Cope and Cope

[2016] FCCA 595

FEDERAL CIRCUIT COURT OF AUSTRALIA

COPE & COPE [2016] FCCA 595

Catchwords:
FAMILY LAW – Parenting – parental cooperation, communication, equal time – substantial and significant time. Property – contributions, future needs.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75, 79

Cases cited:
Billington & Billington (No.3) [2000] FamCA 1465
Collu & Rinaldo [2010] FamCAFC 53
Stanford& Stanford (2012) 247 CLR 108

Applicant: MR COPE

Respondent: MS COPE

File Number: SYC 3716 of 2013

Judgment of: Judge Howard

Hearing dates: 30 November 2015, 1 & 2 December 2015

Date of Last Submission: 5 February 2016

Place of Hearing:

Delivered at:

Sydney

Brisbane

Delivered on: 21 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Kearney SC

Solicitors for the Applicant: Paltos Milevski Family Lawyers

Counsel for the Respondent: Mr Batey

Solicitors for the Respondent: Wight & Strickland

ORDERS

THE COURT ORDERS ON A FINAL BASIS (in relation to Property):

1. That within (14) days of the date of these Orders the parties are to do all acts and things and sign all documents necessary to cause the funds held in the controlled monies account with Spooner and Hall Solicitors (being the sum of $1,130,266 as at 30 September 2015) to be paid to the parties as follows:

   (a)The sum of seven hundred and fifty two thousand five hundred and forty three dollars ($752,543.00) to the wife;

   (b)The sum of three hundred and seventy seven thousand seven hundred and twenty three dollars ($377,723.00) to the husband; and

   (c)Any amount of interest earned thereafter during the period since 30 September 2015 shall be divided equally between the parties. 

2. That the husband retain the whole of his right title and interest in and to the property situate at and known as Property W, ("the Property W property") being the whole of the land described in Certificate of Title, Folio Identifier (omitted) and shall indemnify the wife and keep her indemnified in and respect of the existing mortgage with (omitted) Bank and it is noted the Property W property has since the final hearing been subdivided and is now known as Property W, (being the whole of the land in folio identifier (omitted)), Property W (being the whole of the land in folio identifier (omitted)) and Property G (being the whole of the land in folio identifier (omitted)). 

3. That the wife indemnify the husband and keep him indemnified in respect of any and all liability of the husband to Harmers Workplace Lawyers to date.

4. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of Mr Cope in respect of (omitted) Group Super ("the superannuation fund") account number (omitted), Ms Cope is entitled to a base amount of $60,000.00 and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

5. That, having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of (omitted) Group Super.

6. That the operative time for this Order is four (4) business days after the date of service of the Orders on the Trustee of the superannuation fund. 

7. That subject to these Orders the husband as against the wife be declared the sole legal and beneficial owner of:

   (a)All personal property now in his respective possession or control;

   (b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively;

   (c)All interests in life insurance policies and superannuation funds standing in his sole name respectively; and

   (d)All other property and financial resources to which he is or may become entitled.

8. That subject to these Orders the wife as against the husband be declared the sole legal and beneficial owner of:

   (a)All personal property now in her respective possession or control;

   (b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively;

   (c)All interests in life insurance policies and superannuation funds standing in her sole name respectively; and

   (d)All other property and financial resources to which she is or may become entitled.

9. That both parties promptly do all acts and things and execute all documents, authorities or writings as are necessary to give effect to all or any of the above.

10. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument.

THE COURT ORDERS ON A FINAL BASIS (in relation to Parenting):

1. That the parties are to have equal shared parental responsibility for each of:

   (a)X born (omitted) 2005;

   (b)Y born (omitted) 2006;

   (c)Z born (omitted) 2006;

   hereinafter collectively referred to as “the children”.

2. That the children live with the Mother and the Mother be responsible for the children’s day to day care welfare and development other than as provided in Order 13 herein.

3. That the children live with the Father and the Father be responsible for the children’s day to day care welfare and development during the following time:

   (a)During school term, from after school Thursday to before School Monday in the first week, and from after school Thursday until before school Friday in the second week and for the purposes of Order 3(b), Order 3(c) and Order 3(d), this time shall be suspended and then recommence on the recommencement of the school term;

   (b)For half of each school holiday, being the first half in those years ending with an odd number and the second half in those years ending in an even number but subject to Order 3(c) herein;

   (c)That notwithstanding Order 3(b) herein the children shall live with the parents on Christmas Eve / Christmas Day in the years 2017 and 2018 only, as follows:

   (i)With the Mother from 5:00pm on 24 December 2017 to 3:00pm 25 December 2017; and

   (ii)With the Father from 5:00pm on 24 December 2018 to 3:00pm 25 December 2018.

   (d)That except as provided for in Order 3(c) herein the children are to live with the parents each alternate Christmas and Boxing Day with the first half to be spent with the Mother commencing in 2016, in those years ending with an even number and the second half in those years ending in an odd number and so as to avoid doubt for the purposes of implementing this order, the children are to spend the first half of the Christmas holidays with the parent they will be spending Christmas and Boxing Day with;

   (e)That the children are to live with the Father for the whole of Father’s Day weekend from after school Friday until the commencement of school Monday morning, and with the Mother for the whole of the Mother’s Day weekend from after school Friday until the commencement of school the following Monday morning; and

   (f)At such other times as agreed between the parties in writing.

4. That for the purpose of the children spending time with the Father pursuant to these Orders:

   (a)The Father shall at the commencement of each period collect the children from the school attended by the children or if not a school day from the Mother’s residence;

   (b)The Mother shall attend at the children’s school at the end of the school day after the conclusion of each period the children are in the Father’s care or attend at the Father’s residence if not a school day; and

   (c)For the purpose of Order 3(f), attend at a time and place as agreed by the parties or failing agreement in accordance with Orders 4(a) and 4(b).

5. That during all periods when the children are living with one parent that the parent with whom the children are living shall do all things necessary to facilitate the children communicating with the other parent by telephone at reasonable times and with reasonable frequency.

6. That each party shall keep the other informed of their current residential address, mobile telephone number, landline telephone number and respective email addresses and in the event that there is a change in any of those details then they are to notify the other not more than 24 hours after any such change.

7. That each party shall do all acts and things and sign all documents necessary and equally pay all monies to keep each of the children’s Australian Passports current at all times.

8. That each party shall do all acts and things and sign all documents necessary to instruct and authorise the administrators of such schools as the children may attend from time to time to forward to each party copies of all the children’s school reports, newsletters and all notices relating to school events, functions, parent/teacher meetings, parent/helper opportunities and other school activities in which the children may be involved and the parents are invited to attend and/or participate in and each party shall be at liberty to attend school events which the children are involved in notwithstanding the children may not be living with that parent on that particular day.

9. That each party shall immediately notify the other in the event that any of the children become seriously ill and/or injured to the extent that the child is hospitalised and/or requires any medical procedures or operations.

10. That each party forthwith authorise the children’s treating doctors, dentists and any other health professional to provide information and all reports to the other parent in relation to the children’s state of health.

11. That both parties be restrained from denigrating and/or criticising the other parent and/or members of their respective extended families and/or friends to/or in the presence of and/or within the hearing of the children.

12. That the parties are restrained from communicating with the other party other than in a civil manner.

IT IS NOTED:

(A)The trial of this matter was heard on 30 November, 1 and 2 December 2016. Reasons for Judgment were delivered on 21 March 2016.  The wording of the final Orders was unable to be agreed between the parties and the matter was listed for Mention on 1 April 2016.  The wording of the final Orders reflects the Reasons for Judgment.

(B)Pursuant to section 65DA(2) 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Cope & Cope is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3716 of 2013

MR COPE

Applicant

And

MS COPE

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant father/husband is Mr Cope.  The father was born on (omitted) 1972. 

2. The respondent mother/wife is Ms Cope.  The mother was born on (omitted) 1976. 

3. The parties commenced cohabitation in or around late 2001 or early 2002.  They married on (omitted) 2002. 

4. The parties separated in late 2012 – although the applicant father did not leave the former matrimonial home until March 2013. 

5. The parties were divorced on 15 July 2014.  The parties have three children namely X born (omitted) 2005 and Z and Y who were both born on (omitted) 2006.  The three children attend the (omitted) Primary School in Sydney.  In 2015 X was in year five and the twins were in year three. 

6. The parties have been unable to agree on parenting orders.  Further, they have been unable to agree on how to divide their property.

The Children

1. The current arrangement in relation to parenting is that the children live with the mother and spend time with the father from after school Thursday until before school Monday as well as Wednesday night in the alternate week.  Therefore, at present, the children are spending five nights per fortnight with the father.

2. The father would like to see a situation whereby the children are living in an equal time shared care arrangement – namely seven nights per fortnight with each parent.  Specifically – the father would like the children to live with him in week one from Wednesday night until Friday morning (two nights) and in week two from Wednesday night until Monday morning (five nights). 

3. The mother would like to see a situation whereby the children live with her and spend alternate weekends with the father from Friday after school until Monday after school.  The mother therefore seeks a reduction of the time that the children now spend with the father from five nights per fortnight to three nights per fortnight. In fact at paragraph 3.1 of the written submissions on behalf of the Respondent mother filed 27 January 2016 – the time stated for the children to spend with the father is not framed in terms of alternate weekends. I’m working on the basis that that is an error. Alternate weekends with the father is clearly the case that has been advanced on behalf of the mother. There does appear to be a discrepancy also between the wording of the parenting orders sought at the commencement of the Respondent mother’s written submissions and the content of paragraph 45 of those written submissions. Paragraph 45 mentions the children spending time with the father “-each alternate weekend and mid-week in the off week -”. The parenting orders sought at the commencement of the written submissions makes no mention of time between the children and the father “mid-week in the off week”. Irrespective of those matters in the written submissions on behalf of the mother I do note that during cross examination the mother did actually (at one stage) concede that five nights per fortnight with the father (Dr J’s recommendation) would be in the children’s best interests – note transcript page 181 lines 27-29.

Section 60CA

1. Section 60CA of the Family Law Act states:-

   “SECTION 60CA  CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER

   60CA    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 60CC

1. Section 60CC(2) states:-

   “SECTION 60CC  HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS

   Determining child’s best interests

   60CC(1)    Subject to subsection (5), in determining what is in the child’s best interest, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   60CC(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.

   60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

2. The family in this case have been seen by Dr J.  The most recent family report by Dr J is dated 10 September 2015.  The children had earlier been seen by Dr J in May 2014.

3. Dr J noted in paragraph 38 of her most recent family report that the three girls presented as:-

   “…articulate little girls who engaged well in the assessment.  As when observed during the first family assessment, they presented as having a warm and affectionate relationship with both their parents.”

4. Clearly, in this case, there are great benefits to the three children in having a meaningful relationship with both of their parents. This evidence from Dr J really does confirm that the children do already enjoy a meaningful relationship with both of their parents.

5. The children in this case have not been subjected to or exposed to – abuse, neglect or family violence (as referred to in section 60CC(2)(b)). There was no cross examination during the course of the final hearing in relation to any instances of family violence.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. The children were most recently interviewed by Dr J on 13 August 2015.  On that same date Dr J interviewed the mother and the father.  In late August and early September 2015 Dr J conducted telephone interviews with the children’s school teachers. 

2. In paragraph 41 of Dr J’s report dated 10 September 2015 she has noted:-

   “41. X said that she would like to spend more time with her father but could not really explain why other than she thought it would be “more natural” to have the same amount of time with her mother and with her father. She said that she knew her mother did not think that she should spend more time with her father because this would mean that they would go to the “babysitter’s” (Ms N) more but that she thought her father wanted them to be with him more. She said that she and her sisters only went to Ms N’s house when they were with their father. They normally went on Thursday after school, on Friday morning and sometimes after school. X said that this was because her father had a new job and had to “work hard”. She said that he was usually home by 6pm. She said that when she spends time with her father in the school holidays he usually enrols her in some sort of activity club for a couple of days and she said that she enjoys doing this.”

3. In paragraph 46 of her most recent report Dr J notes in relation to Z:-

   “46. In terms of spending time with her parents, Z said that she liked the arrangement as it stood. She added that she thought it was “unfair that Daddy gets one week”. She added that she thought this was because her father had to go to work.”

4. Y’s views were noted in paragraph 48 of the same report by Dr J where it is stated:-

   “48. Y spoke positively about her relationship with both her parents. When asked about the current arrangements by which she spent time with her father, Y said that she would like to spend more time with her “Dad”. However, she then said that her father had to go to work and often gets up early so that she and her sisters go to “our friends place” (Ms N’s), which she described as being like a “play date”. Like both her sisters, Y spoke about wanting her parents to get on better.”

5. X turned 11 years of age in (omitted) 2016.  Z and Y only turned nine years of age in (omitted) 2015.  The children’s views do have to be given some weight – especially X. I do note that X’s view was stated to the family report writer at a time when she was aged only ten years and seven months. 

6. There is some evidence to suggest that the father is putting some pressure on the children concerning the time arrangements.  I think it is more likely than not that he has placed some pressure on them to express a desire to spend more time with him.  I think it is more likely than not that the mother is correct when she states in her evidence that the children are trying to please both parents.  My view that the father is placing some pressure upon the children concerning the time arrangement is confirmed by the evidence contained in paragraph 41 of the first family report of Dr J dated 23 May 2014.  In paragraph 41 of that report Dr J notes:-

   “41. Z and Y both stated that they knew their mother was happy with the arrangements as they stood but that her father was not.  Y said “he gets a bit teary when he talks about it. He cries so I cry”. Y reported that her father “took off time to show how much he loves us”.” 

1. I also note the evidence of the mother contained in paragraph 30 of her trial affidavit (filed 26 October 2015) where she states that she overheard the father crying on the phone to X.  This kind of behaviour by the father is likely to place pressure upon the children concerning their views in relation to the time arrangements.

2. As indicated, some weight must be given to the children’s wishes. However – I do note that at the time their wishes were expressed to the independent family report writer – the children were still quite young. As noted, X was aged 10 years and seven months and the twins were aged eight years and 11 months. The girls are not yet teenagers. To put it in another way – the girls are not at an age where their wishes are the predominant factor in the balancing which is required by the Court upon an assessment of the additional considerations in section 60CC(3)(a) (note Collu & Rinaldo [2010] FamCAFC 53).

3. In her evidence on 2 December 2015 Dr J noted that the wishes of X and Y concerning more time with their father were not as strongly put at the second interview as the first interview. 

Section 60CC(3)(b) – the nature of the relationship of the child with:-

1. each of the child’s parents;  and

1. other persons (including any grandparent or other relative of the child).

1. Each of the children have a close and loving relationship with their parents.  This was noted by Dr J. 

2. The children all seem to have a very good relationship with each other. 

3. There is no reason to suggest that the children have anything other than a loving relationship with members of their parents’ extended families. 

Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long-term issues in relation to the child; and

1. to spend time with the child; and

1. to communicate with the child.

1. Both the father and the mother have taken every opportunity to participate in making decisions concerning the major long term decisions in relation to the children. They have also taken every opportunity to spend time with the children and to communicate with the children. 

Section 60CC(3)(ca) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. The parents have fulfilled their obligations to maintain the children when the children have been in their care. However, I accept the mother’s evidence that it has, in essence, been something of a struggle getting the father to contribute financially for the children.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents;  or

1. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. The parents live in the same suburb or at least in the same area ((omitted) of Sydney). The children will remain in their same school. This particular aspect of section 60CC(3) is not particularly relevant. The Court does not intend making any significant changes to the current circumstances in relation to the children.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. In this case there are no particular practical difficulties or expenses relating to the children spending time with and communicating with their parents. As noted, the parents live quite close to each other.  There will be no interruption or interference with the children’s right to maintain personal relations and direct contact with both parents on a regular basis. 

Section 60CC(3)(f) – the capacity of:-

1. each of the child’s parents;  and

1. any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

1. Both parents in this case have the capacity to provide for the children’s needs including their emotional and intellectual needs. 

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. I made some references to the maturity of the children insofar as that relates to the expression of their wishes.  Apart from that this subsection is not relevant in this particular case.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:

1. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and

1. the likely impact any proposed parenting order under this part will have on that right.

1. My attention has not been drawn to any evidence that would indicate that section 60CC(3)(h) is relevant in this case.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. In this regard I have concluded that both parents have an excellent attitude towards the children and both have fully accepted the responsibilities of parenthood as they have demonstrated since the children were born.  Both parents have worked hard and both parents have, as best they can, made themselves available to the children.  The only reservation I have regarding this topic is the reservation to which I earlier referred – namely the tardiness on the part of the father in agreeing to financially contribute to all of the expenses for the children. 

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-

1. the nature of the order;

2. the circumstances in which the order was made;

3. any evidence admitted in proceedings for the order;

4. any findings made by the court in, or in proceedings for, the order;

1. any other relevant matter.

1. The final separation between these parents caused significant distress to the father.  In March 2013 there does seem to have been some unpleasantness.  The father, for instance, told the mother that he would stand outside her office with a sign stating the word “bitch”.  I have had regard to the mother’s evidence in relation to family violence and to the evidence that was given as part of the ADVO proceedings. In paragraph 19 of the written submissions on behalf of the husband/father (filed 5 February 2016) it is submitted that the mother had conceded under cross examination that the father had never threatened to “daub obscenities across my office walls for all to see” the mother made no such concession during cross examination. The transcript reveals is that, during the course of the trial, the mother gave evidence that the father had made at some point in the past, made two separate threats. I note page 242 of the transcript from lines 33 – 35 where the mother stated as follows:-

   “Ms Cope: “Because there was two parts. There was one calling me an effing bitch or something and one with painting obscenities across the wall. I can’t remember which one was said and which one was in the AVO.”

2. The mother’s evidence is that two threats were made. Further, the mother’s evidence is that one of those threats was admitted to by the father during the ADVO proceedings. The mother did concede under cross examination that she may have got the two threats confused. In paragraph twenty five of the mother’s trial affidavit filed 26 October 2015 the mother had stated that, during the ADVO proceedings, the father had admitted making the threat that he would “daub obscenities across my office walls for all to see”. Under cross examination at the trial the mother conceded that she may have referred to the wrong threat at paragraph twenty five of her affidavit. I accept the mother’s evidence that she may have confused the two threats. I do not accept that the mother intentionally tried to mislead the Court. I note the following questions and answers between counsel for the father and the mother from page 244 of the transcript line 11 to line 2:-

   “Mr Kearney:   “Is it the case that – is it the case, ma’am, that you were perfectly happy to have his Honour accept your evidence under oath - - - ?

   Ms Cope:- - - Yes. It is.

   Mr Kearney:     - - - critical of - - -?

   Ms Cope:      - - - Yes.

   Mr Kearney:     - - - Mr Cope - - -?

   Ms Cope:      - - - Yes. It is.

   Mr Kearney:     - - - for your own benefit - - -?

   Ms Cope:      - - - Yes.

   Mr Kearney:     - - - in your application?

   Ms Cope:      - - - Yes.

   Mr Kearney:      And let’s not put too fine a point on it. You were prepared to be at least reckless with the truth for that aim?

   Ms Cope:- - - That’s not correct.”

3. The situation is that the mother sought to have the Court accept her evidence that the father had admitted under oath that he had made a threat to daub obscenities across the mother’s office walls. I find that the mother was confused and that the father had in fact admitted to threatening to stand outside the mother’s office with a sign stating the word “bitch” in fact the threat may have been to hold up a sign stating, “fucking bitch”.

4. I do not accept that the mother’s credibility is called into question because of her confusion in this regard. Some considerable time had elapsed from the time of the making of the threats, the ADVO proceedings and the final family law proceedings. In any event, the apparent concession made by the mother that she was willing to be critical of the father for her own benefit in her family law application appears in the transcript in a most staccato fashion. The mother gave affirmative answers to that was delivered in a piecemeal fashion. When a direct question was put in a clear fashion at lines 22 and 23 the mother denied that she was prepared to be “at least reckless with the truth for that aim”. I accept the mother’s evidence. The mother gave her evidence in a direct and forthright manner. The mother gave her evidence to the best of her recollection. That is my assessment of the mother having watched her give her evidence over an extended period of time.

5. The question of family violence, however, is not one that looms large in this case.  I have come to the conclusion that the father took the final separation between the parents very badly.  This is understandable and I am not in any way critical of him in that regard.  But some of his actions, as detailed by the mother, were inappropriate.  In particular, I do accept, that the mother “began to feel scared” for her own safety as detailed for instance in paragraph 4 of the mother’s witness statement to the New South Wales Police which is annexure A to the mother’s trial affidavit filed 26 October 2015. 

6. I also accept the mother’s evidence that the father had expressed some suicidal comments during a marriage counselling interview in late 2012. 

7. I do not accept that the mother deliberately tried to mislead the Court in relation to her evidence concerning discussions that she had with the Lifeline representatives in March 2013. The mother recalled that she had a conversation with a lady from Lifeline named Ms D. The mother spoke on the phone to Ms D numerous times that day. I accept the mother’s evidence I accept that she did speak to Ms D from Lifeline and I accept that Ms D conveyed to the mother that the father had, in some way, expressed suicidal ideations. As to whether the Lifeline representative had stated to the mother that they were trying to assess whether the children may be in danger or whether the Lifeline representative may have said to the mother that they were “concerned that the children may be in danger in Mr Cope’s care” – matters very little I have concluded. The mother gave evidence that she was, at the relevant time, wondering how best to deal with the situation. The salient points are that the father had expressed some suicidal ideation and in this regard – the question exercising the mother’s mind was whether or not this could cause some danger to the children. This is the import of the mother’s evidence I accept the mother’s evidence. The fact that the mother may have used different or slightly different wording in earlier affidavits on this topic is neither here nor there. The fact that Lifeline might not have kept a written record of the precise conversation is also not relevant. I accept the mother’s evidence about the telephone discussion that she had with Ms D from Lifeline. Any parent in the mother’s position when told that their spouse may be expressing suicidal ideation would immediately turn their mind to the question of whether or not their children may be in some form of danger – whether that danger be physical or psychological. As noted, I do not accept that the mother deliberately tried to mislead the Court in relation to these issues.

8. Fortunately, the very stressful period following the final separation passed quite quickly and the children were able to enjoy unsupervised time with the father from approximately following final separation.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. This subsection is not relevant in this case. I do, however, note paragraph 77 of the father’s written submissions. It is submitted in that paragraph that the father’s proposal is the order least likely to lead to further proceedings because that proposal recognises the children’s continuing and maintained views. I am concerned by such a submission. I note Dr J’s evidence at page 303 from line 34 to line 45 of the transcript as follows:-

   “Mr Kearney:   Following your report, albeit not until March 2013, there was an increase to the midnight – I mean midweek – overnight, and they appear to have adapted well to that?

   Dr J:Yes. And I think part of the reason they adapted to that was that that was something that seemed to be leading to a lot of angst, particularly for Mr Cope, so I think these girls – you know, they – they’re quite sensitive to – to his needs, and I think also that took a lot of pressure away from them, just by having that overnight there.

   Mr Kearney:          But is also, didn’t it, met at least the need they were expressing or the desire they were expressing for the opportunity of more time with their father?

   Dr J:         Yes.

   Mr Kearney:          So there were a number of aspects that presumably fed into that?

   Dr J:         Yes.”

2. Dr J was being cross examined by counsel for the father. Of particular concern to the Court is the evidence of Dr J that part of the reason that the children adapted to the change in circumstances is because the father was suffering, “a lot of angst” until his time with the children increased. The children, being quite sensitive “to his needs” and, in essence, the increase in time (according to Dr J) “took a lot of pressure away from them, just by having that overnight there.” So that the father was suffering angst. One more overnight with the children came about and I infer, that the father’s angst reduced and this took pressure away from the children. The father’s “angst” and the father’s “needs” are not relevant. He has not been able to shield his views from the children and this has put pressure upon the children – as identified by Dr J. I do note that Dr J accepted that the children had been expressing a desire for more time with their father. This may well have been because they were aware of the father’s angst and that they wanted to relieve the pressure that they were under. Those conclusions and inferences are open on the evidence of Dr J to which I have referred. That is why the written submission of the father contained in paragraph 77 (of the document filed 5 February 2016) does cause the Court some concern.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. As noted, the parties went to see Dr J who prepared a family report dated 23 May 2014.  Under the headings, “Evaluation” and “Recommendations” Dr J stated:-

   “EVALUATION

   43. X, Z and Y love both their parents and enjoy spending time with each of them. Both Mr Cope and Ms Cope clearly love their daughters and are capable of nurturing and providing them with appropriate care. All three girls present as happy, thriving children. They have, like any children in their situation, experienced distress at their parents separation and have times when they still experience feelings of loss and miss the parent that they are not with. It is very likely that, regardless of the arrangements that are in place, these feelings will resurface at times and they need to be acknowledged by both Mr Cope and Ms Cope.

   44. Ultimately X, Y and Z’s long term psychological adjustment will depend on Mr Cope’s and Ms Cope’s ability to resolve the outstanding differences between them and move on with their lives. They both present as able and resilient people, who have the capacity to adapt to change. Divorce and financial settlement will significantly assist in this process of adjustment for both of them.

   45. Both Mr Cope and Ms Cope acknowledge that the ending of their marriage was highly unpleasant. Ms Cope, as the person who initiated the separation and remained in the family home, has found the psychological adjustment much easier to make then Mr Cope. Mr Cope understandably still appears to have some bitterness about the way the marriage ended. It is hoped that this will become less marked with time. There is no indication that Mr Cope has any mental health problems which would preclude him from being able to look after his daughters. The issue of his mental health no longer appears to be something which needs to be considered in this matter.

   46. X, Z and Y are of an age where children can be very concerned about concepts of fairness. To them the situation whereby they spend more time with their mother than with their father is not fair because the time is not “even”. However, in families “evenness” does not necessarily equate to the best arrangement for a child. As Mr Cope himself stated it is the quality of the relationship that the children have with each parent that ultimately determined their psychological wellbeing.

   47. Both Mr Cope and Ms Cope have been able to provide their daughters with good quality care but it does appear to be the case that Ms Cope has more capacity to adjust her working day to fit around the girls’ needs. When they are with her they do not need to be looked after by neighbours or friends to the same extent as when they are with Mr Cope. Although Mr Cope states that his work is extremely flexible it is very rare for a senior executive to have so much flexibility in their working week that they are able to work the sorts of hours which would enable then to regularly take and collect their children from school. On balance it would therefore appear that Ms Cope is currently more able to meet the children’s needs during the regular school week.

   48. Although the routine that Mr Cope is proposing would allow the children to have the same amount of time with each parent, it also means several changes of residence during each week. With this comes the potential for homework, lunch boxes, school hats and party invitations to be lost or misplaced. Mr Cope and Ms Cope do not currently have the sort of cooperative relationship which allows for regular communication and this routine could potentially result in more conflict occurring between them.

   49. However, it does seem that the Wednesday evening arrangement is not working well. Being able to have one overnight stay midweek, which is the same every week, can be good for children and would allow Mr Cope to undertake a regular activity with the girls should he want to. For this reason it is suggested that the midweek stay be moved to Thursday, although this should be open to negotiation.

   50. Mr Cope and Ms Cope both state that they hope to work towards having a more flexible arrangement in place for their daughters in the future and it is hoped that they may be able to achieve this.

   RECOMMENDATIONS

   51. It is recommended that Ms Cope and Mr Cope have equal shared parental responsibility for X, Y and Z.

   52. It is recommended that X, Y and Z continue to live with their mother. 

   53. It is recommended that X, Y and Z spend time with Mr Cope for half the school holidays and during term time they spend time with Mr Cope in a two week cycle. In the first week from Thursday after school until the commencement of school on Monday. On the second week from after school on Thursday until the commencement of school on Friday.”

1. That report was released to the parties in about May 2014.  The mother gave evidence on 1 December 2015 to the effect that she communicated to the father (either directly or through her lawyers) that she was willing to adopt that recommendation of Dr J.  The mother also gave evidence that the father refused to accept Dr J’s recommendation.  I accept this evidence of the mother.  The mother was not challenged in relation the general import of that evidence.

2. It does seem to be the case that, over time, the father must have changed his mind.  He was spending time with the children every second weekend from Thursday after school until the commencement of school on Monday and he was spending time with them on a Wednesday but only from after school until later that evening. 

3. It is important to keep in mind that the parties had not reached any concluded agreement in relation to a variation to the children’s time with the father at that stage.  I note, of course, that the Court does not have before it the full extent of any offer that may have been made by the mother to the father concerning the parenting arrangements.  That offer may have been conditional on other matters.  That is quite irrelevant at this stage.  What is, however, relevant is what happened next. 

4. In March 2015 – and without any agreement at all – the father unilaterally held the children over on a Wednesday afternoon and announced that the children would, henceforth, be having the Wednesday in the off week as overnight time with him.  This demonstrates very clearly the poor communication between these parties. It demonstrates very clearly the ongoing conflict between these parties.  It demonstrates very clearly the inability to properly co-parent.  There is a distinct lack of parental cooperation and it could not have been more clearly evidenced than by the father’s actions in March 2015. Parents must abide by Court orders.  The father may well have felt frustrated.  That is not the point.  The father needs to deal with his own frustration as a separate issue.  Parents cannot act unilaterally. 

5. That is not the only example of poor communication or poor cooperation between these parents. 

6. Exhibit 16 contains a bundle of emails passing between the parents.  On 3 February 2015 at 9:01pm the mother sent an email to the father concerning the child, “Y”.  The text of that email is as follows:-

   “Hi Mr Cope,

   Y momentarily fainted today at school during assembly. I brought her home and monitored her for the rest of the day (taking the time off work). She’d had a proper breakfast and a proper dinner the night before. She seems fine now but I am reluctant to let her swim at the carnival tomorrow. She has eaten very well since I brought her home today and I will continue to monitor her.

   There is no need for you to reply and I am letting you know. Please don’t make a big thing of this with her as she has specifically asked that you do not do this.

   Ms Cope.”

7. The father sent an email to the mother dated 4 February 2015 at 8:58am concerning “Y”.  The father stated:-

   “I am very concerned about the health and welfare of my daughter and the abuse she is a victim of at your hands.

   Y is increasingly shy, not eating properly, refusing to participate in things and feeling abused, she has for 2 years stated categorically she does not like your arrangements and is suffering as a result of them.

   The negative effect of your enforced regime, gained through criminal acts against her grandmother and I, on Y’s long term health and welfare was highlighted by Ms A well over a year ago. You didn’t even go to the course she recommended.

   You have further admitted the current arrangement is not in their interest.

   For greed you are abusing your own children… the third generation of your family (by your own statements) to be involved in child abuse.

   I sincerely you can look beyond your own selfish narcissistic greed (the views of professionals) and release her from the damaging prison (by your own admission) you keep her in.

   Y is suffering – this is well documented and to anyone who actually cares about this child, incredibly evident. You have admitted she is far closer to me than you yet do nothing.

   You stated you were abused by two generations of your family above you…one for sex the other out of anger…Stop your greed free your kids.

   This is directly related to their care, arrangements and interest… you will ignore it as it is not in your financial interest to act in her interest...

   VERRRRRRRY wrong, VERRRRRRRY sad.”

8. The above email exchange between the parents took place in February 2015.  Later that month, on 28 February 2015 at 11:37am the father sent an email to the mother.  The subject was, “Weekly newsletter and contact info”.  One of the paragraphs in that email from the father to the mother reads:-

   “You have used intimidation against me and three little girls for two years. I am no longer scared by your blackmail or willing for you to act against their interests for your financial benefit. I have spoken to many fathers who have seen their kids abused in such a manner and now want this sorted quickly.”

9. On 17 March 2015 at 6:03pm the father sent an email to the mother which contained the following sentence:-

   “I’m not willing to put up with your games or dictation any longer so if you disagree with this lets get it sorted now.”

10. In an email dated Tuesday 14 July 2015 sent at 9:25am – the father sent the following email to the mother with the following subject line, “X's (omitted) Excursion”.  That email reads:-

    “Ms Cope,

    Per admissions by yourself in the email below I’ve been trying for an extended period to work positively with you on the best schools for X. I again asked but again you won’t express a simple view.

    I’ve done the research gone to the parents evening and spoken to her about her preferences. I’ve spoken to her friends parents about their views.

    You sadly continue (please see email below) to discuss with them but avoid simple constructive conversations presumably to pretend we cant work together on this (xref your ongoing and very sad “making n fake conflict as the mothers best hope of cash” strategy).

    You’ve ensured well over $200k of our collective wealth has already gone to lawyers and destroyed our future income earning capacity (100% relevant as X private schooling is not instead invested in lawyers (omitted)). Presumably (again directly relevant to the kids as I’m simply trying to get and answer) your lawyer Mr Zacharatos (himself reprimanded by the court and having admitted making false statements in writing) is suggesting you continue to drive unnecessary conflict “mother fakes conflict = mother grabs cash” rather than actually simply responding in their interest – this ongoing refusal to provide a view is now endangering even the best public school options. I remain focused instead on the best school option for X. I again seek your views. I genuinely hope this time you see fit to actually provide them.

    The best option I have found after a lot of research and parents evening is the need to actually start thinking about this and communicating on it. We need to get her registered.

    Please think of and act in the interest of the girls – all I need as requested as you acknowledge is your views and I can action.

    Thank you

    Mr Cope”

11. The next page of the exhibit reveals part of an email (at the top of the page) from the mother to the father dated 14 July 2015 sent at 16:48.  That email reads:- 

    “Dear Mr Cope

    It is very difficult to have an email conversation with you when you are constantly disparaging me. 

    This makes parenting with you extremely difficult.

    I require you to communicate with me in a civil and measured way.

    You seem to constantly communicate to me in a nasty, belittling and unreasonable manner. You also presume incorrectly and label me, belittle me and infer I do not also care about the welfare and schooling for our children. All of the objective evidence is to the contrary.

    Please abide by the Court Orders made at the end of last year in respect of communicating only in respect of the children’s matters between us. Those Court Orders were made for a reason.

    Regards

    Ms Cope”

12. On 6 October 2015 at 9:36am the mother sent the following email to the father re “Kids”:-

    “Mr Cope,

    You are not taking into account the school holiday period. You have had the girls 5 weekends in a row. I have previously and again now sought legal advice as to how things normally happen. I also want positive joint parenting. Status quo after the holidays is that it is, my weekend. I have things planned in advance and can’t change some things.

    Please confirm you can have the girls collected tomorrow.

    I confirm I am trying to resolve this in the girl’s interests.”

13. The father sent the following email to the mother on 7 October 2015 at 7:07am Re: “Kids”:-

    “Ms Cope

    Neither the holidays nor the agreed one offs (Father’s Day etc) effect the arrangement. You regularly sadly try this scam post holidays and it’s not appropriate nor normal I have legal advice to this effect from not one but two firms.

    I also have plans this weekend as it clearly is the weekend I’m due to have them. I’m very happy that you’re keen to have positive parenting and look forward to you not just saying but acting to show this. One would assume neither Mr Zacharatos or yourself would want to be seen to be again making threats/bullying your way into denying me access

    Looking forward to seeing my kids tomorrow and for the weekend per plan

    Regards

    Mr Cope”

14. The emails contained in exhibit 16 (specifically those quoted above) are appalling.  They support the mother’s contention that the father has not communicated in a civil manner in relation to parenting issues.  Those emails do not necessarily run consecutively.  That is irrelevant.  Exhibit 16 shows that the father has used derogatory terms in relation to the mother. The father accuses the mother of abusing the children. In this regard note the email sent by the father to the mother on 4 February 2015 at 8:58am. Further, the father in that same email accuses the mother of abusing the children in circumstances where the father alleges that the mother was motivated by greed. Further, in other emails sent by the father to the mother (contained in exhibit 16) the father accuses the mother of “intimidation” against both himself and the three children and he also accuses the mother of “blackmail” (email from the father to the mother dated 28 February 2015). He also accuses the mother of perpetrating a “scam” and of acting in a threatening or “bullying” manner (this later allegation being also directed towards the mother’s solicitor – note the email from the father to the mother dated 7 October 2015).

15. Exhibit 13 shows that during November 2015 there was some positive correspondence between the parents.  But, frankly, I do not accept that the cooperative nature of the correspondence from November 2015 is likely to last.  The first day of this trial was Monday 30 November 2015. 

16. I do accept that there were a couple of other instances of some cooperative correspondence between the parents including in June or July 2015 concerning the health of one of the children.  There may also have been an example of cooperative parenting (via civil email communication) in October 2015. Why did it take until mid to late 2015 for these parents (in particular the father) to communicate by email in a civil manner? Even though there may be some examples of some civil email communications in mid to late 2015 – exhibit 16 shows that even on 7 October 2015 at 7:07am the father was sending an email in derogatory terms using the words (as noted above) – “You regularly sadly try this scam post holidays…” That is the same email where the father accused the mother and her solicitor of acting in a threatening and bullying manner.

17. The first family report of Dr J is dated 23 May 2014.  That report is exhibit 20. The second report of Dr J is dated 10 September 2015.  That report is exhibit 21.  

18. Dr J gave evidence on 2 December 2015.  Dr J noted that one of the essential components of an equal time shared care order (i.e. seven nights per fortnight with each parent) was arrangement communication between the parents and cooperative parenting.  Dr J reviewed exhibit 16 and in relation to the communications between the parents (as evidence of in exhibit 16) Dr J stated that such communications were “far from ideal”.

19. As noted, I have no confidence that the communication between these parents will improve.

20. Dr J noted that when she saw the parties in August 2015 there was still no face to face communication between the parents.  My attention has not been drawn to any evidence to the contrary.  The parents either cannot or will not talk to each other face to face.

21. The few examples of recent cooperation concerning the overseas holidays; X’s school and one or two health issues for the children do not convince the Court that a good standard of communication can be maintained. The father’s email of 7 October 2015 confirms the Court’s conclusion in this regard.

22. Dr J stated that there is indeed a difference between five nights per fortnight and seven nights per fortnight.  The extra two nights per fortnight, essentially, requires the parents to communicate at a higher level.  If they are not communicating at a higher level then it will be the children who will suffer.  They will be caught in the middle.

23. Both parents were extensively cross-examined during the course of the hearing.  Neither parent was particularly prepared to concede credit to the other parent on any issue. Of particular note was the father’s evidence concerning the mother’s ability to provide unconditional love (Transcript pages 95 & 96).

24. Dr J also noted that for an equal shared care time arrangement to really work in this case the father needed to make sure that he would be available for the girls.  The father had been using a person named Ms N to look after the children on about three occasions each week.  No one is critical of the father for utilising assistance – but Dr J’s opinion is that the father really needs to change his arrangements and make himself more available for the children. That was the import of that part of Dr J’s evidence.

25. Dr J referred to this aspect in paragraph 54 of her most recent family report (exhibit 21).  In paragraph 54 of her most recent family report Dr J notes:-

    “54. Both Mr Cope and Ms Cope have been able to provide their daughters with good quality care but it does appear to be the case that Ms Cope has more capacity to adjust her working day to fit around the girls’ needs. Although Mr Cope states that his work is extremely flexible he is currently relying on someone else to regularly take and collect the children from school and it is unclear how, if the girls were to spend more time with him, this situation would change. If anything it is likely that the girls would need to spend more time in someone else’s care rather than spending this time with Mr Cope. On balance it would therefore appear that Ms Cope is currently more able to meet the children’s needs during the regular school week.”

26. The father has told the Court that since obtaining that most recent family report he has or he will put in place changes so that he no longer has to use Ms N – but he will make himself available more often for the girls. 

27. I am not sure why it is that the father has only, since the receipt of the most recent family report, decided to make some changes in his care arrangements for the children.  This point was actually raised in Dr J’s first report (dated 23 May 2014) at paragraph 47.  Dr J noted there that when the children are with the mother they do not need to be looked after by neighbours or friends to the same extent as they are when they are with Mr Cope.  The father does not appear to have made any changes between May 2014 and sometime after 10 September 2015 concerning his own care arrangements for the children – in particular the use of outside assistance from Ms N.  It seems to me that if the father really intended making appropriate long term changes to his work arrangements in order to facilitate more time for himself with the children (i.e. make himself more available more often on those occasions when the children are with him) then he really would have done so in that period between May 2014 and September 2015.  There is no adequate or reasonable explanation from the father as to why he failed to do so. I infer from the father’s actions that he has, belatedly, and with the door of the Court in sight, apparently made some changes to his working hours. I am sceptical of the father’s intention or ability to maintain the apparent changes that he has made. As noted my conclusion in this regard has been reached because of the father’s inactivity on this issue until after the receipt of the most recent family report. And this is notwithstanding the fact that Dr J raised this very issue as long ago as May 2014 in her first report. 

28. I have come to the conclusion that it will not be in the best interests of the children for there to be an equal time order.  I have concluded that there has been a history of poor communication between the parents.  There has been a lack of cooperation between the parents on a whole range of issues – evidenced by an email as recent as 7 October 2015 (from the father to the mother forming part of exhibit 16).  The so called “better communication between the parents” as evidenced by some emails in 2015 do not give me confidence that these parents will be able to communicate reasonably, effectively and cooperatively in the long term for the benefit of their children. I note paragraph 37 of the father’s written submissions. I have made findings in relation to the father’s belated changes to his work arrangements. I have also made findings in relation to the lack of cooperation and the history of poor communication between the parents. In those circumstances the import of Dr J’s evidence is that she would not support an equal time order.

29. Dr J’s recommendations as stated in her most recent family report are as follows:-

    “RECOMMENDATIONS

    58. It is recommended that Ms Cope and Mr Cope have equal shared parental responsibility for X, Y and Z.

    59. It is recommended that X, Y and Z continue to live with their mother.

    60. It is recommended that X, Y and Z spend time with Mr Cope for half the school holidays and during term time they spend time with Mr Cope in a two week cycle. In the first week from Thursday after school until the commencement of school on Monday. On the second week from after school Thursday until the commencement of school on Friday, or on one other day if this is more convenient.”

30. I accept the evidence of Dr J.  I accept her recommendations in relation to the living arrangements for the children.  The findings which the Court has made do not (having regard to the evidence of Dr J) permit the making of an equal time order. An equal time order, in the circumstances of this case, would not be in the best interests of the children. 

31. I have had regard to the wishes of the children.  I have also noted the relatively young age of the children.  There are other aspects to this case which outweigh the wishes of the children.  The poor communication between the parents is one of the most important aspects that the Court has to take into account in this case. I note the written submissions by the father in relation to the communication issue. I have had regard to all of those written submissions. I am not swayed by those submissions. The findings that I have made are based upon the evidence to which I have referred. I have already noted that there have been some examples of some improved communication between the parties during 2015. But the vitriolic nature of the father’s written communications contained in emails dated 4 February 2015 (8:58am), 28 February 2015 (11:37am), 17 March 2015 (6:03pm), 14 July 2015 (9:25am) and 7 October 2015 (7:07am) has led the Court to conclude that the communication between the parties has been appalling. It does not demonstrate an ability to maintain civil communications and cooperative parenting on an ongoing basis. The emails to which I have referred are contained within exhibit 16. Paragraph 48 of the father’s submissions is wrong. There is an example of poor communication between the parents since September 2015. In particular, the father’s email dated 7 October 2015 sent at 7:07am is the most recent written example brought to the Court’s attention of the father sending an email to the mother and using derogatory expressions in relation to the mother.

1. A further erroneous submission on behalf of the father is made in paragraph 83 to the effect that since July 2015 there has been effective communication between the parents. At the very least that submission fails to take account of the father’s email sent to the mother on 7 October 2015 and to which I have already referred more than once in these reasons for judgment.

2. I am not convinced that the finalisation of the financial dispute between these parties will somehow magically enable them to wake up the morning after the reasons for judgment are delivered and communicate in a reasonable and civil manner for the benefit of their children.

3. As to the father’s written submissions concerning his availability to care for the children – I have already made findings in relation to this particular issue.

Section 61DA

1. There is a presumption of equal shared parental responsibility by virtue of Section 61DA of the Family Law Act.  Even if the presumption is rebutted (by virtue of the fact that there was some evidence of family violence) – it is still in the best interests of the children in this case for there to be an equal shared parental responsibility order.

Section 65DAA

1. An equal time order would be possible in the sense that the parents live close together and it could physically be accommodated in that respect.  However, it is not in the best interests of the children.  I have already made findings in relation to this.  I note and accept the evidence of Dr J. 

2. One would also have to query whether or not it would be reasonably practicable for there to be an equal time order in a situation where the Court has concluded that effective, reasonable, civil and appropriate communication between the parents is unlikely on an ongoing basis.  Unfortunately for the children this has been a particularly bitter break up.  Both parents harbour animosity towards the other.  As noted by Dr J (and I accept her evidence in this regard also) the father has had particular difficulty in coming to terms with the marriage breakdown and the consequences which flowed from that breakdown. 

Substantial and Significant Time

1. In the circumstances of this case an order for substantial and significant time is both reasonably practicable and in the best interests of the children. The findings which the Court has made support such an order. The proposed order indeed comes within the definition of substantial and significant time within section 65DAA(2) of the Act. The parents live close enough together. There has already been an order for substantial and significant time in place for some time. The reality is that the children have been spending five nights per fortnight with the father. The evidence of Dr J is that, essentially, the children have been coping well with that arrangement. It is therefore abundantly clear to the Court that a continuation of substantial and significant time between the children and the father – is in the best interests of the children.

Conclusion

1. For the reasons stated it is not in the best interests of the children to reduce the amount of time they spend with their father (as per the mother’s argument). In addition, it is not in the best interests of the children to increase the number of overnight stays that they spend each fortnight with their father (as sought by the father). I have already outlined in these reasons for judgement the Court’s findings and conclusions in this regard.

Property

1. I have come to the conclusion that it is just and equitable in the circumstances of this particular case for an order to be made under section 79 of the Family Law Act.  I note what was stated by the High Court of Australia in Stanford & Stanford (2012) 247 CLR 108. At paragraphs 35 and 36 the High Court stated as follows:-

   “35. It will be recalled that s79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition (see Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ). It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules” (Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ), nevertheless, three fundamental propositions must not be obscured.”

2. Australian courts exercising jurisdiction under section 79 of the Act should first turn their minds to the question of whether or not it is “just and equitable to make the order”.

3. The parties in this case no longer live together as husband and wife. The parties are divorced (note order made 15 July 2014). That is why I have concluded that, in the circumstances of this case, it will be just and equitable to make a property settlement order. As was noted by the High Court (Stanford decision paragraph 42) – “there is not and will not thereafter be the common use of property” by the husband and the wife in this case.

4. There is some dispute between the parties as to the commencement of cohabitation.  The husband maintains that the parties commenced cohabitation in or about April 2002.  The wife maintains that cohabitation commenced in about June 2001.  At another part of the evidence the wife stated that cohabitation commenced in about November 2001.  I think that it is more likely that cohabitation commenced either in late 2001 or early 2002.  Not much will turn on that point.

5. Having come to the conclusion that it is just and equitable to make a property settlement order in the circumstances of this case – it is now necessary to consider the other steps in the process.

The Pool

1. To a large extent the parties have been able to agree upon the pool of assets, liabilities and superannuation. 

2. There are some matters in relation to the pool which remain in contention.  In relation to item 4 of exhibit 19 (headed Amended Joint Draft Balance Sheet – 1 December 2015) – the wife has included a value of -$15,000 in relation to her “(business omitted)”.  The wife relies upon the evidence of the single expert valuer Ms D.  The valuation is dated November 2014.  It is the only expert evidence in relation to the valuation of the wife’s “(business omitted)”.  The Court is not in a position to somehow construct a value for the “(business omitted)” which is more up to date.  I do not accept the submissions made on behalf of the husband in this regard.  The only available expert evidence is that of Ms D and the value of the “(business omitted)” should therefore be included as $15,000. 

3. It is convenient to deal with item 26 in exhibit 19 at this point in time.  The husband alleges that an amount of $90,000 should be included as an asset of the wife representing (business omitted) billings for the “(business omitted)”.  I accept the submissions on behalf of the wife in relation to this issue.  The gross profit for (business omitted) from July 2015 through to September 2015 is stated in exhibit 12 as $91,219.85.  Various expenses need to be deducted from that amount.  The parties keep referring to an amount of $90,000 but the amount in fact, as noted, is $91,219.85.  I agree with the submission on behalf of the wife that this amount cannot be included as an asset on behalf of the wife.  Further, I also accept the evidence and the submission on behalf of the wife that part of the sum in question is contained in items 13 and 14 (of exhibit 19) – after there has been a deduction for BAS payments and other work related expenses and including living expenses for the wife and the children.  Inclusion of the amount in the pool is likely to lead to some double dipping.  In my view no amount should be included in the pool in relation to item 26. 

4. In relation to items 24 and 25 I accept the submissions on behalf of the husband – to this extent – given that no amount will be included in the pool in respect of the wife’s post separation personal exertion earnings – to do so in relation to the husband would lead to an inequity. 

5. I now refer to item 31 in exhibit 19 – a debt to (omitted).  The evidence on behalf of the husband was unchallenged.  That debt should be included in the pool. 

6. There are legal fees held in trust by the wife’s solicitors in the sum of $30,500 and legal fees held in trust by the husband’s solicitors in the sum of $74,436.  Those amounts should merely be included as assets in the parties’ list of assets. 

7. I therefore find that the parties list of assets and liabilities is as follows:-

ASSETS
Ownership	Description	Value
Joint	Spooner & Hail Controlled monies account (Net proceeds of Property L)	$1,130,266
Husband	Property W	$390,000
Husband	Property F	$1,125,000
Wife	(business omitted)	($15,000)
Husband	(omitted) Account No. (omitted)	$4,658
Husband	(omitted) Account No. (omitted)	$22,469
Husband	(omitted) Account No. (omitted)	$132
Husband	(omitted) Account No. (omitted)	$5,650
Husband	(omitted) Bank account (for X)	No amount included
Husband	(omitted) Bank account (for Z)	No amount included
Husband	(omitted) Account (for Y)	No amount included
Wife	(omitted) Account No. (omitted)	$6,686
Wife	(omitted) Account No. (omitted) ((business omitted))	$7,377
Wife	(omitted) Account No. (omitted)	$38,520
Wife	(omitted) Account No. (omitted)	$362,721
Wife	(omitted) Account No. (omitted)	$15,267
Husband	Holden Commodore motor vehicle	$3,000
Husband	Caravan	$3,000
Husband	(omitted) Insurance payout for boat	$17,000
Wife	Mazda (omitted) motor vehicle	$10,000
Wife	Rental bond for Property L	$1,400
Wife	Household contents	$8,000
Husband	Household contents	$20,000
Wife	Legal fees in trust	$30,500
Husband	Legal fees in trust	$74,436
Total Non-Superannuation Assets		$3,261,082

LIABILITIES
Ownership	Description	Value
Husband	(omitted) Bank Mortgage (Property W) Account No. (omitted)	$226,264
Husband	(omitted) Bank Mortgage (Property F) Account No. (omitted)	$781,964
Husband	(omitted) building (for renovation)	$3,200
Total Liabilities		$1,011,428

Non-Superannuation Assets

Total Net Non-Superannuation Assets $2,249,654

Superannuation

1. In relation to superannuation – I note that the parties are now in agreement in relation to their respective superannuation interests. I find that the superannuation interests of the parties are as follows:-

SUPERANNUATION
Member	Name of Fund	Type of Interest	Value
Husband	(omitted) Super (as at 26.10.2015)	Accumulation Interest	$160,834
Husband	(omitted) Super Fund (as at 17.9.2015)	Accumulation Interest	$48,266
Husband	(omitted) Super (as at 26.10.2015)	Accumulation Interest	$79,293
Husband	(omitted) (as at 30.6.2015)	Accumulation Interest	$38,130
Husband	(omitted) Super incl (omitted) super rollover (as at 28.9.2015)	Accumulation Interest	$61,129
Wife	(omitted) Super (as at 13.11.2015)	Accumulation Interest	$81,278
Total			$468,930

Net Total Assets (including superannuation)

Net Total Assets (including Superannuation) $2,718,584

Contributions

1. The husband contends that at the commencement of cohabitation he had net assets with a value of approximately $400,000.  The wife concedes that at the time that cohabitation commenced the husband had net assets of approximately $300,000.  The husband maintains that, by virtue of exhibits 6 and 7 (Notice to Admit Facts dated 19 May 2014 and Notice Disputing Facts dated 28 May 2014) that the wife has admitted that at the commencement of cohabitation the husband had net assets with a value of “some $408,018”.  Paragraph 103 of the husband’s written submissions includes a list of net assets which it is said that the husband owned at the commencement of cohabitation.  However I note that exhibit 7 (the Notice Disputing Facts prepared on behalf of the wife and dated 28 May 2014) disputes, inter alia, that the husband paid $83,750 from his own funds as a deposit (or towards the deposit) for the Property H property.  The evidence is in an unsatisfactory state on some of these issues.  I note, in particular, that the wife maintained that part of the savings which the husband claimed were his were in fact sale proceeds of her own unit.  I do not find it necessary to resolve these particular disputes in a precise manner.  Indeed it is virtually impossible on the basis of the available evidence to do so.  It is, for present purposes, however, sufficient for the Court to note that the husband’s initial contribution was at least $300,000 (as conceded by the wife).

2. The wife maintains that at the commencement of cohabitation she had net assets of approximately $107,000 including equity in her unit at Property A of approximately $92,000; savings of $15,000 as well as a motor vehicle, musical instruments and other personal items. 

3. The husband concedes that at the commencement of their relationship the wife brought net assets of approximately $82,000.  There is therefore very little difference between the parties in relation to this particular issue. 

4. When the relationship commenced the husband was in full time employment earning approximately $110,000 per annum (plus bonuses).  The wife was employed at that time earning approximately $45,000 per annum.

5. At the commencement of the relationship the husband was employed as a (occupation omitted) at the (employer omitted).  In his trial affidavit filed on 26 October 2015 (sworn 26 October 2015) the husband describes his employment as, “(occupation omitted)”.  The husband worked during the course of the relationship and provided a steady and substantial income for the benefit of the family comprising the parents and the three children.  I do note, however, that there were periods of time when the husband was not in paid employment.  There was a period of approximately 18 months when he was not attending work but for part of that period he was in receipt of redundancy payments.  Further, he did contribute in other ways during those periods by, for instance, performing renovation work on one or more of the parties’ investment properties.  Furthermore, I accept the evidence of the wife that during the 18 month period in question the wife continued to be the primary carer for the children because the husband was also spending a good deal of his time (understandably) seeking out further employment.

6. Similarly, the wife worked throughout the relationship.  Initially she worked as an employed (occupation omitted) and subsequently she commenced her own (business omitted). That (business omitted) was commenced in 2005.  I find that the wife, during those periods when she was employed during the course of the relationship, contributed her income for the benefit of the family also. 

7. The wife’s income has risen steadily since the commencement of her own (business omitted).  The wife conducts her (business omitted) from a home office.

8. I accept the wife’s evidence that she contributed the majority of the homemaking duties during the course of the relationship.  I also accept her evidence that she was the primary carer for the children.  I do note that this was, at times, with the assistance of paid nannies.  The nannies cared for the children at the family home.  It is to be noted that the wife conducted her (business omitted) from a home office.  The wife, therefore, I infer from the available evidence, was on hand if needed and also responsible for the coordination of the paid nannies.  I have reached this conclusion because it was the wife who was working from home. So that, in addition to contributing her income for the benefit of the family – I accept the wife’s evidence that she contributed the majority of the homemaking duties. 

9. At paragraph 103 of the husband’s written submissions it is noted that the husband had superannuation entitlements at the commencement of cohabitation in the sum of $53,038.

10. In paragraph 125 of the husband’s written submissions it is contended that his superannuation entitlements had a value of approximately $261,000 in July 2013.  The current value of the husband’s superannuation entitlements are included in the property pool in the sum of $387,000.  It is said, on behalf of the husband, that this represents “his careful stewardship of the income and resources available to him, notwithstanding the wife’s greater income from her (business omitted)”.  This particular sentence relates to paragraph 125 of the husband’s written submissions in totality.  The submissions on behalf of the husband in paragraph 125 must also be seen in the light of the Court’s finding that the wife has paid for the vast majority of the expenses for the children since separation.  Furthermore, the contention in paragraph 142 of the husband’s written submissions that the husband’s current superannuation entitlements “reflect substantially his initial and post separation contributions” is not entirely accurate.  Noting paragraphs 103.5 and 125.2 of the husband’s written submissions leads the Court to conclude that the majority of the husband’s current superannuation entitlements were acquired or accumulated while the parties were together.  The husband has referred the Court to his superannuation balance as at July 2013.  That is the only evidence to which I have been referred by the husband.  That is the closest date to the date of final separation and that is the evidence upon which the Court will rely.  There is no suggestion (by either party) that the balance was materially different at the time of final separation.  Therefore, on the basis of the husband’s own written submissions – approximately $210,000 of his current superannuation entitlement was acquired or accumulated while the parties were together.  Not only that – the husband’s earning capacity improved significantly during the course of the relationship and, I find, that is at least partly due to the fact that the wife provided the lion’s share of the homemaking and parenting contributions thus enabling the husband to advance his career and improve his earning capacity.  By improving his earning capacity the husband has also been able to accumulate more superannuation.  The findings made by the Court lead to the conclusion that the wife has, at least in part, made some indirect contribution to the husband’s superannuation and his ability to accumulate superannuation. 

11. For the reasons outlined there is no justification for excluding the parties’ superannuation from the Court’s evaluation, consideration and alteration of the parties’ property interests.  I accept the submissions on behalf of the wife that it is appropriate in the circumstances of this case for there to be an alteration of the property interests of the parties – both in relation to non-superannuation assets and superannuation assets.  I note the submission on behalf of the wife appearing in bold type on page 35 of the wife’s written submissions.  The parties’ superannuation must therefore be taken into account by the Court in the relevant calculations for these proceedings.

12. These parties have been prudent with their real estate investments since the commencement of their relationship.  They have owned properties in various locations including Property W and Property L – (indeed the former matrimonial home is situated at Property L).  In relation to the investment properties I find that both parties contributed physical labour to the renovation work.  Further, I accept that, on some occasions, the entire family was present when renovation work was being carried out so that the parties, together, as a team, were either performing renovation work on those occasions and/or supervising the children.  It was, I find, a team effort.  The husband and the wife both had great difficulty in the witness box admitting this obvious fact.

1. As noted, the parties accept (and the Court has found) that the husband brought substantially more by way of assets at the commencement of the relationship.  The parties have been separated now for almost three years.  In this post separation period the wife has had the primary care of the children.  For the first two years post separation the children were with the mother for approximately 10 nights per fortnight.  Since March 2015 they have been with the mother for nine nights per fortnight.  The father has paid for some expenses for the children since separation – but the mother has paid for the vast majority of the expenses for the children since separation.  To the extent that there is disparity between the evidence of the parties in relation to this topic – I accept the evidence of the wife.  I consider that the husband was unconvincing in his testimony in this regard. 

Conclusion in relation to the contributions based entitlements of the parties up until the time of trial

1. I have come to the conclusion that, given the significant contribution made by the husband at the commencement of the relationship that, notwithstanding the contributions made by the wife (including pre separation and post separation contributions) the contributions based entitlements of the parties as at the date of the final hearing do still favour the husband.  I find that the contributions based entitlements as at the date of the final hearing should be assessed as 55% in favour of the husband and 45% in favour of the wife. 

2. My conclusion in relation to the contributions based entitlements of the parties takes into account the decision in Billington & Billington (No. 3) [2000] FamCA 1465. The initial contribution made by the husband has very much assisted the parties in achieving their present financial position.

Future Needs

1. Both parties have a significant earning capacity.  The applicant husband is able to earn in the vicinity of $250,000 per annum.  I do note that he does, on occasion, have periods of time where he is looking for work.  He works on a contract basis.  But he is intelligent and resourceful and has, by and large, been able to secure good employment positions earning a significant income because of his expertise in his chosen field.  The husband has particular expertise in relation to the (omitted) industry and (omitted) in particular.  His skills are sought after. 

2. Similarly, the wife is able to earn a very good income.  Her taxable income for the financial year ending 30 June 2015 was approximately $241,000.  In 2014 the wife earned approximately $344,000.  In the current financial year the wife has also been progressing very well in her (business omitted).

3. Both parties are in good health. 

4. The husband is currently aged 43 years.  The wife is currently aged 39 years.

5. The husband maintains that his employment can be somewhat volatile and insecure.  But I do equally note that, in relation to the wife, in the 2014 financial year the wife earnt approximately $344,000 and the in 2015 financial year the wife earnt approximately $241,000 – representing a drop of $100,000 in taxable income in that one year.  I do take into account that the wife’s (business omitted) seems to be based or primarily based (or at the very least seems to include to some significant extent) a (business omitted).

6. As noted, the wife will have the primary care of the children into the future. 

7. I am mindful that the relevance of the matters arising under section 75(2) of the Act must be considered in the light of section 79(2).

8. But I do also note the findings that the husband has not been forthcoming in relation to sharing the expenses for the children post separation.  He has paid expenses for the children when they are in his care.  He has paid for some other expenses for the children.  But, as noted, the vast majority of those expenses have been borne by the wife. 

9. On the basis of what has happened since separation I consider that it is reasonable to conclude that that situation may continue to the future.  Both of these parents will now need to acquire suitable housing accommodation for the children.  The children attend school in the (omitted) region of Sydney.  In order to obtain appropriate housing the parents will almost certainly invest significant sums of money.  The husband has already done so. 

10. On balance, I consider, primarily by virtue of section 75(2)(c), that there should be an adjustment under section 79(4)(e). In this regard I have taken into account the justice and equity requirement in section 79(2). The wife will have the care of the children for nine nights each fortnight. In addition, I note the findings made by the Court concerning expenses that have been borne by the wife in relation to the children and the Court’s findings concerning the likely future payment of expenses on behalf of the children. I consider that there should be an uplift under section 75(2) in favour of the wife of 5% in the circumstances of this case for the reasons stated.

11. My conclusion that there should be an uplift under section 75(2) is reinforced by my consideration of the other relevant subsections in section 75(2). In particular I note that the husband has significantly more superannuation than the wife (I note section 75(2)(f)).

Justice and Equity

1. There are sufficient assets for these parties to re-establish themselves with appropriate accommodation.  As noted, the husband has already purchased a dwelling.  The parties are in the lucky position of having sufficient assets to each maintain a good lifestyle.  Both parties have a significant earning capacity.  For these reasons and, indeed for all the reasons stated herein, I have come to the conclusion that it is just and equitable for there to be a 50/50 division of the parties’ assets. 

2. I will give the parties time to attempt to reach an agreement in relation to the wording of a final order to reflect the reasons for judgment.  The 50/50 division of the parties’ non-superannuation and superannuation assets does not necessarily mean there needs to be an equal split of the non-superannuation and superannuation assets.  There can be a mixture of superannuation and non-superannuation assets involved in the division – provided each party receives 50% of the total net assets (including superannuation).  The total net assets (including superannuation) is in the sum of $2,718,584.

3. In the event that the parties are unable to reach an agreement in relation to the wording of the final order then the matter will be re-listed.

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  8 April 2016