BOLT & BOLT
[2018] FCCA 1147
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOLT & BOLT | [2018] FCCA 1147 |
| Catchwords: FAMILY LAW – Property – adjustment for section 75(2) factors – weight to be accorded to each party for their respective contributions. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Taylor v Barker [2007] FamCA 1246 Cowley v Mendoza [2010] FamCA 597 Heath & Hemming (No.2) [2011] FamCA 749 Collu & Rinaldo [2010] FamCAFC 53 AMS v AIF [1999] HCA 26 U v U [2002] HCA 36 |
| Applicant: | MS BOLT |
| Respondent: | MR BOLT |
| File Number: | MLC 1074 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 5, 22 – 23 February 2018 |
| Date of Last Submission: | 1 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Sweeney |
| Solicitors for the Applicant: | Kennedy Guy |
| Counsel for the Respondent: | Mr D Carlile |
| Solicitors for the Respondent: | Altona Legal |
ORDERS
As from the conclusion of term 2 2018, the Wife be permitted to relocate the residence of the children, [X] born 2011 and [Y] born 2013 (‘the children”) to Region A Tasmania.
The children live with the Wife.
The Husband and Wife have equal shared parental responsibility for the children
That the husband spend time with the children as follows:
(a)from the conclusion of school/kindergarten (or 3.30pm if a non-school/kindergarten day) Monday until the commencement of school (or 9.00am if a non-school/kindergarten day) Wednesday each week, or two consecutive nights each week as may be agreed;
(b)On Father’s Day weekend from 6.00pm on the Saturday preceding Father’s Day until the commencement of school on Monday;
(c)In even years from 2.00pm Christmas Day until 6.00pm Boxing Day and in odd years from 4.00pm Christmas Eve until 2.00pm Christmas day;
(d)For each of the children’s birthdays from 3.30pm until 6.00pm (if on a weekday) and from 2.00pm until 6.00pm if on a weekend with the non-residential parent;
(e)On the Father’s birthday for a period of four (4) hours as agreed and failing agreement from 12.00pm to 4.00pm;
(f)In odd years from 4.00pm Good Friday until 10.00am Easter Sunday and in even years from 10.00am Easter Sunday until 6.00pm Easter Monday;
(g)For one half of the mid-term school holiday periods on a week about basis as agreed and failing agreement with the Father for the second half of such holiday period in even years and for the first half of such holiday period in odd years;
(h)For the long Christmas holiday period on a week about basis as agreed, and, failing agreement, on a week about basis with the Father for the second week and each alternate week thereafter of such holiday period in even years and for the first week and each alternate week thereafter of such holiday period in odd years, unless otherwise agreed between the parties in writing;
(i)During the school term holidays and Christmas holiday period the alternate weekend arrangement and the mid-week arrangement be suspended;
(j)During the husband’s annual leave, at times to be agreed between the parties;
(k)At such other times as may be agreed between the parties in writing.
The Father’s time otherwise be suspended as follows:-
(a)On Mother’s Day weekend from 6.00pm on Saturday prior to Mother’s Day until the commencement of school on Monday;
(b)On the Wife’s birthday if it falls on a weekend day for a period of four (4) hours as agreed and if no agreement then from 3.30pm until 7.30pm and if it falls on a weekday from after school until 6.00pm;
(c)In odd years from 2.00pm Christmas Day until 6.00pm Boxing Day and in even years from 4.00pm Christmas Eve until 2.00pm Christmas day;
(d)In even years from 4.00pm Good Friday until 10.00am Easter Sunday and in odd years from 10.00am Easter Sunday until 6.00pm Easter Monday;
That the husband forthwith sign all necessary consents to have the children enrolled at the Region A Primary School commencing Term 3 2018.
That the husband forthwith provide to the wife a copy of his current roster and provide copies of each and every roster which is provided to him by his employer hereafter for so long as he remains employed by (employer omitted).
Property matters
That within 60 days the husband pay to the wife the sum of $343,222 (“the payment”).
Contemporaneously with the payment the wife transfer to the husband all of her right title and interest in the former matrimonial home.
In the event that the payment is not made, both parties forthwith do all acts and things to sell the former matrimonial home at Property A, Victoria be sold and the proceeds of sale be paid as follows:-
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage registered over the property
(c)Thirdly, to pay the amount of $6,820.00 being the cost of the updated Family Report of Ms B and her attendance at Court;
(d)Fourthly, to pay to the Husband $29,000 for payment of his Bank 1 credit card (used for his legal fees );
(e)To the wife the greater of $343,222 or an amount equivalent to 60% of the Nett proceeds of sale after deductions of the amounts referred to in paragraphs 10(a), (b), and (c) hereof;
(f)The balance to the husband.
That the base amount allocated to the Wife, Ms Bolt out of the interest held by the Husband, Mr Bolt in the Super Fund Superannuation Fund ("the fund") is $48,766.
That in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Husband's interest in the fund, the trustees shall pay to the Wife an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 and there be a corresponding reduction in the entitlement that the Husband would have had but for these orders.
That Order 12 herein has effect from the operative date.
That the operative date for these Orders is 4 business days from the date the Orders are served on the trustee of Super Fund Superannuation Fund.
That this Order binds the trustee of Super Fund Superannuation Fund.
That each of the parties otherwise retain all other items of property including motor vehicles in their respective ownership and/or possession as at the current date.
IT IS NOTED that publication of this judgment under the pseudonym Bolt & Bolt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1074 of 2016
| MS BOLT |
Applicant
And
| MR BOLT |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the mother and the respondent is the father of the children [X] born 2011 and [Y] born 2013.
Issues in dispute
The following issues were in dispute in the parenting proceedings:
i)Whether the mother should be permitted to relocate the children’s residence from Melbourne to Region A Tasmania;
ii)In the event relocation is permitted, with whom the children should live;
iii)In the event relocation is not permitted ,the time the children should spend with the father;
The following issues were in dispute in the property proceedings:
i)The percentage adjustment of the parties property;
ii)What weight should be accorded to each party for their respective contributions;
iii)The adjustment to the wife for s.75(2) factors.
Synopsis
In relation to parenting I have determined it is in the children’s best interests that:
i)The wife be permitted to relocate the children’s residence from Melbourne to Region A Tasmania as from the conclusion of term two 2018;
ii)Both parents have equal shared parental responsibility for the children;
iii)The children live with the wife;
iv)The children spend time with their father as follows:
a.During the school term time for two nights each week from the conclusion of school Monday until the commencement of school Wednesday, or such other configuration as may be agreed between the parties;
b.Christmas time, on an alternating basis as proposed by the parents;
c.During the school term and long summer holidays for half the holidays;
d.During the husband’s annual leave as agreed by the parties.
In relation to property, I have determined that:
i)The agreed non-superannuation asset pool should be divided between the parties, so that the wife receive 60% and the husband receive 40%.
ii)There be an equalisation of the parties combined superannuation entitlements, which will result in a payment from the wife’s fund to the husband’s fund.
The reasons for my determination follow.
Background
The wife was born on 1972 and is currently aged 45. The husband was born on 1971 and is currently aged 46.
The parties met in 2006 and commenced a relationship in Tasmania, in 2006.
In 2007, the husband moved to Melbourne and commenced work as a (occupation omitted) for (employer omitted). The wife remained in Tasmania.
In November 2007 the parties’ relationship ended. They reconciled in November 2008.
On 2010 the parties married.
In 2010, the wife purchased a Motor Vehicle 1 for $23,490.
In 2010 the parties purchased the former family home situated at Property A. The purchase price for the Property A property was $713,000.
The purchase price of the Property A property was funded by a contribution from each of the parties, together with a mortgage of approximately $500,000 from the Bank 1.
On 2011 [X] was born in Tasmania.
On 2011 the wife and [X] travelled from Tasmania to Melbourne and commenced living in the family home at Property A.
On 2013 [Y] was born in Melbourne.
On 24 March 2015 the wife asserts that the parties separated under the one roof.
On 2015 the wife vacated the Property A property and commenced living in rented accommodation with both children.
Procedural History
On 11 February 2016 the wife commenced proceedings in this court.
On 13 April 2016 the following orders were made by consent:
i)both parents have equal shared parental responsibility for the children;
ii)the children live with the wife;
iii)the children spend time with the husband each week from 9:30 AM Monday until 2:30 PM Wednesday and otherwise, as may be agreed in writing between the parties;
iv)A private family report to be prepared by Ms B.
On 16 June 2016 orders were made as follows:
i)listing the matter for trial;
ii)a conciliation conference;
iii)Procedural orders for filing documentation for trial.
On 15 August 2016 the wife filed an application in a case and supporting affidavit, seeking to vary the interim arrangements for the children spend time with the husband. The husband filed a response on 16 November 2016.
On 21 November 2016, orders were made dismissing the application and response.
On 20 March 2017 the matter was adjourned for final hearing on 5 February 2018.
On 24 November 2017. The matter was listed for call over and procedural orders were made for property mediation.
On the 24 January 2018 the matter was listed for call over compliance and the trial date of 5 February 2018 remained.
The proposals of the parties
The wife’s proposal
The orders which the mother sought from the court are set out in the final written submissions prepared by her Counsel.
They are in summary as follows:
i)both parties have equal shared parental responsibility for the children;
ii)the wife be permitted to relocate the children’s residence to Tasmania;
iii)the husband spend time with the children as follows:
a.From the conclusion of school Monday until the commencement of school Wednesday in each alternate week;
b.from the conclusion of school until the commencement of school on Tuesday in the other week;
iv)the husband forthwith sign all necessary consents to enrol the children at Region A primary school;
v)The husband forthwith provide the wife a copy of his current work roster and subsequent rosters, so long as he remains employed by (employer omitted).
Documents relied upon by the wife:
The wife relied upon the following documents:
i)Initiating Application filed 11 February 2016;
ii)affidavits of the wife filed 20 February 2017 and 5 February 2018;
iii)affidavit of Ms S (maternal grandmother) filed 20 February 2017;
iv)affidavit of Ms M filed 20 February 2017;
v)Affidavits of Ms B filed 2 August 2016 and 21 February 2018.
The husband’s proposal
The husband’s proposal changed throughout the proceedings.
His final proposal was in accordance with a minute of proposed orders prepared by his counsel, and amended orally by his counsel, during the trial.
They are in summary as follows:
i)both parties have equal shared parental responsibility for the children;
ii)in the event the wife is not permitted to relocate the children to Tasmania, the children spend time / live with the husband as follows:
a.during school terms, from after school/kinder Monday until commencement of school/kinder on Thursday each week;
b.one half of all school holidays;
c.for the father’s annual leave on a week about basis;
iii)in the event the wife is permitted to relocate the children to Tasmania the children spend time / live with the husband as follows:
a.during school terms from after school/kinder Monday until the commencement of school/kinder Friday in each week;
b.School holiday arrangements as set out in the preceding paragraph.
Documents relied upon by the husband:
The Husband relied upon the following documents:
i)Response filed 6 April 2016
ii)affidavits of husband filed 6 April 2016; 16 November 2016; 6 March 2017; 22 January 2018; and 20 February 2018;
iii)affidavit of Ms C (paternal grandfather) filed 16 November 2016
iv)affidavit of Ms D (paternal grandmother) filed 16 November 2016
Evidence
The standard of proof in this case is the balance of probabilities (s.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 husband and the wife relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship pertaining to parenting matters. I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244 Strickland J addressed the obligations of a trial judge in that regard as follows: [28]-[29]:
Plainly that is the case, but 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.
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.”.
Counsel for both parties prepared lists of objections to the evidence of the other party, the majority of which were resolved by consent. It was agreed that those objections not agreed would be argued and determined prior to the hearing. This is what occurred.
Both the wife and the husband gave evidence and were cross-examined. I therefore had the immeasurable benefit of observing both parties in the witness box for a considerable period of time and observing their demeanour in court throughout the proceedings.
The wife’s evidence during cross-examination impressed me as truthful. Her demeanour was respectful and appropriate, and she answered questions directly. She did not attempt to embellish her answers to assist her case. She was not overtly critical of the husband and seemed genuine in her desire to be near her immediate family. She gave credible explanations when cross-examined about the husband’s allegations of her alleged physical abuse of the children. I accept her as a witness of truth.
The maternal grandmother gave evidence and was cross-examined. As expected, her evidence was supportive of her daughter. She also directly answered questions put to her and was not evasive. I accept her evidence.
Ms B psychologist prepared two family reports dated 7 July 2016 and 19 February 2018. Ms B gave evidence and was cross-examined. The husband was critical of Ms B during the trial and in his Counsel’s final submissions. During cross-examination by the husband’s counsel it was suggested to her that she used language that was adverse to the husband and indicative of bias, such as “claimed”, “conceded”, “not persuaded” and “pleaded”, whereas when referring to the wife and reporting her responses, her language was more neutral and favourable. Ms B gave a sensible and rational explanation for use of the terminology in her report. Ms B conceded that she had challenged the husband and that it was the role of a report writer to challenge the narrative of parents. She gave evidence in a considered and professional manner.
In his final written submissions, counsel for the husband, at paragraph 7, set out a series of criticisms levelled at Ms B, including the following:
1. the nature of the questioning of the husband appeared to be cross-examination, whereas the propositions of the wife were not challenged;
2. the report was inherently illogical;
3. she failed to give weight to the children’s gains in education and friendships in the past two years;
4. failed to take into account the children being repeatedly late to school;
5. failed to take into account the impact on the children having the father quit his job;
6. the assumption that the children could spend time with the father in Region A Tasmania while he continued to work for (employer omitted) is unsupported by the evidence;
7. Failed to consider the happiness the children displayed in Melbourne.
In summary, he accused Ms B of bias, lacking in insight, being combative and drawing invalid conclusions from her interviews with the children and her observations of the children with their parents. Needless to say, he did not accept either of the two family reports.
I do not accept the husband’s allegation that Ms B was biased against him and his proposals, nor the criticisms referred to in the previous paragraphs. I accept the submissions of counsel for the mother that the Ms B gave her evidence in a thoughtful, proper and insightful manner. I accept her evidence which is referred to in these reasons.
The husband’s evidence was overly measured and at times intense. He was pedantic and condescending in his attitude towards the mother. I gained the impression that he considered the mother to be a deficient parent who needed close and regular monitoring by him. He was overtly critical of and had considerable animosity towards the mother. He agreed with the proposition put to him by counsel for the wife, that she was a lazy housewife sitting at home doing nothing. He also confirmed that he genuinely and unequivocally held the view expressed in paragraph 50 of his affidavit sworn 5 April 2016, that in addition to him being the chief breadwinner, he was the primary care giver and home keeper. He also described the wife as having narcissistic personality traits, which was a common theme of the evidence of the father’s family members.
He did not directly answer questions put to him and had a very rigid and myopic view of events. For example, his view and explanation of the alleged restriction imposed by his employer, which prevented him providing a copy of his work roster to the wife. I do not accept his evidence in that regard.
Where the evidence of the husband differs from the evidence of the wife, I prefer the wife’s evidence.
The paternal grandfather gave evidence and was cross-examined. He was combative and clearly aggrieved by the relationship between the paternal family and the wife. His attitude towards the wife was aggressive and uncompromising. He was also of the opinion that the wife had wilfully struck and physically disciplined the children, and that she was an inadequate parent. He considered the wife had narcissistic personality traits and did not prioritise the children’s care over her own needs. He considered the husband to have far superior parenting skills than the mother.
The paternal grandmother gave evidence and was cross-examined. As expected, she was also keen to support her son. She was also combative and overtly critical of the wife. She was steadfast in her belief that the wife had assaulted the children and that the wife lacked parental capacity. She also described the wife as having narcissistic traits, which she described as mean, manipulating, angry, cocky, demanding and thinking that she was above the law.
The Applicable Law
The wife is seeking to relocate with the children from Melbourne to Region A Tasmania.
In his final written submissions, counsel for the wife identified the parties connection with Tasmania as follows:
i)both parties were born and raised in Tasmania;
ii)the parties lived in Tasmania, until the marriage and subsequently until 2011;
iii)the husband’s parents and sister reside in Region B Tasmania;
iv)the wife’s immediate family and extended family reside in Region A Tasmania;
v)[X] was born in Tasmania.
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth), to determine what orders are in the children’s best interests.
In Taylor v Barker [2007] FamCA 1246, their Honours Bryant CJ and Finn J at [53] 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 & Cohen (2005) FLC 93-224).
In Cowley v Mendoza [2010] FamCA 597, His Honour Murphy J stated at [30] as follows:
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.
Referring to relocation cases, His Honour Justice Kent in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph [101] stated:
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 interest” may well mean that one party's choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child's “best interest” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
The court must consider the matters in s.60CC (2) (the primary considerations) and s.60CC (3) (the additional considerations) of the Act. Each of those matters, where relevant, must be considered and assessed in the context of the respective proposals. The court must then determine which of the proposals is in the children’s best interests.
As the Full Court (May, O’Ryan & Strickland JJ) observed in Collu & Rinaldo [2010] FamCAFC 53 at paragraph [355]:
“[I]n determining best interests the obligation is to ‘consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out”
The court is not bound by the parties’ respective proposals. (AMS v AIF [1999] HCA 26 and U v U [2002] HCA 36).
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 firstly 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
At paragraph [104] in Heath v Hemming (No.2)(supra), after having reviewed the authorities in relation to the benefit of a child having a meaningful relationship with both of the parents, Justice Kent 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.
There was no dispute about the benefits for [X] and [Y] having 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 exposed to, abuse, neglect or family violence
The father alleges that the mother has physically harmed the children.
On 22 January 2018, the husband filed an affidavit. Paragraphs 38 to 45 of the affidavit refer to various incidents which the husband alleges resulted in the children sustaining physical injuries.
On 23 January 2018, the husband filed a Notice of Risk, which asserts, at paragraph 2 (a) that the children have been abused by a party to the proceedings.
His allegations of the wife abusing the children may be summarised as follows:
i)[X] disclosed to him that her mother had hit her with a lunchbox on the nose, when the mother was angry. These disclosures occurred in August 2017, when the husband was drying [X] after swimming.
ii)[X] disclosed to him on Christmas Day 2017 that her mother intentionally scratched her on the arm with her fingernail, when the mother was angry.
iii)On 1 January 2018 [Y] arrived at the husband’s home with a bruise on his arm, which the husband asserts was consistent with being very firmly held. He extrapolates that the bruise was similar to one he observed on 17 January 2017 and is consistent with his observations of the mother “often practically dragging them off down the street by the arms”.
The Notice of Risk filed by the husband, at paragraph 2 (b), also asserted that the children are at risk of being abused.
The allegations of the possible risk of abuse of the children by the wife may be summarised as follows:
i)on 28 September 2016, the mother allegedly left [Y] alone asleep in her car, whilst she took [X] out for an ice-cream;
ii)on 10 May 2017, the first [Y] disclosed to the father that his mother had left him in the car and he cried;
iii)on 18 December 2017, [X] advised the father that whilst writing Christmas cards, that “she felt sad because if she made a mistake “Mummy would get angry”;
iv)[X]’s anxiety is increasing.
The Notice of Risk, at paragraph 3, asserts that there has been family violence and/or the risk of family violence.
The allegations of family violence or risk of family violence may be summarised as follows:
i)[X] disclosed to him that her mother had hit her with a lunchbox on the nose, when the mother was angry. These disclosures occurred in August 2017, when the husband was drying [X] after swimming;
ii)[X] disclosed to him on Christmas Day 2017 that her mother intentionally scratched her on the arm with her fingernail, when the mother was angry;
iii)On 1 January 2018 [Y] arrived at the husband’s home with a bruise on his arm, which the husband asserts was consistent with being very firmly held.
Paragraphs 2(d) and 3(a) of the Notice of Risk state that the allegations have not been reported to an external authority.
In the relevant paragraphs of his affidavit sworn 22 January 2018, the husband refers to the wife’s explanations for the asserted “injury”.
The wife’s response was as follows:
i)[X] fell onto her nose at school and informed her mother that her nose was sore;
ii)[Y]’s bruise probably arose from play at the Park with other kids, or play on the inflatable slide.
The wife was cross-examined about the alleged injuries and her evidence was consistent with her explanations previously provided to the husband. It may be summarised as follows:
i)She had forwarded an email to the husband, advising him that [X] had fallen over at school and hurt her nose;
ii)She had observed a scratch on [X] and had applied betadine and a Band-Aid. She attributed the scratch to child’s play;
iii)She agreed that sometimes she was frustrated by the children and that was a challenge for all parents;
iv)She did not intend to grab and drag the children every now and then;
v)She did not specifically recall a bruise on [Y]’s arm on 1 January 2018 as [Y] often had bruises;
vi)She agreed that [Y] sometimes became frustrated, angry and clenched his fist at his mother. In response, she sometimes, became angry and that she was a parent who sometimes was frustrated by her children’s behaviour;
vii)She could not recall leaving [Y] in the car alone prior to 10 May 2017. She acknowledged the husband had raised the issue at a changeover, however, she could only specifically recall leaving [Y] inside the car in the driveway, whilst she walked into the house. [Y] was in a car seat in accordance with relevant regulations;
viii)She was unable to recall the incident referred to in the affidavit of the paternal grandfather.
The husband’s minute of proposed parenting orders, in the event the mother is not permitted to relocate to Tasmania, provides for the children to be in the primary care of their mother during school terms and spend six nights per fortnight with their father. In the event relocation is permitted, the minute proposes that the children live with their mother three nights per week, and with their father four nights per week. Neither proposal includes supervision of the mother’s time, nor an injunction restraining the mother from physically disciplining or chastising the children.
As is apparent from the Notice of Risk, the husband did not report the alleged risk to any independent authority.
The husband’s proposal for the children’s future living arrangements is entirely inconsistent with his assertions that the mother poses a risk to the children.
I accept the evidence of the mother about the allegations, and where her evidence differs from that of the father and his family members, I prefer the mother’s evidence.
I find that the children have not been exposed to physical or psychological harm, from being subjected to, exposed to, abuse, neglect or family violence, whilst in the care of their mother.
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 (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
[X] is currently seven years old and in grade 1 at School C primary school. [Y] is currently five years old and attends kindergarten.
The first family report assessment was conducted by Ms B on 22 June 2016. The family report is dated 7 July 2016. In that report Ms B did not directly identify any views of the children. At the date of the assessment [X] was five years and five months old and [Y] was three years and three months old.
Neither of the children reacted easily with Ms B. In her opinion [X] had difficulty interacting and was timid and reserved. She was reluctant to answer questions and avoided responding to any questioning. I accept that due to the problems with [X] engaging it would not be possible to elicit her views.
[Y] was not questioned directly about his views, which I accept was age and developmentally appropriate.
The second report of Ms B dated 19 February 2018, refers to the developmental functioning of both children.
At paragraph 33 of the second report, Ms B states that [X]’s presentation was significantly different from the first report. At the time of the interviews of the first report, Ms B had concerns about [X]’s developmental functioning. These concerns were subsequently addressed by the parents and [X] has had the benefit of psychometric testing and psychological assistance.
Ms B’s conclusions is:
“[X] is now performing relatively well and at around the “low average” range of skills the children of her age.”
[X] was interviewed independently and according to Ms B:
“she showed little hesitation in responding to questions and maintained reasonably good eye contact. She was generally spontaneous in her responses, although she became a little hesitant when answering questions about her parents and ensured that she maintained a balance in her responses. [X] still retained a degree of anxiety: at one stage she wanted to return to her mother and at another stage she wanted to play with and draw with her paternal aunt. This anxiety is more heightened than most children her age. [X] demonstrated some creativity and was quite natural in her demeanour when in the company of her mother and brother.”
The report does not state that Ms B directly asked [X], her views. However, it is apparent that the discussion between [X] and Ms B was focused on what made [X] happy and unhappy. According to the report, [X] was able to identify what made her happy, but was not clear about what made her unhappy. She reported that she missed her mother a great deal because she was with her for five days, but was also careful to say that she missed her father. [X]’s views were not directly ascertainable by Ms B, she was distracted and Ms B found it difficult to redirect her to a specific issue. I accept Ms B’s evidence in that regard, and that she acted appropriately.
[Y] was not interviewed individually, and according to Ms B he remained heavily dependent on adult company. His behaviour differed remarkably with each of his parents. I accept that, given his age and development it was not appropriate to directly question [Y] about his views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Relationship with each of the children’s parents
The wife has a close and loving relationship with both children. She asserts that she has been the primary care giver for the children. She has not returned to the workforce since the birth of [X].
The husband also has a close and loving relationship with both children, and he asserts that he has been the primary care giver for the children, despite his employment as a (occupation omitted). At paragraph 44 of the first family report, Ms B identifies that the husband considered that the children had a better relationship with him than their mother and were more attached to him. He considered the children’s difficulties transitioning between the parents resulted from their reluctance to leave him to return to their mother.
Despite the children enjoying a loving relationship with each of their parents, the nature of that relationship differs. The family reports focus on the nature of the children’s relationship with each of their parents.
At paragraphs 44 to 50 of the first family report, Ms B describes the children’s reaction to each of their parents. The children arrived with their father and paternal grandparents, having spent two days and nights in that household, prior to the report assessments. She gives a detailed description of what occurred in the waiting room and the children’s reaction to each parent.
At paragraph 51 of the first report she concludes, in the context of the children being asked to leave their mother and leave the observation room with their father:
“the children’s behaviour with their mother was substantially different to their behaviour with the father. They were more relaxed and more happily and spontaneously interacted with her and me. They initiated and displayed affectionate behaviour with their mother and long loving hugs and kisses. In contrast, there was no physical touching or displays of affection with their father in the observation sessions with him. It can be concluded with little doubt, that both children have a primary attachment with their mother. The security of that attachment may have been compromised for [Y] as previously described.”
In the second report both parents acknowledge that [X]’s presentation had significantly improved since the first family report.
Ms B describes her observations and interviews of the family for the second time, and concludes at paragraph 41:
“The children are without doubt primarily attached to their mother. Their behaviour in her care is more settled, they interact well and consistent with the age and they are appropriately affectionate and relate much better to others went with her. Both children continue to suffer some anxieties, although they have both improved.”
Having considered the evidence of both parties, including the observation sessions and comments of Ms B, I accept that the children are primarily attached to their mother.
As referred to in the final submissions of the wife’s counsel, the husband’s assertion that he was the primary care giver of the children throughout cohabitation is inconsistent with:
1. his consent to the orders of April 2016 providing that the wife was the primary carer of the children;
2. His lack of action to assume, or resume, the role of homemaker and primary carer of the children, in circumstances when he believed the children were being physically assaulted by the wife.
Relationship with grandparents
The maternal grandmother and the paternal grandparents are all devoted and clearly love the children.
There was no dispute from either parent as to the nature and quality of the relationship between the children and their respective grandparents. I am however concerned about the criticism of the mother by the paternal grandparents, and the effect it may have on the children in the future. I refer to this in these reasons.
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
Both parties seek orders that they have equal shared responsibility for the children.
Apart from allegations of significant difficulties in parental communication, there was no significant allegation that either of the parties had unilaterally made decisions pertaining to major long-term issues for the children.
Opportunity to spend time with and communicate with the children
The wife seeks that the children remain primarily living with her and spend three nights a fortnight with their father.
During the school term, the husband seeks that the children live with their mother, and spend six nights a fortnight with him, if the children remain in Melbourne. In the event the wife’s application to relocate the children’s residence to Tasmania is successful, he seeks that they spend eight nights a fortnight with him, and six nights a fortnight with their mother.
The husband seeks additional holiday time with the children on a week about basis, for the mid-term school holiday periods, the long Christmas holidays and for the duration of his annual leave. He also seeks defined time for the Christmas period.
Both parents seek to maximise the time the children spend in their respective households.
There have been disputes in the past about the children spending additional time with the husband during his annual leave. Counsel for the wife cross-examined the husband, about why he had given the wife three weeks’ notice of his annual leave, when he had known about the timing of his leave seven months earlier. He did not provide a satisfactory explanation.
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
This was not an issue in the proceeding. The wife supports the children from her government benefits and child support. The husband pays child support in accordance with an administrative assessment.
The financial statement of the wife was filed on 11 February 2016 and the financial statement of the husband was filed on 6 April 2016. Both statements refer to child support of $385 per week paid by the husband to the wife.
There was no allegation that either parent had failed to fulfil his/her obligations to maintain the children.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The wife’s case throughout the trial was that she sought to relocate the children’s primary residence to Region A Tasmania and that the children should spend three nights a fortnight with their father.
The husband’s case changed throughout the trial and his final position was not apparent until the recommencement of the trial on 21 February 2018. His various positions are referred to in paragraph 2 of the written submissions on behalf of the wife under the heading “Changes to the husband’s case.”
The husband initially opposed the relocation of the children to Tasmania. On 23 January 2018, his solicitors forwarded a letter to the wife’s solicitors consenting to the relocation to Tasmania, upon certain conditions being met.
When the matter was before the court on 24 January 2018 for a compliance hearing, the husband’s solicitor advised in open court that the husband agreed to the children relocating to Tasmania.
On the first day of trial, 5 February 2018, the husband again opposed the relocation to Tasmania. That change of position was made without prior notice to the wife or her practitioners.
The husband’s final proposal for the children was clarified when his counsel submitted a minute of proposed order. The minute provides for the children to spend time with him for three nights each week, in the event the children are to remain in Victoria, and for the children to spend four nights each week with him, in the event the children are permitted to relocate to Tasmania.
The current parenting orders made by consent on 13 April 2016 provide for the children live to with the wife and spend time with the husband from 9:30 AM Monday until 2:30 PM Wednesday each week, and otherwise by agreement.
The wife seeks to reduce the children’s time, so that the children spend time with their father for two nights in one week of a two week cycle, and one night, in the second week of a two week cycle. Her proposal reduces the children’s time with their father by one night in each fortnight.
The husband seeks to increase the children’s time from the existing arrangements, so that the children spend three nights each week in his care, if the children remain in Melbourne and four nights each week, in the event the children relocate to Tasmania.
The wife’s proposal is in accordance with the recommendations of Ms B in her second family report. In summary, Ms B is of the view that [X] is now able to cope with spending two consecutive nights with her father and in the near future, could possibly cope with three nights per fortnight, such as from Friday to Monday. If the parties are living sufficiently close, then one other night in the alternate week would be appropriate.
However, [Y]’s capacity to cope with time away from his mother differs from [X]’s capacity to do so. She does not recommend three consecutive nights for [Y] and opines that the care arrangements to date have not been conducive to [Y] becoming more settled. At paragraph 45 of the second family report. She states:
“His insecurity has not abated to an appreciable degree, given the length of time. The care arrangements have been in place, and he is not coping with two consecutive nights weekly. As the child’s insecurity has been long-standing, it will take a long period of time before this child can be settled and any separation anxieties diminished. The ideal arrangement for him would be one overnight per week, and that all transitions occur from the kindergarten or a neutral other venue where the parents are not in contact.”
At paragraph 46 of the second family report Ms B states:
“While this may be the ideal, I appreciate that it is difficult to accommodate both children’s needs, and an alternative compromise solution is required. [Y] is highly dependent on [X], who has been his most consistent companion. The children should not be separated. I would recommend the children spend time with their father two consecutive nights in alternate weeks and one overnight in the other week. If [Y] stabilises, then the period of time, should increase to 3 consecutive nights in approximately 9 to 12 months, and one overnight in the other alternate week.”
The wife’s counsel submitted that the children require protection from psychological harm which is likely to arise from continued exposure to the husband and his family. This is referred to elsewhere in these reasons.
According to Ms B, the reduction in the current arrangements should alleviate [Y]’s insecurities and be conducive for him to become more settled. She does not refer to any detrimental effect of the relationship between the children and their father, in the event of a reduction of time. Indeed, the interim reduction in the children’s time with their father, would lead to an increase in time to the number of nights currently spent with their father, albeit in a different configuration.
The husband proposal for the children to spend increased time with him, was predicated on the following:
i)he considers himself to have been the primary carer of the children;
ii)his parental capacity is far superior to the wife’s;
iii)he is able to ensure routine and punctual school attendance;
iv)the children are settled at school with a circle of school friends;
v)They are flourishing in the community around Property A.
The husband does not consider, in any manner whatsoever that there may be a detrimental effect on the children being separated for longer periods from their mother. His proposals are dismissive of the children’s relationship with their mother. There is no objective evidence to support a reduction in time between the children and their mother, and conversely, there is objective evidence as to the unsettling and likely detrimental effect of the husband’s proposal.
After considering the relevant evidence, I find that a temporary reduction of the children’s time to accord with Ms B’s recommendations would not substantially impact upon the children’s relationship with their father, and indeed would be beneficial if it resulted in [Y] becoming more settled and thereby enabling him to progress to 3 consecutive nights with his father. However, this potential benefit must be balanced with the reasonable practicality of the children spending time with the father, if relocation to Tasmania is permitted.
I find that the husband’s proposal to reduce the children’s time with their mother lacks insight and does not have regard to the primary attachment between the children and their mother. A reduction in the time the children spend with their mother, is likely to lead to more instability and unsettled behaviour for both children, in particular for [Y].
Ms B does not refer to any detrimental effect between the children and their grandparents if time is reduced in accordance with her recommendations.
The paternal grandfather during cross-examination conceded that he and the paternal grandmother travel to Queensland from May to September each year, and have done so for the past 16 years. The paternal grandparents are not available to care for the children whilst they are living in Queensland.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Both counsel devoted significant time to this issue.
Obviously, the practical difficulty and expense of the children spending time with their father would not be particularly relevant, if the children remained in Melbourne.
The husband’s case was that it would be exceptionally difficult for the husband to spend time with the children, if the children relocated to Region A Tasmania and he remained in Melbourne.
The husband’s counsel submitted that the wife’s contention that the husband could live in Region A Tasmania and work from Melbourne, is impractical and absurd. He also submitted that there was no evidence that the husband could work for (employer omitted) from Region A Tasmania or that he could obtain similar remuneration from a position in Region A Tasmania.
The husband’s offer to relocate to Region A Tasmania and for the children to live with him four nights a week, in the words of his counsel “shows his determination to remain an active party of his children’s lives, in the face of a selfish act by the wife”.
The wife’s counsel submitted that the husband’s position about relocating to Region A Tasmania, in the event an order is not made in accordance with his proposal to have the children from Monday to Friday, is not known.
I agree with that submission. There was no evidence as to what the husband’s position would be about relocating to Region A Tasmania, if orders were made for him to spend time with the children less than his proposed four nights a week.
Counsel for the wife cross-examined the husband about the practicalities of the husband continuing in his current employment, if the children relocated to Region A Tasmania. Whilst I accept that such a commute may be challenging, the husband’s parents live in Region B and would be able to provide him with accommodation and assistance to enable him to spend time with the children.
The evidence about the husband’s future employment intentions is less than satisfactory. I am unable to accept the proposition that the husband will resign his employment and move to Region A Tasmania, if I make orders that the children are permitted to relocate to Region A Tasmania spend less time with the husband each week, than his proposal.
The difficulty and uncertainty in this regard arises from the husband’s failure to produce any evidence from his employer about the flexibility or otherwise of his work commitments, and from his failure to produce his work roster to the court.
The letter of support from his employer, which is referred to at paragraph 20 of the second family report, does not specifically state that the husband’s roster guarantees him 3 consecutive days off. The husband advised Ms B during the second report interviews that:
“he was of the belief that the new family friendly policies permit him to have three consecutive days off per week. He claimed that he has in the past had three consecutive days off per week, describing his roster as having done so “very frequently” and “approximately 85% of the time.”
The husband did not provide any cogent or independent evidence that he would have three days off per week, to enable him to care for the children in Melbourne, if the children were not permitted to relocate. Neither did he have any independent or objective evidence about the prospects of continuing to work for (employer omitted) and being able to commute to Region A Tasmania.
The husband claimed he had not provided the wife with a copy of his work roster because he was prohibited from doing so on security grounds. Counsel for the wife called for the manual which the husband asserted prevented him from providing a copy of the roster to the wife. The extract of the (employer omitted) Australia manual was tendered by counsel for the wife and is Exhibit W2. The husband was unable to identify any relevant section of the manual which prohibited provision of the roster to the wife.
The evidence of the paternal grandmother was that the husband’s work roster was ready available to her and the paternal grandfather.
The husband had ample opportunity to provide the Court with:
1. A copy of his work roster to substantiate his claims of availability to care for the children.
2. Evidence from his employer about his days off and the flexible nature of his employment, which supported his assertions in that regard.
There was no reason offered why he did not do so. Any suggestion that the wife, having subpoenaed the records of the (employer omitted) was obliged to rectify this serious and significant defect in the husband’s case is without foundation. It is the responsibility of both parties to adduce evidence to prove their respective assertions.
The unfortunate result of the husband’s failure to produce evidence from his employer is that I am left with a significant void of evidence about the husband’s capacity to care for and spend time with the children. This is a most unsatisfactory deficiency in the husband’s evidence.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The wife was not particularly critical of the husband’s parental capacity and his relationship with the children. She obviously has difficulties communicating with the husband and finds his manner and demeanour overbearing and critical of her.
Ms B’s assessment of the mother’s parenting capacity is unequivocally positive. She described the mother as “gentle, positive, and in all respects a good mother”. She noted that the wife “is highly competent and involved with the children” and has “good boundaries”. As referred to in the final submissions of the wife’s counsel, Ms B’s evidence was “In summary, the mother is a far better parent”. “She understands the children’s needs”.
I accept the comments of Ms B in this regard, and find that the wife has the capacity to provide for the needs of the children, including emotional and intellectual needs.
Since the commencement of the proceedings the husband has been unwavering in his criticism of the mother. The paternal grandparents were also highly critical of the mother and her parenting capabilities. In his final written submissions, counsel for the wife commented that there was not one positive word that the husband uttered or wrote about the wife. The same comment is levelled at the paternal grandparents.
Ms B stated that the husband “loves his children, and provides good care, keeps them engaged and has the support of his family” she observed that the husband “operates from his own perspective and his own needs” and “he can’t separate his needs from the children’s needs”.
After having observed the husband give evidence, and his demeanour in court throughout the proceedings, I agree with Ms B’s comments. Whilst I have no doubt the husband considers himself an excellent parent, he is unable to even contemplate that there is an alternative to his view of the children and their relationship with their parents.
Counsel for the wife cross-examined the husband about his attitude to the wife and her parental capacity.
He was asked whether his negative view of the wife, as expressed at paragraph 50 of his affidavit sworn 5 April 2016 reflected his genuine and heartfelt belief. He replied affirmatively.
Whilst being cross-examined, he was unable to accept that the wife was a good mother and he agreed, without equivocation that she was not a good mother. The statements are indicative of his attitude towards the wife and her parental capacity.
His specific allegations about the wife were as follows:
i)She was and is not a good mother;
ii)Was not the primary carer during the relationship, despite her being at home full-time;
iii)Had a temper and has deliberately assaulted and neglected the children;
iv)Has a mental health issues which impact on her mental stability;
v)Had deep seated problems;
vi)Has narcissistic traits.
The evidence of both paternal grandparents as to the wife’s parental capacity aligned with that of the husband.
The paternal grandfather was critical and intolerant of the wife as a parent. The paternal grandmother was even worse. Both considered that the wife demonstrated “narcissistic traits” and, according to the paternal grandmother, these included:
i)She was manipulating;
ii)She was angry;
iii)She thought she was above the law;
iv)She was demanding;
v)She was cocky.
The husband and his parents held a genuine and deep-seated belief that the children were at risk in the wife’s care. They also accepted that there was no communication between the parents.
Counsel for the wife in his final written submissions invited me to find that the atmosphere in the father’s household would be toxic and that the children could not be shielded from the unbridled criticism of the wife by the father and paternal grandparents.
In his final written submissions, at paragraph 4 (ix), he commented that I should accept the views of the paternal grandmother that there was never any discussion in the presence of the children as to the views of the mother expressed by the father and the paternal grandparents. Indeed, he submitted, there was no supporting evidence the children had been impacted by the negativity.
I accept that the submissions of counsel for the wife and reject the submissions of counsel for the husband. The vehement and bitter manner in which the father and the paternal grandparents referred to the mother in the witness box, makes it inherently implausible that they would be able to facilitate and encourage a positive relationship and attitude between the children and their mother. The paternal grandmother was unable to conceal her scorn and disdain directed at the wife, when recounting her belief that the wife had to bribe the children to go with her at the family report assessment interviews.
I do not accept the submission that the children have not been impacted by the negativity of the father and the paternal grandparents.
The two family reports make it abundantly clear that the children have been exposed to high levels of parental conflict with changeovers having been particularly problematic. Both children as a result have suffered anxiety and unsettled behaviour by the open hostility and entrenched conflict.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
This is not a relevant factor in relation to the children. Any such relevant factors in relation to the parents have been addressed in these reasons.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The husband has made allegations about the wife’s lack of parenting capacity. These allegations are referred to at paragraph 164 hereof.
The husband contends that the children are at risk in the wife’s care, and that the factors referred to in the preceding paragraph are relevant to the risk the wife poses to the children.
The wife does not make allegations of this nature against the husband. She does, however assert that the husband is unable to support and encourage a relationship between the children and their mother.
I find that apart from the highly conflictual parental relationship, both parents are essentially responsible and competent parents to the children.
As referred to previously, I have considerable reservations about the capacity of the husband to facilitate and promote the children’s relationship with their mother.
Section the 60CC(3)(j) any family violence involving the child or a member of the child’s family
The husband alleges that the wife has physically struck the children and subjected them to family violence and abuse.
Particulars of his allegations are set out in his Notice of Risk filed 23 January 2018 and are referred to in my discussion of the primary considerations.
As previously concluded, I do not accept that the children have been subjected to, nor are at risk in the mother’s care.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This is not a relevant consideration.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the vast majority of parenting cases, it is preferable that orders are made to minimise future proceedings.
Having considered the evidence, I have determined that the orders least likely to result in further litigation would be to permit the wife to relocate the children to Region A Tasmania.
However, I still have concerns that the husband may, in the future seek to spend time with the children on weekends, if his work commitments enable him to do so. I urge the parties to attend mediation if a change in configuration of the children’s time with the father is necessary.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
All relevant circumstances have been addressed.
Equal shared parental responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
Both parents seek an order that the parties retain equal shared parental responsibility for the children
That statutory presumption of equal shared parental responsibility should apply in this case. There is no evidence to rebut the presumption and indeed neither party sought to do so. I intend to make orders so that the parents retain equal shared parental responsibility for their children.
Statutory Pathway
Having now determined that it is in the best interests of the children that there be an order for equal shared parental responsibility, in the absence of consent of the parents, I am now required to address the statutory pathway set out in s.65DAA(1)-(5).
Equal time
Neither parent seeks orders that the children spend equal time with the other parent. For the reasons referred to in this judgement, I agree that equal time would not be in the children’s best interests.
In terms of whether equal time would be reasonably practical. I refer to the considerations of reasonable practicality for substantial and significant time.
Substantial and significant time
I will address each of the respective proposals of the parties.
In the event relocation to Region A Tasmania is permitted
Wife’s proposal
The wife seeks orders permitting her to relocate the children to Region A Tasmania. If she is permitted to do so, she proposes that the children spend time with the father for three nights a fortnight.
The configuration of the proposed time is for two week nights, Monday to Wednesday, in the first week of a two week cycle, and for one night, Monday to Tuesday, in the second week of a two week cycle.
In her proposed minute of parenting orders, set out in the written submissions of her counsel, the wife did not include proposals for holiday time, or special occasions. However, when each party was invited to submit detailed minutes of proposed orders, the wife proposed half holidays with the husband.
Ms B, in her second report refers to appropriate holiday arrangements for the children.
Husband’s proposal
The husband seeks orders that in the event the children are relocated to Region A Tasmania, the children live with him four nights a week, from Monday to Friday, and live with the wife for three nights a week, from conclusion of school Friday until commencement of school Monday morning.
He also seeks half of all school holidays on a week about basis, week about during his annual leave and some special occasions.
The basis of the husband’s proposal, which is a reversal of the current primary care arrangements is as follows:
i)He was the children’s primary care-giver throughout the period of the relationship, which was corroborated by his parents;
ii)The mother has significant deficiencies in her parental capacity including an inability to ensure the children attend school punctually;
iii)He presented as a strong and compassionate father, who was clearly child focused;
iv)His focus on the children’s routine as giving them good rest and timely attendance at school;
v)His proposals to have the children during the week and enabled the children to get school on time and, and they could spend time with their mother on weekends;
vi)His willingness to have the children all the time if necessary;
vii)His attendance and input at [Y]’s kindergarten.
In the event relocation to Region A Tasmania is not permitted
Wife’s proposal
Paragraph 1 (iii) of the proposed minute set out in the wife’s written submissions refers to her proposals for the husband to spend time with the children. It is not expressed to be conditional upon the wife being permitted to relocate the residence of the children to Region A Tasmania, and accordingly I accept that proposal is applicable in the event the wife is required to remain in Melbourne.
Husband’s proposal
The husband seeks orders that in the event the children remain in Melbourne, they spend time with him for three nights each week, from Monday after school, until the commencement of school Thursday morning.
He submits that it would be more practical for changeover to occur at school on Thursday morning, rather than Wednesday afternoon, as is presently the case. He contends that an additional night “has no practical effect for time spent with the husband”.
I do not accept the submissions of the husband that in the event of relocation, it would be in the children’s best interests to change their primary residence. He does not seek to change the primary residence of the children in the event they remain in Melbourne. There is no cogent explanation why the children’s primary care arrangements should differ if the children were to relocate to Region A Tasmania. The only reference to any such reason is at paragraph 4 (viii) of the written submissions of the husband’s counsel, which is as follows:
“His proposal to have the children during the week in Tasmania, so that they get to school on time and the wife could have them on the weekends”.
The proposal to reverse the primary care arrangements of the children, in the event of relocation demonstrates a profound lack of insight. There is no consideration of the effect on the children of reducing their time with the mother, particularly in circumstances where both parents acknowledge that the children have been unsettled, anxious, had separation difficulties and have experienced extensive parental conflict.
The submission that an additional night with the husband, in the event the children remain in Melbourne, has no consequence on the children, ignores the evidence of Ms B. In particular, her comments and observations about [Y] and his continuing unsettled and problematic behaviour, are in direct contrast to the husband’s submissions.
Ms B suggests a reduction in consecutive nights between [Y] and his father, in order to reduce his anxiety, not an increase in consecutive nights at this stage.
After considering the relevant evidence, and in particular my findings as to the primary attachment of the children, and the observations of Ms B, I am of the view that it is in the children’s best interests for them to live with their mother and spend substantial and significant time with their father.
Having made that determination, I am now required to consider whether or not the children spending substantial and significant time with their father is reasonably practicable.
Section 65DAA(5) sets out the matters which the court must have regard to when considering whether an order for substantial and significant time is reasonably practicable. I will address each of the considerations set out in s.65DAA(5).
Section 65DAA(5)(a) how far apart the parents live from each other
If the wife is not permitted to relocate the children to Region A Tasmania, there is uncertainty about where she and the children would live in Melbourne.
The husband currently lives in the former family home in Property A and the wife currently lives in rental accommodation in Suburb X. The proximity of the two suburbs does not present any practical problems.
THE ASSETS AND LIABILITIES OF THE PARTIES
The husband’s Outline of Case document listed the assets and liabilities which included personal liabilities of the husband.
The wife’s final written submissions annexed a Statement of Assets and Liabilities. In his final written submissions, the husband agreed with the asset pool as set out in the wife’s final written submissions.
In his final written submissions, counsel for the wife stated that the wife’s savings which she had retained at separation were applied to the payment of legal fees. To achieve equity between the parties, the wife accepts that the husband’s credit card debt of $29,000 should be treated as a liability to be deducted from the nett asset pool.
The agreed asset pool for division between the parties is as follows:
| No. | Asset | Valuation | PARTY |
| 1. | Property A | $1,050,000 | Joint |
| 2. | Motor Vehicle 1 | $8,000 | Wife |
| 3. | Motor Vehicle 2 | $2,000 | Husband |
| Sub – total | $1,060,000 |
| Liabilities | |||
| 4. | Mortgage to Bank 1 | $438,810 | Joint |
| 5. | Ms B updated report & Court attendance | $6,820 | Joint |
| 6. | Husband’s Bank 1 credit card | $29,000 | Husband |
| Sub – total liabilities | $474,630 | ||
| Nett total non-superannuation assets | $585,370 |
| Superannuation | |||
| 7. | Super plan | $110,931 | Wife |
| 8. | Super Fund | $208,464 | Husband |
| Sub - total | $319,395 | ||
| Nett Total Assets (Incl. Superannuation) | $904,765 |
CONTRIBUTIONS
Financial contributions section 79(4)(a)
Initial contributions
The respective assets of each of the parties at the commencement of cohabitation are not particularly controversial. After cross-examination the husband accepted that the wife was able to prove her contributions at the commencement of the marriage.
At the commencement of cohabitation the wife had the following assets:[1]
i)$109, 917 from the sale of a property which she owned in Tasmania;
ii)a motor vehicle which was traded in for $3,000 on 2010;
iii)superannuation entitlements with Super Fund of $110,931.
[1] Paragraph 45 of the wife's affidavit sworn 18 January 2018.
At the commencement of cohabitation the husband had the following assets:
i)$183,000 from the sale of a property which he owned in Tasmania
ii)superannuation entitlements with Super Fund of $208,464
Contributions during the marriage
There was also little factual dispute about the direct financial contributions of each party.
On 2010, the wife traded in her motor vehicle for $3,000. A new car was purchased for $23,490, with the husband, contributing $20,490.
In 2010 the parties purchased the Property A property for the sum of $713,000. The purchase of the property was funded as follows:
i)on 2010 a deposit of $70,000 was paid by the wife from the funds in her bank account;
ii)On 2010, $6,727 from the wife’s bank account;
iii)on 2010 $175,648 from the husband’s bank account;
iv)the balance was obtained by a mortgage from Bank 1.
Throughout the marriage the husband was employed as a (occupation omitted) with (employer omitted). The wife was employed by the (employer omitted), until she took maternity leave, prior to [X]’s birth in 2011. Both parties contributed their income to the benefit of the family and payment of family expenses during the relationship they both maintained separate bank accounts.
Following [X]’s birth, the wife was not employed in the workforce and was a full-time homemaker and parent to the children. The husband continued his employment as a (occupation omitted).
The husband’s income was applied for the benefit of the family.
Contributions post-separation
Subsequent to separation, the husband remained living in the Property A property and the wife and children lived in rented accommodation. The wife vacated the family home on 23 July 2015.
Neither party filed an updated Financial Statement. In her Financial Statement filed 11 February 2016 the wife deposes to payment of rent of $390 per week, together with her personal living expenses and those of the children. In his Financial Statement filed 6 April 2016 the husband deposes to payment of the mortgage of the $622 per week and rates of $43 per week, together with his personal living expenses.
In her financial statement, at paragraph 13, the wife deposes to receipt of child support from the husband of $385 per week.
Section 79(4)(b) Non-Financial Contributions
Both the husband and the wife claimed they made non-financial contributions during the course of cohabitation. The extent and nature of those contributions was disputed.
The wife’s evidence is that she was the primary homemaker and parent. The husband asserts that when he was home, he was the primary carer of the children. Where the party’s evidence differs, I prefer the evidence of the wife.
Post separation, the wife has been primarily responsible for the care of the children. The husband has spent time with the children in accordance with the interim orders of April 2016.
The section 79(4)(d),(e),(f) and (g) and the 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 property orders which I propose to make will have limited effect upon the earning capacity of the husband. Insofar as the wife is concerned, she will have the full-time care of the children and will be required to make necessary arrangements for care of the children, when they are not at school, and whilst she is at work, if she is successful in obtaining employment.
Section 75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties
The wife is aged 45 and is a full-time parent and homemaker. She has not been in employment since prior to [X]’s birth. It is her intention to obtain employment in a (employment omitted) role. It is not known what her future income will be, however, it is likely to be significantly less than the husband’s current income as a (occupation omitted). She enjoys good health.
The husband is aged 46 and is employed as a (occupation omitted) with (employer omitted). According to his financial statement filed 6 April 2016, he earned an average weekly income of $2724.
The husband’s case is that if the wife is permitted to relocate the children to Region A Tasmania, he will leave his current employment and his future income earning prospects would be uncertain. The wife asserts that the husband could continue with his current employment, in the event she is permitted to relocate the children to Region A Tasmania. For the reasons previously referred to, I do not accept the husband’s claim that he will resign from his current employment in the event the wife is permitted to relocate the children to Region A Tasmania. The husband enjoys good health.
(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; and
The property and financial resources of the parties are referred to in these reasons. There was no dispute that the husband has the physical and mental capacity to continue with his current employment. The wife intends to obtain employment in the near future. There is also no dispute that she has the physical and mental capacity to obtain employment.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
The orders which I intend to make will provide that the children will reside with the wife and will spend time with the husband 4 nights each fortnight. The wife’s primary care of the children will require her to make arrangements for care of the children during periods when they are not at school, and she is at work.
(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; and
The commitments of each of the parties that are necessary to support himself /herself are set out in their respective financial statements.
Neither party was cross-examined about the expenses claimed in the financial statements.
(e) the responsibilities of either party to support any other person; and
Each party has a responsibility to contribute towards the support of the children. The wife is responsible for the expenses associated with the children whilst they are in her care.
Since separation, the husband has paid child support for the benefit of the children in accordance with an administrative assessment.
Apart from the children, there was no evidence that either party had responsibilities to support any other person.
Section 79(4)(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; and
The wife currently receives a parenting payment, family tax benefit and rent assistance. Whether this continues into the future, will depend upon future income, and the wife’s eligibility.
The husband is not eligible for any such benefit.
(g) Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The orders which I intend to make will result in the husband either retaining the Property A property, or receiving a lump sum payment, in the event the property is sold. The wife will receive a lump sum payment from the husband, or in default of the payment, from the proceeds of sale of the Property A property. Both parties will be able to adequately rehouse themselves either by purchasing another property or renting. The wife is hopeful of obtaining employment which would enable her to support herself and the children. Otherwise, it is likely that she will continue to receive government benefits to enable her to adequately support herself. If the husband continues in his current employment, he will earn a substantial income. If however, he wishes to cease that employment, then his future income is unknown. In any event, I have great confidence that he is highly intelligent and resourceful and is capable of earning an income to support him and to meet his financial obligations towards the children.
(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; and
This is not a relevant consideration.
(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; and your current the just
This is not a relevant consideration.
(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; and
This is not a relevant consideration.
(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; and
The parties cohabited for approximately 2½ years prior to the marriage, albeit with a separation from November 2007 to November 2008. They were married for 5½ years. The wife has not been in employed since [X]’s impending birth. Her earning capacity has been affected by her adopting the role of homemaker and parent. The wife is not seeking payment of spousal maintenance. The husband’s earning capacity has not been affected by the duration of the marriage.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
The wife will be able to continue in her role as a parent and will hopefully obtain employment, such as to enable her to meet her parental obligations .
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
This is not a relevant consideration.
(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; and
I am satisfied that the orders I intend to make under section 79 enable both parties to adequately maintain themselves.
(naa) the terms of any order or declaration 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 de facto 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 of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration.
(na) any child support under the Child Support (Assessment) Act 1989that 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; and
The husband pays child support in accordance with an administrative assessment and pays for the costs of the children when they are in his care. Whether or not he will pay child support in the future is dependent upon his capacity to obtain employment, if he chooses to leave his current employment, as foreshadowed by him. There was no evidence about the husband’s possible resumption of any alternative employment, in the event the wife is permitted to relocate the children to Region A Tasmania he does not obtain employment, it will fall on the wife to be financially responsible for the care of the children.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
All relevant considerations have been referred to in these reasons.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration.
(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
Counsel for the wife in his final submissions, submitted that the contributions of the parties should be determined as equal. Although the husband contributed more than the wife at the commencement of the relationship, he submitted that nothing turned on the discrepancy after the length of the marriage and the wife’s care of the two young children. He also submitted that there was no evidence to persuade the court that the parties contributed, other than equally throughout the course of cohabitation.
It was acknowledged that the parties had adopted “traditional” roles, with the wife being a homemaker and caring for the children, although the quality and extent of her care of the children, was disputed by the husband. The husband was the primary income earner.
Counsel for the husband urged me to determine that the wife’s contributions should be assessed at 40% and that the husband’s contributions were 60 %.
The basis for his submissions was the husband’s greater financial contribution at the start of the marriage and that he had been the sole or primary breadwinner throughout the relationship. It was further submitted that the wife had made a lesser financial contribution at the start and had primarily been a homemaker, since the commencement of the marriage.
The husband submitted that the contributions of the parties should be determined, as equal.
Having considered the evidence referred to in these reasons, and in particular the discrepancy in initial financial contribution, I determine that the wife’s percentage contribution should be assessed as 47.5% and the husband’s assets 52.5%.
Conclusion as to future needs
Taking into consideration the above matters, including, but not limited to:
i)the wife’s principal care of the children and the time the children will spend with the husband;
ii)the young age of the children;
iii)the uncertainty about the husband’s future earning capacity; in the event the children are permitted to relocate to Region A Tasmania;
iv)the uncertainty about the husband’s capacity to pay child support and contribute to the financial support of the children in the future if the children are permitted to relocate to Region A Tasmania;
v)the disparity in income earning capacity of the parties;
vi)the modest nature of the pool.
I am satisfied that there should be an adjustment in favour of the wife of 12.5% pursuant to 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 60 % of the non-superannuation asset pool and the husband should receive 40% of the non-superannuation asset pool. This results in an overall adjustment of the combined pools so that the wife will receive 56.5% and the husband 43.5%.
Both parties agreed in their final written submissions that the combined superannuation entitlements should be divided equally between them. After considering the evidence, and bearing in mind the relatively young ages of both parties, I agree that the combined superannuation should be divided equally between the parties. This will result in a split of the husband’s superannuation in favour of the wife of $48,766.
On the basis of the agreed property pool, the division of assets I have determined is summarised as follows:
| Wife’s Assets | |
| Cash payment from husband | $343,222 |
| Motor Vehicle | $8,000 |
| Subtotal non-superannuation assets | $351,222 |
| Superannuation | |
| Wife’s superannuation | $110,931 |
| Plus – Superannuation split from husband | $48,766 |
| Superannuation subtotal | $159,697 |
| Nett Assets | $510,919 |
| Husband’s Assets | |
| Property A | $1,050,000 |
| Husband’s car | $2,000 |
| LESS Mortgage Property A | -$438,810 |
| Subtotal non-superannuation assets | $621,190 |
| LIABILITIES | |
| Cash payment to wife | $343,222 |
| Ms B updated report & Court attendance | $6,820 |
| Credit Card | $29,000 |
| Total liabilities | $387,042 |
| Total non-superannuation assets | $234,148 |
| Superannuation | |
| Superannuation | $208,464 |
| Minus - Superannuation split to wife | -$48,766 |
| Superannuation Subtotal | $159,697 |
| Nett Assets | $393,845 |
Conclusion
The division of assets referred to in the preceding paragraph will be achieved by the husband either borrowing sufficient funds to enable him to pay the wife and retain the Property A property, or alternatively a sale of the Property A property. In the event the Property A property is sold, the husband will receive a substantial cash payment. The husband would be able to rehouse himself either by purchasing another property or renting.
As previously referred to, the combined superannuation entitlements will be divided equally between the parties.
In addition to superannuation split, the wife will receive a cash payment of $343,222 which will be sufficient to enable her to rehouse herself, probably by renting a property. The cash payment to the wife takes into consideration:
a)The wife is to share equally Ms B’s costs of the her updated report and her attendance at the hearing;
b)The husband’s credit card liability.
I am satisfied the division of property is just and equitable.
I intend to make orders accordingly.
I certify that the preceding three hundred and twenty eight (328) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 11 May 2018
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
0
7
2