D & D
[2003] FamCA 1356
•20 November 2003
[2003] FamCA 1356
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 2202 of 2002
BETWEEN:
D
Wife
AND:
D
Husband
BEFORE THE HONOURABLE JUSTICE WARNICK
REASONS FOR JUDGMENT
Dates of Hearing: 13-14 October 2003
Date of Judgment: 20 November 2003
Appearances: Mr Murphy of Counsel, instructed by Attwood Marshall Lawyers appeared on behalf of the Wife
Mr Kirk of Senior Counsel, instructed by Evans & Company Lawyers appeared on behalf of the Husband
Mr and Ms D married in 1988. The marriage produced 3 children, K (now aged 11 years), B (now aged 10 years) and N (now eight years of age). However, the marriage broke down and the parties separated in December 2001. The parties have been unable to agree on the issues of property settlement and spousal maintenance and on one narrow question about the time that the children spend with their father.
Ultimately, the parties agreed on the assets, liabilities and resources to be divided. The issues for determination relate to the assessment of the parties’ contributions made relevant by section 79(4) of the Family Law Act 1975 as amended and of the weight to be given to any relevant section 75(2) factors.
Argument focussed on the husband’s greater initial contributions and any significance to be attached to the pre-marriage steps he took, over many years, towards qualification as a specialist health professional.
The issue relating to the children, which was whether they should spend five or six nights out of each 14 during school term with the husband, is one to be determined according to the assessment of the children’s best interests. Essentially, the husband says that B and N wish to spend the increased time with him. The wife points to the need to provide the children with an identifiable primary residence and other matters related to stability.
The parties engaged Ms L, Social Worker, in respect of various children’s issues. Two reports by her are in evidence and she was called as a witness.
There was no suggestion that the determination of the issue relating to the children either way had any impact on the matters of division of property or spousal maintenance. As financial rearrangement is the major issue, I deal with it first.
Background
Though the parties separated in December 2001 they remained living in the former matrimonial home until June 2002. It is common ground that during this period both parties were very involved with child-rearing tasks. However, tensions between the parties led to proceedings in this Court. Interim proceedings came before his Honour Justice Buckley on 29 May 2002. Orders were made by consent. Their effect was that the wife was to find suitable accommodation “…in which to reside with the children…” and the husband remain in the former matrimonial home “…with the children … until final hearing…”.
The children were to be with the husband Friday afternoon one week until commencement of school the following Tuesday and in the other week from after school Monday to commencement of school the next day, ie. five nights out of each 14 nights. School holidays were to be shared and there were arrangements for special occasions.
After the wife moved from the home on 7 June 2002, she occupied rental premises until, with the money advanced by the husband in accordance with the terms of a further order by consent, made 31 October 2002, she purchased a home at Town B.
PROPERTY SETTLEMENT
Contributions during cohabitation
A.Initial contributions
The parties commenced cohabitation upon marriage when the wife, then 28 years of age, was a health paraprofessional, earning around $30,000.00 per annum. The husband, then aged 31 years, was in the final stages of his specialist training and earning between $80,000.00 and $120,000.00 per annum.
As it is relevant to a submission made on his behalf, I set out what the husband says he had done, prior to marriage, towards obtaining his specialist qualification.
In 1982, the husband completed his university studies after 5 years. From 1982 to 1989 he undertook professional placements and further studies to complete the requirements to practice as a specialist health professional.
At the time of marriage, the husband owned a unit at Suburb A in Sydney. The agreed value of the unit at that time is $180,000.00. About $50,000.00-$53,000.00 was owing in respect of the unit’s purchase, secured by way of mortgage. The husband says that he also had a vehicle which he purchased shortly before marriage for at least $10,000.00 and the unit at Suburb A was furnished.
The husband says that the wife had savings of between $20,000.00-$30,000.00 and a Mitsubishi Sigma which was fairly old and not in good condition.
The wife puts her savings at the higher end of the range, namely $30,000.00 and she says her car was worth about $2,000.00. She says the husband had a car worth about $2,000.00 and furniture worth about $1,000.00. The wife also mentions (in another part of her material) an insurance policy of hers, maturing in about 1990, realising $10,000.00.
I think it unnecessary to make any further findings about initial contributions. Differences between the parties about values or amounts are minor and in any event the parties offer only their own opinions on value.
B.Contributions during cohabitation
In the end, only two (or three, depending on approach) issues about contribution were argued.
The submissions about those aspects will be dealt with later but because of that approach it is unnecessary to set out the detail of other aspects of contribution.
In paragraph 28 of his affidavit of evidence in chief, the husband deposed:
“The primary terms of our initial plan were that:-
(a)Commencing at the time of birth of the children, the APPLICANT WIFE would cease working and fulfil the role of home-maker and primary parent;
(b)I was to work as hard as I could and earn as much money as I could so as to accumulate property holdings sufficient for us to retire early. We had both discussed retirement at the time I reached 50 years of age; and
(c)We would live a frugal life dissimilar to many other doctors so as to accumulate and retain the property holdings and be comfortable in terms of income during retirement.”
The wife ceased work at about the birth of the first child and she has not returned to work except for some work as a teacher’s aide at the T Primary School in 2001 and 2002.
From 1991 as a specialist health professional at the G Hospital, the husband earned about $200,000.00 per annum. Then after joining the G T Specialist Group his income gradually climbed to the high $500,000.00’s net per annum for the years until the last financial year before separation.
There is really no issue that the husband worked extremely hard, acquiring three positions, including private practice, and two senior professional positions.
In respect of these commitments, the husband deposed:
“29. …
I accept and agree with the assertions of the APPLICANT WIFE but these were heavy commitments. They were the type of commitments necessary to achieve a high income for [a specialist professional] as we had planned to do. My income when I was working these three jobs dwarfed the incomes of other [specialist professionals].…”
In reference to his financial contributions overall during cohabitation, the husband deposed:
“45. I did so by working very hard and at a level significantly above others in my field such that I was taken out of the home for much of the working week...”
As to the wife’s contributions once she ceased work, apart from the burdensome care of three children born within three and a half years, without the relief of regular child-care or pre-school when they were younger, and the effort required to support their numerous extra-curricular activities once they commenced school, the wife attended to home-making tasks, household accounts, management tasks and bookwork in respect of the property of the parties rented out from time to time, and bookwork for private corporations connected with the husband’s practice and the parties’ superannuation fund.
There is little issue about the wife’s parenting (and other) contributions, except in the sense that the husband says his contributions, particularly after 1998, relieved her of some tasks she had previously or would otherwise have performed.
However, there is some difference between the parties about contributions to parenting during the cohabitation, particularly after 1998.
The husband says that, notwithstanding his onerous work commitments, he made domestic and parenting contributions whenever he was at home.
The wife says the husband was too tired to make domestic and parenting contributions as he claims. She disputes that the husband’s usual chores included all exterior gardening, pool maintenance and equal care of the dog. She says she did the regular pool maintenance and maintained the tennis court and the house garden.
It is common ground in about 1998, the wife requested the husband to reduce his hours and he agreed.
After making arrangements, the husband reduced his workload. The husband says that then he was more readily accessible as a parent and husband and devoted the time he gained to the family.
The wife says that the husband never reduced his work commitments as alleged, always expressing fear of losing work. Before that, he was not often available to play and spend more time with the children at odd hours as he alleged. She says she never noticed any change in her husband’s contributions within the home at any stage, until during the period of living separately under the one roof, when the husband increased his involvement with the children.
I think the differences between the parties about contributions due to perception rather than any intent by either to mislead. However, I prefer the evidence of the wife as she supports her assessment with much more detail. Her description is also more consistent with what the husband says was the agreement between them and his own description of his work commitments, at least until 1998.
As to the husband’s contribution to domestic and parenting tasks after the discussion in 1998, I accept that, perhaps primarily because of the delay in finding a replacement for one of his positions, no great changes occurred until after December 2001.
When the parties agreed to separate, no division of property or alteration to existing arrangements for dealing with financial matters were put into effect. Each party was involved in the parenting of the children. The wife continued to cook, clean and iron for the husband. The husband continued to undertake his usual chores. The parties worked together on tasks associated with business activity statements.
Husband’s present circumstances and future prospects
The husband is 46 years of age. As to his earning capacity, the husband says that it is likely that his income will not be significantly more than $350,000.00 per annum from now on, but he thinks he can maintain that into the future. He says that the impact of separation has diminished both his will and stamina. As well, given his age and the likelihood of continuing significant involvement in the lives of the children, he does not believe his work commitments can return to the heights that they once reached.
The wife says the husband’s income only reduced at the time of separation. However, because of her reference to earlier marital difficulties, I infer that she asserts the reduction occurred coincident with those earlier difficulties. It is noted that in the year ended 30 June 2001, there was a reduction of about one-third (compared to the preceding year) in the husband’s gross income. The wife says she and her husband began marriage counselling in June/July 2001 and in September 2001 the husband first consulted a solicitor.
It seems more likely that the husband’s income reduced when he reduced his workload.
Wife’s present circumstances and future prospects
The wife is 43 years of age. She says that by the time N has left school she will be 53. Until then she has the possibility of part-time employment.
In her affidavit, the wife said that she was in the process of endeavouring to retrain for steady reliable employment. She of course retains her qualifications as a health paraprofessional though her qualifications may need updating. She does not wish to return to her previous role because she believes that the daily hours required would prevent her participating as she wishes to in the upbringing of the children. She deposed that there were not many relevant jobs with shifts between 9.00am and 3.00pm. The husband gave evidence that he had spoken to people who said there were such shifts. Though no objection was taken by either party to the evidence given by the other in this regard, I do not consider that I am in a position to make a determination about the availability of such positions.
As noted earlier, the wife had worked as a teachers’ aide in 2001 and 2002 and in 2003, the wife commenced a one year course at TAFE for a certificate in community services. She has made enquiries about employment upon completion of the course and as a result, is pessimistic about the opportunities, but she hopes that by obtaining the certificate and updating her computer skills in a short course next year, opportunities for employment will open up for her.
The wife is currently considering qualifying herself for a job in the health care field.
She says it will be necessary to attend a refresher course to update her paraprofessional qualifications. She will need to become a contractor and meet various requirements as to insurance and she will have a contract rate of about $30.00 per assessment.
It seems likely that the wife will return to work at least part time but she is unlikely to obtain a position before some time in 2004. Her likely earnings are difficult to estimate.
As to child support the wife deposes that on 25 February 2003 her solicitors sent to the husband (or his solicitor) details of the children’s expenditure and a proposal to enter into a Child Support Agreement, but the husband has not replied.
Some (fairly fleeting) reference was made to this in submissions by counsel for the wife in relation to the prospect that considerable child-care costs might fall on the wife. This has certainly not been the case up to trial. Child support has not been an issue of moment because of the financial facilities made available by the husband. He said that he expected to pay for the support of the children into the future and I think it highly probable that, even after division of property, he will bear the great bulk of support of the children.
The wife has had no income (apart from about $8.00 per week dividends from shares paid into the joint account) but has met expenses by drawings from the joint account and mastercard in support of herself and the children. She lists her expenses at $576.00 a week and those for the children at $501.00 per week. The wife’s claimed expenses for the children do not include school fees and extracurricular expenses and medical insurance.
Assets/Liabilities
Assets
| Home – Town H property | 950,000 | |
| Other Realty: (a) Suburb A property (b) Town P property (money expended by Wife on this) | 330,000 | |
| Corporate/Trust Interests: (a) T G Specialist Services Pty Ltd - Westpac Cash Management Trust A/c - Westpac Cash Management Cheque A/c | 2,961 | |
| Other Investments: | 13,256 | |
| Bank Accounts and Deposits: | 109 815 | |
| Other Assets: (a) Motor Vehicles - Husband - Wife (b) Ride-on Mower and trailer (c) Furniture - Husband - Wife (g) golf clubs (wife) (f) Stamp Duty and legals on P property | 23,000 9,550 | |
| Superannuation Entitlements: (a) Husband - D Super Fund (b) Wife - D Super Fund - First State | 205,676 | |
| Notional Add-Backs/Deductions (a) Legal fees - paid by Husband - paid by Wife | 48,596 | $2,538,586 |
Liabilities
| (a) Westpac Equity Access Loan (Mtg) – Note 1 | (154,525) | ||
| (b) Notional tax and sale costs for Sydney unit | |||
| Assuming $330,000 sale price Capital Gains Tax payable | 54,521 | ||
| Legal costs on sale | 1,000 | ||
| Advertising on sale | 750 | ||
| Agent’s Commission | 7,260 | 63,531 | 218,056 |
| Net Property Pool | 2,320,530 |
Assessment of contributions
In his written submissions senior counsel for the husband submitted:
“There is no issue that during the course of the marriage the parties worked hard, each performing well in the respective areas they agreed to undertake. The husband worked “arduous and long” hours doing three jobs and clearly extracting the highest income possible from the earning capacity he brought to the marriage. The wife with three children in four years and being primarily responsible for them for part of the period of cohabitation must have performed equally as well. The points of difference here in contribution weighting are the actual property of the husband brought to the marriage, the fact that he worked extremely hard throughout the marriage and finally that what he had created in the 13 years or so before marriage in terms of his earning capacity … bore “fruit” during cohabitation and that must enhance the weight of that contribution.…”
Counsel then dealt with (as three issues) the question of assets brought to the marriage, the “husband’s hard work during cohabitation” and “the potential earning capacity of the husband brought to the marriage”. However, in his submissions, while noting that the husband’s hard work alone might possibly have presented an argument for some weighting in the husband’s favour, he conceded that it probably would not have been other than equal to the contributions of the wife. Counsel’s submission was that, the combination of the husband’s hard work during cohabitation with his earning capacity, foundation for which had been established prior to marriage, constituted a contribution to which greater than ordinary weight should be attached. In that sense, really only two issues about the assessment of contributions were argued.
Earlier in his written submissions, senior counsel for the husband had said:
“4.2 Whilst there are no cases of which I am aware where a very substantial future earning capacity created almost entirely prior to marriage has been treated as an ‘initial contribution’, it must (we submit) on first principles to be so considered. If instead of spending many years of study to attain the position of a [specialist health professional], the husband had built a business that was capable of producing similar profits/earnings there could be no question that the ‘business was an initial contribution’.”
In his arguments on this point, counsel for the wife also used analogies or hypotheses.
While these devices can be useful as a means of distillation of principle, their use also has dangers both because the hypothetical facts necessarily are different from the facts of the case under discussion (which is the only case which must be decided) and because the hypothetical facts are generally not considered in a broad factual context, which in an actual case may well encourage a particular perspective of the facts material to the narrower issue.
For example, in respect to the analogy used by counsel for the husband, had the husband built a business capable of producing profits or earnings such as he produced at the peak of his professional practice, that business might well constitute property having a discernible value. That is arguably a very different situation to the one under discussion here.
Another analogy that may be of some assistance, but which is also subject to differentiation, is that in which a person spends a period in the Armed Forces sufficient to be entitled to a retirement pension and all or most of that period occurs prior to the relevant period of cohabitation. The pension is then received throughout the cohabitation. It cannot be said that the other spouse makes any contribution to its receipt. It seems strongly arguable that that contribution ought receive a particular weighting and has something of the character of an “initial contribution”. Again however, it is a different situation. The actual entitlement to the payment arose or substantially arose because of pre-cohabitation activity. In the instant case, there was no activity prior to cohabitation which contributed towards an entitlement to be paid upon the completion of the activity.
Another analogy of some use might be to imagine two specialist health professionals, both of whom had completed their qualifications prior to cohabitation, but one of whom, by mutual agreement became a home-maker/parent and the other pursued practice. It would be difficult to think it just and equitable that the contributions of the home-maker parent in those circumstances, if otherwise performed appropriately, be given less weight than the contributions of the practitioner.
But that is not the case here. Perhaps the answer is to simply look at the facts of this case. Here, the wife did not have an earning capacity which could reasonably be expected to produce anything like the income that the husband could obtain. The husband generated large income by the application of long and arduous work in the pursuit of that for which he was qualified. Those qualifications came mostly as a result of efforts prior to cohabitation. The long years of effort in both study and work prior to cohabitation were of the nature that would bear fruit at the end, after the qualification was obtained. It seems to me that these are all circumstances, account of which can be taken in addressing the weight to be given to the actual contributions made during cohabitation. It is not a matter of somehow crediting pre-cohabitation “contributions”, whether so described or whether described as “initial contributions”. It is not a matter of crediting “potential”. The fact that the husband had worked at obtaining qualifications before marriage is simply a feature of the contribution he made during marriage, using those qualifications.
Counsel for the wife argued that no weight should be placed on the pre-cohabitation efforts of the husband towards obtaining his specialist qualification. In part, his submissions address the argument that the pre-cohabitation efforts constituted an “initial contribution”, a classification which, as stated above, I think inappropriate.
Because I hold that view, I accept the first submission put on the part of the wife, namely that potential contribution is not a contribution until the relevant potential is realised.
The second point of counsel for the wife was put as:
“…If a specialist [professional] pregnant with the capacity to earn income who subsequently earns income pursuant to that capacity is to be given weighting for the capacity as well as the income produced then, so, too, must his partner be given credit (and full credit not token credit) for her pregnant capacity to contribute concurrently in the role of home-maker and parent.”
There is no evidence before me that prior to the cohabitation the wife did anything in particular to outfit her to fulfil the role of home-maker and parent and the absence of that, I think, constitutes a flaw in the argument.
The third point raised by counsel for the wife was that if the husband is to have taken into account as a contribution the income his particular skill produces, then to also count the potential to produce same is to double dip. I think the answer to this argument is that what is being counted as a contribution by the husband is not his potential to produce income. All that is being done is recognising that the actual financial contribution of the husband was made in the context of the exercise of a capacity substantially developed prior to cohabitation.
In support of his submissions that a party ought not receive credit for the potential that he or she brings to a marriage relationship (and described by counsel as a fourth point) he referred to a passage of the judgment of Nicholson CJ and Buckley J in Figgins (2002) 29 Fam LR 544 at 566, paragraph 134, as follows:
“…Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other.… We think that cases such as JEL & DDF and the minority view of Guest J in Farmer & Bramley have missed this point and have led to an imbalance of gender considerations in arriving at results that unduly favour the male partner.”
Nothing in section 79 of the Family Law Act instructs a judge how to value contributions of one type or another. That being so, I do not take the majority in Figgins (supra) to be suggesting that the Full Court can bind trial judges in that way either.
Notwithstanding the focus so far on argument about the weight to be given to the factor of pre-cohabitation efforts of the husband towards his specialised qualifications, it is my assessment that the earnings generated by the husband during cohabitation were primarily generated by his hard work and the pursuit of the particular mutual ambitions of the parties as set out by the husband in his affidavit. In this regard, three telling passages in his affidavit were quoted earlier, the first where the husband sets out that the agreement was that he work especially hard and the parties live frugally with the intent of maximising the husband’s earning capacity; the second is where he says because of the work burdens he took on, he earned far more than other comparable professionals; the third is that he states he worked at a level above others in his field.
Thus it seems to me that the wife contributed very much to the husband’s earnings. The husband’s “above the ordinary [specialist’s] efforts” may be recognised but these efforts cast an “above the ordinary demand” on the wife, which she met. In assessing the comparative contributions it is also important to recall that the husband did not actually qualify until after marriage, and he then set out to establish a specialist practice. Though I have regard to the fact that the bulk of the necessary study and experience to commence a specialist practice were achieved before marriage, that would, in my view, not add a weighting to the contributions of the husband beyond a small degree, perhaps 3 per cent differential.
As to the weight to be given to the disparity in initial contributions, in my view, the disparity was sufficient to be of some significance. The initial contributions, of course, must be placed with the substantial, high-level contributions made during a 13 year cohabitation, on the part of both parties. In those circumstances, the disparity attracts a weighting, in my view, of a differential of another 3 per cent. Thus, based upon contributions, I would consider the appropriate division of property between the parties 53 per cent to the husband and 47 per cent to the wife.
Assessment of s75(2) factors
I accept that the reduction in the husband’s earnings has come about for the reasons he states and that the probabilities are that he will continue to earn what he predicts ie. about $350,000.00 per annum. However, it is relevant that he probably retains a capacity to increase earnings beyond what he predicts. While currently his focus on the children means that he voluntarily limits his efforts by comparison with what he did before and he may be affected by the emotional impact of the breakdown of the marriage, the calls on his time in relation to the children may diminish as they become older and more independent. The husband’s determination and robustness may return with the resolution of these proceedings.
On the other hand, I accept that as he advances in age he may not be able to maintain the efforts which marked the peak of his earning capacity. In any event, his earning capacity dwarfs that of the wife.
Just as it was urged to be pertinent to an assessment of the weight to be given to the husband’s financial contributions during the cohabitation, that the bulk of requirements to achieve his specialist qualifications were achieved prior to marriage, so it is also relevant that his current capacity owes much to the joint efforts put in during cohabitation, which saw the establishment of his private practice, the acquisition of reputation and expertise. At the same time, the duration of the marriage has had some detrimental effect, at least in the short to medium term, on the wife’s earning capacity.
As to other factors, it seems likely that, whether his child care is maintained at the current level or varies by a night or two a fortnight, that the husband’s ongoing contribution to parenting will remain substantial. Thus there is no significant disparity in parenting burden likely to fall on the wife. Each party indicates that anticipated child-care responsibilities will make some inroads into earning capacity.
It is also likely that the husband will bear the substantial majority of the financial burden of raising the children.
Though on the assessment of contributions there is a modest percentage differential in wealth between the parties, I do not think an adjustment is required on account of it.
In considering an adjustment to reflect the disparity in earning capacities, it is appropriate to bear in mind the impact of taxation on the husband’s gross earnings and the advantages for the wife of the acquisition of a lump sum now, as against the adjudged capacity to make savings from income over a period of time, subject to exigencies as that is. The husband may also have to make some borrowing to meet payment to the wife.
In assessing the appropriate percentage adjustment and the justice and equity of the overall result it is important to connect the percentage to the monetary result. In my view an appropriate adjustment on account of the disparity in earning capacities is 13 per cent to the wife. This produces a differential of $464,106.
Application of the division
Sixty per cent of $2,320,530.00 is $1,392,318.00. There is no issue about what the wife is to receive, which is:
Town P property $520,000.00
Shares in public companies 13,256.00
Motor vehicle 13,000.00
Furniture 20,000.00
Golf clubs 2,000.00
Stamp duty etc on purchase 19,795.00
Superannuation 251,598.00
Legals 121,702.00
$961,351.00For the wife to receive her entitlement, the husband will need to provide a further $430,967.00.
The husband’s position will then be that he should retain net assets of $928,212.00 (40 per cent of $2,320,530.00).
The calculations of this are:
Town H property 950,000.00
Suburb A property 330,000.00
Corporate/Trust interests 3,220.00
Bank accounts, deposits 2,843.00
Motor vehicle 23,000.00
Ride on Mower 4,350.00
Furniture 9,550.00
Superannuation 205,676.00
Legal fees 48,596.00 $1,577,235.00Less:
Westpac Equity Access Loan 154,525.00
Anticipated expenses on sale of A property 63,531.00
Payable to wife 430,967.00 649,023.00
$928,212.00
Spousal maintenance
Having regard to the fact that the wife is unlikely to be able to utilise her superannuation at this time to produce income, and that the assets attributed to her include the notional assets of legal fees and stamp duty, she will basically only have the capital paid to her to invest. She has shares of modest value. She may have some expenses, perhaps including further legal fees, to meet. Doing the best I can if she has $400,000.00 to invest, that, on a conservative interest rate (which may rise) should generate around $20,000.00 per annum. Her expenses for herself are towards $30,000.00 per annum. However, sometime in 2004 it is likely she will be in employment sufficient to provide the balance needed for her expenses and quite possibly something extra, though modest, in amount. However, I do not consider that the wife should be called upon to maintain herself out of capital and I think some allowance should be made for a period of say nine months, by way of lump sum of $7,500.00. Further, until payment by the husband the wife will need support for herself (quite apart from support for the children) at the rate of $576.00 a week, which I calculate at approximately $5,100.00
The issue about the children
The evidence of Ms L, Social Worker
As earlier noted, Ms L prepared two family reports. The first issued on 21 May 2002. At that stage both parties were still residing in the former matrimonial home. Both parties were seeking in the short term to have sole occupancy of the home.
The husband was seeking 50 per cent of the residential arrangements for the children. He expressed the view that if he did not have an equal sharing arrangement he would not maintain his close attachments and relationships with the children.
By the time of the report the wife’s proposal was that the husband have the children for a four night long weekend, each alternate week, and one night during the other week.
In paragraphs 3.1 through to 5.15 of her report, Ms L outlines what she describes as the issues underpinning the dispute. These included the husband’s fear that unless he obtained equal time with the children he would be to some extent excluded and affected in his relationship with them. From the point of view of the wife, the motivation of the husband included some sense of competition and control. The wife felt that for his own purposes, the husband was threatening her agreed and well established role as primary carer, putting his own interests ahead of those of the children.
Each of the parents described different approaches to the children’s upbringing.
There were no observed concerns with respect to the children’s interactions and/or relationships with either parent.
K indicated some preference to spend more time with the wife than otherwise. B appeared cautious not to express any choice between parents, though she initially indicated a preference to live more with the husband because she was used to living in that house. N seemed to express a wish for living mostly with the wife.
Ms L concluded that the three children were healthy, well adjusted, strongly attached to both parents and to each other. She said there were contrary indications to shared care arrangements which equally divided the children’s residential circumstances. They related to:
·An absence of one predominant home
·The increasing need for the children, particularly as they approach and experience adolescence, to have their personal space preferably in one home, given their developing egocentricity.
·The importance of protecting children from feeling divided loyalties often expressed through a preference for equal time with both parents rather than upset one in favour of the other, at the expenses of their developing individual needs and preferences.
·High conflict between the parties and risk of the children being exposed to such conflict, ultimately compromising the children’s emotional/psychological development. The indications were that if the husband’s proposal was adopted the wife’s resentment may intensify and then the husband’s insistence as to his involvement in decision making may also intensify.
·It would be preferable that there be greater simplicity and definition in the children’s residential arrangements and this may be better achieved with a predominance of care with one parent. In that regard the wife was more available, capable and had cared predominantly for the children most of their lives. The husband was motivated somewhat by fear of losing his close attachments and relationships with the children.
·As to the wishes of the children, and in particular B, Ms L said that caution needed to be exercised in giving too much weight to her views. The children would not cope with having too much choice. They needed definition and security.
Ms L concluded that at that point the indications were that an equal sharing arrangement may compromise the children’s sense of security. She recommended that the children reside predominantly with the wife but reside with the husband not less than four and no more than five nights per fortnight.
As seen at the outset, shortly after the release of Ms L’s first report, by consent orders were made that the children spend five nights per fortnight with the husband.
Ms L updated her report on 10 June 2003. At that stage, the position of the husband was that he wanted six nights per fortnight contact; the wife wanted the contact reduced to four nights.
Both parents indicated that their relationship was still somewhat conflictual, though the husband was more positive in his views about it. In her oral evidence Ms L said she thought the parental relationship had improved from what it had been (a high level of conflict) when she had first seen the parties.
Ms L said that the husband’s preference for additional contact was underpinned by his belief that the parental relationship had improved and by the children, particularly B and N, repeatedly expressing a desire to spend more time with him.
The wife wished the contact in the off week to be ceased, although she said she would not oppose its continuation provided the husband agreed that if in the future the children expressed a desire to reduce that contact, he would respect their wishes.
Both parents indicated that they would embrace the recommendation of the report writer.
The husband told Ms L he was seeking an additional night contact with the children during the six days period he did not see them. He felt it was too long for both he and the children to go without physical contact. He acknowledged however that that would mean even more coming and going for the children between each household.
The husband acknowledged to Ms L that B and N would adjust and not be compromised in the long term if they were told by both parents that their present contact arrangements would continue. The husband acknowledged that he was desirous of more time with the children and that possibly this had contributed to the children continuing to want to spend more time with him.
During their joint interview the parents agreed that they would consult each other and involve each other in the children’s care in particular by way of facilitation of extracurricular activities. The parents embraced a recommendation of Ms L that B and N receive counselling.
N said he was happy with the then existing arrangement but upon reflection he said he wished he could have one more day with the husband. B said she wanted the time to be even because they were both her parents and so the children should see them the same. Both these children however commented about the nuisance of living in two houses. K said she would like the then existing arrangements to continue.
Ms L noted that the husband may not intend for his feelings to be known to the children but that the indications were that he had encouraged them to want more time with him rather than address the losses that they still feel. To some extent he maintained a fear that if he did not spend significant quality time with the children his bond and long term relationships with them may be somehow compromised. She said the husband’s initial proposal to have an additional night during the six day period that he (then) presently did not have the children would cause even further disruption and should be avoided.
Ms L said the wife presented as somewhat more perceptive in relation to the potential difficulties for the children with a shared care arrangement. Clearly, Ms L said, the children should be retained as a sibling group both during their residential and contact arrangements.
Ms L said she did not support increased contact.
There were two significant issues which contra-indicated increasing contact at this point. First, was the likely negative impact upon the parental relationship of the wife’s feeling that her role as primary carer was being further compromised. Her willingness and ability to relate to the husband in an amicable manner and to support the high level of his involvement in the children’s care may be compromised and this would impact upon the children. Secondly, caution needed to be exercised in placing too much weight on B’s expressed wishes and views to spend equal time with both parents. It was clear that her wishes and views were underpinned to some extent by her inability at this point to address and resolve the loss of the parental relationship and family unit. N appeared to be in a similar predicament.
Other aspects of the issue
The husband’s position is set out via Ms L’s reports. So also is the wife’s position. However, as she attaches to her affidavit a specific statement of reasons for opposing further contact, I summarise them as follows:
· The parties do not communicate well.
· The husband is very determined to get his own way and sometimes loses sight of what is in the best interests of the children.
· The wife finds it very difficult to work with him.
· The fifth night is putting more stress into the relationship.
· The husband refuses to talk to her.
· The wife feels that K and N miss her when they are with the husband for longer periods.
· K does not like living in two houses.
· K needs the wife as she approaches adolescence.
· In any event the wife offers the husband time outside the arrangement, on a flexible basis.
· An extra night would cause disruption, through the children forgetting things.
In his submissions counsel for the husband placed reliance on an answer by the wife about her likely reactions if the husband succeeded on this issue. She said that would make her no angrier than what she was now.
From her demeanour, I took the wife to be conveying that she was already rather angry that the husband was pursuing this issue.
By agreement, some additional evidence relating to a wish expressed by B to “see Daddy a bit more” and Ms L’s comments about that, was placed before me.
In my view, this further evidence does not alter the tenor of evidence during the hearing or any of my conclusions.
Discussion
It is apparent that the disagreement requiring resolution is to a large extent driven by the issues between and for each of the parents, arising from the breakdown of their relationship.
The question of whether the children should be five or six nights each fortnight with the husband is not the problem the solution of which would advance the interests of the children. That problem is the conflict between the parties. If the parties were supportive of an arrangement, whether that be five or six nights per fortnight, then the difference between those two extents would be of no impact at all on the interests of the children. Unfortunately, while orders that I make will answer the question as to how many nights a fortnight contact should be, those orders will not necessarily, and perhaps even not likely, remove the problem created for the children by the conflict between their parents. In this situation, the order most likely to reduce conflict is that which will be in the children’s best interests. I have further concluded that order is for the children to spend five nights a fortnight with the husband.
The reasons for this are that, on the evidence, I consider that the level of underlying tension between the parties is greater than the husband assesses or admits and that this tension is likely to remain or increase if an order is made that all three children spend six nights a fortnight with the husband. Such an order would not accord with the wishes of K, so that there would likely be some continued dissatisfaction on her part, of which it is likely the wife would be aware and to which it is likely she would have some reaction. Notwithstanding the wife’s response that she would be no more angry if the issue went against her then she is already, I think the wife is likely to be resentful of the husband if more contact is ordered, because of her own issues.
While the husband is also driven by his own issues, and whilst his determination is evidenced by his failure to adhere to the agreement that the recommendations of Ms L would be accepted in respect of this issue, I think his feelings more likely to subside than those of the wife.
I accept it is highly likely B and N, in expressing their wishes about time with the husband, have been affected by an awareness of his wishes in the matter. As the family settles into its new living arrangements, and those children gain maturity through age, the benefits of a primary home may have more of an impact on them.
Finally, it is likely that if the proposal of the husband was put in place by Court order, there would be no flexibility between the parents, such as there has been, in respect of involvement of the husband in activities of the children outside the set arrangement for nights spent with him. This flexibility is the only evidence that the children are likely to see of a lack of conflict and of co-operation between their parents. The arrangement I intend to order is likely to preserve that demonstration of co-operation between the parents.
Orders:
Parenting Issues
(1)That the husband and wife have joint parental responsibility for, and make joint decisions concerning, the long term care, welfare and development of the children, K born … 1992, B born … 1993 and N born … 1995;
(2)That the wife have sole parental responsibility for, and for the making of decisions concerning, the day to day care, welfare and development of the children when they are living with the wife;
(3)That the husband have sole parental responsibility for, and for the making of decisions concerning, the day to day care, welfare and development of the children when they are living with the husband;
(4)That the children reside with the wife at all times not defined as periods the children shall reside with the husband pursuant to the operation of paragraph (5) (including all subparagraphs thereof) of this Order;
(5)That the children reside with the husband as follows:
5.1in each alternate week, from after school Friday to commencement of school the following Tuesday;
5.2in each other week, from conclusion of school Mondays until the commencement of school on Tuesdays;
5.3for one-half of all school holidays enjoyed by the children subject to the following:
5.3.1the operation of subparagraph 5.4 hereof;
5.3.2the operation of subparagraph 5.5 hereof; and
5.3.3that whenever possible the holidays be divided according to a first half/second half regime but having regard to the husband’s work commitments and availability for school holiday contact;
5.4During the Christmas school holiday periods enjoyed by the children commencing in 2003 and in each alternate year thereafter, the children shall reside with the husband commencing upon the conclusion of school until 11.00 am on Christmas Day;
The children shall reside with the mother commencing at 11.00 am Christmas Day until 5.00 pm 16 January 2004;
The remaining school holidays enjoyed by the children shall be split equally with the father to enjoy the first half of such remainder period and the mother to enjoy the second half of such remainder period;
In each three week period of time reserved to the husband and to the wife falling between conclusion of school until 16 January 2004, the children shall spend a weekend with the other parent between 4.00 pm Friday 19 December 2003 until 4.00 pm Sunday 21 December 2003 and so as the children spend between4.00 pm Friday 9 January 2004 until 4.00 pm Sunday 11 January with the parent with whom they have not been residing and on similar terms in each year thereafter;
The parties shall adopt this arrangement in 2003 and each alternate year thereafter and shall adopt a reversed arrangement in 2004 and each alternate year thereafter;
5.5At Easter times:
5.5.1In 2004 and in each alternate year thereafter, the children shall spend time with the wife from 8.30 am Good Friday until 8.30 am Easter Sunday and with the husband from 8.30 am Easter Sunday until 8.30 am on the Tuesday falling immediately thereafter; and
5.5.2In 2005 and in each alternate year thereafter, the children shall spend time with the husband from 9.30 am Good Friday until 8.30 am Easter Sunday and with the wife from 8.30 am Easter Sunday until 8.30 am on the Tuesday falling immediately thereafter
And otherwise share equally the remaining available Easter school holidays enjoyed by the children;
5.6On each Father’s Day between the hours of 8.30 am and 6.00 pm PROVIDED THAT any period of residence with the husband shall be suspended so as the children spend between the hours 8.30 am and 6.00 pm with the wife on each Mother's’Day;
5.7Such further or other periods of residence as the parties may agree upon between themselves from time to time;
5.8On each child’s birthday the children shall spend time with the parent with whom they are not residing between 5.00 pm and 8.00 pm if a school day and 1.00 pm and 8.00 pm if a non-school day;
5.9On each parent’s birthday the children shall spend time with that parent (if they are not already residing there) between 3.00 pm and 7.30 pm if a school day and 8.30 am and 6.00 pm if a non-school day;
(6)That each party be at liberty to attend any of the children’s sporting or educational activities regardless of whether the children are residing with the husband or the wife;
(7)That for the purposes of this joint residential arrangements:
7.1the husband shall collect the children at the commencement of periods during which the children reside with him from school if a school day or from the home of the wife if not a school day;
7.2the wife shall collect the children at the commencement of periods during which the children reside with her from school if a school day or from the home of the husband if not a school day;
7.3the husband and wife shall communicate with each other at the time of or prior to the commencement of the other’s residential period any information reasonably necessary to facilitate the proper care of the children and their attendance at functions, events and appropriate activities; and
7.4the husband and wife shall do all things necessary to authorise equal access to medical, educational and any other information or records pertaining to the children which may be or which may come into existence at any time;
(8)That each party be entitled to enjoy liberal phone contact with the children at all reasonable times whilst residing with the other parent and shall facilitate such phone contact whilst the children are residing with them.
NOTATION:
That should either party have any issue or concern relating to the long term care, welfare or development of the children which they are unable to resolve with the other parent, the parents agree to seek mediation in the first instance;
PROPERTY ORDERS
(9)That in exchange for payment to her of the sum referred to in order (11) the wife transfer to the husband all of her right, title and interest in and to the property at Town H in the State of New South Wales;
(10)That the husband retain the following assets free from any and all claims of the wife:
(a)the Holden … motor vehicle in his possession at this date;
(b)the home unit situated at Suburb A in the State of New South Wales;
(c)any shares held in public companies by the husband at this date.
(d)the balance remaining on deposit in any bank account in which the husband has an interest including but not limited to:
(1)the bank account deposits of TG Specialist Services Pty Ltd including but not limited to the Westpac Banking Corporation Business Cheque Account Number …50;
(2)the contents of the Westpac Banking Corporation Money Market Fund Account held by TG Specialist Services Pty Ltd; and
(3)the contents of Commonwealth Bank Cash Management call account …70;
(11)That the husband pay to the wife within 60 days of this order the sum of $430,967.00.
(12)That the wife retain free from any and all claims of the husband:
(a)the property at Town P;
(b)the Holden … motor vehicle in her possession at this date;
(c)the furniture currently in her possession;
(d)the shares held in the following public companies by the wife at this date:
(1)Coles Myer Limited;
(2)Telstra Limited; and
(3)NRMA Limited;
(13)That the husband and wife do all things as are necessary to cause the superannuation benefits of the wife held in the self-managed superannuation fund to be rolled over into such fund as she shall direct and for that purpose the parties shall do all things necessary and bear any costs equally to:
(i)amend any Trust Deed;
(ii)instruct any Trustee;
(iii)roll over any benefits;
(iv)comply with applicable legislation;
(v)instruct any accountant; and
(vi)any other act or thing as the parties may be advised
whereupon the wife shall resign as a director of C Pty Ltd and transfer to the husband or his nominee all shares and other interests held therein;
(14)That in relation to the family photographs:
14.1the husband shall retain all slides, videos and family photograph albums;
14.2the wife shall retain the individual children’s photograph albums; and
14.2.1should either party require copies or duplicates of the items retained by the other then each party shall do all things necessary and bear all costs equally to facilitate the provision of such copies or duplicates to the other party;
(15)
15.1All documents necessary to transfer any property or give effect to any transaction pursuant to the terms of these orders be prepared by the party receiving such property or the benefit of such transaction;
15.2that the party receiving such property or the benefit of such a transaction be responsible for the payment of taxation, stamp duty, registration fees, legal costs and outlays in relation to effecting the transfer of any property or the receipt of any benefit of such transaction pursuant to the terms of these orders;
15.3that the husband and wife mutually release the other in respect of any actions, claims, suits, demands and debtors as against the other;
(16)That each party comply with all requisitions issued by the Office of State Revenue in relation to any document executed or transaction entered into pursuant to or to put into effect by these orders. In default of either of the parties complying with any requisitions so issued within 14 days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recover from the other party in default, the costs and outlays incurred in complying with the requisition, such costs to be calculated in accordance with the Family Law Rules;
(17)That in the event that any party to these orders refuses or neglects to comply with any or all of the provisions of these orders, the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed pursuant to 106A of the Family Law Act to execute all deeds and documents in the name of the husband and/or the wife and to do all acts and things necessary to give validity and operation to these orders;
(18)That unless otherwise specified in these orders and save for the purposes enforcing any monies due under these or any subsequent orders:
18.1each party be solely entitled to the exclusion of the other to all property (including choses-in-action in the possession of such party as at the date of these orders;
18.2insurance policies remain the sole property of the owner named therein;
18.3each party be solely liable to and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
18.4any joint tenancy of the parties in any real or personal estate is hereby expressly severed;
Spousal Maintenance
(19)That by way of lump sum spousal maintenance the husband pay within seven (7) days of the date hereof, the sum of $12,600.00.
NOTE: Pursuant to Section 77A:
(a)this is an order to which that section applies;
(b)the payment referred to in order (19) is attributable to the provision of maintenance for the wife.
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