and applied the proceeds of that sale against the mortgage over the matrimonial home.
The parties agree that the mortgage currently outstanding on the matrimonial home is about $200,000.
In these Reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE LAW AS TO CHILDREN
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)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).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(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;
(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);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[3]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[3] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
I will endeavour to apply the principles of law to the facts.
THE EVIDENCE
The wife relied upon the following documents:-
(a)her Amended Initiating Application filed 7 July 2017;
(b)her Financial Statement filed 27 July 2020;
(c)her Affidavit filed 17 August 2020; and
(d)an Affidavit of her father, Mr E, filed 12 August 2020.
The husband relied upon:-
(a)his Amended Financial Statement filed 29 July 2020;
(b)his Amended Response to an Initiating Application filed 30 July 2020;
(c)his Affidavits filed 30 July 2020 and 14 August 2020; and
(d)an Affidavit of the husband’s mother, Ms F filed 29 July 2020.
The Independent Children’s Lawyer relied upon:-
(a)the Child Dispute Conference Memorandum dated 7 February 2018; and
(b)the single expert report of Dr G dated 22 February 2020.
The following documents were tendered in evidence:-
Exhibit E1:Independent Children’s Lawyer’s Case Outline and Draft Orders;
Exhibit E2:Wife’s Case Outline and Draft Orders;
Exhibit E3:Husband’s Case Outline and Draft Orders;
Exhibit E4:Joint Draft Balance Sheet;
Exhibit E5:List of Objections filed by the husband;
Exhibit E6:Report of Dr G dated 22 February 2020;
Exhibit E7:Child Inclusive Memorandum dated February 2018;
Exhibit E8:Exhibits to wife’s Trial Affidavit;
Exhibit E9:Husband’s Tender Bundle;
Exhibit E10: Valuation of the matrimonial home by Mr H as at 11 August 2020;
Exhibit E11: Independent Children’s Lawyer’s Tender Bundle;
Exhibit E12: Notice to Produce by the wife to the husband dated 7 August 2020;
Exhibit E13: Husband’s J Bank account ending in …92 (84 pages);
Exhibit E14: J Bank account ending in …92 (12 pages in transaction listing);
Exhibit E15: Minute of Order sought by the Independent Children’s Lawyer dated 20 August 2020 (which I have adopted);
Exhibit E16: The Addendum to husband’s Tender Bundle, although it was only the wife’s income over the last few years to which he referred;
Exhibit E17: Written Submissions of the Independent Children’s Lawyer;
Exhibit E18: Costs Notice for the Independent Children’s Lawyer;
Exhibit E19: Minute of Order sought by the husband and generally adopted by the wife except for the percentage division;
Exhibit E20: Letter from the husband’s solicitors John R Quinn & Co (‘the husband’s solicitors’) dated 15 September (63) pages;
Exhibit E21: Letter from the husband’s solicitors dated 17 September 2020 (19) pages.
Exhibit E22: A letter from Super Fund 1 dated 23 September 2020 showing the husband’s superannuation as $188,791.65;
Exhibit E23: A letter from Super Fund 2 dated 22 September showing the wife’s superannuation as $20,607.39;
Exhibit E24: A letter from Super Fund 3 dated 22 September 2020 showing the wife’s superannuation as $30,680.67;
Exhibit E25: A letter from the husband’s solicitors dated 21 September 2020 (2 pages) making submissions about superannuation;
Exhibit E26: A letter from the husband’s solicitors dated 23 September 2020 (2 pages) making submissions about superannuation;
Exhibit E27: Email from my legal associate dated 25 September 2020 saying subject to any cogent arguments submissions as to various issues to be provided by Friday 2 October 2020;
Exhibit E28: Email from the wife’s solicitors Antonenas Legal Pty Ltd (‘the wife’s solicitors’) on Friday 25 September 2020 indicating that they had no objection to the correspondence being treated as exhibits and making submissions in relation to the Court’s comments about the correspondence. The wife’s solicitors also included a list of items which the wife requested be returned to her by the husband.
Exhibit E29: letter from the husband’s solicitor’s in response to the email from the wife’s solicitors of 25 September 2020;
Exhibit E30: Letter 18 September 2020 from husband’s solicitors in relation to chattels;
Exhibit E31: Email from the husband’s solicitors of 18 September 2020 in relation to the superannuation;
Exhibit E32: Email from the husband’s solicitors to Super Fund 1 of 18 September 2018;
Exhibit E33: Email from the husband’s solicitors to Super Fund 1 of 23 September 2020. This provided for an adjusted sum of $69,481.11;
Exhibit E34: Email from the husband’s solicitors to the wife’s solicitors of 23 September 2020;
Exhibit E35: Email of 25 September 2020 being letter number 1 of that date being the email to Super Fund 1 from the husband’s solicitors revising the figure in the superannuation fund to $68,751.42;
Exhibit E36: Email of 25 September 2020 being letter number 2 of that date being a letter to Chambers;
Exhibit E37: Email of 25 September 2020 being letter number 3 of that date being a letter enclosing correspondence to the wife’s solicitors;
Exhibit E38: Form of Consent Order headed ‘Superannuation Entitlement Order’. This had a sum of $68,751.42 as the base amount; and
Exhibit E39: Letter to husband’s solicitors from Super Fund 1 advising they have no objection to the making of the orders.
On the 26 August 2020 the husband’s solicitors wrote to Chambers advising that the wife had requested that the husband provide a more updated figure in relation to his superannuation entitlements and indicated that an amended draft order with an updated figure would be provided upon his return from leave on 2 September 2020.
On 16 September 2020 my legal associate wrote to the parties’ solicitors noting that this had not occurred and requested that the amended draft order be provided to Chambers together with the parties’ written submissions in respect of whether the Court was to assume that the joint household contents in the agreed sum of $2,500 remained in the matrimonial home, and if so whether they were to be retained by the husband. Their response was to be provided to Chambers by 4.00 pm on the 23 September 2020.
On 16 September 2020 an email was sent to Chambers from the wife’s solicitors attaching a list of household items.
On 17 September 2020 my legal associate wrote to the parties’ solicitors seeking clarification as to whether the list of household contents provided by the wife were the ones she wished to retain, and if so whether it was by consent and if not, which items were in issue. Their response was to be provided to Chambers by 4.00 pm 23 September 2020
On 17 September 2020 emails were sent to Chambers by the solicitors for the husband dated 15 September 2020 (63 pages) and dated 17 September 2020 (19 pages).
On 18 September 2020 the husband’s solicitors sent two emails to Chambers; the first was in respect of the chattel contents and the other in relation to superannuation.
On 21 September 2020 my legal associate wrote to the parties’ solicitors asking whether there was any reason that the wife’s solicitors emails ought not to be treated as submissions and if not, the emails would become exhibits E20 and E21 respectively. The correspondence sought clarification in respect of whether the base amount in the superannuation consent order should be $69,279. Further, the parties’ solicitors were told that there would be no further submissions in respect of the value of the matrimonial home, as it had been the subject of final submissions. Finally, in respect of the time to settle the matrimonial home, the Court noted the submissions in E20 and invited a further reply from the wife’s solicitors in the specified time. Their response was to be provided by 4.00 pm on 23 September 2020.
On 21 September 2020 the husband’s solicitor’s provided their written submissions.
On 22 September 2020 the wife’s solicitors provided their written submissions in two separate emails.
On 23 September 2020 the husband’s solicitor provided further written submissions.
After receiving voluminous communication from the parties, in particular the solicitor for the husband, I arranged for my legal associate to send an email to the parties in the following terms:-[4]
[4] Exhibit E27.
Good Morning Mr Antonenas and Mr Beilby
The Court has received another flood of letters.
1. The letter from Super Fund 1 dated 23 September 2020 showing the husband’s superannuation as $188,791.65 is exhibit E22;
2. The letter from Super Fund 2 dated 22 September showing the wife’s superannuation as $20,607.39 is exhibit E23;
3. The letter from Super Fund 3 dated 22 September 2020 showing the wife’s superannuation as $30,680.67 is exhibit E24;
4. The letter from John R Quinn & Co dated 21 September 2020 (2 pages) making submissions about superannuation is exhibit E25; and
5. The letter from John R Quinn & Co dated 23 September 2020(2 pages) making submissions about superannuation is exhibit E26.
If either party objects to the treatment of these letters as exhibits please let Chambers know by close of business Friday 2 October 2020.
No form of order approved by the trustee has been provided. Please let Chambers know by close of business Friday 2 October 2020 that the trustee has had procedural fairness. Any order approved by the trustee (irrespective of the base amount - to be determined by the Court) will be treated as an exhibit, unless there are cogent arguments to the contrary by close of business Friday 2 October 2020.
No responsive or cogent submissions have been provided in relation to the question of the furniture with the agreed value of $2,500. Please let Chambers know by close of business Friday 2 October 2020 if there are any submissions for the Court to consider. Any timely submissions will be treated as exhibits unless there are cogent arguments to the contrary by close of business Friday 2 October 2020.
His Honour has asked me to inform each of the parties’ solicitors that these issues of value of superannuation, procedural fairness to the Trustee and nature and methods of dividing furniture and possessions ought to have been resolved well before final submissions.
As a courtesy to the parties and to save imposition on them of additional legal fees this process was put in place. That approach has been undermined.
It is now likely to have added significant cost to these parties. The tone of the letters produced by the solicitors is at times impertinent, adversarial and unhelpful.
There seems to be a correspondence war between legal practitioners.
If this behaviour does not stop His Honour may direct that one or both solicitors be precluded from charging for such work and the correspondence flowing from it. Further, if a legal practitioner is precluded from charging costs for preparation of material which is part of this war, he/she will be required to particularise for his/her client the amount of money by which the client’s legal costs will be reduced as a consequence of such direction.
This email will be exhibit E27 subject to any cogent arguments to the contrary by close of business Friday 2 October 2020.
Would you please acknowledge receipt of this email by return.
[Name omitted]
Legal Associate to the Honourable Justice Benjamin AM
Family Court of AustraliaHobart Registry
Given the responses to that letter I will be treating the following documents as Exhibits.
My associate received an email from the husband’s solicitors on Friday 25 September 2020 indicating that they had no objection to the correspondence being treated as exhibits and making submissions in relation to the Court’s comments about the correspondence.
The wife’s solicitors also included a list of items which the wife requested be returned to her by the husband.[5] I will treat the reply from the husband’s solicitors to the email from the wife’s solicitors of 25 September 2020 as an exhibit.[6]
[5] Exhibit E28.
[6] Exhibit E29.
The husband had written to the Court in relation to these chattels by letter dated 18 September 2020.[7] I was also provided with a further letter from the husband’s solicitors of 18 September 2020 in relation to the superannuation.[8]
[7] Exhibit E30.
[8] Exhibit E31.
I was also provided with a copy of a letter from the husband’s solicitors to Super Fund 1 of 18 September 2018.[9]
[9] Exhibit E32.
I was provided with a further letter from the husband’s solicitors to Super Fund 1 of 23 September 2020.[10] This provided for an adjusted sum of $69,481.11.
[10]Exhibit E33.
I was provided with a letter from the husband’s solicitors to the wife’s solicitors of 23 September 2020.[11]
[11]Exhibit E34.
On 25 September 2020 I received three letters from the husband’s solicitors. The first letter was one addressed to Super Fund 1 from the husband’s solicitors revising the figure in the superannuation fund to $68,751.42.[12]
[12]Exhibit E35.
The second letter indicated that the husband consented to the correspondence being treated as exhibits and making submissions in relation to that letter. Those submissions dealt with superannuation and chattels.[13]
[13]Exhibit E36.
The third letter dated 25 September 2020 was a letter enclosing correspondence to the wife’s solicitors.[14]
[14]Exhibit E37.
The husband’s evidence
The husband gave evidence in terms of his affidavits filed 30 July 2020 and 14 August 2020 and his Financial Statement filed 29 July 2020.
The husband was challenged in relation to his current assertion that the subject children effectively lived with him almost every weekend from shortly after February 2013 to the commencement of the proceedings in April 2017.
That evidence is directly contradicted by the evidence of the wife. In addition, as I have outlined elsewhere, it is contradicted by the husband’s own evidence in his affidavit of 15 August 2017 and by his action in seeking alternate weekend time in his Application in a Case filed 1 December 2017.
I am satisfied that the husband’s evidence in that regard was at best, exaggerated and at worst, fabricated. He dissembled when giving evidence in that regard and at times seemed to endeavour to reconstruct his evidence.
The second area where I had concerns about the husband’s evidence was his denial that he was aware that about $2,000 per month was paid into his account by way of a Carer’s Allowance. I have dealt with that in detail elsewhere in these Reasons, however, I am satisfied that the husband knew of these funds going into his account and his answers denying that knowledge were inherently implausible and the excuse was fabricated.
A third area where the husband’s evidence was challenged was in regard to the child support payable for the subject children. As I have said elsewhere, the husband has had occupation of the matrimonial home with the parties’ adult daughters.
Each party sought costs and I intend to make an order enabling parties to bring such costs orders as they consider appropriate after the Reasons are delivered.
However, as I raised with the solicitors after I reserved, I was very concerned and troubled about the significant flow of correspondence in relation to matters regarding chattels and superannuation. These ought to have been dealt with before or during the trial.
In an email I directed to be sent to the parties, I raised the question as to whether the solicitors should be precluded from charging for the work in relation to those matters subsequent to the last day of hearing. Each of the solicitors made submissions and offered some level of remorse.
However, hundreds if not thousands of dollars have been expended on wasteful communication which ought to have been sorted out in advance of the trial or during the trial. These issues have occupied significant time of the parties, their lawyers and this Court.
Accordingly, and as I warned, I will make orders precluding the solicitors for charging in relation to any of the legal work undertaken by them for their clients between the Court, themselves, their clients, Super Fund 1 including correspondence with the Trustees and other superannuation providers subsequent to the last day of hearing.
Further, I will direct that each solicitor particularise to their respective clients the amount of money by which their legal costs will be reduced as a consequence of such order.
This direction is not intended to otherwise limit, deny or expand any broader costs applications that may arise from the orders which are made in these proceedings.
I certify that the preceding three hundred and fifty (350) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 November 2020.
Associate:
Date: 24 November 2020
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