Baxter and Baxter
[2010] FMCAfam 897
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAXTER & BAXTER | [2010] FMCAfam 897 |
| FAMILY LAW – Parenting proceedings and application for alteration of property interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 |
| Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 Hunt v Zuryn (2005) FLC 93-226 AJO v GRO (2005) FLC 93-218 Norbis & Norbis (1986) 161 CLR 513 Pierce & Pierce (1998) FLC 92-844 Williams & Williams [2007] FamCA 313 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005, p 4 J Johnston, “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 J McIntosh and R Chisholm, “Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research” (2008) 20(1) Australian Family Lawyer 3 |
| Applicant: | MS BAXTER |
| Respondent: | MR BAXTER |
| File Number: | WOC 48 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 4 August 2010 |
| Date of Last Submission: | 4 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Ms Rossi |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Mr Carbone |
ORDERS
The parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Children [Y] born in 1999 and [Z] born in 2007.
The Children live with the Mother.
The Children spend time with the Father during the school term as follows:
(a)Stage 1 – present until 1 February 2011
(i)Each alternate weekend from 4:00pm Friday to 4:00pm Sunday;
(b)Stage 2 – 1 February 2011 to 1 August 2011
(i)On the first weekend of a four weekend cycle, from 4:00pm Friday to 4:00pm Sunday;
(ii)On the third weekend of a four weekend cycle, from 4:00pm Friday to before school or day care on Monday;
(c)Stage 3 – from 1 August 2011
(i)Each alternate weekend from 4:00pm Friday to before school or day care on Monday;
The Child [Y] is to spend time with the Father during school holidays as follows:
(a)Provided the Father gives not less than 4 weeks advance notice to the Mother, and provided he himself is on holidays:
(i)For half of each mid-year school holiday period as agreed between the parents, but if they are unable to agree then the first half of the holiday period in even numbered years and the second half in odd numbered years;
(ii)For two weeks during the December/January school holiday period as the parents agree, but if they cannot agree then the first two weeks in January in even numbered years and the last two weeks of the school holiday period in odd numbered years.
The Child [Z] is to spend time with the Father during school holidays as follows:
(a)During any school holiday period, provided the Father gives the Mother not less than four weeks advance notice, and provided the Father is himself on holidays and provided that [Z]’s time corresponds with either the commencement or conclusion of [Y]’s time with her Father:
(i)In 2010 for a four night period;
(ii)In 2011 for a five night period;
(iii)In 2012 for a seven night period;
(iv)In 2013 for the same periods as for [Y].
During any school holiday period when the Father does not give notice to the Mother in relation to his ability to spend time with the Children during school holidays in accordance with Orders 4 and 5, then the Father’s time with the Children in accordance with Order 3 does not abate, and will continue through the school holidays.
Unless the parents are otherwise able to agree, the Children are to spend time with the Father on special occasions as follows:
(a)The Father’s time is suspended on the Mother’s Day weekend;
(b)If the Father’s weekend time does not coincide with the Father’s Day weekend, his time on the immediately preceding weekend is suspended, and the weekend of Father’s Day will be a contact weekend.
(c)From 12:00pm on Christmas Eve to 2:00pm on Christmas Day in even numbered years, and from 2:00pm Christmas Day to 4:00pm Boxing Day in odd numbered years
Unless these Orders otherwise provide, change-over is to take place at [Town B].
During the time that the Children are with either parent, both parents are to do all things necessary to facilitate the Children communicating with the other parent by telephone, email, Skype or other form of electronic communication, as often as the Children request, but not less than once every third day.
Both parents advise the other of any interstate travel they intend to make with the Children, and provide the accommodation and contact details for such travel.
The parents are to ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a)Any serious medical problems or illnesses suffered by the Children;
(b)Any medication that has been prescribed for the Children that needs to be taken whilst they are in the care of the other parent, who shall then ensure that Child is given such medication;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child;
(d)Any social or religious function which the Child is to attend;
(e)The residential address of the parent;
(f)The telephone contact number of the parent;
(g)Any other matter relevant to the welfare of the Child.
Each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Child.
Each of the parents are to be permitted to liaise directly with the Child’s schools, sporting bodies and/or extra curricular organisations to obtain any necessary information about the Child’s progress and that both parents are to authorise the schools , sporting bodies and other organisations to facilitate this.
The Father shall ensure the Children have their own appropriate beds, bedding and/or sleeping accommodation whilst they are in his care.
As and from 30 August 2010, the Father pay to the Mother spousal maintenance in the sum of $300.00 per week, until:
(a)The cessation of the Mother’s university studies at the end of the university semester 2012; or
(b)The Mother ceases her university studies at any time before this; or
(c)The Mother enters into full-time employment
whichever first occurs.
The parties forthwith sign all documents necessary to disburse all of the monies held in a controlled monies account with [R Lawyers] to the wife.
The Husband forthwith sign all documents necessary to transfer to the Wife all his right, title and interest to the [motor vehicle].
Other than as otherwise set out in these orders the parties have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
That the Orders (a) to (b) below have effect from the operative time:
(a)In accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Husband’s interest in the [C Superannuation Fund], the Wife is entitled to a base amount of $12,601.00 and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
(b)Having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the [C Superannuation Fund].
(c)The operative time for this Order is four business days after the date of service of the Orders on the Trustee of the [C Superannuation Fund].
The Husband and Wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointment pursuant to Seciton 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Any party seeking an order for costs must submit written submissions not exceeding 250 words within 28 days. Any response to the same must be by way of written submissions not exceeding 250 words to be filed within a further 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Baxter & Baxter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 48 of 2009
| MS BAXTER |
Applicant
And
| MR BAXTER |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in the matter of Baxter. I note that these are abbreviated reasons, and that if it becomes necessary to actually take out the judgment, the full unedited version of the judgment will appear. The only parts that are being excised are quotations from reports and the section that deals with the applicable law.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) 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:
(a) 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
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(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).
Primary considerations
(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).
Additional considerations
(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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.
Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the husband in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
In relation to add-backs, the applicable law can be found in decisions such as the Full Court's decision in AJO v GRO (2005) FLC 93-218.
Parenting
I deal firstly with parenting issues, and I start by considering the evidence of the family consultant. There is a family report dated 23 March 2010. The family consultant was not required for cross-examination. The report only covers issues of [Z]’s ability to spend overnight and extended time away from the mother. It provides some insight, though, into [Y] and the issues relating to her. I incorporate the report’s recommendations at paragraph 31:
It is recommended that [Z]’s overnight time with his father increase gradually to coincide with those school holiday periods when [Y] is also spending time with her father, for example,
· until [Z] is three years he spends a three night block with his father during school holidays;
· when [Z] is three years, he spend a four night block with his father during the school holidays;
· when [Z] is four he spend a five night block with his father during the school holidays;
· when [Z] is five years old, he spend a one week block during the school holidays.
In circumstances where the father in these proceedings did not require the cross-examination of the family consultant, and further in circumstances where I have heard no lay evidence that in my opinion I would give more weight to than the independent evidence of the family consultant, I accept the family consultant’s recommendations.
I acknowledge that the father was put in a difficult situation where, in order to have cross-examined the family consultant, he would have had to seek an adjournment, but this was a planning issue for the father’s lawyers. It’s not the responsibility of the Court to ascertain who the father’s witnesses are and to then arrange them. Notwithstanding those difficulties, as I have indicated, for the reasons I have just stated, I accept the family consultant’s recommendations.
I am not just arbitrarily accepting what the family consultant says. Her evaluation of the matter at paragraphs 22 to 30 is, in my opinion compelling, and is based on matters consistent with the other evidence in this case. [Z] is attached to both his parents, but in different ways. Geography precludes a more idyllic arrangement which would see more frequent contact. The fact is that [Z] is unsettled when he returns to his mother. There is no challenge to this evidence, and indeed, it’s hard to imagine how it could be challenged.
The family consultant’s evidence is the best evidence I have relating to this issue. I do not accept the father’s argument that just because he had the extended care of [Z] when he was a baby, that this indicates that somehow [Z] can cope with extended separations from his mother at age 3. With respect, this shows a real lack of understanding of attachment behaviour in children.
I do not accept the father’s arguments that [Z] can cope with extended separation from his mother because he goes to day care four days a week. Again, with respect, this argument demonstrates a lack of understanding of attachment behaviours and seeks to compare apples to oranges, because it ignores that day care does not involve over night time, and is therefore not an extended separation anyway.
I accept the mother’s proposal about holiday contact, which means that by 2012 [Z] will be spending seven-night blocks with his father. At this point, however, I differ with the mother. Provided the father is personally available to spend time with the children during school holiday periods, there is no reason why he should not be able to have school holiday time with both children, limited to half of the short school holidays, and two weeks of the long school holidays. It must be recognised that [Z] will, by 2012, be old enough to cope with at least seven nights away from his mother. He will be in the presence of his sister and telephone and other communications will be possible. I prefer, therefore, to make an order dealing with these issues now rather than leave future unresolved issues up for further disputation.
The second major parenting issue relates to whether contact ought to end on Sunday nights or Monday before school. In short, the mother’s case is that this is far too disruptive for the children, especially [Z], and she gives evidence of this in the context of the one occasion when it has happened so far.
The father says that returning children on Mondays gives him substantial and significant time, as defined in the Act, and therefore the opportunity to do more things, especially interaction with school and day care. The father also says that the real issue is not the children’s anxiety but the mother’s anxiety. I record here that much to the annoyance of the court and of the mother, the father amended his proposal about returning the children on Monday at the hearing itself.
I’m required to make a decision in the best interests of [Z] and [Y]. In the context of Division 12A proceedings there is certainly flexibility to accommodate changes in proposals. At the end of the day, as annoying as it is to the mother and her advisers, there is no prejudice to the mother. All of the relevant evidence was before the court. Both parents had the opportunity to give evidence about their perceptions of the one time when they trialled Sunday overnight contact.
The father’s proposal involves extending alternate weekend time to three nights – Friday, Saturday and Sunday night. It is common ground this has not occurred before. The trial was for Saturday and Sunday night. The father sets out the Monday morning proposals in his proof of evidence, that is to say, his evidence is set out there.
The impression I have formed is that due to geography, i.e. the need to get the children back to the Central Coast, it is very rushed for the children, especially for [Z], who is put into the car asleep, wakes up, eats his breakfast, goes back to sleep until he arrives at day care. Clearly this is not ideal for [Z], and I must say it is no wonder that the mother expresses concern about him being out of sorts for days thereafter.
The father’s proposal, in the light of his own evidence, lacks insight into his own son’s needs. It is clearly disruptive to [Z] routine. I need to consider, however, the benefit to the children of having their father involved in day care and school, especially when the Monday return is not so disruptive from [Y]’s perspective.
As always, these decisions involve balancing of different considerations. What is not in issue is whether [Z] can cope with the separation from his mother for three nights. I am satisfied he clearly can. The real issue is disruption to [Z]’s routine as against the benefit of extended contact, both quantitatively and qualitatively. Both parents need to realise in this case that [Z] is going to change as he gets older. This is what the family consultant is trying to say at paragraph 28 of her report. What [Z] can’t cope with today he will probably be able to cope better with in six months, and then in 12 months the problem will be a distant memory.
Parents tend to be fixated on their positions in litigation today, and lose sight of the inevitable developmental changes that will occur in children as time goes by. I don’t think [Z] is ready for an early morning return on a Monday as yet, but I think he will be soon. What I propose is to gradually introduce a Monday morning return over a period of 12 months. In six months’ time, every second contact visit will be a Monday morning return. In 12 months’ time each contact visit will be that. I’m satisfied that within this time frame, and on the basis of the evidence, [Z] will cope and his parents will cope.
Let me deal with the statutory pathway. The parties agreed to equal shared parental responsibility. Section 65DAA requires me to consider equal time or substantial and significant time. No one asks for equal time. It is, in any event, neither in the children’s best interests, nor reasonably practical.
The father proposes substantial and significant time as defined in section 65DAA, subsection (3). I propose to introduce that gradually over time because I have concerns about reasonable practicality under subsection (5), geographical issues in particular, but I also have concerns because it is not in [Z]’s best interests, and here I refer to section 60CC, subsection (3), paragraph (d), the effect on the child’s circumstances; paragraph (e), issues of practical difficulty; and paragraph (g), issues relating to [Z]’s attachment and development.
Alteration of property interests
I turn now to the section 79 property application. I find the pool of assets to be as follows: firstly dealing with non-super assets, there is the jointly owned [motor vehicle], $18,000; the contents owned by the wife, $5000; the jointly owned moneys in the trust account, $81,610; and the husband’s 250 [I shares] which were valued on Friday at $3.48, which totals $870. This means total non-super assets of $105,480.
There are superannuation assets. The wife’s super, $3193; the husband’s super, $92,000, so total super $95,193. There are no liabilities. That means that the total assets are $200,673, of which super is 47 per cent and non-super is 53 per cent. In relation to the findings that I have made, I note as follows.
Firstly, I find that the husband has financial resources by way of employment-related benefits such as leave, long service leave etc. These are difficult to value. It is a benefit to him but I cannot treat it as property. In addition, the husband has further superannuation beyond the $92,000 which was accumulated in the post-separation period. This is a benefit available to him, but I do not treat it as property.
Secondly, in the pool I have excluded any money held in trust for the child [Y]. Thirdly, I have excluded from the pool for present purposes the husband’s savings of $26,000 which I find was accumulated after the date of separation. I recognise this is property he has, but I do not accept counsel for the wife’s argument that the wife has contributed to this as homemaker and parent. There are other ways in which I propose to adjust for this.
Next, if legal fees have been paid, clearly they have been paid from post-separation income, and therefore I decline to add anything back in this regard. Fifthly, in the absence of evidence to the contrary I find that the wife’s credit card debt to have been accumulated in the post-separation period. This is consistent with her own evidence, and accordingly, I decline to include it in the pool. Sixthly, there is no evidence before me, which I accept, of any loans owing to any other person.
I note that it is a relatively small pool of assets, almost equally split between super and non-super, and I note that it is a great shame that the parties could not sort this issue out themselves.
I turn now to look at contribution. Apart from the issue of the husband’s additional financial contribution to which I will shortly refer, I find that the contribution during cohabitation was equal. True it is that the roles played by the husband and wife at discrete times was different, but in the ultimate assessment it was within the scope of the marriage partnership. They both did what they could both diligently do and with a view to providing for their family.
However, I need to consider the husband’s claim for greater financial contribution. He alleges, and the wife concedes, that he received a Victim’s Compensation Tribunal claim of $13,500 net in 1999 which was applied to purchase one of the homes. The husband alleges that he had some money at the commencement of cohabitation and the wife concedes this, but it is not clear from the evidence how much it is, and I do not believe that I can simply infer this.
The husband alleges that his family provided financial assistance during [K’s] illness, and the wife concedes that this was at least $5000. In these circumstances, what, if any, adjustment should be made in the husband’s favour for contribution? He says 10 per cent, the wife says nil, especially due to her post-separation financial contribution to the welfare of the family by her.
This is a pool of assets where the husband has contributed almost 10 per cent based on current values. The authorities say that I must consider contribution in terms of its value to the parties, but also having regard to the myriad contributions made over the course of the marriage. The parties cohabited for almost 14 years. Whilst the issue of the husband’s contribution is significant, a lot of water has gone under the bridge in this period. To give him a full 10 per cent is to be too generous to the husband and not just and equitable to the wife. I propose to allow the husband a 7.5 per cent adjustment in this regard.
I turn now to consider the wife’s claim to post-separation contribution as homemaker and parent. For a period of more than two years from the date of separation to the hearing, the wife has borne the greater burden of caring for the children. True it is that the husband has paid child support of $236 per week, but the actual exclusive costs of providing for the children was, according to the wife, $287 per week, and that does not cover expenses such as accommodation after February 2009.
The evidence indicates that the husband declined to assist in expenses beyond child support, as if that somehow discharged the totality of his financial obligation in the circumstances of this case. In the post-separation period the husband managed to improve himself financially, whereas the mother lived from week to week. An adjustment for post-separation contribution is clearly called for in these circumstances. I assess this at 2.5 per cent.
Having regard to all of those matters, I conclude the contribution should be assessed in favour of the husband at 55 per cent.
I turn now to consider section 75(2), considerations. The husband concedes 10 per cent, the wife asks for 15 to 20 per cent. Clearly the focus of this case is on: (a) the capacity for gainful employment and earning capacity of each party; (b) the care and control of children; (c) the extent to which a maintenance order will enhance earning capacity.
There is a clear and significant earning capacity differential which is likely to continue beyond the completion of the wife’s university course. It is highly unlikely that the wife will earn anywhere near the same income as the husband will if she does work in the community sector. It would, in any event, take many years. Even if I make a maintenance order, it does not redress this significant earning capacity differential.
The children are aged 11 and 3. There will be a long period of care for the mother. Her capacity to work full-time and recover in an economic sense from the consequences of the marriage is a low one. The husband has a number of financial resources not available to the wife, including his employment related benefits and his post-separation superannuation.
In the circumstances of a small pool of assets, the percentage needs to be considered in terms of its dollar value. 10 per cent is $20,000. The husband has saved more than that in two years. However, 20 per cent I believe to be excessive, and I adopt instead a figure of 15 per cent as a section 75(2) adjustment, which I consider to be just and equitable.
Lastly, what is the just and equitable order to make in this case? If the wife gets 15 per cent on 75(2) and the husband gets 55 per cent on contribution, she gets, in the ultimate analysis 60 per cent or $120,404 and he gets 40 per cent, or $80,269. For the wife, if she retains her super, $3193, the [motor vehicle], $18,000, the contents, $5000, the sale proceeds, $81,610, that would leave her with $107,610. In order to get her up to her entitlement of $120,404, there would need to be a super split in her favour of $12,601. That leaves the husband with his superannuation and shares and the other assets and resources I have referred to.
Is it just and equitable that the wife gets 100 per cent cash and the husband 100 per cent super? I believe it is. He retains the other post-separation assets and financial resources not part of the assets to which I have applied section 79. His accommodation needs are stable. The wife is renting. His financial position is positive. The wife’s is not, and I am satisfied that it is just and equitable in an overall sense.
Spouse maintenance
I turn now to consider the wife’s spouse maintenance claim. The wife seeks spouse maintenance at $300 per week. Whilst the order does not propose a time limit, wife’s counsel quite properly indicated that a time limit was appropriate and that a reasonable one would be the completion of the wife’s university studies. She is in the first year of a three-year course, which therefore ends in 2012. A reasonable timeframe is appropriate. If I make an order it would expire at the conclusion of the university semester at the end of 2012.
The wife says she is unable to maintain herself. I agree. She is a full-time university student. She has the primary care of two children. This combination means that it is unreasonable to expect her to also work. She has satisfied me about what can be described as the threshold issue. The wife says that she is in need to the extent of $300 per week. Whilst I think that some of her expenses in her form 13 are “rubbery”, in the sense that she does not adequately explain how she gets by from week to week with the deficit she discloses, nothing turns on this.
The fact is, I am required to disregard her Centrelink benefits. In circumstances where (1), the child support paid is less than the actual expenditure on the children, i.e., $236 versus $287; and (ii) her unchallenged living expenses personally are at least $349, I find that her need is at least the $300 that she claims.
The next issue is the husband’s capacity to pay. He clearly lives frugally. He has clearly managed to save money by living with his parents. Even without a close analysis of his financial statement, he shows a surplus of $216 per week. On closer analysis, his claim for $139 at item 20 was quite properly withdrawn by him, meaning that his surplus is $355 per week. The capacity having been established, there is no need for me to comment on whether his income is actually as he asserts.
His counsel argues, however, that even if he has capacity, given the unchallenged evidence that he is living with his parents to save up the deposit for a home for the children and himself, he ought not to be penalised for, in effect, living frugally, with the ultimate ambition to do something that is for the benefit of the children. However, I have to apply the law, and when I look at sections 72, 74 and 75, this is not a matter that I can take into account. I regard it as a moral consideration, but not a legal consideration. On the evidence before me, the husband clearly has capacity to pay.
Subject to confining the duration of the order to being until either the cessation of the wife’s university studies at the end of the university semester 2012 or the wife ceasing her university studies at any time before then or the wife entering into full-time employment, I order the husband to pay spouse maintenance at $300 per week, the first payment on 30 August 2010, as the wife directs, and weekly thereafter.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 9 August 2010
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