BIRCH & MILLETT (No.2)
[2018] FCCA 3449
•27 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRCH & MILLETT (No.2) | [2018] FCCA 3449 |
| Catchwords: FAMILY LAW – Property – small asset pool – just and equitable to make property orders – notional add back of sum of money received by the Husband following separation – contributions assessed to be equal – lump sum spousal maintenance payment to the Wife – adjustment to the Wife pursuant to s.75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 72, 75, 77A, 79, 90ME, 90MT, 117 Superannuation Industry (Supervision) Regulations 1994 (Cth), regs.7A, Federal Circuit Court Rules 2001 (Cth), r.21.15 |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 In the Marriage of Hickey [2003] FamCA 395 Taylor v Barker (2007) 37 Fam LR 461 |
| Applicant: | MR BIRCH |
| Respondent: | MS MILLETT |
| File Number: | MLC 1262 of 2017 |
| Judgment of: | Judge Kirton |
| Hearing dates: | 15, 16 and 26 March 2018 |
| Date of Last Submission: | 26 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mellas |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Armstrong Legal |
ORDERS
Parenting
All previous parenting orders be discharged.
The Applicant (Husband) and the Respondent (Wife) have equal shared parental responsibility for the children [X] born 2008, [Y] born 2010 and [Z] born 2016 (Children).
The Children live with the Wife.
The Wife be at liberty to relocate the Children’s residence to [country omitted].
Husband’s Time with the Children prior to Wife departing for [country omitted] with the Children
Prior to the Wife departing for [country omitted] with the Children, the Husband spend time with the Children as agreed between the parties in writing and failing agreement, spend time with:
(a)[X] and [Y] (Older Children) each alternate weekend from the conclusion of school Friday (or 3.00 pm) to 4.00 pm Sunday, commencing 7 December 2018.
(b)[Z] from each alternate Sunday from 1.00 pm to 4.00 pm, commencing 9 December 2018.
Where change over does not take place at the Children’s school it shall occur at the McDonald’s Restaurant, Town A.
Husband’s Time with the Children when they are living in [country omitted]
When the Wife and Children have relocated to [country omitted], the Older Children spend time with the Husband as agreed between the parties in writing and failing agreement:
(a)During the [country omitted] Government gazetted school term time (Term) for a period of up to 7 consecutive days each Term provided:
(i)The Husband gives to the Wife 14 days’ notice of his intention to travel to [country omitted] and spend time with the Older Children; and
(ii)The Wife consents, with such consent not to be unreasonably withheld.
(b)During the Term 1 school holidays for 10 consecutive days commencing no later than 2 days after the last scheduled school day in Term 1 2020 and ending no later than one day before the first scheduled school day in Term 2 in 2020 and each alternate year thereafter.
(c)During the Term 2 school holidays for 14 consecutive days commencing no later than 2 days after the last scheduled school day in Term 2 2019 and ending no later than the day before the first scheduled school day in Term 3 2019 and each year thereafter.
(d)During the Term 3 school holidays for 10 consecutive days commencing no later than 2 days after the last scheduled school day in Term 3 2019 and ending no later than the day before the first scheduled school day in Term 4 in 2019 and each alternate year thereafter.
(e)For 3 consecutive weeks in the long summer holidays as follows:
(i)Commencing no later than 2 days after the last scheduled school day of Term 4 in 2019 and each alternate year thereafter.
(ii)Commencing no earlier than 14 days after the last scheduled school day of Term 4 2020 and ending no later than 2 days prior to the first day of Term 1 in 2021 and each alternate year thereafter.
When the Wife and [Z] have relocated to [country omitted], [Z] spend time with the Husband as agreed between the parties in writing and failing agreement:
(a)During Term time provided:
(i)The Husband gives to the Wife 14 days’ notice of his intention to travel to [country omitted] and spend time with [Z]; and
(ii)The Wife consents, with such consent not to be unreasonably withheld;
(iii)At the following times each Term:
A.From the date of this order until 1 December 2019 for up to 6 hours each day for up to 3 consecutive days.
B.From 1 December 2019 to 1 December 2020 for a period of up to 3 consecutive nights.
C.From 1 December 2020 for a period of up to 7 consecutive nights.
(b)For 6 hours each day for the last three days of the Older Children’s time with the Husband provided for in paragraph 7, from the date of this Order until 1 December 2019.
(c)For 3 consecutive nights during the last 3 nights of the Older Children’s time with the Husband provided for in paragraph 7, from 1 December 2019 until 1 December 2020.
(d)For 7 consecutive nights during the last 7 nights of the Older Children’s time with the Husband provided for in paragraph 7, from 1 December 2020 until the commencement of Term 1 2022.
(e)From the commencement of Term 1 2022 at the same time that the Older Children spend with the Husband in accordance with paragraph 7.
(f)For the purposes of paragraphs 8(b), (c) and (d) the Wife travel to Australia with [Z] for the remaining days of the Older Children’s time with the Husband in accordance with paragraph 7 and accompany the Children back to [country omitted].
For the purposes of paragraphs 7 and 8:
(a)The Husband is to be responsible for booking and paying for the Wife and Children to travel from [country omitted] to and from Australia, unless otherwise agreed in writing between the parties.
(b)The Husband will book and pay for the Wife and Children’s travel from [country omitted] to and from Australia not less than 28 days prior to the scheduled departure date.
(c)The Husband is to provide to the Wife the travel itinerary and electronic tickets for the Wife and Children to facilitate their travel referred to in paragraphs 9(a) and (b) not less than 28 days prior to the scheduled departure date.
(d)The Husband is to provide to the Wife not less than 35 days written notice that he is unable to spend time with the Children in accordance with these Orders.
(e)In the event that the Husband does not comply with paragraphs 9(a) to (d) of this Order, the Husband’s time with the Children is suspended for the relevant Term holiday period and will recommence upon the next Term holiday period, or otherwise as agreed in writing between the parties.
For the purposes of paragraphs 7 to 9, the Husband and the Wife are to sign all necessary documents to ensure that renewed passports are issued to each of the Children as necessary.
For the purposes of paragraph 10, the Wife is to provide to the Husband all documents to enable the renewal of each of the Children’s passports at the relevant time and the Husband is to sign the documents and return them to the Wife within 21 days of receiving the documents.
For the purposes of paragraphs 7(a) and 8(a):
(a)The Husband is to ensure that the Children attend school days and any scheduled extra-curricular activities during the time that the Children spend with him; and
(b)The Wife is to provide to the Husband 7 days before the Husband commences to spend time with the Older Children or [Z], a schedule of any of the Children’s extra-curricular activities that they are to attend during the time that they are with the Husband.
The Husband be at liberty to communicate with the Children by telephone, Skype, Viber or Facetime at all reasonable times as agreed between the parties in writing and failing agreement:
(a)Each Tuesday and Thursday between 6.00 pm and 7.00 pm [country omitted] time.
(b)On each of the Children’s birthdays between 6.00 pm and 7.00 pm [country omitted] time.
(c)On [A]’s birthday on [date] and the birthday of any sibling of [A]’s between 6.00 pm and 7.00 pm [country omitted] time.
(d)On Father’s Day between 6.00 pm and 7.00 pm [country omitted] time.
The Wife be at liberty to communicate with the Children during their time with the Husband by telephone, Skype, Viber or Facetime at all reasonable times as agreed between the parties in writing and failing agreement each Tuesday and Thursday between 6.00 pm and 7.00 pm.
Husband to complete Men’s Behaviour Change Program
The Husband is to forthwith enrol in, attend and complete a Men’s Behaviour Change Program recommended by the Men’s Referral Service located at the Family Advocacy and Support Service, Owen Dixon Commonwealth Law Court Building, 305 William Street.
The Husband provide proof of attendance and completion of the Men’s Behaviour Change Program to the Wife by 30 November 2019.
In the event that the Husband does not comply with paragraphs 15 and 16 of these Orders, his time with the Children pursuant to paragraphs 7 and 8 is suspended until he has complied with paragraphs 15 and 16.
Restraints on the Parents
Both parents be and are hereby restrained from:
(a)Discussing these proceedings with or in the presence or hearing of the Children or allowing any other person to do so.
(b)Denigrating the other parent or member of the parent’s family or household to or in the presence or hearing of the Children or allowing any other person to do so.
Parents to provide information
Each parent forthwith advise the other in the event of any change to their contact telephone number and email address and shall provide 28 days’ written notice of any proposed change of address.
Each parent forthwith inform and keep the other informed of any illness, injury or accident suffered by any of the Children requiring medical treatment, and provide the other parent with details of the child’s treatment and medical practitioner and authorise such medical professional to communicate with the other parent.
Education Issues
The Wife is to authorise all day care, kindergarten or schools at which the Children attend to:
(a)Provide the Husband, at the expense of the Husband, copies of all reports, notices and applications for photographs in relation to the Children.
(b)Communicate with the Husband either by telephone, in writing or by personal attendance, in relation to the Children’s progress.
(c)Allow the Husband to attend all functions to which parents are invited.
For the avoidance of doubt the Husband is at liberty to attend kindergarten and school events, parent-teacher interviews and the like to which parents are invited.
Property
The proceeds of Property K be distributed as follows:
(a)$13,825.72 to the Husband.
(b)$85,210 to the Wife.
Spousal Maintenance
(a) This is an order to which s.77A of the Family Law Act 1975 (Cth) (Act) applies.
(b) The amount of $10,000.00 of the moneys ordered to be paid to the Wife pursuant to paragraph 23(b) of these Orders is attributable to the provision of maintenance of the Wife.
Paragraph 1 of the Orders made by Judge Harland on 12 October 2017 be discharged.
Superannuation
Having been accorded procedural fairness in relation to these Orders, Orders 27, 28, 29 and 30 are binding on Super Fund D (Trustee) as trustee of the Super Fund D (Fund).
The Court allocate, as required by s.90MT(4) of the Act, a base amount of $54,249.00 of the Husband’s interest in the Fund as at the date of these Orders to the Wife.
Pursuant to s.90MT(1)(a) of the Act, whenever the Trustee of the Fund makes a splittable payment out of the Husband’s interest in the Fund, the Trustee will:
(a)Pay to the Wife, or her administrators, executors, beneficiaries, heirs or assigns, to the extent permitted by law, the entitlement calculated in accordance with pt.6 of the Family Law (Superannuation) Regulations 2001 (Cth) (Regulations); and
(b)Make a corresponding reduction in the entitlement that the Husband would have had in the Fund but for these Orders.
Paragraph 27 has effect from the operative time and the operative time for the purpose of these Orders is 4 working days after the service of a sealed copy of these Orders on the Trustee, with such service to be effected by the Husband.
The Trustee of the Fund will do all such acts and things, and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Regulations, the Trustee can calculate the entitlement awarded to the Wife in accordance with paragraph 27 of these Orders and pay the entitlement whenever the Trustee makes a splittable payment from the Husband’s interest in the Fund.
The Wife do all things necessary, including but not limited to, exercising her request pursuant to reg.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the Wife’s name in the Fund with the value of the transferable benefits calculated in accordance with reg.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
Pursuant to reg.14F of the Regulations, any payment from the Husband’s superannuation interest in the Fund made after the Trustee has created a new interest in the Wife’s name in the Fund are not splittable payments.
Until the happening of any of:
(a)The establishment of a separate account in the name of the Wife;
(b)The transfer or rolling over into another superannuation fund of the Wife’s entitlements created by paragraph 27 hereof;
(c)The Wife satisfying a condition of release and being paid the payment split which was created by paragraph 27 hereof; or
(d)The Wife executing a waiver of rights within the meaning of s.90MZA of the Act in relation to the payment split created by paragraph 27 hereof;
the Husband be, and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a ‘non-splittable payment’ within the meaning of reg.12 or 13 of the Regulations.
Miscellaneous Property Matters
Unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a)Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders.
(b)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these Orders.
(c)Monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held.
(d)All insurance policies remain the sole property of the named owner.
(e)Each party shall be solely responsible for the payment of any debt accrued in their respective name as at the date of these Orders.
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(g)Save as provided herein, each party renounces any claims they may have to superannuation or employment benefits or insurance benefits belonging to or earned by the other.
All extant applications are otherwise dismissed.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.Subsequent to relocation, the Wife will use her best endeavours to register these Orders in a Court in [country omitted] with competent jurisdiction.
B.Pursuant to ss.65DA(2) and 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Birch & Millett (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1262 of 2017
| MR BIRCH |
Applicant
and
| MS MILLETT |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant (Husband) and the Respondent (Wife) are the parents of the children [X] born 2008, [Y] born 2010 and [Z] born 2016 (Children).
Issues in Dispute
The following issues were in dispute in the parenting proceedings:
a)Who the Children should live with.
b)Whether the Wife should be permitted to relocate the Children’s residence from Australia to [country omitted].
c)The time the Children should spend with the parent with whom they do not live.
The following issues were in dispute in the property proceedings:
a)The percentage adjustment of the parties’ property.
b)The payment of any lump sum spousal maintenance to the Wife.
Synopsis
I have determined that it is in the Children’s best interests that they live with the Wife and that the Children be permitted to relocate to [country omitted] with the Wife.
In relation to property I have determined:
a) There be orders adjusting the property between the parties so that the Wife is entitled to 70% of the non-superannuation property and the Husband should receive 30% of the non-superannuation property.
b) The combined superannuation of the parties is to be divided 70% in favour of the Wife and 30% in favour of the Husband.
c) There be a lump sum spousal maintenance order in favour of the Wife in the sum of $10,000.
The reasons for my determination follow.
Background
The Wife was born in [country omitted] on 1978 and is aged 40. The Wife is a [country omitted] citizen. The Husband was born in Australia on 1979 and is aged 39. The Husband is an Australian citizen.
The Wife lived in Australia for about four years before the parties met in early 2007. They commenced cohabitation in Melbourne in about 2007.
The Husband and the Wife moved to [country omitted] in 2008.
[X] was born on 2008. She was born four weeks prematurely with a congenital heart defect and has subsequently required multiple surgeries.
[Y] was born on 2010 in [country omitted].
In 2011 the family moved back to Melbourne.
In 2012 the maternal grandparents, Mr & Mrs M lent the Husband and Wife AUD$20,000 to assist with the purchase of the property at Property K. The Husband and Wife signed an Acknowledgment of Debt to the maternal grandparents, dated [date] 2012.
In [date] 2013 the Husband and Wife, together with [X] and [Y] moved into the Property K property.
In 2014 the Wife commenced working with [employer omitted].
In early 2016 the Husband and Wife travelled to the [country omitted] for a holiday and on [date] 2016 they married in [country omitted].
Whilst the Husband and Wife were holidaying in the [country omitted], Ms J moved into the Property K property to look after [X] and [Y]. Ms J was known to the family as she ran the day care centre [Y] had attended at the estate where the parties lived in Property K. The Wife and Ms J had remained in contact after [Y] started primary school and the Wife would visit occasionally with [X] and [Y].
In [date] 2016 the Wife discovered that she was pregnant with the parties’ third child.
Separation occurred on 10 August 2016 when the Wife left the Property K property with [X] and [Y], whilst the Husband was away on a business trip. The Wife and [X] and [Y] went into crisis accommodation with the assistance of Safe Steps. At the time the Wife was six months pregnant with the parties’ third child [Z].
The Wife travelled to [country omitted] with [X] and [Y] on 2016, where they then went to live with the maternal grandparents in [country omitted].
The Wife commenced proceedings in the [country omitted] Family Court and on 29 August 2016 obtained an ex parte order injuncting the removal of [X] and [Y] from [country omitted] and a temporary protection order for herself, [X] and [Y]. Interim parenting orders were also made providing the Wife with the day to day care of [X] and [Y] and providing that the Husband’s time be supervised by a person approved by the court.
On 5 September 2016, [X] and [Y] were enrolled at School 1, [country omitted].
In November 2016 the Husband commenced a relationship with Ms J.
On [date] 2016, the Wife gave birth to [Z] four weeks prematurely. He was born with a leaking heart valve and he spent time in a high needs unit in the hospital.
On [date] 2016 at the request of the Husband, the [country omitted] commenced proceedings in the [country omitted] Family Court under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of [X] and [Y] to Australia (Hague Convention proceeding). The Wife consented to orders and on 16 December 2016 consent orders were made in the Family Court at [country omitted] for [X] and [Y] to be returned to Melbourne on [date] 2017.
The Wife then returned to Australia with the Children in late [date] 2017 and lived in crisis accommodation with the Children organised by Safe Steps.
On [date] 2017 the Wife obtained an interim ex parte intervention order in the Magistrates’ Court at Melbourne. The Husband was named as the Respondent and the Children as the affected family members.
The Husband and Ms J commenced living together in the Property K property on about [date] 2017.
The child of the relationship between the Husband and Ms J, [A] was born on [date] 2017.
On 15 March 2018, on the first day of the trial of this proceeding, Counsel for the Husband advised the Court that Ms J was pregnant and expecting a second child in about [date] 2018.
Procedural History
The Husband commenced proceedings in this Court on 13 February 2017. The Initiating Application sought interim orders that:
a)The Husband and the Wife have joint parental responsibility for the Children.
b)[X] and [Y] live with the Husband in each alternate week, with changeover to occur each Friday at the conclusion of school.
c)[X] and [Y] live with the Wife in each other alternate week, with changeover to occur at the conclusion of school.
d)The Husband spent three periods of no less than four hours with [Z] each week on Wednesday, Saturday and Sunday.
e)Each party to submit to a urine drug screen within 24 hours of notice in writing by the solicitors of the other party.
f)The Children be placed on the watchlist and that each party be restrained from applying or obtaining a passport for the Children.
g)Each party to provide the other party no less than 28 days’ notice in writing if they wish to take any of the Children out of the State of Victoria.
h)Both parties do all things necessary to place the Property K property on the market for sale.
The Initiating Application sought the same final parenting orders as the interim orders and also orders that there be a just and equitable property settlement.
The Wife in her Response, filed on 1 March 2017 sought final orders that:
a)The Wife have sole parental responsibility for the Children.
b)The Children live with the Wife.
c)The Wife be permitted to relocate to [country omitted].
d)The Husband be restrained from using illicit substances, including the drug ice, during the 48 hours before the Children spend time with him.
e)The Wife be excused from particularising the time the Children spend time with the Husband until both a psychiatric report in relation to the Husband and a family report is obtained.
f)Orders for an adjustment of property and spousal maintenance.
The Wife also sought interim orders for sole parental responsibility and that the Children live with her. She sought various orders including that the Husband have supervised time with [X] and [Y], that a family report be obtained, as well as a psychiatric report of the Husband. Orders for spousal maintenance of $500 per week and the sale of the former matrimonial home were also sought.
On 6 March 2017, Judge Harland made orders by consent that included:
a)The Children live with the Wife.
b)The Husband spend time with:
i)[X] and [Y] each alternate weekend from after school Friday to 4.00 pm Sunday, commencing 17 March 2017;
ii)[Z] each alternate Sunday from 2.00 pm to 4.00 pm, commencing 19 March 2017 and each Thursday from 5.00pm to 7.00 pm, commencing 23 March 2017.
c)The Husband’s time with the Children be conditional upon Ms J or Ms C being in substantial attendance.
d)The parties do all things to forthwith list the Property K property for sale.
e)The parties and the Children to attend upon a family consultant for the preparation of a family report at the parties’ equal cost, with the Husband to meet the full cost at first instance.
Judge Harland listed the matter for a mention hearing on 19 June 2017 and final hearing on 18 March 2018 with trial directions.
On 19 June 2017 Judge Harland listed the proceeding for an interim contested hearing on 11 August 2017 on the issue of spousal maintenance. Orders were made for the filing and service of affidavit material to be relied upon by both parties at the interim defended hearing. Consent orders were made that the parties attend upon Ms O for the purpose of the preparation of a family report.
On 11 August 2017 Judge Bender made orders adjourning the interim contested hearing on the issue of spousal maintenance to 12 October 2017. Orders were again made for the filing of further affidavit material by both parties.
On 11 August 2017 the order that the Husband’s time with the Children be conditional upon Ms J or Ms C being in substantial attendance, was discharged by consent. It was also ordered by consent that the Husband spend time with the Children as follows:
a)For [X] and [Y] (Older Children):
i)During second term from the conclusion of school Friday to 4.00 pm Sunday each alternate week, commencing 18 August 2017.
ii)For one half of school term holidays as agreed, and failing agreement from the conclusion of school on the last day of term to 4.00 pm on the middle Saturday.
b)For [Z]:
i)During school terms from 1.00 pm to 4.00 pm each alternate Sunday;
ii)During term holidays, at times agreed and failing agreement, from 1.00 pm to 4.00 pm on the last day of the Older Children’s time;
iii)During the long summer holidays, at times agreed and failing agreement from 12.00 noon to 4.00 pm on 8 January 2018 and 22 January 2018.
On 12 October 2017 at the interim contested hearing on the issue of spousal maintenance, Judge Harland ordered that the Husband pay the Wife interim spousal maintenance at the rate of $500 per week (Spousal Maintenance Order).
In her Honour’s Reasons for Judgment Judge Harland said:
The husband quite properly concedes that the wife has a need, but says he does not have the capacity to pay it. The figures in her financial statement were not challenged. The husband’s financial statement[1] is conceded by him to contain several errors. The gross figure for the husband’s income is not $1,698, but, in fact, $2,260, there being a difference of $562 per week[2].
[…]
At part G, item 20, he says he pays $170 a week in superannuation, but that is, in fact, his employer contribution, not an additional payment by him personally. Item 27 is also inaccurate, and the husband concedes that he does not, in fact, pay the wife’s registration but only his own. He claims to pay $28 per week for both cars. I have halved that figure[3].
[…]
He also claims $100 a week in entertainment. Exhibit A is a transaction summary from a Tabcorp (sic), which shows that the husband has spent significant funds on gambling from [date] 2016 to [date] 2017, spending some $24,507 on bets, having received debitings and refunds of $17,762.96, resulting in a loss of around $6,000.
By making the corrections to the husband’s financial statements, even allowing the full amount of petrol of $150, the husband has capacity to pay the $500 a week that is sought by the wife and, in fact, the figure is a bit more than that, and I am going to make an order that the husband pay the amount of $500 a week that the wife seeks[4].
[…]
The husband filed a financial statement yesterday. It has not yet reached the file. I did not allow the Husband to rely on that financial statement due to the noncompliance with my orders and, again a lack of satisfactory explanation as to why that is so[5].
Furthermore, I am told that the financial statement filed yesterday[6] is also inaccurate. I find it very concerning that the financial statement has not just one inaccuracy, but several.[7]
[1] Husband’s Financial Statement, filed 13.2.17.
[2] Birch & Millett [2017] FCCA 2557, at [2].
[3] Ibid., at [3].
[4] Ibid., at [5]-[6].
[5] Ibid., at [10].
[6] Husband’s Financial Statement, filed 11.10.17.
[7] Ibid., at [11].
[…]
Clearly, at best, the way this form has been completed is with recklessness or negligence. The wife says it is misleading. It certainly is misleading, whether or not that was the intention. It concerns me that it appears that the same errors, at least with respect to income, have been made on the further statement. The father is represented by an experienced family law firm. I refuse the application for an adjournment today. The wife has been waiting for some period for her maintenance application to be determined, and I accept that it is not the parties’ fault that it was adjourned on the last occasion.
The husband has had two months to file material. He has never filed the family report, and has not filed any financial material since 13 February 2017. So any prejudice he feels that there is to [him] is entirely of his own making[8].
[8] Ibid., at [12]-[13].
On 22 November 2017, Chief Judge Alstergren ordered that the parties attend a property mediation on 8 December 2017. The parties attended a property mediation, however settlement of the property part of the proceeding was not achieved.
On 9 January 2018, Judge Harland made orders in relation to the distribution of part of the proceeds of sale of the Property K property. These orders included that:
a)The sum of $10,000 be paid to the Wife and be characterised at the final hearing.
b)The proceeds of the sale of the Property K property be applied to pay:
i)All costs, commission and expenses of the sale;
ii)To discharge the three Bank F Home Loans;
iii)To discharge the Motor Vehicle 1 loan in relation to the Motor Vehicle 2;
iv)To discharge the Bank F credit card with account number in the amount of $7,000 (or the amount owing if less) and upon payment the Husband and the Wife to do all things to close the account.
v)To pay a sum of $23,000 off the Bank F credit card with account number ending.
c)The balance of the proceeds of the sale of the Property K property be held by the Wife’s solicitors in a controlled monies account.
d)The Wife not to take any steps to enforce the Spousal Maintenance Order before 15 March 2018.
e)The Wife to instruct the Child Support Agency to discontinue any enforcement or garnishment procedures concerning the Spousal Maintenance Order.
f)The Husband to transfer to the Wife the registration of the Motor Vehicle 2.
After the conclusion of the trial on 26 March 2018, consent interim orders were made in chambers on 28 March 2018, as follows:
a)The interim consent orders made on 11 August 2017 relating to the time the Children spend with the Husband be discharged.
b)That [X] and [Y] spend time with the Husband as agreed between the parties, and failing agreement:
i)During the school terms from the conclusion of school Friday to 4.00 pm Sunday each alternate week commencing 20 April 2018;
ii)During Term 1 school holidays from 1.00 pm on 7 April 2018 to 4.00 pm 14 April 2018;
iii)During Term 2 school holidays from 1.00 pm on the middle Saturday to 4.00 pm 14 July 2018;
iv)During Term 3 school holidays from 1.00 pm on the middle Saturday to 4.00 pm 6 October 2018.
c)That [Z] spend time with the Husband as follows:
i)During the school terms from 1.00 pm to 4.00 pm each alternate Sunday, commencing 22 April 2018;
ii)During the term holidays as agreed and failing agreement from 10.00 am to 4.00 pm on the last day of the Older Children’s time;
iii)At other times as agreed.
The Proposals of the Parties
The Husband’s Proposal
The orders that the Husband sought from the Court are set out in his Amended Initiating Application, filed 31 October 2018.
Parenting
The Husband sought the following parenting orders (Husband’s Proposal):
a)The parties have joint parental responsibility for the Children.
b)The Older Children live with the Husband.
c)[Z] live with the Wife until 10 November 2018 and thereafter with the Husband.
d)The Older Children spend time and communicate with the Wife:
i)In each alternate week of the school term from after school Friday until before school on Monday.
ii)For one half of gazetted school holidays.
iii)For specific times on the Wife’s birthday. The Wife’s time with the Older Children be suspended on the Husband’s birthday and Ms J’s birthday.
iv)For specific times on the Children’s birthdays.
v)For specific times during the Christmas period of between 24 to 26 December.
vi)On Mother’s Day for specific times, with the Wife’s time with the Older Children to be suspended on Father’s Day.
e)[Z] spend time and communicate with the Husband until he is two years old:
i)Each alternate weekend in conjunction with the Older Children being with the Husband, commencing from after school Friday until before school on Monday.
ii)For a period of up to four hours in the alternate week, from after school until 7.30 pm.
iii)For Father’s Day, birthdays and the Christmas Day periods that the Older Children are in the Husband’s care.
f)When [Z] is two years old, he shall spend time with the Wife at the same times as the Older Children.
g)Notwithstanding the time spent arrangements above, the Children shall all be in the care of the Husband for the purposes of celebrating the birthday of [A] on [date] at specified times.
h)The Wife be restrained from removing the Children from the Commonwealth of Australia and the Children be placed on the watchlist.
i)The Wife be restrained from applying or obtaining a passport for the Children without the express written permission of the Husband.
Property
The Husband sought the following property orders:
a)That the balance of the proceeds of sale of the Property K property be distributed:
i)To pay any commissions and costs of the sale and to discharge the mortgage encumbering the property.
ii)To discharge the motor vehicle loans for the vehicles owned by the Husband and Wife.
iii)To reimburse the Husband for the sum of $4,100 paid to Ms O for the preparation of the family report.
iv)The balance divided evenly between the Husband and the Wife.
b)That the Spousal Maintenance Order be discharged.
c)That the Wife pay the Husband’s costs of the application.
In final submissions Counsel for the Husband submitted that the Husband now proposed that the Children spend four nights each alternate week with the Wife[9]. The previous proposal in the Amended Initiating Application provided that the Children spend three nights each alternate week with the Wife.
[9] Transcript T251: 36-38.
Counsel for the Husband submitted in final submissions that if the Children were to be living with the Husband, the proceeds of sale of the Property K property should be divided equally between the parties. In the event that the Children are to be living with the Wife, it was submitted that there should be a division more in favour of the Wife, with consideration of a lump sum spousal maintenance payment[10].
[10] Transcript T264: 16-18.
Documents relied on by the Husband
The Husband relied upon the following documents:
a)Amended Initiating Application, filed 31 October 2017.
b)Affidavit of Evidence in Chief of the Husband, filed 31 October 2017.
c)Financial Statement of Husband, filed 9 March 2018.
d)Affidavit of Ms J, filed 31 October 2017.
e)Affidavit of Ms O, filed 1 November 2017.
f)Applicant Husband’s Outline of Case Document.
The Wife’s Proposals
The orders that the Wife sought from the Court are set out in her Amended Response, filed 31 October 2018.
Parenting
The Wife sought the following parenting orders:
a)The Wife and the Husband have equal shared parental responsibility for the Children.
b)The Children live with the Wife.
c)The Children be permitted to relocate to [country omitted] with the Wife.
If the Wife is permitted to relocate to [country omitted] (Relocation Proposal)
d)The Older Children spend time with the Husband as agreed between the parties in writing and failing agreement:
i)During the school term upon the Husband providing the Wife 14 days' notice of his intention to travel to [country omitted], for a period of up to 7 days, subject to the Wife's consent which cannot be unreasonably withheld.
ii)During the term holidays:
a. For 10 days during the Term 1 holidays commencing 2019 and each alternate year;
b. For 14 days during the Term 2 holidays;
c. For 10 days during the Term 3 holidays commencing 2018 and each alternate year;
d. Four weeks in the long summer holidays.
e)[Z] spend time with the Husband as agreed between the parties in writing and failing agreement:
i)Upon the Husband providing the Wife 14 days’ notice of his intention to travel to [country omitted] and subject to the Wife’s consent, which cannot be unreasonably withheld:
a. Until December 2019 for up to 6 hours each day for up to 3 consecutive days;
b. From December 2019 for up to 3 consecutive nights;
c. From December 2020 for up to 7 consecutive nights.
Provided that such time occurs during the scheduled school term only.
ii)For periods of time increasing to seven nights at the end of the term holidays that the Older Children spend with the Father, until the commencement of Term 1 2022. The Wife travel to Australia with [Z] and accompany the Children back to [country omitted] until the commencement of Term 1 2022.
iii)From 2022 at the same time as the Older Children.
f)The Husband be responsible for booking and paying for the Wife and the Children’s travel to and from [country omitted].
g)The Husband be at liberty to communicate with the Children by telephone, Skype, Viber or Facetime at all reasonable times as agreed between the parties in writing and, failing agreement at specified times;
i)Each Tuesday and Thursday.
ii)On each child’s birthday and the Husband’s birthday.
iii)On Father’s Day.
h)The Wife be at liberty to communicate with the Children during their time with the Husband by telephone, Skype, Viber or Facetime at all reasonable times as agreed between the parties in writing and, failing agreement at specified times each Tuesday and Thursday.
i)The parties sign all necessary documents to ensure that renewed passports are issued to the Children as necessary.
If the Wife is Living in Town B with the Children (Town B Proposal)
j)[X] and [Y] spend time with the Husband as agreed between the parties in writing and failing agreement:
i)During the school term in each two week period:
a. In the first week from the conclusion of school Friday to the commencement of school Monday;
b. In the second week from the conclusion of school Wednesday to the commencement of school Friday.
ii)During term holidays:
a. For the first half of the Term 1, 2 and 3 holidays commencing in 2018 and each alternate year;
b. For the second half of the Term 1, 2, and 3 holidays commencing in 2019 and each alternate year.
iii)During the long summer holidays:
a. From the conclusion of school in Term 4 2018 until 3.00 pm 25 December 2018 and from 4.00 pm on 1 January 2019 to 4.00 pm 15 January 2019;
b. In 2019/2020 half the school holidays from 12.00 pm on the middle Sunday until the day before the first scheduled school day of Term 1 the following school year and each alternate year thereafter;
c. In 2020/2021 half the holidays from the end of the last scheduled day in Term 4 to 12.00 pm in the middle Sunday and each alternate year thereafter.
k)[Z] spend time with the Husband:
i)During the school term for increasing periods of time, so that by the commencement of Term 4 2019 [Z] is spending the same time as the Older Children.
ii)During the school holidays for increasing periods of time, so that by the commencement of Term 1 holidays 2020 [Z] is spending the same time as the Older Children.
l)The Children’s time with the Husband be suspended for the Wife’s birthday and Mother’s Day.
m)The Wife’s time with the Children be suspended for the Husband’s birthday and Father’s Day.
n)Changeovers which do not take place at school to take place at Town A McDonald’s Restaurant.
o)The Wife be at liberty to communicate with the Children by telephone, Skype or Facetime at all reasonable times when the Children are in the care of the Husband.
Property
a)That the proceeds of sale of the Property K property be applied as follows:
i)To pay all costs commissions and expense of the sale.
ii)To discharge the three Bank F home loans.
iii)To reimburse the Husband for half of the cost of the family report prepared by Ms O.
iv)To reimburse the Husband $400 for half of [real estate agent] advertising costs.
b)The Husband reimburse the Wife a sum equivalent to the difference between the commission charged by [real estate agent] and what would have been charged by [real estate agent] pursuant to the exclusive authority signed in May 2017, had [real estate agent] sold the property for the same value.
c)The parties’ superannuation be divided to effect a 70%/30% split in favour of the Wife.
d)The Husband retain:
i)All furniture and personal property in his possession.
ii)The Motor Vehicle 3.
iii)All bank accounts in his name.
e)The Wife retain:
i)All furniture and personal property in his possession;
ii)The Motor Vehicle 2.
iii)All bank accounts in her name.
iv)Her Super Fund E Superannuation interests.
f)The Husband be responsible for and indemnify the Wife against: the Motor Vehicle Car Loan; the Car Loan; the personal Loan; the Bank F credit card; Bank F Visa Credit Card; and the Bank F Offset account number.
g)That 20% of the payment received by the Wife be characterised as a lump sum spousal maintenance pursuant to s.77A of the Act.
In final submissions Counsel for the Wife submitted that because of the modest asset pool, if the Children are to live with the Wife, a 70% division was appropriate for the assets and the superannuation.
Documents Relied on by the Wife
a)Amended Response to Initiating Application, filed 31 October 2017.
b)Affidavit of the Wife, filed 31 October 2017.
c)Financial Statement of the Wife, filed 6 October 2018.
d)Affidavit of Ms M, filed 31 October 2017.
e)Outline of Case, filed 14 March 2018.
Evidence
The standard of proof in this case is the balance of probabilities[11].
[11] Section 140 Evidence Act1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The Wife and the Husband relied upon their affidavits and financial statements. The evidence set out the history of their marriage and covered both parenting and financial matters. I do not propose to repeat it in this judgment.
In Bell & Nahos[12] Strickland J addressed the obligations of a trial judge as follows:
[…] it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[12] [2016] FamCAFC 244
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear
I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision”[13].
[13] Ibid., at [28]-[29].
Both the Husband and the Wife gave limited evidence and were cross-examined. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding.
The Husband omitted relevant and significant evidence from his first affidavit filed on 13 February 2017, in relation to his relationship with Ms J. The Husband omitted evidence that he had commenced a relationship with Ms J in 2016 and that she was pregnant with their child. The Husband also did not disclose his relationship with Ms J during the Hague Convention proceeding in [country omitted]. The first occasion that this Court became aware of the Husband’s relationship with Ms J and that Ms J was pregnant, was when the Husband filed his second affidavit on 27 June 2017. By that time interim orders had been made by Judge Harland on two occasions[14]. On 6 March 2017 it was ordered that the Children’s time with the Husband be conditional upon either Ms J or the Husband’s sister Ms C being in substantial attendance.
[14] Orders made on 6.3.17 and 19.6.17.
It was not until the Husband filed his third affidavit on 31 October 2017[15] that the Husband disclosed that the relationship with Ms J had commenced in 2016 and that he had been living with Ms J since about 25 February 2017[16].
[15] Affidavit of Evidence in Chief, filed 31.10.17.
[16] Ibid., at [13].
When the Husband was cross examined about his failure to fully disclose his relationship with Ms J in his affidavits he denied that he had misrepresented his relationship to the Court. The Husband said that the information that he was in a de facto relationship with Ms J and that she was pregnant with their child “…wasn’t necessary”[17].
[17] Transcript T76:22-28.
The Husband omitted further relevant and significant evidence from his third affidavit filed on 31 October 2017, in relation to disclosures that the Older Children had made about the Wife’s alleged partner “Mr K”. These disclosures by the Older Children involved “Mr K” and the Wife smoking drugs in the Wife’s home and “Mr K” entering [Y]’s bedroom at night and acting inappropriately[18] (“Mr K” Disclosures). These disclosures by the Older Children were untrue and the Wife had denied then from the outset. The Mr K Disclosures are discussed in the context of s.60CC(3)(j).
[18] Affidavit of Ms J, filed 27.6.18., at [7] and [11].
The Husband was a loquacious and repetitive witness and tailored answers to questions to suit his own case. Some of the Husband’s responses were absurd and illogical. Many of the Husband’s responses were demonstrably false. Under cross examination, the Husband did not answer questions in a responsive manner and he had to be reminded by the Court repeatedly to answer the questions asked by Counsel. The Husband often forgot what the original question was and had to be reminded. During cross examination the Husband became hostile and agitated. He did not make concessions where appropriate. He presented as a self-centered and self-opinionated man who was highly critical of and angry with the Wife.
I find the Husband to have been untruthful in most of his evidence. Where the Husband’s evidence differs from that of the Wife’s evidence, I prefer the Wife’s evidence.
Ms J also gave evidence and was cross examined. Ms J also omitted relevant and significant evidence in relation to the “Mr K” Disclosures. In her first affidavit, filed on 27 June 2016 Ms J detailed the “Mr K” Disclosures which were made by the Older Children on the weekend of 27 and 28 May 2017[19]. Ms J repeated the “Mr K” Disclosures in her Affidavit, filed on 31 October 2017[20]. In that affidavit she omitted evidence that the Older Children had previously told both herself and the Husband that “Mr K” was fictitious and the “Mr K” Disclosures were not true.
[19] Ibid., at [7]-[11].
[20] Ibid., at [16]-[18].
When giving evidence, Ms J deposed to the contents of the Affidavit filed on 31 October 2017, as being truthful and did not qualify her evidence in relation to the “Mr K” Disclosures. When cross examined, Ms J admitted that she knew as early as July 2017 that the Older Children had lied about the “Mr K” allegations and that “Mr K” did not exist[21].
[21] Transcript T108:32-35.
When being cross examined, Ms J presented as obviously hostile to the Wife but denied when questioned directly in cross examination that she did not like the Wife. I do not place any weight on Ms J’s evidence.
On leaving the witness box, Ms J sat in the Court with the Husband. From my observation Ms J and the Husband both derived obvious pleasure watching the Wife being cross examined and any distress she experienced. Ms J pulled faces and conducted herself in an immature manner. Their behaviour sitting in the Court did not do credit to either Ms J or the Husband.
Ms O, Family Consultant, prepared a family report, dated 8 August 2017[22] (Family Report). Ms O gave evidence and was cross examined. During cross examination by Counsel for the Wife, Ms O made significant and appropriate concessions in relation to the Family Report. Ms O resiled from all of her recommendations in the Family Report, apart from the recommendation that the parents have joint parental responsibility.
[22] Affidavit Ms O, filed 1.11.17, Annexure “O-1”.
The Wife presented as a woman who had been under a considerable strain in recent times. The Wife gave her evidence in a measured and considered manner. The Wife directly answered questions put to her, including those which may have been adverse to her case. She was composed and credible. She made concessions where appropriate. She did not exhibit any overt animosity towards the Husband or towards Ms J. She impressed me as a witness. I accept her as a witness of truth.
The maternal grandmother Ms M was not required for cross examination. Accordingly the evidence in her Affidavit[23] was unchallenged.
[23] Affidavit Ms M, filed 31.10.17.
The Applicable Law
The Wife is seeking to relocate to [country omitted] with the Children.
Relocation cases are determined in the same manner as all parenting cases, by following the statutory framework set out in the Family Law Act 1975 (Cth) (Act) to determine what orders are in the children’s best interests.
In Taylor v Barker[24], the Full Court of the Family Court said:
[…] [W]hen dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93–112 and Bolitho v Cohen (2005) FLC 93-224)[25].
[24] (2007) 37 Fam LR 461.
[25] Ibid., at [53] (Bryant CJ and Finn J).
In Cowley v Mendoza[26], his Honour Murphy J said:
A “relocation case" is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances. A relocation case falls to be determined like any other parenting case[27].
[26] (2010) 43 Fam LR 436.
[27] Ibid., at [31].
In Heath & Hemming (No.2)[28] when referring to relocation cases his Honour Kent J said:
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases" because they bring into sharp focus the central issue of balancing statutory imperatives concerning children's best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests" considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes[29].
[28] [2011] FamCA 749.
[29] Ibid., at [101].
Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of Part VII and the principles underlying it.
Section 60CA provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
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.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
In Heath v Hemming (No.2)[30], after having reviewed the authorities in relation to the benefit of a child having a meaningful relationship with both of the parents, Kent J said:
Clearly, if it is determined that a meaningful relationship with both parents is in the child's best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child's age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a "meaningful relationship" with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable[31].
[30] [2011] FamCA 749.
[31] Ibid., at [101].
Both [X] and [Y] have established meaningful relationships with each of their parents.
[Z] was born after the parties separated and is currently aged 2. He has been in the Wife’s primary care since birth.
The time that the Husband has spent with [Z] since March 2017 has been on alternate Sundays for a few hours during the day. [Z] has also spent some time with the Husband for a few hours on the last day of each of the Older Children’s school holiday time spent with their father. He has not as yet spent any overnight time with his father. [Z]’s relationship with his father is therefore still developing.
There was no dispute about the benefit of [Z] developing a meaningful relationship with the Husband. The Wife’s Relocation Proposal and her Town B Proposal are predicated on the assumption that it is beneficial for the Children to have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or being exposed to, abuse, neglect or family violence
A significant issue in this proceeding was the use of methamphetamines by the parties and the Husband’s threatening and controlling behaviour. I address these issues in relation to s.60CC(3)(j).
I intend to make an order that the Husband attend and complete a Men’s Behaviour Program recommended by the Men’s Referral Service.
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
At the time of the interviews for the Family Report on 14 July 2017 [X] was 8 years 11 months old. Ms O described [X] as being of average intelligence and maturity[32]. [Y] was 7 years 2 months old and [Z] was aged 9 months.
[32] Transcript T240:27-36.
Ms O noted in the Family Report that it appeared that [X]’s relationship with her mother had deteriorated as a consequence of her exposure to the parental conflict[33]. Ms O said:
At nine years of age, [X] is currently a concrete thinker and is at a developmental age where she is likely to see things as black or white, right or wrong and believe that things are either the truth or a lie[34].
[33] Family Report, at [93].
[34] Ibid., at [94].
In the Family Report Ms O noted that both of the Older Children had expressed varying levels of anger towards their mother for removing them from Victoria and grief at the loss of their relationship with their father and their school.[35]
[35] Ibid., at [96].
Ms O noted in the Family Report that:
Both parents during their interview expressed concern for [Y]’s emotional well-being over the past six months. [Y] appears to be experiencing tremendous grief and loss issues which should be highlighted to his counsellor[36].
[36] Ibid., at [98].
The Husband refused to consent to the Older Children having counselling before their interview for the Family Report on 14 July 2017. He continued to refuse to consent to the Older Children participating in counselling after the Family Report was released on 8 August 2017. I refer to the Husband’s refusal to consent to the Older Children having counselling in the discussion in relation to s.60CC(3)(b)(i) below.
Ms O conceded when cross examined by Counsel for the Wife that it was to the Wife’s credit that she had not told [X] the reason that she left the Husband was because of his abusive, controlling behaviour and because he was taking drugs. Ms O agreed that as a result [X] was left with no understanding of the real situation[37]. Ms O agreed that it would have assisted [X] and [Y] to have counselling after they returned to Victoria at the end of January 2017. Ms O also agreed under cross examination that the Husband’s refusal to allow [X] and [Y] to have counselling demonstrated the Husband’s inability to put the best interests of the Children first[38].
[37] Transcript T229:46-230:4.
[38] Transcript T212:25-213:5.
I do not accord any significant weight to the views expressed by [X] which are referred to in the Family Report, as they have been obtained in circumstances where the Husband has deliberately obstructed counselling between [X] and her mother taking place. I also note that [X] is still quite young and is unable to determine what is in her best interests.
I also do not propose to accord any significant weight to the views expressed by [Y] which are referred to in the Family Report, as they have also been obtained in circumstances where the Husband has deliberately obstructed counselling for [Y] taking place. [Y] is also too young to determine what is in his best interests.
Neither Counsel for the Husband or the Wife contended that the Court should take [Y]’s views into account. As [Z] is presently only 2 years old, he is too young to express a view.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each of the child’s parents
Older Children
Both Counsel for the Wife and the Husband submitted that it was clear that [X] and [Y] have a close and loving relationship with each of their parents.
The Husband admitted that the Wife had been the primary carer of the Older Children during the relationship whilst he worked full time[39]. The Wife has been the primary carer of [Z] all of his life.
[39] Husband’s Affidavit, filed 31.10.17, at [140].
As set out in the discussion in relation to s.60CC(3)(a), Ms O noted in the Family Report that both of the Older Children had expressed varying levels of anger towards the Wife for removing them from Victoria and grief at the loss of their relationship with their father and their school.[40]
[40] Family Report, at [96].
The Wife’s solicitors wrote to the Husband’s solicitors on 23 May 2017[41] advising that [X] and [Y] had been having ongoing nightmares and that their doctor had suggested that they attend upon a psychologist to receive counselling in relation to changes arising from the parties’ separation.
[41] Letter 23.5.17, Exhibit R1.
The Husband did not agree to the counselling. Under cross examination the Husband said:
[…] I didn’t find it necessary for them to undergo counselling again, for anymore psychological trauma that they may experience when these nightmares were – were told to be made up[42].
Because I didn’t find it within the kids’ best interests to provide any more stress- traumatic events with regards to going to counselling[43].
[42] Transcript T78:9-11.
[43] Transcript T82:4-5.
After the Family Report was released, the Wife’s solicitors again wrote to the Husband’s solicitors by a letter dated 22 August 2017[44], requesting the Husband’s consent for [X] and [Y] to attend counselling with Dr B at Town B Mental Health.
[44] Letter 22.8.17, Exhibit R2.
The Husband again did not agree to the counselling.
The Husband said in his affidavit filed on 31 October 2017 that he had confirmed that the Older Children could be re-enrolled at the School 2 for the 2018 school year. He also said that the school had:
“[…] also confirmed that a counselling service will be available upon their return”[45].
[45] Husband’s Affidavit, filed 31.10.17, at [127].
The Husband was cross examined in relation to his refusal to consent to the Older Children having counselling, as follows:
Mr Robinson In the report, you would have read how there is damage done to the relationship between the mother and [X]?
Husband Correct.
Mr Robinson Yes. Didn’t you think - didn’t you think that would be a good idea for there to be professional assistance in repairing that relationship?
HusbandI’ve spoken with the school with the intention for them to undergo counselling through the school counsellors to discuss everything and the traumatic events that they’ve incurred with regards to being removed from me, the comments with regard to them crying every night because they have had their relationship destroyed and taken apart from their father, so therefore I didn’t deem necessary for any counselling to occur until the kids are in a stable and safe environment.
Mr Robinson I see. No counselling?
Husband I don’t want - I don’t want to make the ---
Mr Robinson No counselling when they’re with their mum but counselling when they’re with you?
Husband Once- once ---
Mr Robinson Is that what you say?
Husbandshe could – they – the - children, as far as what has happened is the detrimental effect to them, can - can be put into a stable environment before they need to go to speak to any counsellors is the statements that they’ve made up to us with regard to telling stories and making up lies has become quite apparent. So, therefore, I don’t believe it was in the best interests of my children to speak to any psychologists, counsellors, anybody at that stage, no[46].
[46] Transcript T 79:33-80:9.
Under further cross examination the Husband said that he had spoken to staff at the school that the children had previously attended, School 2, in April or May 2017 to see what counselling services they had available for [X] and [Y]. He said he did this:
Because I believed that the children should be speaking to someone[47].
[47] Transcript T81: 46-47.
When further questioned by Counsel for the Wife, the Husband agreed that at the same time that he was concerned enough about the Older Children to make inquiries about counselling services at a school they were not attending, he received a letter from the Wife’s solicitors suggesting that they go to counselling and he refused agree to it. The Husband proceeded to justify his decision on the basis that he did not want to put any more stress on the Older Children.He continued to say that they needed a more stable environment before they went to speak to counsellors. He believed that the Wife did not provide that environment. The Husband said:
I believe that the stories that the children were telling us, the lies and the nature of what the children have come up with over the time that the relationship began, back through March, was being manipulated. So, therefore, I made that decision not to put them into counselling[48].
[48] Transcript T83:19-22.
As discussed above, Ms O agreed under cross examination that the Husband’s refusal to allow [X] and [Y] to have counselling, demonstrated the Husband’s inability to put the best interests of the Children first. Ms O said that the Husband’s behaviour in refusing to consent to the counselling was “concerning”[49].
[49] Transcript T212:25-213:5.
Counsel for the Wife submitted that the Husband’s evidence was that he did not think that [X] and [Y] needed counselling until he had control of the situation. I accept that submission.
I find that the Husband has deliberately attempted to undermine the Wife’s relationship with the Older Children by refusing to agree to counselling in circumstances where it was in the Older Children’s best interests to have had counselling. I also find that the Husband has not acted in the Older Children’s best interests.
[Z]
The Wife has been the primary carer of [Z] all his life. Ms O noted that [Z] presented as a healthy and happy baby and was content to sit on his mother’s lap and watch his siblings[50].
[50] Family Report, at [82].
As discussed in relation to s.60CC(2)(a) above, the relationship between [Z] and his father is still developing.
The Family Report did not include any evidence of observations of interactions between the Husband and [Z].
Other persons (including any grandparent or other relative of the child);
Ms O noted that when the Older Children arrived for their interview for the Family Report, they were excited to see their father and Ms O and gave them both affectionate hugs. Ms O observed the Older Children in the outdoor play area with both the Husband and Ms O noted that they “…interacted with both Ms J and their father positively and affectionately”[51].
[51] Family Report, at [79].
Other than these observations, there was no evidence in the Family Report about the nature of the Older Children’s relationship with Ms J.
Ms O noted that [Z] became mildly distressed when he was placed into the care of the Husband and Ms J during handover, however he settled after a short period[52]. From the Family Report it appears that [Z] was placed by his mother in his pram at the time of handover.
[52] Family Report, at [77].
The Family Report did not include any observations of interactions between Ms J and [Z].
The Family Report did not include any observations of interactions between the Children and the Paternal Grandmother.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
Participation in making decisions about major long-term issues in relation to the Children
Prior to separation both parents participated in making decisions in relation to the long term issues in relation to the Older Children. The Wife has been the primary carer of the Children since August 2016.
Both the proposals for final orders of the Wife and the Husband seek orders that the parents have equal shared parental responsibility.
The Wife has demonstrated that subsequent to her return to Australia that she has sought to involve the Husband in decision making concerning the major long term issues relating to the Children. The Wife sought the Husband’s consent before she took the Older Children to counselling in Australia. I refer to the discussion in relation to s.60CC(3)(b)(i) above. I have found that in relation to that matter the Husband did not act in the best interests of the Older Children.
Opportunity to spend time with and communicate with the Children
On 6 March 2017 Judge Harland made Orders by consent that the Children live with the Wife and that the Husband spend time with the Older Children each alternate weekend from after school Friday to 4.00 pm Sunday, commencing on 17 March 2017. It was also ordered that the Husband spend time with [Z] each alternate Sunday from 2.00 pm to 4.00 pm, commencing 19 March 2017 and each Thursday from 5.00 pm to 7.00 pm, commencing 23 March 2017.
There was no issue at trial that the Husband had not spent time with the Older Children substantially in accordance with the Orders made on 3 March 2017 and the subsequent consent Orders made on 11 August 2017.
The Husband’s Proposal is that the Children all live with him after [Z] turns two years of age and that they spend four nights in a fortnight with the Wife. The Husband therefore seeks additional time with the Children.
The Husband did not take advantage of the opportunity to spend time with [Z] each Thursday from 5.00 pm to 7.00 pm, which was ordered by consent on 6 March 2017. The Wife deposed that the Husband missed four of the Thursday visits in June 2017 and most of the visits in July 2017. The Wife said that she agreed to the consent Orders on 11 August 2017 which cancelled the time for the Husband to spend with [Z] on Thursday evenings because the Husband was not attending[53].
[53] Wife’s Affidavit, filed 31.10.17, at [36]-[37].
The Husband deposed that he generally worked Monday to Friday from about 9.00 am to 5.00 pm, however his employer had allowed him work flexibility since August 2016[54]. He also deposed that he was “…able to work from home as needed”[55]. The Husband said that the paternal family lives in Suburb O, which is about a 45 minute drive away from the Property K property. He said that they generally saw them every two weeks.
[54] Husband’s Affidavit, filed 31.10.17, at [129].
[55] Ibid., at [130].
The Husband was cross examined in relation to his failure to spend time with [Z] on the Thursday evenings between 5.00 pm and 7.00 pm in accordance with the consent orders made on 11 August 2017. During the cross examination the Husband said:
The Thursday was removed because it was the timeframe and the – the stress and burden it was putting on myself with regards to trying to manage work and get down there by the time period, spend the two hours, which wasn’t beneficial to me[56].
[56] Transcript T70:27-30.
This evidence was not consistent with the Husband’s evidence that as his employment was flexible he had been able to pick the Older Children up from school two days a week during the marriage, in addition to dropping them off at school most mornings[57]. After further cross examination it became apparent that the Husband’s evidence of flexibility with his work was exaggerated. It became further apparent during this cross examination that the Husband’s Proposal meant that the Husband intended to be working full time and that Ms J would be caring for the Children as well as her own children. The Husband also intended to engage an au pair if he could afford it if Ms J returned to work.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
[57] Husband’s Affidavit, at [141].
When the Wife separated from the Husband on 11 August 2016, the parties had $46,500 in their Offset joint account (Joint Account). The Wife said that she was advised by a representative from Safe Steps to withdraw all the money, as she was concerned about the Husband’s gambling and drug use. The Wife withdrew $30,000 from the Joint Account. Of this money $20,000 was spent on repaying the $20,000 the Wife’s parents lent the parties in 2012. The Wife used the balance of $10,000 for various expenses including the flights between Australia and [country omitted], expenses in relation to the Older Children and the costs of providing for [Z], who was born in [country omitted] [58]. The Wife was cross examined by Counsel for the Husband about her withdrawal of the $30,000 as follows:
[58] Wife’s Affidavit, filed 31.10.17, at [116].
Mr Mellas Yes. So you were in a desperate hurry to pay them that $20,000 as soon as you left Australia: is that right?
Wife Yes. After speaking with Safe Steps and discussing his gambling they advised---
Mr Mellas Right?
Wife that it was a good idea because, post-separation, if there’s no money left, there’s no money left.
Mr Mellas Right?
Wife And [the Husband] had ---
Mr Mellas So?
Wife said to me on numerous occasions, “I’m going to gamble the money away. Watch this”.
Mr Mellas So you were desperate for money; right? When you left, you were desperate for money. You said you had a lack of funds?
Wife I wanted to repay my parents[59].
[59] Transcript T168:5-20.
On 25 August 2016 the Husband withdrew $16,300 from the Joint Account, being the balance of the Joint Account. From that time the Wife had no access to funds other than [country omitted] government benefits.
The Wife is a [country omitted] citizen as are the Children. Therefore when the Wife was living in [country omitted] she was able to access [country omitted] government benefits available to its citizens.
When the Wife returned to Australia in late January 2017 she had extremely limited financial resources. As a [country omitted] citizen living in Australia, the Wife has limited entitlements to Centrelink benefits. She is reliant upon funds from the Husband, her parents or charities. At trial she was receiving a weekly income of AUD$667 being: Family Tax Benefit of $283 a week; rent assistance of $55 a week; and $329 a week in child support[60]. This gave the Wife an annual income of approximately $34,779. Of her weekly expenses her rent was $290 a week, leaving $377 a week to maintain herself and the Children. The Wife estimates that the total weekly expenditure for herself and the Children to be $1,162[61], leaving a deficit of $495.
[60] Wife’s Financial Statement, filed 6.10.17, Husband’s Financial Statement, filed 9.3.18 and Transcript T255:28-29.
[61] Wife’s Financial Statement, filed 6.10.17.
The Wife gave evidence when cross examined by Counsel for the Husband that she had not made enquiries about obtaining employment in Melbourne and Town B because the cost of child care and after school care would “consume the majority of my pay”[62]. The Wife estimated that the cost of day care for [Z] would be about $500 for each week[63].
[62] Transcript T191:9.
[63] Transcript T191:11-12.
The Wife gave evidence that if she returned to [country omitted] she planned to live with her parents until she could find employment and a rental property of her own. Her case manager from [country omitted], the [country omitted] equivalent of Centrelink, had advised her that she would be entitled to weekly financial assistance of $829.46 as follows[64]:
a)Sole parent support - $329.57
b)Family tax credit for 3 children - $221.61
c)Accommodation supplement (renting four bedroom house at $450 a week) - $225.00
d)Temporary additional support - $53.28[65].
[64] Exhibit R7, Emails between the Wife and Ms S, 24.10.17.
[65] Transcript T193:6-19 and T277:38-279:35.
The Wife would also receive a disability allowance of $46.49 a week for [X] as she has a congenital heart condition[66]. This would give the Wife a weekly estimated income of $875.95 before the payment of any child support from the Husband. The Wife’s annual income would therefore be approximately $45,675 before the payment of any child support. The Wife would also be entitled to a Transition to Work payment when she starts employment. This is a payment of up to $1,500 which would allow her to purchase clothing and necessary supplies to commence work[67].
[66] Wife’s Affidavit, filed 31.10.17, at [60].
[67] Wife’s Affidavit, filed 31.10.17, at [59].
The Wife has a previous work history in [employment omitted]. The Wife hopes to gain employment in [country omitted]. She has researched employment for [employment] in [country omitted] and believes that she could obtain employment with an average salary of between $50,000 to $60,000 per year[68].
[68] Ibid., at [62].
The Husband had made no payments pursuant to the Spousal Maintenance Order, made on 12 October 2017.
The Wife has deposed that:
It is very difficult for me to support myself and the children in Australia, without the assistance of my parents, and without proper access to funds either from [the Husband] or from Centrelink[69].
[69] Ibid., at [70].
Conclusion Section 60CC(3)(ca)
During the marriage each of the parties maintained the Children, although approaching the time of separation the Husband’s gambling was becoming an increasing problem and expense for the household. This is discussed in relation to s. 75(2)(o).
Post separation the Husband has paid child support, although the Wife has had to request that the Child Support Agency collect the payments to ensure that they are made and made in a timely manner. The Child Support Agency has garnisheed the Husband’s income. The Husband has to this extent fulfilled his obligations to maintain the Children.
The Husband also maintains the Older Children when they spend time with him each alternate weekend and during the school holidays pursuant to Court Orders.
Post separation I find that the Wife has acted responsibly in her efforts to fulfil her obligations as a parent to maintain the Children.
Section 60CC(3)(d) the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I have determined that the Wife acted protectively with respect to the Older Children when she left the Property K property and separated from the Husband on 10 August 2016. At that time she was six months pregnant and had the care of two young Children and she was unable to access significant Centrelink benefits in Australia. It was reasonable for her to travel to the support of her parents and family in [country omitted] in such circumstances. The $10,000 was the only money that she had for travel and living expenses for herself and the Older Children. She also had to provide for [Z] who was born in [country omitted] on [date] 2016.
I find that the $10,000 was reasonably disposed of and spent on reasonably incurred living expenses. I will therefore not add this sum of $10,000 back as a notional asset of property to the asset pool.
The characterisation of the sum of $16,300 withdrawn by the Husband
In relation to the legal fees of $13,000 that the Husband says he paid, he has had the benefit of the payment of these fees from the Joint Account which was a joint asset. I note that at trial the Husband did not produce any documentary evidence relating to the existence of these fees or their payment.
The settled authorities clearly permit notional addback of funds disbursed by premature property settlement and applied to legal costs.
Accordingly the sum of $13,000 spent by the Husband of legal fees will be added into the property pool.
In relation to the $3,300 for “living expenses”, the Husband has not provided any particulars of the expenses that he claims to have spent this money on. The Husband was in full time employment. He was not at that time incurring any living expenses associated with the Wife or the Children. He was not paying child support until 2017. At the time the Husband was spending significant amounts of money on gambling. This is discussed in relation to s.75(2)(o).
In the absence of particulars of expenditure from the Husband, it is therefore not possible to draw a conclusion that he spent this money on reasonably incurred living expenses. I will therefore add the sum of $3,300 back as a notional asset of property to the asset pool.
Therefore I will add the total sum of $16,300 back as a notional asset of property to the asset pool.
Findings as to Asset Pool for Distribution Between the Parties
| Ownership | Description | Value | |||||
| Assets | |||||||
| 1 | Joint | Funds held in Armstrong Legal Trust Account from sale of Property K property | $99,035.72* *Includes $10,000 paid to Wife pursuant to consent Orders made 9.1.18 | ||||
| 2 | Husband | Motor vehicle 3 | E$21,500 | ||||
| 3 | Wife | Motor vehicle 2 | E$7,000 | ||||
| 4 | Husband | Bank Accounts | Minimal | ||||
| 5 | Wife | Bank Accounts | Minimal | ||||
| 7 | Husband | Legal costs and living expenses | $16,300 | ||||
| Liabilities | |||||||
| 6 | Husband | Car Loan* | E$11,000 | ||||
| Total | E$11,000 | ||||||
| TOTAL NET ASSETS | $132,835.72 | ||||||
| Superannuation | |||||||
| Member | Name of Fund | Type of Interest | Value | ||||
| 7 | Husband | Super Fund D Superannuation Saving Trust | Accumulation | E$80,498.00 | |||
| 8 | Wife | Super Fund E | Accumulation | E$7,000 | |||
| TOTAL SUPERANNUATION | E87,498.00 | ||||||
Contributions
Financial Contributions section 79(4)(a)
Initial Contributions
At the commencement of the relationship in 2007 the Husband was employed and owned a motor vehicle with an estimated value of about $15,000. The Husband had some superannuation entitlements, from which he later withdrew $15,000 to purchase the former matrimonial home. The Husband otherwise had minimal assets and liabilities.
At the commencement of the relationship the Wife was also employed and had minimal assets and liabilities.
Contributions During the Marriage
After commencing cohabitation in 2007 the parties continued to be employed until they moved to [country omitted] in 2008 when the Wife was pregnant with [X]. Before [X] was born in 2008 the Wife worked [employment omitted].
The Wife did not return to work after [X] was born, as [X] was diagnosed with a heart condition and required surgery at nine weeks of age.
The Wife became pregnant again in 2009 and [Y] was born in 2010. The Wife cared for the Older Children full time until the family returned to Australia in 2011.
When the family returned to Melbourne they lived in Suburb Q and the Wife worked one or two days a week with [employer omitted] for $30 an hour.
In 2014 the Wife commenced full time employment with [employer omitted] in [occupation omitted].
The Husband was employed full time in various positions throughout the relationship, apart from short periods between jobs.
The Wife deposed that the Husband often gambled during the relationship and this was a source of tension between them when [X] was born[223].
[223] Wife’s Affidavit, filed 31.19.18, at [117].
Contributions post separation
The Husband continued to pay the mortgage on the Property K property until it was sold. The Husband and Ms J lived in the Property K property until it was sold.
Section 79 (4)(b) and (c) Non Financial Contributions
The Wife ceased employment when [X] was born in 2008. The Wife remained the primary caregiver of the Older Children until she returned to part time work in 2011. The Wife commenced full time work in 2014.
The Husband admits that the Wife was the primary carer for the Older Children during the relationship, while he worked full time[224]. The Husband assisted when he was not at work and was involved with their extra-curricular activities including sporting activities. The Husband took the Older Children to school most mornings, enabling the Wife to start work early in the morning[225].
[224] Husband’s Affidavit, filed 31.10.17, at [140].
[225] Ibid., at [141].
From 2015 and in 2016 the Husband increasingly used drugs and gambled and became increasingly withdrawn and unsupportive. The time the Husband spent with the Older Children decreased significantly in the months leading to separation in August 2016.
The Section 79(4)(d), (e), (f), (g) and Section 75(2) factors
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage;
The orders which I propose to make will have limited effect upon the earning capacity of the Husband. The Wife will be able to pursue employment in [country omitted], as she will have her parents to assist her with childcare.
Section 79(4)(g) any child support under the Child Support (Assessment Act) 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
At trial the Wife was receiving $329 a week in child support[226]. The Husband’s Counsel submitted that it was estimated that after the birth of the Husband’s second child with Ms J in [date] 2018, the Husband’s child support liability would be reduced by $50 a week to $279 a week[227].
[226] Husband’s Financial Statement, filed 9.3.18 and Transcript T255:28-29.
[227] Transcript T 256:1-9.
Pursuant to the Parenting Orders, the Husband is to pay for the flights for the Wife and Children to fly to and from [country omitted] pursuant to the parenting orders. It is anticipated that the Husband will seek to offset this cost with his child support liability. This is discussed in relation to s.60CC(3)(e).
The matters referred to in Section 75(2) so far as they are relevant
Section 75(2)(a) the age and state of health of each of the parties;
The Husband is aged 39 and is in a good state of health.
The Wife is aged 40. She is in good health apart from a back injury which she sustained in [date] 2016 when she was pregnant with [Z]. She visits a donation chiropractor on a fortnightly basis as she cannot afford a physiotherapist and manages her pain with Neurofen[228].
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
[228] Wife’s Affidavit, filed 31.10.17, at [119].
The Wife holds a [qualifications omitted]. The Wife’s income is discussed in relation to s.60CC(3)(ca).
The Husband is employed as a [occupation omitted] with [employer omitted]. He has been employed by [employer omitted] for the past seven years.
There is no evidence to suggest that either the Husband or the Wife is incapable of participating in appropriate gainful employment.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The Wife has the care and control of the three children of the marriage [X], aged 10, [Y], aged 8 and [Z] aged 2.
The Husband has a child with Ms J, [A], aged 1. It is anticipated that the Husband also has a second child with Ms J born in [date] 2018.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
The commitments of each of the parties that are necessary to support himself/herself and those that they have a duty to maintain are set out in their respective financial statements.
The Wife was not cross examined about the expenses claimed in her Financial Statement.
The Husband was cross examined about the accuracy of the Financial Statements that he filed.
Section 75(2)(e) the responsibilities of either party to support any other person;
Each party has a responsibility to contribute towards the support of the Children.
The Husband has a responsibility to support Ms J and their son [A] and [A]’s sibling.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The Wife’s eligibility for government benefits in Australia and [country omitted] is discussed in s.60CC(3)(a).
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Due to the small asset pool the orders that I will make will result in the Wife receiving most of the nett proceeds of the sale of the Property K property.
Section 75(2)(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
The Wife is eligible for [country omitted] Government funded courses that would allow her to upgrade her skills to work in [employment omitted]. This would increase her employment and salary prospects in the long term[229].
Section 75(2)(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
[229] Wife’s Affidavit, filed 31.10.17, at [62].
This is not a relevant consideration.
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The Wife’s role as a homemaker and parent during the relationship has had an adverse impact on her earning capacity. She was not in full time employment from 2008 to 2014. She only returned to full time employment for some two years before separation in August 2016.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The parties cohabitated for a period of 9 years. They commenced cohabitation in 2007, married on [date] 2016 and separated on 10 August 2016. The earning capacity of the Wife has been affected by the duration of the relationship as she has been out of the workforce for most of that time, returning full time in 2014.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
Pursuant to the parenting orders, the Children will remain living with the Wife.
Both the Husband and the Wife will be able to continue their roles as parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
The Husband has been cohabitating with Ms J since [date] 2017. Ms J is not entitled to any maternity leave payments and is dependent on the Husband for financial support. [A] and any sibling of his are also dependent on the Husband for financial support.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
This is not a relevant consideration.
Section 75(2)(naa) the terms of any order or declaration to be made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a defacto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
This is discussed in relation to s.79(4)(g).
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The Husband was cross examined in relation to a number of financial matters. I now consider these matters.
Husband’s Failure to pay return airfares from [country omitted]
The Husband admitted under cross examination that he had sworn an affidavit in the Hague Convention proceeding that he would pay for the Wife and the Children to fly back to Australia[230].
[230] Transcript T55:1-3.
When cross examined further about why he had not paid for these airfares, the Husband said that he had correspondence from his lawyers offering to pay the Wife for the airfares. Counsel for the Wife called for this correspondence. The following day Counsel for the Wife again called for this correspondence, however none was produced by the Husband.
The Husband admitted under cross examination that he had not reimbursed the Wife the money she paid for the return airfares from [country omitted] [231].
[231] Transcript T63:19.
The Husband failed to provide any satisfactory explanation as to why he had not paid for the return airfares for the Wife and the Children to Australia, after deposing in an affidavit in the Hague Convention proceeding that he would pay for these airfares.
Husband’s Failure to pay gas account for the [country omitted] property
At the time the Wife left the Property K property, the gas and electricity accounts were in the Wife’s name. When cross examined about the payment of these bills the Husband initially said:
I paid all the bills up until the time she cancelled them. When she cancelled the bills I transferred all the bills into my name, and continued to pay all the bills for the home[232].
[232] Transcript T62:13-15.
When cross examined further, the Husband admitted that he did not pay the gas bill from [gas company] and had allowed the account to be placed into the hands of a debt collection agency. The Wife then had to pay the account herself. In cross examination Counsel for the Wife said:
Mr Robinson Yes. You could have paid the gas bill, but instead you didn’t. You allowed them to send it to your house until it was out of control and then left it for her to pay, didn’t you?
Husband Yes.
Mr Robinson And you left it for her to pay, knowing that she doesn’t even receive a pension in Australia, and you weren’t paying spouse maintenance to her, even though you had been ordered to, didn’t you?
Husband Yes[233].
[233] Transcript T62:41-47.
The Husband admitted under cross examination that he had not reimbursed the Wife the money she paid for the [gas company] gas account[234].
[234] Transcript T63:21.
Husband’s failure to pay Motor Vehicle 2 registration
The Motor Vehicle 2 was registered in the name of the Husband. The Husband’s first Financial Statement[235] claimed the registration of the Motor Vehicle 2 as an expense.
[235] Husband’s Financial Statement, filed 13.2.17.
The Wife said that on 15 August 2017 she was stopped by the police when driving the Motor Vehicle 2 and notified that the registration of the vehicle had expired. The Wife said that she believed that the Husband was paying the registration of the Motor Vehicle 2 as he had deposed to payment of the registration as an expense in his first Financial Statement. The Wife said that the Husband had not notified her that he was not going to pay the vehicle registration.
The police gave the Wife until the end of that day to pay the Motor Vehicle 2 registration. She said that as a result she was unable to obtain the Healthcare Cardholder’s discount, as she was required to obtain a statutory declaration from the Husband declaring that she had permission to use the vehicle. Consequently the Wife had to pay the full amount of the vehicle registration. Two months later the Husband filed a second Financial Statement[236] which continued to claim the Motor Vehicle 2 registration as an expense.
[236] Husband's Financial Statement, filed 11.10.17.
The Husband admitted under cross examination that he had not offered to pay the registration fee to the Wife and that he had not reimbursed the money to her[237].
[237] Transcript T63:12-17.
Husband’s failure to provide the Motor Vehicle 3
At the time of separation the parties had two cars, the Motor Vehicle 3 and the Motor Vehicle 2, both of which were registered in the Husband’s name. When the Wife returned from [country omitted] in [date] 2017, the Wife requested the use of the Motor Vehicle 3, as it was the larger car. At the time she was transporting the Children and [Z] required a baby capsule.
The Husband refused to give the Wife the Motor Vehicle 3 and would only give her the Motor Vehicle 2, the smaller car[238]. When cross examined about this matter, the Husband made excuses as to why he had retained the Motor Vehicle 3 for his own use. It is apparent from the evidence that Ms J has a car for her own use[239]. The Husband conceded that there was nothing that stopped him from allowing the Wife and the Children from using the Motor Vehicle 3. He agreed that he chose to keep the larger car for himself[240].
[238] Husband’s Affidavit of Evidence in Chief, filed 31.10.17, at [139].
[239] Transcript T63:41-42.
[240] Transcript T61:18-25.
Husband’s gambling
At the interim defended hearing on 12 October 2017, Judge Harland found that between 30 June 2016 and 26 September 2017 the Husband had spent $24,507 on betting[241]. This period covers five weeks prior to separation. It also covers the period from [date] 2017 when the Wife returned from [country omitted] and filed her Response on 1 March 2017 seeking spousal maintenance. It covers the period when the Husband opposed paying any spousal maintenance to the Wife, failed to pay for the Wife and the Children’s return air fares, failed to pay the gas account and failed to pay for the Motor Vehicle 2 registration.
[241] Birch v Millett [2017] FCCA 2557, at [5].
The Husband’s first financial statement claimed $100 a week for the Husband’s entertainment.
At trial under cross examination, the Husband agreed that between 30 June 2016 and 26 September 2017 he was spending about $2,000 a month or $500 a week on gambling. He justified this expenditure by saying that he had dividends of about $17,000 over that time and that he had only made a loss of $6,600 per year. The Husband further justified this expenditure by indicating that this loss was just:
[…] $50 for – for having a drink on the weekend…[242]
[242] Transcript T94:26-31.
In relation to the Husband’s gambling, Ms J said:
I believe $100 a week on gambling at the maximum – it was – he had earned a lot of money. He was able to have recreational needs. We were able to still make household payments. We were still able to put food on the table. It didn’t hinder us with any of our requirements.
….I believe $100 a week is fine[243].
[243] Transcript T127:19-23.
In his Affidavit of Evidence in Chief the Husband said:
Over the past 12 months or so, I have made gambling bets which total about $24,000. Against that I have received winnings of about $17,000. I have made a loss of about $7,000 per annum.
I concede that I can no longer afford to gamble[244].
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
[244] Husband’s Affidavit of Evidence in Chief, filed 31.10.17, at [31].
This is not a relevant consideration.
Section 75(2)(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion as to Contribution
Neither Counsel for the Husband or the Wife made submissions specifically in relation to contributions.
Having considered the matters referred to in this judgment, I determine the Wife’s contributions should be assessed at 50% and the Husband’s also at 50%.
Conclusion as to future need
I take into account the following:
a)The Children are going to be living with the Wife.
b)The young age of the Children.
c)The care of the Children will impact upon the Wife’s earning capacity.
d)The disparity in earning capacity of the parties.
Because the pool is small, I must look at the reality of the parties’ respective financial positions rather than simply percentage amounts. The Wife has no assets. She has an ability to earn an income, however this is contingent upon the assistance of the maternal grandparents or locating affordable childcare in [country omitted]. The Wife’s ability to earn an income is modest compared to that of the Husband for the foreseeable future. She will have the primary care of the Children for many years to come. [Z] is only two years old.
I am satisfied that there should be an adjustment in favour of the Wife of 20% for s.75(2) factors.
Adjustment of Interests
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties, so that the Wife is entitled to 70% of the non-superannuation property and the Husband is entitled to 30% of the non-superannuation property.
The division of the assets that I have determined is as follows.
a)Husband’s assets:
i)Motor Vehicle 3 – E$21,500.
ii)Legal costs and living expenses - $16,300.
iii)Car Loan for Motor Vehicle 3 - $11,000.
iv)Payment from proceeds of sale of Property K property - $13,050.72.
b)Wife’s assets:
i)Motor Vehicle 2 – E$7,000.
ii)Payment from proceeds of sale of Property K property - $85,985.
In relation to superannuation, the current division of superannuation is approximately 8% in favour of the Wife and 92% in favour of the Husband.
After considering the evidence, I have determined that the combined superannuation should be divided as follows: 70% in favour of the Wife and 30% in favour of the Husband. This will result in a split of the Husband’s superannuation in favour of the Wife of $54,249.
Spousal Maintenance
The Wife’s Response filed on 1 March 2017 sought an order for interim spousal maintenance of $500 a week. The Husband opposed this order. As discussed above under the heading Procedural History, on 12 October 2017 after a contested interim hearing, Judge Harland made the Spousal Maintenance Order that the Husband pay the Wife $500 a week.
The Husband did not comply with the Spousal Maintenance Order.
As a result of the sale of the Property K property, orders were made by Judge Harland by consent on 9 January 2018 that the sum of $10,000 be paid to the Wife out of the proceeds of sale, with the characterisation of the payment to be made at trial. I have characterised this payment as spousal maintenance, as discussed below.
The Husband was cross examined about his failure to make any payments pursuant to the Spousal Maintenance Order as follows:
Mr Robinson So I presume other than this $10,000 that was taken from the proceeds of the sale, you won’t be paying any spouse maintenance into the future either, will you?
Husband My intention would be to have the spousal removed[245].
[245] Transcript T54:24-26.
[…]
Mr Robinson So practically, when we’re talking about support of your wife, she is going to be dependent on child support, and that’s it?
Husband Yes.
Mr Robinson Social security and child support?
Husband Yes[246].
[…]
Mr Robinson You’re not going to ask her Honour to make spouse maintenance payments to your wife are you?
Husband No.
Mr Robinson You’re going to ask her ---?
Husband I’m requesting that be withdrawn.
Mr Robinson Correct?
[246] Transcript T58:28-31.
Husband Yes.
Mr Robinson Which will leave her dependent on social security, such as she can get as a [country omitted] citizen here?
Husband Yes[247].
[247] Transcript T58:43-59:4.
The Husband has filed four financial statements in this proceeding[248]. In the first two Financial Statements filed on 13 February 2017 and 11 October 2017, the Husband deposed to a gross weekly income of $1,698, which is an annual gross income of $88,539. As discussed above under the heading Procedural History, on 12 October 2017 Judge Harland found these Financial Statements “misleading”[249]. In the Financial Statements filed on 31 October 2017 and 9 March 2018 the Husband deposed to a gross weekly income of $2,645, which is an annual gross income and remuneration of approximately $137,918.
[248] Husband’s Financial Statements filed 13.2.17, 11.10.17, 31.10.17 and 9.3.17.
[249] Birch & Millett [2017] FCCA 2557. At [10]-[13].
The Husband deposed that his taxable incomes for the years ending 30 June 2014, 2015 and 2016 respectively were $106,539, $111,159 and $93,178[250]. He also said that the Wife’s taxable income in the year ending 30 June 2016 was $40,368[251].
[250] Husband’s Affidavit, filed 31.10.17, at [45].
[251] Loc. cit.
The Husband receives a bonus if his budget is achieved. In August 2017 he received a bonus of about $17,000. Consequently his total income and remuneration in the 2017 financial year was $117,000[252].
[252] Husband’s Affidavit, filed 31.10.17, at [42] and [43].
Ms J has deposed that the Spousal Maintenance Order has “placed considerable hardship on our family”[253]. Ms J did not provide any particulars of hardship caused by the payment of spousal maintenance in her affidavit. It is difficult to see what hardship Ms J could have been referring to in circumstances where the Husband had made no payments pursuant to the Spousal Maintenance Order.
[253] Affidavit of Ms J, filed 31.10.17, at [20].
The Husband deposed that he does not have the capacity to pay ongoing spousal maintenance[254].
[254] Husband’s Affidavit of Evidence in Chief, filed 31.10.17, at [36].
From the evidence that the Husband gave under cross examination by Counsel for the Wife, I understood that the Husband did not intend to make any payments pursuant to the Spousal Maintenance Order pending judgment.
On 9 January 2018, Judge Harland made orders in relation to the distribution of part of the proceeds of sale of the Property K property. These orders included that the sum of $10,000 be paid to the Wife and be characterised at the final hearing.
Counsel for the Husband sought a discharge of the Spousal Maintenance Order[255]. Counsel for the Husband suggested in final submission that the Court may need to consider the issue of lump sum spousal maintenance[256].
[255] Transcript T262:27-29.
[256] Transcript T264:16-18.
In final submissions Counsel for the Wife sought that 20% of the asset pool be characterised as lump sum maintenance pursuant to s.77A of the Act.
Section 72 of the Act sets out the requirements for an order for spousal maintenance. Section 72 provides as follows:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The first matter which must be answered in order to determine the Wife’s right to spousal maintenance is whether or not she has demonstrated that she is unable to support herself adequately by reason of one of the factors set out in s.72(1) of the Act.
At the interim contested hearing on spousal maintenance on 12 October 2017, the Husband conceded that the Wife was in need of spousal maintenance[257]. The Wife has the care and control of the Children who have not attained the age of 18 and therefore falls within s.72(1)(a) of the Act.
[257] Birch and Millett [2017] FCCA 2557, at [2].
I am satisfied that it is appropriate to make an order for maintenance. I have determined that the Husband was not truthful in giving his evidence. This includes the evidence he gave in relation to the Financial Statements filed in this proceeding.
I also take into account, however that the Husband now has Ms J as a dependant partner, as well as a further dependent child [A] and possibly another child to be born in [date] 2018.
I determine the rate of spousal maintenance to be $500 a week and the period the spousal maintenance covers is 20 weeks from the date of the Spousal Maintenance order, being 12 October 2017.
By reason of the Husband’s failure to comply with the Spousal Maintenance Order, and his stated intention during the trial not to do so in the future, I have determined that a lump sum maintenance order is appropriate. I intend the payment of $10,000 to the Wife that was ordered on 9 January 2018 be characterised as spousal maintenance.
I will order that the amount of $10,000 of the moneys to be paid to the Wife from the proceeds of sale of the Property K property are attributable to the provision of spousal maintenance of the Wife pursuant to s.77A of the Act.
Miscellaneous Property Matters
Sale of Property K Property
On 6 March 2017 Orders were made by Judge Harland by consent for the sale of the Property K property. Order 11 of the Consent Orders states:
11 Both parties forthwith do all things necessary to list the property situate at Property K in the State of Victoria for sale as follows:
11.1 the Wife select from 3 real estate agents proposed by the Husband;
The Wife deposed that on 23 March 2017 she received a text from Ms J telling her to sign all documents authorising three different estate agents to sell the Property K Property and that the Husband would decide which agent should sell the property[258].
[258] Wife’s Affidavit, filed 31.10.17, at [30].
The Wife has deposed that of the three estate agents nominated by the Husband, she selected [real estate agent]. The Exclusive Authority provided by the Husband’s solicitors noted that [real estate agent] would charge commission of 1.75% on successful sale of the Property K Property. The Wife negotiated a lower commission of 1.5% with [real estate agent] and then signed the Exclusive Authority ([real estate agent] Exclusive Authority)[259].
[259] Ibid., at [100].
The Husband did not sign the [real estate agent] Exclusive Authority until 3 April 2017. [real estate agent] incurred advertising costs of $1,400. The Husband then withdrew his consent to [real estate agent] Exclusive Authority and said he wanted to change real estate agents and appoint [real estate agent]. The advertising commission for [real estate agent] was 1.75% under $580,000 and 5% on each dollar over $580,000 and advertising costs of $800[260].
[260] Ibid., at [102].
The Husband and Wife entered into Heads of Agreement that the Wife agreed to [real estate agent] acting as the estate agent for the sale of the Property K property provided (amongst other matters) that:
a)The Wife reimburse the Husband for half of [real estate agent] advertising costs of $400 within 7 days of receiving her share of the net proceeds from the sale of the Property K property[261].
b)The Husband pay to the Wife the sum equivalent to the difference between the commission charged by [real estate agent] and the commission chargeable by [real estate agent] had they sold the property at the actual sale price pursuant to the [real estate agent] Exclusive Authority[262], within 7 days of the sale of the Property K property.
[261] Ibid., at [103.3 and 104].
[262] Ibid., at [103.4 and 104].
The Wife seeks orders that[263]:
a)The Wife reimburse the Husband $400 for the cost of the [real estate agent] advertising.
b)The Husband reimburse the Wife $1,675 for the difference in commission charged by [real estate agent] and what would have been charged by [real estate agent] pursuant to the [real estate agent] Exclusive Authority.
[263] Wife’s Response, at [23.2 and 24.1].
This would result in a net payment by the Husband to the Wife of $1,275 in relation to the sale of the Property K property.
Neither Counsel addressed me in relation to this matter in final submissions.
Reimbursement of Husband’s payment for Family Report
The Consent Orders made on 6 March 2017 provided that the parties attend upon a family consultant for the preparation of a family report, with the parties to share the costs equally but the Husband to meet the full cost in the first instance[264].
[264] Consent Orders 6 March 2017, paragraph 8.
The Husband has paid $4,100 to Ms O for the Family Report[265]. Therefore pursuant to the Orders made on 6 March 2017 the Wife is required to reimburse the Husband the sum of $2050.
[265] Husband’s Affidavit, filed 31.10.17, at [20.j].
Conclusion miscellaneous property matters
There is a payment to be made by the Husband to the Wife of $1,275 in relation to the sale of the Property K property.
There is a payment to be made by the Wife to the Husband of $2,050 as reimbursement for the preparation of the Family Report.
This makes a net payment by the Wife to the Husband of $775. I intend to deduct this amount from the sum to be paid to the Wife from the proceeds of sale of the Property K Property and add it to the moneys to be paid to the Husband from these settlement moneys.
I have therefore ordered that the following amounts are paid from the proceeds of sale of the Property K property:
a)The Wife $85,210.
b)The Husband $13,825.72.
Costs
The Husband in his Amended Initiating Application sought a final order that the Wife bear the Husband’s costs of and incidental to the proceeding[266].
[266] Husband’s Amended Initiating Application, at [paragraph 2, page 5].
The Husband’s counsel made no submissions in support of this order. The Applicant Husband’s Outline of Case document made no submissions on costs.
The Wife’s Amended Response[267] made no application for costs.
[267] Wife’s Amended Response, filed 31.10.17.
Section 117(1) of the Act provides:
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) of the Act provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act provides:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The Husband has not advanced any argument as to why the general rule in s.117(1) of the Act should not apply.
In my opinion, having regard to all the circumstances, the usual position under s.117(1) of the Act should apply and each party shall bear their own costs.
I therefore do not propose to make the order for costs sought by the Husband.
I certify that the preceding five hundred and one (501) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 27 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Costs
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Procedural Fairness
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Jurisdiction
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Consent
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Standing
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