FAMILY COURT OF AUSTRALIA
| BOWERS & BOWERS | [2017] FamCA 627 |
FAMILY LAW – CHILDREN – PARENTING – Where the parties have three children – Where both parties sought orders for the children to live with themselves and spend time with the other parent – Where both parties acknowledge that it is in the children’s best interests to have a meaningful relationship with each parent – Consideration of section 60CC factors – Orders made for the mother and father to have equal shared parental responsibility – Orders made for the children to live with the mother but spend substantial and significant time with the father – Orders made for graduated increase in time that the children spend with the father.
FAMILY LAW – PROPERTY – Where the parties have made an equal non-financial contribution to improving the value of their properties – Court finds that a 5 per cent adjustment should be made in favour of the wife due to her greater initial contributions to the matrimonial property – Court finds that a further 7.5 per cent adjustment should be made to the wife due to the wife’s ongoing responsibility as the primary carer of the parties’ children – Orders made for the husband to transfer to the wife his interest in the former matrimonial property and for the wife to transfer to the husband her interest in a property adjacent to the former matrimonial property – Orders made for one of the parties’ properties to be sold and the sale proceeds to be distributed 62.5 per cent to the wife and 37.5 per cent to husband after the payment of all relevant disbursements, and appropriate adjustments and the amount necessary to equalise the parties remaining mortgages.
Family Law Act1975 (Cth), ss 43, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 106A, 117
Child Support (Assessment) Act1989 (Cth)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Evidence Act1995 (Cth)
AM and MM [2005] FamCA 443
Antmann and Antmann (1980) FLC 90-908
Bevan & Bevan (2013) FLC 93-545
Bircher & Bircher and Anor [2016] FamCAFC 123
De Roma & De Roma [2013] FamCA 566
Fitzgerald(aschild representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123
Gahen & Gahen (No 2) [2013] FamCA 936
In the marriage of I & I (No. 2) (1995) FLC 92-625
Kowaliw and Kowaliw (1981) FLC 91-092
Petruski & Balewa [2013] FamCAFC 15
Pierce & Pierce [1998] FamCA 74
Quaresmini & Quaresmini [1999] FamCA 1314
Sigley v Evor [2011] FamCAFC 22
Stanford & Stanford (2012) 247 CLR 108
Stoddard v Glover [2016] FamCA 674
| APPLICANT: | Mr Bowers |
| RESPONDENT: | Ms Bowers |
| INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
| FILE NUMBER: | SYC | 6906 | of | 2015 |
| DATE DELIVERED: | 22 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland |
| HEARING DATE: | 1, 2 ,3 February 2017 & 16 & 17 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Monardo Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Barnett |
| SOLICITOR FOR THE RESPONDENT: | Milevski Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rebehy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
Orders
THE COURT ORDERS THAT:
PARENTING
That the mother and father shall have equal shared parental responsibility for the children B born … 2008, C born … 2010 and D born … 2013 (“the children”).
That the children shall live with the mother.
That the children shall spend time with the father as follows:
a)Until Week 1 of Term 3 2017;
i) During school terms:
(1)In Week 1 from after school Friday until before school Monday.
(2)In Week 2 from after school Thursday until before school Friday.
ii) During the school holiday period, from 10.00am on the first Monday until 7.00pm Friday.
iii) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
iv) At all other times as agreed between the parties.
b)From Week 1 Term 3 2017 until Week 1 Term 3 2018:
i) During school terms:
(1)In Week 1 from after school Friday until before school Monday.
(2)In Week 2 from after school Thursday until before school Friday.
ii) During the mid-year school holiday periods, from 10.00am on the first Sunday until 7.00pm Friday.
iii) During the Christmas school holiday period:
(1)From 9.00am Christmas Eve until 12 noon Christmas Day.
(2)From 10.00am on the first Sunday until 5.00pm Friday and each alternate week thereafter.
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
v) At all other time as agreed between the parties.
c)From Week 1 Term 3 2018 until Week 1 Term 1 2019:
i) During school terms:
(1)In Week 1 from after school Friday until before school Monday.
(2)In Week 2 from after school Thursday until before school Friday.
ii) During the mid-year school holiday periods, from 10.00am on the first Saturday until 7.00pm Friday.
iii) During the Christmas school holiday period:
(1)From 12 noon Christmas Day until 7.00pm Boxing Day.
(2)From 10.00am on the first Saturday until 5.00pm the following Saturday and each alternate week thereafter.
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
v) At all other times as agreed between the parties.
d)From Week 1 Term 1 2019:
i) During school terms:
(1)In Week 1 from after school Thursday until before school Monday.
(2)In Week 2 from after school Thursday until before school Friday.
ii) During the mid-year school holiday periods, from 10.00am on the first Saturday until 5.00pm the following Saturday.
iii) During the Christmas school holiday period:
(1)From 9.00am Christmas Eve until 12 noon Christmas Day in 2019 and each alternate year thereafter.
(2)From 12 noon Christmas Day until 7.00pm Boxing Day in 2020 and each alternate year thereafter.
(3)From 10.00am on the first Saturday until 5.00pm the following Saturday and each alternate week thereafter.
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
v) At all other times as agreed between the parties.
That for the purpose of determining the commencement of time at the beginning of each school term, Week 1 shall always be the first week of each school term
That for the purpose of all school changeovers for D until she commences school in 2019:
a)If she is attending child care/pre-school, the father shall collect and deliver D to the child care/pre-school; and
b)If she is not attending child care/pre-school, the father shall collect D from the mother’s residence after delivering the children to school at the commencement of the time and shall return D to the mother’s residence after delivering the children to school at the end of the time.
That for the purpose of changeover during school holidays:
a)The father shall collect the children from the mother’s residence at the commencement of the time.
b)The mother shall collect the children from the father’s residence at the end of the time.
c)The parents shall ensure that no other adults attend changeover unless in the case of an emergency.
That the mother and father are restrained from changing the enrolment of B and C from E School, Suburb F, until they attend High School, without the written consent of the other parent or Court Order.
That the mother and father shall do all acts and things and sign all documents to enrol the child D at E School, Suburb F to commence in 2019.
That the father shall notify the mother at least four weeks prior to any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
10. That the mother shall notify the father at least four weeks prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
11. That each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
12. That each parent shall make arrangements at the children’s schools to ensure that they can obtain the following information and documents at their own cost:
a)A copy of all school reports for the children.
b)Notification for school activities that they may decide to attend.
c)Notification of parent/teacher nights and to ensure the school is informed that it is both parent’s desire to attend such events.
d)In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
13. That in the event of any of the children suffering a medical emergency requiring medical attention while in the care of either parent:
a)The other parent is to be notified as soon as practicable.
b)The other parent is to be provided with full details of the practitioner or medical facility upon which the child attends as soon as practicable.
c)The medical practitioner or medical facility is to be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.
14. That the father pay an amount of $11,900.15 to the Legal Aid Commission within 28 days in relation to the costs of the Independent Children’s Lawyer (“ICL”) in these proceedings.
15. That the mother pay an amount of $11,900.15 to the Legal Aid Commission within 28 days in relation to the costs of the ICL in these proceedings.
16. That the children’s time with the father shall be suspended as follows:
a)From 9.00 am Mother’s Day until before school Monday if the children were to be spending time with their father.
b)From 9.00am Christmas Eve until 12 noon Christmas Day in 2020 and each alternate year thereafter.
17. From 12 noon Christmas Day until 7.00pm Boxing Day in 2019 and each alternate year thereafter.
Telephone Communication
18. That both parents be at liberty to communicate with the children by telephone at all reasonable times with the parent, with whom the children are living, to encourage the children to answer the phone call.
It is noted that the duration of the telephone call will depend in the child’s ability and willingness to participate in the conversation.
Involvement with children’s school and other activities
19. That both parents be noted as enrolling parents and emergency contacts at the children’s school, day-care and extracurricular activities and facilitate the children’s catholic religion and keep the other parent informed.
20. That the children’s school, day-care, and other care provider are authorised to provide all information and documents about the children to both parents, including but not limited to the children’s progress, newsletters, reports, photographs and details of any school activities.
21. Both parents are at liberty to discuss matters relating to the children with the child’s school, teachers, principal, day-care and other care provider.
22. That either parent and the grandparents, be at liberty to attend any significant (e.g. end of year semester or term) school events, and any significant religious, extracurricular or sporting events.
Communication between parents
23. Each parent must advise the other of:
23.1.any significant illness, accident or injury suffered by the child;
23.2.any significant medical or dental treatment provided to a child;
23.3.any medication a child is to take whilst a child is in the other’s care including dosage;
23.4.and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
24. Save for the preceding orders when the parents are to communicate with each other by telephone for emergency or urgent situations, the parents must communicate with each other in relation to the children, by use of a communication book, to be exchanged at the time of the changeovers.
25. That if a parent proposes to take the children away for holidays, that they provide the other parent with the address and telephone number for the proposed holiday location, not less than 7 days prior to departure.
26. That each parent inform the other if they intend to take the children outside of New South Wales during the period the children are in the parent’s care.
Medical Issues
Except in cases of emergency, both parents are to continue to take the children to G Medical Centre when general medical treatment is required so that the children have continuity of medical care.
Injunctions
28. That neither parent denigrate the other, their respective partners, family or friends, directly or in the presence or hearing of the children and will use their best endeavours to ensure that no-one else does so and shall remove the said children from any environment when degradation is occurring.
29. That both parents use their best endeavours to foster the children’s relationship with the other parent.
30. That both parents be restrained from passing information or messages through the children to the other parent.
31. That either parent be at liberty to travel overseas with the child or children, provided that;
31.1.the proposed period of travel falls within a period in which the children would be living with that parent pursuant to the terms of these Orders;
31.2.any proposed destination is a country which has acceded to the Convention on the Civil Aspects of International Child Abduction, and is a convention country under regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986;
31.3.the parent travels with a child or children for the entire period which a child or children is travelling;
31.4.from 2022 and only once in any three year period, either parent is at liberty to take the children overseas for an extended holiday during the school holiday periods by agreement and in the event of no agreement, for a period no longer than 21 days and subject to written approval by the school should the period extend into school days, and the other parents’ time with the children.
31.5.the parent that is proposing to travel provides the other parent with:
31.5.1.not less than eight (8) weeks prior to the intended departure, a detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation for the entire period of travel;
31.5.2.not less than one (1) weeks prior to the intended departure, details of an email address or telephone number at which the children and parent can be contacted during the trip.
32. That if a parent is travelling overseas with the children, the parent must arrange for the children to telephone the other parent in Australia, within four hours of arrival at the intended destination (not any flight stop-overs), on each alternate day during the period of the trip, and within four hours of arrival back in Australia.
PROPERTY
Transfer of Real Estate
33. Within 60 days of the date of these Orders (“the Settlement Date”) the husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the property situate at and known as H Street, Suburb F NSW …, being the land more particularly described as LOT … IN DEPOSITED PLAN … (“the former matrimonial property”).
34. Within 60 days of the date of these Orders the wife shall do all acts and things and sign all documents necessary to transfer to the husband all of her right, title and interest in the property situate at and known as 2 H Street, Suburb F NSW ..., being the land more particularly described as LOT ... IN DEPOSITED PLAN ... (“2 H Street property”).
35. On and from the Settlement Date;
35.1.the wife shall be solely responsible for repayment of the loan secured by the mortgage over the former matrimonial property, and
35.2.the husband shall be solely responsible for repayment of the loan secured by the mortgage over the 2 H Street property.
36. Within 14 days of the date of these Orders the parties shall do all things necessary and sign all such documents that are required of them to sell the Suburb K Property known as J Street, Suburb K NSW ..., being the land more particularly described as LOT … OF SECTION … IN DEPOSITED PLAN … (“the Suburb K property”) on the following terms:
36.1.The Suburb K property will be listed as a non-exclusive listing agreement for sale by private treaty at a price agreed by the parties and, if there is no agreement, the listing price shall be as determined by a valuer nominated by the then President of New South Wales Division of the Australia Property Institute at equal cost to the parties;
36.2.The form of Contract for Sale will be with a licenced real estate agent (“the Agent”) as agreed by the parties, or if there is no agreement, an agent appointed by the President of the Real Estate Institute of New South Wales at equal cost to the parties;
36.3.The Suburb K property will be listed for sale with a licensed real estate agent (“the Agent”) as agreed by the parties, or if there is no agreement, an agent appointed by the President of Real Estate Institute of New South Wales at the equal cost to the parties;
36.4.In the event the Suburb K property is not sold within 60 days of the date of these Orders, the parties forthwith do all things necessary and sign all such documents that are required to procure the sale of the Suburb K property by public auction on the following terms:
36.4.1.on a date to be agreed by the parties and if there is no agreement on a date nominated by the Agent; and
36.4.2.at an agreed reserve price, or if there is no agreement, at a reserve price to be determined by a valuer nominated by the then President of the New South Wales Division of the Australian Property Institute at equal cost to the parties.
36.5.In the event that the Suburb K property is not sold by auction or by private negotiation within 14 days after the said auction, then the wife do all things necessary and sign all such documents required to procure a second auction upon the same terms and conditions as applied to the first auction;
36.6.In the event that the Suburb K property is not sold at or within 14 days of the second auction either party has liberty to apply to the Court for further orders;
36.7.The parties will cooperate in any way with the Agent in relation to the sale, including making the key available, allowing inspection of the Suburb K property at all times requested by the Agent, and ensuring that the Suburb K property is in a neat and clean condition at the time of inspection by prospective purchasers.
37. That the proceeds of sale of the Suburb K property are to be distributed at settlement as follows:
37.1.In payment of all expenses of and incidental to the sale, including real estate agent commissions, advertising, legal fees and any necessary disbursements;
37.2.In payment of any outstanding rates and taxes including land tax, capital gains tax and other outgoings on the property;
37.3.In discharge of the mortgage in favour of ST. GEORGE BANK LIMITED registered against the title to the Suburb K property (“St George mortgage”).
37.4.In payment to the wife by way of bank cheque or as otherwise directed by her in writing the sum of $149,118.25.
37.5.The amount necessary to reduce the mortgage in favour of COMMONWELATH BANK OF AUSTRALIA secured over the 2 H Street property to an amount equivalent to the mortgage in favour of COMMONWELATH BANK OF AUSTRALIA secured over the former matrimonial home.
37.6.In payment to the wife by way of bank cheque or as otherwise directed by her in writing a sum equivalent to 62.5 per cent of the remaining net proceeds of the sale of the Suburb K Property.
37.7.The balance to be received by the husband.
Household contents and furniture
38. As from the date of these Orders the husband and wife will be entitled to 50 per cent of the household contents that existed as at the date of separation, and:
38.1.Within 7 days of these orders the husband is to provide a list of the items he wishes to retain and the list is also to include all items taken since separation, with a notation identifying the items already taken; and
38.2.Within 14 days the wife is to prepare two lists of equal value of the items which are to be retained by both the husband and wife, with the husband to select either list within a further 7 days.
Catch All
39. That as between the husband and wife, and subject to the above Orders, the husband and wife shall each respectively retain all interest in and entitlement to:
39.1.All personal property now in his/her respective possession or control.
39.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
39.3.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
40. Except as specifically provided for by any paragraph comprising these Orders to the contrary:
40.1.The husband hereby indemnifies the wife from, and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband.
40.2.The wife hereby indemnifies the husband from, and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
41. Except as specifically provided for by any paragraph comprising these Orders to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
42. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
43. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowers & Bowers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6906 of 2015
| Mr Bowers |
Applicant
And
| Ms Bowers |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application for both parenting and property orders arising from the breakdown of the marriage between Mr Bowers born in 1980 and Ms Bowers born in 1974. The parties have three children; B born in 2008, C born in 2010 and D born in 2013.
The parties both seek an order for shared parental responsibility. However, each party seeks orders for the children to live with themselves and spend time with the other parent. The trial has been conducted against a background of quite intense bitterness arising from allegations, made by the mother, that the father had inappropriately touched the parties’ eldest daughter and had sexually assaulted their son. Those allegations have now been withdrawn.
A central issue in these proceedings is whether the mother continues to believe that those events occurred and, if so, the implications for future parenting arrangements. I have found that the mother no longer has those beliefs and for reasons that will be discussed, the children should live primarily with the mother but spend substantial and significant time with the father.
The property proceedings have been conducted in the context where the father has been the primary income earner and the mother has primarily been responsible for undertaking duties as a homemaker and as the primary carer of the parties’ children. An issue of some controversy is the significance of the parties’ initial contributions.
I have found that an adjustment should be made in favour of the mother as a result of greater initial contributions to the matrimonial property and also as a result of the mother’s greater future needs.
Background
The parties helpfully agreed upon a joint chronology.[1] Drawing upon that chronology and the parties’ contentions the relevant background is as follows.
[1] Exhibit GG.
Pre-marriage
The mother was born in 1974 and the father was born in 1980.
In 1995 the mother, with her sister, purchased a property located at J Street, Suburb K in the State of New South Wales (“the Suburb K property”). The purchase price was $180 000.
In March 2000 the mother acquired her sister’s interest in the Suburb K property for $115 000.
On 31 May 2002 the father purchased a property located at L Street, Suburb M in the State of New South Wales (“the Suburb M property”) for the purchase price of $192 500. The property was funded by way of a mortgage with the Commonwealth Bank of Australia in the sum of $182 590, with the balance being paid by the father from his savings. The father also borrowed the sum of $20 000 from his parents to fund the renovations to this property.
On 25 March 2003 the father borrowed an amount of $20 000 from the Commonwealth Bank to repay his parents for the above loan.
2005
In January 2005 the parties met.
2006
In approximately September 2006 the parties commenced cohabitation in the Suburb M property.
The parties married in 2006.
2007
On 10 August 2007 the parties purchased a property located at 2 H Street Suburb F (“2 H Street”) for the purchase price of $405 000. The purchase was funded by way of a mortgage from the Commonwealth Bank in the sum of $450 000.
2008
In February 2008 the parties opened a Commonwealth Bank Streamline account in their joint names. The account number was …14.
In July/August 2008 the parties moved into the property at 2 H Street.
In 2008 B (“B”) was born. She is now 8 years old. The mother suffered postnatal depression following the birth of B. In 2009 the mother received medical treatment from N Mental Health Centre and O Mental Health Centre.
2009
In September 2009 the mother returned to work at Company P having taken 12 months maternity leave.
In November 2009 the mother transferred the sum of $10 000 into the parties’ joint home loan account.
2010
On 6 January 2010 the wife contacted the Department of Family and Community Services alleging that she had been verbally abused by the father.
In March 2010 the parties purchased a Japanese motor vehicle. The parties borrowed $38 000 from the Commonwealth Bank in order to facilitate that purchase.
In April 2010 the mother’s employment with Company P was terminated. The wife contends that, after ceasing that employment, she essentially became a stay-at-home mother. The father contends that the wife returned to work in various roles for periods of time until January 2016.
In September 2010 the parties purchased a property located at H Street, Suburb F (“the former matrimonial home”) for the purchase price of $510 000. The purchase of that property was funded by way of a mortgage with the Commonwealth Bank in the sum of $550 300. The $550 300 included an additional $40 000 which was to cover the costs of anticipated renovations to the property.
On 4 October 2010 the father commenced his employment with Company Q.
In 2010 C (“C”), who is now 6 years of age, was born.
2012
On 30 April 2012 the Suburb M property was sold, with the parties receiving $198 000 as the net proceeds. From those proceeds, the parties purchased a utility motor vehicle and made repayments off their mortgage, as well as placing $82 000 in a mortgage off-set loan account.
2013
In January 2013 the father received an inheritance from his great aunt which the parties agree was between $116 000 to $120 000.
In 2013 D (“D”), who is now 3 years of age, was born.
2014
In 2014 the parties renovated the granny flat located at the rear of the former matrimonial home. The granny flat has subsequently been rented out.
Between 2014 and 2015 B was treated for a urinary tract infection and left amblyopia.
In December 2014 the mother reported the father to the Child Protection helpline complaining that the father had been abusive towards her and raising a concern that the father had possibly sexually abused B.
On 23 December 2014 B was interviewed by a representative of the Joint Investigation Response Team (“JIRT”). JIRT is a joint investigation team involving officers of the New South Wales Police Force and the Department of Family and Community Services.
2015
On 7 January 2015 B attended upon her general practitioner, Dr R.
On 6 February 2015 B received a referral to Dr S, who was of the opinion that “[B] is having childhood masturbation and when pressed for sense of guilt, suggested that her father had been touching her genitals”.
In July 2015 the mother returned to work for a period of approximately two months, during which time the father cared for D on Tuesdays.
On 10 September 2015 the mother called the Department of Family and Community Services to report that C complained to her that he had been sexually abused by the father. The mother attended the police to provide a statement in respect to the complaint. A provisional Apprehended Violence Order (“AVO”) was taken out by police against the father with C identified as the protected person.
On 11 September 2015 a further provisional AVO was taken out naming the children, B, C and D as the protected persons. The Orders provided that the father was not to reside in the former matrimonial home and was not permitted to approach or contact the children.
On 11 September 2015 the parties separated, with the father leaving the former matrimonial home.
From 11 September 2015 the father has resided with his parents at their home in Suburb T. The home has four bedrooms. There are two rooms available for the children.
On 6 October 2015 the two provisional AVO’s were withdrawn and dismissed.
On 7 October 2015, at approximately 8.30pm, the father entered the former matrimonial home in order to collect some belongings. He was accompanied by his father, brother in law and two friends who assisted the father to collect his belongings from the garage.
On 22 October 2015 the father filed an Initiating Application seeking interim and final parenting orders.
On 29 November 2015 C was hit by a car whilst in the mother’s care. He was subsequently taken to U Hospital for treatment.
On 2 December 2015 C was discharged from hospital. He has since made a full recovery.
On 10 December 2015 the mother obtained a medical certificate indicating C was “fit for school”. The father asserts that advice was contrary to advice received from a Doctor at the U Hospital.
On 31 December 2015 the mother reported a break and enter to police and advised police that she suspected that the father had been responsible for the break in.
2016
On 20 January 2016 interim consent orders were made providing for the children to spend supervised time with the father.
In January 2016 the mother was made redundant from her employment.
On 5 January 2016 the mother made a further report to police concerning a break and enter at the former matrimonial home. The mother, again, asserted that she suspected that the father was the person who was responsible for the break and enter.
Also on 5 January 2016, the father travelled to Queensland departing Sydney domestic airport on a 5.30pm flight.
On 13 January 2016 the father took C to see Dr V at G Medical Centre in respect to a laceration in his anus. Dr V expressed the view that the injury may have occurred due to C having a low fibre diet. There is no suggestion that the injury occurred as result of the intervention of another person.
On 20 January 2016 interim consent orders were made providing for the children to spend supervised time with the father.
On 29 January 2016 C commenced Kindergarten.
In February 2016 the father enrolled B and C in gymnastics as the W Centre. They attend between 4.30pm and 5.30pm on Tuesdays.
In February 2016 B commenced music lessons each Thursday afternoon.
On 9 March 2016 the parties attended an appointment with Dr X who had been appointed as the Single Expert to prepare a report in the proceedings.
On 4 April 2016 Dr X’s report was released.
On 19 April 2016 further interim consent orders were made which provided for the father to spend time with the children on an unsupervised basis. Those orders were subsequently amended pursuant to the slip rule on 15 September 2016.
On 22 June 2016 further interim orders were made .
On 5 July 2016 the paternal grandmother took D to the doctor in respect to the mother’s concerns regarding D having a cold. At that appointment the General Practitioner noticed marks on D’s back. The paternal family made a report to the Department of Family and Community Services (“DFCS”) following the consultation.
On 15 September 2016 further interim orders were made.
parenting arrangements prior to final hearing
The interim orders in place, prior to final hearing, provided for the children to live with the mother and spend time with the father, during school term, as follows:
a)for all three children from 3.00pm to 7.00pm each Tuesday and Thursday;
b)for B and C each alternative weekend from 3.00pm on Friday to 7.00pm on Sunday; and
c)for D each alternative weekend from 3.00pm on Friday to 7.00pm on Saturday.
interim orders made at conclusion of final hearing
At the conclusion of the final hearing the following interim parenting orders were made:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.From 7 April 2017 the children are to spend time with father as follows:
a.During school term in alternate weeks as follows:
i.In week one, from after school Friday to 7.00 pm Sunday;
ii.In week two, from after school Thursday to before school Friday.
b. During school holiday periods, from 10.00 am on the first Monday of the school holiday period until to 7.00 pm on the following Friday.
2.For the purposes of Order 1 above changeover of the children is to occur as follows:
a. On Friday and Thursday afternoons: the father is to collect [B] and [C], from school and [D] is to be collected from the mother’s residence;
b. On Friday mornings: the father is to deliver [B] and [C] to school and [D] is to be delivered to the mother’s residence.
c. On Sunday evenings: the mother is to collect the children from the father at the paternal grandparents’ residence.
Competing applications
The mother’s application
The Minute of Order proposed by the mother was set out in her Further Amended Response filed on 27 January 2017 and was as follows:
PARENTING
That the parents have equal shared parental responsibility for their children, [B], born … 2008 and [C], born … 2010 and [D] born … 2013, consult with one another about major decisions, including but not limited to the children's:
1.1.residence;
1.2.schooling;
1.3.significant medical treatment.
Living Arrangements
That the children live with the mother.
That the children spend time with the Father during each school term as follows:
3.1.From the date of these orders to the commencement of school term 4 in October 2017
3.1.1.For all three children from the conclusion of school or day-care on Tuesday and Thursday from 3pm (or- the conclusion of school or daycare) to 7pm each week; and
3.1.2.For [B] and [C]. each alternate week from 3pm Friday to 7.prn Sunday:
3.1.3.For [D], each alternate week coinciding with 3.1.2 from 3pm on Friday to 7pm Saturday.
3.2.From the commencement of school term 4 in October 2017 to October 2018
3.2.1.During week 1 for all three children from the conclusion of school or daycare on Thursday from 3pm to the commencement of school or daycare on Friday; and
3.2.2.During week 2 for [B] and [C] from 3pm Friday to 7pm Sunday;
3.2.3.For [D], in week 2 coinciding with 3.2.2 from 3 in Friday to 7pm on Saturday.
3.3.From the commencement of school term 4 in October 2018 to October 2019
3.3.1.During week 1 for all three children from the conclusion of school or daycare on Thursday from 3pm to the commencement of school or daycare on Friday; and
3.3.2.During week 2 for all three children each alternate week from 3pm Friday to 7pm Sunday.
3.4.From the commencement of school term 4 in October 2019
3.4.1.During week 1 for all three children from the conclusion of school or daycare on Thursday from 3pm to the commencement of school or daycare on Friday: and
3.4.2.During week 2 for all three children each alternate week from 3pm. Friday to the commencement of school on Monday.
If during the school term the children have a long weekend or student free day on the Monday, then notwithstanding paragraph 3, the children's time with a particular parent will extend until the Tuesday morning for that week only and will revert to a normal Monday morning changeover in the following week. This arrangement will not apply during the school holiday period, save for if the holiday or student free day falls on the week commencing the children's return to a school term.
That the parenting be at liberty to change the living arrangements for the children by agreement in writing.
Holidays and special days
Notwithstanding Order 2,3,4,5, that the children spend time with the Father each Father's Day from 9:00am until 7:00pm and with the Mother each Mother's Day from 9:00am until 7:00pm.
Notwithstanding Order 2,3,4,5 that on the children's birthdays the parent with whom the children are not otherwise living on that day is at liberty to spend time with the children from 9am until 1pm that day if the day falls on a non-school day, or 3pm until 7pm if the day falls on a school day.
Notwithstanding Order 2,3,4,5, that on the parent’s birthdays, if the parent with whom the children are not otherwise living on that day is having a birthday, then that parent is at liberty to spend time with the children from 9am until 1pm that day if the day falls on a non-school day or 3pm until 7pm if the day falls on a school day.
Notwithstanding Order 2,3,4,5, that in 2016 and each alternate year thereafter, the children spend time with the father form 9am Christmas Eve until 12pm Christmas Day and with the mother from 12pm Christmas Day until 7pm Boxing Day, and in 2017 and each alternate year thereafter, the children spend time with the mother from 9am Christmas Eve until 12pm Christmas Day and with the father from 12pm Christmas Day until 7pm Boxing Day.
Notwithstanding Order 2,3,4,5, that in 2017 and each alternate year thereafter, the children spend time with the father from 3pm on New Year’s Eve until 5pm on new year’s day and each alternate year thereafter, the children spend time with the mother from 3pm on New year’s eve until 5pm on new year’s day.
Notwithstanding Order-2, 3, 4, 5 that in 2017 and each alternate year thereafter, the children spend time with the father from 9am Good Friday until 12pm Easter Sunday and with the mother from 12pm Easter Sunday until 7pm Easter Monday, and in 2018 and each alternate year thereafter, the children spend time with the mother from 9am Good Friday until 12pm Easter Sunday and with the father from 12pm Easter Sunday until 7pm Easter Monday.
12. That notwithstanding Order 2,3,4,5 that the children spend school holiday periods with the father and the mother;
12.1.in rotating
fourthree night blocks for [B] and [C], commencing from after school on the last day of the school term or 8am on a non-school day and concluding at 7pm on the fourth day, and from 8 am to 7 pm on the first day followed bythreetwo nightsandfrom 8am, to 7pm, on the fourth dayand concluding at 7pm on the fourth day for D until the commencement of the December/ January school holiday periods in 2017,12.2.in rotating
fivefour night blocks for [B] and [C], commencing from after school on the last day of the school term or 8am on a non-school day and concluding at 7pm on the fifth say, and from 8am to 7pm on the first day followed byfourthree nightsand from 8am to 7pm on the fifth dayand concluding at 7pm on the fifth fay for [D] until the commencement of the December/ January school holiday periods in 2018.12.3.in rotating
sixfive night blocks for [B] and [C], commencing from after school on the last day of the school term or 8am on a non-school day and concluding at 7pm on the sixth day, and from 8am to 7pm on the first day followed byfivefour nightsand from 8am to 7pm on the sixth dayand concluding at 7pm on the sixth day for [D] until the commencement of the December/ January school holiday periods in 2019.
12.4.in rotating
sevensixth night blocks for [B] and [C], commencing from after school on the last day of the school term or 8am on a non-school day and concluding at 7pm on the sixth day, and from 8am to 7pm on the first day followed bysixfive nightsand from 8am to 7pm on the sixth dayand concluding at 7pm on the sixth day for [D] until the commencement of the December/January school holiday periods in 2020.12.5.in rotating seven night blocks for all three children, commencing from after school on the last day of the school term
or 8amor 7pm on a non-school day and concluding at 7pm on theseventheight day from the commencement of the December/January school holiday periods in 2021Wwith thefather’smother’s time commencing first followed by the fathermotherin20172022 and each alternate year thereafter,and with the mother time commencing first followed by the father in 2018 and each alternate year thereafter.
W
with the last period of each school holidaysisto be adjusted between the parents so as to balance each of the school holiday equally between the parents.
13. In the preceding order “school holiday periods” means the Easter/Autumn, June/July, September/October and December/January school holiday periods which are exercised by the school attended by the children from time to time and which commences on the afternoon of the last day of the school term and which concludes in the morning of the first day of the next school term, with the parent who has the children on the last day delivering the children to the first day of the new school term.
Telephone Communication
14. That both parents be at liberty to communication with the children by telephone at all reasonable times with the parent with whom the children are living, to encourage the children to answer the phone call.
It is noted that the duration of the telephone call will depend in the child’s ability and willingness to participate in the conversation.
Changeovers and Transportation
15. That for the purpose of changeovers and transportation, unless otherwise agreed;
15.1.for the purpose of changeover, the father will collect and deliver the children from the mother’s residence at the commencement and conclusion of the father’s time with the children (save for if a child/children are attending school on the afternoon of collection or the morning of return, in which case the father will collect and deliver the children to school);
15.2.either parent is at liberty to have a nominee which is known to the children to facilitate the changeovers and transport, provided that they give not less than 2 hours’ notice to the other parent of the details of the nominee.
Alternate carers
16. That if necessary, both parents be at liberty to arrange for family and friends to care for the children in their absence (including delivering the children to or collecting the children from school, day care, extracurricular activities). In the event that a parent is to be advised and given the first option to care for the children prior to the children being enrolled in holiday camp or activities in the parent’s absence.
17. Should a parent be unable to care for the children for any period exceeding one night then the other parent is to be given the first option to arrange to care for the children for the period that the parent is unavailable.
Involvement with children’s school and other activities
18. That both parents be noted as enrolling parents and emergency contacts at the children’s school, day-care and extracurricular activities and facilitate the children’s catholic religion and keep the other parent informed.
19. That the children’s school, day-care, and other care provider are authorised to provide all information and documents about the children to both parents, including but not limited to the children’s progress, newsletters, reports, photographs and details of any school activities.
20. Both parents are at liberty to discuss matters relating to the children with the child’s school, teachers, principal, day-care and other care provider.
21. That either parent and the grandparents, be at liberty to attend any significant (e.g. end of year semester or term) school events, and any significant religious, extracurricular or sporting events.
Child’s attendance at parties
22. In the event that the children are invited to a party or other special occasions at a time when the child is living with the other party, the parent forthwith upon receiving such invitation, provide the other party with a copy of such invitation to enable the other party to respond to the invitation as they may choose.
Communication between parents
23. That the parents notify each other within 24 hours of any change of address, email or telephone number (including mobile phone).
24. Each parent must advise the other of :
24.1.any significant illness, accident or injury suffered by the child;
24.2.any significant medical or dental treatment provided to a child;
24.3.any medication a child is to take whilst a child is in the other’s care including dosage;
24.4.and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent.
25. Save for the preceding orders when the parents are to communicate with each other by telephone for emergency or urgent situations, the parents must communicate with each other in relation to the children, by use of a communication book, to be exchanged at the time of the changeovers.
26. That prior to making any disclosure to Police, Department of Community Services, Doctor, School or Day-Care, of any nature the parent raising the concern must advise the other parent as to the concern and seek an explanation to determine the validity of the disclosure prior to contacting the relevant authorities.
27. That if a parent proposes to take the children away for holidays, that they provide the other parent with the address and telephone number for the proposed holiday location, not less than 7 days prior to departure.
28. That each parent inform the other if they intend to take the children outside Sydney Metropolitan Area during the period the children are in the parent’s care.
29. That the mother be at liberty to relocate from the current residence to a new residence to be of no further distance than 30km from the existing residence, and the children are to be enrolled in the local catholic school in close proximity to the new residence with the mother to inform the father 30 days prior to relocation occurring.
Medical Issues
30. It is noted that the children’s regular general practitioner is Dr [R] or Dr [Y] situated at [G] Medical Centre. Except in cases of emergency, both parents are to continue to take the children to [G] Medical Centre when general medical treatment is required so that the children have continuity of medical care.
Injunctions
31. That the parents refer only to the biological father of the children as ‘Dad’ or ‘Daddy’ and the biological mother of the children as ‘Mum’ or ‘Mummy’ and encourage the children to do so.
32. That neither parent denigrate the other, their respective partners, family or friends, directly or in the presence or hearing of the children and will use their best endeavours to ensure that no-one else does so and shall remove the said children from any environment when degradation is occurring.
33. That both parents use their best endeavours to foster the children’s relationship with the other parent.
34. That both parents be restrained from passing information or messages through the children to the other parent.
Overseas travel
35. That the mother retain possession of the children’s passports for safekeeping, and if the father is travelling overseas with the children in accordance with the following Order, that the mother deliver the children’s passports to the father not less than two (2) weeks prior to the date of the intended departure, and that the father return the children’s passports to the mother within 72 hours of return from any overseas trip.
36. That either parent be at liberty to travel overseas with the child or children, provided that;
36.1.the proposed period of travel falls within a period in which the children would be living with that parent pursuant to the terms of these Orders;
36.2.any proposed destination is a country which has acceded to the Convention on the Civil Aspects of International Child Abduction, and is a convention country under regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986;
36.3.the parent travels with a child or children for the entire period which a child or children is travelling;
36.4.from 2022 and only once on any three year period either parent is a liberty to take the children overseas for an extended holiday during the school holiday periods by agreement and in the event of no agreement for a period no longer than 21 days and subject to written approval by the school should the period extend into school days, and the other parents time with the children.
36.5.the parent that is proposing to travel provides the other parent with:
36.5.1.not less than
four (4)eight (8) weeks prior to the intended departure, a detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation for the entire period of travel;36.5.2.not less than one (1) weeks prior to the intended departure, details of an email address or telephone number at which the children and parent can be contacted during the trip.
37. That if a parent is travelling overseas with the children, the parent must arrange for the children to telephone the other parent in Australia, within four hours of arrival at the intended destination (not any flight stop-overs), on each alternate day during the period of the trip, and within four hours of arrival back in Australia.
38. That the father pay the costs of and incidental to these proceedings.
PROPERTY
Transfer of Real Estate
39. Within 60 days of the date of these Orders (“the Settlement Date”) the husband shall do all acts and things and sign all document necessary to transfer to the wife all of his right, title and interest in the property situate at and known as [H Street, Suburb F] NSW ..., being the land more particularly described as LOT … IN DEPOSITED PLAN ... (“the former matrimonial property”).
40. Within 60 days of the date of these Orders (“the Settlement Date”) the husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the property situate at and known as [2 H Street, Suburb F] NSW ..., being the land more particularly described as LOT ... IN DEPOSITED PLAN ... (“[2 H Street] property”).
41. On the Settlement Date the parties shall do all acts and things and sign all documents necessary to discharge the mortgage in favour of COMMONWELATH BANK OF AUSTRALIA secured over the former matrimonial property at the 2 H Street property, provided that the wife shall be solely responsible for repayment of the loan secured by the mortgage over the former matrimonial property and the 2 H Street property.
42. On the Settlement Date, the husband shall be entitled to the benefit for the Suburb K Property known as [J Street, Suburb] K NSW ..., being the land more particularly described as LOT … OF SECTION … IN DEPOSITED PLAN … (“the [Suburb K] property”) including but not limited to any income derived from it and shall indemnify the wife and keep her indemnified in relation to the following:
42.1.Any income tax, capital gains or other tax liability arising out of or in respect of the Property;
42.2.All rates, taxes and other outgoings in relation to the Property;
42.3.The mortgage in favour of ST. GEORGE BANK LIMITED secured over the title to the Property; and
42.4.Any other liability secured over or attaching to the Property.
43. Subject to order 46 within 60 days of the date of these Orders (“the Settlement Date”) the wife shall do all acts and things and sign all documents necessary to transfer to the husband all of her right, title and interest in the [Suburb K] property.
44. Subject to order 46 on or before the Settlement Date the parties shall do all acts and things and sign all documents necessary to discharge the mortgage in favour of ST. GEORGE BANK LIMITED secured over the [Suburb K] property, provided that the husband shall be solely responsible for the repayment of the loan secured by the mortgage over the [Suburb K] property.
45. Subject to order 46 as from the Settlement Date, the husband shall be entitled to the benefit of the [Suburb K] Property including but not limited to any income derived from it and shall indemnify the wife and keep her indemnified in relation to the following:
45.1.Any income tax, capital gains tax or other tax liability arising out of or in respect of the Property;
45.2.All rates, taxes and other outgoing in relation to the [Suburb K] property;
46. On or before the Settlement Date the husband pay to the wife by way of bank cheque or as otherwise directed by her in writing a sum equivalent to 70 per cent of the value of the net assets of the parties allowing for all other assets owned by the husband and the wife and retained by each of them respectively.
47. That should the husband within 14 days of the date of these Orders nominate to have the [Suburb K] property sold then the wife do all things necessary and sign all such documents that are required of them to sell the [Suburb K] property on the following terms:
47.1.The [Suburb K] property will be listed as a non-excusive listing agreement for sale by private treaty at a price agreed by the parties and if there is no agreement, the listing price shall be as determined by a valuer nominated by then President of New South Wales Division of the Australia Property Institute at the equal cost to the parties;
47.2.The form of Contract for Sale will be with a licenced real estate agent (“the Agent”) as agreed by the parties, or if there is no agreement, an agent appointed by the President of Real Estate Institute of New South Wales at the equal cost to the parties;
47.3.the [Suburb K] property will be listed for sale with a licensed real estate agent (“the Agent”) as agreed by the parties, or if there is no agreement, an agent appointed by the President of Real Estate Institute of New South Wales at the equal cost to the parties;
47.4.in the event the [Suburb K] property is not sold within 60 days of the date of these Orders, the parties forthwith do all things necessary and sign all such documents that are required to procure the sale of the [Suburb K] property by public auction on the following terms:
47.4.1.on a date to be agreed by the parties and if there is no agreement on a date nominated by the Agent; and
47.4.2.at an agreed reserve price, or if there is no agreement, at a reserve price to be determined by a valuer nominated by the then President of the New South Wales Division of the Australia Property Institute at an equal cost to the parties.
47.5.in the event that the [Suburb K] property is not sold by auction or by private negotiation within fourteen (14) days after the said auction, then the wife so all things necessary and sign all such documents required to procure a second auction upon the same terms and conditions as applied to the first auction;
47.6.in the event that the [Suburb K] property is not sold at or within 14 days of the second auction either party has liberty to apply to the Court for further orders;
47.7.The parties will cooperate in any way with the Agent in relation to the sale, including making the key available, allowing inspection of the [Suburb K] property at all times requested by the Agent, and ensuring that the [Suburb K property] is in a neat and clean condition at the time of inspection by prospective purchasers; and
48. That the proceeds of sale of the [Suburb K] property are to be distributed at settlement as follows:
48.1.In payment of all expenses of and incidental to the sale, including real estate agent commissions, advertising, legal fees and any necessary disbursement;
48.2.In payment of any outstanding rates and taxes including capital gains tax and other outgoings on the property;
48.3.In discharge of the mortgage in favour of ST. GEORGE BANK LIMITED registered against the title to the [Suburb K] property (“St George mortgage”).
48.4.In payment to the wife by way of bank cheque or as otherwise directed her in writing a sum equivalent to 70% of the value of the net assets of the parties allowing for all other assets owned by the husband and the wife and retained by each of them respectively;
48.5.The balance to be received by the husband
Household contents and furniture
49. As from the date of these Orders the husband and wife will be entitled to 50% of the household contents that existed as at the date of separation:
49.1.Within 7 days of these orders the husband is to provide a list of the items he wishes to retain and the list is also to include all items taken since separation, with a notation identifying the items already taken;
49.2.Within 14 days the wife is to prepare two list of equal value of the items within to be retained by both the husband and wife, with the husband to select either list within a further 7 days.
Catch All
50. That unless otherwise provided for by these Orders and save for the purpose of enforcing any monies due under these Orders, the husband is entitled to be the sole legal and beneficial owner of all other property in his possession and/or control, including but not limited to
50.1.The household contents and personal items in the husband’s possession;
50.2.Any money standing to the credit of the husband in his sole name in any bank, saving or other account;
50.3.The husband’s superannuation entitlements;
50.4.The jewellery in the husband’s possession;
50.5.Motor vehicle
Free from any interest of the wife and the husband shall indemnify the wife in relation to any and all debts attached thereto.
51. That unless otherwise provided for by these Orders and save for the purpose of enforcing any monies due under these Orders, the wife is entitled to be the sole legal and beneficial owner of all other property in her possession and/or control, including but not limited to:
51.1.The household contents and personal items in her possession;
51.2.Any money standing to the credit of the wife in her sole name in any bank, saving or other account;
51.3.The jewellery in the wife’s possession;
51.4.The wife’s superannuation entitlements;
51.5.Motor vehicle
Free from any interest of the husband and the wife shall indemnify the husband in relation to any and all debts attached thereto.
Liberty to Apply
52. The parties shall have liberty to apply in relation to the implementation of these Orders.
53. The parties shall do all acts and things and sign all documents necessary to give effect to these Orders.
S106A Provision
54. That in the event that either party refuses to execute a Deed or instrument necessary to give effect to these orders, the Registrar or Deputy Registrar of the Family Court of Australia is appointed pursuant to 106A to execute all Deeds and documents in the name of the parties and do all acts and things necessary to give validity and operation to the Deed or instrument.
55. That the father pay the mother’s costs of and incidental to these proceedings.
The father’s application
The orders sought by the father were as follows:
PARENTING
1. That the parties have equal shared parental responsibility for the children, [B] born … 2008, [C] born … 2010 and D born … 2013 ("the children").
2. That the children live with the Father at all times other than when they are spending time with the Mother in accordance with these Orders.
3. That the children spend time with the Mother during each school term as follows:
3.1.During week 1 from the conclusion of school or day-care on Friday, or 3pm in the event of a non-school day, to the commencement of school or day-care on Monday (or Tuesday if Monday is not a school day) and each alternate week thereafter with such time to commence/resume on the second Friday of each school term; and
3.2.During week 2 from the conclusion school or day-care on Monday, or 3pm in the event of a non-school day, to the commencement of school or day-care on Tuesday, or 9am in the event of a non-school day, and each alternate week thereafter with such time to commence/resume on the third Monday of each school term.
4. That the children live with the Mother for one half of each school holiday period as agreed between the parties in writing and failing agreement as follows:
4.1.For the first half of each of the term 1, 2 and 3 school holidays and such time shall commence at the conclusion of school on the last day of the school term and conclude at 7pm on the Saturday which falls at the mid-point of each holiday period;
4.2.During each of the 2017 and 2018 term 4 school holidays for each alternate week for a period of seven consecutive nights and such time shall commence at the conclusion of school on the last day of the school term until 4pm on the day of the final day of the school holiday period with changeover to occur at 4pm on the first and last day of each period the child are to spend time with the Mother; and
4.3.Commencing in 2019 and each year thereafter for one half of the NSW Gazetted term 4 school holiday period as follows:
4.3.1.In 2019 and each alternate year thereafter for the first half of the school holiday period with such time to commence from the conclusion of school on the last day of the school term until 4pm on the day which falls at the midpoint of the school holiday period; and
4.3.2.In 2020 and each alternate year thereafter for the second half of the school holiday period with such time to commence at 9am on the day which falls at the midpoint of the school holiday period and conclude at 4pm on the Sunday immediately preceding the commencement of Term 1 school term.
5. That in the event the children are not already spending time with the Father pursuant to these Orders the children shall spend time with the Father as follows, and the Mother’s time shall be suspended:
5.1.on each of the children's birthdays from the conclusion of school to 7pm if a school day or from 2pm to 8pm if a non-school day;
5.2.for Easter long weekend in 2017 and each alternate year thereafter from 8am on Easter Friday to 7pm on Easter Monday;
5.3.on Father's Day weekend from the conclusion of school on Friday until the commencement of school on Monday;
5.4.on the Father's birthday from the conclusion of school to 7pm if a school day or from 8am to 7pm if a non-school day;
5.5.In 2018 and each alternate year thereafter from 12 noon on 24 December to 9am on 26 December; and
5.6.Any other time as agreed between the parties in writing.
6. That in the event the children are not already spending time with the Mother pursuant to these Orders the children shall spend time with the Mother as follows:
6.1.on each of the children's birthdays from the conclusion of school to 7pm if a school day or from 2pm to 7pm if a non-school day;
6.2.for Easter long weekend in 2018 and each alternate year thereafter from 8am on Easter Friday to 7pm on Easter Monday;
6.3.on Mother’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday;
6.4.on the Mother’s birthday from the conclusion of school to 7pm if a school day or from 8am to 7pm if a non-school day;
6.5.In 2017 and each alternate year thereafter from 12noon on 24 December to 9am on 26 December; and
6.6.Any other time as agreed between the parties in writing.
7. That for the purpose of any changeover which does not occur at the children's school the Father shall collect the children from the Mother's residence at the commencement of the Father's time with the children and the Mother shall collect the children from the Father's residence at the conclusion of the Father's time with the children.
8. Each party shall:
8.1.Authorise and direct the school attended by the children to release to the other party all information relating to their welfare and progress at the school, details of upcoming functions or activities and any other information provided by the school to parents of children attending the school; and
8.2.Be at liberty to attend all concerts, award ceremonies or any other end of year performances in respect of any extra-curricular activity in which a child participates and school functions provided that the parent with whom the children are not living with at the time shall not interfere with or prevent the children or any of them from remaining with the other parent.
8.3.Notify each other as soon as possible of any serious injury or illness suffered by a child while in the care of that parent, together with the names and contact details of any treating doctor and any hospital or medical centre to which the child has been taken.
8.4.Keep each other informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide to the other parent with information that they are lawfully able to provide about the children.
8.5.Promptly notify the other parent of any change to that party’s residential address, telephone number and email address.
9. The parties are hereby restrained from:
9.1.Discussing these proceedings with or in the presence or hearing of the children (and shall use their best endeavours to ensure that no other person discusses these proceedings with or in the presence or hearing of the children);
9.2.Discussing the allegations made to JIRT and/or any other Government department or agency with or in the presence or hearing of the children;
9.3.Denigrating the other parent to or in the presence or hearing of the children (and shall use their best endeavours to ensure that no other person denigrates the other parent to or in the presence or hearing of the children);
9.4.Changing the schools attended by the children without the prior written consent of the other party; and
9.5.Do all acts and things necessary to cause [D] to be enrolled in and attend [E] School at [Suburb F].
10. That pursuant to Section 65Y(2) of the Family Law Act 1975 ("the Act") each party is permitted to travel overseas with the children during periods the children are living with that party pursuant to these orders or at such other times as the parties agree upon in writing.
11. That for the purpose of the preceding order the party proposing such holiday shall give the other party no less than 35 days' written notice (“the Notice”) of the intention to travel and shall provide to the other party:
11.1.The particulars of such holiday including a copy of the travel itinerary, countries to be visited and the periods of such proposed travel;
11.2.Copies of the confirmed return airline tickets and details of flights and accommodation.
12. That subject to and upon the Mother's compliance with the preceding order the Father shall provide the children's passports to the Mother not less than five (5) days prior to the children travelling overseas with the Mother and within five (5) days of the children's return to Australia the Mother shall return the children's passports to the Father.
13. The Father shall retain custody and control of the children's passports at all other times.
14. The parties shall do all acts and things and sign all documents necessary as and when required to ensure the children maintain a valid Australian passport at all times the costs of which shall be borne equally between the parties.
PROPERTY
15. That within 28 days of the date of these orders the Wife do all acts and things and sign all documents necessary to transfer to the Husband all her right title and interest in and to the property situate at and known as [H Street, Suburb F] in the State of New South Wales being the whole of the land in folio identifier … (“the former matrimonial home”).
16. That simultaneously with the preceding order the Husband shall do all acts and things and sign all documents necessary to discharge the existing registered mortgage number … with Commonwealth Bank of Australia secured over the former matrimonial home.
17. That within 28 days of the date of these orders the Wife do all acts and things and sign all documents necessary to transfer to the Husband all her right title and interest in and to the property situate at and known as [2 H Street, Suburb F] in the State of New South Wales being the whole of the land in folio identifier … (“[2 H Street]”).
18. That simultaneously with the preceding order the Husband shall do all acts and things and sign all documents necessary to discharge the existing registered mortgage number … with Commonwealth Bank of Australia secured over [2 H Street].
19. That within 28 days of the date of these orders the Wife shall pay to the husband by way of bank cheque or as otherwise directed by him in writing a sum equivalent to 60% of the value of the net assets of the parties allowing for all other assets owned by the Husband and the Wife and retained by each of them respectively pursuant to these Orders.
20. That in addition to the payment referred to in the preceding paragraph, the Wife shall also pay to the Husband one half of the costs paid by the Husband on behalf of the parties to Dr [X] and [Z Valuers] Pty Ltd (the single expert appointed to value the parties’ real estate) and such payment shall be made by the Wife to the Husband simultaneously with the payment referred to in the preceding Order.
21. That in the event the Wife fails to comply with Orders 19 and 20 herein then within 28 days of the expiration of the time period required in Orders 19 and 20 the Wife shall do all acts and things and sign all documents necessary to list the property situate at and known as [J Street, Suburb K] in the State of New South Wales (“the [Suburb K] property”) being the whole of the land in folio identifier … for sale by Public Auction for the best price possible as follows:
21.1.Appoint the selling agent and auctioneer for the sale of the [Suburb K] property as agreed between the parties in writing and failing agreement within seven (7) days, list the property with such agent and auctioneer nominated by the President of the New South Wales Division of the Australian Property Institute (“the Agent”), the costs of and incidental to such appointment to be borne by the parties in equal proportions as and when they fall due for payment;
21.2.Appoint a conveyancing solicitor as agreed between the parties, or failing agreement a solicitor appointed by the President of the Law Society for the time being, to prepare a contract for the sale of the land for the [Suburb K] property, the costs of and incidental to such appointment to be borne by the parties in equal proportions as and when they fall due for payment;
21.3.Determine the reserve price for the [Suburb K] property at such price as the parties shall agree in writing, or where no agreement is reached, as recommended by the selling agent retained pursuant to Order 21.1 hereof;
21.4.Execute all documents requested by the selling agent and the conveyancing solicitor for the sale of the [Suburb K] property;
21.5.Execute all other documents necessary to complete the sale of the [Suburb K] property;
21.6.Cooperate in every way with the selling agent(s) as and when required including but without limiting the generality of the foregoing:
21.6.1.Pay to the real estate agent(s) in equal proportions the marketing costs of the sale of the [Suburb K] property;
21.6.2.Make a key available to the agent;
21.6.3.Allow inspection of the [Suburb K] property at all reasonable times requested by the selling agent;
21.6.4.Doing or saying nothing to hinder or prevent a sale from being effected at the best possible price.
21.6.5.Doing all things necessary to prepare the [Suburb K] property for sale including cleaning the internal and external areas [Suburb K] property and carrying out any necessary repairs to the [Suburb K] property; and
21.6.6.Maintain the [Suburb K] property including the gardens and surrounding landscape in a clean and tidy condition at all times.
22. On settlement of the sale of the [Suburb K] property the proceeds of the said sale be distributed in the following manner and priority:
22.1.In payment of selling agent's commission, advertising expenses and auction expenses of the sale;
22.2.In payment of legal costs and disbursements incurred on the sale;
22.3.In payment of all council and water rates and land tax applicable to the property (if any);
22.4.In repayment of the amount required to discharge the registered mortgage;
22.5.In payment to the Husband pursuant to Orders 19 and 20 herein together with interest pursuant to the Family Law Rules accruing from the expiration of the time period required in Orders 19 and 20 until the date of payment in accordance with this Order; and
22.6.To the Wife the balance then remaining.
23. That within 14 days of the date of these orders the parties do all acts and things and sign all documents necessary so as to cause all bank accounts held in the joint names of the parties to be closed and the balances remaining therein be divided equally between them.
24. That within 7 days of the date of these orders the parties shall cause the furnishings and effects presently situate in the property at the former matrimonial home to be divided equally by agreement between the parties and failing agreement as follows:
24.1.within a further 7 days the Husband shall prepare 2 lists comprising furniture, furnishings and effects situate in the property, each list to comprise in total approximately 50% of the value of those furniture, furnishings and effects and that list shall be delivered to the Wife within that further 7 days;
24.2.the Wife shall then, within a further 7 days select one of those lists and inform the Husband of her decision; and
24.3.within a further 7 days each party shall then do all things necessary to facilitate the physical distribution and division of the furniture, furnishings and effects to be distributed between the parties as per the selection of the list referred to above and each party shall bear their own costs in relation to this order.
25. That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:
25.1.All personal property now in his/her respective possession or control.
25.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
25.3.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
26. Except as specifically provided for by any paragraph comprising these Orders to the contrary:
26.1.The husband hereby indemnifies the wife from, and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband;
26.2.The wife hereby indemnifies the husband from, and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
27. Except as specifically provided for by any paragraph comprising these Orders to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
28. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
29. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
30. That the Wife pay the Husband’s costs of and incidental to these proceedings.
The Independent Children’s Lawyer’s proposed orders
The minute of order proposed by the Independent Children’s Lawyer (“ICL”) was tendered as Exhibit FF in the proceedings and was as follows:
1. That the mother and father shall have equal shared parental responsibility for the children [B] born … 2008, [C] born … 2010 and [D] born … 2013
2. That the children shall live with the mother
3. That the children shall spend time with the father as follows:
a)Until Week 1 of Term 3 2017;
i) During school terms”
(1)In Week 1 from after school Friday until before school Monday
(2)In Week 2 from after school Thursday until before school Friday
ii) During the school holiday period, from 10.00am on the first Monday until 5.00pm Friday
iii) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father
iv) At all time as agreed between the parties.
b)From Week 1 Term 3 2017 until Week 1 Term 3 2018:
i) During school terms:
(1)In Week 1 from after school Friday until before school Monday
(2)In Week 2 from after school Thursday until before school Friday
ii) During the mid year school holiday periods, from 10.00am on the first Sunday until 5.00pm Friday
iii) During the Christmas school holiday period:
(1)From 9.00am Christmas Eve until 12 noon Christmas Day
(2)From 10.00am on the first Sunday until 5.00pm Friday and each alternate week thereafter
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father
v) At all other time as agreed between the parties.
c)From Week 1 Term 3 2018 until Week 1 Term 1 2019
i) During school terms:
(1)In Week 1 from after school Friday until before school Monday
(2)In Week 2 from after school Thursday until before school Friday
ii) During the mid year school holiday periods, from 10.00am on the first Saturday until 5.00pm Friday
iii) During the Christmas school holiday period:
(a) From 12 noon Christmas Day until 7.00pm Boxing Day
(b) From 10.00am on the first Saturday until 5.00pm the following Saturday and each alternate week thereafter
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father
v) At all other times as agreed between the parties
d)From Week 1 Term 1 2019
i) During school terms:
(1)In week 1 from after school Thursday until before school Monday
(2)In Week 2 from after school Thursday until before school Friday
ii) During the mid-year school holiday periods, from 10.00am on the first Saturday until 5.00pm the following Saturday
iii) During the Christmas school holiday period:
(1)From 9.00am Christmas Eve until 12 noon Christmas Day in 2019 and each alternate year thereafter
(2)From 12 noon Christmas Day until 7.00pm Boxing Day in 2020 and each alternate year thereafter
(3)From 10.00am on the first Saturday until 5.00pm the following Saturday and each alternate week thereafter
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father
v) At all other times as agreed between the parties.
4. That for the purpose of determining the commencement of time at the beginning of each school term, Week 1 shall always be the first week of each school term
5. That for the purpose of all school changeovers for [D] until she commences school in 2019:
a)If she is attending child care/ pre school, the father shall collect and deliver [D] to the child care/ pre school
b)If she is not attending child care/ pre school, the father shall collect [D] from the mother’s residence after delivering the children to school at the commencement of the time and shall return [D] to the mother’s residence after delivering the children to school at the end of the time.
6. That for the purpose of changeover on school holidays:
a)The father shall collect the children from the mother’s residence at the commencement of the time
b)The mother shall collect the children from the father’s residence at the end of the time
c)The parents shall ensure that no other adults attend changeover unless in the case of an emergency.
7. That the mother and father are restrained from changing the enrolment of [B] and [C] from [E] School, [Suburb F], until they attend High School, without the written consent of the other parent or Court Order.
8. That the mother and father shall do all acts and things and sign all documents to enrol the child [D] at [E] School, [Suburb F] to commence in 2019.
9. That the mother and father shall contact a family therapist as nominated by the ICL within seven (7) days for the purpose of attending family therapy to assist with the communication between the parties and for this purpose:
a)The ICL shall have leave to provide the family therapist with a copy of Dr [X’s] Expert Report
b)The parties shall attend all appointments as nominated by the family therapist.
c)The parties shall facilitate the children attending all appointments as nominated by the family therapist.
d)The parties shall be solely responsible for the cost of any individual appointments that they attend
e)The parties shall be jointly responsible for the cost of any appointments attended by the children.
10. That the father shall notify the mother at least four weeks prior to any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
11. That the mother shall notify the father at least four weeks prior of any intention to changer her residential address, including details of the propose change of residential address and details as to who will be living in the new residential address.
12. That each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
13. That each parent shall make arrangements at the children’s schools to ensure that they can obtain the following information and documents at their own cost:
a)A copy of all school reports for the children.
b)Notification for school activities that they may decide to attend.
c)Notification of parent/teacher nights and the school is informed that it is both parent’s desire to attend such events.
d)In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
14. That in the event of either child suffering a medical emergency requiring medical attention while in the care of either parent:
a)The other parent is to be notified as soon as practicable.
b)That the other parent is to be provided with full details of the practitioner or medical facility upon which the child attends as soon as practicable.
c)That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.
15. That the father pay an amount of $11,900.15 to the Legal Aid Commission within 28 days in relation to the costs of the ICL in these proceedings.
16. That the mother pay an amount of $11,900.15 to the Legal Aid Commission within 28 days in relation to the costs of the ICL in these proceedings.
17. That the children’s time with the father shall be suspended as follows:
a)From 9.00 am Mother’s Day until before school Monday if the children were to be spending time with their father.
b)From 9.00am Christmas Eve until 12 noon Christmas Day in 2020 and each alternate year thereafter.
c)From 12 noon Christmas Day until 7.00pm Boxing Day in 2019 and each alternate year thereafter.
I have previously discussed the wife’s role as the primary homemaker and the party who has primarily been responsible for the care of the children. The fact that the wife has focused upon those matters has enabled the husband to devote attention to his career and it is of note that he has been promoted in his employment.
It is reasonable to infer that the period of time that the wife has had out of the workforce in her capacity as the primary carer of the children has impacted upon her career progression.
Counsel for the wife notes that husband’s superannuation is approximately $56 000 higher than the wife and I accept that this is a reflection of the husband’s greater earnings.
I accept that the husband has a greater earning capacity than the wife and this will include enabling the husband to make the greater contributions to his superannuation with a view to sustaining himself during his retirement.
Duration of the marriage
Section 75(2)(k) requires the Court to consider the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
The parties were married in 2006 and separated in September 2015. As noted, particularly in the period subsequent to 2010, the wife has focused upon her responsibilities as a homemaker and as the carer of the parties’ children. The wife has maintained currency of workplace experience as result of several part-time positions that she has held.
It is reasonable to assume, however, that the amount of time that the wife has spent away from the full-time workforce, during the course of the parties’ marriage, has impacted upon her earning capacity.
Role as a parent
Section 75(2)(l) requires the Court to consider the need to protect a party who wishes to continue that party’s role as a parent.
As noted, particularly since the birth of C, the wife has focused upon fulfilling her responsibilities as the primary carer of the parties’ children.
The parties’ children are young and, particularly during their early years at school, it is reasonable for the wife to be desirous of continuing to focus upon giving greater attention to their needs rather than to returning to the full-time workforce.
It can nonetheless be expected that the wife will continue to undertake at least part-time work consistent with her parental responsibilities during this period.
Financial circumstances of a new partner
Section 75(2)(m) requires the Court to consider if either party is cohabiting with another person, the financial circumstances relating to the cohabitation.
This is not a relevant consideration.
Terms of an order to adjust property
Section 75(2)(n) requires the Court to consider the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party.
As noted, having regard to the considerations set out in section 79(4) I intend to make any adjustment in favour of the wife of 5 per cent. It is appropriate to have regard to that adjustment in considering whether there should be any additional adjustment pursuant to section 75(2).
Declaration under Part VIIIAB
Section 75(2)(naa) requires the Court to consider 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).
This consideration is not relevant.
Child support
Section 75(2)(na) requires the Court to consider (na) any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
I have previously addressed this matter and it will not be further considered in terms of a section 75(2) consideration.
Any other fact or circumstance
Section 75(2)(o) requires the Court to consider any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
As noted, each party has been critical of the other in respect to certain financial contributions and expenditures. That criticism has, in my view, been overstated. The wife’s criticism of items of expenditure that the husband made from the inheritance he received from his great aunt was, with respect, unjustified. It was, in my view, entirely reasonable for the husband to utilise a portion of the inheritance which he received to pay funeral expenses and medical expenses in respect to his late aunt and it was entirely reasonable that he utilised a portion of the amount to pay a veterinary bill in respect to treatment provided to his late aunt’s dog.
Equally, the husband’s criticism of the amounts withdrawn by the wife from her St George savings account is, with respect, unjustified. In particular at paragraphs 367, 368 and 369 of his affidavit, the father stated that he was unaware as to why the wife withdraw certain funds from her St George bank account or how those funds were applied. The three amounts in question were;
·An amount of $27 000 withdrawn on 7 October 2009.
·An amount of $10 000 withdrawn on 30 November 2009.
·An amount of $16 906.20 withdrawn on 3 December 2009.
While the husband stated that he did not know why those funds were withdrawn or how they were applied the father acknowledged that the wife had been overpaid 6 months maternity leave by her employer Company P.[150] The husband also acknowledged that the wife has repaid that overpayment to Company P.[151] The husband further acknowledge that, during the time that the wife was on maternity leave from her employment with Company P, that they agreed she would repay the overpayment upon her return to work, which was to be approximately one year after B was born.
[150] Transcript of proceedings dated 1 February 2017 at page 43.
[151] Ibid at page 44.
As noted in the above chronology, B was born in 2008. In a letter dated 9 October 2009 Company P noted receipt of the amount of $27 000 from the wife in respect to the overpayment. The letter further noted that an amount of $18 345.28 remained outstanding but the company would agree to the wife repaying that amount by way of instalments of $352.79 per fortnight. The wife’s withdrawal of $16 906.20 on 3 December 2009 is entirely consistent with the wife’s evidence that she elected to pay the balance of the debt as a lump sum in instead of by way of fortnightly deductions.[152]
[152] Transcript of proceedings dated 3 February 2017 at pages 23-24.
The wife explained that the amount of $10 000 withdrawn from her St George savings account on 13 November 2009 was paid into the parties’ joint mortgage account.[153] In the absence of evidence to the contrary I accept that payment was made.
[153] Ibid at page 24.
More generally, save in respect to monies that have been utilised to pay legal fees, neither party has produced evidence that satisfies me the other has engaged in expenditure that could be categorised as wasteful or self-indulgent or which would otherwise constitute a premature distribution of matrimonial property in terms of the authority of Kowaliw and Kowaliw.[154]
[154](1981) FLC 91-092.
The wife acknowledged extending the mortgage on the Suburb K property by approximately $11 000 in order to obtain funds which were applied to legal fees. The wife further acknowledged utilising funds that were in bank accounts in the name of the three children which were in the vicinity of $8 000 to $10 000 which were also applied towards the wife’s legal fees.[155] I have had regard to those amounts in determining that the wife has obtained a personal benefit to the extent of approximately $21 000.
[155] Transcript of proceedings dated 3 February 2017 at page 25.
Binding financial agreement
Section 75(2)(p) requires the Court to consider the terms of any financial agreement that is binding on the parties to the marriage.
This consideration is not relevant.
Part VIIIAB financial agreement
Section 75(2)(q) requires the Court to consider the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This consideration is not relevant.
Evaluation of section 75(2) considerations
I have had regard to all of those s 75(2) considerations that I have referred to in determining whether there should be a further adjustment of the distribution of the parties’ property.
I have taken into consideration the fact that the wife has obtained a personal benefit from the use of matrimonial property to the extent of approximately $21 000 which was paid towards the wife’s legal fees.
Having noted that fact, I am nonetheless of the opinion that an adjustment in favour of the wife is appropriate having regard to the following matters.
The wife’s earning capacity has been impacted by the amount of time she has spent away from full-time employment. As a related matter, it is reasonable to assume that the amount of time the wife has spent away from the full-time workforce has reduced the amount that she, or, more specifically, her employers have contributed to the wife’s superannuation entitlement. In that context it is of note that the wife’s superannuation entitlement is approximately two thirds that of the husband’s.
The wife will also continue to be the primary carer of the children until they reach 18 years of age. This will impact upon the wife’s ability to return to the full-time workforce at least, in the foreseeable future while the children are in their early years at school.
I am satisfied, however, that once the mother returns to the workforce, her qualifications and experience are such that she will be able to earn a comfortable income.
The husband, has continued to progress in his career and there is every reason to believe that he will continue to enjoy a comfortable income in the future.
In assessing the mother’s future needs, it is also necessary to have regard to the fact that, as I will be making an order for the wife to retain the former matrimonial home, she will be entitled to utilise the granny flat to earn additional income. The current rental income received from the granny flat is approximately $350 per week.
Having regard to the section 75(2) matters to which I have referred and, most relevantly, the mother’s ongoing responsibility as the primary carer of the parties’ children, I am of the view that the wife is entitled to it additional adjustment of 7.5 per cent in her favour.
Orders and Overall Evaluation
Accordingly, I have determined that the wife is entitled to an adjustment in her favour of 12.5 per cent.
Neither party sought a superannuation splitting order and neither party submitted that superannuation should be treated differently from the parties’ matrimonial property. I therefore intend to include the value of each party’s superannuation in noting the total property pool, with superannuation, to be $2 675 907.
The wife sought orders for the husband to transfer, to her, his interests in both the former matrimonial home at H Street, Suburb F as well as his interest in the rental property at 2 H Street, Suburb F.
The wife proposed that she would, in return, transfer her interest in the Suburb K property to the husband and, in the absence of the husband electing to accept that transfer, the property be sold.
The husband, on the other hand, proposed that the wife transfer, to him, her interest in both the former matrimonial home and 2 H Street, Suburb F and, subject to the wife paying a specified amount to the husband, that she retain the Suburb K property. In the absence of such compliance, the husband proposed that the Suburb K property be sold.
The equity in the three properties owned by the parties is as follows:
·H Street Suburb F – $818 226;
·2 H Street Suburb F – $618 032; and
·J Street, Suburb K – $933 439.
At a superficial level, the orders proposed by the wife would result in her receiving the equity in both the H Street properties totalling $1 436 258, which is less than the value of 62.5 per cent of the total agreed property pool. However, it would also leave the wife with an ongoing obligation to pay 50 per cent of the parties’ liabilities which include the mortgages on the three properties. In light of the fact that the wife is currently unemployed and her earning capacity has been affected by the fact that she is the primary carer of the parties’ three children, that obligation would, in my opinion, be unsustainable.
If an order was made for the wife to retain both the former matrimonial home and the Suburb K property, she would receive equity in the amount of $1 751 665. This exceeds her entitlement by $79 223.12. She would therefore be obliged to make an additional payment to the husband as well as meeting 50 per cent of the parties’ liabilities as discussed above. This would also be unsustainable.
Having regard to the matters that I have referred to in the parenting proceedings, I am of the view that, at least in the short term, it is in the interests of the children for them to continue to reside at the former matrimonial home with the wife. Accordingly, it is appropriate for property orders to result in the title of that property being transferred to the wife.
As noted, the husband proposed orders that resulted in the title of both of the H Street properties being transferred to him. The husband did not propose, as an alternative, to the former matrimonial home being transferred to him, that the Suburb K property be substituted in its place.
In those circumstances, I do not propose making an order for the Suburb K property to be transferred to the husband. Instead I will make an order for the wife to transfer, to the husband, her interest in the property at 2 H Street.
In making such an order I recognise that this would result in the parties retaining ownership of adjacent properties in circumstances where there has been substantial conflict between them. This has been detailed above in respect to the parenting proceedings. I note, however, that husband currently resides at his parents place and 2 H Street is currently being rented. Accordingly, it is not to be assumed that the parties will be residing at the adjacent properties.
If the prospect of that occurring in the future causes concern to either of the parties they are, of course, at liberty to either sell or lease their property and move to another location.
Accordingly, the orders that I propose making are for the husband to transfer his interest in the former matrimonial home to the wife and for the wife to transfer her interest in the property at 2 H Street to the husband.
I further propose making a separate order that the Suburb K property be sold and, after appropriate distributions, the remaining net proceeds be divided in the proportion of 62.5 per cent in favour of the wife and 37.5 per cent in favour of the husband.
It is therefore necessary to consider the parties’ entitlements aside from the return which they will receive from the sale of the Suburb K property.
Calculations of the parties’ entitlements excluding the Suburb K Property
Taking the value of the equity in the Suburb K property out of the equation, the wife is entitled to receive 62.5 per cent of $1 750 374. This amount is the agreed total pool with superannuation of $2 675 907 less the equity in the Suburb K property, which is $925 533. Aside from the wife’s interest in the net proceeds of the Suburb K property, the wife is therefore entitled to a total amount of $1 093 983.75.
Leaving aside the wife’s interest in the Suburb K property, the total value of the property in her name is $944 865.50, which includes:
·Equity in the former matrimonial home – $818 226;
·Superannuation – $106 444;
·St George account ending …89 – $370;
·Japanese motor vehicle – $13 700;
·Jewellery – $5 000;
·50 per cent interest in account ending in 913 – $1 089.50; and
·50 per cent interest in account ending in 514 – $36.
Total $944 865.50.
The wife therefore falls short of her entitlement of $1 093 983.75 by $149 118.25. The wife is therefore entitled to an additional distribution of $149 118.25 from the sale of the proceeds of the Suburb K property, after discharging the mortgage, paying outstanding land tax and other related costs associated with the sale. The husband on the other hand is entitled to receive 37.5 per cent of the amount of $1 750 374. Aside from the husband’s interest in the net proceeds of the Suburb K property, the husband is therefore entitled to a total amount of $656 390.25.
The husband would retain the following;
·Equity in the property at 2 H Street – $618 032;
·Superannuation – $162 621;
·50 per cent interest in account ending 913 – $1 089.50;
·CBE account ending 567 – $330;
·Utility motor vehicle – $23 400;
·CBA joint account ending 514 – $36.
Total $805 508.50.
The husband therefore exceeds his entitlement of $656 390.25 by $149 118.25 and the wife is entitled this amount as discussed above.
In addition the husband will receive 37.5 per cent of the net proceeds of the Suburb K property after the adjustments that I will set out below.
However, it is also necessary to equalise the parties’ liabilities. This can easily be done in respect to the Suburb K property by requiring the outstanding mortgage to be discharged and land tax on the property to be paid prior to calculating the net amount to be distributed to the parties.
It is also relatively straight-forward to equalise the parties’ liabilities in respect to the two Suburb F properties by providing for an amount, equivalent to the difference between the two mortgages, to be paid from the gross sale price obtained in respect to the Suburb K property.
PROPERTY ORDERS
The property orders that I propose making are, by way of summary, as follows.
The husband to transfer his interest in the former matrimonial home at H Street to the wife.
The wife to transfer her interest in the property at 2 H Street to the husband.
The property at Suburb K is to be sold.
From the gross sale price obtained in respect to the Suburb K property the following amounts will be paid:
a)The costs of sale;
b)Outstanding land tax in the amount of $7 906;
c)The amount necessary to discharge the St George Bank mortgage in respect to the Suburb K property;
d)The amount necessary to reduce the Commonwealth Bank mortgage on the property at 2 H Street Suburb F to an amount equivalent to the mortgage on the property at H Street Suburb F; and
e)A payment of $149 118.25 to the wife.
The wife shall then be entitled to a distribution from the remaining net proceeds equivalent to 62.5 per cent and the husband shall be entitled to a distribution of 37.5 per cent.
The remaining property orders that I make will be machinery orders to achieve the above and to facilitate the division of the remaining property between the parties and to confirm their ownership of that property as well as their responsibility for their liabilities.
Receipt of the respective amounts provided for in these orders, should, in the case of the wife, enable her to discharge the mortgage on the former matrimonial home, if she so chooses, or otherwise reduce it to a manageable level. This will provide some stability for her and the children and enable them to enjoy a comfortable standard of living.
With a reduced mortgage commitment the wife would also be in a position to apply more of the income that she earns in the future towards her superannuation in order to provide for her retirement.
The husband, on the other hand, will have a mortgage in respect to the property at 2 H Street that is equivalent to the wife’s. Whether he chooses to apply any or all of the net proceeds which he receives from the sale of the Suburb K property towards the reduction in the mortgage of for some other purpose will be a matter for him.
I am satisfied that, in all the circumstances, the husband will also be in a position where he can maintain a comfortable standard of living for himself and the parties’ children. He will also be in a position where he will continue to receive a relatively comfortable income and from that income he will be in a position to supplement his superannuation entitlement to provide for his future.
I am therefore satisfied that the orders which I propose to make result in a just and equitable adjustment of the parties’ interest in the matrimonial property.
Costs of the Independent Children’s Lawyer
The ICL has been of great assistance to the Court in this matter. The Court has substantially adopted the recommendations of the ICL.
Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. However, this has no application to the ICL, who is not a party in the proceedings.
Subject to the statutory provisions set out below, section 117 empowers the Court to make orders for or against the ICL and such order as to costs of the ICL in such proportions as the Court considers just.[156]
[156] De Roma & De Roma [2013] FamCA 566.
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
In this matter neither party has a grant of legal aid. I note that each party will obtain a lump sum as a result of the final property orders that I propose to make. I am not satisfied that either party would suffer financial hardship as a result of an order that they equally share in the costs of the ICL.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The matters relevant to determining what order, if any, should be made for costs are set out in s 117(2A). They are:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Accordingly, the ICL should be presumed to be unfunded and, in those circumstances, the Court is generally inclined to order the parties’ to contribute to the Independent Children's Lawyer’s costs.[157]
[157] Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566
Nevertheless, the considerations set out in section 117(2A) must be taken into account in deciding whether or not to order a party to pay the costs of another.[158] However, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made.[159]
[158] See In the marriage of I & I (No. 2) (1995) FLC 92-625.
[159] Fitzgerald(aschild representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at 130.
In this matter I have had regard to the considerations set out in section 117(2A). Those considerations that I regard as being of greatest relevance are set out in sections 117(2A)(c) and 117(2A)(g). In terms of s 117(2A)(g), I am satisfied that the approach of the ICL was consistently considered and balanced. This was particularly important in this matter where, in terms of section 117(2A)(c), the parties generally adopted a confrontational approach.
There is no valid reason why the parties should not share equally in meeting the costs of the ICL.
I certify that the preceding five hundred and thirty-one (531) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 22 August 2017.
Associate:
Date: 22 August 2017
- AGLC
- Bowers and Bowers [2017] FamCA 627
- Case
- [2017] FamCA 627
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of parental responsibility, including whether it should be equal shared responsibility. It also needed to establish the primary residence of the children, the detailed schedule for the children's time with the father, and provisions for school enrolment and communication between parents and children. Further issues included arrangements for changeovers, notification of residential address changes, and the apportionment of costs for the Independent Children's Lawyer.
The court ordered that the mother and father have equal shared parental responsibility for the children. The children were to live with the mother, with a detailed schedule outlining the time they would spend with the father, which was to progressively increase over several years. The orders also stipulated that the children remain enrolled at a specific school, with provisions for the youngest child's enrolment. Both parents were ordered to keep each other informed of residential and contact details and were to facilitate communication with the children. The court also made specific orders regarding the notification of medical emergencies and the sharing of school reports and other school-related information.
Finally, the court ordered that each parent pay an equal amount towards the costs of the Independent Children's Lawyer. Certain periods of the children's time with the father were suspended, specifically around Mother's Day and Christmas, with specific alternating years outlined for the Christmas suspension. Parents were granted liberty to communicate with the children by telephone at all reasonable times.
Orders
Orders of the court
THE COURT ORDERS THAT:
PARENTING
1.
That the mother and father shall have equal shared parental responsibility for the children B born … 2008, C born … 2010 and D born … 2013 (“the children”).
2.
That the children shall live with the mother.
3.
That the children shall spend time with the father as follows:
a) Until Week 1 of Term 3 2017;
i) During school terms:
(1) In Week 1 from after school Friday until before school Monday.
(2) In Week 2 from after school Thursday until before school Friday.
ii) During the school holiday period, from 10.00am on the first Monday until 7.00pm Friday.
iii) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
iv) At all other times as agreed between the parties.
b) From Week 1 Term 3 2017 until Week 1 Term 3 2018:
i) During school terms:
(1) In Week 1 from after school Friday until before school Monday.
(2) In Week 2 from after school Thursday until before school Friday.
ii) During the mid-year school holiday periods, from 10.00am on the first Sunday until 7.00pm Friday.
iii) During the Christmas school holiday period:
(1) From 9.00am Christmas Eve until 12 noon Christmas Day.
(2) From 10.00am on the first Sunday until 5.00pm Friday and each alternate week thereafter.
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
v) At all other time as agreed between the parties.
c) From Week 1 Term 3 2018 until Week 1 Term 1 2019:
i) During school terms:
(1) In Week 1 from after school Friday until before school Monday.
(2) In Week 2 from after school Thursday until before school Friday.
ii) During the mid-year school holiday periods, from 10.00am on the first Saturday until 7.00pm Friday.
iii) During the Christmas school holiday period:
(1) From 12 noon Christmas Day until 7.00pm Boxing Day.
(2) From 10.00am on the first Saturday until 5.00pm the following Saturday and each alternate week thereafter.
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
v) At all other times as agreed between the parties.
d) From Week 1 Term 1 2019:
i) During school terms:
(1) In Week 1 from after school Thursday until before school Monday.
(2) In Week 2 from after school Thursday until before school Friday.
ii) During the mid-year school holiday periods, from 10.00am on the first Saturday until 5.00pm the following Saturday.
iii) During the Christmas school holiday period:
(1) From 9.00am Christmas Eve until 12 noon Christmas Day in 2019 and each alternate year thereafter.
(2) From 12 noon Christmas Day until 7.00pm Boxing Day in 2020 and each alternate year thereafter.
(3) From 10.00am on the first Saturday until 5.00pm the following Saturday and each alternate week thereafter.
iv) On the Father’s Day weekend from 9.00am Father’s Day until before school Monday if the children are not already spending time with the father.
v) At all other times as agreed between the parties.
4.
That for the purpose of determining the commencement of time at the beginning of each school term, Week 1 shall always be the first week of each school term
5.
That for the purpose of all school changeovers for D until she commences school in 2019:
a) If she is attending child care/pre-school, the father shall collect and deliver D to the child care/pre-school; and
b) If she is not attending child care/pre-school, the father shall collect D from the mother’s residence after delivering the children to school at the commencement of the time and shall return D to the mother’s residence after delivering the children to school at the end of the time.
6.
That for the purpose of changeover during school holidays:
a) The father shall collect the children from the mother’s residence at the commencement of the time.
b) The mother shall collect the children from the father’s residence at the end of the time.
c) The parents shall ensure that no other adults attend changeover unless in the case of an emergency.
7.
That the mother and father are restrained from changing the enrolment of B and C from E School, Suburb F, until they attend High School, without the written consent of the other parent or Court Order.
8.
That the mother and father shall do all acts and things and sign all documents to enrol the child D at E School, Suburb F to commence in 2019.
9.
That the father shall notify the mother at least four weeks prior to any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
10. That the mother shall notify the father at least four weeks prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
11. That each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
12. That each parent shall make arrangements at the children’s schools to ensure that they can obtain the following information and documents at their own cost:
a) A copy of all school reports for the children.
b) Notification for school activities that they may decide to attend.
c) Notification of parent/teacher nights and to ensure the school is informed that it is both parent’s desire to attend such events.
d) In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
13. That in the event of any of the children suffering a medical emergency requiring medical attention while in the care of either parent:
a) The other parent is to be notified as soon as practicable.
b) The other parent is to be provided with full details of the practitioner or medical facility upon which the child attends as soon as practicable.
c) The medical practitioner or medical facility is to be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.
14. That the father pay an amount of $11,900.15 to the Legal Aid Commission within 28 days in relation to the costs of the Independent Children’s Lawyer (“ICL”) in these proceedings.
15. That the mother pay an amount of $11,900.15 to the Legal Aid Commission within 28 days in relation to the costs of the ICL in these proceedings.
16. That the children’s time with the father shall be suspended as follows:
a) From 9.00 am Mother’s Day until before school Monday if the children were to be spending time with their father.
b) From 9.00am Christmas Eve until 12 noon Christmas Day in 2020 and each alternate year thereafter.
17. From 12 noon Christmas Day until 7.00pm Boxing Day in 2019 and each alternate year thereafter.
Telephone Communication
18. That both parents be at liberty to communicate with the children by telephone at all reasonable times with the parent, with whom the children are living, to encourage the children to answer the phone call.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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