CAREW & CAREW
[2014] FCCA 465
•24 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAREW & CAREW | [2014] FCCA 465 |
| Catchwords: FAMILY LAW – Proceeding regarding final arrangements for children (twins) aged 11 – property proceedings – both parties unrepresented – few practical issues in dispute regarding care arrangements for children – high conflict – education arrangements – how costs of children’s education is to be funded – over-lap of child support issues with parenting and property issues – small asset pool – only asset available for division is superannuation – considerations of justice and equity. |
| Legislation: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 65DAC, 65DAE, 79, 75(2) |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR [2010] HCA 4 Evans & Evans (1978) FLC 90-435 Stanford v Stanford [2012] HCA 52 Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney-General (Intervenor) (2003) FLC 93-143 Waters & Jurek (1995) FLC 92-635 D & D [2003] FamCA 473 In re: Watson: ex parte Armstrong (1976) FLC 90-059 Mallett & Mallett (1984) FLC 91-507 C & C (2005) FLC93-220 Pierce & Pierce (1999) FLC 92-844 Clauson & Clauson (1995) FLC 92-595 |
| Applicant: | MS CAREW |
| Respondent: | MR CAREW |
| File Number: | ADC 4009 of 2010 |
| Judgment of: | Judge Brown |
| Hearing dates: | 6 & 7 November 2013 |
| Date of Last Submission: | 7 November 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 24 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | In Person |
ORDERS
A base amount of $30,000.00 be allocated as required by section 90MT(4) of the Family Law Act 1975, to the applicant Ms Carew out of the interest of the respondent Mr Carew in (omitted) Superannuation account number (omitted).
With respect to superannuation:
(a)Pursuant to paragraph 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the interest of the respondent in the Fund, the applicant is entitled to be paid the amount calculated in accordance to Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount allocated above and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order;
(b)Paragraph 2(a) of this Order has effect from the operative time and the operative time is the beginning of the fourth business day after the day on which an original certified copy of the final sealed Order is served on the Trustee of the Fund;
(c)Paragraph 2(a) of this Order binds the Trustee of the Fund;
(d)The Trustee of the Fund and the parties, in accordance with the obligations set out in the Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the applicant and make payments in accordance with paragraph 2(a) of this Order;
(e)The respondent is restrained from giving the Trustee of the Fund a binding Death Nomination in favour of a reversionary beneficiary on behalf of a child or a reversionary beneficiary who is child which would have the effect of in any way reducing the value to the applicant of the splitting Order made in paragraph 2(a) herein;
(f)The respondent shall indemnify the applicant with respect of any loss the applicant suffers as a result of the respondent failing to comply with paragraph 2(a) of this Order;
(g)After service of the payment split notice pursuant to Regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the applicant shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to Regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in her name in the fund or exercising her request pursuant to Regulation 7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the trustee to roll over or transfer the transferable benefits to another regulated superannuation fund or approved deposit fund or to an EPSSS or RSA specified in the request to be held for the applicant’s benefit;
(h)The value of the transferable benefits to be transferred from the respondent’s interest to the applicant’s interest will be calculated by the Trustee of the Fund in accordance with Regulation 7A.11 or 7A.12 (as the case requires) of the Superannuation Industry (Supervision) Regulations 1994;
(i)Pursuant to Regulation 14F of the Family Law (Superannuation) Regulations 2001, any payments made from the respondent’s interest in the Fund after the Trustee of the Fund has created a new interest in the applicant’s name in the Fund or transferred or rolled over the transferable benefits to another regulated superannuation fund or approved deposit fund or to an EPSSS or RSA, as contemplated by paragraph 2(h) of this Order, are not splittable payments.
Including but without limiting the effect hereof, the applicant shall retain for her sole use and benefit absolutely free from any other claim or demand of the respondent:
(a)The motor vehicle currently in her possession;
(b)Her personal affects and other furniture and furnishings in her possession power and control;
(c)Any other property and or financial resources in the applicant’s name and/or possession (including superannuation and bank accounts) standing in her name not otherwise specified herein.
Including but without limiting the effect hereof the respondent shall retain for his sole use and benefit absolutely free from any other claim or demand of the applicant:
(a)Any motor vehicle in his possession;
(b)The furniture and furnishings currently in his possession, power and control;
(c)Any superannuation standing in his name subject to the provisions of order 1 and 2 hereof.
Children’s Orders
The parties have equal shared parental responsibility for the children of the marriage, X and Y both born (omitted) 2002 (hereinafter referred to as “the children”).
The children live with the mother.
The children spend time with the father as follows:
(a)During school terms in accordance with order 9 of the order of this court made on 25 July 2005, namely on five nights per fortnight according to the following configuration:
Week 1
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
M
M
F
M
M
F
M
Week 2
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
M
M
F
F
F
M
M
(b)During school terms as follows:
(i)For one half of each short school holiday (excluding the Easter period) the halves to be agreed between the parties, but to be calculated by reference to 9:00am Saturday as being the commencement time to midday Sunday as its concluding point and in the event of disagreement as to how the halves of the holiday are to be allocated the husband is to receive the first half in 2014 and each even year thereafter and the second half in 2015 and each odd year thereafter.
(ii)The husband is to collect the children from the wife’s home at the beginning of each such period with the wife to collect the children from the husband’s home on the conclusion of each such period.
In the event that either parent is unable to care for the children during their respective periods pursuant to these Orders, then the other parent is to be given first option to care for the children and IF the other parent is not able to care for the children then it is the responsibility of the parent who would usually have the children in their care to find alternative arrangements for their care and the contact details of the alternative arrangements be provided to the other parent prior to the children being in that care.
The children will spend time with either the Mother or Father on the occasions of the birthday of the parent and the parent's partner as follows:
(a)In the event that the parent or a partner of either of the parties has a birthday which falls on a day or weekend that the other parent is scheduled to have the children in their care, then the parties will arrange to swap the day they have the children. The parent requesting the change will be responsible for picking up the children at 10.00am from the other parent's place of residence and returning the children at 10.00am the following day to the other parent's place of residence (in the event that the birthday falls on a weekend) or picking the children up at 6.00pm and taking the children to school the next day.
(b)As otherwise agreed between the parties.
Each parent encourages and facilitates telephone communication between the Children and the other parent on a regular basis whilst the children are in their care or as requested by the children, but no less frequently that once every three days and specifically that:
(a)The Father telephone the Mother or the children directly every Tuesday and Sunday night at 8.30pm if they are not already in his care.
(b)The Mother telephone the Father or the children directly every Wednesday and Saturday night at 8.30pm that the children are in the Father's care.
(c)Either the Mother or Father telephone the children on the children's birthday when they are not already in that parent's care.
(d)Any other time as requested by the Children.
Each of the parties, their family members, servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Children (or any of them) and from permitting any other person to do so.
In the event that either of the Children are unwell and unable to attend school or sent home from school that party with whom they are living or spending time will forthwith advise the other party and advise of any medical appointments required by the child.
The parties each be at liberty to attend at all medical, psychological or other specialist appointments relating to the care, welfare and development of the children.
The Children spend time with the parents at Easter as follows:
(a)In 2014 with the Mother from after school on Maundy Thursday until 8.00pm on Easter Monday and each alternate year thereafter:
(b)In 2015 with the Father from after school on Maundy Thursday until 8.00pm on Easter Monday and each alternate year thereafter NOTING the Father will return the Children to the Mother's place of residence.
NOTING:
If when the Mother has the Children at Easter and is not intending on going away from the Adelaide metropolitan area on Easter Sunday then the Father may collect the Children from the Mother’s place of residence at 10.00am (for the purpose of giving gifts and having lunch together) and return them to the Mother’s place of residence at 3.00pm;
AND
If when the Father has the Children at Easter and is not intending on going away from the Adelaide metropolitan area on the Good Friday then the Children will remain in the Mother’s care on Good Friday (for the purpose of having a family lunch) with the Mother returning the Children to the Father’s place of residence at 3.00pm.
At Christmas time in 2014 and at the same times each alternate year thereafter:
(a)From 5.00pm on Christmas Eve with the Father to drop the children at the Mother's place of residence until 3.00pm on Christmas Day with the Mother to drop the children at the Father's place of residence; and
(b)With the Father from 3.00pm on Christmas Day until 10.00am on New Year’s Eve with the Father to drop the children at the Mother's place of residence.
(c)For the balance of the Christmas school holiday period each year equally as agreed between the parties.
The Father spend time with the children on Father's Day weekend each year and if the children are not already in the care of the Father then from 5.00pm the Saturday prior to Father's Day with the Mother to drop the children at the Father's place of residence until 8.00pm on the Sunday of Father's Day with the Father to drop the children at the Mother's place of residence on the Sunday.
If Mother's Day falls on a weekend that the children are in the Father's care then the children will spend time with the Mother from 5.00pm on the Saturday prior to Mother's Day with the Father to drop the children at the Mother's place of residence and the children will remain in the care of the Mother on the Sunday.
If either parent intends travelling overseas without the children then they are to provide as much written notification as possible and unless such travel is for the purposes of work and required to be at short notice, such written notification is to be not less than 6 weeks prior to the commencement of the travel and give the other parent the first option to care for the children during this period.
Intended overseas travel with the children with that parent to provide to the other parent a proposed itinerary and destination/s of travel and contact arrangements for the children not less than 30 days prior to the proposed travel noting that consent of the non-travelling parent will not to be unreasonably withheld.
In the event of overseas travel, then the parent who has possession of the Children's passport is to provide the passport to the travelling parent no less than 10 days prior to the departure date.
That each parent will endeavour not to plan an overseas holiday outside of the normal school term period (if intending on taking the children) so as not to disrupt the children's educational development.
Intended travel with the children outside the State of South Australia, with that parent to provide to the other an itinerary and destination of travel and contact arrangements for the children no less than 10 days prior to the proposed travel.
Each parent advises the other of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
The children continue to attend (omitted) College for the period of their remaining primary and secondary education subject to the following conditions:
(a)The father is solely responsible for paying the children’s tuition fees to attend (omitted) College;
(b)The father inform the bursar or finance officer of (omitted) College of this order and take all necessary steps to indemnify the mother from any financial liability in respect of the children’s attendance at the school;
(c)The parties share equally any cost relating to:
(i)Any medical or dental treatment not already covered by private health insurance;
(ii)The children’s agreed extramural activities arising from their attendance at (omitted) College including attendance at school camps; school excursions; participation in sporting and cultural activities and school uniforms.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carew & Carew is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4009 of 2010
| MS CAREW |
Applicant
And
| MR CAREW |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Carew “the wife” and Mr Carew “the husband” married on (omitted) 1999 and finally separated in February of 2009. They are now divorced with the relevant divorce order being made on 8 January 2011.
The parties are the parents of twins – X and Y, both born on (omitted) 2002. These proceedings are concerned with arrangements for X and Y’s care, particularly issues to do with their education and how it is to be funded.
The parties each present as good parents who are devoted to securing the best interests of X and Y both now and into the future. In these circumstances they agree that they should share parental responsibility for the children equally. However, one thing is clear, they do not communicate well and carry much emotional baggage from the end of their marriage.
The parties are also in dispute regarding the division of their matrimonial property, particularly the extent of any split to be made in the wife’s favour from the husband’s accumulated superannuation. It is also clear that the parties are currently not in a strong financial position.
In the period since the parties separated, neither of them has re-married. However, the husband lives with his current partner, Ms M. Mr Carew became involved emotionally with Ms M during the parties’ marriage.
This involvement between Mr Carew and Ms M led to an earlier separation between the parties and then a subsequent reconciliation, which covered the period between late 2006 and late 2007. Following the parties’ reconciliation, they made two significant financial decisions, the consequences of which continue to this day.
Firstly, in February 2008, X and Y commenced reception at (omitted) Primary School. The children continue to attend the primary school and are due to commence at the middle school of (omitted) College at the start of the academic year in 2015. The fees for the primary school are significant and more so for the middle school and then the senior school.
Secondly, in March of 2008, the parties purchased their former family home situated at Property D for the sum of $1.3 million. The purchase was financed by a significant mortgage. Its purchase was the culmination in a series of properties acquired and then sold by the parties during their relationship and subsequent marriage of around twelve years in duration.
On 26 March 2010, following their separation, the parties were compelled to sell the property at a loss. As a consequence, the parties were left with a joint debt of approximately $45,000.00. Mr Carew took out a personal loan in this sum and has been gradually paying it off since the parties separated.
These proceedings cannot be concerned with attributing moral fault to any person as a consequence of the failure of the marriage between the parties. Reference is made to Ms M solely to indicate that the circumstances surrounding the parties’ separation were emotionally fraught. This situation has made it difficult for the parties to resolve the various issues between them.
In addition, one of the sad but inevitable consequences of the end of the marriage between the parties has been a diminution of the standard of living previously enjoyed by the parties whilst they were living as a family with X and Y.
Mr Carew is employed by (employer omitted) as a (occupation omitted). He is responsible for (duties omitted) for (employer omitted) in the (omitted) region. He is required to fly to the (employer omitted) each week and spend Monday night there as a condition of his employment.
Mr Carew receives a gross salary of $16,294.95 per month. This equates to an annual salary of approximately $195,500.00. In addition, (employer omitted) contributes a sum of $1,647.62 also per month to his self-managed superannuation fund.
Ms Carew has a background in (occupation omitted) and holds a (qualifications omitted) in this field. Both before and during the parties’ marriage, she held a number of (occupation omitted) positions with various firms. More recently in October of 2011, she commenced her own (omitted) business which sub-contracted her services to one major client.
Unfortunately around the start of 2013, this contract lapsed and Ms Carew was unemployed for a period of around six months. In these circumstances, Ms Carew was compelled to apply for unemployment benefits. This event, when coupled with the circumstances surrounding the parties’ separation and the financial vicissitudes resulting, was extremely traumatic for her.
However, to her credit in June of 2013, she was able to gain employment as a (occupation omitted), with (employer omitted). Her annual salary is $80,000.00. This is significantly less than she was earning previously, particularly whilst she was in self-employment.
At the present time, Mr Carew has accrued superannuation entitlements valued at $306,320.43.[1] Mr Carew was born on (omitted) 1961. Accordingly, he is approaching the stage of his life at which he must closely consider arrangements for his retirement.
[1] See exhibit F
It is his case that when the parties began their relationship, he had accumulated superannuation to the value of just under $50,000.00. He further asserts that at separation his superannuation stood at $145,872.12.
Ms Carew is currently forty years of age having been born on (omitted) 1973. At the present time, she has accumulated superannuation to the value of $128,022.12.[2]
[2] See exhibit K
It is the wife’s position that Mr Carew, in combination with Ms M, enjoys a significantly more financially secure situation than she does. Ms M has enjoyed an income of approximately $924.00 per week.[3]
[3] See husband’s amended financial statement filed 25 March 2013 at item 17
Mr Carew’s evidence is that Ms M contributes approximately $700.00 per week to him in respect of rent and living expenses arising from the property he rents with Ms M located at (omitted). More recently, due to a period of unemployment Ms M’s fortnightly contribution has reduced to $500.00.
The proceedings between the parties have been on foot since December of 2011. Undoubtedly, they have consumed significant funds in terms of legal fees incurred by both parties. However, at the stage of these final proceedings neither Mr Carew nor Ms Carew, have been legally represented. It being the position of both that they cannot afford to engage counsel.
It has been consistently Ms Carew’s position that any consideration of simple arithmetic must dictate that Mr Carew has in some way been saving a significant portion of his salary in conjunction with Ms M, in order to defeat her claim for property settlement.
Ms M did not give evidence in these proceedings and has not filed an affidavit. However, a subpoena was directed towards her requiring her to produce her banking and related financial records.
It is the husband’s position that he has made a full and frank disclosure of all his relevant financial circumstances including those which relate to Ms M. It is his case that he has never siphoned off any funds and currently has only modest savings.[4]
[4] See exhibit E
Accordingly, it is Mr Carew’s position that the only relevant property which can be the subject of the court’s order in these proceedings, is the parties’ combined superannuation. For her part, Ms Carew cannot identify any other relevant asset of significant value. However, she maintains her suspicions that Mr Carew has concealed significant moneys from her.
At present the parties each own a motor vehicle. In addition on separation, each party retained items of personal property and furniture. The consequence of this division of property has created its own controversies.
In the husband’s case he has retained his stamp and coin collection; a collection of (omitted) wine; and some signed prints of artistic works of (omitted) and (omitted). These items have not been formally valued, but Ms Carew asserts that they have significant worth.
In the wife’s case, she has retained some items of jewellery. Mr Carew asserts that if his collection of stamps; coins; wine; and the like are included in some way in the court’s deliberations, it is only fair that reference should also be made to the wife’s jewellery. Needless to say, the jewellery has not been valued for the purposes of the current proceedings.
In addition, it is Mr Carew’s position that the division of furniture which occurred after the parties’ separation greatly favoured Ms Carew. She does not agree, rather she asserts that Mr Carew took the items of value and left her with the merest necessities, namely beds for herself and the children. Once again, it is the position that no formal inventory of furniture has been prepared and no values obtained for the items in question.
The issues concerning property have been hard fought and as such, have consumed a significant proportion of the parties’ available funds in legal fees. However, regardless of the level of complexity and the parties’ respective attempts to resolve it, the fact remains that the case does not involve a large sum of money. However, I accept unreservedly that the case is of the utmost importance to both parties.
Underpinning Ms Carew’s case is her position that she faces an uncertain financial future. It is her case that her income earning capacity is far less than that of the husband. As previously indicated, she believes he has deceived both her and the court, in respect of his financial dealings.
In all these circumstances, she seeks an order that the parties’ pool of matrimonial assets should be divided 70/30 per cent in her favour. Ultimately, Ms Carew would want to be able to access sufficient funds to secure a deposit to purchase accommodation for herself and the children.
From Mr Carew’s perspective, the end of the parties’ marriage has been a financial disaster which he has largely borne alone. It is his case that the wife has been unreasonable throughout the litigation process and remains fixated on her belief that he has concealed moneys from her.
It is his position that it is self-apparent to any rational observer that the reality of the situation is that any moneys received by him since separation, have been expended upon his own reasonable living expenses; paying the parties’ jointly incurred matrimonial debts; his own significant legal fees and the children’s private school fees.
Although he concedes that his income is currently greater than that of the wife, it is his position that Ms Carew is not fully utilising her (occupation omitted) experience at present and so is under-utilising her capacity to earn an income. He would characterise her financial position as being equally problematic as Ms Carew’s, particularly in respect of his ability to purchase accommodation for himself and the children.
In addition, Mr Carew points to his age. It is his case that as he is much closer to retirement, it would be inequitable to split off a large component of his superannuation into the wife’s favour particularly as he acquired a significant portion of his superannuation prior to the commencement of his relationship with the wife.
In these circumstances he proposes a split in the sum of $25,000.00 being made in the wife’s favour out of his superannuation, but otherwise the parties retain the items of property in their respective possessions.
The issues concerning care arrangements for X and Y are also highly controversial. At first blush, due to their longstanding hostility for one another, the parties have little facility for compromise. However when the controversy was unpacked in court, it seems that the issues in dispute between the parties also turn on financial considerations particularly where the children will go to school for the remainder of their education and how that education will be paid for.
The parties are agreed on one thing. (omitted) is an excellent school and all things being equal, it would be ideal for X and Y to complete their education there. In Mr Carew’s words, he would like the children to have the educational opportunities denied to him as a child.
(omitted) is expensive. At present, whilst X and Y are in primary school, the cost of their basic fees per term is $3,180.00 or $12,720.00 per annum.[5] In addition, there are expenses related to the children’s uniform and other extra-mural activities. X plays the cello and there are costs related to her lessons and the hire of her instrument.
[5] See exhibit D
The children’s school fees will increase once they enter the middle school at the College and once again at year 10. At year 7 level, the current basic fees for two children amount to $18,468.00; at year 10, the basic fees for two children are in excess of $32,000.00. Again, these fees do not include other expenses relating to attendance at the school.[6]
[6] See exhibit Q
Mr Carew recognises that there is currently a marked imbalance in respect of the parties’ current level of income. In these circumstances, he is prepared to continue to pay the children’s basic school fees at (omitted). However, he also asserts that as the parties jointly agreed to send X and Y to the school, it is only fair that Ms Carew make some direct financial contribution towards the costs of the children’s education.
He proposes that Ms Carew should pay approximately half of the expenses arising from the children’s extra-mural activities – such as attendance at school camps; music lessons; sporting activities; – as well as providing half of their school uniforms and shoes. In general terms, Ms Carew acknowledges that it is appropriate that she make some form of contribution to these expenses.
However, the parties are unable to settle the educational funding issues on this basis as other complexities arise between them by virtue of the application of the child support legislation.
The Child Support (Assessment) Act 1989 provides a formula for the calculation of the financial support due from each of a child’s parents following relationship breakdown. In general terms, the formula relies on the respective child support income of each parent; the percentage of care provided by each parent; and what is called the level of cost percentage care.
Under the applicable child support legislation, there are provided various mechanisms to alter the administratively applied formula if special circumstances exist to warrant such a departure. Applications can be made to the Registrar of the Child Support Agency to depart from the formula.
Thereafter, an application for departure is entitled to make a further internal administrative appeal and then may make application for a further external decision to the Social Securities’ Appeals Tribunal.
As he is entitled to do, Mr Carew has sought a departure from the applicable administrative decision regarding the provision of child support for X and Y. He did so on the basis of two legislatively specified grounds for departure – firstly the costs of educating the two children concerned and secondly that the applicable assessment was unfair.
Most recently on 26 June 2013, a senior case officer determined that Mr Carew’s annual child support assessment should be reduced because of the moneys he was advancing for X and Y’s school fees. Accordingly, the monthly amount of child support payable by Mr Carew to Ms Carew has significantly reduced.
In these circumstances, it is Ms Carew’s position that her overall financial circumstances have become more straitened and as such, she cannot afford to make any contribution to the costs of the children attending (omitted).
It is her position that the parties patently cannot afford the school fees involved, particularly given that the fees involved will continue to rise inexorably. In these circumstances, although she would prefer X and Y to remain at (omitted), she believes that it is impossible for them to do so.
Other comparatively trivial issues arise between the parties regarding care arrangements for X and Y. These issues arise because over time, a regime has evolved whereby the children spend five nights per fortnight in Mr Carew’s care which is structured around the periods during which he must travel to the (employer omitted) for his employment.
The parties do not communicate well. The outstanding financial issues between them which have led to a marked diminution in their respective standards of living have impeded their capacity to adjust to their changed circumstances and construct a cordial and practical parenting relationship between them.
In these circumstances, the parties find it difficult to agree upon arrangements for special occasions; how the children’s time is to be divided in school holidays, particularly given the ramifications this has for each of the parties’ employment responsibilities and a range of other issues. Regrettably, these issues fail to be determined by the court.
Background to the court proceedings
From the outset of the proceedings in late 2011 and early 2012, Mr Carew was set on achieving what is commonly called a shared care or equal time regime for X and Y. This was strongly resisted by Ms Carew given what she saw as her role as the children’s primary carer and their tender years.
On 14 March 2012 at a child dispute conference, the parties agreed on a regime whereby the children would spend four nights per fortnight with their father. The practice arising being that the children would spend each Wednesday night and alternate Friday and Saturday nights each fortnight in their father’s care. The parties also agreed in theoretical terms that the short school holidays should be shared.
The family consultant who convened the conference, described Mr Carew and Ms Carew as follows:
“Both parties were cooperative with the conferencing process, though communication between them was fraught, and suggested a precariously civil co-parenting relationship. On occasion the mother appeared to alter her position in order to frustrate progress. The conferencing progress was lengthy, and due to time constraints, a number of issues could not be addressed.”[7]
[7] See family consultant memorandum to court dated 15 March 2012
It is now around twenty months since the parties attended this conference. It is my view that the family consultant’s impressions of the parties particularly Ms Carew remain apposite. She was highly emotional during the proceedings, frequently breaking down. Mr Carew is more measured, but remains wearily determined to achieve his preferred position in the case.
The family report
In this context it appeared to me useful to obtain an independent and expert assessment of the family, particularly the nature of the children’s relationship with each of their parents and the overall workability of a shared parenting regime. This report was prepared by Ms T, a psychologist. It was released to the parties in June of 2013.
In her report, Ms T indicated that one of the significant issues arising in the case was the conflict between the parties which was associated with significant inflexibility on both sides. She was also concerned that X and Y were being detrimentally affected by their parents’ unresolved emotional issues arising from their separation and its aftermath. In my finding, this is undoubtedly the case.
In conference with Ms T, Ms Carew focussed on her view that she had been the children’s primary carer and as such, it was important for X and Y to have a sense that they had a home base. She did however acknowledge the importance of Mr Carew in the children’s lives. Underpinning her comments to Ms T was her sense that she was more emotionally in tune with the children than was Mr Carew.
Ms T described Ms Carew as being a very committed parent who presented as being under significant stress as a result of the parties’ unresolved financial situation. This description accords with my own view of Ms Carew. She wants to keep X and Y at (omitted), but does not see how this can occur unless either her child support returns to what it was or Mr Carew assumes responsibility for paying all of the school fees involved.
In this context Ms Carew described to Ms T her view that the husband was motivated more by financial concerns than what was likely to be in the best interests of the children. From my perspective, the sources of parental conflict in this case are deep and endemic. Necessarily, they have precipitated strong emotion particularly in Ms Carew. Ms T wrote as follows in respect of Ms Carew:
“Ms Carew spoke about the current financial arrangements for the children. She said that the father pays for all the school fees, and that the Child Support payment to her is consequently reduced. She said, “I cannot afford to keep them in that school if my Child Support is reduced”. Ms Carew said, “The kids are in limbo (in relation to their future school situation)”. She conveyed that she experiences great frustration about the father’s position on the financial issues between them.”[8]
[8] See family report at paragraph 15
As with the mother, Ms T’s impression of Mr Carew was of a loving and committed parent. It was his view expressed to Ms T that as he was not an abusive or alcoholic parent, there could be no impediment to him being as equally involved in caring for X and Y as was Ms Carew.
Interestingly, like his former wife, Mr Carew saw the aetiology of the significant conflict between the parties as arising from financial issues. In this context, Ms T reported as follows:
“Mr Carew indicated his view that the mother is motivated by financial concerns rather than by the best interests of the children. His statements about the ongoing financial dispute between them indicated a lack of trust toward the mother, including his view that she has access to more money than she claimed.
Mr Carew became emotional during discussion about the school issue. He said, “I desperately want them to go there ((omitted)). Ms Carew knows this is a really touchy point for me, she presses my buttons on this all the time.” He continued to explain that the negotiations between the parents continued to stall, and said, “I just can’t get (the mother to be cooperative)”. [9]
[9] Ibid at paragraphs 24 & 25
At the time of the family report, X and Y were aged ten years and eight months. Ms T’s assessment of the children was that they were experiencing psychological pain as a consequence of their current circumstances, particularly the ongoing financial disputation between their parents.
In Ms T’s assessment, X and Y were confused and distressed by the complex ongoing conflict between their parents. They too saw this dispute in financial terms. In respect of their understanding of the issue of their ongoing attendance at (omitted), Ms T reported as follows:
“Both the children expressed their love of their school. Both children were aware that their future at (omitted) is under question, and both indicated clearly their distress about the prospect that they might have to leave the school. This discussion caused Y to cry more, and X to shed some tears too.”[10]
[10] Ibid at paragraph 35
In Ms T’s assessment, both children had a close and loving parent-child relationship with each of their parents. In addition, both children displayed good social skills. In this context, Ms M was observed to interact lovingly and appropriately with X and Y.
Notwithstanding her assessment that the children enjoyed a strong relationship with their father, Ms T was not in favour of an equal time regime because of the ongoing and unabated conflict between Mr Carew and Ms Carew and their compromised facility to communicate with one another.
Ms T’s view, with which I concur, was that such a regime had the potential to be highly stressful for X and Y and therefore exacerbate rather than reduce their current psychological burden.
As am I, Ms T was struck by what the parties share in respect of their aspirations for X and Y. She described both Mr Carew and Ms Carew as being passionate in their desire to support the children in the best possible ways. In this context, Ms T recommended that the parties consider some therapeutic approach to improving their capacity to communicate with one another.
However, Ms T was also struck by the lack of empathy between the parties, with each of them perceiving that the other was attempting to control him or her particularly through financial means or the restriction of time with the children.
In Ms T’s evaluation, the process of the breakdown of the parties’ relationship appeared “to have left a legacy of extreme and ongoing disappointment for them both.” I accept Ms T’s assessment in this regard.
Ms T in my view, approached the difficult issue of the children continuing to attend at (omitted) both sensitively and professionally. Fundamentally, she approached the issue in child focussed terms rather than financial ones, recognising that the latter bundle of considerations falls within the remit of the court.
On the one hand, Ms T regarded (omitted) as representing a safe haven for X and Y where they could be quarantined from the conflict between their parents. Ms T also recognised that the school was important for the children because of the friendships which they had made there and the excellence of the education the college provided for them which, as high achieving children, both X and Y relished.
On the other hand if, as Ms Carew reported, the issue of the children attending at (omitted) was causing her (Ms Carew) an inordinate amount of stress, this state of affairs would most likely add to the anxieties currently being experienced by X and Y. For obvious reasons, this would not be helpful to the children.
In formal terms, Ms T wrote as follows in respect of the issue of (omitted) College.
“The children were clearly distressed in regard to any notion of leaving (omitted) College. It appeared that for both the children, school is a haven for them where they do not have to be confronted with the conflicts between their parents, and where they feel confident and secure. For children of parents with a high level of acrimonious ongoing dispute that does not resolve, a positive school experience can often function in this way and therefore be a relatively non-stressful part of their lives. These two children, in addition, are high-functioning and are likely to each have important friendships and other associations as part of their school community, and therefore leaving the school will of course be a significant loss for each of them.
If, however, the mother’s presentation is congruent with her real situation, then it is necessary to balance other perspectives along with the perspective of loss that the children would experience. Children are very sensitive to anxiety and stress in their caregivers. It is almost impossible for young children to be immune to this caregiver stress. Therefore, from this point of view, the children’s longer term best interests are better served by reducing that stress, particularly in their primary caregiver. While the children would grieve the loss of their school, if their mother’s situation becomes more manageable for her there are consequent benefits for the children’s psychological development because of the reduction in the stress in their family situation with their mother.
…
In relation to the dispute about funding for the children’s schooling at (omitted), it appears that the children are currently in the difficult situation where they are aware that their future attendance at the school is not assured. This must be very distressing for them both. It is important for both the children and the parents that this issue be resolved as soon as possible. It is the writer’s view that unless the parents can comfortably reach agreement about this, then the decision to move the children to a different school (preferably, not until the beginning of 2014) would be indicated. It is better that ongoing financial stress is reduced and that every effort is made to reduce the irritants that prolong the parental acrimony.
If a different school is to be chosen, then this decision would, in the writer’s view, be best made in consideration of the practical issues for the primary weekday parent. From this assessment, that would mean that the school would be likely to be closer to the mother’s home. The next consideration would be to choose a school acceptable to both parents that reduces the travelling distance for the father as much as possible.”[11]
[11] Ibid at paragraphs 43, 44, 51 and 52
Regrettably, the issue of the children’s schooling has not been satisfactorily resolved. In this regard, Ms Carew would prefer for X and Y to remain at (omitted). As a consequence, she has not been able to put forward an alternative school which is convenient to her home and within what she perceives her budget.
I mean her no disrespect, but my impression is that she finds the issue to be too daunting and as such, she is emotionally and intellectually paralysed by it. She has her head in the sand. She wants the children to stay at (omitted) but believes it will be fundamentally unfair to her if they do. However, she cannot think of any realistic alternative.
Mr Carew displays a similar level of inflexibility. He remains fixated on (omitted) College as being the best option for the children and as such, is unable to suggest any compromise. From his perspective, it is clearly the case that Ms Carew is being unreasonable and if he pays the entirety of the children’s tuition fees, it is both fair and logistically achievable for the parties to share the other costs of (omitted), namely uniforms, extra-mural activities and ancillary expenses equally.
The children were in year 5 during the 2013 school year. Middle school commences at year 7. As I understand matters in the publically funded school system, secondary or high school commences with year 8. Thus, if the children remain at (omitted), 2015 is the watershed year. If they move to the public system, it would be best if the decision was made in advance of the start of the academic year in 2016.
In this context, I accept that both parties want the twins to have the best possible education which their parents can afford. In addition, both Mr Carew and Ms Carew are anxious to avoid any unnecessary disruption for X and Y. However, at this juncture, the availability of an obvious education alternative to (omitted) poses great difficulties for the court.
As a consequence of her evaluation of the family, Ms T made the formal recommendations:
· The parties share overall responsibility for X and Y;
· The children live with their mother;
·The children spend time with their father during school terms as follows:
·Five nights in each fortnight including an alternate weekend;
·On special occasions as agreed to emphasise the children’s connection to both sides of their family;
·The children spend half of each school holiday period with each parent provided Mr Carew provide five weeks’ notice of the weeks he wished to have with the children;
·Arrangements be made for the children for each family on Christmas Eve, Christmas Day and Boxing Day each year with the week after Christmas to be shared between the parents in alternate years.
In respect of the issue of (omitted) College, Ms T’s formal recommendation was as follows:
“In regard to the dispute about schooling, that if the parents are unable to work together to ensure the funding for (omitted) College into the future, then the decision about an alternative school be made in consideration of the priority that the alternate school is not far from the mother’s residence (if it is the Court’s decision to support a conclusion that the children live primarily in the care of their mother), and at the same time as close to the father as this allows; and that the children be moved to the new school not until 2014 if at all possible.”[12]
[12] Ibid at paragraph 59
Neither party called Ms T for cross-examination in the trial before me which proceeded in November of 2013. In my assessment, Ms T’s report was insightful. I believe that she has accurately summarised the attitudes and current motivations of the parties accurately.
In these circumstances, I have no reason to disbelieve her assessment of X and Y as children who are emotionally burdened by the significant conflict between their parents particularly in a financial context most readily apparently by the issues surrounding the children’s education.
Following the release of the family report, the parties were able to agree on an extension of Mr Carew’s time with the children to five nights per fortnight. This agreement was formalised in an order of the court made on 25 July 2013. It is based on the retention of the alternate overnight Friday and Saturday each fortnight with the increase of Thursday night in the second week.
In addition, significantly in the context of the current proceedings the parties agreed that the children should continue at (omitted) from the start of 2014 onwards. Orders were also made in respect of Easter (a prior bone of contention between the parties) and in respect of the Christmas and New Year period of 2013/2014.
However, regrettably in my view, other issues of dispute have appeared between the parties which have prevented them reaching a final and concluded agreement. This is highly regrettable. I am concerned that these proceedings represent a bully pulpit from which each can vent their respective frustration and sense of being the other’s victim. In my assessment this is more pronounced so far as the wife is concerned.
The current applications
Each party has submitted a detailed proposal regarding the appropriate orders to be made in these proceedings in respect of both property and children. Given the length and detail of these proposals, it is not readily apparent on what they agree and disagree upon. In addition, the orders deal with some hypothetical situations such as overseas travel which are not likely to be pressing matters for some time.
Issues in respect of property can be summarised as follows: The husband proposes that there be a $25,000.00 split from his (omitted) superannuation fund in Ms Carew’s favour, but no other property orders be made. Necessarily, it is implicit in his position that each party should hold the assets currently in their respective possessions together with any relevant liabilities.
It is the wife’s position that the husband should pay her the sum of $50,000.00 together with a fifty per cent split of his superannuation entitlements as at 31 December 2012. In the alternative, if the husband is found to be unable to pay the immediate sum of $50,000.00, she seeks a seventy per cent split in her favour of the husband’s superannuation entitlements.
In terms of the orders in respect of the children, it is easier to work from the husband’s proposal.[13] To his credit, Mr Carew has taken on board the majority of Ms T’s recommendations. In particular, he does not wish to change the existing orders made 25 July 2013 which deal with arrangements for the care of the children during school terms.
[13] See amended response filed 24 October 2013
He seeks the following orders:
“2. That Mother and Father have equal shared parental responsibility for the care, welfare and development of the Children of the relationship namely X and Y ("Children").
3. That save as may be ordered otherwise, the children shall live with the Mother.
4. That the parties be jointly responsible for major costs incurred by or on behalf of the Children including major health and dental costs and costs for the Children's extra-curricular activities.
5. That both parents be permitted to liaise directly with the Children's school and sporting bodies to receive school notices, information newsletters, portfolios, school reports, school photographs and any other necessary information about the Children's progress and if only one copy is provided to one parent then that parent undertakes to provide the copy to the other parent for their perusal within a timely manner.
6. Per the Orders (paragraph 9) made by Federal Magistrate Brown on 25 July 2013 the Children will spend 5 nights per fortnight with the Father during school term (Appended hereto).
Week 1
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
M
M
F
M
M
F
M
Week 2
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
M
M
F
F
F
M
M
7. For one week (Monday to Sunday inclusive of any public holidays) of the short school term holidays noting that no less that 5 weeks prior to the commencement of the short term school holiday, the Father will provide in writing to the Mother details of the week he will be able to care for the children:(i)If the week commences in the first half of the school holidays then from the Monday morning with the Father to collect the children from the Mother's place of residence at 8.00am until 8.00pm on the middle Sunday of the school holiday period with the Mother to collect the children from the Father's place of residence.
(ii)If the week commences in the second half of the school holidays then from the Monday morning with the Mother to drop the children at the Father's place of residence at 8.00am until the following until 8.00pm with the Father to drop the children at the Mother's place of residence.
(iii)If a public holiday falls on a Monday of Week Two then the Father is to have the children in his care until 8.00pm on the Monday Public Holiday save and except for Easter and Christmas.
8. In the event that either parent is unable to care for the children during their respective periods pursuant to these Orders, then the other parent is to be given first option to care for the children and IF the other parent is not able to care for the children then it is the responsibility of the parent who would usually have the children in their care to find alternative arrangements for their care and the contact details of the alternative arrangements be provided to the other parent prior to the children being in that care.
9. That the children will spend time with either the Mother or Father on the occasions of the birthday of the parent and the parent's partner as follows:
(a)In the event that, the parent or a partner of either of the parties has a birthday which falls on a day or weekend that the other parent is scheduled to have the children in their care then the parties will arrange to swap the day they have the children. The parent requesting the change will be responsible for picking up the children at 10.00am from the other parent's place of residence and returning the children at 10.00am the following day to the other parent's place of residence (in the event that the birthday falls on a weekend) or picking the children up at 6.00pm and taking the children to school the next day
(b)As otherwise agreed between the parties.
10. That each parent encourages and facilitates telephone communication between the Children and the other parent on a regular basis whilst the children are in their care or as requested by the children, but no less frequently that once every three days, and specifically that:
(a)The Father telephone the Mother or the children directly every Tuesday and Sunday night at 8.00pm if they are not already in his care.
(b)The Mother telephone the Father or the children directly every Wednesday and Saturday night at 8.30pm that the children are in the Father's care.
(c)Either the Mother or Father telephone the children on the children's birthday when they are not already in that parent's care
(d)Any other time as requested by the Children.
11. Each of the parties, their family members, servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Children (or any of them) and from permitting any other person to do so.
12. That in the event that either of the Children are unwell and unable to attend school or sent home from school that party with whom they are living or spending time will forthwith advise the other party and advise of any medical appointments required by the child.
13. That the parties each be at liberty to attend at all medical, psychological or other specialist appointments relating to the care welfare and development of the children.
14. That the Mother makes readily available to the Father all necessary school. sporting and performance uniforms and footwear required by the children during the time the children are in the Father's care. That handover of the Children is to generally occur at the Mother and Father's residences or as otherwise agreed between the parties.
15. That the Mother and Father will be responsible for the day to day decisions concerning the care of the Children when the Children are living with him/her or spending time with him/her except as otherwise ordered:
16. That each party is to take the Children to their respective sporting and from other extra-curricular activities, social activities or appointments which occur during the time they are with the Children and as is reasonably practical
Easter 2014 and thereafter
17. Per the Orders (paragraph 6) made by Federal Magistrate Brown on 25 July 2013 (Appended hereto).
The Children spend time with the parents at Easter as follows:
(a)In 2014 with the Mother from after school on Maundy Thursday until 8.00pm on Easter Monday and each alternate year thereafter:
(b)In 2015 with the Father from after school on Maundy Thursday until 8.00pm on Easter Monday and each alternate year thereafter NOTING the Father will return the Children to the Mother's place of residence.
NOTING:
If when the Mother has the Children at Easter and is not intending on going away from the Adelaide metropolitan area on Easter Sunday then the Father may collect the Children from the Mothers place of residence at 10.00am (for the purpose of giving gifts and having lunch together) and return them to the Mothers place of residence at 3.00pm;
AND
If when the Father has the Children at Easter and is not intending on going away from the Adelaide metropolitan area on the Good Friday then the Children will remain in the Mothers care on Good Friday (for the purpose of having a family lunch) with the Mother returning the Children to the Fathers place of residence at 3.00pm
Christmas 2013 and New Year 2014
18. Per the Orders (paragraph 7 (a)(b)(c)(d)) made by Federal Magistrate Brown on 25 July 2013 (Appended hereto).
The Children spend time with the parents during school holiday periods and Christmas 2013 as follows:
(a)With the Mother from 20 December 2013 until 28 December 2013 NOTING at 5.00pm on Christmas Eve the Mother will deliver the Children to the Father's place of residence until 3.00pm on Christmas Day when the Father will return the Children to the Mother's place of residence;
(b)With the Father from 10.00am on 28 December 2013 when the Mother will deliver the Children to the Father's place of residence until 8.00pm on 1 January 2014 when the Father will return the Children to the Mother's place of residence.
(c)With the Mother from 8.00pm on 1 January 2014 until 10.00am on 12 January 2014 when the Mother will return the Children to the Father's place of residence; and
(d)With the Father from 10.00am on 12 January 2014 until 8.00pm on 27 January 2014 with the Father returning the Children to the Mother's place of residence.
Christmas 2014
19. At Christmas time in 2014 and at the same times each alternate year thereafter:
(i)From 5.00pm on Christmas Eve with the Father to drop the children at the Mother's place of residence until 3.00pm on Christmas Day with the Mother to drop the children at the Father's place of residence; and
(ii)With the Father from 3.00pm on Christmas Day until 10.00am on New Years Eve with the Father to drop the children at the Mother's place of residence.
For the balance of the Christmas school holiday period each year equally as agreed between the parties
Father's Day
20. That the Father spend time with the children on Father's Day weekend each year:
(a)If the children are not already in the care of the Father then from 5.00pm the Saturday prior to Father's Day with the Mother to drop the children at the Father's place of residence until 8.00pm on the Sunday of Father's Day with the Father to drop the children at the Mother's place of residence on the Sunday.
Mother's Day
21 If Mother's Day falls on a weekend that the children are in the Father's care then the children will spend time with the Mother from 5.00pm on the Saturday prior to Mother's Day with the Father to drop the children at the Mother's place of residence and the children will remain in the care of the Mother on the Sunday.
Overseas Travel
22. If either parent intends travelling overseas without the children then they are to provide as much written notification as possible and unless such travel is for the purposes of work and required to be at short notice, such written notification is to be not less than 6 weeks prior to the commencement of the travel and give the other parent the first option to care for the children during this period.
23. Intended overseas travel with the children with that parent to provide to the other parent a proposed itinerary and destination/s of travel and contact arrangements for the children not less than 30 days prior to the proposed travel noting that consent of the non-travelling parent will not to be unreasonably withheld.
24. In the event of overseas travel, then the parent who has possession of the Children's passport is to provide the passport to the travelling parent no less than 10 days prior to the departure date.
25. That each parent will endeavour not to plan an overseas holiday outside of the normal school term period (if intending on taking the children). so as not to disrupt the children's educational development.
Interstate Travel
26. Intended travel with the children outside the State of South Australia with that parent to provide to the other an itinerary and destination of travel and contact arrangements for the children no less than 10 days prior to the proposed travel.
Schooling
27. Per the Orders (paragraph 8) made by Federal Magistrate Brown on 25 July 2013 that the children continue to attend (omitted) Primary School ("Children's school") from the commencement of the 2014 school year.
28. That the Father be responsible for the costs incurred in sending the Children to private schooling so long as that school is (omitted) Primary School.
29. That the Children attend (omitted) College from the commencement of the 2015 school year.
30. That the Father be responsible for the costs incurred in sending the Children to (omitted) College. I reserve the right however, to continue to use the valid process of applying for a Change of Assessment through the Child Support Agency ("CSA") should mine or the Applicant's personal or financial circumstances change into the future.
General
31. That each parent advises the other of the following:
(a)Their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
32. Such further Orders as this Honourable Court sees fit.”
During the course of the hearing, I asked Ms Carew about which of these orders she agreed and with which she disagreed.
It is my understanding that she agrees with orders 2 to 6 hereof, namely the orders dealing with parental responsibility and term time arrangements.
In addition, Ms Carew is in general agreement with order 7. However, she seeks clarification in respect of the order particularly in respect of a mechanism to determine which week of each such school holidays the parties should receive and how precisely the duration of such a week is to be calculated.
It is my further understanding that the wife agrees with orders 8, 9 and order 10, other than order 10(b) in respect of which she seeks that the time be 8:30pm rather than 8:00pm. In addition, the wife agrees with the husband’s proposed orders 11, 12, 13, 15 and 16.
The mother queries order 14. In my view this order which deals with the exchange of uniforms, footwear and other school appurtenances, is emblematic of all the difficulties between the parties. It is a common phenomenon for separated parents who communicate with difficulty but nonetheless must interact frequently with one another to fall into disputation about such issues.
As has previously been indicated, each party feels hard done by in respect of their respective provision to the children of school uniforms and the like. In particular, Ms Carew feels that this burden largely falls on her shoulders and she is aggrieved because the husband has successfully reduced his child support liability by a departure application to the Child Support Agency.
Orders 17, 18, 19 and 20 are also agreed. These orders encapsulate the earlier orders made by the court in July of 2013 which deal with arrangements for Easter, Christmas, Father’s Day and Mother’s Day. Orders 22 to 25 deal with overseas travel.
Neither party has any specific proposal for such travel in the foreseeable future. However, from the wife’s perspective the orders are agreed in principle. In addition, Ms Carew agrees with order 26 which deals with interstate travel provided she gets greater than 10 days’ notice of the proposed travel. She would like weeks rather than days’ notice.
Orders 27 to 30 deal with the children’s schooling. As previously indicated, notwithstanding Ms T’s recommendation, Ms Carew has not provided any specific alternative school to (omitted). In addition, in an ideal world she would want X and Y to continue at the school.
It is however the underpinning of her position that she cannot afford to contribute financially to the children attending (omitted) in any way whatsoever if the children continue to live with her for nine days per fortnight and she receives the currently assessed level of child support from Mr Carew.
In her further amended application filed on 12 March 2013, she proposes the following orders in respect of the children’s education:
“18. That as and from the commencement of the 2014 school year, the children do attend a public primary school located in the zone in which the mother resides.
19. That in the event that the father wishes to continue to have the children attend (omitted) College from 2014 onwards, then:
19.1The father shall re-enrol the children under his name only:
19.2The father be solely responsible for all (omitted) College school fees for both children save for those listed in paragraph 19.4.2 herein’
19.3The father do pay periodic child support as assessed by the Child Support Agency from time without any deduction as a result of the payments he makes under paragraphs 19.2 and 19.4 herein.
19.4The parties share equally:
19.4.1The cost of any agreed medical and dental expenses not already covered by private health insurance.
19.4.2Any agreed children’s expenses including school camps, school excursions, sporting attendances, school uniforms and sporting and extra-curricular club fees or subscriptions.”
These proposed orders were agreed prior to the consent orders of July 2013 which as previously indicated envisage for the 2014 school year. These orders were made with the consent of each of the parties.
As I understand matters, the husband would agree to order 19.4.2 as propounded by the wife above. However, it would seem to be the position that Ms Carew has resiled from this position in the light of recent decisions of the Registrar of the Child Support Agency.
The evidence
Both parties appear to me to be honest and pleasant individuals who had regrettably found themselves in the invidious position of suffering a difficult and protracted marital breakdown. Both struck me as wanting to do the right thing by the other and their children but the intractability of their emotional response to their difficult situation makes this very difficult indeed.
The parties have been offered many opportunities by the court to resolve the issues in dispute between them. As early as 17 May 2012, they agreed on the division of their property but this agreement evaporated because the wife perceived that the husband had not been completely frank about his financial situation, particularly the nature of his financial relationship with Ms M.
In addition, there have been three child dispute conferences organised for the parties. The most recent of these occurred on 25 June 2013, following the release of Ms T’s report. In this conference, the parties agreed on arrangements in respect of Christmas 2013. The parties also agreed in principle that it would be in X and Y’s best interest to continue at (omitted).
The family consultant concerned reported that the parties recognised the negative impact the ongoing acrimony between them had for X and Y. However, she considered that unfortunately outstanding financial matters between the parties prevented them from moving on.
The family consultant concerned described the dynamic between the parties in the following terms:
“The wife became very distressed and argued that she could not afford to live on the child support provided to her.
Ms Carew was particularly upset because she had lost her own business and her re-employment efforts had been difficult. Ms Carew strongly argued that Mr Carew could afford to pay her far more, as she had made all the financial sacrifices up to that point, whilst he had made none.
On the other hand, Mr Carew maintained that he could afford to pay no more and has been keen to impress that he too faced a challenging financial future. He also impressed the family consultant concerned as wanting to reach a final resolution with Ms Carew.”
In my assessment, this was the dynamic which was maintained at the trial of the matter. Ms Carew was frequently emotional and lacking in objectivity. She remains fixated on her view that Mr Carew has not suffered financially as she has since the end of the parties' marriage. During the trial she presented herself as being essentially the victim of Mr Carew.
In my assessment for these reasons, Mr Carew is likely to be the more objective and reliable witness. It is my view that he is genuine in the expression of his view that he wants to resolve all matters between him and Ms Carew and in so doing has compromised far more than has she.
For all these reasons in my assessment Mr Carew is likely to be the more reliable financial historian of the two parties. I reject any notion that he has concealed assets from Ms Carew or has diverted his income to Ms M. Where there is a dispute between the evidence of Mr Carew and Ms Carew, I prefer Mr Carew’s evidence.
In these reasons for judgment, findings of fact are made on the balance of probabilities following my observation of the parties concerned. In these reasons for judgment, statements of fact constitute findings of fact.
a)Chronology
The husband was born on (omitted) 1961. The wife was born on (omitted) 1974. They met in 1997 and became engaged in (omitted) 1998. They married on (omitted) 1999.
At the time the parties met, the husband was living in rented accommodation and owned a motor vehicle with a modest value. He had approximately $49,000.00 in accrued superannuation. He was working at (employer omitted).
At the commencement of the relationship, the wife owned a property at Property E. She had purchased the property in 1994 for $110,000.00. It was subject to a significant mortgage which when the property was sold in 1999 stood at just under $95,000.00.
In November of 1997, the husband was made redundant by (employer omitted) and received a redundancy package of around $60,000.00. He later obtained a position with the (employer omitted) in March of 1998, but did not last there, leaving in July of 1998 with a payment amounting to three months’ salary.
After their engagement the parties agreed to purchase a vacant block of land at Property S, with a view to building a home on the property. The purchase price of the land was $99,950.00. The wife provided a deposit of $5,000.00 and the husband provided a sum of $9,249.00 with the balance being borrowed. Whilst the parties saved for their home, they decided to let the wife’s property at Property E and live with the wife’s parents pending construction of the Property S home.
The cost of the dwelling at Property S was $142,776.00. I accept that the husband contributed a significant proportion of his redundancy payment from (employer omitted) towards this sum. From the husband’s perspective, it was a difficult period whilst he and the wife lived with Ms Carew’s parents.
The wife sold the Property E property in 1998 netting around $19,000.00. This sum was utilised to install a swimming pool and complete landscaping work at the Property S home which the parties began to occupy from March 1999 onwards. They were living in the property when they were married.
The parties enjoyed a lavish wedding. The husband concedes that the wife’s parents paid for the main aspects of the wedding. From Ms Carew’s perspective, this is a significant contribution which should be attributable to her in any reckoning the court makes in her favour.
In July of 1999, the husband was employed as the (occupation omitted) with the (employer omitted). Through her (omitted) expertise the wife had assisted the husband in obtaining this position. It was a good job with a commencing salary in the vicinity of $55,000.00 per annum.
It is the wife’s evidence which I accept that she was successful in her position as a (occupation omitted) and regularly earned bonuses which ranged between $500.00 and $2,000.00 per quarter. I accept that these bonuses were utilised to purchase items for the Property S home or to pay joint family expenses.
During the early period of the parties' marriage, I accept that both of them were in regular paid employment and both contributed their earnings to joint family purposes, particularly maintaining the mortgage on the family home and ensuring that it was as comfortable as possible. In addition, both parties were anxious to improve their qualifications in order to maximise their income earning potential. They also began to talk about starting a family together.
Both parties wanted to attend university but it was difficult for them to go there at the same time. Ultimately in 2001, the husband began a (course omitted) studies at the (school omitted), whereas the wife commenced a (course omitted) at (school omitted). From her perspective, this remains a bone of contention as she feels her professional aspirations were sacrificed to those of the husband.
In 2001, the husband left his employment with (employer omitted) and obtained a position with (employer omitted) as the (occupation omitted). The wife began working, full-time at (employer omitted) in a (occupation omitted) role.
She became pregnant with the twins whilst employed with (employer omitted). Her pregnancy was not without its issues and she elected to take a redundancy from (employer omitted) when she was six months pregnant. She received a redundancy package of $16,000.00, which was largely utilised to purchase furniture for the parties’ family home.
In October 2002, the husband ceased his employment with (employer omitted) and commenced employment with (employer omitted) as the (occupation omitted). Whilst in these two positions, the husband began to salary sacrifice a moderate amount each month into his superannuation scheme. Given the current level of his holdings, I reject the wife’s assertion that the amount so sacrificed can be considered excessive.
The twins were born prematurely. The husband was working full-time and studying part-time. It was a difficult and stressful time for all concerned. The wife asserts that the husband absented himself from any homemaking or parenting duties, leaving them all to her and her mother.
This seems to me to be something of an exaggeration but I accept that Ms Carew was fully involved in parenting the twins whilst Mr Carew became the family’s principle bread-winner. Accordingly, it is my finding that both parties continued to contribute, albeit in different ways, to the well-being of the family following the birth of X and Y.
In 2003, the parties decided to purchase a further vacant block of land at Property W with a view to building their dream home on the land. The purchase price of the land was $180,000.00.
From the husband’s perspective, the Property S property was adequate for the family’s needs but the wife aspired to a larger home. It is not necessary to resolve this issue so many years after it arose other than to say that, notwithstanding the husband’s reservations, it was a joint decision to purchase the Property W land.
In October 2003, the parties sold their home at Property S for $541,000.00, releasing equity of approximately $300,000.00 all of which was directed towards the construction costs of the Property W property. During the construction phase of the property the parties along with X and Y returned to live with the wife’s parents for a period of around eighteen months.
The parties moved into the Property W property in October of 2004. It was a comfortable and well-appointed home. It was also subject to a significant mortgage of approximately $800,000.00. By this stage, the wife had returned to part-time work.
It is her case that she continued to remain responsible for all parenting arrangements for the twins with little if any assistance from Mr Carew. From his perspective, he assisted with the preparation of meals, washing and drying clothes and bathing and dressing the children, as well as other general household duties including cleaning and vacuuming.
In 2005, the husband obtained a new position with (employer omitted), as a (occupation omitted) on a salary of $129,000.00. This sum was inclusive of his superannuation contributions which amounted to 10.5% of his salary.
In addition, he entered into an arrangement with (employer omitted) in respect of a novated lease for a Mazda (model omitted). The monthly lease repayments were $1,200.00 which the husband paid through a salary sacrifice arrangement which created a taxation advantage for him.
In October 2006, the parties separated when Ms Carew and the children moved out of the Property W property and moved in with her parents. This led to the property being placed on the market.
It was sold in February 2007 for a sum of approximately $850,000.00, releasing equity in the sum of around $230,000.00, which was divided with a slight weighting of $20,000.00 in the wife’s favour.
In mid-2007, the parties reconciled. At the time the wife was engaged in part-time (omitted) work. Around this time the parties purchased a new motor vehicle for $58,000.00. This was a Nissan (model omitted) motor vehicle. It was paid for from the proceeds of sale of the Property W property.
The parties began to look for a home to purchase in order to make a new start following their reconciliation. In early 2008, the wife returned to full-time work. Ultimately, the parties decided to purchase a property located at Property D. The purchase price was $1,300,000.00, with costs of around $75,000.00. The parties moved into the property in March of 2008.
The parties utilised the balance of the proceeds of sale from the Property W property (approximately $175,000.00) to purchase the Property D property borrowing the balance of $1,200,000.00 from the (omitted) Bank. Both parties now agree that the purchase was beyond their means. They each now blame the other for what has turned out to be a disastrous financial decision. It is neither useful nor relevant to attempt to attribute blame for the decision.
If the parties had remained married to one another, there is an implied assumption which each must be taken to have recognised that they would combine their respective superannuation holdings together to provide mutual financial support for one another in their retirement. Undoubtedly the parties wove their respective financial situations into one.
In all these circumstances, I have come to the conclusion that it is just and equitable to embark upon a division of the parties’ combined superannuation holdings. Necessarily, such a division can only occur in the light of the considerations arising under section 79(4) particularly paragraphs (a)-(b), which deal with issues of contributions and paragraph (e) which entails an assessment of the prospective needs of the parties concerned pursuant to the provisions of section 75(2).
The Full Court of the Family Court in the case of Bevan& Bevan,[33] has recently considered the application of Stanford to property proceedings, particularly the multi-step process envisaged by cases such as Hickey & Hickey & Attorney-General (Intervenor)[34] remained applicable.
[33] Bevan& Bevan [2013] FamCAFC 116
[34] Hickey & Hickey & Attorney-General (Intervenor) (2003) FLC 93-143
It noted that the High Court had neither approved nor disapproved such an approach. Rather, the High Court had sought to refocus the attention of trial courts such as this one on their obligation not to make an order adjusting property interests unless it was just and equitable to do so.
From this I take it the four step process remains a valid approach in the vast majority of cases provided care is taken not to overlook the requirement that all orders altering property interests in proceedings arising under the Act be just and equitable.
In Bevan the majority of the Full Court considered it impossible to provide an exhaustive definition of circumstances where it would be just and equitable to make an order altering the property interests of the parties concerned. However, it was also pointed out by the Full Court that it would potentially be erroneous for a trial court to ignore the matters raised in section 79(4) in coming to such a decision.
The majority of the Full Court rejected any notion that the determination of whether it was just and equitable to make a property order was to be considered a threshold issue. It said as follows:
“First…the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although section s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such an order must be just and equitable.
…
It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them.”[35]
[35] Ibid at [86] – [87]
Whether it is just and equitable to make any particular property order is invariably inextricably interwoven with questions of contribution arising under section 79(4) and the parties’ financial and relationship history with one another.
Although the court must be careful not to combine issues arising under section 79(2) with the exercise arising under section 79(4), it is artificial to divorce them from each other. Section 79(2) does not represent a threshold to be crossed prior to the undertaking of the section 79(4) exercise.
Contributions arising pursuant to section 79(4)(a)(b) & (c) (the so-called second step) can be broadly categorised under two headings. The first kind is contributions to the property: financial contributions and non-financial contributions made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[36]
[36] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
Section 79(4)(e) mandates the court to have reference to the matters listed in section 75(2) of the Family Law Act 1975. In the main the factors there listed deal with each of the parties’ prospective needs (the so-called third step).
However, as previously indicated pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
As appears clear from the re-stated principles appearing in Stanford, the “overriding requirement” of section 79 is that considerations of justice and equity should inform the process envisaged therein. The exercise I must undertake is not a “process of social engineering”[37] or of equalisation of assets or financial resources.
[37] See Waters & Jurek (1995) FLC 92-635
Marriage is, by and large, a joint enterprise. How much buffer spouses must give one another when financial set-backs occur must depend on the degree of consultation and acquiescence in their relationship.[38]
[38] See D & D [2003] FamCA 473 at paragraph 49
The task set out for me in this case, requires me to balance and compare contributions which are by their nature different within the framework of a marriage. Many contributions in a marriage such as being a homemaker do not result in the direct acquisition of assets. They are also difficult to value. The discretion I have is a wide one. It is however not an exercise in “palm tree justice”.[39]
[39] See In re: Watson: ex parte Armstrong (1976) FLC 90-059 at 75,270
In this context, the following comments of Gibbs CJ in Mallett & Mallett [40] remain apposite:
“Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the Court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.”
[40] Mallett & Mallett (1984) FLC 91-507
As previously indicated, the only significant financial resource which can be the subject of these proceedings is the parties’ respective superannuation holdings. Pursuant to section 90MC of the Family Law Act, superannuation interests are to be treated as property. As such, they attract the provisions of section 79(4) of the Act.
In C & C[41], the Full Court of the Family Court has described superannuation as a different “species of asset” from other forms of property.
[41] C & C (2005) FLC93-220
This is because superannuation, particularly in its accumulation phase, cannot be easily translated into cash unlike other more “conventional” assets such as land and personal property and so its value accurately determined by sale.
In C & C, the majority of the full court of the Family Court held as follows:
“In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.”[42]
[42] See C & C (supra) at 79,646
The rationale behind the majority’s reasoning in C & C appears to be that, by reason of its special nature, it is often appropriate to assess contributions to superannuation interests separately to contributions made towards other more “conventional” assets.
This is so one or other of the parties’ contributions to that superannuation may be given “proper recognition”. In order to ensure this “proper recognition”, it is necessary for the court to consider what is the “real nature” of the relevant superannuation interest – namely whether it is likely to be received as a recurrent pension or a lump sum or in some other manner.
Discussion and Conclusions
a)Children’s issues
X and Y have been attending (omitted) since reception. They are about to enter Year 6. It is the only school they have ever known. Necessarily they will each have made friends in their year and it will be an emotional wrench for them to leave the school.
Ms T’s evidence which I accept, is that it is X and Y’s preference to remain at (omitted) if at all possible. The children’s views are a relevant consideration for the court in determining how X and Y’s best interests are to be satisfied [section 60CC(3)(a)].
Although the children are young, they are intimately familiar with the school. As such in my view, the children’s views should be given a proper level of consideration by the court in this case and the children themselves although young, have sufficient maturity to express an opinion about the issue which it would be imprudent for the court to overlook.
As previously indicated, both parents wish to participate in making all necessary decisions concerning major long-term issues pertaining to X and Y. This was the background to the children being enrolled in (omitted) in the first place. At that time in 2008, it was both Mr Carew and Ms Carew’s assessment that (omitted) was the best available school for the children. It remains their shared view that (omitted) continues to be an excellent school for their children.
In my view, in these circumstances and in the absence of agreement between the parties otherwise, the court must exercise extreme caution before changing such a longstanding regime which was consensually agreed upon in the first place [section 60CC(3)(c)(i)].
The evidence indicates that Mr Carew has been the motivating force behind the children attending at (omitted). He wishes the children to have educational opportunities which were denied to him as he grew up. Such attitudes frequently motivate parents to make significant financial sacrifices in order to fund their children’s education.
So it has been with Mr Carew. I accept that he has made considerable personal financial sacrifices particularly since the parties separated in order to ensure that X and Y have been able to remain at (omitted). I am satisfied that he will maintain this commitment for the foreseeable future. This is to his credit.
In rough terms, it will cost approximately $15,500.00 per annum (school fees $12,454.00 and incidentals approximately $3,000.00) for the children to attend (omitted). Over the course of the children’s education, it must be considered a very significant sum of money which would stretch even a well-resourced family.
Due to the circumstances of their separation, Mr Carew and Ms Carew are not such a financially well-resourced family. In addition, their currently fraught parenting relationship and the physical circumstances of their separation makes it impossible for them to budget consensually to meet the school fees, as might have occurred if the marriage between them had continued.
Of this sum of around $15,500.00, Mr Carew proposes paying all of the school fees and one half of the incidentals. On my calculations, this represents the lion’s share of the children’s school costs. In addition, he will be assessed to pay a significant, although reduced, level of child support for the children.
On any view, he has exhibited a significant commitment to fulfilling his obligation to maintain X and Y which stems from the parties’ original decision to enrol the children at (omitted). I am satisfied that Mr Carew will continue in future to fulfil this obligation [section 60CC(3)(ca)].
I accept that Ms Carew currently finds herself in straitened financial circumstances, particularly following her period of unemployment which caused her great emotional distress. However, I am satisfied that she was a part of the decision to send X and Y to (omitted) in the first place. In addition, she wishes the children to remain there. Mr Carew’s proposal if accepted, will result in him paying the vast majority of the children’s school expenses.
In these circumstances, it does not seem unreasonable that Ms Carew should be called upon to provide some regular moneys towards the children’s education notwithstanding the resulting reduction in her child support payments. In addition, she is not currently totally bereft of sources of income. At present she has secure employment which provides her with an income of $80,000.00 per year.
It will be a significant change for X and Y if they have to change schools. This is particularly so if as Ms T opines, school represents a place of sanctuary for them. In these circumstances, I believe it is incumbent upon the court to avoid unwarranted changes for the children, particularly in the context of their scholastic arrangements because of the potential for any such change to result in emotional trauma for the children [section 60CC(3)(d)].
Ms T paints a picture of Ms Carew as a person who is highly susceptible to stress. I agree with this assessment as a consequence of my experience of her during these proceedings. She frequently broke down during the proceedings as a result of her perception of how unfairly Mr Carew had behaved towards her. There are indications that X and Y have a strong propensity to pick up on this stress and be deleteriously affected by it.
In this context, Ms T was concerned that if Ms Carew felt stressed by the financial implications of the children continuing to attend at (omitted), this stress may impact upon her capacity to parent X and Y to its fullest potential. I share these concerns.
However, in my assessment given Ms Carew’s current financial circumstances and the parameters of Mr Carew’s proposal to pay for the children’s education, Ms Carew’s concerns are exaggerated. In these circumstances, I have come to the conclusion that it would be potentially more traumatic for the children to leave (omitted) than to remain there because of any potential financial and emotional ramifications for Ms Carew.
I am satisfied that both parties have a responsible attitude to being a parent. In addition, I accept that both have an ample capacity to support X and Y’s emotional and intellectual needs. In particular, Mr Carew is well motivated to ensuring the children achieve their full intellectual potential [section 60CC(3)(f) & (i)].
For all these reasons, I am satisfied that it is on balance, likely to be in X and Y’s best interests to remain at (omitted) College according to the criteria provided by section 60CC. However, welfare considerations cannot be the only determinative factor regarding the children’s future education.
Clearly the issue must have major financial ramifications for each of the parties. As I have foreshadowed, it is a vexed issue as to how intrusive the court can be into the process of determining the ongoing financial support for the two children concerned.
There is a relevant child support assessment which has been subject to a process of administrative departure. There has not as far as I know, been any application to the Social Security Appeals Tribunal (the SSAT) seeking an external review of the departure application dated 26 June 2013.
In Australia, the financial support to be provided by parents to their children is determined by reference to a scheme inaugurated by two pieces of interrelated legislation. Firstly, the Child Support (Assessment) Act 1989 (the “Assessment Act”) and secondly, the Child Support (Registration and Collection) Act 1988 (the “Registration and Collection Act”).
In broad terms, the child support regime creates a mechanism for the financial support to be provided by parents for their children to be calculated administratively through the application of a legislatively prescribed formula. This formula is based on a number of elements primarily related to the respective incomes of the parents themselves and the extent of care which each provides to any child concerned.
The intention of the legislature is that the formula should be transparent and provide fairly for the financial support of children based on an objective assessment of their needs. The formula is also intended to be responsive to the care provided by separated parents for their children.
Under the applicable child support legislation there are provided various mechanisms to alter the administratively applied formula if special circumstances exist which warrant such a departure. Applications can be made to the Registrar of the Child Support Agency to depart from the formula and ultimately to a court of appropriate jurisdiction.
Ultimately, to found the court’s jurisdiction it must be demonstrated that it is just and equitable to depart from the applicable child support formulation and one of a specified number of grounds for departure has been met.
The grounds for departure include the following: high costs involved in spending time with a child; the manner in which the parents concerned expected the child to be educated; the assessment is not properly reflective of the income, property and financial resources of the parents concerned.
Neither party has brought an application to depart from the current child support assessment for X and Y. In any event, having determined that their ongoing attendance at the school is likely to be in X and Y’s best interests I am not persuaded that it would be just and equitable or indeed proper for me to interfere in any way with the current administrative assessment of child support. In any event, this was not the focus of the proceedings before me.
These proceedings have been on foot for too long. Regrettably, the parties have been unable to resolve them notwithstanding their multiple referrals to sources of alternative dispute resolution in the form of property conciliation and child dispute resolution conferences. My impression sadly is that the parties know that they are in dispute, but do not know what they are in dispute about.
In my assessment, the father is the more reasonable and objective parent. He is also the more conciliatory. At the outset of the hearing, Ms Carew indicated that she agreed with the vast majority of the orders sought by Mr Carew. In my assessment, the objections to the orders which she raised are largely cosmetic or made for the sake of objecting. In all these circumstances, I propose to make the orders as essentially sought by Mr Carew.
In all these circumstances, I will hold Mr Carew to his commitment to continue to pay for all of X and Y’s tuition fees at (omitted) College. This is a significant and potentially long-lasting commitment. It is likely it will have implications for the level of financial support which he is assessed to pay Ms Carew pursuant to the applicable provisions of the Child Support (Assessment) Act.
It also seems to me to be appropriate that the parties should otherwise share the cost of provision of the remainder of the children’s other expenses arising from attending at (omitted) College. These include such things as school camps; school uniforms; and other extra-mural activities.
I appreciate that this outcome will mean that Ms Carew is likely to receive a lesser sum in her hand each week by way of child support. However, it will be open to both parties if they wish to review the financial implications of these orders with the registrar of the Child Support Agency. For reasons already provided, I consider that this outcome is the one best calculated to serve X and Y’s interests.
b) Property issues
In my finding, the only property available to be divided between the parties as a consequence of these proceedings is their respective holdings of superannuation. The appropriate date on which to calculate those holdings is the date of hearing. I find the superannuation to be as follows:
Husband's (omitted) Superannuation
$306,320.43
Wife's (omitted) Super
$128,022.12
Total
$434,342.55
The relationship between the parties was one of approximately ten years in duration. It produced two children. The parties each entered the marriage with the intent of sharing their financial resources and creating a family together. Subsequently they had X and Y.
During their marriage when each was able they pursued paid employment. When the children came along, they divided their family responsibilities along conventional lines, the husband being the family’s main bread-winner and the wife remaining in the home. However, as soon as she was able, Ms Carew returned to the workforce.
During their marriage, the parties purchased and sold several properties. They also had a home constructed for them. Their joint intent was to accumulate wealth in the form of their various family homes. Unfortunately, this intention has miscarried.
In my view, it is neither possible nor reasonable for the court to attempt to portion fault for the parties’ parlous financial situation at the end of their marriage other than to say that mutually they made a number of regrettable financial decisions together which were exacerbated by the pressures arising from their separation.
I do not consider that one party can be regarded as a passenger during their married life together. I am satisfied that both contributed albeit at times in different ways to the overall well-being of their family and its acquisition of property. Accordingly, during the parties’ marriage I assess their contributions as being essentially equal.
I also find that one party was not in a significantly better financial position than the other at the outset of their marriage. In this regard, I find that the wife’s pre-existing interest in her former home was modest and was essentially matched by the moneys arising from the husband’s retrenchment package.
In these circumstances, I find that neither party made a contribution of capital at the outset of their relationship which is of such significance that it now warrants special recognition in these proceedings.[43]
[43] See Pierce & Pierce (1999) FLC 92-844 at 85,811
In terms of the parties’ superannuation, I have not been advised as to the wife’s level of holdings as at the date of the commencement of the parties' relationship. Mr Carew had nearly $50,000.00. At the time, he was in his mid-thirties and necessarily had been in the workforce for much longer than the wife who was still in her twenties.
A sum of $50,000.00 represents around 11.5% of the parties’ current total holdings of superannuation. In addition, due to the compounding effects of interest, the provision of this sum has formed the basis of later accumulations of superannuation.
In my view, the husband’s contributions both in respect of both superannuation and other aspects of property have been markedly superior to those of the wife. Specifically, he has assumed responsibility for the parties’ joint debts in a sum of approximately $45,000.00 without any contribution from the wife. In addition, he has been able to double his superannuation holdings from around $146,000.00 to in excess of $300,000.00.
This increase has come about as a consequence of his financial acumen and that of his advisor together with a cyclical improvement in the market. Ms Carew has also increased her superannuation by around 50%. This has been as a consequence of coming off a smaller base than Mr Carew and being able to contribute less money to her fund.
The period since the parties separated is of significant length being in excess of four years. During this period the wife has provided more of the parenting responsibilities for X and Y, but she has not done this without any contribution from the husband.
Over time his input into the children has increased until the current stage where he is providing substantial and significant care for the two children. In addition, in my assessment he has been reliable in respect of the provision of financial support for the children.
Bearing all these factors in mind, I would assess the parties’ various contributions towards the acquisition and preservation of their total holdings of superannuation as favouring the husband by approximately 68% to 32%.
In terms of the parties’ prospective needs, the husband is 52 years of age. As such, he has possibly 12 to 15 years of employment before him. He is also significantly better remunerated than is the wife. As such, he is likely to be able to accumulate sufficient superannuation holdings to make provision for his retirement.
However, he will need to remain focussed on this aspect of his finances as he does not have a great deal of margin for error given his age and the current level of his superannuation holdings. Up to this stage, he has demonstrated a facility to manage his superannuation adeptly. Whether this was fortuitous or skilful remains to be seen.
In his evidence, the husband pointed to the uncertainty in the (omitted) industry, given that (employer omitted) had recently made a number of its employees redundant. However, he conceded that there were currently no plans for his position to be changed and (employer omitted) remained committed to its facilities in the (omitted).
In these circumstances, I accept that Mr Carew has a substantial and reliable earning capacity. This has been characterised by the Full Court as the most valuable “asset” which a party can take out of a marriage.[44]
[44] See Clauson & Clauson (1995) FLC 92-595 at 81,911
In addition, Mr Carew has his tertiary qualifications in (occupation omitted) and (occupation omitted) to fall back on. As such, he has more than one string to his employment bow and is currently employed by one of Australia’s largest public companies.
Ms Carew also has extensive employment experience, particularly in the (omitted) field. In the relatively recent past, she has been able to earn a six figure income. That is not the position now. After a period of employment she is earning a more modest salary which is less than half of that of Mr Carew. I accept Ms Carew’s evidence that she see her employment future as being as a PAYG taxpayer rather than in better remunerated self-employment.
As such, as she is currently placed, Ms Carew has a lesser capacity to provide for her future retirement than has the husband. However, she is eleven years younger than him and so has more years of prospective employment before her.
X and Y are eleven years of age. As such, they are likely to remain dependant on their parents for the remainder of their education. They are being parented in a substantial and significant time regime spending nine days per fortnight with their mother and five days per fortnight with their father.
As such, Ms Carew is likely to experience more dislocation in her hours of work as a consequence of her responsibilities for X and Y than is Mr Carew. As such her opportunities to advance her career may be restricted in future. However, both parties will have to make arrangements to care for the children in the event that they are ill or some other unforseen exigency arises.
In this context, it is germane to point out that Mr Carew is currently purchasing two weeks additional leave each year because of his parenting responsibilities for the children. Accordingly, it is not beyond the bounds of possibility that his future career opportunities may be restricted because of his responsibilities for the children.
In addition, Mr Carew has committed himself to providing for the children’s education at (omitted) for the foreseeable future. This is a factor taken into account in the current child support assessment but nonetheless, he remains assessed to pay child support to Ms Carew.
The weight to be attached to a child support assessment will vary according to the circumstances of each particular case concerned. The court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the children concerned and whether child support is likely to be paid regularly and at an adequate rate in future.[45]
[45] See Clauson & Clauson (supra) at 81,911
I have already made findings in respect of child support issues. I do not accept that Mr Carew has attempted to manipulate his affairs to escape his proper level of child support. In my view, as a PAYG tax payer, his capacity to manipulate artificiality his level of income is extremely limited.
In this regard, I do not consider his salary sacrifice arrangements are unusual or engineered to reduce his salary for child support purposes. To the contrary, in my view, the evidence indicates that Mr Carew has always ensured that he contributes as required and more so to the economic support of the children.
Accordingly, it seems to me to be likely that the Child Support Agency will be able to assess accurately Mr Carew’s level of income into the future. In addition, the Agency will be able readily to calculate the amounts paid by each of the parties towards school fees and extramural expenses relating to X and Y.
In all these circumstances, the agency will be able to apply the applicable child support formula to the idiosyncratic circumstances of parties concerned and assess the appropriate level of child support Mr Carew will have to pay to Ms Carew.
In my view, the current discrepancies in the parties’ earning capacity when combined with the marked imbalance in their respective superannuation holdings, calls for a modest allowance in the wife’s favour in respect of the split to be made from the husband’s superannuation. I would assess this as being in the vicinity of 5%.
Accordingly, I have assessed that the parties’ total superannuation holdings should be divided in the proportion of around 63/37% in Mr Carew’s favour. The relevant amount of total superannuation is reflected by the sum of $434,342.55.
37% of this figure is $160,706.74. Subtracting the superannuation standing in Ms Carew name of $128,022.12, a split in the sum of $32,684.62, from Mr Carew’s superannuation is required to satisfy this calculation.
In all the circumstances of this case, it seems to me that a split from Mr Carew’s superannuation in an amount of $30,000.00 represents a just and equitable outcome of the property proceedings.
The sad reality of the parties’ marriage is that notwithstanding the length of their relationship, it has been a financial disaster for them both. The only asset available to them now for distribution comes in the form of superannuation which by its nature has been able to be quarantined from this disaster.
I am satisfied that Mr Carew has sufficient time before him to replenish his superannuation so that he can have some financial security in retirement. I am also satisfied that it is equitable that Ms Carew, notwithstanding her likely longer working career, should receive some additional amount of superannuation given her currently modest levels of superannuation and the length of the marriage between the parties.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and forty nine (349) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 24 March 2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Costs
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Remedies
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Injunction
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Jurisdiction
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