DALBERG & SAFFEL
[2020] FCCA 848
•26 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALBERG & SAFFEL | [2020] FCCA 848 |
| Catchwords: FAMILY LAW – Parenting and property – assessment of best interests of children and just and equitable order for alteration of property interests – high conflict relationship. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79, 90XT, 106A |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 MRR v GR [2010] HCA 4 Stanford & Stanford [2012] HCA 52 |
| Applicant: | MS DALBERG |
| Respondent: | MR SAFFEL |
| File Number: | WOC 320 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 9 – 11 March 2020 |
| Date of Last Submission: | 11 March 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 26 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Solicitors for the Respondent: | M Russoniello Solicitor |
ORDERS
Parenting
The Mother have sole parental responsibility for the children X born in 2013 (“X”) and Y born in 2017 (“Y”) (collectively referred to as "the children") in relation to decisions relating to their care, welfare and development of a long-term nature including but not limited to:
(a)Education (both current and future);
(b)Health;
(c)Religion;
(d)Living arrangements;
(e)Issue of Australian Passport; and
(f)International travel.
In exercising her responsibility pursuant to Order 1, the Mother shall;
(a)Notify the Father, in writing, of any decision required to be made by her, and proposals she is considering;
(b)Notify the Father of the date by which such decision is required to be made;
(c)Provide the Father with as much notice as is possible in the circumstances relating to the decision to be made;
(d)Take into account any proposals or views expressed by the Father;
(e)Notify the Father, in writing, of the decision made; and
(f)Not be permitted to cause the children’s home to be relocated to a geographical area that would result in the practical implementation of the Orders for the children to spend time with their father to be rendered more difficult for them.
The Father shall provide to the Mother, in writing, his views or proposals in respect of the decision to be made, within the time reasonably requested by the Mother.
The Mother shall be at liberty to do all acts and things and sign all documents necessary to cause the children’s surname to be known as “Dalberg-Saffel”.
The children live with the Mother at all times other than when they are spending time with the Father in accordance with these Orders.
The Child X spend time with the Father as follows:
(a)In an alternating fortnightly cycle until 2023:
(i)In Week 1 on Wednesday from the conclusion of school (or 2:00pm if a non-school day) until 6:00pm during non-daylight saving hours or 7:00pm during daylight saving hours, with such time to be exercised in the Region A; and
(ii)In Week 2 from 1:00pm Saturday until the commencement of school (or 10:00am if a non-school day) Monday.
(b)Commencing in 2023 and thereafter in an alternating fortnightly cycle:
(i)In Week 1 on Wednesday from the conclusion of school (or 2:00pm if a non-school day) until 6:00pm during non-daylight saving hours or 7:00pm during daylight saving hours, with such time to be exercised in the Region A; and
(ii)In Week 2 from the conclusion of school (or 2:00pm if non-school day) Friday until the commencement of school (or 10:00am if a non-school day) Monday.
(c)During NSW school holiday periods, Orders 6(a)(i) and 6(b)(i) be suspended and in lieu thereof X shall spend time with the Father:
(i)From 2:00pm Wednesday until 6:00pm Friday;
(ii)Upon Y turning 6 years of age for one half of each gazetted New South Wales mid-year school holidays as agreed between the parties but failing agreement being the first half in each even numbered year and the second half of the school holidays in each odd numbered year thereafter and for each alternate week of the December/January school holidays.
(iii)Such other times as may be agreed between the parents in writing.
The Child Y spend time with the Father (to coincide with occasions when X is in the Father’s care pursuant to Order 6 herein) as follows:
(a)Until 2022, in an alternating fortnightly cycle:
(i)In Week 1 on Wednesday after school (or from not before 2.00pm on a non-school day or prior to Y commencing school) until 6:00pm during non-daylight saving hours or until 7:00pm during daylight saving hours with such time to be exercised in the Region A; and
(ii)In Week 2 on Saturday from 1:00pm until 6.00pm during non-daylight saving hours or until 7:00pm during daylight saving hours.
(b)Commencing 2022 and until Y turns 6 years of age, in an alternating fortnightly cycle as follows:
(i)In Week 1 on Wednesday:
(A)After school (or from not before 2.00pm on a non-school day) until 6:00pm during non-daylight saving hours or until 7:00pm during daylight saving hours with such time to be exercised in the Region A; and
(ii)In Week 2:
(A)From Friday from the conclusion of school (or 2:00pm on a non-school day) until 6:00pm during non-daylight saving hours or 7:00pm during daylight saving hours; and
(B)From 1:00pm Saturday until Sunday 6:00pm during non-daylight saving hours or 7:00pm during daylight saving hours.
(c)Commencing 2023 and thereafter, in an alternating weekly cycle as follows:
(i)In Week 1 on Wednesday from after school (or not before 2.00pm on a non-school day) until 6:00pm during non-daylight saving hours or until 7:00pm during daylight saving hours; and
(ii)In Week 2 from the conclusion of school (or 2:00pm if non-school day) Friday until the commencement of school (or 10:00am if non-school day) Monday.
(d)During NSW school holiday periods:
(i)Until 2022, in accordance with Order 7(a) above;
(ii)Commencing 2022 and until Y turns 6 years of age, Orders 7(b)(i) and 7(c)(i) be suspended during NSW school holiday periods and in lieu thereof Y shall spend time with the Father from 2:00pm Wednesday until 6:00pm Friday to coincide with X being in the Father’s care pursuant to Order 6(c)(i) herein.
(iii)Upon Y turning 6 years of age for for one half of each gazetted New South Wales mid-year school holidays as agreed between the parties but failing agreement being the first half in each even numbered year and the second half of the school holidays in each odd numbered year thereafter and for each alternate week of the December/January school holidays.
(iv)Such other times as may be agreed between the parents in writing.
The children shall spend time with the Father on special occasions (in lieu of Orders 6 and 7 herein) as follows:
(a)On Father’s Day from 9:00am until 5:30pm (with Y to be returned to the Mother’s care at 3:00pm until Father’s Day 2020);
(b)On the Father’s birthday if it occurs on a weekend from 9:00am until 3:00pm;
(c)On Orthodox Christmas from 10:00am until 5:00pm (with Y to be returned to the Mother’s care at 3:00pm until Orthodox Christmas 2020); and
(d)On Orthodox Easter from 10:00am until 5:00pm (with Y to be returned to the Mother’s care at 3:00pm until Orthodox Easter 2021).
Notwithstanding any Order to the contrary the children are to be in the Mother’s care and the Father’s time pursuant to Orders 6 and 7 be suspended on the following occasions:
(a)From 10:00am Christmas Eve (24 December) until 10:00am Boxing Day (26 December);
(b)Over the Easter weekend from 10:00am Good Friday until 4:00pm Easter Monday;
(c)On the weekend of Mother’s Day from 4:00pm Saturday until 4:00pm Sunday;
(d)On the Mother’s birthday from 9:00am until 6:00pm;
(e)In the event the first day of the resumption of the school term is to occur immediately following a weekend where the children are to be in the Father’s care then such time with the Father shall be suspended at 4:00pm on the Sunday immediately preceding the same and the Mother shall collect the children from the Father’s residence.
The Mother shall be at liberty to suspend the children’s time with the Father on up to 3 occasions per year for no more than 14 cumulative nights PROVIDED THAT:
(a)The Mother gives the Father no less than 6 weeks written notice of her intention to do so;
(b)Such time does not coincide with the special occasions referred to at Order 8 herein;
(c)Upon Y turning 6 years of age and thereafter such time does not limit the children’s school holiday time with the Father more than once each calendar year.
In the event the children’s birthdays fall on the weekend, the children shall spend time with the parent in whose care they are not otherwise in on such day from 2:00pm until 5:30pm.
Unless otherwise specified in these Orders, changeover shall occur at the Mother’s residence.
The Father shall be at liberty to have telephone communication with the children each Thursday between the hours of 5:00pm and 5:30pm should the children have not otherwise spent time with the Father on that day AND to give effect to this Order:-
(a)The Father will;
(i)Provide the children with a mobile telephone and data communications chip for the mobile telephone (if not already supplied); and
(ii)Keep the mobile telephone in credit;
(b)The Mother will;
(i)Ensure the mobile telephone is kept in a working condition;
(ii)Ensure that the mobile telephone is on and charged and available to accept the Father’s call when the Father is due to call; and
(iii)Facilitate the Father’s call.
The parents shall keep the other parent informed at all times in writing of their residential address, mobile telephone and if applicable landline number and of any changes within 24 hours of such change occurring.
In the event that the children or either of them suffers a medical emergency or significant illness in either parent's care that parent shall advise the other parent in writing at the first available opportunity of the following:
(a)The nature of the medical emergency or significant illness;
(b)The name, telephone number and address of any medical practitioner or health care professional who has provided treatment to the child;
(c)Diagnosis received;
(d)Prognosis; and
(e)Treatment rendered.
The Father is hereby authorised by this Order to receive directly from the children’s place(s) of education a copy of all reports, photos (at his cost), newsletters, and other documents or information normally provided to parents.
Without admissions, the parents are restrained by injunction from criticising or denigrating the other parent or members of the other parent’s family and/or household in the presence or hearing of the Children or in written correspondence to the children, and they shall both use their best endeavours to ensure that no other third party does so.
During the time that the children are spending time with or communicating with each parent, that parent shall:
(a)Respect the other parent’s privacy and not question the children about the personal life of the other party; and
(b)Speak of the other party respectfully and refer to the other parent as “Mum”, “Dad”, “Mummy” or “Daddy” as applicable.
Communication between the parents be restricted to the Our Family Wizard App/Website, unless otherwise agreed between the parents in writing providing that in the event of an emergency relating to the children, the parents shall contact each other parent on their mobile telephone.
The Father be restrained by injunction from:-
(a)attending or approaching the children’s school EXCEPT FOR functions/events that allow for parental attendance, pre-arranged parent/teacher interviews, or to facilitate changeover in accordance with his time with the children pursuant to Orders 6 - 8 inclusive herein;
(b)discussing these proceedings or the parental relationship in the presence or hearing of the children or in written correspondence (including but not limited to email, text message or any social media platform) to the children;
(c)contacting the Mother and/or the children unless as explicitly provided for by the provisions of Orders 13 and 15 herein;
(d)criticising or denigrating the Mother or members of the Mother’s family and/or household in the presence or hearing of the children or in written correspondence (including but not limited to email, text message or any social media platform) to or visible by the children;
(e)discussing these proceedings or any other Court proceedings involving the Mother and/or the children in the presence, hearing of, or in written correspondence (including but not limited to email, text message or any social media platform) to or visible by the children;
(f)showing, or allowing the children to access, documents prepared in relation to these proceedings or any other Court proceedings involving the Mother and/or children to the children;
(g)causing the children to otherwise become aware of any issue, fact or circumstance in relation to these proceedings or any other Court proceedings involving the Mother and/or the children;
(h)showing, or allowing the children to access, any emails or text messages exchanged between the parties from 1 August 2017 onwards.
The parents be granted leave to provide a copy of the Family Report prepared by Dr B dated 2 July 2019 to any counsellor, psychologist, psychiatrist, social worker or mental health practitioner attended upon by them.
Property
Within 42 days of the date of these Orders the Father shall pay to the Mother the sum of $200,000.
The parties are to do all acts and things and do all acts necessary to cause the former matrimonial property known as and situated at C Street, Suburb D in the State of New South Wales and being the whole of the land in title reference ...02 (“the C Street, Suburb D Property”) to be sold.
By way of implementation of Order 23 above, the parties do all things necessary to:-
(a)Appoint a Real Estate Agent to market the C Street, Suburb D property;
(b)Appoint a Solicitor/Conveyancer to act on the sale of the C Street, Suburb D property;
(c)Provide all necessary instructions to the Real Estate and Solicitor/Conveyancer to effect a sale of the property for the best price reasonably obtainable;
(d)Sign all documents necessary to facilitate the sale of the C Street, Suburb D property; and
In order to give effect to the sale of the C Street, Suburb D property in accordance with these Orders, the Father shall:-
(a)Ensure that the C Street, Suburb D property is maintained in a clean and tidy state;
(b)Make the C Street, Suburb D property available at all times at the request of the Real Estate Agent;
(c)Provide vacant possession on settlement of the sale of the C Street, Suburb D property; and
(d)Do all other acts and things required of him to facilitate the sale of the C Street, Suburb D property.
Upon the sale of the C Street, Suburb D property, the parties are to provide all necessary instructions to direct and cause the proceeds of sale to be disbursed in the following order and priority:-
(a)The payment necessary to discharge the mortgage secured over the C Street, Suburb D property;
(b)The payment of the Real Estate Agent’s selling costs and the legal costs associated with the sale;
(c)The payment necessary to adjust for any council and/or water rates;
(d)The payment to the Mother in the sum which amounts to 57.5% of the net non-superannuation assets as identified in the Reasons for Judgment dated 26 May 2020; and
(e)The balance thereafter to the Father, subject to Orders 28, 29 and 33 below.
Pending the sale of the C Street, Suburb D property, the Father shall:-
(a)Be restrained from doing any act or thing from dealing with his interest in the C Street, Suburb D property including but not limited to further encumbering the property and/or transferring his interest in the property;
(b)Continue to meet the mortgage repayments as and when they fall due;
(c)Continue to meet the Council and Water rates as and when such instalments fall due;
(d)Continue to maintain insurance over the property and meet the premium instalments as and when they fall due; and
(e)Ensure that the property is maintained in a clean and tidy state of repair.
In the event that the Father falls into default with respect to any of the payments he is required to make in accordance with Order 27 above and/or causes damage to the property requiring repair, then the arrears of such payments and/or the costs of making such repairs shall be met from the Father’s share of the proceeds of sale provided for in Order 26(e) above.
Simultaneous with the settlement of the sale of the C Street, Suburb D property the Father shall pay to the Mother such sum as is required to cause the Mother to receive 57.5% of the value of the matrimonial non-superannuation pool of property as may be determined by the Court but having regard to the actual sale price of the C Street, Suburb D property.
For the purposes of Order 29 above, the Mother shall retain sole ownership and possession, to the exclusion of the Father, to the following:-
(a)The sum of $200,000 as provided for in Order 22 above;
(b)Her bank accounts;
(c)Her motor vehicle;
(d)Her E Shares; and
(e)Her superannuation entitlements.
Upon compliance by the Father with Order 29 above, the Father shall retain sole ownership and possession, to the exclusion of the Mother, to the following:-
(a)The property at F Street, Suburb G, NSW and being the whole of the land contained in folio identifier ...48;
(b)The property at H Street, Suburb J, QLD;
(c)His interest in the business known as K Group;
(d)His bank accounts;
(e)His motor vehicles and boat; and
(f)His superannuation entitlements.
Pending the Father’s compliance with Order 29 above, sale of the C Street, Suburb D property, the Father shall be restrained from doing any act or thing from dealing with his interest in the property at F Street, Suburb G, NSW and/or the property at H Street, Suburb J, QLD including but not limited to further encumbering either property and/or transferring his interest in either property unless the same is for the express purpose of comply with Order 29 above.
In the event that the Father fails, refuses and/or neglects to comply with Order 29 then the following shall apply:-
(a)The Father’s share of the proceeds of the sale of the C Street, Suburb D property as provided for by Order 26(e), as so much as is required, shall be paid to the Wife on the settlement of the sale of the C Street, Suburb D property; and
(b)The Father shall do all acts and things necessary to thereafter cause the property at F Street, Suburb G, NSW to be listed for sale for the best price reasonably obtainable and upon the sale of the said property cause such payment to be made from the proceeds of sale to be paid to the Mother to give effect to Order 26(e) above.
The Court allocate, as required by Section 90XT(4) of the Family Law Act 1975 a base amount of $21,668.00 to the Mother out of the Father’s interest in the SUPER FUND L (member number: ...24).
Pursuant to paragraph 90XT(1)(a) of the Family Law Act 1975 whenever the Trustee of the SUPER FUND L makes a splittable payment out of the Father's interest in the Fund the Trustee shall:-
(a)pay to the Mother, or her legal personal representative, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)make a corresponding reduction in the entitlement the Father would have had in the SUPER FUND L but for this Order.
Order 34 has effect from the operative time.
The operative time for these Orders is 4 business days after service of the sealed Orders on the Trustee.
The Trustee of the SUPER FUND L shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 (Cth), the Trustee can calculate the entitlement of, and make payment to, the Mother in accordance with Order 34 of these Orders.
This Order binds the Trustee of the SUPER FUND L.
The parties shall each do all acts and thigs necessary and sign all documents required to give effect to these Orders.
In the event that either party fails, refuses and/or neglects to sign any document necessary to give effect to these Orders then the Registrar of this Court is authorised, upon application, to execute any documents necessary to give to these Orders pursuant to section 106A of the Family Law Act 1975 in lieu of the defaulting party and the defaulting party shall be liable to meet the reasonable costs of the other party in making such application to the Registrar.
The Father pay one half of the costs of Dr B’s fees associated with additional reading and cross-examination.
Liberty is granted to the parties to re-list this matter on 14 days’ notice by joint application to the Court in relation to the interpretation, implementation and enforcement of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Dalberg & Saffel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 320 of 2018
| MS DALBERG |
Applicant
And
| MR SAFFEL |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain the Orders that the Court has made in the dispute between these parents. The dispute included issues about how much time, and under what circumstances, the two children X who is 6 years old (also known as “X”), and Y who is 3 years old, should spend with their father. There was also a dispute about alteration of property interest between the parties, commonly known as a property settlement.
Background
Unless indicated to the contrary, what appears below represents findings of the Court based on all the evidence before it. The Applicant in this case is the Mother who is 35 years old. She describes herself as undertaking home duties and lives in a suburb of City M. The children live with her and spend time with their father, pursuant to an interim Order, the terms of which will be discussed below.
The Respondent is the children’s father. He will be 39 by the time these Reasons for Judgment are published. He lives in an area which is part of western Sydney, and describes himself as a self-employed tradesman.
The Father is of Country N background. He migrated to Australia from Country N in 1995 when he was about 14 years old. In about 1996, he commenced full-time employment with his father’s business known as K Group.
Before the parents met, the Father was in another relationship and, with his now former partner, they purchased a property in a suburb in western Sydney. That relationship ended in about 2006.
There is a dispute between the parents as to when their relationship commenced, and what sort of relationship it was. The Mother alleges that cohabitation commenced in about 2006 or 2007. The Father alleges that despite their marriage in 2010 the cohabitation, in fact, did not commence until 2012, when they moved into what is now the former matrimonial home in a suburb of western Sydney. This property will be described as the former matrimonial home. The Court will need to make findings about when the relationship commenced and what were the financial implications of this.
It is clear that the parents married in 2010. It is also clear from the evidence that the Father had taken over his father’s business by about 2007. When this Hearing commenced, it was the Father’s contention that the parents - even though they married in 2010 - did not commence cohabitation until they moved into the former matrimonial home in 2012.
He subsequently abandoned this contention during cross-examination, and agreed that cohabitation had started as at the date of the marriage. He steadfastly declined to admit that cohabitation, in fact, commenced much earlier. For reasons that will be set out below, the Court will find that the relationship commenced in 2007, and cohabitation commenced in 2007, probably from the time when the Mother moved into the property the Father owned with his former partner in western Sydney.
A number of financial transactions took place throughout their relationship and, where relevant, these transactions will be discussed in detail below. The Court will have to do the best it can because it was not always clear what was the source of moneys allegedly applied by the Father as contributions to this marriage.
X was born in 2013 and Y in 2017. Separation occurred on 4 August 2017. It is clear from the evidence of both parents, as well as the other evidence before the Court, that the relationship between the parents was at times before separation quite unhappy.
There was violence during the relationship. Close towards the end of the evidence, both the Solicitor Advocate representing the Father and Counsel for the Mother, acknowledged that it would be open for the Court to find that the parental relationship had elements of family violence to which the children had been exposed. They agreed that in circumstances where it was common ground between the parents that the children should live with their mother, and spend time with their father, there was no need for the Court to find which spouse was perpetrator and which was victim.
The Court considers this an appropriate admission and concession to make. Not much will need to be said about family violence, except insofar as it informs other considerations relevant to the Court’s decision about what is in the best interests of these children.
Not just was the relationship an unhappy one, but the parents agree, as is reflected in the abundant evidence before the Court as well as in the manner in which their cases were presented, that the relationship was highly conflictual, characterised by very poor communication, and chronic mistrust. Moreover, it is clear from all of the above sources that this continued to be the case in the post-separation period and continues to be the case today.
On 11 July 2018, the parties entered into consent Orders in which they agreed that they should have equal shared parental responsibility, that the children live with the Mother and spend time with their father in the manner specified in the order. These Orders, which represent the current orders, are reproduced in the First Schedule to these Reasons. The current regime for the Father to spend time with the children may be summarised as follows.
In week 1, X spends time with his father from 4:00pm Saturday until the commencement of school Monday, and in week 2 from after school on Wednesday until 5:30pm with such time to be spent in the City M area. Y would spend time with her father in week 1 from 4:00pm until 6:00pm Saturday, and in week 2 from 2:30pm Wednesday until 5:30pm on Wednesday, again with such time to be exercised in the City M area.
These Reasons for Judgment will deal with the parenting and property issues separately. The minutes of orders sought by each parent in their respective cases are reproduced in the Second and Third Schedules to these Reasons for Judgment.
The evidence before the Court
In the Mother’s case she relied on the following documents:
a)Initiating Application filed 27 March 2018;
b)Affidavit of Ms Dalberg sworn and filed 28 February 2020;
c)Affidavit of Dr O filed 28 February 2020 (not allowed);
d)Financial Statement of Ms Dalberg filed 28 February 2020; and
e)Notice of Risk filed 27 March 2018.
In the Father’s case he relied on the following documents:
a)Response filed 19 July 2018;
b)Affidavit of Mr Saffel affirmed and filed 28 February 2020;
c)Affidavit of Mr Saffel filed 19 July 2018;
d)Financial Statement of Mr Saffel filed 28 February 2020; and
e)Notice of Risk filed 19 July 2018.
The following material was tendered as evidence during the course of the proceedings:
a)The Applicant’s costs disclosure;
b)Family Report by Dr B dated 2 July 2019;
c)Father’s financial documents;
d)Boat registration papers;
e)Email chain dated 11 February 2020;
f)Affidavit of Dr O dated 24 February 2020;
g)Email to the Respondent from the Applicant in 2017;
h)Email Chain dated 2 March 2020;
i)Text message dated 5 March 2020;
j)Text message dated 6 March 2020;
k)The Respondent’s Cost Disclosure;
l)Email chain between real estate agent and the Respondent date 11 February 2020;
m)Documents produced pursuant to subpoena on NSW Police;
n)Documents identifying the Applicant’s address;
o)Respondent’s 2017 – 2019 tax returns;
p)Respondent’s Financial Statement dated 18 July 2018;
q)Respondent’s bank statements; and
r)Respondent’s tax returns prior to 2017.
The applicable law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Credit Issues
Ultimately, credit issues do not inform the outcome of the parenting dispute. The credit issues play a much more significant role in the financial dispute. A wide range of matters are taken into account by the Court in determining credit issues. For example, both parents were unresponsive during cross-examination, preferring to ignore or avoid answering the question they were asked but rather saying what they wanted to.
That this happened, for both of them, even after they were reminded to listen to the question and simply answer the question, did nothing to enhance the Court’s impression about their credibility. The unresponsiveness of both parents in cross-examination was not, however, in equal measure. Thus, for example, whereas the Mother was sometimes unresponsive, the Father was frequently, if not pervasively, unresponsive.
At times, it felt as if the Father had a message to the Court that he wanted to communicate his view of past, present and future events, permeated by emotion and subjectivity and often devoid of any objectivity. Insofar as the parenting case is concerned, the Father was very skilful in being able to answer questions about his children, and himself, by reference to the Mother, and what she had done wrong, or what were her faults.
These are, of course, issues of concern in the parenting application. However, they are also manifestations of a significant failure to cooperate with the process of the Court receiving evidence in an orderly fashion. It needs to be recorded that the Father’s behaviour in cross-examination conveyed an indifference to, and lack of cooperation with, the Court process itself.
In the financial aspect of the case, concerns about the Father’s credibility were magnified. He was not only pervasively unresponsive in cross-examination, but made a very significant inconsistent statement, that ultimately (in one example) led to a significant concession in his case. For example, at one point in cross-examination he contended that even after the date of marriage in 2010, the parents were not living together.
The Father, in fact, contended that cohabitation did not start until 2012 when they moved into what is now the former matrimonial home. Later on in cross-examination, however, he initially wavered, and then completely changed his position. Counsel asked the Father whether he was adamant that there was no cohabitation until 2012. Whereas, in an answer to the previous question referred to above he said words to the effect: “That’s what happened.” This time he wavered and said “I requested that.” Counsel then put it to him that what actually happened was the cohabitation was from 2007, and not 2012. The Father finally conceded that, in fact, words to the effect: “It was 2010 when we married.”
The date of cohabitation is a significant issue in determining what is a just and equitable property split between the parents. In many ways, it was a fundamental point. His insistence, on oath, that cohabitation did not commence until 2012 is significantly undermined by his ultimate concession that, in fact, it was 2010.
The Father’s stance about when cohabitation started is found to be opportunistic. The Court, in fact, will find the cohabitation started in 2007, a matter that will be discussed in due course. For present purposes, however, the Father’s credit is undermined by his insistence on a contention that he, himself, ultimately abandoned.
Concerns about the Father’s credit in the financial aspect of the case go beyond the matters set out above. The Father’s lack of or inadequate financial disclosure further raises issues in the Court’s mind about the Father’s credibility generally. It is clear to the Court that when all of the Father’s evidence is closely scrutinised there are at least three things that are very important to the Father: firstly, his children; secondly, his money; and thirdly, his character.
In short, these values permeated his evidence in cross-examination. Insofar as the matter relates to money, however, it is clear that the Father filed a Financial Statement on 18 July 2018 that was incorrect and misleading. It did not disclose any of the financial aspects of the property that the Father had purchased after separation in Queensland.
The Statement did not disclose his ownership, or the rental received or the liability pertaining to the property. The Court does not accept the Father’s explanations in cross-examination that he did not feel he needed to disclose a property acquired after separation because it was irrelevant, nor does the Court accept his explanation that the document was completed in a rush.
The same Financial Statement contained a misleading representation that the Father only owned a one-half share of the business previously owned by his father. Even the Father conceded in cross-examination that he owned a 100% share of that business since 2007, 11 years before the date of swearing this Financial Statement, but, moreover, the Father swore to the value of his interest in the business being nil when there was at least $11,000 in business bank accounts, and at best the net assets of the business amounted to $260,000.
The above is by no means the totality of the evidence in support of the Court’s concern about the Father’s credibility generally, but specifically in financial matters. Other examples will be given below, where appropriate. Indeed, the Court is left with a lingering impression that even now the Father’s actual financial circumstances are by no means transparent to the Court.
All of this leads the Court to the conclusion that it needs to be very careful about accepting any contention made by the Father unless it is corroborated in some other fashion, or is otherwise not put in contention by the Mother.
The parenting proceedings
Competing proposals
By way of summary, the Mother sought an order for sole parental responsibility. She sought an order that the children’s surname become known as Dalberg-Saffel. The Father consented to this. The Mother proposed that the children live with her, and the Father also consented to this. The major differences relate to what time the children spend with their father and, especially, the rate of progression in relation to Y. The question of the children’s time with their father, and how quickly it progressed, permeated not just time during school terms, but time during school holidays.
The Mother’s concerns about these issues can be summarised from her cross-examination. She was reluctant to increase the children’s time with their father “..due to the level of hate… poor communication… and what the children would be exposed to” in the Father’s care. The Court observes that this was quite a consistent theme of the Mother’s evidence both in chief and in cross-examination. The Court further observes that it is a belief genuinely held by the Mother. As it turns out, the Court will find that not only is it a belief genuinely held, but it is a belief based on fact.
The Father’s proposal was that the existing order for equal shared parental responsibility should be continued. He proposed, in effect, that the children’s time with him increase immediately, and progress to overnights (in the case of Y) at a much quicker rate than that proposed by the Mother and, indeed, Dr B, who was the Single Joint Expert in this case.
Indeed, the Father’s proposal did not differentiate between X and Y. Thus, on the Father’s proposal, Y would be spending time with her father from 2:00pm on Saturday until the commencement of school on Monday morning, each alternate weekend, as well as Thursday and Wednesday afternoons. Both children would spend the entire first week of each mid-year school holiday, and each alternate week of the December/January school holidays.
The Father’s case, again referred to several times by him in cross-examination, was that the Mother was trying to take away his role as a parent by limiting his time with the children. As the evidence below will demonstrate, the Father simply could not adopt a perspective that was child focused. He was very much focused on his needs and rights as a parent.
The evidence of the Single Joint Expert
Dr B was appointed, by consent, as the Single Joint Expert in this case. Her Report is dated 2 July 2019. Dr B is a forensic psychologist. Her Report was released to the parties on 8 July 2019, so they had ample time to consider its terms, to discuss it with their lawyers, and to reflect on the same.
Dr B noted a number of non-contentious matters. The Mother was living with the children in the home of the maternal grandparents in a suburb of City M. The Father lived in the former matrimonial home in a suburb of western Sydney. The homes are about 50 minutes, or 80 kilometres apart by road. The children were spending regular time with their father in accordance with an interim Order. He was paying child support. X was in kindergarten at a local school. The Mother was not employed at that time, but the Father owned and operated his own business, which he worked at six days of the week.
It should be noted that and these were matters that Dr B was made aware of, that by the time of the Hearing, Y had commenced at a day care centre, and the Mother was working on a part-time basis.
When Dr B interviewed the Mother, she observed that the Mother was concerned that the Father’s proposal to rapidly progress his time with the children was not necessarily child focused, particularly having regard to practicalities such as distance and the children’s differing developmental needs. She was aware of the need to insulate children from parental conflict, particularly at handovers. She was concerned that the Father did not show respect for her as a mother, and that this was causing her son in particular to have loyalty conflicts. The Mother explained that she found the Father to be non-negotiable and intrusive in his demands for time with the children.
When Dr B met with the Father, she noted that one of his biggest concerns was that his time with Y was too short, and thus did not allow them to engage in activities or to interact with his family. At paragraph 18, the Report records:
Despite agreeing that Y does not understand the concept of “tomorrow”, Mr Saffel did not appear to accept that the mother’s reluctance to progress his time could relate to any valid concerns about their daughter’s developmental readiness. (When asked if he had read the relevant child development literature he seemed taken aback, perhaps by the terminology. I offered to provide the AAIMH Guidelines for the overnight care of young children after separation, which were sent to each party’s solicitor 1 July 2019.) He made vague comments indicating that the mother’s motives in this matter were financial such as that “Ms Dalberg’s purse” was her main concern. Probing did not elicit supporting argumentation or specific details. He also asserted that he had made a handsome offer for the property settlement which Ms Dalberg had refused.
The Court notes with interest that the Father is recorded as accepting that Y did not understand the concept of “tomorrow”. Despite a number of pervasive but general concerns the Father expressed about Dr B’s Report, there was little cross-examination consistent with these concerns, and there was certainly no cross-examination about the issue in question. Moreover, Dr B’s observation that the Father could not accept that the Mother’s reluctance to progress the children’s time with him had a developmental basis, particularly in regards to Y, was palpably evident in the Father’s cross-examination.
Paragraph 19 of the Report states:
Prior to interview Mr Saffel had returned his intake form. One question probed his attendance at post-separation parenting course and key learnings. It struck me that Mr Saffel struggled to construe the impact the separation on his children and of the co-parenting relationship in any other terms but being deprived of his time with them. He stressed how important he was to the children. Further probing about Mr Saffel’s understanding of key concepts taught at such courses – specifically the need to discourage conversations which draw the child into adult conflicts, even when the child initiated the topic with a question – suggested to me that he was unwilling to take professional advice on this point. He told me he would not explicitly terminate inappropriate conversations with X, as he was advised although he claimed he sometimes changes the topic. He denied denigrating the mother.
Dr B’s observations resonate with the evidence. A pervasive theme of the Father’s evidence in cross-examination was that he was being deprived of time with the children, with scant or no reference to the implications on the children. As for her impression that the Father was unwilling to take professional advice, that was again manifest in his evidence. In particular, the Father made it quite plain in cross-examination that he did not think much of Dr B’s Report. Indeed, he openly expressed “...disappointment of her assessment of me…”
When he was asked whether Dr B “got it wrong”, he replied words to the effect, “…she did not have enough time to do a proper assessment”. When he was reminded that the contents of Dr B’s Report was based on what he told her as well as what the Mother told her, he responded words to the effect: “...I don’t believe she has recorded what I’ve said… her summary is inaccurate... she’s causing damage to my character by calling me a bad parent…”
Indeed, the Father’s lack of regard for Dr B’s independent expert evidence was reflected in an answer to a question put by Counsel about whether he had taken Dr B’s Report and its recommendations into account when formulating his proposal to spend time with the children. He explained words to the effect: “…not entirely, no...” It was suggested by Counsel that perhaps the Father had ignored certain parts of the Report, and he replied words to the effect: “I do not trust Dr B’s judgment as I do not know her…”
Dr B’s frank, and as it turns out accurate, depiction of the Father continues in paragraph 20:
The father- child observations preceded Mr Saffel’s individual interview. Mr Saffel looked tearful when I feedback X’s comments to the effect that he wanted family harmony and reunion. My aim in relaying X’s words was to gauge whether Mr Saffel understood the effect on a child of tense handovers between unfriendly parents. He said nothing to make me think that empathy for his son’s predicament inspired his tears, rather than his own sorrow and disappointed hopes about raising his kids in an intact family. His written and spoken discourse in response to questions probing his ability to mentalize about the motivated behaviour of children was platitudinous, shallow and characterological rather than developmentally contextualised. He exhibited little understanding of his children’s likely views or needs in areas of their lives which did not directly involve him. He completely disavowed any shortcomings as a parent. His reflectiveness as a parent is deemed to be poor.
The Father’s perspective on changeovers is referred to at paragraph 21:
Mr Saffel described handovers as “smooth.” He emails the mother when he is approaching the property and parks in the street. She brings the children down to him. There are no friendly greetings exchanged. She does not approach the car. Mr Saffel complained that previously Ms Dalberg used to start unpacking children’s equipment from his boot, but since he had started videoing her at each handover she had kept her distance. He expressed no awareness that adult tensions might be obvious to and unpleasant for children.
In cross-examination of both parents, there is extensive evidence about changeovers, some of which will be discussed below, as is relevant. With the greatest of respect, changeovers were far from “smooth”. For the Mother, they were stressful encounters. For the children, but especially X, changeovers were fraught with the risk of passive conflict escalating into active conflict.
Dr B notes that the Father raised no serious concerns about the Mother’s parenting capacity. To his credit, he accepted this and he repeated this in cross-examination. Indeed, he said that she was, words to the effect: “…a good mum.” As will be seen, whilst this is what he told Dr B, deposed to in his Affidavit, and confirmed in cross-examination, it clearly was not his actual belief. The email evidence that will be discussed below suggests that the Father’s actual views of the Mother are nothing like that which he told Dr B, or deposed to.
The impression formed by Dr B as at the end of her interview with the Father is found at paragraph 24 of her Report:
Overall Mr Saffel struck me as a being more rights-focused than child-focused, and as relatively immune to professional advice about how the developmental needs of children should be considered in managing their post-separation care. He has great confidence in his own ideas. No doubt Mr Saffel loves his children and wants the best for them (as he conceives it), but I am not convinced that they are real in his mind as separate individuals with views and needs which might conflict with his.
Dr B administered a number of psychological tests for both parents. One such test was the Parenting Alliance Measure (PAM), an instrument which measures parental teamwork. According to the Mother, the parenting alliance was dysfunctional. According to the Father, the parental alliance was normal. The Court observes this stark dichotomy was also apparent in cross-examination when the Father was asked about issues surrounding communication and cooperation.
The disjunct between what the Father was asserting to be good levels of cooperation and communication, and the abundant evidence the Court had heard (in the Father’s presence) to the contrary, was surprising and disconcerting. At paragraph 32, Dr B suggested that the Father’s PAM rating “were either delusional or motivated by the desire to make a good impression – probably the latter…” The Court would not go so far as to say that the Father was delusional in this regard, but, as previously observed, the disjunct between his stated view, and reality, was noticeable.
In relation to the PAM assessment, Dr B warned that if the Mother was painting an exaggeratedly negative picture of her faith in the Father’s capacity to work with her, then that would be a negative indicator for teamwork. By contrast, if this reflected her sincere concerns about the teamwork, then the Father’s contrasting and positive ratings indicated either that he was immune to feedback from her, or that he was dissembling for the assessment. What the Court is able to conclude from all the evidence is that the Mother was not, in fact, painting an exaggeratedly negative picture of her faith in the Father’s capacity for cooperation and communication.
The Court, of course, had the benefit of seeing the parents in the witness box over an extended period of time. With the benefit of this, as well as all the other evidence, the Court is able to unequivocally accept Dr B’s impression at paragraph 32 of her Report that the PAM results contraindicate significantly shared care or any arrangement requiring flexibility or frequent parental communication to negotiate logistics.
Dr B met with both children. Paragraphs 36 and 37 are relevant in this regard:
[36] In response to the question “Are your parents friends?” X replied that his mother and father were “not friends” and spontaneously produced a non-elicited separation narrative. He said “They were fighting over my tablet. Dad stayed. Mum left. Dad was about to go. I went with Mum. She called the police. The police said to stay. She ignored the rules. She made a wrong decision.” It struck me as improbable that X would spontaneously produce such a vividly recalled narrative about the events on the day of separation (including his parents being in conflict about his medication) when he was four. This suggests he has been inappropriately informed about the parental conflict – more likely by his father given the negative appraisal of his mother’s actions. In response to the ambiguous question “ What do you want?” X replied: “I want my family back.” Q: “Can your parents make this happen?” A: “No they’re being bad and silly.” Like many children in his age group, X harbours unrealistic hopes of family reunion. Such hopes make children vulnerable to manipulation and also to mistakes in thinking which harm self-esteem, including self-blame. If, as it seems, X blames both parents for keeping the argument going, this would be a good thing for his peace of mind.
[37] When Mr Saffel arrived, the children ran to the door to greet him enthusiastically. He returned their affectionate greetings warmly. The mother was sitting in the waiting room. The parents did not exchange polite greetings or acknowledge each other as the father and children passed the mother to enter my room. Mr Saffel was observed to interact with the children tenderly and appropriately – showing interest in their conversation and encouraging pro-social behaviour (such as re-directing X when he was clambering up behind an armchair). X tended to monopolise conversation with his father – unsurprisingly since he is a fluent speaker and his sister is not. At one stage Y seemed disposed to seek her mother (who was in the waiting area) but was easily and gently persuaded to stay put. When it was time to go, they separated from their father with exchanges of kisses and endearments, and without fuss.
In her evaluation, Dr B found that neither child was at risk of physical or psychological harm in the care of the parents. Concerns were expressed about the children’s exposure to conflict. Dr B was particularly concerned that the evidence suggested that the Father deliberately set out to undermine the Mother’s authority and to draw X into a loyalty conflict. The Court notes that the evidence did not go that far.
Dr B’s evaluation was that the Mother was the primary caregiver who provided the children with a secure base in the world, although both seem to feel safe and comfortable with their father. It was important to maintain strong affectional bonds with their father.
Curiously, in cross-examination, the Father was trenchantly resistant to accepting the notion that the Mother was the primary carer for the children. When this was put to him, he said words to the effect: “…those words do not sit well with me… it excludes my existence…” Counsel then suggested to him that the question did not contend that the Mother was the sole carer, rather that she was the primary carer for the children. The Father maintained that that was “…still the connotation.” He steadfastly refused to accept that the Mother was the primary carer.
This exchange that took place in cross-examination is further evidence of Dr B’s correct assertion of the Father as being rights focused. The Father seems to have received the question that was asked as a statement, or assertion of, the Mother’s rights, when it was really an assertion that historically the children had been cared for by their mother, more than by their father. Even on the Father’s evidence, that is clearly the case. It is noticeable that the Father’s response, set out above, referred to “me” and “my” and simply could not conceptualise that the question might invite an exploration from his children’s perspective, rather than his own.
The Father’s self-focus also manifested itself in cross-examination about his video recording of changeovers, another matter adverted to in Dr B’s Report. He did not deny that he was video recording changeovers. He denied that it was for forensic purposes. He did not accept that this might make the Mother uncomfortable, disputed that she would feel uncomfortable, and would not desist. At one point the Father said words to the effect, “..it’s quite strange that she feels that way..”. Again, and consistent with his denial that the Mother is the primary caregiver of the children, the Father was incapable of understanding the situation from a perspective other than his own.
Dr B found that neither parent suffered from a mental health disorder, but she did provide the following valuable, insightful, and as it turns out correct assessment about both parents. These observations are found at paragraph 41:
Each parent has intrinsic characteristics which may impede his/her optimal parenting, including maladaptive ways of dealing with anxiety. In Mr Saffel’s case, salient maladaptive strategies seem to be intrusive and coercive methods of conflict resolution, whereas in Ms Dalberg’s case she probably alternates craven appeasement with volatility when emotionally overwhelmed.
Later in that paragraph, Dr B expressed the view that it was unlikely that the Father would benefit from counselling as he was too defensive to openly self-disclose, and did not see himself as flawed in any way. This was borne out in cross-examination. The Father was unable to manifest capacity for self-reflection. When it was suggested that perhaps some form of therapy might assist him, he did not believe that it was necessary.
In relation to the co-parenting relationship, at paragraph 42 Dr B described this as “marred by strong hostility and deep distrust on both sides”. She went on to emphasise that open conflict in front of the children must be avoided, and is only currently managed by maintaining silence at handovers, “which must be tense and unpleasant for children”. Her view was that shared decision-making would probably not work well. She described the Mother as muddled in her thinking and unable to set firm boundaries (paragraph 42).
In relation to both parents, there was a degree of “self-righteous intransigence…based on what each party feels is owed to him/her as a consolation prize for dashed hopes and broken trust.” In any event, Dr B felt that a parenting arrangement which required direct, unmonitored or unfettered communication is contraindicated. In her view, the most suitable arrangement would minimise meetings and conversations.
Dr B considered the proposals of each parent, commencing from paragraph 44 and concluding at 51:
[44] Mr Saffel proposes extending his time with both the children immediately. Given the hostility between parents, it would be better to minimise handovers by having Friday pm – Monday am visits on alternative weekends, but the distance between the two homes makes a return before school Monday onerous. Equally, it is inconvenient for Mr Saffel to have daytime contact with Y on Saturday in the Region A and Saturday-Sunday contact with X in Suburb D, but the mother claims that Y is not developmentally-ready for overnight separations. It is my concluded opinion that it would not only be premature to immediately progress the father’s time as he proposes, but it would also be likely to degrade the quality of Y’s attachment to both her parents, and may cause her to regress developmentally.
[45] Research indicates that, the lower the “cooperation equipment” between the parents, the higher the “development equipment” a child needs (cf APPENDIX for AAIMH guidelines). In order to tolerate an overnight separation from the primary caregiver, at the very least a child should have the ability to clearly express her needs in language, to understand the concept of “ tomorrow” and find the secondary caregiver an acceptable substitute external stress-regulator for the primary caregiver. Given Y’s age, her poor language development, her limited time with her father to date and her limited opportunity to habituate to other separations from her mother, overnight separation would be premature, and stressful. All young children feel stressed when separated from their primary caregivers. Children feel less anxious when they can predict when a stressor will arise, and when it will end. Both parents agreed that Y does not understand the time-prediction concepts of “tomorrow” (let alone propositions such as “You will see Mummy after two sleeps”) which would permit her to be reassured by adults (and to reassure herself with self-talk) during a 1 or 2-night separation from her mother. These time concepts are attained by most children (with normal language development) between their third and fourth birthdays. The guidelines from the Australian Association for Infant Mental Health clearly set out the criteria by which a child’s readiness should be judged by parents.
[46] Australian research finds poor outcomes for children of high conflict parents when those kids must move frequently between the parents. The advice arising is
·Substantially shared care ( >5: 9 nights/14) is contraindicated for high conflict parents
·Reduce handovers, especially face-to-face (e.g. from/to school)
·There is nothing magical about the numbers of sleepovers per fortnight. It is the quality of the attachment relationship which confers most developmental benefit to the child.
·“The benefits to the second attachment relationship of frequent contact can be challenged and even outweighed by stressful execution of the contact, such as frequent or long-distance travel to reach the second parent, and conflict between parents” Family Court Review, special edition edited by Dr J McIntosh 49, no 3, July 2011
[47] Applying the insight quoted in the box above leads me to conclude that the father’s proposal is likely to cause the children more stress than benefit by fragmenting their time with him, and by increasing the number of transitions as well as road travel. The boxed insight also relates to telephone contact. The father’s proposal of unfettered contact at any time of his choice is too intrusive to be workable. It would engender distress in the mother which will be communicated to the children and which may impair her emotional availability to them. If the co-parenting relationship supported such open communication these parents would not be litigating. Their relationship is not amiable enough for such a proposal to succeed. Furthermore, it must be remembered that although telephone contact is not ordered to serve the parent’s needs, but for the child’s benefit, at a given time a telephone call may not be the meaningful communicative event for a pre-school child, which it is for the parent. Even if the children sometimes only say “Hi, Love you, Goodbye” (because they have no news to share or are not in the mood to chat) the call serves to ensure them of their father’s continuous interest which contributes to their (current and retrospective) lasting sense of family belonging.
[48] No doubt, like any separated father Mr Saffel misses his children and yearns for daily contact, but realistically that closeness was lost once he was unable to sustain a marital relationship with their mother. If Mr Saffel is dissatisfied with the length or content of conversations that is a problem which cannot be cured and must be endured. To the extent the telecommunication arrangement relies on the cooperation of the mother, neither the Court nor he can compel the smooth implementation of Orders. The best outcome for any separated father is to be achieved by establishing an amiable co-parenting relationship with his children’s mother. If that is impossible, he must accept that there are limits to what Orders can achieve.
[49] To the fullest extent that is possible, it would be better to make arrangements for telephone contact that were minimally intrusive into children’s routines and require minimal facilitation by the mother. Daily is far too often. Once or twice a week is adequate. Mr Saffel should call a dedicated phone which is only switched on at agreed times, when children are sure to be home (e.g. just after dinner) and which is answered by X. There is no need for the call to be on loudspeaker. The call is ended when the child ends it, whereupon the phone is turned off. There is no need for Mr Saffel to call Ms Dalberg - in fact it would be better if he was restrained by injunction from calling her, and all communication was routed through OFW.
[50] Ms Dalberg is an anxious mother, who believes Mr Saffel drips poison into the children’s ears (particularly X’s). This may well be so, but her only feasible antidote for negativity is to counter it with positive encouragement of the children’s critical thinking as they mature. She made a grave error of judgement in choosing, for the father of her children, a man she could not abide with until the children grew up. She will achieve greater peace of mind by accepting that those aspects of Mr Saffel’s character which she deplores are beyond her control than by persisting with futile attempts at appeasing him, influencing him or monitoring his conversations with the children.
[51] Even if he is as psychologically destructive as Ms Dalberg plausibly alleges, Mr Saffel is the children’s father and on current indicators his contact with the children is unlikely to be extinguished. Ms Dalberg depicts Mr Saffel as domineering, opinionated and self-righteous. Even if she is correct, these are common character flaws which many children encounter in one or other of their parents, and cannot hope to change. As these children mature, they must find their own ways of relating to their father just the way he is - eventually individuating from him psychologically in the transition through adolescence to adulthood.
At paragraph 45, Dr B refers to the AAIMH guidelines, which were in an appendix to her Report. As these guidelines were the subject of considerable cross-examination, it is useful to set them out at this juncture:
1. If parental separation occurs before birth or in the first years of a child's life, special consideration is needed to ensure the continuity of a healthy primary attachment, together, where possible, with the safe building or maintenance of a warm, available relationship with the second parent.
2. As this may be a very difficult time for all concerned, separated parents may need extra help to understand that frequent, fixed overnight shared-time parenting schedules during the first years, while well intentioned, may severely disrupt important developmental gains for their young child.
3. Under the age of two years, overnight separations from the primary parent create unique stresses for the infant. In the majority of circumstances, non-essential overnight separations during these critical months of development are not advisable. Thus, in general, but always guided by the unique needs of each infant, prior to the age of two years, overnight time away from the primary care-giver should be avoided, unless necessary. Day times away from the primary parent should be kept to manageable periods of time, which can gradually increase as the infant matures.
4. After the age of two years, important developmental indices will help to predict the extent to which a young child can manage regular overnight time away from the primary carer. Most children would not be expected to have the developmental capacity to do all of these things adequately until around three years. AAIMHI considers these interdependent indices to be centrally important:
4.1-The child should be able to:
a) at least in part calm him/herself when stressed and/or upset, and to use the second parent/care-giver to become soothed;
b )imagine the main caregiver even when that person is not present;
c) understand what is being said to him/her;
d) anticipate events beyond the here and now, i.e. to understand what "tomorrow" means;
e) communicate about past and future events, and verbally express his/her basic needs and feelings.4.2 Furthermore, the young child's parents should be able to:
a) have civil conversations together about the child;
b) adequately trust that each will care for the child responsibly;
c) contain any interpersonal conflict, especially on exchange of the child;
d) talk to the child positively about the other parent.4.3 The less 'cooperation equipment' parents bring to the task of effectively sharing the care of their young child, the more 'developmental equipment the young child needs to independently manage the situation. In Family Court populations, when conflict is high and parents do not cooperate over the care of their children, regular overnight stays should commence once the young child's ability to communicate and tolerate separation is consolidated — usually from the age of three years.
4.4 In child protection populations, when a parent experiences serious, chronic mental health and parenting difficulties that disorganize the baby’s attachment, regular respite including overnight time in the care of a reliable other care-giver may be important. In these circumstances overnight separation from a primary care-giver may be protective but needs to be determined on a case-by-case basis.
5. Whenever undertaken, overnight time away from the primary parent is best with a parent/care-giver who is already a source of security and comfort to the baby or young child. In separated families, this level of security is optimally established and maintained over the first few years via regular, 2-3 times per week daytime care-giving based contact that supports the baby's routines. By the time the child is at least in part able to self-soothe, consistently turns to the second parent for comfort, and is less reliant on the primary attachment relationship to co-regulate his/her stress states, then the child is more likely to manage a well-supported shared overnight arrangement between cooperative parents.
6. Care should be taken not to fragment an infant's schedule, for example with long day care plus frequent visits with a second parent. When practical, and when the second parent is already a source of comfort and security to the infant, day-time care by the second parent should be prioritized above time spent in group day care.
7. Generally, in the third to fourth year, when developmental, parenting and practical conditions are supportive, regular overnight care with the second parent may be gradually phased in, at low frequencies, and always with monitoring of the child's response.
8. Finally, in all scenarios, priority should be given to the child's emotional security which should be carefully monitored and responded to sensitively and thoughtfully.
That in the event X’s first day of primary school is to occur immediately following a weekend whereby the child X is to be in the father’s care, then on such occasion X’s time with the father shall be suspended at 4pm on the Sunday immediately preceding X’s first day of primary school and the mother shall collect X from the father’s residence at 4pm on such occasion.
That the parents shall;
a. Keep the other parent informed at all times in writing (to include text message) of their residential address and telephone number including mobile/landlines and of any changes within 48 hours of any change occurring;
b. Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the children;
c. Keep the other parent informed as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children AND this Order hereby authorises any treating medical practitioner to release the children’s medical information to the other parent;
d. Not discuss these proceedings in the presence or hearing of the children or in written correspondence to the children and they shall both use their best endeavours to ensure that no other third party does so.
10. During the time that the children are spending time with or communicating with each parent, that parent shall;
a. Respect the other parents privacy and not question the children about the personal life of the other party;
b. Speak of the other party respectfully and refer to the other party as “Mum”, “Dad”, “Mummy” or “Daddy” as applicable.
c. Not denigrate or insult the other parent, members of the other parent’s family and/or household in the presence or hearing of the children or in written correspondence to the children and use their best endeavours to ensure that no other person does so.
11. That the father have telephone communication with the children each Tuesday, Thursday and Friday between the hours of 5.30pm and 6.30pm should the children have not otherwise spent time with the father on that day AND to give effect to this Order
a. The father will;
i.Provide the children with a mobile telephone and data communications chip for the mobile telephone (if not already supplied);
ii.Keep mobile telephone in credit;
b. The mother will;
i.Ensure the mobile telephone is kept in a working condition;
ii.Ensure that the mobile telephone is on and charged and available to accept the father’s call when the father is due to call;
iii.Facilitate the father’s call.
12. That this Order be authority for the schools attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
13. That each parent is entitled to attend all events involving the children, including but not limited to;
a. Sporting fixtures;
b. Extra-circular activities which allow for parental attendance or participation;
c. Any organisation or club of which the children are a member;
d. School functions and events, parent/teacher interviews, school concerts and assemblies, swimming and sporting carnivals and other functions held at or organised by the school that allow for parental attendance or participation.
14. That within 14 days, the parties must contact R Counselling (City M) to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a post-separation parenting program.
15. In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Circuit Court.
16. That the parties are to cooperate with providing intake information and details to R Counselling and must attend the intake appointment at any reasonable location nominated by R Counselling and complete the assessment.
17. If assessed as suitable and R Counselling nominates counselling, or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
18. The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services AND provide any certificate of completion received to the other parent forthwith upon receipt of the same.
Schedule Two
Orders proposed by the Applicant Mother
Parenting
That the Mother have sole parental responsibility for the children X born in 2013 (“X”) and Y born in 2017 (“Y”) (collectively referred to as "the children") in relation to decisions relating to their care, welfare and development of a long-term nature including but not limited to:
1.1Education (both current and future);
1.2Health;
1.3Religion;
1.4Living arrangements;
1.5Issue of Australian Passport; and
1.6International travel.
That the mother shall be at liberty to do all acts and things and sign all documents necessary to cause the children’s surname to be known as “Dalberg-Saffel”.
That the children live with the mother at all times other than when they are spending time with the father in accordance with these Orders.
That the child X spend time with the father as follows:-
4.1In an alternating fortnightly cycle until 2023:-
4.1.1In Week 1 on Wednesday from the conclusion of school (or 3.00pm if a non-school day) until 5.30pm with such time to be exercised in the Region A; and
4.1.2In Week 2 from 2.00pm Saturday until the commencement of school (or 10.00am if a non-school day) Monday.
4.2Commencing in 2023 and thereafter in an alternating fortnightly cycle
4.2.1In Week 1 on Wednesday from the conclusion of school (or 3.00pm if a non-school day) until 5.30pm with such time to be exercised in the Region A; and
4.2.2In Week 2 from the conclusion of school (or 3.00pm if non-school day) Friday until the commencement of school (or 10.00am if a non-school day) Monday.
4.3During NSW school holiday periods that Orders 4.1.1 AND 4.2.1 be suspended and in lieu thereof X shall spend time with the father from 2.30pm Wednesday until 5.30pm Friday.
4.4Such other times as may be agreed between the parents in writing.
That the child Y spend time with the father (to coincide with occasions when X is in the father’s care pursuant to Order 4 herein) as follows:-
5.1Until 2022, in an alternating fortnightly cycle
5.1.1In Week 1 on Wednesday from not before 2.30pm until 5.30pm with such time to be exercised in the Region A; and
5.1.2In Week 2 on Saturday from 2.00pm until 6.00pm.
5.2Commencing 2022 and until Y turns six (6) years of age, in an alternating fortnightly cycle as follows
5.2.1In Week 1 on Wednesday from not before 2.30pm until 5.30pm with such time to be exercised in the Region A;
5.2.2In Week 2 on Friday from the conclusion of school until 5.30pm and 4.00pm Saturday (with the mother to deliver Y to the father’s residence) until the commencement of school (or 10.00am if non-school day) Monday.
5.3Upon Y turning six (6) years of age and thereafter, in an alternating fortnightly cycle as follows:-
5.3.1In Week 1 on Wednesday from not before 2.30pm until 5.30pm with such time to be exercised in the Region A; and
5.3.2In Week 2 from the conclusion of school (or 3.00pm if non-school day) Friday until the commencement of school (or 10.00am if non-school day) Monday.
5.4During NSW school holiday periods
5.4.1Until 2022, on Friday from 2.30pm until 5.30pm to coincide with the child X being in the father’s care pursuant to Order 4.3 herein.
5.4.2Commencing 2022 and until Y turns six (6) years of age, that Orders 5.2.1 and 5.3.1 be suspended during NSW school holiday periods and lieu thereof Y shall spend time with the father from 2.30pm Wednesday until 5.30pm Friday to coincide with the child X being in the father’s care pursuant to Order 4.3 herein.
5.5Such other times as may be agreed between the parents in writing.
That the children shall spend time with the father on special occasions (in lieu of Order 4 and 5 herein) as follows:-
6.1On Father’s Day from 9.00am until 5.30pm (with Y to be returned to the mother’s care at 3.00pm);
6.2On the Father’s birthday if it occurs on a weekend from 9am until 3.00pm;
6.3On Orthodox Christmas from 10.00am until 5.00pm (with Y to be returned to the mother’s care at 3.00pm); and
6.4On Orthodox Easter from 10.00am until 5.00pm (with Y to be returned to the mother’s care at 3.00pm).
That notwithstanding any Order to the contrary the children are to be in the mother’s care and the father’s time pursuant to Order 4 and 5 be suspended on the following occasions:
7.1From 10.00am Christmas Eve (24 December) until 10.00am Boxing Day (26 December);
7.2Over the Easter weekend from 10.00am Good Friday until 4.00pm Easter Monday;
7.3On the weekend of Mother’s Day from 4.00pm Saturday until 4.00pm Sunday;
7.4On the mother’s birthday from 9am until 6pm;
7.5In the event the first day of the resumption of the school term is to occur immediately following a weekend where the children are to be in the father’s care then such time with the father shall be suspended at 4.00pm on the Sunday immediately preceding the same and the mother shall collect the children from the father’s residence.
7.6That the mother shall be at liberty to suspend the children’s time with the father on up to three (3) occasions per year for no more than 14 cumulative nights PROVIDED THAT:
7.6.1The mother gives the father no less than six (6) weeks written notice of her intention to do so; and
7.6.2Such time does not coincide with the special occasions referred to at Order 6 herein.
That in the event the children’s birthdays fall on the weekend, the children shall spend time with the parent in whose care they are not otherwise in on such day from 2.00pm until 5.30pm.
That unless otherwise specified in these Orders, changeover shall occur at the mother’s residence.
That the father shall be at liberty to have telephone communication with the children each Thursday between the hours of 5.00pm and 5.30pm should the children have not otherwise spent time with the father on that day AND to give effect to this Order:-
10.1The father will;
10.1.1Provide the children with a mobile telephone and data communications chip for the mobile telephone (if not already supplied); and
10.1.2Keep mobile telephone in credit;
10.2The mother will;
10.2.1Ensure the mobile telephone is kept in a working condition;
10.2.2Ensure that the mobile telephone is on and charged and available to accept the father’s call when the father is due to call; and
10.2.3Facilitate the father’s call.
That the parents shall keep the other parent informed at all times in writing of their residential address, mobile telephone and if applicable landline number and of any changes within 24 hours of such change occurring.
In the event that the children or either of them suffers a medical emergency or significant illness in either parent's care that parent shall advise the other parent in writing at the first available opportunity of the following:
12.1The nature of the medical emergency or significant illness;
12.2The name, telephone number and address of any medical practitioner or health care professional who has provided treatment to the child;
12.3Diagnosis received;
12.4Prognosis; and
12.5Treatment rendered.
That the father is hereby authorised by this Order to receive directly from the children’s place(s) of education a copy of all reports, photos (at his cost), newsletters, and other documents or information normally provided to parents.
That, without admissions, the parents are restrained by injunction from criticising or denigrating the other parent or members of the other parent’s family and/or household in the presence or hearing of the children or in written correspondence to the children, and they shall both use their best endeavours to ensure that no other third party does so.
During the time that the children are spending time with or communicating with each parent, that parent shall:
15.1Respect the other parent’s privacy and not question the children about the personal life of the other party; and
15.2Speak of the other party respectfully and refer to the other parent as “Mum”, “Dad”, “Mummy” or “Daddy” as applicable.
That communication between the parents be restricted to the Our Family Wizard App/Website, unless otherwise agreed between the parents in writing providing that in the event of an emergency relating to the children, the parents shall contact each other parent on their mobile telephone.
That the father be restrained by injunction from:-
17.1attending or approaching the children’s school EXCEPT FOR functions/events that allow for parental attendance, pre-arranged parent/teacher interviews, or to facilitate changeover in accordance with his time with the children pursuant to Orders 4-6 inclusive herein;
17.2discussing these proceedings or the parental relationship in the presence or hearing of the children or in written correspondence (including but not limited to email, text message or any social media platform) to the children;
17.3contacting the mother and/or the children unless as explicitly provided for by the provisions of Orders 10 and 16 herein;
17.4criticising or denigrating the mother or members of the mother’s family and/or household in the presence or hearing of the children or in written correspondence (including but not limited to email, text message or any social media platform) to or visible by the children;
17.5discussing these proceedings or any other Court proceedings involving the mother and/or the children in the presence, hearing of, or in written correspondence (including but not limited to email, text message or any social media platform) to or visible by the children;
17.6showing, or allowing the children to access, documents prepared in relation to these proceedings or any other Court proceedings involving the mother and/or children to the children;
17.7causing the children to otherwise become aware of any issue, fact or circumstance in relation to these proceedings or any other Court proceedings involving the mother and/or the children;
17.8showing, or allowing the children to access, any emails or text messages exchanged between the parties from 1 August 2017 onwards.
That the parents be granted leave to provide a copy of the Family Report prepared by Dr B dated 2 July 2019 to any counsellor, psychologist, psychiatrist, social worker or mental health practitioner attended upon by them.
Property
That within 7 days of the date of these Orders the Husband shall pay to the Wife the sum of $200,000.
That the parties are to do all acts and things and do all acts necessary to cause the former matrimonial property known as and situate at C Street, Suburb D in the State of New South Wales and being the whole of the land in title reference ...02 (“the C Street, Suburb D Property”) to be sold.
That the Wife be appointed as Trustee for the parties to facilitate the sale of the C Street, Suburb D property.
That in the exercise of the obligations as Trustee for the sale of the C Street, Suburb D property, the Wife shall:-
4.1Appoint a Real Estate Agent to market the C Street, Suburb D property;
4.2Appoint a Solicitor/Conveyancer to act on the sale of the C Street, Suburb D property;
4.3Provide all necessary instructions to the Real Estate and Solicitor/Conveyancer to effect a sale of the property for the best price reasonably obtainable;
4.4Be authorised to sign all documents necessary to facilitate the sale of the C Street, Suburb D property; and
4.5Ensure that the Husband is kept informed with respect to all matters relating the sale of the property including but not limited the details of the listing, details of all offers made in relation to the C Street, Suburb D property, any intention of the Wife to accept an offer and all details relating to any settlement of the sale of the C Street, Suburb D property.
That in order to give effect to the sale of the C Street, Suburb D property in accordance with these Orders, the Husband shall:-
5.1Ensure that the C Street, Suburb D property is maintained in a clean and tidy state;
5.2Make the C Street, Suburb D property available at all times at the request of the Real Estate Agent;
5.3Provide vacant possession on settlement of the sale of the C Street, Suburb D property; and
5.4Do all other acts and things required of him to facilitate the sale of the C Street, Suburb D property.
That upon the sale of the C Street, Suburb D property, the Wife is to provide all necessary instructions to direct and cause the proceeds of sale to be disbursed in the following order and priority:-
6.1The payment necessary to discharge the mortgage secured over the C Street, Suburb D property;
6.2The payment of the Real Estate Agent’s selling costs and the legal costs associated with the sale;
6.3The payment necessary to adjust for any council and/or water rates;
6.4The payment to the Wife in the sum of 65% of the balance then remaining; and
6.5The balance thereafter to the Husband, subject to Orders 8, 9 and 13 below.
That pending the sale of the C Street, Suburb D property, the Husband shall:-
7.1Be restrained from doing any act or thing from dealing with his interest in the C Street, Suburb D property including but not limited to further encumbering the property and/or transferring his interest in the property;
7.2Continue to meet the mortgage repayments as and when they fall due;
7.3Continue to meet the Council and Water rates as and when such instalments fall due;
7.4Continue to maintain insurance over the property and meet the premium instalments as and when they fall due; and
7.5Ensure that the property is maintained in a clean and tidy state of repair.
That in the event that the Husband falls into default with respect to any of the payments he is required to make in accordance with Order 6 above and/or causes damage to the property requiring repair, then the arrears of such payments and/or the costs of making such repairs shall be met from the Husband’s share of the proceeds of sale provided for in Order 6.5 above.
That simultaneous with the settlement of the sale of the C Street, Suburb D property the Husband shall pay to the Wife such sum as is required to cause the Wife to receive 65% of the value of the matrimonial non-superannuation pool of property as may be determined by the Court.
That for the purposes of Order 9 above, the Wife shall retain sole ownership and possession, to the exclusion of the Husband, to the following:-
10.1The sum of $200,000 as provided for in Order 1 above;
10.2Her bank accounts;
10.3Her motor vehicle;
10.4Her E Shares; and
10.5Her superannuation entitlements.
That upon compliance by the Husband with Order 9 above, the Husband shall retain sole ownership and possession, to the exclusion of the Wife, to the following:-
11.1The property at F Street, Suburb G, NSW and being the whole of the land contained in folio identifier ...48;
11.2The property at H Street, Suburb J, QLD;
11.3His interest in the business known as K Group;
11.4His bank accounts;
11.5His motor vehicles and boat; and
11.6His superannuation entitlements.
That pending the Husband’s compliance with Order 9 above sale of the C Street, Suburb D property, the Husband shall be restrained from doing any act or thing from dealing with his interest in the property at F Street, Suburb G, NSW and/or the property at H Street, Suburb J, QLD including but not limited to further encumbering either property and/or transferring his interest in either property.
That in the event that the Husband fails, refuses and/or neglects to comply with Order 9 then the following shall apply:-
13.1The Husband’s share of the proceeds of the sale of the C Street, Suburb D property as provided for by Order 6.5, as so much as is required, shall be paid to the Wife on the settlement of the sale of the C Street, Suburb D property; and
13.2The Husband shall do all acts and things necessary to thereafter cause the property at F Street, Suburb G, NSW to be listed for sale for the best price reasonably obtainable and upon the sale of the said property cause such payment to be made from the proceeds of sale to be paid to the Wife to give effect to Order 9 above.
That the Court allocate, as required by Section 90XT(4) of the Family Law Act 1975 a base amount of $13,229 to the wife out of the husband's interest in the SUPER FUND L (member number: ...24).
That, pursuant to paragraph 90XT(1)(a) of the Family Law Act 1975 whenever the Trustee of the SUPER FUND L makes a splittable payment out of the husband's interest in the Fund the Trustee shall:-
15.1pay to the wife, or her legal personal representative, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
15.2make a corresponding reduction in the entitlement the husband would have had in the SUPER FUND L but for this Order.
That Order 14 has effect from the operative time.
That the operative time for these Orders is four (4) business days after service of the sealed Orders on the Trustee.
That the Trustee of the SUPER FUND L shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payment to, the wife in accordance with Order 14 of these Orders.
That this Order binds the Trustee of the SUPER FUND L.
That the parties shall each do all acts and thigs necessary and sign all documents required to give effect to these Orders.
That in the event that either party fails, refuses and/or neglects to sign any document necessary to give effect to these Orders then the Registrar of this Court is authorised, upon application, to execute any documents necessary to give to these Orders pursuant to section 106A of the Family Law Act 1975 in lieu of the defaulting party and the defaulting party shall be liable to meet the reasonable costs of the other party in making such application to the Registrar.
That the Husband pay one half of the costs of Dr B’s fees associated with additional reading and cross-examination.
That the Husband pay the Wife’s costs of and incidental to these proceedings.
Schedule Three
Orders proposed by the Respondent Father
Final Orders Sought:
- That the Father and Mother have equal shared parental responsibility of the children X, born in 2013 (“X”) and Y, born in 2017 (“Y”) (collectively referred to as “the children”) in relation to decisions relating to their care, welfare and development of a long term nature including but not limited to:
a) Education (both current and future);
b) Health;
c) Religion;
d) Living arrangements;
e) Issue of Australian Passport; and
f) International travel.
- That the children live with the mother as follows:
(a) At all times that the children are not spending time with the father;
(b) On Mother's Day and on the mother's birthday from 9am until 6pm;
(c) From 9am Christmas Eve until2pm Christmas Day;
(d) From 6pm Easter Saturday until 5pm Easter Monday;
(e) At such other times as agreed in writing.
- That the children spend time with the Father as follows:
In an alternating fortnightly cycle
a)In Week 1 on Thursday afternoon from the conclusion of school (or 2:30pm until 6:00pm, with the Father collecting the children from the commencement of time and the children collected by the Mother at the conclusion of the time from City M area with the Father to notify the Mother 1 hour in advance as to the pick up location;
b)In Week 1 from 2:00pm Saturday afternoon until the commencement of school on Monday morning (or 10:00am if a non school day), Father to drop X to school and Y to the Mother’s residence before 10:00am at the conclusion of the time until such time as Y commences school and from thereafter the Father will drop Y at school at the commencement of school;
c)In Week 2 on Wednesday afternoon from the conclusion of school (or 2:30pm if a non school day) until 6:00pm, with the Children to be collected by the Father from the commencement of time and the children collected by the Mother at the conclusion of the time from the City M area, with the Father to notify the Mother 1 hour in advance as to the pick up location;
d)During NSW school holidays that orders 3(a) to (c) be suspended and that the children spend time with each parent as agreed in writing but failing agreement:
(i)For the first week of each school holiday commencing at 9:00am on the first Monday and ending at 4:00pm on the Sunday for the non-summer holidays; and
(ii)On a week about basis for the summer school holidays commencing at 9:00am on the first Monday and ending at 4:00pm on the Sunday;
(iii)The father to collect the children from the mother’s residence and the mother will collect the children from the father’s residence.
- That the Children spend time with the Father on special occasions (in lieu of Order 3 above) as follows:
a) On Father’s Day from 9:00am until 6:00pm;
b) On the Father’s birthday from 9:00am until 6:00pm on a non-school day or from the conclusion of school until 6:00pm on a school day, with the Father to collect the children at the commencement of the time from the Mother’s residence or school and drop the children off at the conclusion of the time to the Mother’s residence.
c) On the Children’s Birthdays from 12:00pm till 7:00pm on a non school day or from the conclusion of school until 7:00pm on a school day, with the Father to collect the children at the commencement of the time from school on a school day or the Mother’s residence on a non school day and drop the children off at the conclusion of time at the Mother’s residence.
d) On Australian Christmas Day from 12:00pm until 6:00pm (with Y and X) Father to collect the children at the commencement of the time from the Mother’s residence and drop the children off at the conclusion of the time to the Mother’s residence.
e) From 2:00pm on Good Friday until 6:00pm on Easter Sunday (with Y and X). The Father to collect the children at the commencement of the time from the Mother’s residence and drop the children off at the conclusion of the time to the Mother’s residence.
f) On Orthodox Christmas from 9:00am until 6:00pm with the Father to collect the children from the Mother’s residence at the commencement of time and the Mother to collect the children from the Father’s residence at the conclusion of time.
g) On Orthodox Easter from 10:00am until 6:00pm with the Father to collect the children from the Mother’s residence at the commencement of time and the Mother to collect the children from the Father’s residence at the conclusion of time.
h) On public holidays falling on a Monday, from 9.00 am till 6.00 pm with the Father to collect the children at the commencement of the time from the Mother’s residence and the Mother to collect the children at the conclusion of the time from the Father’s residence or as otherwise agreed between the parties.
- (a) That the Father have telephone contact with the children daily between the hours of 4:00pm and 7:30pm when the Children are not otherwise in his care with the Father to notify the Mother 30 minutes prior but not limited to any day in particular, with the Mother to allow sufficient call talk time with each child and not on loud speaker;
(b) The mother will:
(i) Ensure the mobile telephone is kept in a working condition;
(ii) Ensure that the mobile telephone is on and charged and available to accept the father's call when the father is due to call;
(iii) Facilitate the father's call.
- That the parents shall:
(a)Keep the other parent informed at all times in writing (to include text messages) of their residential address and telephone number including mobile/landlines and of any changes within 24 hours of any change occurring;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorize those practitioners to provide the other party with information that they are lawfully able to provide about the children;
(c)Keep the other parent informed as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children AND this Order hereby authorizes any treating medical practitioner to release the children’s medical information to the other parent;
(d)Not discuss these proceedings in the presence or hearing of the children or in written correspondence to the children and they shall both use their best endeavors to ensure that no other third party does so.
- In the event that the children or either of them suffers a medical emergency or significant illness in either parent’s care that parent shall advise the other parent in writing at the first available opportunity.
- That this Order be authority for the schools attended by the children to give each parent
1. information about the children's educational progress and other related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent's cost).
- That each parent is entitled to attend all events involving the children, including but not limited to:
(a) Sporting fixtures;
(b) Extra-curricular activities which allow for parental attendance or participation;
(c) Any organization or club of which the children are a member;
(d) School functions and events, parent/teacher interviews, school concerts and assemblies, swimming and sporting carnivals and other functions held at or organized by the school that allow for parental attendance or participation.
- That the parents be granted leave to provide a copy of the Family Report prepared by Dr B dated 2 July 2019 to any counsellor, psychologist, psychiatrist, social worker or mental health practitioner attended by them.
Notations:
A. The father requires flexibility as to the mother’s collection point for the children. The children are in the father’s care for an extended period of time and the father wishes to ensure the children are adequately accommodated. The father must be able to take the children to his residence in C Street, Suburb D if for example, if the weather is poor, the children are not well or for any other reason which would make it more comfortable for the children to be cared for in the father’s home rather than public areas.
B. It is intended that once the children start school the Father will collect the children from school when he is spending time with the children from the conclusion of school and will drop the children to school when his time with the children is concluding at the commencement of school.
PROPERTY ORDERS
Within 42 days from the date of these Orders, the Respondent Husband do all acts and things and sign all such documents necessary to transfer to the Applicant Wife all his right, title and interest in the property known as C Street, Suburb D, being the whole of the land more particularly described in Certificate of Title Folio Identifier ...02 “The C Street, Suburb D Property”.
That, simultaneously with the transfer in Order 1 the Wife shall pay the Husband $226 560.00 (the sum).
That simultaneously with the transfer in Order 1 the Wife shall do such acts and things and execute all documents necessary to discharge at her cost and expense the mortgage to Westpac secured over the C Street, Suburb D property and refinance such loan into the Wife’s sole name. The Husband to join in the discharge of the mortgage by signing the necessary discharge authorities.
In the event that the Wife is unwilling or unable to comply with the provisions of orders 2 and 3 above within 90 days of the date of these orders, then the parties shall do all acts and things and sign all documents necessary to offer for sale by either private treaty or by auction the C Street, Suburb D Property, as the parties shall agree in writing, and to give effect to the sale the parties shall:
(a)Immediately place the property for sale with an agent as agreed by both parties and failing agreement as shall be appointed by the President of the Real Estate Institute of New South Wales or nominee on the application of either party.
(b)Execute all documents required by the agent for the sale of the property.
(c) Request the agent to recommend a listing price (for sale by private treaty) or a reserve price (for sale by auction) be placed on the property.
(d) Agree on the listing price or the reserve price, and if the parties cannot agree, then the listing price or reserve price shall be set by the nominee of the President of the Real Estate Institute of New South Wales on the application of either party.
(e)Pay to the agent any sums which are requested for advertising expenses in relation to the sale of the property.
(f) If sale by auction, attend at the auction and negotiate with the highest bidder if the reserve price is not reached and accept the advice of the agent as to the acceptance of a price less than the reserve price but in any event, shall accept a price that is not less than 90% of the reserve price.
(g)Co-operate with the agent in relation to the auction including making keys available, allowing inspection of the property at times requested by the agents and ensuring that the property is in a neat and tidy conditions at the time of inspection by prospective purchasers.
(h)Execute all documents (including a Contract of Sale) necessary to complete the sale.
The parties shall appoint a solicitor to have the primary conduct of the sale on behalf of both parties, and failing agreement, the Husband shall propose the names of three solicitors and the Wife shall choose one and any costs properly payable to that solicitor shall be and form part of the legal costs of sale and be deducted from the proceeds as provided herein.
Neither party may confer on any agent any right to any sole or exclusive agency in respect of the property or to any commission without the written consent of the other party and any such appointment shall be of no effect.
8. That upon completion of the sale of the property, the proceeds of sale shall be paid in the following manner and with the following priority:
(a)All costs and expenses of sale including legal costs and disbursements, agents commission, valuation and nomination costs, and auction expenses (including repayment of any such expenses as have been paid by the Husband in relation to the sale).
(b)The amounts required to pay all municipal and water rates outstanding with respect to the Property.
(c)To discharge the Westpac mortgage;
(d) The net balance remaining to be paid as follows:
65% to the Wife; and
35% to the Husband.
9. Pending the sale of the property:
(a)The Husband shall have the sole right to occupy the property and during such right of occupation the Husband shall be responsible for all rates and outgoings of the property as they fall due up to and including the completion date.
(b) Neither party shall encumber the property without the consent in writing of the other party.
As between the Husband and the Wife, subject to these orders, the Husband and the Wife shall each respectively retain all interest in and entitlement to:
(a)All other real and personal property now in his/her respective ownership, possession or control;
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
(c) All interests in life insurance policies and superannuation funds standing in his/her sole name respectively;
(d) All interests in any business to which either party has an interest in;
(e) All other property and/or financial resources now or in the future.
11.Except as specifically provided by all these orders to the contrary, the Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband.
12.Except as specifically provided by all these orders to the contrary, the Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.
13.Except as specifically provided for by any order comprised in these orders to the contrary, each of the Husband and the Wife release the other from all debts owing from one to the other.
14.Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these orders.
15.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 1975 (Cth) 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 upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Costs
The Wife pay the Husband’s costs.
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Injunction
-
Costs
-
Remedies
-
Jurisdiction
-
Procedural Fairness
0