BRIGHAM & SCHIRMER
[2019] FCCA 92
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
BRIGHAM & SCHIRMER [2019] FCCA 92
Catchwords:
FAMILY LAW – Parenting – discrete parenting issue to be determined – where the mother opposes equal time – no risk of harm – where the children are 14 & 16 years of age – where the mother emphasises the children’s wishes – equal time ordered.FAMILY LAW – Property – where each party seeks orders for a property distribution after the breakdown of their marriage – where the father’s initial contribution assisted the parties in obtaining the former matrimonial home – where parties agree that the former matrimonial home should be sold – where there was a valuation issue in relation to the husband’s interest in a partnership – where the wife received an interim lump sum payment – where the wife asserts that this interim lump sum payment should not be treated as an addback – where final property orders are just and equitable.
Legislation:
Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 75, 79, 80, 81, 117
Cases cited:
A & A the Child Representative (1998) 22 Fam LR 756
In the Marriage of Omacini (2005) 33 Fam LR 134
Browne & Green (1999) 25 Fam LR 482
Bevan & Bevan [2013] FamCAFC 116
Bondelmonte v Bondelmonte [2017] HCA 8
C & C (2005) FLC 93-220
Chapman & Chapman [2014] FamCAFC 91
Chorn and Hopkins [2004] FamCA 633; (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Fane-Thompson v Fane-Thompson (1981) FLC 91-053
Farnell & Farnell (1996) FLC 92-681
Fielding and Nichol [2014] FCWA 77
G & G [2000] FamCA 1075
Giles & Giles & Anor [2018] FCCA 194
Gillard & Gillard [2015] FamCAFC 169
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2006) 36 Fam LR 422
Hearne & Hearne [2015] FamCAFC 178
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Burke (1981) FLC 91-055
In the Marriage of Crapp and Crapp (No.2) [1979] FamCA 17; (1979) 5 Fam LR 47; (1979) FLC 90-615
In the Marriage of Geyl 7 Fam LR 219
In the Marriage of Omacini (2005) 33 Fam LR 134
Jollie & Dysart [2014] FamCAFC 149
JEL & DDF (2001) FLC 93,075
Kowaliw & Kowaliw (1981) FLC 91-092
Kowalski and Kowalski (1993) FLC 92-342
Marker & Marker [1998] FamCA 42
Manolis & Manolis (No.2) [2011] FamCAFC 105
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Pierce & Pierce (1999) FLC 92-844
R & R: Children’s Wishes (2000) FLC 93-000
In the marriage of R (Children’s Wishes) (2002) FLC 93-108
Rockman & Rockman [2014] FCCA 1966
R & C [1993] FamCA 62
S & S [2004] FamCA 201
Stanford & Stanford [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
Townsend & Townsend [1994] FamCA 144
Wardman & Hudson (1978) FLC 90-466
Wells & Wells (1977) FLC 90-285
Winnel & Winnel (1984) FLC 91-580
Applicant: MS BRIGHAM
Respondent: MR SCHIRMER
File Number: SYC 1128 of 2015
Judgment of: Judge Harper
Hearing dates: 16, 17 & 18 July 2018
Date of Last Submission: 18 July 2018
Delivered at: Sydney
Delivered on: 25 January 2019 REPRESENTATION
Counsel for the Applicant: Mr Anderson
Solicitors for the Applicant: Doolan Wagner Family Lawyers
Counsel for the Respondent: Mr Dura
Solicitors for the Respondent: Newnhams Solicitors ORDERS
A.Parenting
THE COURT ORDERS BY CONSENT:
(1)That the parties have equal shared parental responsibility for the long-term care, welfare and development of the children, [X] born … 2002 and [Y] (“[Y]”) born … 2004 (collectively “the children”).
(2)The mother shall have sole responsibility for making decisions of a day-to-day nature for the children when the children are in her care.
(3)The father shall have sole responsibility for making decisions of a day-to-day nature for the children when the children are in his care.
THE COURT ORDERS ON A FINAL BASIS:
(4)That the children shall live with the parties on an equal time arrangement as follows:
(a)During school terms on a week about basis as follows:
(i)Week 1: the Father from after school Monday, or 6pm in the event of a non-school day, to the commencement of school the following Monday, or 6pm in the event of a non-school day, and thereafter each alternate week, commencing from 4 February 2019.
(ii)Week 2: with the Mother after school Monday, or 6pm in the event of a non-school day, to the commencement of school the following Monday, or 6pm in the event of a non-school day, and thereafter each alternate week.
(b)The parties may adjust or vary the arrangements specified in this order at any time by agreement in writing.
(5)That except as otherwise provided by these Orders, on occasions when a changeover does not occur at school the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
School holiday arrangements & special occasions
(6)That notwithstanding any other Order, during the school holiday periods at the end of Terms 1, 2 and 3 and during each such school holiday period the children shall spend time with the parties as agreed between them in writing but failing agreement:
(a)In even numbered years - with the mother for the first half and with the father in the second half; and
(b)In odd numbered years – with the father in the first half and with the mother in the second half.
(7)That notwithstanding any other order, during each Christmas school holiday period the children shall spend time with the parties as agreed between them in writing but failing agreement:
(a)In even numbered years:
(i)With the mother from 5pm on the last day of the school term until 12pm on 24 December;
(ii)With the father from 12pm on 24 December until 5pm on 1 January;
(iii)With the mother from 5pm on 1 January until 5pm on 14 January;
(iv)With the father for the remainder of the Christmas school holiday period; and
(v)For the purpose of changeover, the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
(b)In odd numbered years:
(i)With the father from 5pm on the last day of the school term until 12pm on 24 December;
(ii)With the mother from 12pm on 24 December until 5pm on 1 January;
(iii)With the father from 5pm on 1 January until 5pm on 14 January;
(iv)With the mother for the remainder of the Christmas school holiday period; and
(v)For the purpose of changeover, the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
THE COURT FURTHER ORDERS BY CONSENT
Easter period
(c)in the event that Easter falls outside the school holidays:
(i)in even numbered years – with the father from 5pm on Holy Thursday until 5pm on Easter Monday; and
(ii)in odd numbered years – with the mother from 5pm on Holy Thursday until 5pm on Easter Monday.
(d)in the event that Easter falls inside the school holidays:
(i)In 2019 - with the mother from 5pm on Holy Thursday until 5pm on Easter Monday.
(ii)In 2020 - with the father from 5pm on Holy Thursday until 5pm on Easter Monday.
Birthdays
(e)On each of the children’s birthdays the children shall spend time with the parent that they would not otherwise wake up with for a period of four (4) hours as agreed and failing agreement from 4pm until 8pm.
Interpretation
(8)For the purposes of these orders:
(a)school holiday periods shall commence at 5pm on the last day of school which the children are required by the school to attend for the school term;
(b)school holiday periods shall conclude at 5 pm on the last day of the New South Wales school holiday period;
(c)where there is an odd number of days in the school holidays, the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 12pm on the middle Saturday of the period;
(d)where there is an even number of days in the school holidays, the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 7pm on the middle Saturday of the period;
Communication
(9)That the parties permit and provide all necessary assistance to enable the children to communicate with the party not caring for the children as follows:
(a)Mobile telephone calls between the children and the father or the children and the mother regularly including, unless otherwise agreed, once per day between 7:30 pm and 8:00 pm or at another convenient time as agreed between the parties;
(b)Emails from the father to the mother’s email address or as she may otherwise direct in writing; and
(c)Emails from the mother to the father’s email address or as he may otherwise direct in writing.
(10)Either party may communicate with the children by telephone, email, skype, letter, card, text and/or gift at all reasonable times and with reasonable frequency and to include, but not be limited to, telephone communication on either party’s birthday, the children’s birthdays, Christmas Day or as may otherwise be agreed between the parties.
(11)Neither party is to denigrate the other party, their family or any other person with whom that party may live in a bona fide domestic relationship within the presence or hearing of either child, or allow either child to remain in the presence or hearing of any person who is denigrating either the party, their family or any other person with whom they may be living in a bona fide domestic relationship.
(12)That each of the parties will notify the other party as soon as practicable in the event of either of the children experiencing a serious injury or illness, or being hospitalised while in either party’s care. This includes giving sufficient details to enable both parties to be consulted with respect to and being fully advised regarding such illness or condition and any treatment recommended or provided and also to visit the children if hospitalised.
(13)The children’s passports, and any subsequent renewal passports, shall be retained at all times by the mother, save when the children are travelling with the father, until each of the children attain the age of 18 years. The parties agree that they will be equally responsible for all costs and fees associated with all new passports to be issued to the children either at the request of the father or the mother, and the parties agree that they will reimburse any fees incurred by the other party within seven (7) days of being provided by the other party with proof of payment of such fees.
(14)That in the event either child requires his or her passport to be renewed, the parties will do all acts and things and sign all documents to obtain the new passport and in doing so:
(a)The mother will in the first instance obtain and complete the application and thereafter provide it to the father;
(b)Within seven (7) days of receiving the application from the mother, the father will complete any details required of him in the said application, sign the said application and return it to the mother together with one half of the fee payable for the lodgement of the application;
(c)Within seven (7) days of receiving the application completed and signed by the father, the mother will lodge the completed application with the Passport Office and pay the applicable lodgement fee and advise the father of the lodgement within 24 hours; and
(d)Within two (2) days of the mother receiving the passport for either child, the mother will provide a copy of the same to the father.
(15)That either party be permitted to take the children out of Australia for holidays upon the other parent providing written consent (with such consent to not be unreasonably withheld) and in doing so:
(a)Unless otherwise agreed such travel is limited to countries that are signatories to the Hague Convention on the Civil aspects of Child Abduction;
(b)Such travel shall only take place during school holiday periods, and during the children’s time with the travelling party during the school holidays;
(c)Each party will give the other party as much notification as possible of their intention to take the children out of Australia and in any event will give not less than thirty (30) days written notice of such intention unless in the case of an emergency;
(d)The travelling party shall furnish to the other party an itinerary for the children’s travel, including the departure and return dates, the state or country or countries (including cities) the children will be travelling to, the approximate dates on which the children will arrive or depart each state or country (including cities) and a telephone number and address at which the children can be contacted in each state or country (including cities); and
(e)During the times the children are travelling, the travelling party will ensure that the children communicate with the other party by telephone at no less frequency than every two (2) days, with the travelling party to telephone the other party on a telephone number nominated by the party that is not travelling at times as agreed between them.
(16)Each party shall do all acts and things and sign all necessary documents to authorise and direct any school attended by the children to discuss with each party the children’s attendance and progress, and to furnish reports and copies of any correspondence, photographs, newsletters or other written material relating to the children specifically produced by the school to each party.
(17)The parties shall be entitled to fully participate in all and any parent/student activities at the school connected with same. In this regard, the parties will use their best endeavours to give each other reasonable advance notice if either party is intending to attend such an activity. Both parties are to do all things to ensure that that they are kept up to date with school events by reading notices, activity emails and other information to which they have access including but not limited to activity emails.
(18)Each party is to keep the other informed of their current residential address, a landline and mobile number and email address and will advise the other Party of any change to those details at least seven (7) days prior to any change in residential addresses and within twenty-four (24) hours of any changes to telephone numbers and email addresses.
B. Property
(19)For the purposes of the following orders:
(a)The agreed value of Property A (hereinafter referred to as the Property A home) is $2,360,000;
(b)The value of the parties’ net assets is $1,285,663, excluding the value of the Property A home (“value of parties’ net assets”).
(20)That within 30 days of these orders the Father do all acts and things and sign all necessary documents to list the property known as and situate at Property A (hereinafter referred to as the Property A home) for sale by public auction with an agent determined by him in accordance with the following sub-clauses:
(a)The Father shall notify the Mother of the Agent he has appointed and provide her with a copy of the Agency Agreement within 24 hours of executing the said Agreement – (for the purposes of this Order the Father proposes Real Estate at Suburb B. The Father also proposes Conveyancing at Suburb B to act on the sale);
(b)The Father shall instruct the Agent to conduct an initial inspection of the property for the purposes of providing the parties with an opinion as to any work and/or maintenance and/or improvements to be carried out to the property to enable the property to achieve a higher selling price and for the purposes of this Order the Mother shall make the property available for inspection by the Agent at any reasonable time as may be requested by the Agent;
(c)The Father will do all such things and sign all documents so as to authorise the auctioneer to sell the property by auction for the best price reasonably obtainable and the auction period shall be not less than 8 weeks from the date of the Agency Agreement is signed by the Father and not later than 16 weeks from the date the Agency Agreement is signed by the Father unless otherwise determined by the real estate agent and the Father shall inform the Mother as to the date of the Auction;
(d)The Father shall be responsible for meeting any upfront costs of the Agent and/or Auctioneer and shall be reimbursed one half of such costs from the proceeds of sale as provided for in these Orders;
(e)The Father shall nominate a reserve price 10 days prior to the auction after consultation with the agent as to the market value of the property, and notification to the Mother, and adopt the market value advised by the agent as the reserved price; and
(f)The Father shall provide all necessary directions and instructions to cause the proceeds of sale, as may be held by the Agent, to be disbursed in accordance with these Orders.
(21)That in the event the property fails to sell at the auction or within 72 hours following the auction that the property immediately be listed for sale by private treaty at a list price as nominated by the Father in accordance with the recommendations of the Agent and not less than 5% below the reserve price at the auction.
(22)That upon completion of the sale of the property in accordance with these Orders the Father shall do all acts and things and execute all documents necessary to cause the proceeds of sale to be paid as follows:-
(a)The payment of all agents commission and auctioneer expenses (if any) and solicitors/conveyancers costs referrable to the sale;
(b)The payment of all adjustments of municipal and water rates;
(c)The payment to the Father of one half of the costs paid by him in relation to any upfront agent’s expenses in accordance with Order (20)(d) above;
(d)In payment of the balance then remaining (“net balance”):
(i)to the Mother, 46% of the total amount of the value of the parties’ net assets plus the net balance;
(ii)the remainder to the Father.
(23)That pending the settlement of the sale of the Property A property the Mother shall have the exclusive use and occupation of same.
(24)In the event that the Property A property is placed on the market to be sold then pending the payment in Order 24(d) herein, the father shall pay to the mother or as she directs the sum of $500 each week by way of spousal maintenance commencing within 7 days of the date of these orders.
(25)That except as otherwise provided for herein, the mother shall retain, to the exclusion of the father:
(a)All furniture, jewellery and other chattels currently in her possession, custody or control;
(b)Any motor vehicle registered in her name;
(c)Any funds standing to her credit in any Bank, Credit Union or Building Society account;
(d)Any shares in any public or private company;
(e)Any superannuation fund in which she has an entitlement;
(f)All and any leave or long service, or any other employment benefits or entitlements.
(26)That except as otherwise provided for herein, the father shall retain, to the exclusion of the mother.
(a)All furniture, jewellery and other chattels currently in his possession, custody or control;
(b)Any motor vehicle registered in his name;
(c)Any funds standing to his credit in any Bank, Credit Union or Building Society account;
(d)Any shares in any public or private company;
(e)Any superannuation fund in which he has an entitlement;
(f)All and any leave or long service, or any other employment benefits or entitlements.
(27)If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
THE COURT NOTES THAT:
A.Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.
IT IS NOTED that publication of this judgment under the pseudonym Brigham & Schirmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEYSYC 1128 of 2015
MS BRIGHAM Applicant
And
MR SCHIRMER Respondent
REASONS FOR JUDGMENT
Introduction
1.These proceedings, between the applicant mother, Ms Brigham (“the mother”) and the respondent father, Mr Schirmer (“the father”) concern both parenting and property issues.
2.The parenting issues relate to the children of the relationship, [X], born on … 2002 (“[X]”) and [Y], born on … 2004 (“[Y]”).
3.Prior to the commencement of the hearing on 16 July 2018 the parties consented to various parenting orders. The outstanding issues that require judicial determination are how much time [X] and [Y] should spend with their father, and how changeover should occur, noting that a particular problem has been how the children’s bags would be transported between each parent’s respective residences.
4.In relation to property, each party is seeking orders for property adjustment after the breakdown of their marriage. In summary, the mother seeks a payment of $2,000,000 from the father within 60 days in the alternative of which the former matrimonial home at Property A ("Property A ") be sold and she receive 85% of the net proceeds of sale. In summary, the father seeks the sale of Property A, repayment to him of half of the costs of some renovations works, and 72% of the net proceeds of sale. He also proposes a superannuation splitting order using a base amount of $179,874 payable to the mother. The parties’ proposals are set out as annexures to these reasons.
5.The judgment will deal with parenting issues first, then property issues.
6.Delivery of judgment was regrettably delayed by judicial illness and necessary changes to the judicial calendar.
Background
7.The father was born on … 1959 and is currently 59 years of age.
8.The mother was born on … 1965 and is currently 53 years of age.
9.The mother and the father met in … 1996.
10.The father and his previous partner, Ms C, have a child, Ms D born on … 1997.
11.In … 1997 the father sold a property at Property B, receiving net proceeds of sale of $370,000. He purchased Property A (“Property A property”) for $420,000, using the proceeds of sale from the Property B property, $20,000 in savings and a mortgage of $90,000.
12.The parties commenced cohabitation in Property A in … 1997. This became the former matrimonial home.
13.The parties married on … 2001.
14.On … 2002, [X] was born and is presently 16 years of age.
15.On … 2004 [Y] was born and is presently 14 years of age.
16.The father asserts that the parties separated but remained living under one roof in January 2006. The mother asserts that the parties separated on 16 February 2014.
17.The father left the former matrimonial home on 26 January 2016.
18.The mother commenced proceedings in this Court in February 2015.
Procedural History
19.The mother filed her Initiating Application seeking property orders on 23 February 2015.
20.The father filed his Response seeking property and parenting orders on 15 May 2015.
21.The matter first came before her Honour Judge Henderson on 19 May 2015 in a duty list. On that occasion the parties were ordered to attend a Child Dispute Conference and a Conciliation Conference.
22.The parties attended a Child Dispute Conference on 22 June 2015 and a Conciliation Conference on 10 August 2015. No agreement was reached on either occasion.
23.The matter next came before her Honour Judge Henderson on 7 September 2015, and on that occasion the matter was listed for interim hearing.
24.The interim hearing took place before her Honour Judge Henderson on 2 November 2015. Her Honour made interim parenting orders for the children to live with the mother, and spend time with the father five nights a fortnight. The father was also ordered to pay $500 each week by way of spousal maintenance, and a lump sum of $40,000, the character of which was to be decided by the trial judge.
25.On 26 May 2016, the Family Report of Ms E was released to the parties.
26.On 7 December 2016, by consent the parties agreed that Mr Schirmer was to pay Ms Brigham a further lump sum of $100,000, again to be characterised by the trial judge.
27.The matter was subsequently transferred to my docket and listed for mention before me on 20 February 2017. On that occasion the matter was adjourned to 27 July 2017 to allow the parties to attend a further mediation.
28.On 27 July 2017, the matter was listed for final hearing on 16 July 2018 for an estimate of three days. The final hearing took place on 16, 17 and 18 July 2018.
Material relied upon
29.The mother relied upon:
a)Her Amended Application filed on 17 July 2015;
b)Her Reply filed on 19 June 2015;
c)Her Affidavit affirmed on 14 June 2018 and filed on 15 June 2018;
d)Affidavit of Ms F sworn on 14 June 2018 and filed on 15 June 2018;
e)Her Financial Statement affirmed on 14 June 2018 and filed on 15 June 2018; and
f)Her Case Outline filed on 13 July 2018.
30.The father relied upon:
a)His Response filed 15 May 2015;
b)His Affidavit sworn on 15 June 2018 and filed on 18 June 2018;
c)His Financial Statement filed on 15 June 2018; and
d)His Case Outline filed on 13 July 2018, including a proposed minute of both final parenting and property orders.
31.Both parties relied on the Family Report of Ms E dated 25 May 2016.
32.The mother, the father and Ms E were cross-examined.
33.The following documents were tendered and placed into evidence:
Exhibit Label
Document
Tendered by
A Proposed Parenting Orders. By Consent B Joint Balance Sheet. By Consent C Correspondence between Doolan Wagner and Ms Brigham dated 13 July 2018 outlining legal fees owed for preparation of final hearing. Applicant Mother D Joint document prepared by the Ms Brigham and her sister outlining the debt owed from the applicant to her sister. Document dated 5 July 2018. Applicant Mother E Financial Statement sworn by the Respondent Father on 25 August 2018 and filed on 26 August 2018. Applicant Mother F Ms Brigham National Bank OnLine Trading Application
Account Number ending in ...Applicant Mother G Samples of maintenance and repair tasks completed by Ms Brigham with respect to the former matrimonial home. Applicant Mother H Sealed Orders made by His Honour Judge Kemp on 7 December 2016 Applicant Mother Court 1 Family Report of Ms E dated 25 May 2016. Court 1 Ms Brigham
Access Advantage Cheque Statement - ANZ
Account number ending in … for the period between 23 January 2015 to 6 May 2015.Respondent Father 2 Mr Schirmer
National Flexidirect Bank Account - NAB
Account number ending in … for the period between February 2001 – August 2001Respondent Father 3 National Bank Account Direct Credit Dividend
Mr Schirmer
Remittance Advice dated 12 December 200118 July 2018 - The documents tendered in relation of value of these shareholdings became part of Exhibit 3
Respondent Father 4 Mr Schirmer
AMP Retirement Savings Account
Member Statement for the period between 1 July 2016 to 30 June 2017Respondent Father 5 Company P
A.B.N …Respondent Father 6 Mr Schirmer’s legal fees Respondent Father 7 Proposed Orders by the Respondent Father to override the Proposed Orders attached to his Case Outline Respondent Father
The father’s evidence
34.The father’s evidence was generally given honestly in my view. However, there were clearly occasions when he was less than careful about the accuracy of some of his financial affairs. His interest in a family business called Company P, discussed in more detail later, is a prime example.
The mother’s evidence
35.The mother gave the impression of giving her evidence honestly. I formed the view that she had a strong unconscious tendency to trivialise or dismiss the father’s parenting efforts.
36.I also formed the view that the mother was inclined to project anxieties onto the children. Her evidence went into enormous detail about her efforts as a parent and the problems suffered by the children. I formed the view that the mother’s identity was very closely defined by her role as a parent.
37.As will be discussed later in these reasons the children have had some psychological counselling during the period after the separation of the parents. The mother’s evidence was ultimately inconclusive on aspects of this and its implications. In her Affidavit the mother gave evidence that the children were referred to psychologists by their general practitioner. [X] saw Dr G for three sessions between March 2016 and May 2016. [Y] saw Dr H for 15 sessions between March 2016 and August 2017. The mother based some of her own evidence about the views of the children on things apparently said by [Y] to Dr H. At paragraph 116 of her Affidavit she asserted she would tender relevant pages of notes of Dr H. However, no such tender was made. Her evidence in paragraphs 101, 111 to 116, 141, 154, 155 and 157 was not supported by any documentary material. Despite the narrow compass of the parenting debate, it is necessary to make reference to these evidentiary issues because they bear upon that debate.
A. Parenting
Proposals
38.The parties consented to the making a wide range of parenting orders prior to the commencement of the hearing on 16 July 2018. Those orders are set out at Annexure A of this judgment. The parenting issues therefore became limited to how much time [X] and [Y] should spend with their father, and how changeover should occur, noting that a particular problem has been how the children’s bags would be transported between each parent’s respective residences.
39.In summary, the father proposed that his time with the children increase to an equal time arrangement and that each respective parent collect the children at the commencement of their time. The mother sought orders that maintained the status quo and therefore her proposal would be that the father have five nights a fortnight with the children on a final basis. Her proposal also sought that the father be responsible for the delivery and collection of the children to and from the mother’s residence.
40.The orders sought by the mother are in the following terms:
5. That the children spend time with the father as follows:
5.1 In week 1: from 4:30pm on Thursday to before school on Monday; and
5.2 In week 2: from 4:30pm on Thursday to before school on Friday.
9.5 The father shall collect the children from the mother’s residence at the commencement of the father spending time with the children and the father shall return the children to the mother’s residence at the conclusion of the father spending time with the children.
41.The orders sought by the father are in the following terms:
4. That the children shall live with the parties on an equal time arrangement as follows:
4.1 During school terms and the school holiday periods following the conclusion of Terms 1, 2 and 3, as defined by the school attended by the children on a week about basis as follows:
4.1.1 Week 1: the Father from after school Monday, or 6pm in the event of a non-school day, to the commencement of school the following Monday, or 6pm in the event of a non-school day, and thereafter each alternate week, commencing from the date of these orders.
4.1.2 Week 2: with the Mother after school Monday, or 6pm in the event of a none-school day, to the commencement of school the following Monday, or 6pm in the event of a non-school day, and thereafter each alternate week, and commencing a week after the making of these orders.
5. That except as otherwise provided by these Orders, on occasions when a changeover does not occur at school the parent with whom the children are to be spending time with shall collect the children from the residence of the other parent at the commencement of their time.
Expert evidence
42.The family report, marked Exhibit “Court 1”, was based, as described by Ms E, on the material filed by the parties so far in the proceedings, the Child Dispute Conference Memorandum of Ms J, the interviews conducted, as set out at the commencement of her report. Ms E recorded the observations made by her as a result of conducting interviews with the parents, and the children.
43.I will refer to the content of the report as necessary during the course of these reasons.
44.The family report writer made recommendations in paragraphs [54] – [57] of her report to the following effect:
a)It is recommended that the parties equally share parental responsibility for the children [X] and [Y].
b)It is recommended that the children live equally with their parents, in either a week about arrangement (from Sunday afternoon to the following Sunday afternoon) or another seven nights per fortnight split as agreed to between the parties.
c)It is recommended that the arrangement referred to in paragraph 55 be suspended in the Christmas school holidays, and the children spend three consecutive weeks with each of their parents and also special days as negotiated between the parties.
d)It is recommended that the parenting dispute be resolved on a final basis as soon as possible notwithstanding that the property matter may remain on foot.
45.Ms E also gave oral evidence at the hearing. She was questioned by counsel for each party. Prior to giving her oral evidence she read the most recent Affidavit of each party.
46.Ms E was clear that nothing in the updated material lead her to change her opinions or recommendations.
47.I will refer to the expert evidence in more detail in the course of these reasons.
The Children
48.[X] is currently 16 years of age. He currently attends Suburb C High School. He will be in Year 11 in 2019. It appears his school work suffered in 2017 but presently he has improved his grades. He is involved in the Duke of Edinburgh program and plays sports regularly.
49.[Y] is currently 14 years old. She also attends Suburb C School and is in Year 9. In Year 7 she was placed in the Gifted and Talented stream and was invited to attend the Achievers’ Camp at the end of 2017. She plays sports for Sports Club.
50.The children appear to be doing well at school and in their social lives.
Relevant Law
The Approach in Goode & Goode
51.The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2006) 36 Fam LR 422 set out a number of steps to be followed in determining a parenting matter, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Legislative framework
52.Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.[1]
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
53.Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
54.The orders made by consent include an order for equal shared parental responsibility. Consequently, the application of the presumption does not require further consideration. However, as will be discussed later in these reasons, by reason of the proposed order for equal shared parental responsibility s.65DAA(1) is enlivened.
Best interests of the child
55.The best interests of a child are the paramount consideration (s.60CA of the Act).
56.It is convenient to consider the best interests of the children at this point. The best interests of a child are to be determined by an examination of the primary and additional considerations set out in s.60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act. Recently, in Tibb v Sheehan [2018] FamCAFC 142; 58 Fam LR 351 at [83] the Full Court has pointed out that to “consider” is to engage in something that occurs inside the mind. The Full Court also said at [87] in relation to the nature of parenting cases:
[87] In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.
57.I have taken account of each consideration in s.60CC. In light of the extensive agreement between the parties, it is not necessary to discuss each primary and additional consideration: Jollie & Dysart [2014] FamCAFC 149 at [49]. I will discuss the relevant considerations as defined by the manner in which the case was conducted and the issues joined between the parties.
58.I take account of the underlying principles set out in s.60B of the Act. Neither party made specific reference to them in submissions. It is unnecessary to set them out in full.
Primary considerations
59.In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60.In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
61.There was no dispute that both parents have a meaningful relationship with the children.
62.The proposals of each parent would result in the meaningful relationship being maintained.
63.I give weight to this consideration.
Section 60CC(2)(b), “abuse” and “family violence”
64.As to s.60CC(2)(b) of the Act, neither party makes allegations of abuse. It is unnecessary to set out the statutory definitions of “abuse” (see s.4) and “family violence” or the examples of “family violence” given in s.4AB(2) of the Act.
65.The mother made submissions that the children suffered psychologically from the separation. However, the evidence was clear that by the date of the hearing, the children were doing well at school.
66.She gave evidence that at times, when the parties were separated under one roof, the father behaved in a physically intimidating fashion. The father denied this. It is unnecessary to resolve this factual dispute. If it existed, I am satisfied this source of tension has been removed. The parties no longer live separated under one roof. They live separately.
67.Under questioning from the mother, Ms E agreed that financial control may amount to family violence but there was no material about this from either party, so she was unable to form a view about whether it had taken place. Under questions from the father’s counsel, Ms E said that she did not see any indication of verbal abuse by the father in her observations of the children in May 2016. She stated that in the waiting room the children and the parents looked like an intact family, and no child showed wariness. She expressed concern at the timing of the allegations by the mother in relation to the release of the Family Report.
68.However, neither party argued there was any ongoing risk factors in relation to the other parent.
69.I take account of the extensive and detailed evidence of the mother, that the father is argumentative and difficult, that he has taken little or limited interest in their schooling, and that he has a lax parenting style. I make no findings about these allegations, because it is unnecessary. None of this evidence establishes any relevant risk to the children from the father, who already spend five nights each fortnight with him.
Additional considerations
70.The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
71.The mother laid emphasis on the views of the children.
72.In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
73.The High Court of Australia said in Bondelmonte v Bondelmonte [2017] HCA 8 at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive] weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
74.Rather, a primary judge is obliged to consider the weight which should be given to any stated views. The High Court of Australia also said in Bondelmonte (supra) at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
75.In other words, context is critical and it is a matter for the Court to determine how giving effect to a child’s stated view accords with the child’s best interests (R & R (Children’s Wishes) (2002) FLC 93-108; Gillard & Gillard [2015] FamCAFC 169 at [81]).
76.There was evidence that both children had expressed a view in support of the current arrangement, that is, no extra time with the father. The mother submitted that [Y] felt “caught in the middle” and does not wish to spend more time with her father.
77.The father called the weight of these views into question. He pointed to the opinion of Ms E that the mother was reluctant to “cede her control” (paragraph 48). Ms E had formed the view that the mother clearly believed she provided something to the children of far greater qualitative value than the father (paragraph 46). According to Ms E neither child “expressed a strong view about their situation.” She formed the view that what would benefit the children most is for their parents to “agree on how to divide their time. Both seemed more protective of their mother and more inclined, therefore, to want an arrangement that would make her happy.” Both children were old enough to be “self-regulating” and despite some differences between households, these were “not significant enough to cause them confusion or distress.” (paragraph 50).
78.In the Family Report, Ms E concluded that a move to equal time would not do the children any particular harm, “other than that which might come about if their mother is distressed by the situation and they feel responsible for her happiness.” (paragraph 51). This indicates the children were highly sensitive to the emotional responses of the mother.
79.The father submitted the views of the children were influenced by the mother. He argued that if equal time was ordered the children would adapt, and would benefit from a reduced emotional load if they did not have to choose between their parents.
80.In her oral evidence Ms E reiterated the view she expressed in the Family Report, that the markers for equal time, such as proximity, and easy transitions, were still present, that an increase of two nights per fortnight was not substantial, and there was a high degree of ambivalence in the views of the children. She said that she was not sure [X] expressed his own views but reflected the wishes of his mother. Overall, she held the opinion that the children just wanted things to be settled.
81.I do not take at face value [Y]’s view that she does not wish to spend more time with her father. I take account of the evidence of Ms E in this regard. The evidence supports a conclusion that the children’s views are affected by upsetting their mother, whose identity is closely bound up in her parental role, and a desire to avoid choosing sides between their warring parents. I give weight to the views of the children, but make allowance for the likely influence of the mother and the concern the children seem to have about her distress at the possibility of equal time.
82.I give weight to this consideration.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
83.I am satisfied that the children have a warm and loving relationship with each parent.
84.I am satisfied on the basis of the Family Report that the mother views herself as the primary caregiver between the parents, and that this arose in large measure from the nature of the pre-separation relationship of the parties, which was characterised by “traditional gender roles”.
85.Ms E concluded that “the children are not aligned with one parent over the other and they appear to have robust relationships with both” (paragraph 51).
86.I give weight to this consideration.
(ii) and other persons (including any grandparent or other relative of the child);
87.The mother submitted that [Y] has a tense relationship with her paternal uncle. However, the evidence for this assertion does not come from any direct observation of the mother. Rather it is based solely on comments said to be made by [Y] to the mother. It is difficult to place much weight on this evidence.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
88.I am satisfied that the mother has been generally more involved as a parent than the father. She has spent more time with the children, and organised activities, medical appointments and provided structure for the children.
89.However, despite the mother’s perceptions to the contrary, the father has also been an involved parent. His evidence which was largely unchallenged showed engagement and involvement with school and sporting activities. I am satisfied it is likely that the mother has a tendency to minimise the contributions of the father as a parent and impugn his parenting competence.
90.I give weight to this consideration.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
91.I am satisfied both parents have fulfilled their obligations to maintain the children. Neither submitted otherwise.
92.I give weight to this consideration.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
93.The mother submitted that the children have a settled and stable regime under the existing parenting orders, which provide for the children to spend 5 nights with their father. She argued that any disruption, including more nights with the father, would have severely negative impacts on the children. She pointed to the evidence of psychological distress suffered by both children at and after separation.
94.The father relied upon the opinion of Ms E.
95.I refer again to the opinion of, Ms E that a move to equal time would not do the children any particular harm, “other than that which might come about if their mother is distressed by the situation and they feel responsible for her happiness.” (paragraph 51).
96.In her oral evidence, Ms E pointed out that the mother had complained about lack of weekend time, which a week about arrangement would have the benefit of allowing. Ms E did not accept that more week nights with the father would have an adverse impact on the children’s school work.
97.It was submitted by the father, that a week about arrangement would also reduce the number of transitions between each parents’ house. A week about arrangement would be simpler and clearer than the present arrangements.
98.When it was put to Ms E that the current arrangement was working well so there was no reason to change, she responded by pointing out there was also no reason not to change. She did not advocate change for the sake of change. Rather, the children would see an equal time arrangement as fairer, and there would be a reduced emotional load on them.
99.Overall I am not satisfied the evidence supports a conclusion that separation from the mother for any additional nights would be adverse for the children. On the contrary, a change to an equal time arrangement is likely to benefit the children.
100.I give weight to this consideration.
(ii) or any other child, or other person (including any grandparent or other relative.
101.In the present matter, this is not relevant.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
102.Neither party pointed to any issues of practical difficulty or expense. Indeed, Ms E noted the proximity of the parties’ residences and good communication as markers supporting equal time (paragraph 51).
103.I give weight to this consideration.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
104.I am satisfied that both parents have a satisfactory capacity to provide for the needs of the children. I do not ignore the mother’s allegations of lack of interest in parenting on the part of the father, but I am not satisfied they are sustained on the evidence.
105.The children, as described earlier, are doing well at school after some periods of difficulty after separation. The mother can take a good deal of the credit for this. The evidence showed the extent to which she has been strongly focussed on their wellbeing.
106.I am mindful of the effect of orders on the primary carer’s mental wellbeing, where such effect may adversely impact on parenting capacity (see R & C [1993] FamCA 62 and A & A the Child Representative (1998) 22 Fam LR 756).
107.In her Affidavit, the mother stated she had “suffered two years of verbal and psychological abuse from [the father] whilst living separated under one roof”, and that she still suffers “bouts of anxiety” (paragraph 220).
108.However, the children having been spending 5 nights each fortnight with their father under the existing orders. In cross examination, the mother agreed that equal time would not be “the end of the world” but it would be “unwelcome”. She conceded that she would support the children in equal time if it was ordered. This evidence satisfies me that equal time would not diminish the parenting capacity of the mother.
109.Despite the criticisms of the mother I am also satisfied the father has been an involved parent. His evidence showed a good understanding of the logistical requirements and details of their lives. His capacity to be as closely involved as the mother has been limited in the past by his work commitments.
110.I give weight to this consideration.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
111.In the present matter, this is not relevant.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
112.I have nothing to add in relation to this consideration.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
113.In the present matter, this is not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
114.I refer to my earlier discussion under s.60CC(3)(b),(c),(d) and (f).
115.I am satisfied each parent has demonstrated a satisfactory attitude to the responsibilities of parenthood.
116.I give weight to this consideration.
(j) any family violence involving the child or a member of the child's family;
117.I have nothing further to add beyond the discussion above in connection with s.60CC(2)(b)
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
118.In the present matter, this is not relevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
119.Orders that are least likely to lead to further proceedings would be preferable. In the present matter, this is not a particularly strong consideration because of the extensive agreement between the parties, their good communication and the age of the children. On balance, equal time is also likely to lessen the possibility of further litigation.
(m) any other fact or circumstance that the court thinks is relevant
120.Ms E expressed the view that the point where the parties’ property settlement is finalised may be a more realistic time to initiate equal time. Although that view was expressed in May 2016, the connection between the parenting and property aspects of these proceedings remains a relevant consideration. This judgment will deal with both aspects so that the finalisation of the property issues will happen contemporaneously with the orders for a move to equal time.
Parental Responsibility
121.The parties have agreed to an order for equal shared parental responsibility.
122.Consequently, s.65DAA(1) of the Act applies. This requires me to consider equal time with the father, or the continuation of substantial and significant time.
123.The children already spend substantial and significant time with the father. I am satisfied that it would be in the best interests of the children to move to equal time.
124.The markers for equal time, as Ms E observed, were present in May 2016 and remain present.
125.I take account of the mother’s evidence that she finds the father difficult and it is her perception that the father has “shown me no disposition to take on a larger parenting role” and that he “takes no responsibility for the children’s educational development, ignores their medical needs” does not mentor [X] and has caused [Y] “emotional and psychological distress.” (paragraphs 252 and 253). I am not satisfied this perception accords with the facts overall, and the father’s evidence is inconsistent with this characterisation of his parenting. He presses for more parenting time. Despite the mother’s negative perceptions, the parties retain reasonable communication and the range of consent orders testifies to the extent of their ability to agree.
5. That pending the payment referred to in Order 1 herein, and in the event that the Property A property is placed on the market to be sold then pending the payment in Order 3.4 herein, the father shall pay to the mother or as she directs the sum of $500 each week by way of spousal maintenance commencing within 7 days of the date of these orders.
6. That except as otherwise provided for herein, the mother shall retain, to the exclusion of the father:
All furniture, jewellery and other chattels currently in her possession, custody or control;6.1.
Any motor vehicle registered in her name;6.2.
Any funds standing to her credit in any Bank, Credit Union or Building Society account;6.3.
Any shares in any public or private company;6.4.
Any superannuation fund in which she has an entitlement;6.5.
All and any leave or long service, or any other employment benefits or entitlements.6.6.
That except as otherwise provided for herein, the father shall retain, to the exclusion of the mother.7.
All furniture, jewellery and other chattels currently in his possession, custody or control;7.1.
Any motor vehicle registered in his name7.2. ;
Any funds standing to his credit in any Bank, Credit Union or Building Society account;7.3.
Any shares in any public or private company;7.4.
Any superannuation fund in which he has an entitlement;7.5.
All and any leave or long service, or any other employment benefits or entitlements.7.6.
Annexure C
PROPERTY
15.That within 30 days of these orders the Father do all acts and things and sign all necessary documents to list the property known as and situate at Property A (hereinafter referred to as the Property A home) for sale by public auction with an agent determined by him in accordance with the following sub-clauses:
15.1The Father shall notify the Mother of the Agent he has appointed and provide her with a copy of the Agency Agreement within 24 hours of executing the said Agreement – (for the purposes of this Order the Father proposes Real Estate at Suburb B. The Father also proposes Conveyancing at Suburb B to act on the sale);
15.2The Father shall instruct the Agent to conduct an initial inspection of the property for the purposes of providing the parties with an opinion as to any work and/or maintenance and/or improvements to be carried out to the property to enable the property to achieve a higher selling price and for the purposes of this Order the Mother shall make the property available for inspection by the Agent at any reasonable time as may be requested by the Agent;
15.3The Father will do all such things and sign all documents so as to authorise the auctioneer to sell the property by auction for the best price reasonably obtainable and the auction period shall be not less than 8 weeks from the date of the Agency Agreement is signed by the Father and not later than 16 weeks from the date the Agency Agreement is signed by the Father unless otherwise determined by the real estate agent and the Father shall inform the Mother as to the date of the Auction;
15.4The Father shall be responsible for meeting any up front costs of the Agent and/or Auctioneer and shall be reimbursed one half of such costs from the proceeds of sale as provided for in these Orders;
15.5The Father shall nominate a reserve price 10 days prior to the auction after consultation with the agent as to the market value of the property, and notification to the Mother, and adopt the market value advised by the agent as the reserved price; and
15.6Shall provide all necessary directions and instructions to cause the proceeds of sale, as may be held by the Agent, to be disbursed in accordance with these Orders.
16.That in the event the property fails to sell at the auction or within 72 hours following the auction that the property immediately be listed for sale by private treaty at a list price as nominated by the Father in accordance with the recommendations of the Agent and not less than 5% below the reserve price at the auction.
17.That in the event that the Agent recommends that work/maintenance/ improvements be carried out to the property prior to the property being listed on the open market and the Father is able to carry out such works, then the Mother is to make the property available to the Father to carry out such works at times as reasonably requested by the Father.
18.That in the event that the Agent recommends that work and/or maintenance and/or improvements be carried out to the property prior to the property being listed on the open market and the Father is not able to carry out such works, then the Father shall engage tradesmen to carry out such work as recommended by the Agent and shall meet the costs of such work on the basis that he is reimbursed one half of the costs as provided for in these Orders.
19.That the Mother shall, upon receipt of notice from the Father and/or the Agent of the proposed attendance, permit and facilitate the Father and/or any tradesmen engaged by him and/or the Agent to attend at the Property A home for the purposes of effecting such work/maintenance/ improvements as recommended to be carried out by the Agent.
20.That the Mother shall co-operate at all times with the Agent for the purposes of these Orders including but not limited to:-
20.1Keeping the property clean and tidy at all times;
20.2Making the property available for inspection at all open house times and all other times as may be reasonably requested by the Agent; and
20.3Vacating the property not less than 7 days prior to the due date for settlement and ensuring that the property is left in a clean and tidy state free from any damage and will not remove any fixtures or fittings from the Property A home including the curtains, blinds, carpet, stove and other items that normally form the usual permanent fixtures and fittings.
21.That upon completion of the sale of the property in accordance with these Orders the Father shall do all acts and things and execute all documents necessary to cause the proceeds of sale to be paid as follows:-
21.1The payment of all agents commission and auctioneer expenses (if any) and solicitors/conveyancers costs referrable to the sale;
21.2The payment of all adjustments of municipal and water rates;
21.3The payment to the Father of one half of the costs paid by him in relation to any upfront agent’s expenses in accordance with Order 15.4 above;
21.4The payment to the Father of one half of the costs paid by him in relation to works carried out as provided for in Order 18 above;
21.5The payment to the Mother of sum equivalent to 28% of the balance then remaining; and
21.6The balance then to the Father.
22.That pursuant to Section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable from the superannuation interest held by Mr Schirmer in the superannuation fund known as Super Fund E account number …, the trustee shall pay to Ms Brigham base amount of $179,874 and that there be a corresponding reduction in the entitlement of Mr Schirmer that he would have had in the Super Fund E but for these orders.
23.That having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of the Super Fund E.
24.The operative time for this order is the date being four days from the date of service of these orders upon the trustee of Super Fund E.
25.That within 28 days of the date of these orders the parties shall
Fatherdo all acts and execute all documents necessary to selltransfer to the Motherthe Motor Vehicle 1 for the best price reasonably obtainable and shall divide the proceeds of sale as to 70% to the Father 30% to the Mother.26.That other than as provided by these orders, the Father is to retain all other assets in his name, possession or control including, but not limited to the following:-
26.1Monies in any bank account in his name standing to his credit;
26.2His shares;
26.3The Motor Vehicle 1 in his possession and as registered in his sole name, registration number …;
26.4His Household contents and personal effects;
26.5His Superannuation entitlements; and
26.6All other items of personalty and property currently in his possession and/or to which he has an entitlement.
27.That other than as provided by these orders, the Mother is to retain all other assets in her name, possession or control including, but not limited to the following:-
27.1Monies in any bank account in her name standing to her credit;
27.2Her shares;
27.3The Motor Vehicle 2 in her possession, registration number …;
27.4Her Household contents and personal effects;
27.5Her Superannuation entitlements; and
27.6All other items of personalty and property currently in her possession and/or to which she has an entitlement.
28.That other than as provided by these orders each of the Father and the Mother shall remain liable for any debts in his or her sole name respectively at the date of the orders and in respect each party shall indemnify and hold harmless the other from any liability in relation thereto.
29.That in the event that the Father or the Mother or either party’s personal legal representative refuses or neglects to comply with any of the orders herein requiring a party to execute a deed or instrument, the Registrar of this Court at its Sydney Registry is appointed pursuant to Section 106A of the Act to execute, in the name of the Respondent or the Mother as the case may be, any deed or instrument necessary to give effect to the orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument.
30.That the Mother pay the Father’s costs.
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