DARCY & SAMPSON
[2009] FMCAfam 1300
•11 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARCY & SAMPSON | [2009] FMCAfam 1300 |
| FAMILY LAW – Child – parenting arrangements for child aged 3 years of age – parties separated when child was an infant – parties agree presumption of equal shared parental responsibility applies – whether division of time child spends with each parent should be expressed as live with/live with order or spend time with order – best interests. FAMILY LAW – Property – assessment of contributions – short marriage – parties’ financial position has deteriorated during marriage – how debts should be distributed between parties – assessment of section 75(2) factors – just and equitable. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA, 65DAC; 65DAE; 75(2); 79(2); & 79(4) |
| Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-335 Clauson v Clauson (1995) FLC 92-595 Wardman & Hudson (1978) FLC 90-466 Biltoft & Biltoft (1995) FLC 92-614 C & C (2005) FLC 93-220 Pierce & Pierce (1999) FLC92-844 Waters & Jurek (1995) FLC 92-635 Russell v Russell (1999) FamCA 187 D & D [2003] FamCA 473 Silas & Barry [2009] FMCAfam 448 Aleksovski (1996) FLC 92-705 Ferraro & Ferraro (1992) 16 FamLR 1 Bright v Bright (1995) FLC 92-570 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR DARCY |
| Respondent: | MS SAMPSON |
| File Number: | ADC 576 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 8 September 2009 |
| Date of Last Submission: | 8 September 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 11 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Howe Martin & Associates |
| Counsel for the Respondent: | Ms Croydon |
| Solicitors for the Respondent: | Croydons |
The following notations are made at the direction and with the consent of each of the parties:
It is noted that the parents of [X] agree that her needs, requirements, interest and relationships will change from time to time as she grows and develops.
It is further noted that the parties agree and acknowledge that they intend to ensure that [X] has a substantial and ongoing relationship with both of her parents and other family members.
It is further noted that the parties agree that [X] will be educated at a school under the auspices of the Roman Catholic Department of Education and that in the event of disagreement between the parties they will endeavour to attend mediation to discuss such disagreements.
ORDERS
IT IS ORDERED BY CONSENT:
The parties have equal shared parental responsibility for the child [X] born [in] 2006 (hereinafter referred to as “the child”).
IT IS FURTHER ORDERED:
The child will live with each of her parents as follows:
A.With the father:
(a)Until the child attains the age of four years (1 November 2010):
(i)From 10:00am Saturday until 8:00am the following Monday on alternate weekends;
(ii)Each week from 2:00pm until 6:00pm on Wednesday.
(b)Between the period when the child attains four years of age and when she commences her primary school education:
(i)From 10:00am Saturday until 6:00pm the following Monday on alternate weekends;
(ii)Each week from 2:00pm on Wednesday until 9:00am the following Thursday.
(c)Once the child has commenced her primary school education:
(i)From after school on Friday until the commencement of school the following Monday on alternate weekends;
(ii)Each week during school terms from after school on Wednesday until the commencement of school the following Thursday.
IT IS FURTHER ORDERED BY CONSENT
(d)In addition the child live with the father for the following periods:
(i)On [X]’s birthday for a period of not less than four (4) hours the hours to be agreed between the parties, and failing agreement from 10:00am until 2:00pm;
(ii)On Father’s Day (if [X] is not already with the father) from 10:00am until 6:00pm;
(iii)On the father’s birthday (if [X] is not already with the father) for a period of not less than four (4) hours as agreed between the parties, and failing agreement from 10:00am until 2:00pm;
(iv)On days of celebration of the father or member of his family as may be agreed between the parties with this arrangement to continue after [X] commences her junior primary school education;
(v)At Easter 2010 and each alternate year thereafter from 6:00pm Maundy Thursday to 6:00pm Easter Saturday with this arrangement to continue after [X] commences her junior primary school education;
(vi)At Easter 2011 and each alternate year thereafter from 6:00pm Easter Saturday to 6:00pm Easter Monday with this arrangement to continue after [X] commences her junior primary school education;
(vii)From 3:00pm on 25 December 2009 until 5:00pm on 26 December 2009 and each alternate year thereafter with this arrangement to continue after [X] commences her junior primary school education;
(viii)From 2:00pm on 24 December 2010 until 3:00pm on 25 December 2010 and each alternate year thereafter with this arrangement to continue after [X] commences her junior primary school education;
(ix)On [X]’s birthday for a period of not less than four (4) hours on the day immediately preceding or proceeding [X]’s birthday (if [X] is not otherwise with her father), with the father to nominate which day not less than seven (7) days prior to [X]’s birthday, and in the event of the husband not nominating a day, then on the day preceding [X]’s birthday.
(x)For the period of [X]’s first year at school, during each short term school holiday period for periods of five (5) consecutive days and for three (3) such periods of five (5) consecutive days during the Christmas school holidays occurring during the first year of [X]’s formal education the periods during the Christmas school holidays to be agreed and failing agreement to be during the first, third and fifth weeks of the school holiday period and failing agreement from 10:00am Monday to 6:00pm Thursday in those weeks.
(xi)Upon [X] having completed a year of her formal education, then for one half of each holiday period as agreed between the parties and failing agreement, during the short term school holidays from 6:00pm on the last day of school to 6:00pm on the second Saturday of the school holiday or such other day as shall be the mid-day of the school holiday period and during the Christmas school holidays on an alternating weekly basis as may be agreed between the parties with changeover being at 6:00pm each Friday and with the father having the first week of the school holiday period each year, unless otherwise agreed between the parties.
It is noted that the specific periods ordered over the Christmas period each year shall take priority over this paragraph and there shall be no adjustment between the parties with respect to the Christmas days taken by each party pursuant to the provisions of this order.
(xii)Such further or other times as may be agreed between the parties.
B.With the mother at all other periods including the following:
(a)On Mother’s Day even if this is a day otherwise specified to be a day on which [X] is to live with the father;
(b)On the mother’s birthday each year, even if this is a day [X] otherwise spends with the father;
(c)from 2:00pm 24 December 2009 to 3:00pm on 25 December 2009 and each alternate year thereafter and from 3:00pm on 25 December 2010 until 5:00pm on 26 December 2010 and each alternate year thereafter.
The child communicate with the father by the father telephoning the mother’s mobile on Tuesday of each week between 5:30pm and 6:00pm.
The mother facilitate [X] telephoning her father, if [X] wishes to contact her father, at all reasonable times.
That any handover not occurring at the said child’s kindergarten or school shall occur as follows:
(a)Wherever possible, the father shall collect the child from the mother’s house at the commencement of the time he is to spend with [X] and if he is not available his agent;
(b)Wherever possible the mother shall collect [X] at the conclusion of the time the father spends with [X] from the father’s house and if she is not available her agent.
If [X] suffers from serious illness or accident, the parent in whose care the child then is, shall advise the other of the same as soon as possible.
The mother shall keep the father informed of [X]’s health, education and social progress from time to time, and not less than quarterly.
Both parents shall be at liberty to arrange with the kindergarten/school, which [X] attends from time to time, for the provision of copies of school reports/assessments/newsletters of [X] and any other information generally available to parents from time to time.
Both parents shall be at liberty to attend [X]’s kindergarten/school from time to time to check on her progress and to attend functions to which parents are invited (whether the child is at that time with him or her or not) and attend at all other reasonable times at the school and to attend at [X]’s sporting events or other activities in a public forum.
Each party shall provide the other with his or her current residential address and a current telephone contact number from time to time.
Each party is restrained and an injunction is hereby granted restraining each of them from changing [X]’s principal place of residence from the metropolitan area of Adelaide without the prior written consent of the other or an order of this court.
In the event of either party planning to take the child interstate, that parent shall advise the other in writing, not less than 14 days prior to the commencement of the planned period away, or such shorter period in the case of an emergency as soon as the decision of travel interstate is made, of the period, including commencement and conclusion dates, destination and contact telephone numbers during the proposed period of the absence.
Each party is restrained and an injunction is hereby granted restraining each of them from denigrating the other in the presence or hearing of the child or remaining in the presence of any other person who denigrates the other party directly to the child or in her hearing.
In full and final settlement of all applications for settlement of matrimonial property:
IT IS ORDERED
Within forty-five days (45) of the date of these orders the husband pay to the wife the sum of $43,300.00.
Contemporaneously with the payment referred to in order 1 hereof the husband do all acts necessary and sign all documents at his sole expense to discharge the mortgage to the Commonwealth Bank in the parties’ joint names which is secured against the property known as and situate at Property R in the State of South Australia and being the whole of the land contained in Certificate of Title Register Book Volume [1] (hereinafter referred to as “the Property R property”).
The husband is hereby declared to be the beneficial owner of the Property R property and the wife is hereby declared to have no estate or interest either at law or in equity in the property.
It is a condition of order (3) hereof that the husband pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from his ownership and occupation of the Property R property and is to keep the wife indemnified against all such liabilities.
The wife is hereby declared to be the beneficial owner of the property known as and located at Property S in the State of South Australia and being the whole of the land comprised in Certificate of Title Register Book Volume [2] (hereinafter referred to as “the Property S property”) and the husband is hereby declared to have no estate or interest either at law or in equity in the property.
It is a condition of order (5) hereof that the wife pay all necessary outgoings including rates, taxes and mortgage payments as they fall due arising from her ownership and occupation of the Property S property and is to keep the husband indemnified against all such liabilities.
The husband return to the wife her stamp collection within forty-five (45) days of the date of these orders.
The wife return to the husband his gold watch, the gold bracelet and gold necklace, which were gifts from the husband’s mother within forty-five (45) days of the date of these orders.
Pursuant to section 90MT(4) of the Family Law Act1975 a base amount of $13,000.00 be allocated to the wife in respect of the husband’s superannuation interest in the CBUS Superannuation Fund and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.
The trustee of the CBUS Superannuation Fund, the husband and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to calculate the payment entitlement of the wife in accordance with order (22) hereof.
Order (22) of these orders have effect from the operative time which shall be on 15 January 2010.
The solicitor for the wife serve a copy of these orders on the trustee of the CBUS Superannuation Fund and the trustee and the parties be given liberty to relist the matter on giving seven (7) days written notice if the trustee is unable to comply with the order herein.
The husband retain as his sole property without any claim from the wife:
(a) His personal effects and clothing currently in his possession;
(b)His furniture, furnishings and household effects currently in his possession;
(c) All motor vehicles registered in his sole name;
(d)The Property R property to which he is legally and beneficially entitled; and
(e)All insurance policies, superannuation entitlements and moneys standing in his name in any bank or financial institution other than the superannuation interest referred to in order (9) above.
The wife retain as her sole property without any claim from the husband:
(a)Her personal effects and clothing currently in her possession;
(b)Her furniture, furnishings and household effects currently in her possession;
(c) All motor vehicles registered in her sole name;
(d)The Property S property to which she is legally and beneficially entitled; and
(e)All insurance policies, superannuation entitlements and moneys standing in her name in any bank or financial institution.
All applications herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Darcy & Sampson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 576 of 2008
| MR DARCY |
Applicant
And
| MS SAMPSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Darcy “the husband” and Ms Sampson (formerly Darcy) “the wife”.
The parties married [in] June 2006, after having met in September of 2004. They did not live together prior to their marriage. The marriage produced one child. She is [X] born [in] 2006. The parties separated on 31 December 2007.
These proceedings are concerned with final arrangements for [X]’s care and parenting and how the parties’ marital property is to be divided between them at the end of their marriage.
When the parties began their marriage, each owned a home. In the wife’s case, she owned a property at Property S. It was worth $170,000.00 and was subject to a mortgage of around $37,000.00.
The husband owned a property at Property R. It was worth $330,000.00 but was unencumbered. Each party also had other assets, which he or she brought into the marriage.
There is some dispute about the value of the assets, apart from the real property, which each party brought into the marriage, but there is no doubt that the husband brought in considerably more, in monetary terms, than the wife did. He was also essential debt free.
The marriage between the parties was fairly short – around eighteen months in duration, although they embarked on some significant joint financial enterprises prior to June 2006. Regrettably, the marriage has had serious financial ramifications for each of the parties and both the husband and wife are now in a much more financially precarious position than they were when they met.
The parties have borrowed significant sums of money, which have been secured against both the Property S and Property R properties. The wife’s property is now subject to a mortgage in the sum of $117,776.86. The husband’s property is now subject to a mortgage in the sum of $52,104.65. The parties also have a number of credit card debts.
Some of the monies borrowed has translated into improvements made to the properties concerned but otherwise it has been spent in intangible ways. Both the Property R and the Property S properties have appreciated in values since the parties married. However, overall the parties’ financial “bottom line” has deteriorated.
Significant controversies exist between the parties as to how this debt is to be apportioned between them in practical terms. For obvious reasons, each party would like to leave the marriage as they commenced it – with modest or no significant level of debt.
The undertone of each parties’ respective case is that the other has either orchestrated or benefited from this debt and now seeks to leave the other with responsibility for it, which is fundamentally unfair to him or her.
In the wife’s case, she asserts that the husband’s property at Property R has been significantly renovated, whereas her home at Property S remains essentially as it was.
On the other hand, it is the husband’s position that the wife managed the parties’ finances, during their marriage and benefited more from the lifestyle, which the parties’ borrowings funded. In these circumstances, he argues that the wife must shoulder a significant portion of the debt involved.
The husband is fifty years of age. He is a [tradesman], earning around $50,000.00 per annum, although recently there has been something of a down trade in his business.
The wife is forty seven years of age. She is not part of the paid workforce presently. Whilst [X] is young, until she reaches the fourth grade, the wife would want to stay home to tend to [X]’s needs.
In the past, the wife has been [employed part-time in the Retail Industry]. She has no other qualifications to speak of. Necessarily, for the medium term, she would see her major sources of income being social security payments and child support received from the husband.
The husband’s position is that the most significant factors in this case are the length of the marriage between the parties and the fact that he brought the vast majority of property available now for distribution into it. As such, he would contend that any proper consideration of what is just and equitable dictates that his preponderance of assets, at the outset of the marriage, should be maintained in any property orders made by the court.
The wife concedes the husband’s greater initial financial contribution (but not in the magnitude propounded by the husband). She also accepts that the parties’ various contributions during their marriage – the husband as the major financial provider, with some significant non-financial contributions; she as the main homemaker and parent; should be regarded as being essentially equal. These contributions however have not translated directly into any specific item of property identifiable now.
However, it is the wife’s position that her prospective needs now are considerably greater than those of the husband. Essentially, she would seek orders that would result in an equal division of the parties’ current net assets, at the end of their marriage.
Necessarily this would mean the husband would have to pay the wife a sum greater than her current mortgage liability. The payment would leave the husband significantly indebted.
From the husband’s prospective, such an outcome could only be categorised as grossly unfair to him and something of a mockery of his initially superior financial position. In these circumstances, he would propose a far more modest payment to the wife. He also proposes their respective levels of indebtedness should remain where it currently lies.
[X] is a much loved child, who was fervently wished for by both her parents. She was conceived through a process of an in-vitro fertilisation. [X] is Mr Darcy’s first child. Ms Sampson has twins, [Y] and [Z], who are now aged fifteen years from an earlier relationship. Only [Y] lives with the wife.
The parties separated when [X] was just over one year of age. Given her tender years and Mr Darcy’s employment commitments, necessarily [X] has lived more with her mother than her father in the period since separation.
Since the legal proceedings began in February of 2008, orders have been made for the husband to spend increasing periods of time with [X]. In May of 2008, he began overnight time with her on one Saturday per fortnight.
More recently again, he has begun to see [X] on each weekend. The arrangement being that in one week of each fortnight, he spends from 10:00am Saturday until 6:00pm the following Sunday with her and in the other week of each fortnight from 10:00am on Sunday until 6:00pm the following Monday. Monday being his rostered day off.
In addition, there is a long standing arrangement whereby the husband spends each Wednesday afternoon with [X], from 2:00pm until 6:00pm. Again, Mr Darcy is able to take time off on these Wednesday afternoons.
The parties’ parenting relationship with one another is not the easiest one. However, they have agreed that they should have equal shared parental responsibility for [X]. What should follow practically from this equal allocation of parental responsibility is disputed by the parties.
Initially, it was the husband’s position that he wanted to work towards an outcome, which would see [X] living with each of her parents for roughly equal periods of time. He no longer seeks such an outcome. Rather, he would want orders made which would see [X] living with him for “substantial and significant” periods of time.
Ms Sampson does not challenge Mr Darcy’s level of devotion to [X] nor does she contend anything other than that [X] loves her father and looks forward to spending time with him. In these circumstances, she accepts that it is in [X]’s bests interests that she be able to spend significant periods of time in her father’s care.
The major area of dispute between the parties is the length and frequency of time [X] should spend with her father in the period between now and her commencing at school. The husband would want to move faster and the mother slower in this regard.
In addition, Ms Sampson would want to be assured that Mr Darcy was available to care for [X] during any court ordered periods and would be apprehensive at the prospect of the husband devolving his responsibilities for [X] onto either his aged mother or sister.
Other perhaps more symbolic issues arise between the parties. The husband would want any order resulting in him being responsible for providing care for [X] to be expressed as “a live with order”. On the other hand, the wife would want such orders to be expressed as “a spend time with order”.
To the parties’ great credit, they have been able to resolve many other significant issues, to do with [X], to their mutual satisfaction. In the main, these issues deal with special occasions and the division of school holidays, once [X] has started at school.
In order to assist the court with resolving the parenting issues to do with [X], it was ordered that a family report be prepared. This report was prepared by Mr Stewart Bruinsma, an experienced social worker. Mr Bruinsma recommended as follows;
“It is recommended that the child live with Ms Sampson.
It is recommended that the child have substantial and significant time with Mr Darcy consisting of at least alternating weekends, mid week time as the Court sees fit or as negotiated between the parties, and special occasions such as birthdays, Christmas and holidays.
It is recommended that the child have mid-week telephone contact with Mr Darcy on days which are non-scheduled time spending days.”[1]
[1] See Family Report dated 17 July 2009 at Paragraphs 57 - 59.
Mr Bruinsma was requested to attend court to be cross examined about his report and the opinions it contained. His view was that [X] had a close and loving relationship with each of her parents. He also considered that the parties communicated reasonably well with one another.
From Mr Bruinsma’s prospective, the case was unusual, in his experience, given that neither the husband nor the wife had significant criticisms of the other’s capacity to parent [X] properly. In essence, he considered that [X] was doing well and there were no developmental issues, which precluded [X] from spending consecutive nights in her father’s care.
The parties remain in considerable dispute about how Mr Bruinsma’s recommendations should be implemented to achieve the service of [X]’s best interests. Sadly, although the parties seem to be able to agree on some things, a consensual resolution of the parenting issues to do with [X] eludes them.
These proceedings are directed to resolve these various issues between the parties and, so far as is possible, end their financial relationship with one another. When parties who no longer live together ask the court to make orders in respect of their child, it is the best interests of that child which are the paramount or most important consideration.
Legal Principles to be applied
a) The property proceedings
The process to be followed for the division of the parties’ property is well established by law.[2] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of specific steps.
[2] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[3] The parties have been able to agree on the value of the vast majority of their marital assets and liabilities.
[3] See Wardman & Hudson (1978) FLC 90-466; and Biltoft & Biltoft (1995) FLC 92-614
Disputes arise between them regarding the value of furniture and household effects, particularly a stamp collection belonging to the wife and some items of jewellery belonging to the husband. These items of property have not been professionally valued.
Sensibly, the husband has agreed to return the wife’s stamp collection to her and the wife has agreed to return the husband’s jewellery to him. I will make orders to formalise this agreement.
It is often depressing to have items of furniture and household effects and appliances professionally valued. Invariably the second hand value of such items does not reflect what was paid for them originally or the cost for the party without them having them replaced.
The wife is aggrieved at the circumstances surrounding her departure from the parties’ former matrimonial home, which was the husband’s real property in Property R. She left items of property behind her.
In addition, during their short marriage, the parties discarded many items of property, as they consolidated their two households together. It is now difficult for each of them to reorganise their now separate households. Complaints are made as to who has retained or discarded individual items of furniture and property.
In the absence of expert opinion regarding the value of these items of property, I am unable to resolve these various issues. I acknowledge the significance of these issues to the parties, particularly the wife, but as I pointed out during the hearing, these proceedings provide too blunt an instrument to resolve these intricate areas of contention between the parties.
For all these reasons, I do not propose to include the husband’s tools and the parties’ various items of household furniture and effects in the parties’ pool of marital assets. I propose rather to order that these items of property remain in the possession of the party currently in control of them.
As a result, at the present time, the parties’ net pool of assets, including accrued superannuation, is represented by the sum of $593,456.94.
Secondly, I must ascertain the contributions which each party has made towards those assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[4]
[4] See Family Law Act s.79(4)(c)
Pursuant to section 90MC of the Family Law Act 1975, superannuation interests are to be treated as property. Specifically, pursuant to section 90MS of the Act, superannuation interests may attract the operation of section 79 of the Act.
Necessarily, such an exercise requires the valuation of the superannuation interest in question. However, by its nature, superannuation is a different “species of asset” to other more easily disposed of assets, such as real and personal property, which are often described as being “conventional assets”.
For this reason, it has been held to be appropriate for superannuation assets to be placed in a separate pool of property to other items of property and the parties’ respective contributions towards their acquisition and preservation to be assessed separately. In addition, different considerations of justice and equity may apply to the division of superannuation interests because of the special nature of that property.[5]
[5] See C & C (2005) FLC 93-220 at 79,646
The second step occasions controversy between the parties in the following major areas:
·The parties have each attempted to calculate their respective financial positions at the start of their relationship;
·The husband’s position is that he was debt free and had assets to the value of $464,609.44;
·Putting aside issues to do with her personalty, the wife values her net assets, at the start of the relationship, at $184,421.00;
·On the husband’s figures, his assets represent around 71.5% of the parties common property and the wife’s assets 28.5%;
·The wife has some quibbles about the husband’s calculations, particularly his assertion that he had a stash of cash, in the sum of $25,000.00, in his shed, but otherwise she accepts that there was a marked disparity in the parties’ level of asset backing at the start of the marriage;
·The husband’s position is that his initial injection of capital into the marriage, in the overall context of this case, particularly given the length of the marriage concerned, is a contribution of such magnitude that it merits being given “special recognition”, in his favour, at this stage of the court’s deliberations;[6]
[6] See Pierce & Pierce (1999) FLC92-844 at 85,811
·The husband was the family’s major financial provider during the marriage. He worked as a [tradesman];
·During the marriage, the wife was involved in home duties and parenting [X]. She accepts that the husband did some domestic duties, including cleaning, gardening and household maintenance;
·The wife also accepts that the husband cannot be described as a disinterested parent. He attended to [X] from time to time, including changing her nappy; feeding her at night; and generally supervising and interacting with her;
·In general terms, the parties accept that their respective contributions during the marriage, although different in quality, are to be regarded as essentially equal;
·The parties undertook renovations to both the Property S and Property R properties. How those renovations were funded and the consequences of those fiscal arrangements is now controversial between the parties:
Ø In June 2005, the husband borrowed around $10,000 to install a carport, roller door and veranda at Property S. He paid out the loan before the parties' marriage;
Ø Renovations were done to Property R to make it more comfortable for married life. The husband contends that the wife was the major proponent of these improvements;
Ø The intention was that Property S would be a rental property. Some work had to be done to make it attractive to potential tenants;
Ø In August and September of 2007, the husband paid for the tiling of the laundry and polishing of floorboards at the Property S property at a cost of around $4,700.00;[7]
[7] See husband’s affidavit filed 24 August 2009 at paragraph 20
Ø The husband purchased a solar hot water service for the Property S property at a cost of around $4,200.00 (after deduction of the government rebate); [8]
[8] See wife’s affidavit filed 4 September 2009 at paragraph 48
Ø It is the wife’s position that the improvements to the Property S property were minor and intended to be a gift to her by the husband. It is her position that the renovations to the Property R property were far more extensive;
Ø The wife calculates the cost of the improvements to the Property R property as being $66,100.00.[9] In cross-examination, the husband did not seriously question this level of expenditure;
[9] See wife’s affidavit filed 4 September 2009 at paragraph 49
Ø It is clearly the case that the larger proportion of these renovation expenses was met from moneys obtained from mortgage advances secured against both the Property S and Property R properties;
Ø At the commencement of the parties’ relationship, the wife’s mortgage stood at around $38,000.00. It was increased by $25,600.00 in October of 2005 and further increased to $125,000.00 in March of 2006;
Ø In September of 2006 the parties secured a mortgage advance secured against the Property R property in the sum of $40,450.00, which was increased to $60,000.00 in April of 2007;
Ø Accordingly, a sum of around $146,500.00 was borrowed by the parties through the various mortgage advances;
Ø The wife concedes that significant sums were expended on purchasing the parties’ engagement and wedding rings; paying for their engagement party and wedding reception; honeymoon; [Y]’s orthodontic treatment; their IVF treatment; [X]’s baptism; and celebrations for the wife’s older children;
Ø The husband has suspicions that the wife has utilised a significant portion of the mortgage advances for her own benefit. The wife vigorously refutes this suggestion;
Ø From the wife’s perspective, as the husband will retain the Property R property, some allowance must be made in her favour for the significant increase in its value, which can only be attributable to the renovations undertaken on it;
Ø More significantly, it is the wife’s position that it is fundamentally unfair to her that her property is more significantly charged with debt than the husband’s, particularly given where the larger proportion of the renovations took place;
Ø The husband’s position is that the renovations are a case of “swings and roundabouts” and there should be no great differentiation between the properties concerned.
·The wife is concerned that there exists the potential for her considerable non-financial contributions, made during the marriage, to be undervalued because of the significance which will be given to the husband’s direct financial contributions;
·In this regard, the husband points to the short duration of the marriage and the fact that it has resulted in the erosion of the parties’ asset base. In such circumstances, the wife must accept responsibility for a significant proportion of the debt which the parties mutually incurred during the marriage;
·It is the wife’s position that her contributions, both financial and non-financial, have been greater than the husband’s in the period post-separation. In this regard, she points to the following factors:
Ø She has made the greater direct financial contributions;
Ø Between separation (31 December 2007) and 25 April 2008, she paid the entire amount to service the parties’ mortgage liabilities secured against both properties;
Ø Since 25 April 2008, the wife has met the mortgage liability secured against the Property S property, whilst the husband has serviced the lesser amount secured against the Property R property;
Ø The wife asserts that she has discharged the larger proportion of parental responsibilities for [X], whilst receiving a modest amount of child support from the husband, who is currently in arrears of child support in a sum of $1,550.79;[10]
·The husband does not accept that there has been any significant qualitative difference in the parties’ post-separation contributions. He points to the fact that he has maintained payments on the wife’s solar hot water system and fell into arrears in respect of child support, only because of a temporary period of unemployment, which was beyond his control.
[10] See exhibit A
At the end of the second stage, the husband asserts that the parties matrimonial property should be divided 75/25%, in his favour, largely to reflect his greater financial contributions, particularly at the outset of the parties' marriage.
On the other hand, it is the wife’s position that too great an emphasis on the husband’s financial superiority at the start of the marriage, is likely to result in an injustice to her, particularly given her very significant contributions during the marriage. In these circumstances, she would urge the court to consider the husband’s contributions, at the end of the second stage, to be in the range of 60 to 65% and hers to be in the range of 35 to 40%.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In the main, section 75(2) deals with the prospective needs of the parties. It is the wife’s case that a number of factors arising under the section greatly favour her as follows:
·She will have greater responsibility for the care and control of the parties’ child, [X], who is young;
·She has no professional qualifications or technical skills, as her previous employment experience has been in the unskilled area of retail assistance;
·Her intention is to continue to remain a home based parent, until at least [X] has commenced grade 4;
·The husband is unlikely to be a reliable payer of child support for [X]. Accordingly, it is likely that she will bear a disproportionate and unfair burden in respect of supplying her financial needs;
·In contrast to her, the husband is a skilled tradesman, who will be able to secure reasonably well paid employment for himself until his retirement;
·The husband does not accept that the section 75(2) factors greatly favour the wife. He points to the following factors:
Ø Although he has skills as a [tradesman] and considerable experience in the trade, he currently receives a modest salary of around $50,000.00 per annum;
Ø As a PAYG tax payer, the Child Support Agency will be readily able to assess his annual income and assess the appropriate level of child support payable by him according to the legislatively mandated formula, based on the actual costs of supporting children;
·The wife was employed [part-time in the Retail Industry] prior to [X]’s birth. As such, it is his contention that she could return to the workforce, in this capacity, in the short to medium term;
·As such, it is his view that the wife’s desire to remain out of the workforce for the next six or so years is a luxury which the parties cannot afford, given their current financial circumstances.
·Overall, the husband asserts he has a modest income, employed in an industry likely to have its ups and downs in future. As such, his economic circumstances are not markedly superior to those of the wife.
At the end of the third stage, it is the husband’s position that there should be no allowances made in favour of either of the parties, as a result of any factors arising under section 75(2). On the other hand, it is the wife’s position that a number of these factors greatly favour her. As such, she seeks a further distribution of property, in her favour, in a magnitude of around fifteen percent.
Essentially, Ms Sampson contends that the real gravity of the court’s decision making responsibility in this matter resides in its assessment of the applicable section 75(2) factors, and as such, the court must be careful to give these factors real rather than token weight.[11]
[11] See Waters & Jurek (1995) FLC 92-635 at 82,376
Finally in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[12]
[12] See Russell v Russell (1999) FamCA 187
Accordingly the fourth step is for the court to take a step back and examine whether the orders it proposes are just and equitable. The “overriding requirement” of section 79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”[13] or of equalisation of assets or financial resources.
[13] See Waters & Jurek (1995) FLC 92-635
At the outset, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task. In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation.
Marriage is by and large a joint enterprise. How much buffer spouses must give one another, when financial set backs occur, must depend on the degree of consultation and acquiescence in their relationship.[14]
[14] See D & D [2003] FamCA 473 at paragraph 49
The task, set out for me in this case, requires me to balance and compare contributions which are by their nature different, within the framework of a marriage. Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value. The discretion I have is a wide one.
b) The Child
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [X]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles of Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, specifically grandparents [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The parties have agreed that they should have equal shared parental responsibility for [X]. She is a much loved child and there can be no doubt that both parents wish to be as involved as possible in the discharge of parental responsibility for her. As such, both wish to be closely involved in making all major decision pertaining to her welfare.
In all the circumstances of this case, particularly the absence of any concerns regarding issues to do with family violence, neglect or abuse of [X], it is not appropriate that I look behind the parties’ agreement in respect to the issue of equal shared parental responsibility. I am satisfied that it is likely to be in [X]’s best interests that her parents have equal shared parental responsibility for her [see section 61DA(2) & (4)].
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned through the child being able to spend time with a parent in a variety of settings.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
Although Mr Darcy aspires to be as fully involved, as possible, in all aspects of [X]’s life, he does not press for orders that would see [X] spending equal periods of time with him and with her mother.
It would appear to be his position that, given [X]’s tender years, his work commitments and Ms Sampson’s staunch opposition to such an arrangement, it is not a viable outcome in this case and will only intensify rather than lessen the areas of possible parental disagreement between him and Ms Sampson.
In my view, this is to Mr Darcy’s credit. It is also in keeping with
Mr Bruinsma’s recommendations. Accordingly, it is not necessary for me to consider whether an equal time arrangement is likely to be appropriate for [X].
This is a case about substantial and significant time, within the context of [X]’s age and current level of development and the nature of the parties’ relationship with one another. The husband’s position is that the court is required to consider [X] spending substantial and significant periods of time with him and his proposals hereunder will satisfy the relevant statutory definition and ensure that [X] benefits from having a meaningful relationship with him through being able to interact with him in a variety of times and settings.
He proposes as follows:
·Commencing now ([X] being a few weeks short of her third birthday) [X] be with him on each weekend from 10:00am Saturday until 6:00pm the following Monday; and on each week from 2:00pm until 6:00pm on Wednesday;
·Upon [X] turning four years of age ([in] 2010) on each weekend from 10:00am Saturday until 6:00pm Monday, with the addition of a mid-week overnight period, being from 2:00pm on each Wednesday until 6:00pm the following Thursday.
·Upon [X] commencing her primary school education, on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday and in the intervening week from the conclusion of school on Wednesday until the commencement of school the following Friday.
The husband’s proposals envisage a gradual increase in the time he spends with [X] from the current arrangement, which sees her with him on one night per week, on weekends and during the afternoon on Wednesdays to a situation whereby he would be spending five days per fortnight with [X], once she has started at primary school.
The pathway to this arrangement would be an immediate increase in his time to a long weekend each week, which would coincide with his rostered Monday off each fortnight. In turn, this arrangement would be extended by the addition of a mid-week overnight visit, when [X] turns four.
The wife has many criticisms of this arrangement. Firstly, she is concerned that the father’s proposal will deprive [X] of the opportunity to interact with members of her maternal family on weekends. She is also concerned that Mr Darcy has not properly thought through the implications of his work commitments, on the regime, which he proposes.
It is Ms Sampson’s case that she has always looked favourably upon Mr Darcy’s requests to spend time with [X] on the Mondays he has been rostered off work. She is concerned that if the Monday is formalised by court order, the husband will work on Mondays and abrogate his responsibilities towards [X] to others, to the child’s detriment.
It is also Ms Sampson’s position that the father’s proposal to spend substantial and significant time with [X] is too rapid and ambitious, given [X]’s age, level of development and dependence on her mother. She proposes a more gradual approach, and in this regard, is opposed to a mid-week overnight period. She would also wish some form of formal guarantee that Mr Darcy not be at work during the periods of time [X] is with him.
For these reasons, the mother proposes the following arrangements:
·[X] spend time with her father, until she commences her primary school education, on alternate weekends from 10:00am Saturday until 6:00pm the following Sunday;
·From 10:00am to 6:00pm on one Sunday of each month, the Sunday to be agreed between the parties and failing agreement to be the last Sunday of each month;
·
On each Wednesday from 2:00pm until 6:00pm provided that
Mr Darcy is not working;
·Once [X] commences her primary school education, on alternate weekends from after school on Friday until 6:00pm the following Sunday, but only if Mr Darcy is available to collect [X] from school and if not, the period to start on 6:00pm Friday;
·On each Wednesday from after school until 7:00pm, again subject to the proviso that he collect [X] and is not working on the day in question.
Mr Darcy concedes that he will have to continue working for the foreseeable future. It is his position that he has an accommodating employer, who will be willing to work around his necessary commitments to [X]. However, he believes the proposed conditions on his time with [X] are too strict, particularly as his sister Ms R and mother are available to assist him with collecting and caring for [X] from time to time. Ms Sampson does not have an easy relationship with the two woman concerned. She is also worried that Mrs Darcy Senior is too elderly to care for a child of [X]’s age.
There is one further area of significant dispute between the parties. It concerns the exact terminology of the orders, which the court will make. Mr Darcy’s preference is that any order be expressed as a “live with” order. Ms Sampson’s preference is that the arrangements whereby [X] is in her father’s care should be expressed as a “spend time with” order. In practical terms, however the order is expressed, it will have no effect on the extent and quality of time the husband spends with [X]. The distinction is important to the parties themselves and can have no significance for [X].
Both parties are seeking parenting orders in respect of [X]. The definition of a parenting order is set out in section 64B of the Family Law Act. It is an order which deals with, amongst other things, the person or persons with whom a child is to live; the time a child is to spend with another person or persons; the allocation of parental responsibility for a child; the form of any consultations the holders of parental responsibility for a child must have with one another as to how that parental responsibility is to be utilised; and the nature and extent of the communication a child is to have with any person or persons.
As a result of the parties’ agreement that they will have equal shared parental responsibility for [X], whatever consequential order is made will not affect the parties’ decision making responsibility for [X] or create any form of hierarchy between them in respect of the exercise of that authority.
In addition, because of the application of section 65DAE, each party will be able to make incidental decisions, relating to [X]’s care, untrammelled by any interference by the other. In layman’s terms, a “live with” order does not trump a “spend time with” order.
The provisions of the Family Law Act, dealing with arrangements for the parenting and care of children, have been subject to significant legislative amendment on two occasions since 1995. These amendments resulted in a major change to the terminology pertaining to parenting orders.
In 1995, the terms “custody” and “access” were replaced with “residence” and “contact” orders. More recently again, the amendments inaugurated by the Family Law Amendment (Shared Parental Responsibility) Act2006 resulted in the abolition of residence and contact orders. In their stead stood what were hoped to be more “family focussed” terms regarding the allocation of parenting time between parents.
The applicable legislation, as previously indicated, now empowers the court to make parenting orders which deal with, amongst other topics, with whom a child will live and the extent and terms pursuant to which that child will spend time with other individuals, including parents.
As is commonplace with lawyers, who delight in pithy phrases to encapsulate complex concepts, it is now habitual for all who are concerned with the implementation of the family law system to speak of live with and spend time orders. A practice which no doubt has been taken up by parents who come into the system and into contact with lawyers.
One of the major impetuses behind the change in the legislation was the report of the House of Representatives Standing Committee on Family and Community Affairs Report following its inquiry into child custody arrangements in the event of family separation, entitled “Every Picture Tells a Story” which was released on 29 December 2003.
The House of Representatives Committee recommended that the focus of proceedings involving the Family Law Act needed to be directed towards mechanisms designed to ensure that both a child’s parents could and would remain involved in caring for their child after separation.
The Committee was concerned that the intent of the 1995 Amendments, which were intended to eliminate a sense that parents were struggling to achieve some form of “ownership” of the child concerned over the other parent, in family law litigation, had been largely unsuccessful. The Committee wished to reduce perceptions that one parent had lost a case involving the allocation of parental responsibility and that the other had necessarily won such a case.
For this reason, one of the recommendations of the committee was as follows:
“The committee recommends that Part VII of the Family Law Act 1975 be further amended to remove the language of “residence” and “contact” in making orders between the parents and replace it with family friendly terms such as “parenting time”.[15]
[15] See Every Picture Tells a Story: Report on the inquiry into child custody arrangements in the event of family separation. December 2003 Recommendation 4 at page 42.
The obvious subtext of the present dispute between the parties is that the husband has the perception that a “spend time with” order is in some way inferior to a “live with” order, in spite of the well meaning legislative intent to avoid such a conception. Sadly, neither of the parties in the present case is willing to compromise on the issue and the question of nomenclature seems to be emblematic of the ongoing conflict between them.
Smyth has written of the “custody wars” between parents, in which the divvying up of time with a child and how it is described becomes paramount to parents rather than the actual quality of the time which they spend with their children.[16] The peril of such “wars” is that the parents concerned become obsessed with the struggle with the other parent and oblivious to the consequences for the child involved.
[16] See Smyth Time to rethink time? The experience of time with children after divorce Family Matters No 76, Winter 2005 at p.4 referred to in Silas & Barry [2009] FMCA 448 per Altobelli FM.
Essentially Smyth cautions of the dangers of parents becoming fixated with the amount of time alone which they spend with their children and what it is called rather than focussing on the quality of that time in the sense of how such time is actually utilised in building up parent/child relationships.
The risk being that if one is solely focussed on the extent of time rather than its quality, no matter what order is made, it will never provide enough time. For obvious reasons, where parents remain fixated on the strict allocation of time with their children between them, with one parent always wanting more time and the other wishing to place restrictions upon it, such situations are not generally amenable to a focus on what is likely to be best for the children concerned. Rather the parents are concerned more with their own sense of entitlement and what they perceive as being fair to them.
In this sense, it is perhaps tempting to be dismissive of this aspect of the dispute between the parties as being a dispute with no substance, which is really only about each of them wishing to have some sense of empty or illusory advantage over the other. Although this analysis has some attraction, it is also likely to be simplistic. Words matter.
One of the definitions of live is “make or have one’s abode”.[17] This seems to be the sense envisaged by the applicable provisions of the Family Law Act. A “live with” order seems to be intended to deal with the place of abode of a child.
[17] See the Australian Oxford Dictionary
Abode is another word for home. Home is said to be where the heart is. Necessarily “home” and all the concepts associated with it create complex emotional currents in parents, particularly where children are concerned.
In this sense, I can understand why the concept of a “live with” order as opposed to a “spend time with” order has created such controversy between the parties. For obvious reasons, both Ms Sampson and
Mr Darcy would aspire to [X] regarding their respective abodes as being her home also, perhaps her sole home.
A child, like an adult, can have more than one home. Accordingly, on semantic or logical grounds alone, the mutual “live with” order sought by the husband cannot be ruled out.
I have come to the conclusion that, regardless of how [X]’s parenting time is ultimately allocated between her parents, it is appropriate that it be expressed as a “live/live” order. I reach this conclusion because it will, I hope, dispel any perception that the court process actively creates winners and losers, so far as arrangements for the care of children are concerned.
This is most certainly not the intention of the legislation, which is designed to encourage both a child’s parents being actively involved in parenting decisions in respect of their child. One parent should not see himself or herself as being superior to the other parent merely because he or she spends more time with the child than the other.
The documents relied upon
The husband commenced these proceedings on 13 February 2008. He relies on the following documents:
i)An affidavit of himself filed 24 August 2009;
ii)A statement of his financial circumstances filed 24 August 2009.
The wife responded to this application on 17 April 2008. She relies on the following documents:
i)An affidavit of herself filed 4 September 2009;
ii)A statement of her financial circumstances filed 4 September 2009.
Besides the parties themselves, the only other witness who gave evidence in the proceedings was the family report writer, Mr Bruinsma.
The evidence
In terms of credit, both parties seemed to me to be pleasant and honest witnesses, who each attempted to reconstruct their financial and personal history together, as best they could. As a result, I do not think that this is a case which turns on credit in the sense that one parties’ evidence should be automatically preferred over the other’s.
The marriage between the parties was not a long one. It began with high hopes, marked by the birth of a much longed for child. Necessarily both the husband and wife feel some bitterness at the demise of their relationship.
I mean no disrespect, but neither party struck me as being financially sophisticated. Certainly, neither of them seems to have closely considered their level of spending during the marriage and the implications of their increasing level of indebtedness.
From Mr Darcy’s point of view, he began the marriage with savings, owning his home and having no debt. During the marriage, it seems to be the case that he entrusted the day to day financial running of the parties’ household to the wife. He is now suspicious of her and blames her for the deterioration of his financial position. For these reasons he is inclined to think that she has wrought some malign influence on his finances to advantage herself.
Ms Sampson refutes any suggestion that she has secreted funds, from the marriage, for her own use. Apart from the fact that he is now worse off than before, Mr Darcy cannot produce any concrete evidence to support his suspicions. In addition, he concedes that he left issues to do with financial management to Ms Sampson. The impression I have is that if Ms Sampson wanted something, Mr Darcy went along with her wish, without demur.
The husband did not strike me as an assertive person. In fact, one of the noteworthy features of his evidence was his propensity to agree with many propositions put to him. Accordingly, I think it is most likely the case that he did not exercise any great financial control during the parties' marriage.
The marriage between the parties was however one of equals. The parties married their financial resources together. They had a plan as to how their financial future would be secured and they would become more financially secure.
This plan relied on the parties retaining both their pieces of real property. The wife’s property was to be rented. As such, it would appear to make sense that expenses related to its upkeep should be kept high, for taxation deduction purposes. The property also needed some work to make it attractive to potential tenants.
The parties decided to live in the husband’s Property R property. It too needed work to make it comfortable for a family with a young child. I have no doubt that both parties were fully committed to the renovations at Property R.
The cost of the renovations at Property R was significantly more than those conducted at Property S. For obvious reasons, the wife is aggrieved that the husband continues to enjoy the benefits of these renovations, whilst she does not, but her overall level of indebtedness has markedly increased.
My overall finding is that both parties contributed extensively during their marriage, in a variety of ways, and both were committed to making a go of it. As such, each party contributed as best as he or she could.
Inevitably proceedings between former marital partners invoke strong feelings. Such emotions are likely to inform how parties recollect past events and, when those events need to be reconstructed, for the sake of adversarial proceedings such as these, it is only to be expected that such a subsequent reconstruction should favour the party making it.
In this case, both parties have, I think, followed the natural human tendency, in proceedings such as these, to maximise their own contributions and minimise those of the other.
In this case, I will endeavour to reconstruct, as best I can, the parties’ relevant financial history, bearing in mind that the requisite standard of proof in respect of the findings which I make is the balance of probabilities – that is what I think more likely than not occurred.
As I have already indicated, I accept that both parties love [X] very much and both want the best for her both now and in the future. This they have in common. However, otherwise they are quite different people in terms of personality and temperament. As such, they are likely to bring different parenting attributes and aspirations to [X].
The father worked during the majority of the parties' marriage.
Ms Sampson did not. She was engaged in home duties. In addition, she has previous extensive experience of parenting. The husband does not.
In these circumstances, it was only natural that the major responsibility for parenting [X] would devolve upon to the wife. She has readily seized on her authority, as [X]’s primary carer, to establish what she believes are the appropriate parameters for her care.
The husband feels that he has been dictated to by the wife as to when and how he can interact with [X]. Undoubtedly, the husband has wished to move at a faster pace than the wife in respect of all manner of issues to do with him spending time with [X], particularly in terms of overnight time. This is a common situation for many parents following separation, particularly when a child of tender years is involved.
The wife is somewhat anxious about the husband’s parenting capabilities. She regards him as being irresponsible at times, particularly so far as the balancing of his parenting and work commitments. However, she has been prepared to allow [X] to spend longer periods of time with her father, particularly when circumstances of necessity have dictated, such as when she was hospitalised.
Mr Darcy resents any suggestion that he would willingly jeopardise [X]’s wellbeing or safety. It is his case that he, although coming to parenting later in life than the norm, is sensible in his parenting and willing to learn how to be a better parent. He refutes any suggestion that the court should be more cautious about his capacity to parent merely because [X] is his first child and in the past financial necessity has compelled him to remain in the full time work force.
In my view, the husband has much to offer [X]. There is no evidence to indicate that he is not capable of meeting [X]’s physical and emotional needs on a day to day basis. Certainly he cannot be described as a disinterested parent, who has adopted his stance in these proceedings for any ulterior motive. In my view, he is focussed on [X]’s best interests.
I accept Mr Darcy’s evidence that he wishes to be involved as much as possible in [X]’s life, on a day to day basis. At the core of his position is his concern that he may become merely a “holiday” parent for [X], rather than one who is able to be integrated into every aspect of his child’s life.
I also accept that Ms Sampson wants the best for [X]. I do not think that she is an unduly protective or hyper-vigilant parent. Rather, her perspective on what is best for [X], at this stage of her development, is necessarily different to Mr Darcy’s view. Her view is influenced by her previous experience of parenting and the fact that she has been [X]’s primary carer since she was born.
In essence, I do not think that either party is being difficult for the sake of being difficult. It is however regrettable that the court must make so many important parenting decisions for [X], rather than her parents.
The parties’ different personalities; perspectives on parenting (perhaps influenced by issues of gender); and the trauma surrounding their separation; have made it difficult for them to communicate meaningfully about parenting issues. This of itself has added to the tensions between them. In addition, for reasons obscure to me,
Ms Sampson mistrusts the husband’s sister, Ms R, who ideally might act as an honest broker between them.
In all these circumstances, the significance of the evidence of
Mr Bruinsma is increased. Mr Bruinsma had a marked advantage over me, in this case. He was able to see [X] interacting with each of her parents. As such, he was able to form a direct and personally informed impression of what sort of child [X] is and how she interacts with each of her parents. On the other hand, I have never met [X] and have only read about her. Accordingly, Mr Bruinsma’s opinion and evidence must be given a high level of regard by the court.
All family reports must be considered a “snap shot” in time, which is taken in somewhat artificial and stilted circumstances. However, notwithstanding these axiomatic limitations, I found Mr Bruinsma’s report and evidence to be thorough and well considered.
He seemed to me to be sensitive to the tensions between the parties and each of their aspirations, so far as the parenting of [X] is concerned. I did not find his recommendations to be dogmatic, doctrinaire or prescriptive. In this sense, Mr Bruinsma was not wedded to any particular permutations or division of parenting time for [X]. As such, he could see merit in the positions advocated by both parents.
The emphasis in Mr Bruinsma’s report was that [X] had a close and significant relationship with both her parents, who were highly motivated regarding being involved in providing care for [X]. As such, it was Mr Bruinsma’s opinion that [X]’s relationships with both of her parents needed to be supported and encouraged by any order which the court made.
Mr Bruinsma recommended that [X] continue to remain in the predominant care of her mother. However, in order to preserve and enhance her paternal relationship, he considered that [X] and Mr Darcy needed to spend significant periods of time together.
Mr Bruinsma did not have any strong view as to how such an arrangement should be brought into existence in practical terms. It would have been his preference that [X]’s parents negotiated these arrangements, in the light of their own personal commitments and [X]’s changing needs from time to time.
Regrettably, in this as in many similar cases, the parties remain fixated on time, particularly how [X]’s time with each of them is to be “divvied up”. As I indicated earlier, such a phenomenon has been described as being part of the “custody wars”, which arise between parents in hotly contested proceedings such as these.[18]
[18] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4 referred to in Silas & Barry [2009] FMCAfam 448 per Altobelli FM at paragraph 23
In his recommendations, Mr Bruinsma was focussed on the quality rather than the quantity of the relationship between [X] and her father, which he hoped would be facilitated by any orders which the court made. As such he did not see it as his role to provide an exact “road map” of what time [X] was to spend with her father.
I agree with this approach. The exact division of [X]’s time between her parents is likely to be more important to Mr Darcy and
Ms Sampson than to [X], provided she ([X]) is able to spend sufficient time with her father to have a quality relationship with him.
In Silas & Barry, Altobelli FM referred to some of the current social science and psychological perspectives on this issue. He quoted Smyth as follows:
“A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parents wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
I did not raise these considerations directly with Mr Bruinsma, but in my view, the tenor of his evidence and opinion was in keeping with these views, bearing in mind [X]’s age, the fact that she has been predominantly cared for by her mother up to this stage but also bearing in mind the importance of her relationship with her father being fostered and developed.
In these reasons for judgment, findings of fact are made on the balance of probabilities. In what follows, statements of fact constitute findings of fact.
a) Chronology and salient findings of fact
The husband was born [in] 1959. The wife was born [in] 1962. They met in late 2004 and began going out together. They became engaged in December 2005.
The parties began to live together formally, when they married on [in] June 2006. However, prior to that date, they had each made a significant personal and financial contribution towards the other. The most significant aspect of their commitment was their mutual decision to undergo IVF treatment together.
The wife has been previously married. She has two children from her first marriage. They are twins [Y] and [Z] born [in] 1994.
The wife and her first husband divorced in mid-2001. [Z] lives with his father in the United Kingdom. [Y] lives with the wife. It is common ground between the parties that [Y] and Mr Darcy did not get on well. This led to pressures in the parties' relationship.
Ms Sampson is concerned at the prospect of [X] spending overnight mid-week time with the father. In particular, she is apprehensive that he will be unreliable so far as [X] is concerned because of his work commitments.
I do not share these concerns to the extent which Ms Sampson does. After all, many separated parents have to balance responsibilities to their employers with their obligations to collect and parent children. As such, I do not think that Mr Darcy’s work roster alone should disqualify him from spending time with [X], in an overnight context, during the working week.
To the contrary, I consider that such an arrangement will facilitate the relationship between the two becoming more meaningful. I am satisfied that both parties fervently love [X]. Accordingly, there is an emotional closeness and dependence between [X] and each of her parents. This emotional closeness, is in my view, the bedrock on which meaning is based in child/parent relationships.
I am satisfied that both parents aspire to parent [X] in a constructive fashion. I accept that Mr Darcy wishes to play as larger role as possible, in all aspects of [X]’s life, as she grows to maturity. As such, I am satisfied that [X] will benefit from having as meaningful a relationship as is possible, with her father, in future.
In my view, it is likely to be in [X]’s best interest that she spends more rather than less time with her father, as she progresses into primary school. For obvious reasons, it would be better if [X]’s time with her father could be increased in an organic and consensual fashion. Sadly, at present, the parties’ relationship with one another will not support such an outcome.
The additional considerations
a) The child’s views
[X] is too young to be able to express any definitive view regarding the appropriate outcome in this case or her preference in regards to it.
b) The nature of the child’s relationship with each of her parents and significant others
It is not in dispute that [X] has a close and loving relationship with each of her parents. Certainly this was Mr Bruinsma’s assessment, which I accept. It also seems to be the case that [X] has relations, on both her paternal and maternal aspect, who are anxious to spend time with her and extend and preserve relationships with her.
In my view, it is likely to be important to [X]’s sense of identity that she gains a sense of where she fits in, in her wider family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[28]
[28] See Bright v Bright (1995) FLC 92-570 at 81,658
As such, [X] needs to spend sufficient time with both her mother and particularly her father for these relationships to be formed. This is a consideration which militates in favour of the husband’s proposals.
c) The willingness and the ability of the parties to encourage a close and continuing relationship between the child and the other parent
The poor relationship between the parties and their inability to reach agreement about arrangements for [X]’s care make this a problematic case. Yet, notwithstanding these difficulties, the parties have agreed that they should share equally the parental responsibility for [X].
As a result, necessarily, they will have to interact and consult together in respect of the discharge of parental decision making for [X]. The wife has indicated to Mr Bruinsma her hope that the parties would be able to resolve the present proceedings between them. It is her case that she has always been open to the husband spending additional periods of time with [X], other than that which has been specified in court ordered arrangements. This is so.
Accordingly, I accept that Ms Sampson realises the importance of [X] having a meaningful relationship with her father. Where the parties disagree is the means by which that relationship will be facilitated.
Mr Darcy’s position is that he feels Ms Sampson always wants to have the upper hand over him and dictate how the relationship between him and [X] should unfold.
This aspect of the dispute between the parties is most clearly delineated in the dispute as to whether the husband’s time with [X] should be expressed as a live with or spend time with order. For reasons already provided, I can understand why this issue is important to the parties but I suspect it has less relevance so far as [X]’s best interests are concerned.
The legislation requires me to consider the extent to which both parties have fulfilled or failed to fulfil their responsibilities as parents [Family Law Act section 60CC(4)]. In my estimation, both parties are vitally interested in the long term welfare of [X].
In particular, I accept that Mr Darcy has done his best to fulfil his financial obligations towards [X]. I also have no doubt that he has spent as much time as has been available to him with [X].
Mr Darcy aspires to spend as much time as possible with [X]. I also accept that he wishes to be fully involved in the making of all the necessary important decisions concerning [X]’s future education and care. To her credit, Ms Sampson recognises Mr Darcy’s aspirations. Like Mr Bruinsma, I am confident that the parties' parenting relationship will become easier as time progresses and [X] gets older. Both parties recognise that the other is an essential component of [X] developing into a happy and well adjusted adult.
d) The likely affect of any changes in the child’s circumstances
The issues in dispute in this case are in small compass. Neither party proposes any radical change in [X]’s living circumstances. Accordingly, this is not an important consideration in this case.
e) The practical difficulty and the expense of the child spending time with each of her parents
The parties both live in the northern suburbs of Adelaide. Each of them has access to a motor car. Accordingly, there are no practical or logistical difficulties which stand in the way of [X] spending significant periods of time with her father.
f) The capacity of the parties to provide for the child’s emotional and educational needs
[X] has a strong attachment to both her parents. The evidence of
Mr Bruinsma is that she is a happy and well adjusted child. As such, I accept that both parties are capable of meeting her emotional needs.
[X] is of tender years. As such, she is too young to attend school. Given each of the parties interest in all issues to do with [X]’s welfare, I have no reason to believe anything other than that each of them will ensure she has access to all appropriate educational opportunities.
g) The child’s maturity, sex, lifestyle and background
Specific issues to do with cultural orientation, lifestyle and background were not raised by either of the parties in this case. Issues to do with [X]’s maturity were. In essence, it is Ms Sampson’s position that the court needs to be cautious about separating [X] from her primary provider of care, given her tender years.
The parties separated when [X] was barely one year old. Necessarily, this meant that arrangements for Mr Darcy to spend time with [X] would be problematic, particularly given the parties difficult relationship with one another.
However, notwithstanding these issues, Mr Darcy has been able to spend regular periods of time, including overnight time, parenting [X]. In addition, he has been respectful of Ms Sampson’s role as [X]’s primary carer. Given this state of affairs, he has stepped back from his wish to have an equal time arrangement for [X].
Mr Bruinsma gave close consideration to [X]’s age and level of development. He had regard to potential difficulties which may arise for [X] if she is separated from her mother for extended periods of time. He remained confident that [X] would be able to cope with spending substantial and significant periods of time in her father’s care, including consecutive overnight periods.
I accept Mr Bruinsma’s evidence and recommendations in this regard. In my view it is likely to be in [X]’s best interests if she does spend such periods of time in her father’s care. At this stage, I do not think that Mr Darcy’s proposals to advance his relationship with [X] should be discounted because of [X]’s age and level of maturity at present.
h) Aboriginality
This is not a relevant consideration.
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
In my estimation, both parents aspire to fully discharge each and every responsibility incumbent in being a competent parent. In this sense, each is to be regarded as a good parent. However, there remains a significant level of conflict between them.
This level of conflict prevents each of them being fully “child focussed” in their parenting of [X]. The clearest example of this lack of child focus is Mr Darcy’s decision not to take [X] to visit her mother, when Ms Sampson was hospitalised.
However, this incident seems to have been more of an aberration than the norm. It is to both parties’ credit that Mr Bruinsma was struck by their capacity to exchange information about [X] with one another and communicate respectfully.
Accordingly, it is my assessment that the parties’ parenting relationship is improving, albeit fairly slowly. It is to the mother’s credit that she acknowledges that the father is a significant figure in [X]’s life.
In addition, it is to the father’s credit that he has not pushed unreasonably for a shared time arrangement, so far as [X] is concerned and is respectful of Ms Sampson’s role as [X]’s primary carer in the period both before and after the parties’ separation.
j) Family violence
k) Any family violence order
I have already dealt with the issues of family violence in the section of this judgment, which deals with the primary considerations. Neither party contends that the presumption of equal shared parental responsibility should be rebutted by the engagement of the other in family violence involving either the children or a member of their family. There are no applicable family violence orders.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The areas of dispute, between the parties, in respect of the future parenting of [X] are ones of emphasis rather than to do with fundamentals. As such, I am relatively confident that, once these proceedings have been resolved, their parenting relationship will settle down and, as such, the prospects of future litigation are limited.
Conclusions
In my view, for the reasons provided, the main emphasis for the court, in the making of orders in respect of the future parenting of [X], should be upon how she may best have a meaningful relationship with her father, now that her parents no longer share the same household. In pursuing this exercise, I must have regard to the future quality of her relationship with her father. Necessarily this must relate to both the quantity of time she spends with him but also its context.
In my view, it would not be in keeping with the definition of “substantial and significant time” if Mr Darcy’s time with [X] is confined to weekends alone. It is likely to be of benefit to [X] if she is able to interact with her father on weekdays as well as weekends. The fact that Mr Darcy is employed should not, of itself, act as an impediment to [X] seeing her father on week days.
Given the strength and importance of [X]’s relationship with her father, in my view, it is likely to be in her best interests to spend more rather than less time with him. However, Mr Darcy’s availability should not be the sole determinate of when [X] spends time with him. It is also important for [X]’s sense of identity and ongoing development that she have an opportunity to spend time with her mother and maternal relatives on weekends.
Accordingly, at this stage, I have come to the view that it would not be appropriate for an order to be made for [X] to spend every weekend with her father. A balance must be struck. In addition, in my view, I must be careful not to make any future regime unnecessarily complex or cumbersome.
Mr Bruinsma is of the view that [X] is currently able to accommodate two consecutive nights away from her mother and will soon be able to cope with three. I accept this evidence.
[X] is now three years of age. Given Mr Bruinsma’s evidence, I think it appropriate that [X] spend time with her father, on alternate weekends, for two consecutive nights. I propose from 10:00am Saturday until 8:00am the following Monday. This regime can be extended until 6:00pm the following Monday, when [X] turns four years of age.
Mr Darcy accepts that it is appropriate to keep the current Wednesday arrangement to one where he and [X] spend Wednesday afternoon together. However, it would seem to me to be appropriate that there should be a start to an overnight mid-week period when [X] has reached four years of age.
Once [X] has started primary school, it will be appropriate for her to spend a longer alternate weekend with her father, from after school on Friday until school recommences the following Monday. In addition, so that the relationship between the two may be more rounded, particularly so that the two can have ‘hanging out together” time, I think it appropriate that the mid-week period be retained in the other week of each fortnight.
The sole question which remains is whether this regime should result in [X] being in her father’s care for four days or five days per fortnight. In my view, the difference is not a profound one. Rather, it is a symptom of the “divorce wars” to which reference has already been made.
At the end of the day, in order to satisfy the service of [X]’s best interests, I wish her to have a rounded and fulfilling relationship with her father, which is not stilted or artificially confined. The two need to be comfortable in one another’s company. By comfortable, I mean that the time they spend with one another need not be stuffed with activities to make it pass.
Will the quantative difference of five days per fortnight, as opposed to four nights, make any difference in this regard? I am not sure that it will. However, from Mr Darcy’s point of view, I accept that every potential moment, which he can spend with [X], is important to him, particularly at this stage of the parties’ relationship with one another, when they have been engaged in acrimonious and adversarial litigation with one another.
I must approach the issue from [X]’s perspective, particularly how I think her interests may be promoted. I am satisfied that [X] will have a meaningful relationship with her father regardless of whether the final arrangement is four nights per fortnight or five nights per fortnight, during the school year.
Necessarily, there is no right or wrong answer to this issue. I must exercise a discretion, which is to be informed by my view of how [X]’s interests will be best served in future. Different minds can reach different views about the issue involved. I say these things because I am very well aware that inevitably my decision, as to this issue, will gravely disappoint one of the parties concerned.
In this case, I am concerned about the possible consequences for [X] if she perceives her life, in early childhood, as being unduly compartmentalised between time spent with her mother and time spent with her father. The question for the court being “will a shared living arrangement in this parental context lead to an experience for the children of being richly shared, or deeply divided?”[29]
[29] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
At this stage, I have some reservations about whether the parties’ parenting relationship will be capable of sustaining a 5/9 day per fortnight regime. In this regard, I have had regard to the matters listed in section 65DAA(5) of the Family Law Act1975. Too a very large extent, it is axiomatic that the parties lack capacity to implement the arrangement sought by Mr Darcy by virtue of the fact that it is such a hotly contested issue between them.
For obvious reasons, the best chance of a successful implementation of the regime preferred by Mr Darcy is if it could arise consensually and organically between the parties, in response to their shared perception of how [X] was faring emotionally and developmentally. Given the intensity of the dispute between the parties regarding the issue, it would be unrealistic for me to anticipate such an outcome in future.
However, Mr Bruinsma noted that the parties communicate quite well with one another and in the past have been able to reach compromises in respect of [X]’s care. In addition, Ms Sampson has expressed her wish to avoid litigation between the parties. Accordingly, it may be the case that, in spite of the problems in the parties’ ability to communicate, they will be able to sustain such a regime and [X] will not be detrimentally affected by it.
At present, there is no indication that [X] is suffering emotionally because of the lack of full agreement between her parents as to current and future care arrangements. She presents as a happy and well adjusted child. However, in my assessment, she is likely to become more vulnerable to the consequences of parental discord, when she is older, particularly if those disagreements relate to the division of her time between her parents.
[X]’s main attachment is to her mother. This will remain the situation for the foreseeable future. I suspect it may not be helpful to this relationship if Ms Sampson perceives that she and [X] are being unduly accelerated along the path to Mr Darcy’s preferred outcome for the parenting of [X]. Such a perception is likely to inflame rather than mollify the parties’ capacity to compromise with one another in future.
In my view, this is an important consideration which militates in favour of the court taking a cautious approach, particularly whilst [X] is young and accommodating the transition into primary school. As I say, I accept [X] will be able to achieve a meaningful relationship with her father, whether the period of time she lives in his household is four or five days per fortnight. Accordingly, I have decided to adopt the mother’s position in respect of this aspect of the case.
For the reasons already provided, regardless of how [X]’s time is divided between each of her parents, it is appropriate that such orders be expressed in terms of her living with each of her parents.
As previously indicated, at the outset of the hearing before me, the parties were able to agree on many aspects of the case. In particular, they acknowledged that [X]’s needs would change as she matured and it was important that she should have a significant relationship with both her parents and other family members.
To the parties’ credit, they also agreed that [X] would be educated in a school which fell under the auspices of the Roman Catholic Department of Education. They also agree that it is likely to be preferable for [X] if they attend mediation or some other form of family dispute resolution prior to commencing any court proceedings.
The orders, which I will make in these proceedings, will be prefaced by these acknowledgements in order to formally memorialise them. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and thirty-nine (339) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 11 December 2009
and Clauson v Clauson (1995) FLC 92-595
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