BENWORTH & BENWORTH
[2011] FamCA 328
•13 May 2011
FAMILY COURT OF AUSTRALIA
| BENWORTH & BENWORTH | [2011] FamCA 328 |
| FAMILY LAW - CHILDREN – proposal for the child to live with the mother in London, United Kingdom – consideration of the benefit to the child of a meaningful relationship with both parents – likely effect on the child – all relevant considerations to the child’s best interests FAMILY LAW - PROPERTY SETTLEMENT – assessment of contributions – adjustment in relation to s 75(2) matters – whether proposed orders are just and equitable FAMILY LAW - SPOUSAL MAINTENANCE – whether the father has the capacity to pay. |
| Family Law Act 1975 (Cth): ss60CA, 60CC(2) & (3), 61DA, 65DAA |
| Mazorski & Albright (2007) FamCA 520; Godfrey & Sanders (2008) FLR 287 at 298; Mulvany & Mulane (2009) FLC 93-404 at 83,450; McCall & Clark (2009) FLC 93-405 at 83,476. |
| APPLICANT: | Mr Benworth |
| RESPONDENT: | Ms Benworth |
| FILE NUMBER: | SYC | 8541 | of | 2007 |
| DATE DELIVERED: | 13 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rose J |
| HEARING DATES: | 9 February 2010; 21 January 2011; 8 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | L Judge |
| SOLICITOR FOR THE APPLICANT: | Goldrick Farrell Mullan |
| COUNSEL FOR THE RESPONDENT: | R Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Reid Family Lawyers |
Orders
Parenting
That all previous Orders made in relation to M (“the child”) born … May 2004 are discharged.
That the parties have equal shared parental responsibility for the long-term care welfare and development of the child and as defined in section 4(1) of the Family Law Act1975 (“the Act”) AND that the parties shall note the obligations created by this Order and the parenting orders made this day and the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
That each of the parties be responsible for the day to day care welfare and development of the child when he is in his or her care.
That the child live with the mother.
That the application of the mother for an order permitting her to live with the child in London, United Kingdom is dismissed.
That the father may spend time and communicate with the child as follows:
During school term
(a)Each alternate week from after school on Thursday until the commencement of school on Friday in accordance with the current sequence pursuant to the Orders made by consent on 9 February 2010.
(b)Each other week from after school Thursday until the commencement of school on Monday in accordance with the current sequence pursuant to the Orders made by consent on 9 February 2010.
School holidays
(c)Half of each end of term school holiday period as agreed between the parties or failing agreement upon the father giving the mother six (6) weeks written notice.
Other occasions
(d)From 6.00pm on Christmas Eve to 8.30am on Boxing Day in even numbered years.
(e)On Father’s Day from 9.00am until 6.00pm in the event that Father’s Day does not fall on a day that the child would otherwise spend in the care of the father.
(f)On the child’s birthday for such period as agreed between the parties or failing agreement for three (3) hours commencing from after school should the birthday fall on a week day or for the same period on a weekend should the birthday fall on such a day, as agreed or failing agreement upon the father giving the mother 14 days written notice.
(g)On the father’s birthday from 9.00am to 6.00pm.
(h)During such alternative or substituted periods as the parties may agree upon from time to time.
Communication
(i)The father may telephone the child every second day at all reasonable times.
That Order 6 is suspended as follows:
(a)On the mother’s birthday from 9.00am to 6.00pm.
(b)On Mother’s Day from 9.00am to 6.00pm.
That unless otherwise agreed the father or Ms A Benworth shall collect and return the child in accordance with these Orders by collecting him from his school during school term and otherwise returning him to the mother’s home and on non-school days collecting the child from and returning him to the mother’s home.
That the mother authorise and request the Principal of any school attended by the child to furnish the father at his request and at his expense if necessary copies of all of the child’s school reports and relevant notices and correspondence.
That in the event of the child becoming seriously ill or injured whilst in the care of one of the parties then that party shall promptly notify the other party of the relevant information as well as the name and telephone number of such hospital and medical practitioner from whom the child is receiving or likely to receive treatment.
That the parties are restrained from engaging in any derogatory comments about the other or any member of his or her extended family in the presence or hearing of the child and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that fashion.
The Court requests that until further order the Australian Federal Police place M (“the child”) born … May 2004 be placed on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the child from Australia in breach of these Orders AND this Order shall cease to have effect 10 years after the date it is made.
That neither party is permitted to remove the child from the Commonwealth of Australia without an order of the Court.
That the Regional Registry Manager NSW or her nominee shall immediately notify the Marshal, Family Court of Australia, the Australian Federal Police (Family Law Team) at Sydney, and New South Wales Police of these Orders by email attaching a copy of these Orders.
That within seven (7) days from the date of these Orders the parties consult with the Regional Co-ordinator, Child Dispute Services at the Sydney Registry for the purpose of receiving a recommendation of a suitable program in which they could be engaged to improve communication between them and co-operative parenting in relation to all matters affecting the child AND they shall then take all immediate steps to enrol in such a program and keep the other party informed of such enrolment and completion of the program.
Property settlement
That the father pay to the mother the sum of $108,652.00 on or before 5.00pm 15 August 2011 or by such other date and time that the parties may agree upon in writing.
That upon the father complying with Order 16 the mother shall forthwith sign all documents and do all things necessary to transfer to the father the whole of her right title and interest in the property situate at and known as … S Street, Sydney Suburb 1 in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier … (“the Sydney Suburb 1 property”).
That the father pay all mortgage instalments, council rates, water rates and all other outgoings in relation to the Sydney Suburb 1 property from the date of these Orders and he shall indemnify the mother in respect of any claims and demands that may be made upon her in relation to such liabilities.
That on or before 5.00pm 10 June 2011 or such other date and time as the parties may agree upon in writing the father shall transfer to the mother the whole of his right title and interest in the property situate at and known as … J Street, London in the United Kingdom (“the London property”) and all of the contents thereof which may be owned by the parties jointly or severally AND FURTHER THAT the father sign all documents and do all acts and things necessary to ensure that the mother is acknowledged and permitted to receive all rent paid or payable for the occupation of the London property from the date of these Orders.
That the mother forthwith pay all mortgage instalments, council rates, water rates and other outgoings in respect of the London property and she shall indemnify the father in respect of any claims and demands that may be made upon him in relation to such liabilities.
That the parties equally bear the liability for any capital gains tax arising from the transfer by the father to the mother of his interest in the London property pursuant to these Orders and they shall appoint an independent accountant to calculate such liability if any and meet the fees of doing so equally.
That the parties sign all documents and do all acts and things necessary for the purpose of transferring to the father all funds held in trust by their agent in the United Kingdom for payment of tax or otherwise PROVIDED THAT such funds may be applied by the parties in satisfaction of their joint or individual liability for capital gains tax pursuant to these Orders.
Declare that each of the parties is the beneficial owner and entitled to all items of personalty in his or her respective possession and superannuation benefits in his or her name respectively subject to the Orders made this day.
Spousal maintenance
That the application of the mother for an order for spousal maintenance is dismissed.
Procedural
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Benworth & Benworth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC8541 of 2007
| Mr Benworth |
Applicant
And
| Ms M Benworth |
Respondent
REASONS FOR JUDGMENT
Introduction
By his Amended Application for Final Orders filed 25 March 2009, the applicant Mr Benworth (who for convenience I shall refer to as “the father”) sought parenting and property settlement orders together with injunctive relief.
So far as the latter is concerned, the father principally sought an injunction restraining each of the parties from removing the child of the marriage from Australia without the prior written consent of the other party.
The amended application was amended without objection by the Minute of Orders sought by the father marked Exhibit 1.
In essence, the substantive orders sought by the father remain the same. The father sought an order that the child of the marriage live with the mother. That represented a continuation of the status quo.
The substantive orders sought by the father were opposed by the respondent, Ms M Benworth (who for convenience I shall refer to as “the mother”) with the exception that each of them sought orders providing for equal shared parental responsibility between them and that the child live with the mother.
The orders sought by the mother were set forth in her Further Amended Response filed 17 September 2010 subsequently amended without objection by the amended minute of order marked Exhibit 2.
So far as the parenting orders sought, the dominating issue between the parties is whether or not it is in the best interests of the child to live with the mother on the basis of her relocating with him to London in the United Kingdom (“the UK”).
The issues in relation to the property settlement and the mother’s spousal maintenance proceedings occupied less hearing time.
The parties cohabited for a period of almost eight years which commenced during January 1999 and continued until they finally separated on 9 December 2006.
The parties married in April 2000.
The marriage was dissolved by a divorce order made 31 January 2008.
The father is 42 years of age. The father is employed in a professional capacity and resides in Sydney Suburb 1.
The mother is 39 years of age and engaged in home duties. The mother resides at Sydney Suburb 2.
The child of the marriage is M (“the child”) who is seven years of age having been born in May 2004.
The child lives with the mother and has done so continuously since the parties separated, subject to such periods of time that he has been in the care of the father.
Since separation the mother has been the primary carer of the child.
The father married Ms A Benworth in August 2009. They live together. At the completion of the evidence the father and Ms A Benworth were expecting their first child.
Historical background
The following are further relevant historical matters the subject of the joint chronology marked Exhibit 3 and reproduced as follows:
“DATE EVENT […].1968 Husband’s date of birth. (Now 42) […].1972 Wife’s date of birth (now 38) 02.1997 The husband purchased a property at [… T Street], London UK for the sum of 92,500 British Pounds (AU$194,171). He paid 10% deposit. 1997 to 1998 The husband undertook renovations to the [T Street] property. 12.08-01.1999 The parties commenced to live together. 08.1999 The husband refinanced [T Street] in order to purchase a property with the wife at [… U Street], London for the price of 220,000 British Pounds (AU$548,453.00). […] April 2000 The parties married in Australia. 2000/2001 The husband took 6 months off work to undertake part of a significant renovation of [U Street]. 10.01.2002 The [T Street] property was sold for 235,000 British Pounds and 100,000 pounds were used to purchase [… J Street], London jointly with the wife for 340,000 British Pounds (AU$944,105.00). 03.2002 The parties purchased a block of land in Sydney at [Sydney Suburb 3] which they planned to build on when they moved to Australia. The purchase price was $630,000 and the source of funding was the refinancing of the parties [U Street], London property. […].05.2004 The child [M] was born in London, UK. (now 6 years). 03.2005 The [U Street] Property was sold for the sum of 485,000 British Pounds ($1,176,561.00). 08.2005 The parties moved to Australia. 09.2005 The parties refinanced [… J Street], London realising approximately 100,000 British Pounds which was intended to be used to partially fund the redevelopment of the [Sydney Suburb 3] property. 09.2005 The parties purchased the former matrimonial home at [Sydney Suburb 1] for the sum of $1,300,000. The purchase price was sourced through refinancing the [Sydney Suburb 3] property. 10.2005 Husband installs a kitchen in [Sydney Suburb 1] property, removing part of the kitchen wall, creating a breakfast bar and other renovations. The parties and child move into [Sydney Suburb 1] property. 07.2006 The wife went to the UK for eye surgery. By agreement she opened an account in her name with the nationwide Building Society into which was paid the rental proceeds of the [J Street], property. 08.2006 The wife commenced employment as CEO of [Company 1] on a salary of $75,000.00 p.a. 12.2006 The parties separated. The husband left the former matrimonial home in [Sydney Suburb 1]. Until February 2007 the husband cared for the child up to twice a week during the day.
The parties had $294,222.00 in a joint ANZ account.15.12.2006 The balance of the parties joint ANZ account was $291.239.70. 18.12.2006 The wife without the husband’s knowledge or consent transferred $250,028.00 from the parties joint ANZ account to her St George bank Account number […]. 1/2.01.2007 The wife redeposited $202,000.00 back into the joint ANZ Account. 02.2007 The husband moved into a rented apartment and from this time the child was with him from 5.30 p.m. Tuesday until 8.30 a.m. Wednesday and every second weekend from 5.30 p.m. Friday until 6.00 p.m. Sunday. He also cared for the child at other times as requested by the wife. 9.11.2007 The husband collected the child from day care. The wife was also there. There was an argument between the parties. The wife removed the child from the father’s car. 29.10.2007 The parties attended a Family Relationships Centre. 22.11.2007 The husband’s solicitor wrote to the wife’s solicitor agreeing to the wife’s proposal that the child would spend 5 days per fortnight in the father’s care. 11.12.2007 The wife filed for divorce. Divorce granted 31.1.08. late 02.2008 The funds in the joint ANZ account ran out and the mortgage fell into arrears. The parties agreed to list the property for sale for $2,000,000.00. 04.03.2008 The husband filed his Application. 01.04.2008 Husband offers to move into [Sydney Suburb 1] property in order to pay mortgage. 04.2008 An offer was made in relation to the property at [Sydney Suburb 1] for $1,800,000.00. Wife denies any offer. 22.04.2008 The husband received an email from the wife accepting his offer to purchase the property at $1,750,000.00. 29.04.2008 The wife filed her response to Application for Final Orders.
Parties attend Case Assessment Conference. Orders by Micallef R providing for:· Filing of respondent wife’s documents
· Child responsive program orders
· Conciliation conference orders
Draft Balance Sheet prepared by Registrar to be emailed to the parties.
08.05.2008 Wife receives notice from ANZ of proposed recovery action in relation to mortgage arrears for [Sydney Suburb 1] property. 9.05.2008 The husband received correspondence from the wife’s solicitor proposing the property be put back on the market. 12.05.2008 The husband’s solicitor sent correspondence advising of the imminent action by the bank in relation to the property and proposed that the husband move into the property and keep paying the mortgage. 15.05.2008 A demand notice was received from the Mortgagee, Citibank. 28.05.2008 Wife files Application in a Case 11.06.2008 Child responsive memorandum prepared by [Ms B]. Recommends that Husband existing 4 nights be extended to 5 nights per fortnight. 23.06.2008 Orders were made by consent providing for the sale of both the [Sydney Suburb 1] and [Sydney Suburb 3] properties. Until 06.2008 The husband phoned the child daily whilst he was in the wife’s care. 07.2008 An offer was made for the [Sydney Suburb 1] property in the sum of $1,500,000.00. The offer and [sic] it was withdrawn. 11.08.2008 The parties attended a conciliation conference. 08.2008 The husband moved back into the former matrimonial home at [… S Street, Sydney Suburb 1] by agreement following a Conciliation Conference.
The child commenced to live with the Wife at the home of his maternal grandmother. They stayed in that home until July 2010.
The husband borrowed $42,651.82 from [Ms A Benworth], who in turn had borrowed it from her father, to pay the mortgage arrears and mortgage.11.08.2008 The wife formally requested that she be allowed to relocate to London with the child. The husband refused her request. 09.2008 The property at [Sydney Suburb 3] was sold for $725,000 and the wife subsequently received the whole of the net proceeds of sale in the sum of $63,301.11. 2.10.2008 Child had a tonsil operation. 16.10.2008 The wife sent the husband an email saying that she needed to discuss “child protection issues”. The parties had a telephone conversation wherein the wife said to the husband “You held [M’s] leg and caused bruising”. The husband asserts that this was a false allegation. 19.10.2009 The wife transferred $4,369.87 to her St George Freedom Account from the [J Street] account in the UK with Nationwide Building Society. 12.2008 The time that the child was in the Husbands care increased to 5 nights per fortnight. He cared for the child every second weekend from Friday at 5.30 p.m. until 8.30 a.m. on the following Tuesday. Plus the alternate Monday from 5.30 p.m. until Tuesday at 8.30 a.m. 8.12.2008 The wife accused the husband’s current wife [Ms A Benworth] of biting [M’s] leg. [Ms A Benworth] had just picked the child up from day care. Allegation denied by Husband and [Ms A Benworth]. 29.01.2009 Child commences Early Entry at [Sydney Suburb 1 Private School] 03.2009 The wife resigned her employment. 4.03.2009 The wife sent the husband an email saying that:”it is not good for [M] to spend 4 nights in a row in your care”. The husband made an alternative proposal. The wife did not agree. The parenting arrangement which had been in place continued. 05.2009 The husband became an Australian Citizen. 08.2009 The husband married [Ms A Benworth] and they were away for three weeks on a honeymoon. 26.08.2009 Just after the husband had returned from his honey moon the wife emailed him saying:” It is not good for [M] to spend I [sic] night in your care. I have decided to withhold the alternate Monday night. 14.09.2009 The husband emailed the wife and asked if the child had an Asthma Plan. The wife replied asserting that he had received the plan when he had attended a doctor’s appointment in relation to the child in the past. He said that during that appointment the husband had told the doctor he had asthma as a child. The husband has never had asthma and asserts that he would not have told a doctor this. 21.09.2009 Wife does not provide child to Husband as advised. 9.10.2009 The wife provided to the husband an unsigned and undated Asthma Plan with no doctor’s name on it. 16.10.2009 The wife said to the husband: “You will not be caring for [M] on alternate Mondays. There is no Court order and there is nothing you can do about it”. 28.10.2009 An application in a case was filed on the husband’s behalf. 11.09 The husband was contacted by [Dr C] who request the husband and [Ms A Benworth] meet with her, which they subsequently did. 18.01.2010 The wife transferred $5,192.11 to her St George Freedom Account from the [J Street] account in the UK with Nationwide Building Society. 5.02.2010 The wife filed a Further Amended response to Final Orders wherein she sought to relocate with the child to the UK. 9.02.2010 Orders were made by consent on 9 February which issued on 18 February 2010. Those orders interalia provided that the child was to spend half of each school holiday period with the husband and that the child was to spend time with the husband each alternate week from after school Thursday until commencement of school on Friday and each other week from after school Thursday until the commencement of school on Monday.
The orders also provided for the wife to receive the net sale proceeds of the [Sydney Suburb 3] property by way of partial property settlement.11.02.2010 The wife wrote to the husband indicating that she had informed the school that the direction allowing [Ms A Benworth] to deliver or collect the child from school was void. The husband spoke to the school principal and advised that [Ms a Benworth] would continue to be involved in collection and delivery of the child. 02.2010 The child commenced school at [Sydney Suburb 4 Private School]. The wife commenced to send emails to facilitate changeovers. 18.02.2010 Matter before Rose J for directions and Orders made providing that:
· Parties attend upon Family Consultant;
· Service of Wife’s medical reports;
· Agreed single balance sheet to be provided within 21 days;
· Chronologies to be provided;
· Wife to disclose London property account;
· Other procedural orders;
Noted that Family Consultant interviews on 20th April 2010.
12.03.2010 The husband emailed the wife in relation to the April school holidays. 19.03.2010 The wife transferred $2,486.32 to her St George Freedom Account from the [J Street] account in the UK with Nationwide Building Society. 22.03.2010 The wife responded in relation to the April Holidays stating that her view was that the Interim Orders that applied during school term would also apply during school holidays. The husband responded (annexure “D”). 02 to 04.2010 The wife attempted to prevent [Ms A Benworth] from dropping off or picking up the child from day care. 19.04.2010 Matter before Rose J for directions and Orders made providing that matter is stood over for a date and time to be fixed following the release of the Family Report. 30.04.2010 The husband’s solicitors wrote to the wife’s solicitors in relation to the July School holidays. 4.05.2010 The husband’s solicitor wrote to the wife’s solicitor’s seeking particulars of the alleged domestic violence and abuse. No particulars were received until the matter was raised in Court on 16 September 2010. 18.05.2010 The wife put a proposal in relation to the July School holidays. Until May 2010 The husband facilitated the child speaking to his mother on the phone every day he was with him. 19 May 2010 Date of Family Report by [Ms B]. 15.06.2010 Matter before Rose J for directions and Orders made providing that:
· No affidavits to be filed or witness statements to be served without leave and must only address the “specific issues”.
· Issues for determination provided for in the “Issues for Trial” document filed in Court
· Leave granted for specific affidavits to be filed and served
· Affidavits due 4.00pm 24th September 2010
· Chronology, agreed balance sheet and case outlines and list of authorities due 5.00pm on 30th September 2010
· Matter listed for trial for four (4) days commencing 5th October 2010 at 10.00am
· Noted that solicitors will discuss the possibility of single experts being agreed to furnish a report in relation to the Wife’s health issues and psychological aspects of alleged family violence.
18.06.2010 The wife filed an Amended Application in a Case. 30.06.2010 Matter before Loughnan JR and Orders made regarding the time to be spent by the child with the Husband during the July school holidays; non-denigration order and all parties restrained from discussing future living arrangements with the child. Order made that telephone contact between the child and the other parent every second day the child is in the other’s parent’s care at 6.00pm. Parent with the child to facilitate that telephone call.
Concession made by the Wife through her Counsel Mr Tocker that she would not be pursuing her relocation application.07.2010 The wife moved out of her mother’s home and into rented accommodation. 07.2010 The Husband, [Ms A Benworth] and child went to Adelaide to see [Ms A Benworth’s] family. 16.09.2010 Orders made by Justice Rose providing that:
· Wife have leave to amend her Response to include an application for leave to seek orders for spouse maintenance and if leave granted then orders for spouse maintenance
· Both parties give discovery
· Wife file and serve affidavits of [Dr D], [Professor Y] and [Dr C]
Wife issue subpoenas to Applicant’s employer, [Dr S], and [Ms B’s] notes be provided
23.09.2010 Orders made by Justice Rose providing:
· Substantive hearing be listed for four days commencing
29 November 2010· File case outline, joint chronology, list of authorities and joint balance sheet by 25 November 2010
· Parties to file affidavit evidence on or before 5 November 2010
· Subpoenas issued to [Dr D], wife’s most recent employer
Liberty to vary directions on 7 days’ notice
11.10.2010 Orders made by Justice Rose providing:
· Hearing is extended for a further day to 21 January 2011 for [Ms B’s] evidence
Wife issue subpoenas to ANZ and Westpac”
The parenting proceedings
The consolidated proceedings were conducted on the basis that the parenting proceedings be determined first in accordance with conventional practice. I will follow that approach.
Relevant legal principles
Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to a child of the parents having:
“…a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children.” (Emphasis added)
The principles underlying those Objects, in summary, include:
(a) children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the 2006 legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”, namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.
Section 61DA(1) provides 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”.
Section 61DA(2) provides that such presumption does not apply should one or other of the following grounds be established, namely:
Should there be:
“…reasonable grounds to believe that a parent of the child (or a person who lives with the 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.”
The Court may exercise its discretion for the purpose of rebutting the presumption should it be satisfied “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”.
Each of the parties sought an order providing for equal shared parental responsibility. Accordingly, s 61DA(2) does not fall for further consideration.
Relevant matters pursuant to section 60cc
Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[1] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings except in relation to the parental issues referred to in paragraphs 5 and 30 of this Judgment.
[1] Section 60CC(1)
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.”[2]
[2] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the child and the parenting orders that will be made.
Views expressed by the child and other relevant factors
Each of the parties gave evidence of the close relationship that each has with the child. I infer from that evidence, as well as other evidence that each party gave, that the child has expressed views directly and indirectly of wanting to spend substantial time with each of them.
Independent evidence was given by Ms B, family consultant (“the family consultant”). The family consultant’s evidence comprised Exhibit 16 being the Family Report dated 20 May 2010, and Exhibit 21 being the Child Responsive Program Report dated 11 June 2008.
I infer from Exhibit 21, and in particular the positive conclusions expressed with regard to the child and each of the parents that the child, who was only four years of age at the time, was indirectly expressing views of needing to spend substantial time with each of the parties.
Of greater significance is Exhibit 16 given the Family Report followed interviews with each of the parties, extended members of the family and observations of the child on 20 April 2010, almost two years subsequent to Exhibit 21. The child at the time was almost six years of age and inferentially was able to express his feelings and be more articulate than previously.
The family consultant concluded that the child’s primary attachment implicitly continues to be with the mother and he also has a secure and affectionate attachment with both the father and Ms A Benworth.
Accordingly, I infer from that evidence that the family consultant was expressing indirectly the child’s view of wanting to spend substantial time with each of the parties.
The family consultant was extensively cross-examined by senior counsel for the mother and to some extent by counsel for the father. Her oral evidence does not detract from the written evidence to which I have inferred.
I accept that written evidence and find that the child has indirectly expressed the view of wanting to spend substantial time with each of the parties.
During the course of her oral evidence, Ms B referred to the child expressing the view of supporting living with the mother in London.
Whilst I accept the family consultant’s evidence in that regard, I do not attach any weight to it given other evidence of the child being influenced due to his sensitivity to the aspiration of the mother.
The nature of the relationship of the child with each of the parties and other persons
I accept the unchallenged evidence of the family consultant set out in Exhibit 16 that the child’s primary attachment is with the mother.
In addition, Exhibit 16 expresses the opinions that the child has a warm and fond relationship with the father, Ms A Benworth and the maternal grandmother. Whilst the mother’s affidavit evidence suggests that there have been difficulties at times with the relationship between the child and the father as well as with Ms A Benworth, those matters were not explored to any significant extent, if at all, during oral evidence. Indeed, so far as the father is concerned, the mother in her affidavit evidence emphasised the positive aspects of the child’s relationship with the father.
In all of those circumstances I find that the child’s primary attachment is with the mother and implicitly he has a close and loving relationship with her. I also accept the evidence of the family consultant as set out in Exhibit 16 with regard to the warm and fond relationship that the child has with the father, as well as with the other adults to whom I have referred.
The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs
There is no issue that the parties have the proven capacity to provide for the physical needs of the child in terms of suitable home premises and all aspects of physical wellbeing subject to the allegations of the wife to which reference will be made subsequently in this Judgment.
The same qualified finding is made in relation to Ms A Benworth.
No issue arises with regard to the maternal grandmother.
The mother gave evidence of the child being asthmatic. I accept her evidence in the absence of any contrary evidence from either of the relevant expert witnesses or the father.
Serious issues have been raised with regard to the emotional needs of the child. The mother’s evidence is that the child has suffered from behavioural problems, stress and anxiety to varying degrees since early 2009. Those concerns were highlighted at the commencement of that period based on a report made to the mother by the child’s teacher.
The mother gave the father notice of her intention for the child to have a consultation with a psychologist which he did not oppose. In addition, there is clear evidence both direct and indirect of the child being adversely affected emotionally due to ongoing serious parental conflict.
Dr C provided a Report dated 10 June 2010 which is annexure “B” to her Affidavit sworn 13 October 2010. In that report, Dr C stated:
“It is my clinical opinion that [M] exhibits signs and symptoms of distress as a result of the significant inter-parental conflict between his parents and the forced separation from his natural mother who is his primary attachment figure to attend access visits with his natural father and stepmother. His signs of distress include symptoms of hyperactivity and aggression, withdrawal, difficulties with his peer relationships, separation anxieties and difficulties with transitions between his parents and a desire to stay close to his mother, worry and anxiety about his parents and concern about being abandoned.”
That report was provided against a background of Dr C having treated the child since October 2009. Her treatment continued, concluding during July 2010.
The father opposed continued consults and/or treatment by Dr C.
Dr C throughout was the treating clinical psychologist for the child.
Dr C swore a further Affidavit dated 1 December 2010 which gives evidence refuting evidence given by the father as to comments and observations that Dr C is alleged to have made to him.
Dr C was not required for cross-examination. I accept her clinical opinion set out in her report and previously reproduced by me. Dr C’s report was appropriately detailed and explanatory and no challenge was made to its contents. I make findings in accordance with that report.
I accept the affidavit evidence of the mother previously summarised by me. There was little, if any, cross-examination of her in relation to it. I make findings accordingly.
Exhibit 16 records the opinions of the family consultant that the child “seems quite anxious about the issues between his parents”. The effect of his anxiety in that regard appears to have ameliorated to some extent, compared to the views expressed by Dr C in her report, in that he is apparently progressing well at school, there has been much development in his speech and cognitive ability and otherwise appears to be developing well as a young boy, notwithstanding continuing to show signs of anxiety.
I accept the evidence of the family consultant to which I have referred as it was not departed from during the course of her oral evidence.
The capacity of the mother to provide for the child’s needs is affected to some extent by her health issues dealt with in the following paragraphs.
Health issues affecting the mother
The mother has been affected for a considerable period of time by significant health issues including diabetes and stress. The latter has been evidenced by the effect on her of the parental conflict, the father’s alleged emotional abuse and poor communication between them.
The mother has consulted Dr D, psychologist and Professor Y, endocrinologist. Each of them gave evidence to which I will now refer.
Evidence was given by the mother’s treating psychologist Dr D. Dr D affirmed an Affidavit on 15 September 2010, filed 17 September 2010. Her report is annexure “B” to that affidavit.
In her report, Dr D gave the history of the therapeutic relationship which involved 17 individual sessions commencing on 18 February 2010 and concluding with the last session on 31 August 2010.
Dr D noted that the mother “presented to treatment in severe distress due to the inter-parental conflict, acrimonious divorce and upcoming court proceedings at Family Court”.
The mother gave Dr D a history of having witnessed domestic violence as a child and her experience of domestic violence during her marriage to the father. The history given by the mother in relation to the latter circumstances allege that the domestic violence experienced was “emotional” and “financial” subject to two occasions of the father physically assaulting her. I interpose here that Dr D was clearly not referring to violence as defined in terms of “family violence” in s 4 of the Act.
Dr D provided a diagnosis of the mother meeting the relevant criteria for post-traumatic stress disorder “as a result of experiencing domestic violence”. Dr D noted that information provided to her by the mother’s general practitioner was that she had previously been diagnosed for major depressive disorder but no longer met the full criteria for that diagnosis since beginning treatment with Dr D in February 2010. Dr D expressed her view regarding relevant symptoms experienced by the mother. Dr D stated that the focus of her treatment had been “on helping [the mother] manage the stress related to the inter-parental conflict and manage the negative impact her abusive marriage has had on her”.
A prognosis was provided in the report considered to be:
“...fair due to the ongoing stresses related to the inter-parental conflict and repeated exposure to triggers related to abuse. If these stressors were to be removed and [the mother] were in a safe and supportive environment, the prognosis for [the mother] would be much better, and she would be able to process and recover from the negative effects of domestic violence and use coping strategies learned in treatment to better handle new stressors. If these stressors remain intact, [the mother] will have much greater difficulty in her recovery.”
Dr D concluded her report by providing her opinion which she emphasised as being on the basis of the mother’s treating clinician with recommendations for her as opposed to consideration of the child’s best interests. In that regard, Dr D’s opinion was “that permitting [the mother] to relocate to London could potentially have a significant positive impact on her mental health”. Dr D explained her reasoning for that opinion.
Dr D was cross-examined. During the course of her oral evidence, Dr D not unexpectedly stated that from a clinical viewpoint it was not relevant for her to know the timeframe during which the alleged incidents of domestic violence occurred.
Dr D relied upon the history taken from the mother. In order to place her evidence including her report in context, Dr D provided her understanding of what might be classified as domestic violence by stating that it “can be emotional, physical, sexual, financial, using privilege”. In relation to the latter, it encompassed “trying to dominate and not of equal partnership” and that “dominate” can be either in an “emotional or physical sense”.
With regard to the opinion that had been expressed in Dr D’s report in relation to the mother meeting criteria for post-traumatic stress disorder due to experiencing domestic violence, Dr D stated that she was not solely referring to the period of cohabitation, but also continuation of relevant matters post-separation.
Dr D agreed that she had not met the father or had any communication with him, but was aware that so far as he was concerned, he had denied the events complained of by the mother.
With regard to the relationship between the mother and [Ms A Benworth], Dr D acknowledged that it may be a potential trigger for stressors affecting the mother, but not a major factor. In that regard, should the relationship move forward, then its potential for it to be a trigger is reduced.
Dr D agreed that court proceedings are potentially a trigger for post-traumatic stress disorder. Dr D was of the view that the mother could not be described as being highly or very emotional, but could be easily brought to an emotional state in particular circumstances.
With regard to the court proceedings, Dr D’s oral evidence was that both or either of the experience of litigation and/or the result could still remain a trigger for the disorder, notwithstanding the finalisation of litigation.
Dr D expressed the view that potentially any interaction or communication between the mother and the father is a trigger or stressor, emphasising that in any of those instances it is “a potential” stressor as opposed to it being a stressor regardless of the circumstances.
With regard to the mother potentially moving to London, Dr D expressed the opinion that the distance could aid in her recovery, further aided by a strong social network and professional network. Dr D was of the view that the mother needed support. Dr D did not discuss with the mother whether she should return to work.
In addition, Dr D emphasised that it was not therapeutically relevant for her to make independent enquiries in relation to matters relayed to her by the mother.
Dr D stated that apart from taking the history from the mother, Dr D’s observation of her was important as well from a clinical viewpoint.
I have concluded that the central premises of Dr D’s report were not disturbed during cross-examination. Accordingly, I accept the opinions expressed by Dr D in her report. In that regard, it is of course important to realise the context. The context is that Dr D was engaged in therapeutic sessions with the mother as her treating psychologist and relied upon a combination of the history given by the mother and Dr D’s observations of her as opposed to being an interrogator of the mother or seeking corroboration in the sense that such a term is used in litigation.
Further expert medical evidence was given by Professor Y, consultant physician endocrinologist. Professor Y swore an Affidavit on 8 October 2010 filed 13 October 2010. Annexure “A” to that affidavit is Professor Y’s report dated 11 April 2010.
In his report, Professor Y stated that the mother suffered from long-standing diabetes. He noted that the relationship with the father had ceased following the move with the child to Australia and “as a result the stress of relocation and the subsequent divorce has worsened her ability to maintain her diabetes under good control”. He further recorded that the mother was taking medication to assist with psychological stress and was engaged in therapy as described by him.
Professor Y’s opinions in his report:
“I strongly believe that based on conversations and what [the mother] reports that her present living conditions (living with her mother) her loss of independence and loss of sense of worth, separated from friends and other supports in the UK are contributing adversely on her psychological and physical state. If these circumstances are not remedied urgently then I am of the opinion that her microvascular complications of diabetes will progress. I am of the opinion that once the settlement is reached then this will lead to some resolution of the stressors. Furthermore, ideally [the mother] would like to be located in London and this would certainly improve her physical and psychological health.”
Professor Y was not required to attend for cross-examination. His report is detailed providing reasoned opinions. I accept the contents of the report and make findings accordingly.
In the light of the evidence given by Dr D and Professor Y, I find that the mother has suffered from the health issues which they each refer and that significant improvement in her health is likely to be enhanced in the event that she is able to live with the child in London.
The child has progressed well in the care of the mother notwithstanding the anxiety which he has demonstrated and the mother’s own health issues. In those circumstances, I find that the mother does have the capacity to provide for the child’s needs whether in Sydney or London, although such capacity is likely to be improved in terms of her own health should she be able to live with the child in London.
The capacity of the father and Ms A Benworth
I accept the evidence of the father that he has the capacity to provide for the child’s needs. That evidence was consistent throughout and not deviated from during the course of his oral evidence.
The father is employed in a professional capacity with a government department on a full-time basis. There is no issue that he adequately provides for the child’s physical environment.
The father’s evidence is that he has attended appointments from time to time with the child’s general practitioner and paediatricians. Due to his flexible working hours, he has actively engaged with the child after school in a variety of pursuits. In addition, he has encouraged and supported the child in his sporting activities.
However, the child’s needs are also to be free from the effect of parental conflict.
The expert evidence, which I have accepted is that the parental conflict which has existed for a considerable period of time has created tension and pressure upon the child which has adversely affected him emotionally.
Each of the parties blames the other for that situation.
I consider that the father, by his words and actions, has substantially contributed to this unfortunate situation. There is much evidence to support that conclusion.
I also find that it is likely that the mother’s manner and/or tone of communication with the father in relation to the child may well at times produce a negative reaction from him which has fuelled further parental conflict. However, even on that basis it is no justification for the father’s attitude of denigration or dismissiveness which unfortunately has occurred from time to time.
So far as Ms A Benworth is concerned, I accept the substance of the evidence that she has been positive and supportive of the child’s needs as is demonstrated by the warm and affectionate relationship that the child has with her. That has not been easy to achieve given the serious parental conflict that exists between the father and mother.
The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party
I find that the parties do have a basic willingness and ability to achieve the objects described in this particular issue.
However, that willingness and ability has been circumvented at times by disputes in relation to the timing and frequency of telephone calls between one or other of the parties and the child and the periods of time that the child may spend in the care of the father.
The fundamental historical difficulty experienced as briefly summarised above has been due to the real or perceived negative attitudes by one party to the other fuelled by poor communication. With the benefit of hindsight the parties should have joined in such consultation with Dr C, the child’s treating clinical psychologist in order to improve co-operative parenting. Unfortunately, with each dispute, conflict increased thereby decreasing goodwill and trust.
In the context of the mother’s application for an order to enable her to live with the child permanently in London, the question of her ability to facilitate and encourage a close and continuing relationship between the child and the father, as opposed to her willingness to do so, falls for consideration in my subsequent findings of the likely effect of changes in the child’s circumstances as well as in the course of the ‘Conclusion’ set out in relation to the parenting proceedings between the parties.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the mother or any other person with whom she has been living
At the heart of these proceedings is the application of the mother that an order be made permitting her to live with the child in London on a permanent basis.
That application is firmly opposed by the father.
The mother has been the primary carer of the child throughout his life, in particular since the parties separated on 9 December 2006.
The child’s primary attachment is to the mother. He has a close and loving relationship with the father. He has a warm and fond relationship with the maternal grandmother and Ms A Benworth.
The child has lived almost all of his life in Australia as the parties moved with him to Australia from London when he was 15 months old. He is well settled in the primary care of the mother and there is an established pattern of significant time that he spends in the care of the father supported by Ms A Benworth.
Since moving to Australia the parties and the child have lived in Sydney.
I have made findings that the child is progressing well at school. He continues to be impacted by parental conflict evidenced by anxiety which he has displayed.
Fortunately for the child, that anxiety or its impact appears to have lessened based on a comparison of the two school reports for 2010 being Exhibit 19.
My brief summary of the background to this particular issue makes it obvious that on the mother’s application there will be significant changes in the child’s circumstances.
Those changes include moving to live with the mother in London, getting used to a new home and physical environment, new school, having to make new friends, a new environment for sport and extra-curricular activities, and last but far from least a substantial disruption to the relationship that he has with the father. The mother acknowledges that the child loves the father and enjoys being in his care and participating in activities with him.
In addition, there will be substantial disruption to the relationship that the child has with the maternal grandmother notwithstanding that she proposes to spend the first three months assisting the mother and the child to settle in London, as well as the disruption to his relationship with Ms A Benworth and the familiarity his step sibling which by now must have commenced.
The child is still very young. He has just turned seven years of age and has had to cope with the effect of anxiety, induced by the poor relationship between the parties. Whilst the mother’s health, wellbeing and confidence are likely to significantly improve and therefore enhance her parenting skills, of benefit to the child, there is certainly an issue as to how well the child may cope with the myriad of changes to which I have referred.
A further important factor is the loss of the father’s parenting skills and a possible reduction in them as his only direct personal and physical interaction with the child would occur during a maximum of four weeks per annum and possibly less.
I have not lost sight of the mother’s proposal for ensuring, so far as it is possible to do so, that there be a continuing relationship with the father. In essence, that will mean a substantial period during the mid year school holidays in Sydney once a year. The father only has four weeks annual leave. There are financial constraints upon the father so far as travel and spending time in the UK, notwithstanding the amelioration of the financial burden in the event that the mother does not seek that he pay child support. Given the period of his leave, the terms of his employment whereby such leave is restricted to the period to which I have referred the cost of additional travel to the UK, his obligations to Ms A Benworth and their newly born child, raises real doubts as to the extent and frequency with which he can personally interact with the child in the UK.
The mother’s proposal of regular communication between the child and the father by telephone by Skype as well as by correspondence will assist in maintaining the relationship. There is a material difference between such electronic means of communication compared to physical interaction between a very young child and a parent with whom he has a loving and enjoyable relationship.
Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Neither of the parties raised matters of substantial concern in relation to the current circumstances of the child spending time and communicating with one party or the other and other aspects of this particular issue.
The real practical difficulty and expense arises in the context of the mother’s proposal that she and the child relocate to live in London.
The mother’s proposal is that in those circumstances she would travel with the child to Australia for the duration of the United Kingdom’s school holiday period extending from July to September each year to enable the child to spend time with and be in the care of the father in Sydney.
In addition, the mother’s proposal is that the child spends each alternate two week Christmas school holiday periods in Australia and that the father may spend two periods of up to 14 days each with the child in the United Kingdom.
So far as communication between the child and the father is concerned, the mother proposes regular communication by telephone calls via Skype as well as the viewing of videos to be taken by the father of the time and activities that he and the child are engaged in so that those videos may be viewed by the child in London.
The mother further proposes that she causes a DVD to be created of the child’s school events, concerts and sports events which could then be sent to the father.
The mother states that she will encourage the child to write to the father and also send him postcards in relation to school trips and holidays.
The father’s evidence is that very serious financial constraints upon him so far as spending time with the child in London due to his financial circumstances. His obligations would clearly increase during this year due to the recent birth of his child of the marriage of Ms A Benworth.
The father agreed during the course of cross-examination that in the event of the mother no longer seeking child support from him then the financial cost of travel and minimum stay in the United Kingdom of about two weeks would be substantially defrayed.
I find that there is obvious and very substantial practical difficulty and expense of the child spending time with the father in the United Kingdom and even should the expense involved be ameliorated to a significant extent, it would still mean two periods in the United Kingdom during each year, apart from a more substantial period during the mid year United Kingdom school vacation period spent in Australia.
Neither of the parties raised an issue of either difficulty or expense so far as communication between the child and the father, using the various avenues for that purpose outlined by the mother in her primary affidavit.
I find that it is not a matter of controversy that current arrangements on the basis of the parties both continuing to live in Sydney do not create any significant practical difficulty and expense.
The maturity, sex, lifestyle and background of the child and with either of the parties
Dr C’s Report dated 10 June 2010[3] raises serious issues in relation to the impact upon the child of the anxiety he is experiencing caused by the conflicted parental relationship.
[3] Affidavit of Dr C sworn 13 October 2010, annexure “B”.
Exhibit 16 was completed in the same timeframe. It was prepared in 19 May 2010. The family consultant found the child to be charming and socially impacted by anxiety.
Further relevant evidence, apart from that given by the parties, is contained in Exhibit 19 being the school reports for Semesters 1 and 2 in 2010. It is clear from the general comments to the Semester 1 report that the child is making positive progress in all aspects of both education and social development.
The Semester 2 report, which of course was furnished towards the end of 2010, shows further significant improvement, particularly in the context of social development as well as “work habits” is very positive.
I conclude that the child has the maturity commensurate with a child of his age and is making good progress in all aspects the subject of the two semester reports for 2010.
In particular, the Semester 2 report implicitly may well be a lessening of the impact of anxiety upon the child at least in the kindergarten class environment.
The parental attitude of each of the parties
I find that the parties have a loving relationship with the child and are devoted parents.
Inferentially, it is clear that the child’s pleasing social development and progress at primary school are largely due to their parental support and interaction with the child.
However, regrettably there is one serious qualification to these findings and that is the serious parental conflict that has existed for a considerable period of time on the basis of the expert evidence I have accepted, which has seriously impacted upon the child. The parties will have to renew efforts to improve their relationship at least so far as communication and decision-making is concerned.
Family violence and family violence orders
The mother gave extensive evidence in relation to this particular issue.[4]
[4] Affidavit of mother sworn 4 November 2010, paras 154 to 247.
Much of that evidence concerns a wide spectrum of matters ranging from derogatory comments to physical assault.
Many instances were given of derogatory comments over an extensive period of time commencing prior to cohabitation, shortly after the commencement of cohabitation and continuing until the parties finally separated.
Much alleged comments were on a variety of subjects and it is further alleged that the father was financially controlling and domineering in the relationship between the parties.
The mother further alleges that during 2001 she was physically assaulted by the father and as a result stayed with a friend for the weekend.
The mother’s affidavit is replete with instances of alleged lack of emotional and financial support including during the period of her pregnancy. The mother further alleges that the father demonstrated an uncaring attitude towards her following the child’s birth.
The mother also alleged that from time to time the father was verbally abusive to her in relation to her not returning to employment because of health reasons. Part of the mother’s case is that she was over-borne by the father in relation to the parties’ eventual move from London to live in Australia in 2005.
In addition, the mother claims that there were many instances of the father behaving in an insensitive manner towards her.
During the course of cross-examination, the mother agreed that at separation she retained access to the parties’ bank account which was in credit with a recently deposited amount of $290,000.00.
Otherwise, during the course of cross-examination the mother maintained her position that the father had indeed criticised her in relation to financial matters and her lack of employment. The mother agreed that during the course of disagreements she had from time to time she had put her position to the father, albeit not forcefully.
Subsequent to the separation of the parties the mother claimed that from time to time she received confrontational email from the father which had an adverse emotional effect upon her.
The father provided extensive affidavit evidence which principally, if not solely, denied the affidavit evidence of the mother.[5]
[5] Affidavit of the father sworn 5 November 2010, paras 2.8(a) to 2.8(k), and further sub-paras.
During the course of cross-examination, the father maintained his denials including the assaults complained of by the mother. The father stated that subsequent to separation he has attempted to avoid confrontation. He denied derogatory comments alleged by the mother to have been made by him about her. Significantly, he agreed with the proposition that he has “a fairly contemptuous attitude towards” the mother.
I have accepted the evidence of Dr D in relation to her diagnosis that the mother has suffered from post-traumatic stress with indications that the cause has been due to emotional abuse and denigration by the father. Whilst much of the affidavit evidence in that regard traced the history of the relationship between the parties for the period commencing prior to cohabitation and to that extent was an exercise in raking over old coals which could have been avoided, nonetheless, I accept the evidence of the mother where it conflicts with that of the father as her evidence was detailed and plausible and the substance of it not shaken during cross-examination lending force to the diagnosis given by Dr D. I have also given weight to the father’s concession referred to in paragraph 152.
With regard to the allegations of physical assaults, whilst specific detailed evidence was given in the mother’s affidavit, I am not satisfied that the allegations have been established on the balance of probabilities given the caution which I must exercise in considering such matters due to the statutory provisions that I must apply.[6] For that purpose I have also taken into account that these allegations did not feature prominently during the cross-examination of each of the parties.
The preference to make an order least likely to lead to the institution of further proceedings in relation to the child
[6] Section 140(2) of the Evidence Act 1995 (Cth).
Having regard to the history of parental conflict which has been prominent for the period from separation of the parties to the date of the hearing, there are likely to be disagreements between the parties in relation to the parenting of the child by each of them whether the child primarily lives with the mother in Sydney or London.
I am not in a position to forecast which parenting order is “least likely to lead to the institution of further proceedings in relation to the child”. I take into account that no submissions were made by counsel in relation to this particular matter.
Conclusion
The proposal of the mother is that orders be made to enable her to live with the child in London, UK.
The father’s proposal is that the mother’s application be dismissed and that orders be made for the child to live with the mother in Sydney and that particular periods of time be designated for the child to be in his care and related injunctive relief.
I have found the resolution of these particular issues to be troubling.
Each of the parties put forward a case of considerable substance. No stone was left unturned in that regard.
Counsel explored all relevant issues. Senior counsel for the mother ensured that matters of the utmost relevance were featured in the evidence as it unfolded. The mother received capable representation.
This type of case is one in which one party will likely suffer pain and distress. Unfortunately, that is a product of the applications that must be determined by me in the absence of agreement between the parties.
I have found that each of the parties has a loving relationship with the child and is devoted to his welfare.
I have determined that it is in the child’s best interests for him to continue to live with the mother in Sydney and spend significant periods of time in the care of the father.
As a consequence, the mother’s application for an order that the child live with her in London, UK will be dismissed.
My reasons are as follows.
I have earlier referred to the primary and additional considerations required by the legislation for the purpose of determining the best interests of the child. One of the two primary considerations is:
“The benefit to the child of having a meaningful relationship with both of the child’s parents.” (Emphasis added)[7]
[7] Section 60CC(2)(a).
As has been emphasised in a number of judgments, a “meaningful relationship” does not mean an optimal relationship. In addition, it is not enough to simply focus on a “meaningful relationship with both of the child’s parents” but there is a requirement to link it to the “benefit to the child” of such a relationship.[8]
[8] Mazorski & Albright (2007) FamCA 520, para. 26; Godfrey & Sanders (2008) FLR 287 at 298; Mulvany & Mulane (2009) FLC 93-404 at 83,450; McCall & Clark (2009) FLC 93-405 at 83,476.
The context in which I must prospectively consider is both the “meaningful relationship” that the child will have with each of the parties and the “benefit to the child” of such a relationship is as follows.
The child’s primary attachment is with the mother. The child has a loving relationship with each of the parties.
The parties have poor communication and a conflicted parental relationship.
That does not detract from the separate issue which is that each of the parties is devoted to the child’s care.
The mother’s affidavit evidence is that she understands the importance of the child “maintaining a close and continuing relationship” with the father. The mother states that she has attempted to facilitate and encourage that relationship since the parties separated. The mother’s affidavit evidence is that the child in his manner “is the image of his father”. The child enjoys activities with the father and is “excited” at helping the father in various ways. The mother quite candidly stated in her affidavit:
“I honestly believe that these characteristics of [the child] are present in him from the time he has spent with [the father] and the development of their relationship together. I understand the benefit to [the child] of this relationship in terms of his developmental growth and maturity.”
The mother expanded upon that theme in her affidavit. The mother concluded by stating:
“It is clear that [the father] loves [the child] and [the child] enjoys spending time with him.”
That evidence given by the mother, as well as her demeanour in the witness box and acknowledgments she made from time to time show her to be a refreshingly candid and honest witness who, despite the pressures of the litigation and the conflicted parental relationship that have existed for a considerable period of time, has been prepared to give evidence about matters that are very much child focused.
The mother should be recognised for that approach by the father and Ms A Benworth.
That is not to say that the father has been entirely negative so far as the mother is concerned. However, the father’s historical attitude has, at times, left much to be desired.
I have made findings in relation to the likely effect upon the child of the proposed change in his circumstances. I give much weight to those findings.
In summary, I have little doubt that the mother’s sense of wellbeing and ability to overcome certain health issues which were the subject of expert evidence, particularly that given by Professor Y will significantly improve should she be able to live in London.
However, the legislation makes it clear that the paramount consideration is the best interests of the child in making parenting orders.[9] Whilst that is not the only consideration, the focus has to be on the child’s best interests as opposed to the best interests of either of the parties.
[9] Section 60CA.
I accept the submission that the mother’s parenting ability, in terms of her health and a more relaxed environment in London with increased employment opportunities in the foreseeable future, are beneficial for her and the child. However, that is not the end of this matter. As counsel stated in their submissions, these matters must be balanced against other relevant factors for the purpose of concluding that the best interests of the child are served by parenting orders. The mother has significant proven support from relatives and friends in Sydney. The mother has a potential support network in London.
The practicalities are that the child’s meaningful relationship with the father will be significantly hindered.
The benefit of the current meaningful relationship that he has with the father and is likely to have in the foreseeable future in Sydney will be greatly reduced.
On the mother’s application, the child would live with the mother permanently in London, UK.
The time that the child would spend with the father would represent a maximum of four weeks in the year, all or part of which being during the mid year school vacation. The father’s capacity to spend greater periods of time with the child during the year is very much circumscribed. He is a public servant entitled to four weeks annual leave. In addition, he has strained financial circumstances, likely to be further exacerbated by the property settlement to be made by me.
I have made findings in relation to his financial circumstances which do not require reiteration. Whilst there will be some enhancement of a continued meaningful relationship with the father and benefit to the child as a result due to the various electronic and other means of communication outlined by the mother, the physical engagement between the child and the father and the benefits to the child of those aspects of the meaningful relationship that he has with the father and enjoyed with him over a considerable period of time will be largely dissipated.
The child is still very young. He recently celebrated his seventh birthday. The situation may have been different had the child been a teenager with the commensurate maturity and growing independence of such a child.
The child’s best interests are served by a continuation of the deep and meaningful relationship that he has had with each of the parties and the important benefits that he has derived from those relationships. I have made previous findings in relation to the child’s progress and the lessening impact of anxiety which he had displayed in various ways. I have concluded that the child’s best interests are served by maintaining the status quo.
The parties have each sought an order for equal shared parental responsibility, notwithstanding their conflicted parental relationship and poor communication. The parties are intelligent, well educated people with worldly experience. Equal shared parental responsibility will not work for the benefit of the child unless immediate steps are taken by the parties to improve communication between them. I will make appropriate orders for the parties to engage in suitable programs for that purpose.
Given that there will be an order by consent for equal shared parental responsibility, I am required by s 65DAA to consider whether the child should spend equal time with the parties and matters of substantial and significant time as well as reasonable practicality.
I have considered those matters and they do not apply in these proceedings, save and except for substantial and significant time with the father. Counsel did not make submissions in relation to these matters. That was understandable given that the proceedings were focused upon the mother’s application for an order to live with the child in London, UK. Neither party sought orders for equal time.
I will make an order for substantial and significant time for the reasons that follow.
With regard to periods of time that the child should spend in the care of the father. The current pattern of times spent has been working satisfactorily including the collection and return of the child by the father and/or Ms A Benworth. I have concluded that it is in the child’s best interests to continue those arrangements so that he will have the stability and routine with which he has become accustomed which has obviously been of benefit to him so far as his meaningful relationship with each of the parties is concerned.
There will be the usual orders in relation to special occasions that the child should spend with one party or the other.
I will make an order which makes it clear that the parties may make different arrangements so far as the child spending time with one parent or the other. Obviously, reasonable needs and requirements of the child who is now seven years of age will progressively alter and those changes need to be accommodated with flexibility and sensitivity.
PROPERTY SETTLEMENT PROCEEDINGS
I will now proceed to determine these proceedings between the parties.
Relevant legal principles
It is now well established that generally speaking the approach to be taken to determination of property settlement proceedings, concluding with an order that is “just and equitable”, represents four steps.
The first of which is that the Court should determine the property and financial resources of the parties at the date of the hearing.
Secondly, determine the nature and extent of the respective contributions made by each of the parties whether financial or non financial, including contribution to the welfare of family in the role of home-maker and parent.
Thirdly, determine and assess the relevant matters pursuant to s 75(2).
Fourthly, consideration of orders, if any, which should be made that are just and equitable.[10]
[10] Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143
Property of the parties
The following is a reproduction of Exhibit 26[11] being the agreed “Balance Sheet” setting out the net property of the parties including particulars of the value of superannuation entitlements and referring to “addbacks” the subject of submissions.
[11] Furnished by email dated 28 January 2011 by mother’s solicitor to Associate to Rose J.
Ownership Description Wife/de facto partner’s value Husband/de facto partner’s value Assets 1. Joint [… S Street, Sydney Suburb 1] $1,420,000.00 $1,420,000.00 2. Joint [… J Street], London (UK property) $1,182,108.63
**(£740,000)$1,182,108.63
**(£740,000)3. Joint ANZ bank account Nil Nil 4. Husband ANZ bank account no. […] Nil Nil 5. Husband Household contents $10,000.00 $10,000.00 6. Wife St George bank account Nil Nil 7. Wife Interim prop order 14/12/2010 $7,987.22
**(£5,000)$7,987.22 8. Wife Household contents $10,500.00 $10,500.00 9. Husband Interim prop order 21/01/2011 $2,896.58 $2,896.58 Wife Interim prop order 21/01/2011 $2,896.58
(£1,813.26)$2,896.58 10. Wife Funds in solicitor’s trust account Nil Nil 11. Husband Funds in solicitor’s trust account $19,230.00 $19,230.00 12. Joint Funds held in trust by agent in UK $4,961.47
(£3,105.88)$4,961.47 13. Joint Tax held by agent in UK $5,578.10
(£3,491.89)$5,578.10 Total $2,666,158.58 $2,666,158.58 Addbacks 14. Proceeds from husband’s sale of shares $30,431.00 $23,626.00 15. Legal fees paid by husband $43,274.00 #$43,274.00 16. Wife’s paid legal fees $135,444.71 135,444.71 17. Husband’s trade-in of motor vehicle Alfa Romeo […] model $10,000.00 $10,000.00 18. Wife’s drawings post separation from parties joint UK property funds to 14/7/10 $38,965.00 $38,965.00 19. Wife’s receipt of [Sydney Suburb 3] property sale proceeds $29,431.00 $63,301.11 20. Wife’s taxation return for pre separation period $3,767.00 ++$13,767.00 Total $291,312.71 $328,377.82 Total assets $2,957,471.29 $2,994,536.40 Liabilities 21. Joint Mortgage – [Sydney Suburb 1] property ^ $974,886.73 $974,886.73 22. Joint Mortgage Express $758,785.94
**(£475,000.00)$758,785.94 23. Husband Income tax assessed but unpaid for 05/06 and 06/07 financial years (to 30/11/10) 19,416.00 19,416.00 24. Husband Income tax assessed by unpaid for 08/09 and 09/10 financial years NK NK 25. Husband ANZ Visa Gold card Nil 26. Husband Borrowings to pay UK Visa cards, costs, etc. Nil 27. Joint Husband’s borrowings to pay [Sydney Suburb 1] property mortgage arrears $39,000.00 28. Husband Borrowings to make balloon payment on hire purchase agreement for Alfa Romeo […] model $20,504.47 $20,504.47 29. Husband Borrowings for counsel’s fees $20,000.00 $20,000.00 30. Wife St George Bank Mastercard $12,500.00 31. Wife St George Visa Nil 32. Wife Loan from wife’s mother $20,000.00 33. Wife Loan from wife’s grandmother $25,000.00 $1,851,093.14 $1,832,593.14 Total including superannuation $1,168,397.93 $1,223,963.04 Superannuation Member Name of fund Type of interest Wife/de facto partner’s value Husband/de facto partner’s value 34. Wife [Super Fund 1] Accumulation $13,158.78 $13,158.78 35. Husband [Super Fund 2] Accumulation $43,446.00 $43,446.00 36. Husband [Super Fund 3] Retirement Savings Account $5,415.00 $5,415.00 Total $62,019.78 $62,019.78 Financial resources Ownership 37. 38. Total $0 $0 ** These values have been converted from GBP (United Kingdom Pound) into AUD (Australian Dollars) using an exchange rate as at 27 January 2011 of 1 AUD = 0.6260 GBP. # Husband’s legal costs paid by him are a net figure being actual payments of $66,900.00 less the sum of $23,626.00 applied from sale of share proceeds, added back previously. ++ Wife has not identified how much of refund for financial years 2007 and 2008 attributable to pre separation earnings, which will be the amount sought. ## Husband’s last advice mortgage was £465,000.00. ^ Balance as at 31 December 2010 with payment of $3,734.30 due 26 January 2011.”
Exhibit 26 – “addbacks”
Item 14
In accordance with the submissions made by counsel for the husband the relevant amount is as contended on behalf of the wife.[12]
[12] Written outline of submissions on behalf of husband dated 20 January 2011, p 8.
Consequently, the amount of $30,431.00 will be added into the calculation of the net property of the parties.
Item 15
The relevant amount is agreed as it appears on the face of Exhibit 26. Accordingly, the amount to be added back will be $43,274.00.[13]
[13] Ibid
Item 16
As appears from Exhibit 26 the agreed amount is $135,444.71. That amount will be added back to the relevant calculations.[14]
[14] Ibid
Item 17
Counsel’s submissions clarified that this amount was no longer in issue.[15]
[15] Ibid; oral submissions by senior counsel for the mother.
Item 18
The amount referred to is not in issue. However, opposing submissions were made in relation to whether or not the amount being $38,965.00 should be added back.
I accept the submissions made by senior counsel for the mother that the drawings made by her have to be seen in the context that since March 2009 she has been unemployed and there was a period of about four months when no child support was paid, albeit that other times she has had sources of income represented by rent (subject to tax) and payments of child support.
In addition, there is no evidence of substance, if at all, that the mother has been frivolous or irresponsible in her spending of sums at her disposal. No submission to that effect was made.
Accordingly, I decline to add back the sum of $38,965.00 and my reasons for doing so follow the guidelines provided by the Full Court in Townsend & Townsend in which it was made clear that it was not sufficient to point to a premature distribution or use of property, but the Court has to consider whether the receipt and use of money was to meet reasonable expenditure.[16]
[16] (1995) FLC 92-569 at 81,654 per Nicholson CJ; Gollings & Scott (2007) FLC 93-319 determining whether “it would be clearly unjust and inequitable not to take those matters into account”.
Item 19
I accept the submissions made by senior counsel for the mother that the correct amount is $29,431.00, being the balance remaining after allowing for $33,869.21 applied for legal fees.
No contrary submission was made.
Accordingly, the amount to be added back will be $29,431.00.
Item 20
I also accept the submission made by senior counsel for the mother that the relevant amount should be $3,767.00 due to the lack of clarity as to the amount of taxation refunds attributable to pre-separation earnings.
Liabilities
Items 21 and 22
I accept the amount of the liabilities which are agreed by comparison with the earlier balance sheet being Exhibit 25.
Whilst the notation refers to a payment of $3,734.30 due 26 January 2011, being a date which was post submissions, my Associate did not receive an email indicating that such a payment had been made. Consequently, it will not be taken into account.
Items 27 to 33
Whilst during the course of submissions there was disagreement in relation to one or more of such items based on the earlier document being Exhibit 25, they appear to have been resolved as appears in Exhibit 26 being the amended balance sheet.
Indeed, there is an absence of any footnote to Exhibit 26 indicating that any of such items remain in issue.
I further observe that I am satisfied that credit card liabilities of each of the parties reflected under the heading “liabilities” do not represent frivolous, reckless or irresponsible expenditure.
Revised property of the parties
I find that the parties have the following net property including value of superannuation entitlements consistent with my earlier findings in relation to the matters of “addbacks” and “liabilities”.
Ownership Description Assets 1. Joint [… S Street, Sydney Suburb 1] $1,420,000.00 2. Joint [… J Street], London (UK property) $1,182,108.63
**(£740,000)3. Joint ANZ bank account Nil 4. Husband ANZ bank account no. […] Nil 5. Husband Household contents $10,000.00 6. Wife St George bank account Nil 7. Wife Interim prop order 14/12/2010 $7,987.22
**(£5,000)8. Wife Household contents $10,500.00 9. Husband Interim prop order 21/01/2011 $2,896.58 Wife Interim prop order 21/01/2011 $2,896.58
(£1,813.26)10. Wife Funds in solicitor’s trust account Nil 11. Husband Funds in solicitor’s trust account $19,230.00 12. Joint Funds held in trust by agent in UK $4,961.47
(£3,105.88)13. Joint Tax held by agent in UK $5,578.10
(£3,491.89)Total $2,666,158.58 Addbacks 14. Proceeds from husband’s sale of shares $30,431.00 15. Legal fees paid by husband $43,274.00 16. Wife’s paid legal fees $135,444.71 17. Husband’s trade-in of motor vehicle Alfa Romeo […] model $10,000.00 18. (This amount not added back) 19. Wife’s receipt of [Sydney Suburb 3] property sale proceeds $29,431.00 20. Wife’s taxation return for pre separation period $3,767.00 Total $291,312.71 Total assets $2,918,506.20 Liabilities 21. Joint Mortgage – [Sydney Suburb 1] property ^$974,886.73 22. Joint Mortgage Express $758,785.94
**(£475,000.00)23. Husband Income tax assessed but unpaid for 05/06 and 06/07 financial years (to 30/11/10) 19,416.00 24. Husband Income tax assessed by unpaid for 08/09 and 09/10 financial years NK 25. Husband ANZ Visa Gold card 26. Husband Borrowings to pay UK Visa cards, costs, etc. 27. Joint Husband’s borrowings to pay [Sydney Suburb 1] property mortgage arrears 28. Husband Borrowings to make balloon payment on hire purchase agreement for Alfa Romeo […] model $20,504.47 29. Husband Borrowings for counsel’s fees $20,000.00 30. Wife St George Bank Mastercard $12,500.00 31. Wife St George Visa Nil 32. Wife Loan from wife’s mother $20,000.00 33. Wife Loan from wife’s grandmother $25,000.00 $1,851,093.14 Total including superannuation $1,129,432.93 Superannuation Member Name of fund Type of interest Wife/de facto partner’s value 34. Wife [Super Fund 1] Accumulation $13,158.78 35. Husband [Super Fund 2] Accumulation $43,446.00 36. Husband [Super Fund 3] Retirement Savings Account $5,415.00 Total $62,019.78
Contributions
I find that the parties made the following financial and non-financial contributions including contribution to the welfare of the family in the role of homemaker and parent.
The father
Counsel for the father did not make written submissions in relation to this matter. The written submissions that were made moved from aspects of the determination of the net property of the parties to relevant s 75(2) matters.[17]
[17] Written outline of submissions on behalf of the father dated 20 January 2011.
Counsel’s oral submissions also did not address this issue.
A perusal of the case summary document on behalf of the father states that his case at that point was that contributions should be assessed in the proportions of 65% in his favour with the remaining 35% in favour of the mother.[18]
[18] Case summary document on behalf of the father dated 23 November 2010.
I find that the father made the following initial contributions at the commencement of cohabitation between the parties.
(a)Property at T Street, London, UK. It had been purchased by the father in February 1997 for 92,500 pounds ($194,171.00). He funded the purchase by payment of a 10% deposit and I infer that the balance was by way of a mortgage advance, although not expressly stated. The father contends that it was the commencement of cohabitation amount secured by the mortgage had been reduced to 75,000.00 pounds ($179,367.00). The Australian dollar equivalent is taken from the father’s primary affidavit. There is no evidence of the market value of the T Street, London property at the commencement of cohabitation. I accept the father’s evidence, to which I have referred. Implicitly, perhaps there was a small equity in the T Street, London property.
(b)Savings in the amount of approximately $5,000.00.
(c)Household contents, furniture and effects.
During the period of cohabitation the father made financial and non-financial contributions as subsequently set forth.
In August 1999 the father, together with the mother, purchased the U Street, London property for 220,000 pounds ($548,453.00). In order to fund the purchase the father refinanced the money secured by mortgage over the T Street, London property.
In January 2002 the father sold the T Street, London property for 235,000.00 pounds ($643,736.00). There is an absence of evidence of the net proceeds of sale after allowing for discharge of mortgage and selling costs although as subsequently referred to in his affidavit the father utilised 100,000.00 pounds from the net proceeds of sale. Unfortunately, the father’s affidavit does not state the total of the net proceeds of sale which was available to him.
In February 2002 the father, jointly with the wife, purchased the J Street, London property for 340,000.00 pounds ($944,105.00).
In about March 2002 the father and the mother jointly purchased the Sydney Suburb 3 property which was then vacant land for $630,000.00. The purchase price was funded by refinancing the amount secured by mortgage over the U Street, London property.
Over a period of about six months in 2001, renovations were carried out to the U Street, London property. Such renovations were carried out by the father both directly and through management of tradespeople. The renovations were substantial. The father took six months leave from his professional occupation for that purpose.
The father also carried out the major part of the extensive renovation works to the J Street, London property.
The father also made a contribution, together with a professional firm, for the preparation for the construction of proposed home premises on the site of the Sydney Suburb 3 property.
In March 2005 the U Street, London property was sold for 405,000.00 pounds ($1,176,561.00). There is an absence of evidence of the net proceeds of sale.
In September 2005 the parties purchased the former matrimonial home for $1,300,000.00. The purchase price was funded by refinance of the amounts secured by mortgage on the Sydney Suburb 3 property.
The father, together with the professional firm, did preparatory work for council approval for the demolition of the existing premises and the construction of a new home as part of what became the former matrimonial home. Redevelopment has not occurred and the development approval has expired.
In September 2008 the Sydney Suburb 3 property was sold for $725,000.00 with the net proceeds of sale being $63,301.00 received by the mother.
The father has been engaged in full-time employment in a professional capacity with associated responsibilities both in the UK and Australia. He has applied his income towards meeting liabilities and the living expenses of the parties and the child.
I am further satisfied that the father has made a contribution in the role of homemaker and parent due to the care provided to the child and the activities he has engaged in with the child both prior and subsequent to the separation of the parties.
Following the separation of the parties the mother and child resided in the former matrimonial home until March 2008. Mortgage repayments were sourced from funds held in the parties’ joint account.
The father has met outgoings in relation to the former matrimonial home since he commenced occupation of it in about August 2008.
I am further satisfied that the father has made arrangements for loans to be made available to him by Ms A Benworth in order to meet outstanding liabilities.
The mother
I make the following findings in relation to the mother’s financial and non-financial contributions.
At the commencement of cohabitation the mother’s initial contributions were represented by items of personalty, personal belongings and effects, as well as savings of approximately 5,000.00 pounds.
The mother made subsequent financial contributions represented by joining in with the father in the acquisition and sale of real estate and application of net proceeds of sale towards property funding as well as being a successful joint applicant with the father for finance to effect property improvements.
The mother was engaged in full-time employment at the commencement of cohabitation. That employment was as a health professional. In addition, the mother worked in a private specialist role part-time as well as on weekends as an agency specialist health professional in hospitals in London.
In 1999 the mother incorporated and operated her own company providing specialist healthcare consultancy services. In addition, she worked agency shifts in hospitals and carried out work as the chief executive officer of a specialist healthcare foundation.
Following the parties’ establishment of residency in Australia the mother was engaged in employment until about May 2009.
I am satisfied that the mother utilised her earnings from employment and business activities in the healthcare profession in London as well as her employment in Sydney towards meeting living expenses as well as directly and indirectly other liabilities of the parties.
The mother made a contribution in the role of homemaker and parent. That was represented by the performance of domestic work in the homes of the parties.
In addition, the mother has been the prime carer of the child since birth, both prior and subsequent to the separation of the parties.
The mother has provided financial support for the child to the extent that she has been able to do so.
Assessment of contributions
I am satisfied that the respective financial and non-financial contributions of the parties including contributions made to the welfare of the family in the role of homemaker and parent for the period from the commencement of their cohabitation to the date of the hearing should be assessed as equal. My reasons are as follows.
At the commencement of cohabitation, initial contributions of the father exceeded those of the mother but not to any substantial extent.
Whilst he was the sole registered proprietor of the T Street, London property, my previous finding is that arguably there was a small equity only in that property.
The pre-cohabitation work done to that property was not relevant in terms of the first date of relevance for the purpose of considering contributions, namely at the commencement of cohabitation.
The savings that each of the parties had at the commencement of cohabitation were approximately equal.
Neither party suggested that they had other significant property in the context of these proceedings.
It is clear that the primary financial contributions were made by the father, particularly as a result of his greater earnings and the periods of time that the mother was unemployed due to being pregnant with the child and for some time following the child’s birth.
The father made significant indirect financial contributions by the work that he carried out to both the U Street, London property and the J Street, London property.
The father also made a contribution in the role of homemaker and parent both prior and subsequent to separation.
The father met the outgoings in relation to the former matrimonial home both for the period of time that the mother and child resided there as well as during the course of his own occupation which has continued to date.
I am satisfied that the mother made the primary contribution in the role of homemaker and parent. On the evidence before me there is little, if any, dispute in that regard.
The mother also made financial contributions represented by the application of her earnings for the purpose as previously referred to, the joining in the purchase and sale of real estate and application of joint funds that resulted, her assistance in property renovation work, and subsequent to separation, her use of money at her disposal towards the financial support of the child.
I am satisfied that the parties have applied themselves to their fullest extent to the various contributions they have made over the length of their cohabitation and since separation. No separate submissions were made in relation to superannuation entitlements. I find that the parties’ contributions in that respect are equal for the same reasons previously given.
Relevant matters pursuant to s 75(2) matters
I make the following findings in relation to relevant matters pursuant to the provisions of s 75(2).
The father and mother are 42 and 39 years of age respectively.
The father is in good health.
The mother has serious health issues to which earlier reference has been made.
The father’s income is $3,202.00 per week gross. His net income after tax is $2,200.00 per week. In that regard, I accept his evidence as set forth in his Financial Statement sworn 29 November 2010.
The father has the property, liabilities and financial resources described in Exhibit 26 referred to in paragraph 221. He did have an indirect financial resource represented by the income of Ms A Benworth which in that financial statement was given as $1,980.00 per week gross. However, the father and Ms A Benworth have a child who was born in January 2011 and no further evidence was sought to be adduced in relation to the timing of possible return to work by Ms A Benworth, and if so, the range of likely income. I accept the father’s evidence in relation to moneys borrowed by him from Ms A Benworth to meet significant liabilities. Ms A Benworth’s funds in this regard having been advanced by her father or an entity under his control.
The father has the physical and mental capacity to continue to be engaged in his employment as a professional. He is highly experienced in his profession. There is an absence of evidence of the likelihood of him gaining employment in the private sector and the range of income that he potentially could earn.
The mother’s Financial Statement sworn 29 November 2010 sets out her income which is an average of $681.00 per week gross. The largest component is rent from the J Street, London property in the estimated sum of $608.00 per week. The balance of the mother’s income is represented by government benefits. The mother’s income is not subject to income tax.
The mother’s property and financial resources are set out in Exhibit 26 referred to in paragraph 221.
The mother resides with the child in the maternal grandmother’s home, the mother pays rent of $440.00 per week.
The mother has qualifications and experience for gainful employment as health professional. Her ability to exercise the capacity for appropriate gainful employment in that field is currently restricted due to the impact of her various health issues to which earlier reference has been made.
However, whilst the stress of the litigation and all factors related to it will now diminish following upon the making of orders, nonetheless I accept the evidence of Dr D that the effect of it and the orders made will almost certainly continue to bear adversely upon the mother. The mother has not been gainfully employed since about May 2009.
The mother has a wealth of experience and knowledge in her chosen fields. The mother had been invited albeit not taking employment in an administrative role. That possibility was not progressed due to her health issues at the time.
Whilst the mother will not be living in London with the child as proposed by her and remaining to live with him in Sydney where she has been unhappy for some time, it is clear that the mother has had the benefit of a range of good support from the health professionals who she has consulted and there is no reason to doubt that such support will not continue in the future.
There is no evidence from those expert witnesses that the mother will be incapable of re-entering the workforce in a position commensurate with her qualifications, knowledge and experience perhaps similar to the prospective employment in London. The gray area is when that is likely to occur.
I infer that the mother’s practical prospects of doing so are likely to occur in the foreseeable future given the lack of expert and other evidence suggesting that that will not be the case.
The mother has the primary care of the child.
The father has the care of the child for five overnight periods in each 14 days in school terms and half school holidays.
The parties have the commitments necessary to enable them to support themselves and the child as set forth in their respective financial statements.
The father has the responsibility to support Ms A Benworth. On the evidence before me the father and Ms A Benworth have lived together as a married couple. Whilst undoubtedly various commitments are shared, Ms A Benworth earned income to which I have earlier referred. The extent to which the father’s responsibility in that regard has altered since the birth of their child is not the subject of evidence before me, nor has any application been made to re-open his case for that purpose.
The parties are eligible for superannuation benefits as referred to in Exhibit 26. In addition, the mother is eligible for government benefits described in her financial statement.
Each of the parties enjoyed a good standard of living during cohabitation and since subject to the deterioration in that regard so far as the mother is concerned in that she and the child live in the maternal grandmother’s rented premises.
The father cohabits with Ms A Benworth. Precise details of the extent to which there has been a sharing of commitments, subject to the matters referred to in previous paragraphs were not the subject of evidence.
On 23 June 2008 interim property settlement orders were made by consent. The Sydney Suburb 3 property was sold and the mother received the net proceeds of sale in the sum of $63,301.11 which was subsequently utilised in part for the payment of legal fees.
The father is likely to continue to have the liability for payment of child support as assessed pursuant to the legislation.
Assessment of relevant s 75(2) matters
I have determined that there will be an adjustment of 10% of the net property of the parties including superannuation in favour of the mother having regard to my findings in relation to relevant matters that arise pursuant to the provisions of s 75(2). My reasons are as follows.
The father’s financial circumstances are vastly superior to those of the mother. He is a highly qualified and experienced professional in secure employment earning $3,202.00 per week gross. The nature of that employment and its security for the future will also improve his superannuation entitlements. He is in good health. I have not lost sight of the significant financial commitments he has in summarising his position.
In addition, the father has had the benefit of the financial resource represented by the income earned by Ms A Benworth subject to her implicit cessation of employment due to the recent birth of their child as well as her ability to access funds from time to time from her father for the mutual benefit of herself and the father in these proceedings. There is no evidence to suggest that the potential in that regard is non-existent.
The mother is currently unemployed. The mother suffers from serious health issues, albeit not to such an extent that she no longer has a capacity to re-engage in the workforce in the foreseeable future. Her past earnings in Sydney were far less than that of the father. There is no evidence to suggest that the income she is likely to earn will place her in a similar bracket to that of the father.
The mother will continue to have the primary care of the child. He is still young. Future employment by the mother will have to take that situation into account and her flexibility in employment will be less than that of the father notwithstanding the assistance she has received in the past from time to time from the maternal grandmother and others.
In those circumstances, the mother’s capacity to improve her security for the future in terms of contributions to superannuation are less favourable than that of the father.
Conclusion
As is apparent I have concluded that by a combination of my assessment of the respective contributions of the parties and adjustment made in favour of the mother having regard to relevant matters pursuant to s 75(2), the net property of the parties including the value of superannuation entitlements should be divided in the proportions of 60% in favour of the mother and 40% in favour of the father.
However, I am required to consider whether the proposed orders would be just and equitable. For that purpose, I have taken into account the practical consequences of orders reflecting that division of net property following the guidelines in Elsey and Elsey.[19]
[19] (1997) FLC 92-727 at 83,799.
The following are the totals showing the position for each of the parties in the event of orders being made which enact a division of the net property including superannuation in the proportion of 60% in favour of the mother and 40% in favour of the father.
The mother’s position:
Assets [… J Street], London $1,182,108.63 Interim property order 7,987.22 Household contents 10,500.00 Interim property order 2,896.58 Paid legal fees 135,444.71 [Sydney Suburb 3] property – sale proceeds 29,431.00 Taxation return 3,767.00 [Super Fund 1] 13,158.78 Lump sum 108,652.18 1,493,945.80 Less liabilities Mortgage expenses $758,785.94 St George Mastercard 12,500.00 Loan to maternal grandmother 20,000.00 Loan to maternal grandmother 25,000.00 816,285.94 $677,659.90
The father’s position:
Assets [… S Street, Sydney Suburb 1] $1,420,000.00 Household contents 10,000.00 Interim property order 2,896.58 Funds in solicitor’s trust account 19,230.00 Funds held in trust – UK 4,961.47 Tax held by agent – UK 5,578.10 Proceeds of sale of shares 30,431.00 Legal fees paid 43,274.00 Trade-in Alfa 10,000.00 [Super Fund 2] 43,446.00 [Suuper Fund 3] 5,415.00 1,595,232.00 Less liabilities Mortgage – [Sydney Suburb 1] property $974,886.73 Income tax unpaid 19,416.00 Borrowings re Alfa 20,504.47 Borrowings for counsel’s fees 20,000.00 Lump sum payable to mother 108,652.18 1,143,459.30 $451,772.70
Each of the parties will have the opportunity to retain real estate.
So far as the father is concerned, that will include the Sydney Suburb 1 property where he and Ms A Benworth together with their child reside. It is the former matrimonial home which is familiar to the child in these proceedings. Each of the parties will retain items of personalty. They each retain their superannuation entitlements.
There will be a continuation of significant liabilities.
The father will have to reorganise his finances in order to pay the lump sum of $108,652.18 to the mother.
Clearly, the father will need a reasonable period of time to do that. I propose to allow three months for that purpose.
There is a small amount of funds held in the UK which the father may apply if he so desires to satisfy the lump sum in part. Otherwise, funds held for the payment of tax will need to be immediately utilised for that purpose.
There is no evidence before me of potential capital gains tax which may be incurred on the sale of the J Street, London property or on the transfer by the father to the mother of his interest in that property. No submissions were made in that regard. I am not familiar with the relevant UK law.
Accordingly, doing the best I can I will make an order that the parties appoint an independent and suitably qualified accountant presumably in London to carry out the calculations on the basis of the transfer by the father to the mother of his interest in the J Street, London property at the agreed value referred to in the Judgment. The resulting amount should then be apportioned between the parties equally.
I am satisfied that taking into account a division of the net property of the parties in the proportions referred, and having regard to the practical implications of such a division, it is just and equitable for orders to be made which reflect that division.
Proceedings for spousal maintenance
The mother sought leave to commence proceedings for spousal maintenance.
I accept the submission that the authorities establish that leave is not required in circumstances where other financial relief has been sought within time. In this instance, property settlement.
I have determined that the application for spousal maintenance will be dismissed for the following reasons.
Even assuming that the mother has demonstrated that in the immediate future she will be unable to adequately support herself, particularly until she receives a lump sum the subject of the property settlement orders, I am satisfied that the father does not have the capacity to pay.
The father’s financial circumstances are such that he is clearly under financial pressure having regard to the evidence set out in his Financial Statement sworn 29 November 2010 and the oral evidence given by him including under cross-examination. In addition, his financial circumstances have been exacerbated due to the further commitments arising out of the recent birth of the child of his marriage with Ms A Benworth.
Whilst I do not have evidence of the effect of that birth, it is implicit and obvious that he has the additional financial responsibility for the child with the unknown factor of interruption of the employment of Ms A Benworth. Furthermore, the father will not only have to continue to meet the mortgage instalments in respect of the former matrimonial home which secures a large liability, but will also have to reorganise his finances if possible to pay the lump sum of $108,652.18 to the mother, being part of the orders for property settlement that will be made. As a result the father’s total liabilities for the mortgage and the lump sum amount to approximately $867,000.00. That will be a serious liability which is likely to have a significant impact upon his discretionary available funds.
I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 13 May 2011.
Associate:
Date: 13 May 2011
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Family Law
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Equity & Trusts
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Jurisdiction
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Procedural Fairness
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