CHEW & FENG
[2021] FCCA 107
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CHEW & FENG [2021] FCCA 107
Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made - property adjustment – orders made.
Legislation:
Australian Passports Act 2005, s 11
Family Law Act 1975 (Cth), ss 60B, 106A, 60CA, 60CC, 75, 79
Cases cited:
Lotta & Lotta [2017] FamCA 50
Kessey & Kessey [1994] FamCA 162
Mabb & Mabb And Anor [2020] FamCAFC 18
Applicant: MR CHEW
Respondent: MS FENG
File Number: PAC5149 of 2018
Judgment of: Judge Newbrun
Hearing dates: 26 and 27 November 2020
Date of Last Submission: 26 and 27 November 2020
Delivered at: Parramatta
Delivered on: 27 January 2021 REPRESENTATION
The Applicant appeared in person
Counsel for the Respondent: Mr Maddox of Counsel
Solicitors for the Respondent:
Mark Brown & Associates ORDERS
Parenting
(1)That the Mother have sole parental responsibility for the child X born in 2017 relating to major decisions to be made for the child in relation to medical issues, but otherwise and subject to Order (19) below, the parties should have equal shared parental responsibility.
(2)Prior to the Mother making any major decision for the child in relation to medical issues, she shall take all reasonable steps to consult with the Father in relation to her proposed decision, and such consultation process shall occur in a timely fashion. Following such consultation, the Mother shall proceed to make her decision in relation to any relevant major decision affecting the child’s medical needs.
(3)That the child live with the Mother.
(4)That the child spend time with the Father:
(a)Until the child commences school:
(i)each alternate weekend from after preschool Friday until 4 PM Sunday;
(ii)from after preschool Wednesday until the start of preschool Thursday, and Fridays (from 9am to 3.30pm), of each intervening week;
(iii)for 2 periods each year, each of 5 days by agreement, and failing agreement, commencing 1 May and 2 November;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year;
(v)on the Father’s Day weekend, from 6 PM Saturday until 6 PM Sunday;
(vi)such further times as the parties may agree.
(b)After the child commences school until the child’s 6th birthday:
(i)each alternate weekend from after school Friday until 4 PM Sunday;
(ii)from after school Tuesday until the start of school Thursday in the intervening week;
(iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;
(v)on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
(vi)Such further times as the parties may agree.
(c)From the child’s 6th birthday:
(i)each alternate weekend from after school Thursday until the commencement of school Monday;
(ii)in the intervening week, on Friday from after school until 6pm;
(iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;
(v)on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
(vi)Such further times as the parties may agree.
(5)Subject to Order (6) below, that for the purpose of facilitating orders for time, unless collection or return is to the child's pre-school/school, the Father shall collect the child from the Mother's residence at the commencement of time, and the Mother shall collect the child from the Father’s residence at the conclusion of time.
(6)In relation to the child spending time with the Father on Fridays during the daytime, the Father shall be responsible for effecting changeovers to and from the Mother’s residence.
(7)That weekend time shall be suspended during school holiday periods and resume following the commencement of each school term in the same alternate weekend pattern as if school holidays had not intervened.
(8)That school holidays shall be deemed to commence at 9.00 am following the last day of attendance at school and conclude at 5.00 pm immediately prior to the first day of attendance at school in the new term.
(9)That neither party physically chastise the child, nor allow any other person to do so.
(10)That neither party denigrate the other parent or anyone living in a close personal relationship with the other parent, to the child, nor allow any other person to do so.
(11)That each party shall keep the other informed of any significant issues relating to the health and general wellbeing of the child and shall forthwith advise the other of any accident or significant illness affecting the child including providing details of treatment and attendance at doctors and hospitals.
(12)The parties shall consult with each other in relation to any significant education issue regarding the child and ensure that the other party has an opportunity to attend at parent/teacher interviews arranged in relation to the child.
(13)That the Mother ensure that she makes available to the Father, a current telephone number and Skype account on which the Father can contact the child during times referred to herein, or for emergencies.
(14)That each parent be permitted to attend any school, sporting or other extracurricular activity for the child in the nature of which parents are usually invited to attend, and be permitted to obtain from the pre-school or school any newsletter published by the school and any information in relation to the child's progress, including school reports.
(15)That each parent shall facilitate the child's reasonable request to contact the other parent, within a reasonable time of such request being made, or in the case of medical emergencies.
(16)That the Mother do all things and sign all documents to ensure that the Father’s name is placed on the emergency contact list of any pre-school or school that the child attends.
(17)That each parent forthwith advise the other of any medical treatment or prescription for medication and ensure that such medications are delivered with the child at the time of changeover.
(18)That each party keep the other informed of their respective addresses and telephone numbers including landline and mobile and:-
(a)Give to the other party at least 28 days ·written notice of any intention to relocate
(b)In such notice of intention to relocate, stipulate the location of the proposed new residence.
(c)Immediately upon relocating, provide to the other party written notification of the changed address and telephone number.
(19)That the Mother shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian passport for the said child.
(20)That pursuant to section 11(1) of the Australian Passports Act 2005, these orders provide authority for the Minister of Foreign Affairs or delegate of the Minister to issue an Australian Passport for the child.
(21)That the Australian passport issued to the said child shall be provided to the Mother to hold on behalf of the child.
(22)That either party be permitted to travel outside the Commonwealth of Australia with the child, and in the event of proposed overseas travel:
(a)The travelling party shall notify the other party of an intention to travel at least 8 weeks prior to the departure date;
(b)At that time, the travelling party shall provide to the other party a printed itinerary and copy of return travel tickets for both the travelling party, and the child;
(c)At least one week prior to the departure, the travelling party shall provide to the other party a telephone contact number upon which the travelling party and child can be contacted, whilst overseas;
(d)If the travelling party is the Father, the Mother shall provide the child’s passport to the Father at least 2 weeks prior to the departure date and the Father shall return the passport to the Mother within 1 week of return to Australia.
(23)That at the request of either of them, and within a 1 year period prior to the expiry of the child’s current passport, the parties shall do all things and sign all document to cause a new passport to be issued for the child and:
(a)The requesting party shall pay for the passport;
(b)The passport shall be retained in the Mother’s possession, subject to provision of it to the Father, to enable travel, in accordance with the terms of these orders.
Property
(24)That the parties forthwith do all things and sign all necessary documents to cause the solicitor for the Mother, Mark Brown of Mark Brown & Associates, to disburse the proceeds of sale of the property at F Street, Suburb G as follows:
(a)The sum of $198,629 to the Mother;
(b)$54,501 to the Father;
(c)$26,420 to the Australian Tax Office for the Father’s taxation debt.
(25)That the parties forthwith do all things, and sign all documents necessary to cause their Investment Portfolio to be transferred to the Mother.
(26)That the Father and Mother do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
(27)That except as otherwise provided for in these Orders, the Father and Mother each be the sole legal and beneficial owners of all items of all property including furniture, money, motor vehicles, insurances, equities, superannuation entitlements, and personal effects, currently in the possession or control of each of them respectively to the exclusion of the other.
(28)That in the event that either party refuses to execute any deed or instrument necessary to give effect to these Orders, within seven (7) days of being requested so to do, the Registrar of the Court be appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Chew & Feng is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTAPAC 5149 of 2018
MR CHEW Applicant
And
MS FENG Respondent
REASONS FOR JUDGMENT
Introduction
1.This is the determination of final property and parenting proceedings between the parties.
2.The parenting hearing relates to the child X born in 2017 (the child).
3.The Mother lives in Suburb B with the child. She lives with the maternal grandparents. The Father lives in Suburb C, and spends time with the child, in the aggregate, three nights each fortnight. The parties have an arrangement whereby, additionally, the child spends time the Father for 5 days in each of May and November.
Proposals
4.The Father’s proposals are set out in his Case Outline dated 25 September 2020; he seeks final parenting orders, inter alia, that the parties have equal shared parental responsibility for the child, that the child live with the Mother; that the child spend time with him beginning with, in the aggregate, five nights each fortnight, and progressing to an equal time arrangement by the time the child turns six years of age, and the child spend time with each parent equally during school holidays.
5.The Mother in her Case Outline dated 24 November 2020 seeks final parenting orders, inter alia, that she have sole parental responsibility for the child; that the child live with her; and that the child spend time with the Father, until the child’s fifth birthday, in the aggregate, three nights each fortnight, and on special occasions, progressing to from the child’s six birthday, four nights each fortnight, an equal sharing of school holidays, and on special occasions.
Material relied upon
6.The Mother relied upon the following documents:
a)Her Case Outline filed 24 November 2020 and annexures;
b)Amended Response filed on 30 August 2019;
c)Notice of Risk filed on 4 December 2018;
d)Affidavit by Mother filed on 9 September 2020;
e)Affidavit of Ms D (maternal grandfather) filed on 30 October 2019;
f)Affidavit of Ms E (maternal grandmother) filed on 30 October 2019;
g)Mother’s Financial Statement filed on 9 September 2020;
7.The Father relied upon the following documents:
a)His Case Outline filed 25 September 2020 and annexures;
b)Affidavit of Ms Feng filed on 9 September 2020;
c)Family Report dated 29 October 2019;
d)Affidavit of Mr Chew E-filed 14 September 2020;
e)Balance Sheet dated 25 September 2020.
8.The following exhibits were relied upon by the parties:
a)Exhibit A: Family Report dated 29 October 2019;
b)Exhibit B: Mother’s Tender Bundle.
9.The Court has had regard to all of the documentary material relied upon, along with the documents tendered into evidence and the oral evidence taken. The Court has also considered the oral submissions, and written submissions including Case Outline submissions.
Parenting
Evidence
10.Throughout these reasons (including the Court’s discussions under s.60CC of the Family Law Act 1975) the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
11.The Father is aged 37 years, and the Mother is aged 36 years. The Mother’s occupation is manager. He presently works full-time with Employer H as a manager. The Father is presently unemployed with a background working in IT.
12.After the child’s birth, the Mother remained on maternity leave until returning to full-time work in mid 2018. At that time the child was placed in childcare five days per week.
13.From about July 2017 until about 30 July 2018, the Mother had difficulty communicating with the Father about arrangements for the child’s care. The Father usually ignored the Mother’s text communications with him.
14.In July 2018 the Mother was diagnosed as suffering from anxiety for which the Mother was prescribed and continues to take medication.
15.The parties commenced cohabitation in about 2003. They finally separated in about April 2018, under the one roof, and physically separated on 30 July 2018. After this time the Mother and child lived with the maternal grandparents however the Mother would stay in the parties’ former home at F Street, Suburb G some nights each week until about November 2018.
16.During the parties’ relationship, and to date, the Mother has been the primary carer of the child.
17.The child did not spend time with the Father from about 30 July 2018 until about 3 December 2018.
18.On 4 December 2018, Court Orders were made, by consent, for the Father to have time with the child on a stepped in arrangement which increased to each Monday from 9:30 AM to 4:30 PM, and each Thursday from 3:30 PM to 6:30 PM.
19.In about late August 2019 the Mother proposed a further increase in the child’s time with the Father, for the whole of each Thursday from 9:30 AM to 6:30 PM which commenced on 5 September 2019.
20.After the child’s third birthday the parties agreed (the Mother was represented by her solicitor) to the following parenting regime which continues to apply:
a)each alternate weekend from after preschool/school Friday until 4 PM Sunday;
b)from after preschool/school Wednesday until the start of preschool/school Thursday of each intervening week;
c)for 2 periods each year, each of 5 days by agreement, and failing agreement, commencing 1 May and 2 November, and commencing at 9 AM on the first day and concluding at 5 PM the last day;
d)the child spends time with the Father on special occasions, and such further times as the parties may agree.
21.At the time of physical separation, the Father retained the child’s blue medical baby book and refused to return the book to the Mother, even though she was the one who took the child to all of his medical appointments. On 15 August 2018 the Mother sent the Father a text message requesting the return of the baby book and the Father did not return that book to the Mother until 28 September 2018. In oral evidence, the Father stated that there was no practical reason why he could not have returned that book to the Mother earlier.
22.During 2019 and 2020 when the Mother raised with the Father issues about the need to maintain the child’s diet in accordance with the recommendations of Dr J and Dr K, the Father was usually not responsive to the Mother’s concerns.
23.The Father had made a complaint against Dr K, the child’s former paediatrician, resulting in that doctor ceasing to continue as the child’s paediatrician.
24.The child was diagnosed by Dr K with an intolerance to dairy products and an allergy to eggs. The Father told the Mother on numerous occasions that he did not believe the child was allergic to eggs. The Father failed to communicate with the Mother in relation to the child eating chocolate.
25.The Father also made a complaint about the child’s speech pathologist and clinical specialist in paediatric feeding.
26.The Mother continues to experience difficulties in communication with the Father in that although the Father now generally responds to the Mother’s text messages, his replies are most usually not responsive to the issues that the Mother raises with him.
27.In January 2019 the Mother sent a text message to the Father requesting that he provide the spare key for a motor vehicle which had always been in the Father’s possession. The Father did not provide the spare key to the Mother. The Father refused to deal with the Mother directly about the issue and insisted that he raise the issue through legal representatives.
28.Following separation until 1 September 2019, the Father did not pay the Mother any money for the child support, or give her any other financial support for the child. On 2 September 2019, the Father commenced payments of $16 per fortnight, in accordance with the child support assessment and those payments continued until the Mother increased the Father’s time with the child on 29 March 2020, at which time they ceased. The Father does not currently provide any financial assistance to the Mother for child support.
29.The parties are now working well together with regards to collection and return of the child.
30.The Father has a housemate, Ms L. The Father is not in a relationship with this woman. They share rent for the premises at Suburb C. They share equally the payment of household expenses.
31.The Father is currently a 20 minute drive away from the Mother’s residence and the child’s daycare.
32.The Father collects the child from either the Mother’s residence or day care at the beginning of the child’s time with the Father. At the conclusion of the child’s time with the Father, either the Mother will come to the Father’s residence to collect the child, or the Father will return the child to daycare as required.
33.Since the child’s birth, the Father has attended parenting courses to focus on his skills, avoid conflict with the Mother and remain child focused.
34.The Father has attended a peer support group in the Suburb M area since October 2018 for emotional support, communication and conflict management.
35.In March 2019, the Father completed the Up to Parents online training ordered by the Court.
36.In April 2019, the Father completed 10 sessions of the Family Counselling and the New Families Post Separation Parenting program at N Counselling at the Suburb O Family Relationship Centre.
37.In June 2019, the Father completed the six week Circle of Security Parenting Program.
38.In September 2019, the Father completed the 6 week parenting course Parenting After Separation program with P Counselling, City Q.
The Family Report
39.Ms R, family consultant, prepared a family report dated 29 October 2019. She interviewed the parties and the children on 20 September 2019. The Court does not propose to set out the entirety of the content of the family report.
40.The Father told the family report writer that he has been diagnosed as medically unfit to work more than 8 hours per week, due to depression. He told the family report writer that the impact of his depression was primarily cognitive but that this did not impact on his care of the child and that when the child is with him he is very “present”.
41.The family report writer stated that the child presented as a bright and intelligent boy. He appeared to have a close, warm relationship with each of his parents, and each of his parents was observed to respond appropriately to his needs. The child also appear to have a close and warm relationship with the maternal grandparents.
42.The family report writer stated that whilst no negative effects of depression of the father were noted during the observation of his interactions with the child, it was likely that a depression of the severity which the father described would have some impact on his relationship with the child.
43.The family report writer stated that given the child’s apparently positive relationship with each of his parents, it would be considered beneficial for him to spend regular time with each parent.
44.The family report writer recommended that after the child’s third birthday, he spent alternative weekends, from Friday 3 PM to Sunday 3 PM with the father, as well as one night in the intervening week. She recommended that after the child commences school, he spend alternative weekends from Friday 3 PM to Sunday 3 PM, and Tuesday after school until Thursday morning in intervening weeks with the father, as well as half the school holidays.
45.The family report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
46.As to the family report writer’s recommendation that after the child commences school he spend, in the aggregate, four nights each fortnight with the Father, as well as half the school holidays, she stated that she had assumed the child would commence school at the beginning of 2022.
47.The Court accepts the evidence of the family report writer.
Relevant legal principles
48.Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
49.The objects are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
50.In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
51.Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
52.The primary considerations under s 60CC(2) are the benefit to the child of having a meaningful relationship with both of the child’s parents (the meaningful relationship primary consideration), and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence (the need to protect primary consideration). Greater weight is to be given to the need to protect the child from the relevant harm.
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
53.The Mother has been the primary carer of the child from birth to date.
54.The child has a meaningful relationship with both parents and will benefit from a continuance of those relationships.
55.Should the child spend time with the Father as follows there is a reasonable prospect that the child’s meaningful relationship with the Father can be maintained and enhanced:
a)Until the child commences school:
i)each alternate weekend from after preschool Friday until 4 PM Sunday;
ii)from after preschool Wednesday until the start of preschool Thursday, and Fridays (from 9am to 3.30pm), of each intervening week;
iii)for 2 periods each year, each of 5 days by agreement, and failing agreement, commencing 1 May and 2 November;
iv)from 6 PM Christmas Day to 6 PM Boxing Day each year;
v)on the Father’s Day weekend, from 6 PM Saturday until 6 PM Sunday;
vi)such further times as the parties may agree.
b)After the child commences school until the child’s 6th birthday:
i)each alternate weekend from after school Friday until 4PM Sunday;
ii)from after school Tuesday until the start of school Thursday in the intervening week;
iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6PM Christmas Eve until 6 PM Christmas Day each year;
v)on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
vi)Such further times as the parties may agree.
c)From the child’s 6th birthday:
i)each alternate weekend from after school Thursday until the commencement of school Monday;
ii)in the intervening week, on Friday from after school until 6pm;
iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6PM Christmas Eve until 6 PM Christmas Day each year;
v)on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
vi)Such further times as the parties may agree.
56.The evidence of the family report writer was consistent with the above proposals.
57.Should the child spend the above time with the Father, which the Court observes proceeds and increases on a graduating basis, taking into account the young age of the child, the child’s time spent with the Father historically and to date, and the matters discussed below under the need to protect primary consideration, the child should not be exposed to a significant risk of psychological harm.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
58.The Father probably suffers from depression. He suffers from a sleeping problem. During the daytime he suffers from tiredness, including when the child is in his care. Presently, the Father is managing to adequately care for the child despite such depression and tiredness. In this context, the Court refers to the medical reports of the Father’s treating psychiatrist, Dr S, and other medical material relating to the Father, within exhibit B.
59.There is a significant risk that should the Father spend block time with the child beyond the proposed block time to be spent by the child with the Father discussed above under the meaningful relationship primary consideration, his ability to adequately care for the child will be detrimentally affected. The evidence of the family report writer was consistent with this view.
60.The Court is of the view that it is likely that the Father will be able to adequately care for the child despite his depression and tiredness should he spend time with the child pursuant to the Court’s proposals as discussed above under the meaningful relationship primary consideration. The evidence of the family report writer was consistent with this view.
61.The Court does not have any significant concern in relation to the Father’s friend and flatmate Ms L. There is no significant evidence before the Court that this woman poses a risk of harm to the child. The Court accepts the Father’s evidence that Ms L interacts well with the child when it occurs. The Mother not made no significant complaint relating to Ms L to the family report writer. In relation to paragraph 42 of the Mother’s trial Affidavit, the Mother raised this matter with the Father and he responded attentively to the Mother’s concern. The child presented to the family report writer as a bright and intelligent boy with close warm relationships with each parent and she observed that they responded appropriately to his needs.
62.The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
63.The child is too young to express any relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
64.The Court refers to its discussion above under the meaningful relationship primary consideration.
65.The child has positive relationships with the maternal grandparents.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
66.The parents appear to have taken such opportunities. In relation to the Father’s communications with third parties and the Mother in relation to the child’s medical issues, the Court refers to its discussions below under the heading Parental Responsibility.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
67.Both parties appear to have contributed towards the financial maintenance of the child, consistent with their financial resources, during the relationship. Post separation, the Father has paid minimal child support, with the Court observing that the Father has been unemployed since about mid 2016. Post separation the Mother has provided for the financial support of the child.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
68.The Court refers to its discussions above under the primary considerations. Should the child spend time with the Father pursuant to the Court’s proposals under the meaningful relationship primary consideration, the child’s meaningful relationship with the Mother should not be detrimentally affected.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
69.Not applicable.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
70.The Mother has such capacities.
71.Subject to the Court’s discussions above under the primary considerations, the Father probably has the capacity to provide for the child’s emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
72.The Court refers to its discussions above under the primary considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
73.Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
74.The Mother has demonstrated appropriate attitudes.
75.As to the Father, subject to the Court’s discussions above in relation to s60CC(3)(ca) and below under the heading Parental Responsibility, the Father has demonstrated appropriate attitudes.
(j) Any family violence involving the child or a member of the child's family
76.Not applicable.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
77.Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
78.The Court’s proposals in relation to the child spending time with the Father discussed above under the meaningful relationship primary consideration would probably be least likely to lead to the institution of further proceedings in relation to the children, compared to the proposals of the Father and the Mother. The Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
79.It will be in the best interests of the child to make the Mother’s proposed parenting Orders 5-23. However, in relation to changeovers in respect to the child spending daytime time with the Father on Fridays, the Father shall affect changeovers by picking up and returning the child to the Mother’s residence.
Parental responsibility
80.It will be in the best interests of the child that the Mother have sole parental responsibility for the child relating to medical issues, and in relation to signing all necessary documentation, organising and obtaining an Australian passport for the child, but otherwise the parties should have equal shared parental responsibility.
81.In the view of the Court, there is a substantial risk that the parties will not be able to reach agreement in a timely fashion relating to major decisions to be made in relation to medical issues for the child.
82.The Father has previously made a complaint against Dr K, paediatrician, in relation to a diagnosis he made for the child, and which resulted in that Dr having to cease to act as the child’s paediatrician. The parties continue to have minimal communication with each other, albeit that it is civil when it occurs.
83.The Court refers to the evidence of the family report writer in the context of medical decisions to be made for the child. Whilst in oral evidence the Father stated that he has no concerns with the Mother’s care of the child, he had told the family report writer that the Mother may misinterpret things that doctors tell her and that, as such, it is important that he have access to the child’s doctors’ notes; these statements of the Father suggest a not insignificant lack of trust by the Father towards the Mother in relation to her ability to correctly process information provided by doctors to her in relation to the child.
84.The Court should state at this point that the Mother impressed the Court as an intelligent woman (the Mother has a responsible position as a manager for Employer H) who gave truthful evidence. The family report writer had commented that the Father had suggested he was not aware of information regarding the child’s medical needs, despite stating that he had access to all the child’s medical records. The family report writer had commented that the Father denied having any communication issues with the Mother, but also said that she does not provide him with information, or may have incorrect information. The family report writer had further stated, in oral evidence, that even assuming that the Father’s complaints to the child’s various health providers were not vexatious in nature and were genuine, she would still question the Father’s capability to negotiate around those medical issues rather than escalating such issues to a complaint.
85.Taking the above matters into account, in particular there is a real risk that the Father will seek to challenge medical decisions sought to be made by the Mother for the child and that there will be disputation and delay in the making of major decisions relating to the child’s medical needs. Such disputation and delay may well lead to conflict occurring between the parties, with associated detriment to the child.
86.The evidence of the family report writer is consistent with the above views relating to parental responsibility as to medical issues for the child.
87.As to the Mother having sole parental responsibility in relation to obtaining an Australian passport for the child, based upon all the evidence before the court, in particular relating to dealings between the parties post separation, such an Order will facilitate the more timely obtaining of an Australian passport for the child as opposed to making the Father’s proposed orders in relation to passports.
88.As to equal time, it will not be in the best interests of the child to order that he be subject to an equal time arrangement between the parties, and in this regard the Court refers to its discussions above under the primary considerations. In particular, and again, should the child spend block time with the Father beyond the Court’s proposals discussed above under the meaningful relationship primary consideration, there is a significant risk that the Father will not be able to adequately care for the child. And further, the limited extent of the parties’ ability to communicate with each other would not be supportive of an equal time arrangement. Equal time would probably be reasonably practicable.
89.As to substantial and significant time, the Court’s proposals discussed above under the meaningful relationship primary consideration will probably constitute substantial and significant time under s 65DAA(3) of the Act, and such time will be reasonably practicable.
Summary
90.Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)That the Mother have sole parental responsibility for the child relating to major decisions to be made for the child in relation to medical issues, but otherwise the parties should have equal shared parental responsibility.
(2)Prior to the Mother making any major decision for the child in relation to medical issues, she shall take all reasonable steps to consult with the Father in relation to her proposed decision, and such consultation process shall occur in a timely fashion. Following such consultation, the Mother shall proceed to make her decision in relation to any relevant major decision affecting the child’s medical needs.
(3)That the children live with the Mother.
(4)That the children spend time with the Father:
(a)Until the child commences school:
(i)each alternate weekend from after preschool Friday until 4 PM Sunday;
(ii)from after preschool Wednesday until the start of preschool Thursday, and Fridays (from 9am to 3.30pm), of each intervening week;
(iii)for 2 periods each year, each of 5 days by agreement, and failing agreement, commencing 1 May and 2 November;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year;
(v)on the Father’s Day weekend, from 6 PM Saturday until 6 PM Sunday;
(vi)such further times as the parties may agree.
(b)After the child commences school until the child’s 6th birthday:
(i)each alternate weekend from after school Friday until 4PM Sunday;
(ii)from after school Tuesday until the start of school Thursday in the intervening week;
(iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;
(v)on the Father’s day weekend, from 6 PM Saturday until 6PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
(vi)Such further times as the parties may agree.
(c)From the child’s 6th birthday:
(i)each alternate weekend from after school Thursday until the commencement of school Monday;
(ii)in the intervening week, on Friday from after school until 6pm;
(iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;
(v)on the Father’s day weekend, from 6 PM Saturday until 6PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
(vi)Such further times as the parties may agree.
(5)That for the purpose of facilitating orders for time, unless collection or return is to the child's pre-school/school, the Father shall collect the child from the Mother's residence at the commencement of time, and the Mother shall collect the child from the Father’s residence at the conclusion of time.
(6)In relation to the child spending time with the Father on Fridays during the daytime, the Father shall be responsible for effecting changeovers to and from the Mother’s residence.
(7)That weekend time shall be suspended during school holiday periods and resume following the commencement of each school term in the same alternate weekend pattern as if school holidays had not intervened.
(8)That school holidays shall be deemed to commence at 9.00 am following the last day of attendance at school and conclude at 5.00pm immediately prior to the first day of attendance at school in the new term.
(9)That neither party physically chastise the child, nor allow any other person to do so.
(10)That neither party denigrate the other parent or anyone living in a close personal relationship with the other parent, to the child, nor allow any other person to do so.
(11)That each party shall keep the other informed of any significant issues relating to the health and general wellbeing of the child and shall forthwith advise the other of any accident or significant illness affecting the child including providing details of treatment and attendance at doctors and hospitals.
(12)The parties shall consult with each other in relation to any significant education issue regarding the child and ensure that the other party has an opportunity to attend at parent/teacher interviews arranged in relation to the child.
(13)That the Mother ensure that she makes available to the Father, a current telephone number and Skype account on which the Father can contact the child during times referred to herein, or for emergencies.
(14)That each parent be permitted to attend any school, sporting or other extracurricular activity for the child in the nature of which parents are usually invited to attend, and be permitted to obtain from the pre-school or school any newsletter published by the school and any information in relation to the child's progress, including school reports.
(15)That each parent shall facilitate the child's reasonable request to contact the other parent, within a reasonable time of such request being made, or in the case of medical emergencies.
(16)That the Mother do all things and sign all documents to ensure that the Father’s name is placed on the emergency contact list of any pre-school or school that the child attends.
(17)That each parent forthwith advise the other of any medical treatment or prescription for medication and ensure that such medications are delivered with the child at the time of changeover.
(18)That each party keep the other informed of their respective addresses and telephone numbers including landline and mobile and:-
(a)Give to the other party at least 28 days ·written notice of any intention to relocate
(b)In such notice of intention to relocate, stipulate the location of the proposed new residence.
(c)Immediately upon relocating, provide to the other party written notification of the changed address and telephone number.
(19)That the Mother shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian passport for the said child.
(20)That pursuant to section 11(1) of the Australian Passports Act 2005, these orders provide authority for the Minister of Foreign Affairs or delegate of the Minister to issue an Australian Passport for the child.
(21)That the Australian passport issued to the said child shall be provided to the Mother to hold on behalf of the child.
(22)That either party be permitted to travel outside the Commonwealth of Australia with the child, and in the event of proposed overseas travel:
(a)The travelling party shall notify the other party of an intention to travel at least 8 weeks prior to the departure date;
(b)At that time, the travelling party shall provide to the other party a printed itinerary and copy of return travel tickets for both the travelling party, and the child;
(c)At least one week prior to the departure, the travelling party shall provide to the other party a telephone contact number upon which the travelling party and child can be contacted, whilst overseas;
(d)If the travelling party is the Father, the Mother shall provide the child’s passport to the Father at least 2 weeks prior to the departure date and the Father shall return the passport to the Mother within 1 week of return to Australia.
(23)That at the request of either of them, and within a 1 year period prior to the expiry of the child’s current passport, the parties shall do all things and sign all document to cause a new passport to be issued for the child and:
(a)The requesting party shall pay for the passport;
(b)The passport shall be retained in the Mother’s possession, subject to provision of it to the Father, to enable travel, in accordance with the terms of these orders.
Property
91.The Father sought final property orders, as set out in his aforesaid Case Outline, inter alia, that the proceeds of sale of the parties former property at F Street, Suburb G be disbursed as to firstly, the payment of the Father’s ATO liability, $26,420, and the net balance to be divided as to 55% to the Father and 45% to the Mother; that the parties’ superannuation be divided as to 55% to the Father and 45% to the Mother; and that all other assets owned by either party be divided as to 55% to the Father and 45% to the Mother.
92.The Mother initially sought final property orders, as set out in her aforesaid Case Outline, inter alia, that the proceeds of sale of the parties’ former property at F Street, Suburb G be disbursed as to $100,000 being paid to the Mother’s parents, and the balance divided as to 75% to the Mother and 25% to the Father; and that the parties liquidate and divide between them their Investment Portfolio as to 70% to the Mother and 30% to the Father. During submissions and as confirmed to the Court by the Mother’s counsel in an email dated 25 January 2021, the Mother conceded that the $100,000 paid by the Mother’s parents (towards the purchase of the parties’ real estate) should be regarded as a contribution and not a loan. It was submitted by her that accordingly Order 1a. in her Case Outline was not sought “but the $100,000 would then be reflected in the (Mother) receiving a larger percentage of the assets.”
Evidence regarding property
93.The Court refers to its findings in the discussions below under headings “Contributions”, and “Section 75(2)”.
94.The parties purchased the former matrimonial home at F Street, Suburb G, as tenants-in-common, in 2011, the purchase price being $573,000, as to a 7/10 share to the Mother, and a 3/10 share to the Father. The Father had agreed to the parties holding the F Street, Suburb G property in those shares because at the time the Father was thinking of starting another business and was concerned about asset protection and personal liability if he was to commence work as a sole trader or director.
95.The maternal grandparents provided the parties with the sum of $100,000 towards the purchase price.
96.The parties took out a mortgage loan from NAB for $458,000. The balance was made up of joint savings and the first homeowners grant. The maternal grandparents also paid the stamp duty of $21,275 and the legal fees for the purchase. The Court finds that the total of the aforesaid stamp duty and legal fees was probably about $30,000.
97.In 2015 the parties invested in a shared portfolio Investment account in the sum of $100,000.
98.At separation date, 30 July 2018, the parties had a mortgage offset account with a balance of $71,714. The parties later each withdrew one half of that sum. The Father used his half to make mortgage loan repayments, utilities for the property, legal fees, living expenses and purchase furniture in order to take care of the child; his portion lasted until about December 2018, being the approximate date of his last mortgage loan repayment. The Mother ceased making mortgage loan repayments in about August 2018.
99.The parties’ property at F Street, Suburb G was sold on 30 October 2019. The net proceeds were retained in a controlled money account by the Mother’s solicitor.
100.The Father had remained in occupation of the F Street, Suburb G property until about mid October 2019.
101.At cohabitation, the Mother was employed on a full-time basis and she remained in full time employment throughout the relationship other than for maternity leave.
102.At cohabitation, the Father was studying at TAFE. Thereafter he obtained employment as a professional contractor. The Father was unemployed during the relationship for periods totalling about three years. In about mid 2016 he again became unemployed, and he remained unemployed for the rest of the period of the relationship. During the period 2014 to 2017, the Father studied a course.
103.Until mid 2016, the Father was employed in various roles within the IT industry that paid between $75,000 - $155,000 per annum.
104.The Mother did not make any mortgage payments after August 2018.
105.The Father continued to pay the rates and insurances for the property up until January 2019.
Legal principles
106.In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
282. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285. In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287. It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288. In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
289. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
107.The parties’ agreed joint balance sheet was as follows:
JOINT
Balance Sheet
Name
Ms Feng & Mr Chew
File No
PAC5149/2018
Note: this document can be sent by electronic means between the parties prior to it being filed at court.
Date
25.11.2020
Time 10.00am
Before
Newbrun J
Ownership
Description
Applicant/Husba nd’s value
Respondent/Mother’ s value
ASSETS 1. J Proceeds of sale of F Street, Suburb G as at 20.07.2020 $ 279,550 $ 279,550 2. J Investment portfolio as at 06.08.2020 $ 125,650 $ 125,650 3. W Motor Vehicle 1 (registered number: ...) $ 9,600 $ 9,600 4. W T shares (500 x $3.40) as at 12.08.2020 $ 1,700 $ 1,700 5. W Investment Company (USD$3.51 x 300) = USD$1,053 = AUD$1,452 as at 17.07.2020 $ Not known $ 1,450 6. W U Bank Everyday account #...43 as at 10.08.2020 $ $ 3,800 7. W U Bank Savings Maximiser account #...68 as at 11.08.2020 $ 490 $ 490 8. W Moneys invested in parents offset account $ Not known $ 4,000 9. W V shares as at 30.06.2020 $ 11,480 $ 11,480 10. H Motor Vehicle 2 (registered number: ...) $ 7,050 $ 7,050 11. H Motor Vehicle 3 (registered: ...) $ 2,400 $ 2,400 12. H W Bank account #...91 as at 31.08.2019 $ 4,500 $ 4,500 13. W Engagement ring $ 7,000 $ 7,000 Total $ 449,420 $ 458,670 ADDBACKS 14. $ $ 15. $ $ Total $ 0 $ 0 LIABILITIES 16. H ATO $ 26,420 $ 26,420 17. H W Bank Visa account #...96 as at 09.08.2020 $ 1,700 $ 1,700 18. J Debt to Mother’s parents $ NIL $ 100,000 19. W Debt to parents (legal costs) $34,000.00 $ NIL $ Total $ 28,120 $ 128,120 108. SUPERANNUATION
Member
Name of Fund
Type of Interest
Applicants value
Respondents value
20. W Super Fund Y as at 12.08.2020 $ 12,124 $ 12,124 21. W Employer T as at 10.08.2020 $ 99,799 $ 99,799 22. W Super Fund Z as at 07.08.2020 $ 26,124 $ 26,124 23. H Super Fund AA as at 01.06.2020 $ 93,193 $ 93,193 Total $ 231,240 $ 231,240 FINANCIAL RESOURCES Ownership
Description
Applicants value
Respondents value
24. $ $ 25. $ $ Total $ 0 $ 0
109.During oral submissions, each party agreed that it was common ground as to the following matters in relation to the above joint balance sheet:
a)Item 6 and 7, the Mother’s U Bank accounts were set up after separation on 30 July 2018. They can be removed from the balance sheet.
b)Item 8, the Mother’s moneys invested in her parent’s offset account were sourced from the Mother’s half share of the $75,000 in the parties’ offset account.
c)Item 10, the Father’s car, was purchased by him post separation but with funds obtained from the sale of a former car arising out of the parties’ relationship.
d)Item 11, the Father’s motorbike, was purchased by the Father post separation from his half share of the $75,000 in the parties’ offset account.
e)Item 12, the Father’s bank account, was set up by the Father post separation. It can be removed from the balance sheet.
f)Item 16, the Father’s ATO liability, was in existence as at separation.
g)Item 17, the Father’s visa account liability, arose post separation. It can be removed from the balance sheet.
h)As to Item 18, “Debt to Mother’s parents”, $100,000, there is no persuasive evidence that the provision of this sum of money by the Mother’s parents to the parties was a loan. Accordingly, it shall be removed from the balance sheet. The provision of this money is discussed below under the heading “Contributions” of the parties.
i)As to Item 19, the Mother’s debt to the parents for legal costs of $34,000 should be removed from the balance sheet as this is not a debt referable to the parties’ former relationship.
j)As to Item 22, regarding the Super Fund Z of the wife, this arose post separation, and it shall be removed from the balance sheet.
110.Accordingly, in light of the above, the final balance sheet can be set out as follows:
| JOINT Balance Sheet | Name | Ms Feng & Mr Chew | |||||||||||||
| File No | PAC5149/2018 | ||||||||||||||
| Note: this document can be sent by electronic means between the parties prior to it being filed at court. | Date | 25.11.2020 | Time 10.00am | ||||||||||||
| Before | Newbrun J | ||||||||||||||
| Ownership | Description | Applicant/Husba nd’s value | Respondent/Mother’ s value | ||||||||||||
| ASSETS | |||||||||||||||
| 1. | J | Proceeds of sale of F Street, Suburb G as at 20.07.2020 | $ 279,550 | $ 279,550 | |||||||||||
| 2. | J | Investment portfolio as at 06.08.2020 | $ 125,650 | $ 125,650 | |||||||||||
| 3. | W | Motor Vehicle 1 (registered number: ...) | $ 9,600 | $ 9,600 | |||||||||||
| 4. | W | T shares (500 x $3.40) as at 12.08.2020 | $ 1,700 | $ 1,700 | |||||||||||
| 5. | W | Investment Company (USD$3.51 x 300) = USD$1,053 = AUD$1,452 as at 17.07.2020 | $ 1,450 | $ 1,450 | |||||||||||
| 6. | W | Moneys invested in parents offset account | $ 4,000 | $ 4,000 | |||||||||||
| 7. | W | V Shares as at 30.06.2020 | $ 11,480 | $ 11,480 | |||||||||||
| 8. | H | Motor Vehicle 2 (registered number: ...) | $ 7,050 | $ 7,050 | |||||||||||
| 9. | H | Motor Vehicle 3 (registered: ...) | $ 2,400 | $ 2,400 | |||||||||||
| 10. | W | Engagement ring | $ 7,000 | $ 7,000 | |||||||||||
| Total | $449,880 | $449,880 | |||||||||||||
| ADDBACKS | |||||||||||||||
| 11. | $ | 0 | |||||||||||||
| 12. | $ | $ | |||||||||||||
| Total | $ 0 | $ 0 | |||||||||||||
| LIABILITIES | |||||||||||||||
| 13. | H | ATO | $ 26,420 | $ 26,420 | |||||||||||
| Total | $ 26,420 | $ 26,420 | |||||||||||||
| 111. SUPERANNUATION | |||||||||||||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | |||||||||||
| 14. | W | Super Fund Y as at 12.08.2020 | $ 12,124 | $ 12,124 | |||||||||||
| 15. | W | Employer T as at 10.08.2020 | $ 99,799 | $ 99,799 | |||||||||||
| 16. | H | Super Fund AA as at 01.06.2020 | $ 93,193 | $ 93,193 | |||||||||||
| Total | $ 205,116 | $ 205,116 | |||||||||||||
| FINANCIAL RESOURCES | |||||||||||||||
| Ownership | Description | Applicants value | Respondents value | ||||||||||||
| 24. | $ | $ | |||||||||||||
| 25. | $ | $ | |||||||||||||
| Total | $ 0 | $ 0 | |||||||||||||
112.From the above, it can be seen that the parties’ non-superannuation assets are $449,880. Liabilities are $26,420. Accordingly the net non- superannuation assets are $423,460. The parties’ total superannuation assets are $205,116. The total of net non-superannuation assets plus superannuation of the parties is $628,576.
Section 79(2) of the Act
113.The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
114.The parties’ relationship was for about 15 years.
115.At cohabitation, the Mother had about $10,000 in savings. She also had a small superannuation fund from her employment which commenced in 2002. The Father had a motorbike.
116.The parties purchased the property at F Street, Suburb G in 2011. The Court takes into account, as a significant contribution on behalf of the Mother to the purchase of this property, the advance of $100,000 by the maternal grandparents to the parties. This advance was not intended by the maternal grandparents to be a gift. Whilst as a matter of law there was insufficient evidence to categorize the advance as a loan, it was nevertheless intended by the maternal grandparents to be repaid by the parties. Consistent with legal principle, in these circumstances, again, the advance $100,000 should be treated as a contribution made towards the purchase the property on behalf of the Mother; see Kessey & Kessey [1994] FamCA 162, and the recent decision of the Full Court of the Family Court of Australia in Mabb & Mabb and Anor [2020] FamCAFC 18. The Court refers to the decision of Mabb & Mabb And Anor [2020] FamCAFC 18, where it was stated by the Full Court:
31. The Father placed significant reliance on Kessey and Kessey [1994] FamCA 162; (1994) FLC 92-495 (“Kessey”), in particular where the Full Court at 81,149, citing Gosper and Gosper [1987] FamCA 43; (1987) FLC 91-818 at 76,168 (“Gosper”) said:
The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly ... on behalf of” the spouse relative...
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage...
(Citations omitted)
32. The Full Court in Kessey at 81,149 held that these principles:
...should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorized as a loan, or as any other recognized commercial transaction.
117.As to the provision by the maternal grandparents of $30,000 to the parties for stamp duty and legal fees in relation to the purchase of the property, the Court finds that the provision of such sum to the parties was intended by the maternal grandparents to be a gift to both parties and that the parties were both to receive the benefit of that gift. The Court is not persuaded that such gift should be treated as a contribution on behalf of the Mother only; the Court is of the view that the gift should be treated as an equal contribution by both parties towards the purchase of the property. The maternal grandfather expressly stated that it was a gift, having stated that he and the maternal grandmother had given “them” the money “to pay for stamp duty and legal costs in relation to the purchase of the home, and it was never my intention that that sum be repaid to us.” The maternal grandmother had stated that, “We gave them money for stamp duty, and the payment of legal costs, which was about $30,000.” She had not stated that such sum was expected to be repaid. The Court has taken into account in this context that the stamp duty and legal costs related to the property which had been purchased by the parties jointly (albeit in different shares). The Court again refers to the above decision and dicta in Mabb & Mabb and Anor [2020] FamCAFC 18 together with the following further statements by the Full Court:
33. Two important distinctions must be exposed. First, Kessey involved the gift of money which enabled renovations to be done to a property in the sole name of one of the parties. Secondly, there was no evidence of the intention of the donor, who in that case, was the wife’s Mother.
34. In Gosper at 76,167–76,168, Fogarty J said:
Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding.
Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.
(Emphasis added) (Citations omitted)
35. Thus, whether, as the husband contends, the gift of the land was to benefit him alone, depends on the intention of his parents at the time of its transfer.
36. It is the husband’s position on appeal that it was for the wife to prove the intention of his parents.
37. We do not agree. Each party bore an evidentiary onus to establish the facts to support their respective contentions. While it is reasonable to assume, as the Full Court did in Kessey, that the presumed intention of the donor is to advantage the child in the marriage, it is no more than an evidentiary device. Clearly as Fogarty J said in Gosper, that presumption can be rebutted by evidence of the actual intention that accompanied the gift and in this case, the transfer of the land to the parties jointly is a “strong indicator” of intention.
118.During the parties’ relationship, the Court takes into account that the Mother was the primary carer of the child when she was not working in full-time employment. Whilst the Father assisted the Mother with the care of the child, by mid-April 2017 the Father had significantly reduced the amount of assistance that he gave the Mother with the child’s care. The Mother provided the sole care of the child when she temporarily separated from the Father between early May 2017 and late July 2017. The Mother has been the child’s primary carer post separation to date. These superior contributions by the Mother relating to the care of the child were contributions of substance.
119.During the parties’ relationship, the Mother was primarily responsible for the domestic work in their household. Whilst the Father assisted the Mother with that work, as the relationship progressed, the Mother took on more and more of the burden for the domestic work. Following the child’s birth, she continued to primarily undertake the domestic work in the house although the Father did a bit more of the cooking. The Father organised the household bills to be paid. The Father’s chronic tiredness (see the report of Dr S dated 5 of April 2017) is consistent with the Mother’s significantly greater homemaker contributions compared to the Father’s contribution in this regard during the parties’ relationship.
120.The Court takes into account the parties’ respective indirect financial contributions towards the property at F Street, Suburb G through their payments towards the mortgage loan during the relationship. In this regard, the Court takes into account that the Mother was in full-time employment during the relationship, whereas the Father had significant periods of unemployment, albeit intermittently, prior to mid 2016, and after mid 2016 remained unemployed up to and following the parties’ separation. Further, the Father studied a course during the period 2014 to 2017. The Mother ceased making mortgage loan repayments in about August 2018. The Father also made mortgage loan repayments, as well as paying for utilities for the property, from about separation on 30 July 2018 until about December 2018. However, from separation until October 2019 he had sole use and occupation of the property at F Street, Suburb G and the Mother was paying rent to her parents.
121.The Court takes into account the parties’ likely respective direct and indirect financial contributions towards the other property of the parties through their income. In this context, and again, the Court takes into account that the Mother was in full-time employment during the relationship, whereas the Father had significant periods of unemployment, albeit intermittently, prior to mid 2016, and after mid 2016 remained unemployed up to and following the parties’ separation. And further, the Father studied a course during the period 2014 to 2017.
122.The Father contended the parties’ contributions should be regarded as equal.
123.The Mother contended that her contributions should be assessed at 65%.
124.Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the net assets including superannuation ($628,576) as at trial date to be 65% to the Mother and 35% to the Father. That results in a disparity of about $188,573 in favour of the Mother.
Section 75(2)
125.The Father is aged 37 years. The Mother is aged 36 years.
126.The Mother’s physical health is satisfactory, however, she does suffer anxiety but obtains treatment.
127.Pursuant to this Court’s Reasons relating to parenting, the Mother will have the primary care of the child, aged only 3 years, with the Father spending time with him.
128.The Father, who was been unemployed since mid 2016, pays negligible child support, and there is a real prospect that he will not regularly pay significant child support to the Mother in the future by reason of his past unemployment and related medical issues, discussed below.
129.The Father suffers from depression and experiences chronic tiredness; in this regard, the Court refers to the medical reports of the Father’s treating psychiatrist Dr S together with his 2 Medical Certificates from March and June 2020. Again, he has been unemployed since mid 2016. Although the evidence is somewhat opaque relating to the Father’s prospective work capacity, the Court would assess that the Father may well return to some form of employment in the future. Dr S’s above Certificates state that the Father is likely to show considerable improvement within 2 years. The Court would assess that the Mother’s earning capacity is probably greater than the Father’s earning capacity.
130.The Mother has superannuation entitlements of $138,047 (with the Court noting that the Mother’s Super Fund Z of $26,124 did not form part of the final balance sheet), compared to the Father’s entitlement of about $93,193. However, the Father is aged only 37 years and the Court refers to its discussion above in relation to earning capacity of the parties.
131.The Mother will retain U Bank accounts totalling $4,290 which did not remain in the balance sheet. The Father will retain his W Bank account in the sum of $4,500 which did not remain in the balance sheet. The Father will retain his W Bank Visa debt in the sum of $1,700 which did not remain in the balance sheet.
132.The Father submitted that he should receive a 5% adjustment in his favour under s 75(2) by reason of his adverse health.
133.The Mother, in final submissions to the Court, contended for a s 75(2) adjustment of 15%.
134.Taking into account the above matters, there should be an adjustment in favour of the Mother of 10%; that 10% represents, in dollar terms, $62,857, by reference to the net assets ($628,576). This adjustment results in an adjusted contributions finding of 75% in favour of the Mother and 25% in favour of the Father.
Justice and equity
135.Pursuant to the Court’s adjusted contribution assessment in relation to the net assets including superannuation, $628,576, the Mother should receive $471,432, and the Father $157,144.
136.Should the Father retain:
a)his motor vehicle: $7,050;
b)his motor bike: $2,400;
c)his superannuation: $93,193;
totalling $102,643,
he will be required to receive a further $54,501.
137.Should the Mother retain:
a)The Investment Portfolio: $125,650;
b)Her car: $9,600;
c)Her T shares: $1,700;
d)Her Investment Company shares: $1,450;
e)Moneys in parent’s offset account: $4,000;
f)Her V shares: $11,480;
g)Her engagement ring: $7,000;
h)Her superannuation (as per the final balance sheet): $111,923;
totalling $272,803,
she will be required to receive a further $198,629.
138.The above sums of $54,501 to be paid to the Father, and $198,629 to be paid to the Mother, can be paid from the joint funds from the F Street, Suburb G proceeds of sale ($279,550). The balance of some $26,420 can be paid to the ATO for the Father’s tax liability.
139.Accordingly, the Father will have a car, a motorbike, cash of $54,501 (plus cash of $4,500 which did not remain in the balance sheet), and superannuation of $93,193. He will retain a W Bank visa debt of $1,700 which did not remain in the balance sheet. He is living in rental premises. He is only aged 37 years with some prospect of returning to employment.
140.The Mother, in the above circumstances, for her part, will be the child’s primary carer (the child is aged 3 years), she will retain a car, bank account $4,000 (plus U Bank cash deposits of $4,290 which did not remain in the balance sheet), shares and Investment Portfolio of $140,280, cash payout of $198,629, the ring, and her superannuation of $111,923 (plus $26,124 Super Fund AA which did not remain in the balance sheet). She is to move into a granny flat at her parent’s property for the foreseeable future. She is aged 36 years and is in employment.
141.The Court is of the view that the Court’s proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 27 January 2021
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