COAD & MORDEN
[2019] FCCA 2682
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COAD & MORDEN | [2019] FCCA 2682 |
| Catchwords: FAMILY LAW – Property – where Father was the primary income earner – where the Mother was responsible for the home and care arrangements – dispute as to contributions – CGT liabilities – Father to retain former matrimonial home – just & equitable – orders made. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: A & A: Relocation Approach [2000] FamCA 751 |
| Applicant: | MS COAD |
| Respondent: | MR MORDEN |
| File Number: | MLC 9796 of 2018 |
| Judgment of: | Judge Carter |
| Hearing dates: | 12, 13, 14 & 15 August 2019 |
| Date of Last Submission: | 15 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Geelong Family Lawyers Pty Ltd |
| Senior Counsel for the Respondent: | Ms Stoikovska SC |
| Counsel assisting the Respondent: | Mr Goddard |
| Solicitors for the Respondent: | Howard Bear Legal Consulting Services |
ORDERS
All previous parenting orders in relation to the children X born on … 2011 and Y born on … 2013 (collectively, “the children”) be and are hereby discharged.
The parties have equal shared parental responsibility for the children.
The children live with the Mother.
As and from the conclusion of the 2019 school year, the children be permitted to relocate with the Mother to the Town A area.
The children spend time with the Father until the conclusion of the 2019 school year as follows:-
(a)each alternate weekend from the conclusion of school (or 3.30pm) Friday until the commencement of school (or 9.00am) on the following Monday;
(b)from the conclusion of school (or 3.30pm) each Wednesday until the commencement of school (or 9.00am) on Thursday; and
(c)for half of the September/October 2019 school term holidays as agreed and failing agreement from the conclusion of school (or 3.30pm) on the last day of school term until 6.00pm on the middle Saturday of the school term holiday period; and
(d)at such further or other times as may be agreed between the parties from time to time.
The children spend time with the each of the parties for one half of the long summer school holidays as agreed, and failing agreement:-
(a)with the Father from 6.00pm on the last day of the school year until 6.00pm on the middle day of the long summer school holidays and with the Mother for the balance of the holidays in 2019/2020 and each alternate year thereafter;
(b)with the Mother from the conclusion of school (or 3.30pm) on the last day of the school year until 6.00pm on the middle day of the long summer school holidays and with the Father until 6.00pm on the last Sunday of the long summer school holiday period in 2020/2021 and each alternate year thereafter; and
(c)at such further or other times as may be agreed between the parties from time to time.
Commencing from first term in 2020, the children spend time with the Father as follows:-
(a)each alternate weekend from 6.00pm on Friday until 6.00pm on Sunday (such time to be extended to 6.00pm on Monday if Monday is a non-school day);
(b)for one half of the school term holidays as agreed, and failing agreement, the first half, from 6.00pm on the last day of school term until 6.00pm on the middle Saturday of such school term holiday period;
(c)during the long summer school holiday period pursuant to order 6 hereof; and
(d)at such further or other times as may be agreed between the parties from time to time.
In the event that the Father elects to travel to Town A to spend time with the children during the week when he is otherwise not due to spend time with them, he provide the Mother with no less than 5 days’ notice of his intention to do so and the Mother facilitate any such time as is reasonably requested by the Father.
Changeover occur as follows:-
(a)until the conclusion of the 2019 school year, at school where appropriate, and otherwise at the Mother’s residence;
(b)upon the children relocating to Town A:-
(i)changeover occur at Bunnings Warehouse in Suburb D; and
(ii)in the event that the Father elects to attend at the children’s school to collect them on the Friday, then:-
A.his time with the children is to commence at the conclusion of school (or 3.30pm), PROVIDED ALWAYS THAT he provide the Mother with no less than 48 hours’ notice of his intention to do so; and
B.at the conclusion of his time the Mother collect the children from the Father’s residence; and
(c)otherwise as may be agreed between the parties from time to time.
The children communicate with the parents by telephone, Skype or like electronic communication as follows:-
(a)commencing in 2020, during school term, the children communicate with the Father each Tuesday and Thursday between 6.00pm and 6.30pm, with the Father to initiate such calls to the Mother’s mobile telephone or like electronic device; and
(b)at any other time as reasonably requested by the children or either of them, with the parent with the care of the children to facilitate the calls to the other parent’s mobile telephone or like electronic device.
Notwithstanding any other order, the children spend time with each of their parents as follows:-
(a)in 2019 and each alternate year thereafter, with the Father from 12 noon on Christmas Eve until 10.00am on Christmas Day, and with the Mother from 10.00am on Christmas Day until 6.00pm on Boxing Day; and
(b)in 2020 and each alternate year thereafter, with the Mother from 12 noon on Christmas Eve until 10.00am on Christmas Day, and with the Father from 10.00am on Christmas Day until 6.00pm on Boxing Day;
(c)on the Father’s Day weekend, the children spend time with the Father from 6.00pm on Friday until 6.00pm on Father’s Day;
(d)on the Mother’s Day weekend, in the event that the children are otherwise due to spend time with the Father, the children spend time with the Mother for that weekend; and
(e)at such further or other times as may be agreed between the parties from time to time.
Each of the parties:-
(a)advise and keep the other advised at all times of the current residential address and telephone number of the children and advise the other of any change thereto within 48 hours of such change;
(b)forthwith advise the other in the event that the children or either of them suffers any serious illness or injury;
(c)authorise any medical practitioner upon which the children or either of them may attend from time to time, to communicate with the other in respect to the children’s medical conditions and/or requirements;
(d)authorise any schools at which the children or either of them may attend, from time to time, to:-
(i)provide the other, at the expense of the other, copies of all school reports, school notices and school photograph order forms in relation to the children; and
(ii)communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools; and
(e)be at liberty to attend all school functions and extra-curricular activities to which parents are normally invited;
subject to any policy in relation thereto.
Property Orders
The Mother be permitted to remain in the former matrimonial home situated at Street E, Suburb F in the State of Victoria (“the former matrimonial home”) pending payment as set out in order (15) herein
By way of spousal maintenance, pending the Mother vacating the former matrimonial home, the Father make all payments towards the mortgage and make all payments for bills, rates, taxes and other like apportionable outgoings with respect to the former matrimonial home.
On or before 3 January 2020 (“the date”), the Father pay to the Mother the sum of $306,325 (“the payment”).
Contemporaneously with the payment:-
(a)the Mother do all acts and things and sign all such documents as may be necessary to transfer to the Father (at the expense of the Father) all her right, title and interest in the former matrimonial home;
(b)the Mother vacate the former matrimonial home; and
(c)the Father refinance the mortgage encumbering the former matrimonial home into his sole same.
In the event that the Father does not make the payment by the date, the former matrimonial home be sold and the terms and conditions of sale be as follows:-
(a)the sale be via public auction;
(b)the real estate agent appointed to conduct the sale be as agreed between the parties, and failing agreement, as appointed by the President of the Real Estate Institute of Victoria or their nominee; and
(c)the reserve price be as agreed between the parties in consultation with the real estate agent and failing agreement as nominated by the President of the Real Estate Institute of Victoria or their nominee.
The proceeds of sale be applied as follows:-
(a)to pay all costs, commissions and expenses of the sale;
(b)to discharge the mortgage or any other encumbrance affecting the former matrimonial home;
(c)to pay to the Mother the amount of the payment outstanding, together with interest payable in accordance with the prescribed rate as set out in the Family Law Rules 2004 (Cth); and
(d)the balance then remaining to the Father.
The parties have liberty to apply in relation to the terms and conditions of the sale of the former matrimonial home.
The Father otherwise retain to the exclusion of the Mother:-
(a)the property situated at and known as Street G, Suburb H;
(b)the property situated at and known as Street J, Suburb K;
(c)the moneys contained in the joint mortgage saver interest account;
(d)any interest in the Street E, Suburb F Family Trust;
(e)CC Pty Ltd;
(f)his interest in the N;
(g)his interest in DD Pty Ltd;
(h)the Motor Vehicle O, Motor Vehicle P and Caravan vehicles;
(i)the Super Fund Q and EE shares;
(j)the vintage FF and vintage GG collections;
(k)his savings; and
(l)his superannuation entitlements, save as provided for in orders (24) to (29) hereof.
The Mother retain to the exclusion of the Father:-
(a)her savings;
(b)her superannuation entitlements; and
(c)the funds held on trust by Geelong Family Lawyers (being the proceeds of sale of the property situated at and known as Street HH, City B (“the Street HH, City B unit”)), which shall be forthwith released to her upon the making of these orders.
The Mother shall be responsible for the payment of the Capital Gains Tax (“CGT”) arising from the sale of the Street HH, City B unit, estimated to be $26,804, and forthwith upon receipt of an assessment from the Australian Taxation Office (“ATO”) she shall provide a copy of same to the Father:-
(a)in the event the CGT payable is less than $26,804, the Mother shall reimburse the Father an amount equal to 57.5% of the difference, within 21 days of receiving a copy of the ATO assessment; and
(b)in the event the CGT payable is more than $26,804, the Father shall pay the Mother an amount equal to 42.5% of the difference within 21 days of receiving a copy of the ATO assessment.
BY CONSENT, THE COURT FURTHER ORDERS THAT:
Pursuant to Part VIIIB of the Family Law Act 1975 (Cth), within six days of the operative date each of the parties in their capacity as the trustees of the Street E, Suburb F Family Self-Managed Superannuation Fund (“the Fund”) do all such acts and things and sign all necessary documents as may be required to effect a rollout from the Fund in the sum of $240,000 for the benefit of the Mother to a superannuation fund as nominated by her.
Upon receiving an application from Ms R pursuant to paragraph 9(1) of the Governing Rules of the Fund, each of the Mother and the Father shall accept such application.
As soon as practicable after the rollout is effected, the Mother shall resign her membership of the Fund.
The operative time for the rollout shall be on the fourth business day after the making of these orders.
Liberty is granted to the parties to apply with respect to the drafting of these superannuation orders to ensure compliance with any legislation or rules.
Upon the completed execution of the rollout, the Father indemnify and keep indemnified the Mother against any liability of the Fund howsoever and whenever arising.
THE COURT FURTHER ORDERS THAT:
Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be equally split between the parties and any such account be forthwith closed;
(c)insurance policies remain the sole property of the owner named therein;
(d)each party otherwise retain for their sole use and benefit their superannuation entitlements;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The Court is satisfied that the final property orders are a just and equitable division of the property in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Coad & Morden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9796 of 2018
| MS COAD |
Applicant
And
| MR MORDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
The matter before me concerns parenting, property and maintenance applications.
In relation to parenting, the parties have been unable to agree as to the care arrangements for their two children, X born on … 2011 (aged almost 8), and Y, born on … 2013 (aged almost 6) (collectively, “the children”). The children currently live with the Mother and spend time with the Father for five nights per fortnight, together with time during school holidays and on special occasions.
The parties currently live in Suburb F. The Mother lives at Street E, Suburb F, which was the parties’ home throughout the course of their relationship (“the former matrimonial home”). The Father is currently staying at his parents’ home nearby, following the paternal grandmother recently passing away and the paternal grandfather moving into a nursing home in the area.
It is common ground that the Mother will vacate and the Father will retain the former matrimonial home as part of any property settlement between them. It is also agreed that the Mother will receive a cash payment upon settlement of the property proceedings. However the parties do not agree as to quantum. The parties advance competing arguments as to their respective contributions and future needs.
The Mother also seeks an order that the Father pay the Mother maintenance, either by way of a lump sum, or ongoing payments until she says she will be able to support herself in or around mid-2021.
When the Mother vacates the former matrimonial home, it is her proposal that she and the children will move to Town A, a suburb of City B. Town A is approximately 10 kilometres to the south of the centre of City B, and around 120 kilometres from the children’s current residence. She proposes the children spend alternate weekends with the Father, from Friday to Sunday, together with half of all holidays and time on special occasions. She also proposes to facilitate additional time during weekdays, should the Father travel to City B to spend time with the children.
The relocation is opposed by the Father. He seeks orders that the children’s time with him increase to six nights per fortnight at the commencement of the 2020 school year and then move to a week about arrangement in term three in 2020. Part of his application is that the parties be restrained from enrolling the children at any primary school other than W Primary School which they currently attend. The orders sought by the Father would have the effect of requiring the Mother to re-house herself and the children within reasonable proximity to where he will live and to their current primary school.
The parties agree they should have equal shared parental responsibility for the children. They also agree that holidays and special occasions should be shared. It is common ground that if the Mother is not permitted to relocate with the children, she will not move to Town A alone.
Background and procedural history
The Father is 51 years of age. He is self-employed as a professional and is also a qualified professional. He has worked as a professional throughout the parties’ relationship.
The Mother is 42 years of age. She is now engaged in home duties, as well as studying. Prior to the birth of the children, the Mother was a health care worker. That registration has now lapsed and she does not intend to return to work.
The parties are each in good health.
The parties met in … 2010 and purchased the former matrimonial home in … 2010. That property was registered in the Mother’s sole name. The parties commenced living in the former matrimonial home in … 2011.
Both parties had assets at the commencement of the relationship. The Mother owned a unit at Street HH, City B (“the Street HH, City B unit”) and the Father had a property at Street L, Suburb M (“the Street L, Suburb M property”). I will refer to the parties’ initial contributions later in these reasons when considering the property dispute.
X was born in … 2011 and Y in … 2013. X is in grade two at W Primary School and Y is in prep.
The Father has an older daughter, Z. She was born on … 2008 and is 11 years old. Z has stayed with the parties for six nights per fortnight and half of the school holidays for the majority of the relationship. She has also stayed with the parties at times when her mother was travelling. The children regard her as their sister, and I shall refer to her as their sister in these reasons.
When the children were born the Mother commenced maternity leave, which was extended for a further two years following Y’s birth. The Mother did not return to work. With the Father’s support, she undertook a part-time course in 2016, and has worked on an ad hoc casual basis in this endeavour since. Her primary responsibility has been the running of the household and parenting the children. It is common ground she was and is an engaged and committed parent.
The Father has been engaged in full-time employment throughout the relationship. Between 2013 and 2017, the Father worked in a partnership, requiring him to work long hours. The Mother deposes the Father frequently left home at 6.30am and did not return until approximately 6.50pm, just 10 minutes before the children’s bed time. The Father then left the partnership and resumed work in his own business. He conducted his business from the garage at the home for a period of time, but the Mother says he continued to work long hours and was no more available to care for the children. The Father denies that he worked long hours or had little to do with the children. He asserts that he has worked flexible hours particularly since he returned to being a professional. He says this flexibility has allowed him to be significantly engaged with the children, their care and their activities. For instance, he says he worked at night after the children had gone to bed.
The parties separated under one roof on 31 March 2018 until 18 March 2019.
In August 2018 the Mother sold the Street HH, City B unit for $441,000. After repaying the mortgage and the costs of the sale, the remaining proceeds were approximately $260,000.
The Mother issued these proceedings on 23 August 2018, seeking property, parenting, and maintenance orders, as well as sole use and occupation of the former matrimonial home pending the determination of these proceedings.
Orders were made on 22 October 2018 to ready the matter for trial, for mediation, and for the preparation of a Family Report. The matter was otherwise adjourned to 15 March 2019 for interim defended hearing. Those orders also included that the Mother was at liberty to withdraw monies from the funds held on trust from the sale of the Street HH, City B unit “…as she requires for occasional living expenses”.
On 15 March 2019, orders were made for the children to live with the Mother and to spend time with the Father each alternate Friday to Monday and each Wednesday overnight, being five nights per fortnight, together with half of the school holidays and on special occasions. The orders also provided for the Mother to have the sole use and occupation of the former matrimonial home, with the Father to pay the mortgage, rates, taxes, gas, electricity and water bills. The order does not identify whether those payments are by way of maintenance for the Mother or by way of child support. Further written submissions were to be completed by the Father within seven days, and a further order was made restraining the parties from drawing down on the mortgage loan facility or otherwise encumbering the former matrimonial home.
No determination was made that day in relation to the Mother’s application for maintenance, nor subsequently. It is her case that, in the absence of proper financial support from the Father, she has had to draw down on the funds from the sale of the Street HH, City B unit to meet the costs for herself and the children. The Father says he has been meeting her costs by paying child support as assessed, and making the payments towards the mortgages, utilities and other outgoings on the former matrimonial home.
The evidence
It has not been possible to include every aspect of the parties’ evidence. However, just because I have not mentioned something in these reasons does not mean that I have not considered it, and I have taken all of the evidence into account.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The Mother
The Mother says she has been the children’s primary carer throughout their lives. She says that she is an involved and dedicated parent and wishes to continue to play that role in the children’s lives. She says she will be better placed in that role if she is permitted to relocate with the children to Town A. The benefit of such a relocation is that living there would allow her to purchase a house with a garden, rather than rent or potentially purchase a unit in the surrounds of Suburb F. She is concerned that she will be unable to afford to purchase suitable accommodation for herself and the children in Suburb F or its immediate surrounds. It is common ground any property settlement she receives is unlikely to result in her being able to purchase a three or four bedroom house in the Suburb F area. She will only be able to borrow modest funds, if any, by way of mortgage. If she cannot purchase a property she will need to obtain rental accommodation, which she says will of necessity be funded from her savings and property settlement, eroding her capital and further reducing her chances of purchasing a property in the area in the future.
Additionally, she says her sister lives in Town AA with her partner and their three children. It is her case that she is close to her sister who she visits regularly and the children are close with their cousins. Her other sister also owns a house in Town AA, and it is anticipated she will return to live there in two years when she returns from Country S. Town AA is about 13 minutes’ drive from Town A.
The Mother proposes the children would continue at W Primary School until the end of this year, and then commence at Town A Primary School next year. The children would spend the first half of the holidays with their Father in order for the Mother to arrange housing and prepare a home for the children. The Mother says that the children would then spend the second half of the holidays with her in order to settle in and prepare for their new school. She deposes that there are several public and private secondary schools in the area that would be appropriate for the children to attend.
The Mother says she has an offer to work casually as a customer service officer with friends who run a company called ‘BB Pty Ltd’. There is little evidence to support a finding that this will provide much economic assistance to the Mother.
This is not a case in which it is asserted the Mother will not promote or facilitate the children’s relationship with the Father in the event that a relocation is permitted. I am satisfied the Mother understands and appreciates the importance to the children of having a close and loving relationship with their Father and their sister. She has said if she is permitted to move to Town A, she will do all she can to facilitate the parent-child relationship. I accept she is committed to doing so. The Father also acknowledged she would do her best to facilitate and promote the children’s relationship with him if they moved.
The Mother asserts that whilst the Father is a good and caring parent, she has been and continues to be the children’s primary carer. She acknowledges that for the 12 months following separation where the parties were living in the same house, the Father increased the activities he undertook with the children and participated more in providing for their care and needs. She says he overrode her and she found herself unable to object when he made decisions. She says she did not want to create a scene in front of the children.
The Mother says his increased involvement, in addition to the emails he has sent her regarding the children, have been carefully and strategically managed and constructed by the Father. The Mother says that he has endeavoured to project an image that they parent cooperatively and that he is intimately involved in the children’s care. It is the Mother’s case that this does not reflect reality.
In particular, following the parties’ separation under the one roof, the Mother says that:-
a)in April 2018, when the parties had been separated under the one roof for a month, the Mother applied to Centrelink so that she could receive parenting payments. The Father was required to sign an acknowledgment that the parties had separated and confirming the care arrangements for the children, being that the Mother was the children’s primary carer, as had been in place prior to separation. However, the Father declined to sign the application, describing it in Court as “biased one way”. He required that the document be changed to set out that the parties shared or substantially shared the children’s care. I accept that this was controlling behaviour by the Father. It placed the Mother in a situation whereby she was either to give in to the Father’s demands, providing him with a document recording that the parties were sharing the care of the children, or alternatively, she would have no independent access to funds. She declined to amend the application. The Father did not sign the relevant paperwork to enable the Mother to commence receiving Centrelink payments until October 2018. Consent orders were included to that effect in the orders made by his Honour Judge Riethmuller on 22 October 2018;
b)prior to the Father signing the Mother’s Centrelink application in October 2018, the Mother was almost entirely reliant on the Father’s income, of which he had complete control. Up until 22 October 2018, the Father deposited $1,000 each week into the parties’ joint account. That was the only money the Mother could access. She says on a number of occasions he withdrew the bulk of those monies, leaving her with very limited funds. The Father acknowledged that on 28 September 2018 he deposited $1,000, and subsequently withdrew funds to pay for the caravan insurance and money for fuel, leaving $1.73 available to the Mother after the $3.00 card fee was also deducted. This required the Mother to access monies from the sale of the Street HH, City B unit to support herself and the children. It was put by Counsel for the Mother that the Father prioritised paying for himself and items he wished to retain, such as the caravan, leaving the Mother to meet her needs by depleting the assets he intended her to retain, such as the funds from the Street HH, City B unit. There is force in that submission;
c)in September 2018, the Father became aware that the Mother was trying to sell firewood when he was out of the home, on holiday. The Mother says she was deeply in need of cash and she was selling the firewood the maternal grandfather had given her for her birthday for $200. Initially, the Father’s evidence was that the parties had purchased the wood from the maternal grandfather. However, his recollection was inconsistent with an SMS exchange between the parties at the time. The text messages made no reference at all to the parties having purchased the wood together. Rather, it is clear the wood was given to them. The Father said it was a joint asset and it was a “bad look” that the Mother was disposing of “joint property” in his absence. He subsequently offered to “buy” the wood from her for $200. The Mother at that time was still not in receipt of Centrelink monies as the Father had not yet signed the relevant forms. I accept the Mother was in need of funds, and she would have been intimidated by the Father’s attitude, particularly as he is a professional;
d)in some emails from the Father to the Mother, the Father referred to there being an “established routine” that he had with the children, including taking them to various commitments. The Mother denied that there was an “established routine”. She said that the Father was using that phrase and references to him having “a substantial and established role” in the children’s lives to suggest arrangements were in place that simply were not. The Mother said that at times, the Father would send her an email while she was within a few metres of him in the home. She said that this was in order to create an illusion, in writing, that he had long standing involvement in the children’s care and activities, when in reality he did not. The Father acknowledged that on at least two or three occasions he was in the premises with the Mother when he emailed her. It was put to him that when he referred to a routine in his email, there was in fact no established routine. The Father conceded that the arrangements “changed over time”;
e)when Y commenced prep at the start of the 2019 school year, the Father insisted he take Y on his first day. The Mother says the Father did not permit her to take him to school until his fifth day. The Father says Y wanted his Father to drive him and the Mother did not seek to persuade him otherwise. She says the Father then drove Y to school, and the Mother, the maternal grandmother and X drove together to the school. She says they waited outside the school for the Father and Y in order to take a photograph together but they did not appear. The Father says he waited until the first bell, but the Mother had not arrived so he took Y into his classroom by himself. I accept this would have been upsetting to the Mother;
f)in 2019, the Mother says the Father undermined the children’s usual breakfast routine before school and kindergarten. Prior to separation, she says the routine had been that she prepared breakfast for the children which they ate whilst she prepared their lunches. She says the Father began making breakfast for the children and offered them treats if they went to school with him instead of the Mother. He also took them outside for breakfast in the caravan and offered them a more sugary breakfast cereal. The Father’s evidence was that whilst the Mother had previously prepared lunches, he often prepared the children’s breakfasts. In relation to the children having breakfast in the caravan, the Father said in his oral evidence that this was the Mother’s idea, and it happened a couple of times which he thought was reasonable. His evidence was inconsistent as to the genesis of the breakfasts, as well as the timing and frequency of them. I prefer the Mother’s evidence about this issue. There is force in the submission made by Counsel for the Mother that this issue did not arise in the spirit of cooperation, but in the spirit of competition; and
g)following the Mother making the Centrelink application, a Child Support Assessment was issued. The calculation for the assessment was based on the Mother’s artificially inflated income as a result of the capital gain triggered by the sale of the Street HH, City B unit. It was also based on the Father having an income of $56,908, which is substantially lower than the $145,000 he now anticipates he will make for the relevant period. The assessment came in at $70 per week or $303 per month, for the two children. Despite the Father being aware the assessment did not reflect the parties’ true incomes he did not pay above the assessed amount. He pays $667 per month to Z’s mother for her support, together with contributing to her school fees and uniform. In those circumstances, the Mother says she has had to draw down further on the monies from the sale of the Street HH, City B unit, using $600 per week to meet the living costs for herself and the children. I do note, however, that the Mother deposes that the Father contributes approximately $462 per week towards mortgage repayments, outgoings and utilities for the property and her health insurance. That is clearly a contribution to support her and the children.
The Mother said she felt the Father was trying to push and bully her into agreeing with his proposals. She says she became so distrustful of his motivations that she declined on many occasions to discuss arrangements with him until she had obtained legal advice. She said on several occasions she did not feel comfortable dealing with him directly and she felt she “…was being pushed into a situation and needed help”. I accept that the Mother genuinely felt overborne, and at times unable to liaise and negotiate with the Father without the assistance of her lawyers.
The Mother deposes that living under the one roof was unbearable. It was her evidence that the Father refused to leave the former matrimonial home unless and until she agreed that he could have equal time with the children. The Father effectively conceded that whilst under cross-examination. Her application for sole use of the former matrimonial home was determined in her favour on 15 March 2019. The Father subsequently moved out of the home.
The Mother was plainly anxious and stressed while giving her evidence. However, she impressed as giving her evidence honestly and accurately. She did not generally appear to embellish her evidence and made appropriate concessions.
Having said that, it also appeared that her interpretation of events projected criticisms onto the Father and his behaviour that objectively appeared unjustified. For instance:-
a)she made complaints about the Father returning the children sandy and in bathers after being at the beach;
b)she asserted he had not agreed to Y having an operation for his sleep apnoea, which was not the position he took on any analysis of the parties’ discussions;
c)she described the parties as having “run into difficulties” in relation to arrangements for ANZAC Day, despite the fact that the parties readily resolved that dispute between themselves; and
d)she referred to a birthday party in … 2019 that X attended. Y did not attend, because, according to X, the Father had offered him a donut “not to go”. This was on a weekend where the children were in their Father’s care and he otherwise facilitated X attending the party.
I do not find that the Mother was being dishonest and I did not form the impression that she was trying to mislead the Court in this regard. Rather, she genuinely, although perhaps misguidedly, interpreted the Father’s actions and words in an unfavourable way. Her complaints also need to be seen in the context of her feeling that the Father is a determined man, who often overrode her wishes and implemented whatever arrangements suited him. Her interpretation of his behaviours reflects the Mother’s distrust and anxiety around the Father, her worry that she will be overborne by him and her concern that she will lose her role as the children’s primary carer.
The Father
The Father gave his evidence in a straightforward manner. He generally appeared to endeavour to give truthful and genuine responses, although as I have set out, he did overstate evidence to suit his case at times.
The Father says he has worked hard throughout the relationship, making significant initial financial contributions and working hard to provide financially for the family. He says he has also played a significant role in the children’s lives, balancing work commitments around his commitments to them.
He strenuously opposes the relocation, asserting the children are well settled and established in Suburb F and are doing well at school. They have a wide circle of friends and are engaged with their school communities and extra-curricular activities. They currently enjoy spending significant time with their sister Z, who has been involved with them for their entire lives.
The Father says he is unable to move to Town A for various reasons, including the impact on his caring responsibilities for Z, for whom he has care of for six nights per fortnight. The Father also says that he cannot be too far from the paternal grandfather, who is suffering from dementia and residing in a nearby nursing home. These responsibilities make it impracticable for him to relocate if the Mother and children are allowed to move. I accept his evidence in this regard.
He says the detriments of the relocation to the children are many, including that:-
a)as a matter of practicality, their relationship with him will change, and he says, diminish. They will not have the benefit of him participating in their schooling lives, engaging with them mid-week or taking them to activities as he currently is able to do;
b)they will be unable to spend as much time with Z as they currently do, which includes them participating in extra-curricular activities. He says this will cause the children significant distress and a sense of loss;
c)the children will need to leave their familiar friends and start at a new school;
d)the Mother will not have a circle of friends in Town A to assist and support her as she currently enjoys at W Primary School;
e)as the children grow up, play weekend sport and have social engagements, this will impact on the children’s desire to spend time with him, which may further marginalise him from their lives;
f)the children will not be able to visit the paternal grandfather except on alternate weekends; and
g)he says the journey between his home and Town A will be long, and can take up to an hour and a half during peak hour traffic, or when there is construction work or accidents. He says this adds to the impracticality of mid-week time, and could require him to travel with Z for extended periods to see the children.
I accept the Father is a loving and caring parent, committed to the care of the children and maintaining his relationship with them and their relationship with their sister. He also presents as a determined man. It is his strong desire for an equal time arrangement to be implemented. He has acted in a way designed to bring that to fruition.
I do not accept the Father’s evidence that the parties provided almost equal care for the children as asserted by him, nor that he has been as heavily involved and engaged with the children, including their schooling and other activities. He was employed full-time, and whilst he was able to assist, it was the Mother who primarily tended to the children’s needs. She was heavily engaged in the children’s school and kindergarten, taking on additional roles as a parent helper, attending events such as book parades and Easter parades and organising fundraising activities and other school and kindergarten events. During the time the parties were living under the one roof, I accept the Father did increase his involvement in the children’s lives. However, the Mother remained the primary carer. Whilst the Father is clearly a loving and engaged parent who attended the school and kindergarten activities on occasion, I find it is the Mother who provides the majority of the care, and who was, and continues to be, substantially engaged and involved in the children’s lives.
I accept the Mother’s evidence that the parties’ co-parenting arrangement and post-separation relationship is strained. I have already referred to a number of matters demonstrative of a less than cooperative arrangement. I accept that the Mother genuinely felt overwhelmed and overborne by the Father. He is a professional, and I accept that the Mother has felt at a disadvantage following their separation given his legal background and knowledge. Additionally, he has managed the parties’ finances, and I accept this has further added to her feeling that she is at a disadvantage to him.
I also accept that whilst many of the written communications would suggest a substantially cooperative, and minimally conflictual parenting relationship, there is more subtlety and nuance to those communications. On their face, the communications, coupled with the Mother’s capitulations, have shielded the children from conflict and created a façade of cooperation. However, there are also matters that suggest there was far less cooperation and goodwill between them, with the Father at times acting in a way designed to force the Mother to comply. This includes:-
a)the Father’s refusal to sign the Mother’s Centrelink application unless it recorded a substantially shared care arrangement;
b)his refusal to move from the home save on parenting terms he wanted;
c)his response to the Mother seeking to sell $200 worth of firewood; and
d)his implication that the Mother was free to use the funds from the sale of the Street HH, City B unit as she pleased. The Father’s lawyers had written to the Mother’s lawyers insisting those monies be held on trust on 10 September 2018, notwithstanding she had previously provided him with a signed undertaking she would not deal with those monies save with his agreement or by Court order. Her use of those monies was subsequently limited to being drawn upon by her “for occasional living expenses” pursuant to the orders made by consent on 18 October 2018.
The Family Consultant
The Family Consultant, Mr T (“Mr T”), prepared a report in this matter dated 25 June 2019. It is abundantly clear from that report that the children have secure, strong and loving relationships with their parents and Z. It was Mr T’s view that since separation, the parties had established a functioning and workable arrangement for the children, and they had done so with what he described as “…remarkable cooperation and an absence of significant or ongoing conflict or distress”. He did recognise that the Mother’s experience of the separation “…has been somewhat different to that of Mr Morden’s in that she feels the Father can be somewhat more forceful in his view and she feels she has to accept…” Later in his report he acknowledged the Mother “…may feel co-opted or overridden by the Father at times”. Despite those observations, Mr T said he felt “…the parental alliance remains sound and workable”.
Mr T’s view was that a relocation would not be in the children’s best interests. In particular, Mr T was, and remains, concerned about “…the physical, psychological and emotional distancing from day to day involvement with their Father and sister, that is likely to only increase over time if they were to relocate”.
On the basis that the parents remained “in proximity”, Mr T suggested that the current arrangements could continue until things become “more settled” and the Mother has had “…some time to readjust her thinking and options for the future”. Time between the children and the Father could then increase to six nights per fortnight, and then move to a week about arrangement from mid-2020, with the children to have a mid-week dinner with the non-resident parent.
Mr T attended Court and was cross-examined. It was his impression that the Mother had been more heavily involved in the care of the children than the Father. He accepted that the Father presented as a person who can be determined to pursue a course of conduct. He concurred that whilst both parties were distressed at the breakdown of the relationship, the Mother found this far more distressing than the Father, resulting in her having to invest significantly more emotional energy to present a positive and cooperative façade for the benefit of the children.
Mr T confirmed his view that the move proposed by the Mother would compromise and fundamentally change the relationship between the Father and children, as time would necessarily reduce. He said it would prevent the children from having ready access to their Father as a resource. In the event of a relocation, it was Mr T’s position that there would still be a good relationship between the children and the Father. Mr T said a move would also change the relationship the children have with their sister, but conceded that relationship would still be a good relationship.
Mr T was satisfied that the Mother would do all she could to preserve the relationship between the Father and the children in the event of a relocation. He was also satisfied that the children were happy and adjusted children and would be able to re-engage in a new school and community if they moved.
I share his concerns about the impact of the move on the children and on their relationship with their Father and sister, and I take those matters into my consideration. However, I do not agree with his ultimate recommendations.
The Court is under no obligation to accept the recommendations of a Family Consultant. As the Full Court said in In the Marriage of Hall [1979] FamCA 73 at paragraph 24:-
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities …
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
That case has been cited with approval in the Full Court case of Andrew & Delaine [2009] FamCAFC 182.
As set out, Mr T formed the impression that the parenting alliance was sound and workable. He did not have the benefit of seeing the parties over the course of several days giving evidence nor the testing of evidence and lengthy submissions by Counsel and Senior Counsel. I have formed a different impression than Mr T as to the parties’ level of cooperation and capacity to co-parent effectively. Ultimately, I have formed a different view as to how these children’s best interests are to be met.
The relevant legal principles
Relocation cases are amongst the most difficult cases that this Court is required to determine. This is particularly so when, as in matters such as this, the parents are competent, engaged and loving, with much to offer the children, and where there is merit in each of their competing applications.
It is quite clear at law that whilst this is described as a ‘relocation case’, this is not a separate category of parenting cases. I have to apply the law, and determine orders that are legitimate by reference both to the ‘best interests’ considerations pursuant to section 60CA of the Family Law Act 1975 (Cth) (“the Act”), and to the rights of parents, including their right to choose where to live. I have to evaluate the competing proposals, and consider the detriments and the benefits to the children of those proposals. I do not consider the relocation as a separate or discrete issue, but consider it as just one of the proposals for the children’s living arrangements. These matters are set out in cases including AMS v AIF [1999] HCA 26 (“AMS”), A & A: Relocation Approach [2000] FamCA 751, U v U [2002] HCA 36 (“U v U”) and Taylor v Barker [2007] FamCA 1246.
As observed by Kent J in Heath & Hemming (No.2) [2011] FamCA 749 at paragraph 101:-
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
There are a range of further propositions which arise from the authorities surrounding relocations as follows:-
a)her Honour Justice Boland held in Morgan & Miles [2007] FamCA 1230:-
i)the best interests of the children remain the paramount, but not the sole, consideration;
ii)the parent seeking to relocate does not need to demonstrate a “compelling” reason; and
iii)the best interests of the children must be weighed and balanced with the “right” of a parent to freedom of movement;
b)their Honours in Paskandy & Paskandy [1999] FamCA 1889 said that:-
There can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
c)Their Honours in KB & TC [2005] FamCA 458 held that:-
…the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant [section 60CC of the Act] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
Part VII of the Act guides the process in relation to the making of parenting orders.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is ‘proper’, and how the Court’s discretion is to be exercised, the Full Court in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:-
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Section 60B of the Act sets out the objects of Part VII. They are to ensure that the best interests of children are met and hence, the objects act as a guide:-
(1) The objects of this Part 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.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order, the Court must consider the best interests of the children as the paramount consideration.
Parental responsibility
The parties agree that there should be an order for equal shared parental responsibility. That is an appropriate order in the circumstances of this case.
Section 65DAA of the Act sets out, inter alia, that if an order provides for equal shared parental responsibility, the Court must consider firstly whether equal time is in the child’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, I must then consider both whether substantial and significant time is both in the child’s best interests and reasonably practicable. This is the approach set out by the High Court in MRR v GR [2010] HCA 4, in which the High Court emphasised the Court must be satisfied both that the order is in the child’s best interests and reasonably practicable before consideration can be given to the order being made (emphasis added).
In this case, the parties agree there should be an order for equal shared parental responsibility. It is the Father’s proposal that time should increase to equal time commencing in term three in 2020. Accordingly, I must follow the legislative pathway as already set out.
There is no requirement that the Court consider the question of best interests or reasonable practicability in any particular order, as per Beckham & Desprez [2015] FamCAFC 247. However, it is suggested by the Full Court in Starr v Duggan [2009] FamCAFC 115 at paragraph 38 that a logical approach would be to:-
first make findings concerning the relevant s 60CC factors;
then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
I shall follow that logical approach.
The considerations pursuant to section 60CC of the Act
The children’s best interests are paramount in these proceedings. In determining their best interests, there are two primary matters or considerations, and several additional matters or considerations which I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations I must consider:-
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I must also weigh and consider the additional considerations set out in section 60CC(3) of the Act.
In this case, there are no real issues regarding the children’s safety or exposure to abuse, neglect or family violence.
There is also no dispute between the parties that the children should have a meaningful relationship with both of their parents, and it is common ground that the children greatly benefit from and enjoy a meaningful relationship with each of them, and that this should continue.
In the case of McCall v Clark [2009] FamCAFC 92 (“McCall”), the Full Court of the Family Court observed that whilst the Act does not provide a definition of the word “meaningful”, they noted with approval the view of Brown J in the decision of Mazorski v Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour said it is a qualitative and not a strictly quantitative adjective. Their Honours in McCall also held it was appropriate to adopt the “prospective approach” when considering the benefit to a child of a meaningful relationship with both parents.
In the case of Godfrey v Sanders [2007] FamCA 102, Kay J noted that “…even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. That was subsequently endorsed by the Full Court in McCall.
It is plain that if the children relocate to Town A, the quantity of time they will spend with the Father will be diminished as they will not be in as close physical proximity as they currently are. That, however, is not the end of the matter. The question is whether the children can maintain a meaningful relationship with their Father, and continue to benefit from that, in the event of a relocation.
As set out, the legislation does not require the Court to ensure an optimal relationship between the children and their Father. My focus at this consideration is whether they will benefit from having a meaningful relationship with him. Whilst the Mother’s proposals do not provide an optimal relationship between the children and their Father, I could not be satisfied that the move as proposed by the Mother would result in the relationship between the children and the Father no longer being meaningful or significant to them. The evidence would not support a finding that they would not continue to benefit from their relationship with the Father in the event of a relocation. The relationship between the children and the Father will inevitably alter, but not to the extent that the relationship will no longer be meaningful or beneficial to the children.
The additional considerations pursuant to section 60CC(3) of the Act
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
Given the children’s ages, little weight can be attached to their views.
The nature of the child’s relationships with each of their parents and other relevant persons
It is common ground the children have close, secure and loving relationships with both of their parents. They derive a great deal of comfort and a sense of security from those strong attachments. Similarly, they have a close, loving and secure relationship with Z.
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 and communicate with the child
Both parents have engaged in decision making regarding the children and their care, welfare and development. Both parents are committed parents, and are involved with the children, providing them with appropriate care.
The extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child
As I have set out, until recently the Child Support Assessment was based on incorrect incomes for the parties, resulting in a significantly reduced assessment. The Father did not voluntarily pay additional child support to the Mother although both parties were aware the assessment was incorrect. He did however make the mortgage payments and meet the costs of the utilities.
There was also at least one occasion the Father put $500 into the Mother’s personal account. The Mother said that only occurred once and she immediately transferred the funds to the parties’ joint account. The Father said it occurred more than once.
On 15 March 2019, at the time the Court ordered that the Mother have sole use and occupation of the home, an additional order was made that the Father continue to pay the mortgage repayments, rates, taxes gas, electricity and water bills for the home. He has complied with that order.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other significant person
This is a significant consideration in this case. It will be a substantial change for the children if the Mother is permitted to move to Town A. They will move to a new area, change schools and not see their Father or sister as often as they currently do. The Father will not be able to be as involved with their extra-curricular activities, such as hobbies and sports. It is likely the children will experience a sense of loss that their Father and sister will not be as involved in their world as they currently are.
I am satisfied, however, that the Mother will work to ensure that the children are well supported in moving to Town A. The children will continue to see their Father and sister each alternate weekend and for half of the school holidays. I am confident the Mother will do all she can to preserve, facilitate and promote those important relationships.
In the event the children remain living in the Suburb F area, their time with the Father could increase to spending equal time with each parent. It was Mr T’s view that the children would do well in such an arrangement.
That recommendation was based on Mr T’s understanding that the parties have worked cooperatively together since separation, in circumstances he described as reflecting “…an absence of significant or ongoing conflict or distress”. As I have made clear, I do not accept that the parents are as cooperative or free from conflict as Mr T believed.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This is another consideration that is of particular importance in this matter.
If the Mother and children move to Town A, this will present some difficulties in the children seeing their Father mid-week. However, the distance between Town A and the Father’s home is not so great that it will substantially affect the children’s rights to maintain their relationship with the Father on a regular basis. If the Father wishes to be involved with the children’s school life, he can travel to where they will be living. I accept that there may be logistical issues for the Father which may limit how frequently he can do that. I note, however, that he is self-employed and he deposes to flexible arrangements so that he can care for his children.
If the children are not permitted to move, it is the Mother’s case that she does not know where she will be living. She says she cannot afford to buy suitable housing in the area close to the children’s school. However I accept that, provided the Mother and Father remain living reasonably close to each other, it is far less likely that there will be practical difficulties or expenses involved in the children spending time with each parent.
I will return to considerations of reasonable practicability shortly.
The capacity of each of the child’s parents and any other significant person to provide for the needs of the child, including emotional and intellectual needs
It is not in dispute that both parents have the capacity to meet the children’s needs.
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
There are no additional matters that need to be raised under this heading that have not already been addressed by me in these reasons.
If the child is an Aboriginal child or a Torres Strait Islander child
This consideration is not relevant to these proceedings.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parents are competent and appropriate parents. Both clearly love the children and strive to provide engaged, stimulating and child-focussed care.
Any family violence involving the child or a member of their family
There are no allegations of family violence in this matter.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view it is preferable that the litigation be brought to an end. Both of the parties’ proposals provide for final orders. It is difficult to predict whether the orders sought by the Father would lead to further proceedings, as the Mother does not currently know where she will be able to accommodate herself and the children.
Any other fact or circumstance that the court thinks is relevant
It is undisputed that, in determining a parenting matter in which one parent wishes to relocate, the children’s best interests remain the paramount, but not the sole consideration. It is settled authority that parents have a right of freedom of mobility, but that right “…must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”, pursuant to the High Court’s decision in U v U.
In AMS, Kirby J said at paragraph 145:-
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.
His Honour also said that the Court is not obliged to ignore parent’s legitimate interests and desires, and cannot view the children’s best interests “…in the abstract, separate from the circumstances of the parent with whom the child resides.”
In U v U, Kirby J went onto say further at paragraph 146:-
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent.
I accept the Mother wishes to move. I accept she is nervous and anxious about her future, worried about housing herself and the children, and that she envisages a more positive life for herself and the children in the event of a relocation. I accept she is likely to be unhappy, anxious and frustrated should she be required to remain in the Suburb F area.
It was pointed out by Senior Counsel for the Father that this is not a case in which the Mother is asserting her unhappiness at remaining will be so great that the impact upon her parenting capacity will be to the detriment of the children. Having said that, it was apparent from the Mother’s presentation during the hearing that she is a vulnerable and emotional woman, with limited resilience. Whilst there is no evidence that her unhappiness will impair her parenting capacity, there is no requirement that she must establish such a negative impact on her parenting capacity before a relocation can be ordered; see H & H [2005] FamCA 805 at paragraph 41.
I also accept that the Father has genuinely considered the possibility of moving to Town A or its surrounds. Whilst it may be that his employment is transportable, his responsibilities for Z are such that if he were to move, that relationship would be impacted. Additionally, the Father needs to be close to where the paternal grandfather resides in a nursing home, as he and the children visit him frequently.
I accept that it would be extremely difficult for the Father to move to live closer to the children in the event that they relocate.
Reasonable practicability
In determining whether it is reasonably practicable for a child to spend equal, or substantial and significant time with their parents, section 65DAA(5) sets out the following:-
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
It is clear that if the Mother and children are in Town A, there is a serious difficulty about the practicality of equal or even substantial and significant time. The practical reality is overnight time would need to be limited to weekends. It would not allow the Father to be involved in the children’s daily school or weekday routine, as the arrangements could not include mid-week time unless the Father is able to attend in Town A.
If the Mother is not permitted to move to Town A, it is difficult to assess whether there would be practical difficulties in an order for equal time or substantial and significant time, as there is no certainty as to where the Mother will be living. If orders are made as sought by the Father requiring the children to remain at their current school, it follows that the Mother would be required to find accommodation for herself and the children within a reasonable proximity. His evidence was that she would need to remain within about 30 minutes of the school. In those circumstances, equal time and/or substantial and significant time may be workable.
However, Counsel for the Mother strongly urged against making an order regarding the children remaining at their current school as it effectively injuncts the Mother from moving any real distance. Counsel for the Mother said it is not known what housing the Mother will be able to afford, and to require her remain in the area will limit her choice of housing to a unit. If she is unable to find a suitable and affordable apartment to purchase, she will have to rent, with all the uncertainty that flows from that. Additionally, Counsel for the Mother submitted that renting would require the Mother to erode her capital, which creates an obvious practical difficulty for the Mother. The Father conceded the Mother was unlikely to be able to easily obtain a loan, at least without a guarantor. There was no evidence any person is prepared to be guarantor for the Mother.
That is contrasted to the Mother’s assertion she will be able to purchase a three bedroom house with a garden for around $530,000 in Town A. There does not appear to be any dispute about that. As Counsel for the Mother submitted during closing submissions, the Father will be able to retain and remain living in the parties’ four bedroom, two bathroom home with a garden, valued at $900,000. On the Father’s proposal, the Mother’s options will be limited to either renting in the area or purchasing a three bedroom unit for a similar price to a home in Town A.
Mr T is of the view that an eventual equal time arrangement would have a positive impact on the children. It appears to be common ground that an order for substantial and significant time would also benefit the children. I note that the children have in reality been in the Mother’s primary care. During the relationship, the parties arranged their affairs to establish traditional roles. The Mother left paid employment to do this, and whilst the Father has played an important role in the children’s lives, I accept that the Mother has been the children’s primary carer. The children have thrived in that arrangement.
Should the Father elect to travel to Town A during the week, it would enable him to spend time with the children on weekdays, to participate in their daily routines and to engage with their extra-curricular activities and school life, although I accept this will be more limited than if the children lived close to him.
Much of the evidence before me regarded the parties’ capacity to communicate and resolve difficulties. It is the Father’s case that the parties are able to reach agreements and that their communications are generally respectful and appropriate. It is the Mother’s case that the Father overwhelms and overrides her and that he has deliberately fashioned many of the communications to present a façade of respect and appropriate communication, in order to achieve his agenda of securing an equal time arrangement. In my view, given the Mother’s distrust of the Father, and the various incidents that belie the veneer of parental cooperation, an order for equal time is not reasonably practicable nor in the children’s best interests.
Consideration of the competing proposals
Consideration must be given to each of the proposed arrangements of the parties. I am, of course, not bound by those proposals. In this case there are effectively two proposals as I have set out.
It is clear that the Mother’s proposal to move to Town A will undoubtedly have negative effects on them. The children’s relationship with their Father, sister and extended paternal family will be impacted. There will undoubtedly be disruption to the children as a result of moving from a familiar school and environment in which they regularly saw their Father and his family. I have taken into account Mr T’s evidence about the effect of a potential relocation on the children. These are all significant disadvantages faced by the children, which I take into consideration.
The Father’s proposal that the Mother and children remain has the benefit of maintaining the children’s relationship with their Father, sister and extended paternal family. I do however hold concerns regarding the appropriateness of an equal time arrangement. Whilst the parties appear on the surface to work co-operatively, some matters belie that outward appearance. I also note the Mother’s genuine distress and worry about being overwhelmed and overborne by the Father, and the Father’s determined approach to parenting. An order for equal time may well cause issues given this dynamic.
It is not certain that the Mother will be able to purchase housing for herself and the children in close proximity to the children’s current school. The Mother may have to move further afield to purchase a suitable home, which may require the children to change schools and may make a shared care arrangement difficult to implement. If the Mother is unable to purchase a home, she may have to rent, which would erode her capital, and contribute to her worry about her and the children’s future.
There are advantages to the Mother’s proposal. The children would continue to thrive with the Mother as their primary carer. The Mother would be living closer to family support. The housing options available are superior, in that the Mother and children may well have the option of living in a house with a garden. These children are young and active, and an area for outdoor play will likely be of benefit to them.
Whilst the children’s time with their Father and sister will be reduced, the relationships will be maintained. The move is not so far that alternate weekends cannot easily be managed. The Mother suggests that if the Father is able to travel to Town A on a Friday afternoon, he can attend the Friday assembly and take the children home with him, to enable him to participate in the children’s school life. She said she would then collect the children from him on the Sunday evening.
Balancing all the considerations, taking into account the advantages and disadvantages to the children of the parties’ competing proposals, and weighing all those matters including the Mother’s ‘right’ of freedom of movement, I am not satisfied that it is both in the children’s best interests or reasonably practicable that they remain living in the Suburb F area, with either equal or substantial and significant time with their Father. Conversely, I am satisfied the children’s best interests are met by continuing to live in the primary care of their Mother, permitting her to move with them to Town A, and spending alternate weekends and half of school holidays with their Father as well as time on special occasions.
Property
Legal principles
This property application is brought pursuant to Part VIII of the Act. Both parties seek that I adjust their interests in their assets, liabilities and financial resources.
Pursuant to section 90SM(3) of the Act, before making any order altering the interests of the parties to a marriage in relevant property, I must be satisfied it is just and equitable for me to do so. In Stanford v Stanford [2012] HCA 52 (“Stanford”), the High Court of Australia said that in order to consider whether it is just and equitable to make an order, I must first identify the existing legal and equitable interests of the parties.
If I am satisfied it is just and equitable for an order to be made, I am then empowered to make such order as I consider appropriate taking into account a number of factors as set out in sections 90SM(4) and 90SF(3) of the Act, insofar as they are relevant.
Assets, liabilities and financial resources as at the date of Final Hearing
The parties have agreed they currently have the following legal and equitable interests, exclusive of superannuation:-
ASSETS
VALUE
Equity in the former matrimonial property, registered in the Mother’s sole name valued at $900,000 less mortgages ($330,000) and ($161,588)
$408,412
Balance of the net proceeds of sale of the Street HH, City B unit
$232,198
Equity in Street G, Suburb H, (“the Street G, Suburb H property”), registered in the Father’s sole name valued at $440,000 less mortgage ($300,962)
$139,038
Street J, Suburb K, (warehouse) (“the Street J, Suburb K property”) purchased in December, 2015, and registered in the Father’s sole name
$170,000
Joint mortgage saver interest account
$68,754
Street E, Suburb F Family Trust held by the Father
$1,000
C Pty Ltd held by the Father
$30,120
Father’s interest in the N aircraft
$86,000
Father’s interest in DD Pty Ltd
$1,205
Father’s Motor Vehicle O
$43,000
Father’s Motor Vehicle P
$2,000
Mother’s Motor Vehicle U
$6,050
Caravan to be retained by the Father
$39,000
Super Fund Q in Father’s name
$4,707
EE Shares held by Father
$684
LIABILITIES
CGT arising from sale of Mother’s Street HH, City B unit – agreed subject to the Mother providing Notice of Assessment
($26,804)
TOTAL NET POOL AS AGREED
1,205,364
The amount in CC Pty Ltd at trial was $8,202. However, it was conceded by Senior Counsel for the Father that the amount of $30,120 was the correct amount, as the Father had used the funds in that account to meet legal fees, and those monies were properly to be notionally added back.
I note that the Father deposes in his affidavit that he will sell the Street J, Suburb K property, and that will trigger a CGT liability. However, he specifically gave evidence that he is yet to determine when that property will be sold, and agreed that any costs or tax liabilities arising from its future sale should not be taken into account in my determination.
The parties do not agree as to the following:-
a)the value of the Father’s vintage FF collection. The Father initially deposed the collection was worth $10,000. The Mother accepted that assertion. In his trial material filed 29 July, 2019, just 14 days prior to the Final Hearing, he reduced his assessment of the value of that collection to $5,000; and
b)similarly, in relation to the Father’s vintage GG collection, the Father initially deposed they were worth $10,000, which was accepted by the Mother. His trial material asserts the collection is worth $6,000.
There is no valuation of either collection. Orders made 22 October 2018 permitted the Mother to obtain appraisals or valuations of those collections, using the proceeds of the Street HH, City B unit to fund same. She elected not to do so, and instead adopted the Father’s own original figures.
The Father gave some evidence that he has reassessed his valuation of the FF collection on the basis that he listed some items online and he did not obtain the price he anticipated. I put no weight on that evidence. The Father previously asserted the collections were worth a certain amount. That has been accepted by the Mother, and on the basis of his assertion she has not had the assets formally valued. It is therefore not open to him just days before the Final Hearing to resile from his previous assertion. Accordingly, I include the two collections in the pool at $10,000 each.
The Mother seeks to notionally add back the sum of $26,000, withdrawn by the Father from the mortgage by way of three tranches:-
a)on 6 April 2018, in the sum of $6,000;
b)on 4 June 2018, in the sum of $10,000; and
c)on 22 June 2018, in the sum of $10,000.
Counsel for the Mother asserts these monies were withdrawn by the Father without the Mother’s knowledge, in circumstances where he was earning an income. There is no evidence as to how he has applied those monies. The adding back of this sum is opposed by the Father.
The statements for the Father’s account showing those funds being paid in were tendered. From that account, the Father made multiple payments, including child support for Z, his credit card, funds to the Australian Taxation Office (“ATO”), loan repayments and council rates. Some funds were transferred into the parties’ joint account. It seems some of the monies, at least, were used for joint purposes. In those circumstances, I am not prepared to add the monies back. However, I will take this into account when assessing the parties’ overall contributions.
The Father sought that the sum of $30,125 he owed to the ATO pursuant to his June 2019 Business Activity Statement (“BAS”), be treated as a joint liability. That was opposed by the Mother on the basis that the debt is his personally, and it is a liability acquired by the Father well after separation. He has retained the benefit of the monies paid to him that generated that liability. He has not sought to notionally add back his gross income paid for that period into the pool. It is not appropriate in my view that the Mother should bear any responsibility for that liability.
The parties agreed at the conclusion of the hearing for the Father to redraw the sum of $30,125 from the mortgage encumbering the home to pay the ATO liability for the June 2019 BAS, with the determination of how that was to be treated to be reserved.
For the reasons outlined, I do not regard the ATO liability as a joint liability. Accordingly, I will treat the mortgage as if it had not been re-drawn, and will and I shall not include the ATO liability in the parties’ asset pool.
The Father sought to include the parties’ personal savings. At the time of trial, the Mother had the sum of $9,794 in her savings account. The Father had $6,166. Counsel for the Mother said those funds should be excluded, as they are de minimis and fluctuate frequently. Whilst those amounts do fluctuate, I am including them as assets the parties actually had at the time of trial. I see no basis to exclude them.
Accordingly, in addition to the pool as outlined above, I add:-
Father’s vintage FF collection
$10,000
Father’s vintage GG collection
$10,000
Mother’s savings as at trial
$9,794
Father’s savings as at trial
$6,166
That brings the net pool exclusive of superannuation to $1,241,324.
In relation to superannuation, the Father has a total of $20,898 in two funds with the Commonwealth Bank and Executive Superannuation.
In addition, the parties have a self-managed superannuation fund. The Mother rolled her pre-relationship superannuation into that fund, as did the Father, when they established the fund in 2014. The fund owns an apartment in Suburb JJ which is currently the subject of litigation through the Victorian Civil and Administrative Tribunal (“VCAT”) regarding building defects. The Father asserts the net assets of the fund as a result of a very recent re-valuation of the property are $555,895. He says the 2017/2018 returns show the parties’ entitlements as $402,786 for him and $178,075 for the Mother. This does not take into account the possible outcome of the VCAT proceedings, which he says could result in the fund having to meet significant costs of repairs. The Mother does not agree with the valuation attributed to the Suburb JJ property by the Father and has obtained a separate valuation.
Nevertheless, the parties were able to negotiate and resolve superannuation matters at trial. As set out below, the parties have reached an agreement to rollout $240,000 to the Mother from that fund.
Is it just and equitable to make an order?
In these proceedings, both of the parties urge the Court that it is just and equitable that orders be made to alter their interests in their property. It is not sufficient that the parties simply agree that there should be an order made pursuant to section 90SM of the Act. I must be satisfied myself that such orders are appropriate.
The High Court in Stanford made it clear that I cannot conflate my determination pursuant to section 90SM(3) of the Act with my determination pursuant to section 90SM(4) of the Act. These are separate enquiries, and I must not start with an assumption that one party or the other has the right to have the property divided between them.
The former matrimonial home is registered solely in the Mother’s name. The parties are no longer living together in that property and their relationship has come to an end. It is clear that both parties contributed to that property over the course of their seven year relationship which produced two children. It is also clear that the Father contributed the funds to purchase that property. If no orders were made, the Mother would retain that property to the exclusion of the Father.
In my view, this is one of the “vast majority of cases” referred to by the plurality in Stanford, in which the requirements of section 90SM(2) of the Act are fairly readily satisfied. It is plainly just and equitable to make an order pursuant to section 79 of the Act in these proceedings for a division of property between the parties.
Accordingly, I now turn to the considerations in section 90SM(4) of the Act to determine what orders I should therefore make.
Section 90SM of the Act
In determining what orders to make pursuant to section 90SM, as set out by Kay J in Aleksovski v Aleksovski [1996] FamCA 111 at paragraph 50:-
It is… necessary that trial judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
At paragraph 90, his Honour said “What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.”
That was quoted with approval by the Full Court Dickons v Dickons [2012] FamCAFC 154 (“Dickons”). Their Honours stated at paragraph 21 that “…the requirements of the section are met by approaching the assessment of contributions holistically…” by analysing the contributions of all types, and by reference to the particular circumstances of that particular relationship.
Their Honours went on to say, at paragraph 23, that there is little to be gained by attaching percentages to each component of contributions, but that considering contributions by reference to initial contributions, those during the relationship and those made post-separation, at paragraph 24:-
…can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship.
The assessment of contributions does not require “over-zealous” attention to the ascertainment of contributions, and the process of the Court as required by section 79 of the Act, and therefore section 90SM of the Act “…is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise” as set out in Dickons at paragraph 25.
Initial contributions
At the commencement of the relationship, the Mother owned the Street HH, City B unit, which had an agreed equity of approximately $68,000. She also had superannuation of approximately $75,000. Those funds were rolled over into the parties’ self-managed superannuation fund in 2014. The Street HH, City B unit was rented out during the relationship.
The Father had savings of approximately $65,200 which was paid to the deposit on the former matrimonial home.
The Father also owned the Street L, Suburb M property. That was sold approximately six months after the parties commenced cohabitation and the net proceeds of sale were between $600,000, as asserted by the Mother, or $675,000, as asserted by the Father. The proceeds of sale were applied towards the mortgage then encumbering the former matrimonial home.
The Father also owned the Street G, Suburb H property. He says the equity at the commencement of the relationship was around $69,000. Senior Counsel for the Husband submitted that that figure was his initial contribution. However, there is no expert evidence about the properties’ value at the time, notwithstanding the fact that a historical valuation could have been obtained. The Father is not an expert, and there is limited weight I can put on his assertion as to the value of his initial contribution in this regard.
That property is now worth $440,000, with a mortgage of $300,962, leaving equity of $139,038. That mortgage has remained fairly stagnant throughout the relationship, with the income generated from rent meeting the repayments. The Father conceded that he had borrowed the whole of the purchase price, being $300,000, when he bought the property. Counsel for the Mother asserts that accordingly, this cannot be treated as an initial contribution. The mortgage at the time of the purchase was $300,000 with no equity. The parties have made no improvements or contributions to it. The increase in the value of the property is a result of market forces, and not as the result of any actions taken by the parties, save for their joint decision not to dispose of it. Whilst that may be factually correct, the Father did own the property at the commencement of the relationship. He had paid a deposit and the costs of purchasing the property. Had he not owned that property, the parties would not have the benefit of it now being in the pool, and accordingly, that contribution should be taken into account in my overall assessment.
The Father also owned a half share in N aircraft. At the commencement of the relationship, that half share was worth $192,000. It is now worth $86,000. At the outset of the proceedings, there was some argument as to whether the aircraft could be included as the Father asserted he was unable to sell his share. However, in closing submissions it was agreed it was to be included in the pool.
In relation to the value attributable to this asset at the commencement of the relationship, Counsel for the Mother asserted that it would be an error to regard the Father as having made an initial contribution of $192,000 and it would also be erroneous to simply regard the contribution as being worth the $86,000 at which it is now valued. The interest has devalued. Additionally, the parties have incurred losses retaining, running and maintaining the plane. Over the last three years, according to tax returns, those losses have been $25,000 in 2016, $15,000 in 2017 and $9,000 in 2018. I accept those submissions, and I take that into account when weighing and assessing the parties’ contributions.
The Father also contributed the sum of $253,986 by way of superannuation at the outset of the relationship. Those monies were then applied to the self-managed superannuation fund in 2014.
As set out above, my task is not to be over-zealous in determining the precise amount or value of each party’s contributions. This is not a strictly mathematical exercise. However, it is readily apparent that the Father’s initial contributions significantly outweigh those made by the Mother.
Contributions during the marriage
As already observed in these reasons, the parties established a traditional division of labour. I accept that the Father was involved with the children outside of his work commitments, but I accept the Mother’s evidence that the care arrangements for the children and household tasks were generally attended to by her.
The Mother asserts the Father’s hobbies, being overseas travel to attend festivals, the DD Pty Ltd enterprise, and his GG and vintage FF collection, caused the parties to lose monies. She says:-
a)he travelled twice yearly overseas, which was costly;
b)in relation to DD Pty Ltd, it is common ground that the partnership tax returns for the years 2016 to 2018 as tendered show a loss in each year. Of course, the parties then had the benefit of off-setting those losses against the Father’s income; and
c)the parties could have generated an income by leasing out the Street J, Suburb K property, used to store the Father’s GG and FF collections. The parties have continued to pay the outgoings on that property.
The Father asserts the parties have gone backwards financially over the course of their relationship. He says he has struggled to meet the financial needs of the family and wanted the Mother to return to part-time work to ease the financial strains.
I do not regard either party as having acted in a manner that has caused the parties to lose monies. I find the parties contributed to the best of their abilities in the discharge of the duties and obligations of the roles they each adopted.
Z was also part of the household for six nights each fortnight and for half of the school holidays. I accept the Mother’s evidence that whilst the Father undertook considerable care responsibilities in relation to Z, the Mother also contributed in that regard, including when the Father was travelling overseas. The Father also paid $667 per month to Z’s mother pursuant to a Binding Child Support Agreement, together with contributing towards her school fees, uniforms and the like. The Mother’s assistance and the contribution of the family’s funds towards Z are factors I take into account.
Contributions post-separation
The Father has played an increased role in caring for the children post-separation. However, the Mother continues to play a more significant role in that regard.
The Father has continued to make contributions to the family financially, both during the period of separation under the one roof and thereafter. He has maintained the mortgage and paid for the utilities and outgoings. He has paid child support as assessed, notwithstanding that the parties agree the assessment was inaccurate and inadequate.
I take into account that the Father has withdrawn a total of $26,000 from the mortgage account. This is in circumstances where he says he has been struggling financially and has continued to shoulder the majority of the living costs for the parties and their children.
Relevant considerations pursuant to section 90SF(3) of the Act
The Father is 51 and the Mother is 42. They are both in good health.
The Father is self-employed as a professional.
The Father was cross-examined as to his income since 2016. He conceded that whilst his taxable income for that year was $71,035, that included:-
a)a loss of $15,150 from DD Pty Ltd;
b)a notional distribution to the Mother of $81,967;
c)a payment to the Mother’s superannuation of $15,000;
d)a negative gearing loss on the Street G, Suburb H property of $7,927; and
e)a depreciation of around $4,685.
He accepted that in real terms, his income was therefore closer to $200,000 for that year.
The Father acknowledges that his income in real terms in 2017 was approximately $250,000 when the same exercise was undertaken. That is, in that year, his income is recorded as being $136,000. He claimed:-
a)the net loss for DD Pty Ltd of $25,266;
b)$15,000 worth of business expenses which included leasing the Street G, Suburb H property to his business;
c)a notional distribution of $88,581 to the Mother as income; and
d)a payment of $15,000 to the Mother’s superannuation.
In 2018, the parties separated, and the Father left Employer KK. He asserted his income in 2018 dropped to $78,228. In addition, he paid $5,000 into his superannuation, made a notional distribution to the Mother of $4,165, and deducted net loss of rental from the Street G, Suburb H property of $1,631 and $8,900 from DD Pty Ltd.
The Father has estimated that his income for the 2018/2019 year is $145,000. However, based on current income, he anticipates his taxable income for 2019/2020 will be $90,000.
The Father acknowledged having opened a separate superannuation fund for himself into which he paid the sum of $20,000 from his business on 29 June 2018. This was a voluntary contribution.
He deposes in his trial affidavit that he expects to earn $120,000 to $170,000 per year in the near future, but that will only reliably begin occurring in the next few years as the children become more independent. He says that this calendar year, his billings have been significantly lower than anticipated, with the bulk of his income for this financial year having been generated prior to the New Year.
The Mother was cross-examined as to her capacity to return to health care work. It was the Mother’s evidence that she will not return to health care work. Her registration has lapsed. She has made no enquiries as to what she would need to do to regain her registration. I accept her evidence that much of the work available as a health care worker involves shift work, which is incompatible with her obligations to care for the children. She was cross-examined regarding other health care opportunities available to her in private practice, community health and the like. It was her evidence that she did not have relevant experience for those positions and would be unlikely to be a successful candidate. I accept her evidence in that regard.
It is the Father’s case that the parties intended the Mother would return to health care work. That is disputed by the Mother. Her registration lapsed during the relationship, and there is no evidence that this was a concern for the Father. Rather, the parties paid for the Mother to undertake a course and she then obtained some casual work in that field. That is not consistent with the Father’s assertion that the intention was that she would return to health care work.
In terms of customer service work, the Mother was cross-examined about the applications or enquiries she has made to be engaged in that field. It was put to her that there are multiple employers operating in the vicinity of the children’s school, and she acknowledged that she had made almost no enquiries of any of those businesses. I do not know however whether any of those businesses had vacancies for which the Mother could have applied.
The Mother has engaged in some part-time work as a customer service officer. She says her hours are irregular and seasonal. She said further she has been a very engaged parent, and wants to continue in that role, including attending the school as a parent helper and being heavily engaged with fundraising, parent groups and the like.
The Mother has now commenced a Course of Study. The total cost of that course is approximately $12,340. She hopes to complete that course by mid-2021. She says she will be qualified to undertake some aspects of that work prior to completing the course, including undertaking work and reports for $500 each. She anticipated being able to do approximately two per week. There was no evidence given as to when she might be expected to commence those reports.
In terms of her income going forward, the Mother’s evidence was that as a health care worker, she could make around $70,000 to $80,000 per annum. She anticipates making around the same once she has completed her training as a professional. Whether she returned to health care work, or works as a professional, her income earning capacity will still be less than the Father’s.
It is plain that by attending to homemaker and parenting duties, the Mother’s income earning capacity has been reduced. Conversely, the Father has been able to pursue his career.
The Father has paid child support as assessed, as well as contributed to the support of the Mother and children by paying the mortgage and outgoings on the home. As already set out, the assessment was previously based on artificial income information. A new child support assessment has recently been issued, pursuant to which the Father will pay $1,155 per month, or $266 per week.
The Father also has an obligation to maintain Z, pursuant to the terms of the Binding Child Support Agreement.
The Father will retain the four bedroom, two bathroom former matrimonial home. He will retain two investment properties. He will retain his half interest in an aeroplane, together with his income earning capacity. Clearly, he will also have significant liabilities. The Mother will have the primary care of the children, and will need to ensure she can house them and herself adequately. However, it is plain that the Father’s financial position will be superior to the Mother’s.
Subsection 90SF(l) of the Act requires that I take into account the need to protect a party who wishes to continue that party’s role as a parent. Both parties asserted this was relevant to them and their case. Whilst the Father has clearly participated in the children’s lives, and particularly since separation, the Mother has been and will continue to be the primary carer for them.
Assessment of contributions and prospective needs
In my view, taking all of the competing contributions into account, and doing my best to give value to all the elements that went into the making up of the entirety of the parties’ relationship as set out above, I assess the parties’ respective contributions to the non-superannuation pool at 65% to 35% in favour of the Father. In particular, that recognises the Father’s initial contributions which were significantly greater than those of the Mother, as well as recognising the parties’ efforts during the relationship and post-separation, in terms of financial, non-financial, parenting and homemaker contributions during the course of the seven year relationship.
In relation to the question of future needs, a further 7.5% adjustment in the Mother’s favour is appropriate, bringing the division of the overall asset pool to 42.5% to the Mother and 57.5% to the Father. Pursuant to the parenting orders I am making, the Mother will have the primary care of the children. The further adjustment is appropriate given all of the matters I must take into account, including in particular:-
a)the care arrangements for the children;
b)the disparity in the parties’ income earning capacity and property;
c)that the Mother has been out of the work force in order to provide for the parties’ children; and
d)that the Mother has now returned to study.
In terms of the figures themselves, from the pool of $1,241,324, the Mother is to receive a net total of $527,563 and the Father is to retain a net total of $713,761.
The Father will retain the following assets:-
ASSETS
VALUE
Equity in the former matrimonial home
$408,412
Equity in the Street G, Suburb H property
$139,038
The Street J, Suburb K property
$170,000
Joint mortgage saver interest account
$68,754
Street E, Suburb F Family Trust held by the Father
$1,000
CC Pty Ltd held by the Father
$30,120
Father’s interest in the N aircraft
$86,000
Father’s interest in DD Pty Ltd
$1,205
Father’s Motor Vehicle O
$43,000
Father’s Motor Vehicle P
$2,000
Caravan
$39,000
Super Fund Q fund in Father’s name
$4,707
EE shares held by Father
$684
Father’s vintage FF collection
$10,000
Father’s vintage GG collection
$10,000
Father’s savings as at trial
$6,166
LESS cash payment to the Mother
($306,325)
Net total to the Father
$713,761
The Mother will retain the following assets:-
Balance of the net proceeds of sale of the Street HH, City B unit
$232,198
Mother’s Motor Vehicle U
$6,050
Mother’s savings as at trial
$9,794
CGT arising from sale of Street HH, City B
($26,804)
PLUS cash payment from Father
$306,325
Net total to the Mother
$527,563
As I have set out, I have not included the Father’s ATO liability, nor increased the mortgage amount owing, even that has likely been drawn down to pay the ATO debt, pursuant to orders made by consent on 15 August 2019. The parties agreed that this was how I should approach this aspect of the proceedings if I determined that the ATO liability was not joint.
Superannuation
As already set out, the parties operated a self-managed superannuation fund, which owns a unit in Suburb JJ. The outcome of the VCAT proceedings in relation to that property will not be known for some time.
To their credit, the parties were able to reach an agreement as to how superannuation was to be divided. A Minute of Consent Orders has been drafted by the parties and provided to me. That proposed order provides that the Mother will receive the sum of $240,000 from the parties’ self-managed fund which shall be rolled out into another fund as nominated by her.
On the Father’s figures, the Mother is receiving around 40% of the total superannuation pool, with the Father to bear the costs, if any, of the outcome of the VCAT proceedings. On the Mother’s figures, she is receiving significantly less than 40%.
I am prepared to make those orders, notwithstanding that the VCAT proceedings are yet to be determined. It is preferable to make orders resolving the matter and enable the parties to end their financial relationship by taking a pragmatic approach, rather than adjourning this aspect of the dispute sine die. Accordingly, I incorporate those consent orders into the orders I make this day.
Maintenance
I have already set out many of the matters to be taken into account under the heading “Relevant considerations pursuant to section 90SF(3) of the Act”.
Before making an order for maintenance, the Court must be satisfied pursuant to section 90SF(1)(b) of the Act that the Mother is unable to support herself adequately on one of the following bases:-
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
The Mother has been engaged as a full-time carer for the parties’ children since X’s birth in 2011. Whilst the Father asserts the Mother has not discharged the onus she bears to demonstrate she has no capacity for employment, the reality is as follows:-
a)she has not worked as a health care worker since 2011and her registration has lapsed. It would take time and cost money for the Mother to become re-registered;
b)the Mother has engaged in some casual customer service work. This has generated her only an extremely modest income to date. It may be that she could seek further work in this field. She says she can make $22 per hour with BB & Co in the City B area, and may also be able to get some work through another employer in Town V, but the work is seasonal and inconsistent. Whilst she conceded there are a number of businesses in the vicinity of the children’s current school, there was no evidence those businesses are actually offering work;
c)the Mother has sought employment as a public servant, and enrolled in a TAFE course for a course to assist her to find employment in that field. She made four applications for positions in November 2018, January, February and May 2019. She was unsuccessful on each of those applications;
d)the Mother has the primary care of the parties’ children and she wishes to continue in this role. Whilst the children are now both at school, they are still young. Both children are used to their parents delivering them to and collecting them from school each day; and
e)as set out, the Mother is currently studying a Course of Study.
I am also required to take into account the terms of any order proposed to be made under section 90SM of the Act. The Mother will retain the sum of $232,198 from the sale of the Street HH, City B unit, and receive a cash payment from the Father of $306,325. She will need to pay from those funds the CGT liability and her legal fees, as well as use it to provide housing for herself and the children.
The Mother was not challenged as to her expenses, which appear to be relatively modest.
I am satisfied that the Mother’s income earning capacity is very limited and that she is currently unable to support herself adequately by virtue of her care of the children. However, I also take into account that she will be receiving a property settlement and moving to an area in which she says she has some prospects of generating an income. She will receive an increased amount pursuant to child support. She will also at some stage start being able to undertake work.
Having established the Mother’s need for maintenance, I now turn to the Father’s capacity to pay. The Court must apply the principal that a party to a de facto relationship obligation to maintain the other party is only to the extent the first mentioned party is reasonably able to do so.
It is the Father’s case that after paying all reasonable expenses, he has no surplus funds from which he can contribute to the Mother’s support. He says his debt situation will increase as a result of the property settlement, as he will be required to extend loans to make the necessary payment to the Mother. It is his evidence that based on his expected income this year, he anticipates a shortfall of approximately $1,414 per week.
The Father inaccurately swore in his Financial Statement that one of his expenses was paying rent of $450 per week to reside at the paternal grandfather’s home. He conceded he did not actually pay that amount. It was also his evidence that although he is not paying it currently, it is accumulating as a debt to be paid “retrospectively”. I do not accept that he is either paying rent, nor that he is accumulating a debt for same. Neither his Financial Statement nor the various schedules of assets and liabilities produced by him included such a liability.
However, even if I disregard the amount the Father asserts he pays by way of rent, there is still a significant shortfall between the Father’s income and expenditure. I note also that his child support liability will increase and he has obligations to support Z.
Taking all the evidence into account, I am not satisfied the Father has sufficient funds to make additional payments to the Mother by way of maintenance, beyond continuing to meet the mortgage and outgoings on the former matrimonial home pending her vacating that property in January 2020. Upon vacating the home, the Mother will relocate to Town A. The care arrangements for the children will alter and it is anticipated this will result in a further new and increased child support assessment to be paid by the Father. Upon relocating, the Mother will be able to pursue work in the area, including the employer in Town V and with BB & Co. She will, at some stage, be able to commence undertaking professional reports.
Accordingly, I will not make an order for maintenance beyond continuing the order for the payment of the mortgage and outgoings. I will make that order to be by way of maintenance, so there is no suggestion that it is child support that could be credited against any assessment.
For all of the foregoing reasons, I make the parenting and property orders as are set out.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Judge Carter
Date: 20 September 2019
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