DILLON and ANNING
[2017] FCWA 50
•21 APRIL 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DILLON and ANNING [2017] FCWA 50
CORAM: WALTERS J
HEARD: 25 AUGUST 2014, 3, 4 & 5 AUGUST 2015
DELIVERED : 21 APRIL 2017
FILE NO/S: PTW 6149 of 2012
BETWEEN: MR DILLON
Applicant
AND
MS ANNING
Respondent
Catchwords:
FAMILY LAW – PARENTING ISSUES – where mother is primary carer of child – where mother seeks sole parental responsibility and father seeks equal shared parental responsibility – whether presumption that it is in child's best interests for parents to have equal shared parental responsibility applies – where presumption has been rebutted – where father's proposal involves a significant change to pre-existing care arrangements – where it is not in child's best interest to make such a significant change immediately – history of family violence – where parties are unable to co-parent effectively – Orders made for child to live with mother and spend substantial and significant time with father
FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests under the Family Law Act (1975) (Cth) – consideration of the parties' respective contributions – consideration of s 75(2) factors – case turns on its own facts
Legislation:
Corporations Act 1990 (Cth)
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Self-Represented Litigant
Solicitors:
Applicant: Self-Represented Litigant
Respondent: Self-Represented Litigant
Case(s) referred to in judgment(s):
Bevan & Bevan [2013] FamCAFC 116
Bolger & Headon [2014] FamCAFC 27
Champness & Hanson (2009) FLC 93-407
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-596
Collu & Rinaldo [2010] FamCAFC 53
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242
Herridge & Handerson [2011] FamCAFC 156
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Hungerford & Tank [2007] FamCA 637
Jets & Maker (No 2) [2011] FMCAfam 1473
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92‑667
Mills & Watson (2008) 39 Fam LR 52
Monie v the Commonwealth (2005) 63 NSWLR 729
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
Paxton & Paxton [2016] FCCA 1689
Rollings & Rollings [2009] FamCAFC 87
Russell v Russell (1999) FLC 92-877
Sayer & Radcliffe (2012) 48 Fam LR 298
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
Waters & Jurek (1995) FLC 92-635
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1This case is primarily about the living arrangements for a child, [C], born [in] 2007. It also involves property settlement.
2The matter was originally listed for trial on 25 August 2014. C's interests were then represented by an independent children's lawyer, Mr Kearney.
3The parties were able to reach an interim agreement relating to arrangements for C. As a result, the proceedings were adjourned on a part-heard basis and a Child Dispute Conference was listed for May 2015. It was hoped the parties could trial the interim agreement which would then become a more final arrangement. Mr Kearney ceased to act on 15 September 2014. Thereafter, the parties were not able to cooperate, and the matter came before me for trial again on 3 August 2015.
4In the meantime, on 19 November 2014, the father filed a contravention application against the mother – which was dealt with on 17 February 2015. The mother was found to have committed the contravention and was ordered to attend a post separation parenting program. Some additional parenting orders were also made, to enable the father to be more involved in C's life.
5The father filed a further contravention application on 30 January 2015, and this was listed for the first day of trial. He discontinued the contravention application on 14 May 2015.
6On 31 October 2014, the father sought that the parties' financial matters be included in the proceedings. This was very much a secondary issue, and little evidence was led in relation to financial matters (which involved a very modest asset pool).
7The trial resumed on 3 August 2015, and after hearing evidence over the course of three days, I reserved my judgment. These are my reasons for judgment and the orders I intend to pronounce.
General observations
8At the conclusion of the trial, I said I would my publish orders very quickly. That has not come to pass.
9I am well aware of the delay between the completion of the hearing and the delivery of these Reasons. In Rollings & Rollings [2009] FamCAFC 87, the Full Court said at [67]:
The authorities … establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not … a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in Monie v the Commonwealth (2005) 63 NSWLR 729 at [3]: "extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge's findings or whether the trial judge's reasons are adequate".
10Similarly, the Full Court in Herridge & Handerson [2011] FamCAFC 156 said that the "real issue" may be –
… whether material findings of fact made by the trial Judge, and/or conclusions reached by him in reliance upon them, could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment. That in turn is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge's delay in delivery of judgment may have caused, or contributed to his error(s) is irrelevant. If they are not, it is difficult to see how his delay could change anything.
11Their Honours added at [22]-[23]:
If … findings of fact made by the trial Judge were not reasonably open to him, it does not matter whether that occurred because of the time his Honour took to deliver his judgment or for some other reason. That is also the case if such findings are shown to have been "unsafe"... If it is demonstrated that his Honour's discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened. …
What we have said ought not be misconstrued, however. It is regrettable that judgment was not delivered more expeditiously than it was in this case. In a case where impressions of parties and witnesses clearly assumed considerable significance, a delay of eight months had the potential to diminish the clarity of the trial Judge's recollection of their evidence, and his assessment of its reliability. We shall subject the trial Judge's judgment to closer than usual scrutiny …
12I would like to apologise for the delay in both the making of the orders and the publication of the reasons for judgment. This delay comes about as a result of a combination of factors. Firstly, I have suffered some personal difficulties – including in relation to my own health. More generally, and due to limited court resources, I have faced an unrelenting workload and it has not been possible to address some matters in a more timely fashion.
13At the conclusion of the trial, I explained to the parties that I was intending to make orders that gave the father more time with C than he was then having. I also said I would not make significant changes to the existing orders, and indicated that this case was not at the point where an equal shared care regime was in C's best interests. I am hopeful that each of the parties paid attention to what I said as it remains my current thinking after a very careful review of all the evidence.
14I have had the opportunity to consider the transcript of the trial. Similarly, I have taken the opportunity to remind myself of the orders made during the course of the proceedings.
15Although the parties have been very ready in the past to bring the matter before the Court, on this occasion (and after what I said at the end of the trial) there has been no application to reopen. This gives me some cause for optimism in relation to C's future welfare.
16The reasons I now publish are based on the evidence I heard to the end of the trial, although I am acutely aware of the effluxion of time since this matter last came before the Court.
Terminology and interpretation
17In these Reasons, and unless otherwise indicated:
17.1all statements of fact comprise findings of fact;
17.2I refer to the parties as the "mother" and the "father" (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;
17.3I refer to Mr Adam Peaty, the Single Expert Witness, as "Mr Peaty";
17.4I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
17.5although the law now refers to a child "spending time" with a person with whom C does not live, I have used the obsolete term "contact" from time to time – because it is both more convenient and less grammatically challenging to do so;
17.6I have referred to all affidavits filed by or on behalf of the parties or witnesses as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm"); and
17.7unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA".
The parties were unrepresented
18Given that the parties were unrepresented, I was very conscious of the obligation upon the Court to provide a fair trial. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
18.1procedural fairness was afforded to both parties;
18.2the "mechanics" of the trial, and the right of the parties to cross-examine witnesses, were explained to the parties;
18.3other relevant procedures were explained to the parties as they arose;
18.4I explained to the parties that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible;
18.5where appropriate, I attempted to clarify the substance of each party's submissions; and
18.6where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines (supra) at [253]: see Guideline #9 in that paragraph.
19In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph "were no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".
20In the present case, both parties participated in the trial process fully. I have no doubt that they fully understood "what was going on" at all times.
Brief Background and Procedural History
21The father was born [overseas] in 1981. The mother was born in 1986.
22The mother and the father met in 2006, when they were both in [Coastal Town B]. In or around December 2006, they travelled overseas.
23The mother fell pregnant in or around February 2007, and the couple were married [in] 2007, whilst still overseas.
24In or around August 2007, the parties returned to Western Australia. C was born [in] 2007.
25In August 2008, the parties purchased a property [in suburb P]("[the Suburb P property]").
26The Suburb P property was purchased without a deposit, using the Government Keystart Scheme ("Keystart"). The purchase price was $330,000. At the date of trial, the Keystart mortgage balance was $152,646. I am told that the effect of Keystart is that the parties own 60% of the property and the Government owns the remaining 40%. At the time of trial, the parties agreed that the Suburb P property was valued at $350,000.
27The mother and C have lived in the Suburb P property since the parties separated [in] 2012.
28At separation, the mother obtained an interim violence restraining order ("VRO") against the father. This was made final (by consent) on 18 October 2012. It expired in October 2014. The mother's application to extend the VRO did not proceed at that stage.
29It is common ground that the relationship between the parties was tempestuous. They separated on at least two occasions during the marriage, and the police were called to the Suburb P property on at least three occasions. During a brief separation in 2011, the father consented to a VRO sought against him by the mother for the protection of C. This VRO was eventually cancelled when the couple reconciled.
30The father commenced court proceedings on 30 October 2012.
31The mother filed a notice of child abuse on 6 December 2012. In the notice, the mother alleged that the father abused alcohol, which resulted in him neglecting C and making inappropriate decisions in relation to C's care. She also alleged that the father was violent, and physically and verbally abusive to her in C's presence. Further, she asserted that he had threatened to burn her house down. On 25 January 2013, the Department for Child Protection and Family Support ("DCPFS") reported no substantiated harm or risk of harm to C – by either parent.
32On 19 December 2012, the Court made orders for the father to have contact with C every week on a Thursday (for one and a half hours) and Sunday (for three hours), and each fortnight on a Tuesday (for two hours) – to be supervised by both, or either of, the maternal grandparents.
33On 6 September 2013, Adam Peaty was appointed as single expert witness in the proceedings. Mr Peaty is a social worker. He provided a report dated 17 December 2013 ("the Report").
34Contact between C and his father did not proceed smoothly. The father and the maternal grandfather had some differences. Subsequently, an independent service provider replaced the maternal grandparents in supervising contact between C and his father.
35The parties were divorced on 22 December 2013.
36On 9 January 2015, the mother applied for and was granted a further interim VRO protecting her from the father. The father objected to the interim order and the matter was listed for a final hearing on 18 June 2015. The presiding magistrate provided reasons for decision on 16 July 2015, when the VRO was made final. It is common ground that the father was ordered to pay costs fixed in the sum of $3000.
Documents relied upon
37The documents on which the father sought to rely were listed in his papers for the judge. They comprised three of his own affidavits: sworn 30 April 2015, 15 January 2014 and 22 April 2014. He also relied upon the affidavits of two witnesses: [Emma Meredith Dillon] (sworn 28 January 2014) and [Marie Harper] (sworn 30 January 2014).
38At the Readiness Hearing, and again at the trial, the mother indicated that she did not wish to cross-examine the father's witnesses. Consequently, they were not called to give evidence. The documents on which the mother sought to rely were listed in her papers for the judge. They comprised six of her own affidavits: sworn 4 December 2012 (two affidavits), 30 May 2013, 13 March 2014, 16 October 2014 and 3 May 2015. She also sought to rely on three of her financial statements: sworn 16 October 2014, 24 March 2015 and 3 May 2015.
39In addition, the mother sought to rely on a number of witness affidavits. These were the affidavits of:
39.1 [Kevin Anning], sworn 20 May 2013;
39.2 [Emily Horne], sworn 20 May 2013;
39.3 [Kelly Anning], sworn 13 March 2014;
39.4 [Chad Bennett], sworn 17 March 2014;
39.5 [Clancy Colins], sworn 16 March 2014;
39.6 [Sally Edwards], sworn 18 March 2014;
39.7 [Kate Anning], sworn 1 August 2014;
39.8 [Natalie Brown], sworn 1 August 2014;
39.9 [Claire Andrews], sworn 15 August 2014; and
39.10 [Ella Oliver], sworn 9 July 2015.
40At trial, the father indicated that he did not require Chad Bennett or Natalie Brown (who was [inter-state]) for cross-examination. He later indicated that he would not require Sally Edwards, Kate Anning, Claire Andrews and Ella Oliver for cross-examination.
41Both parties relied upon the report of Mr Peaty dated 17 December 2013, although neither required him for cross-examination.
42I again confirm that I have read and considered all the documents relied upon by the parties, including the affidavits of witnesses not required for cross-examination.
The competing proposals at trial
The mother's proposal
43The mother outlined her proposals in her papers for the judge filed 24 July 2015. Relevantly, she sought that C live with her and that she have sole responsibility for him. She proposed that C have contact with his father every two out of three consecutive Sundays from 8.30 am to 3.30 pm with handovers to be supervised. She also sought other orders in relation to specific issues.
44In relation to financial matters, the mother sought orders to the effect that the father transfer his interest in the Suburb P property to her. Contemporaneously with the transfer, she proposed that she would pay him $14,188. She had calculated that this represented a 25% share of the parties' equity in the Suburb P property.
The father's proposal
45The father outlined his proposals in his papers for the judge filed 27 July 2015. At that stage, he was seeking that C live with each party on a week-about basis, and that the parties have equal shared parental responsibility for him.
46During the trial, the father modified his proposal to the effect that C live with the parties on an equal shared basis. Although he wanted this arrangement to take effect eventually, he accepted that it would be a gradual process.
47In relation to the financial aspect of the proceedings, the father sought that the mother pay him $50,000 within 30 days and that, upon such payment, his interest in the Suburb P property would be transferred to her. He also sought to be reimbursed for a percentage of an outstanding loan in relation to a [Ford Fiesta] motor vehicle, which was in his name. In addition, he sought that the mother pay him –
47.1$5,000 – which apparently related to payment of some surgery undertaken by the mother; and
47.2$500 – which apparently related to replacement of certain personal belongings allegedly destroyed by the mother.
48The father also sought orders relating to specific items of property, and a further order that each party retain his/her superannuation entitlements.
Property Settlement
49In my opening remarks, I gave a broad, but thorough, summary of the legislative procedures in a property settlement case. I discussed the law relating to property settlement in my decisions in Dekker & Dekker [2014] FCWA 61 and Fitzgerald-Stevens & Leslighter [2015] FCWA 25. I acknowledge, however, Thackray CJ's references to the former decision in Fielding & Nichol [2014] FCWA 77.
Approach prior to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108
50Until the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 ("Stanford") , the Full Court had consistently ruled that the general approach to a property settlement application was settled. The first "step" or "stage" was for the Court to identify the property of the parties. It was then required to attribute a value to each item of property – usually as at the date of the hearing. Thereafter, it assessed the extent of each party's contributions under the various sub-headings described in s 79(4). Finally, the Court considered the financial resources, means and needs of the parties, and the other matters set out in s 75(2) so far as they were relevant. An adjustment of the amount due to each party by way of contribution was then made by reference to the s 75(2) factors. It was not essential, however, that such an adjustment take place. Generally speaking, an adjustment was made because one party had greater needs and the other had stronger means.
51In relation to the contributions of the parties under s 79(4) generally, it had been held that a "global" approach would usually be more convenient than an "asset by asset" approach – although the application of an asset by asset approach does not (of itself) amount to an error of law: see Norbis v Norbis (1986) 161 CLR 513.
52The s 75(2) factors were considered to be directly or indirectly related to the process of arriving at a just and equitable result.
53It had also been held that, under s 79(2), the Court was required to be satisfied that the property settlement orders that it proposed to make were just and equitable – and not simply that the underlying percentage division of the net value of the parties' property was appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings was just and equitable, it was the justice and equity of the actual orders, and not of the percentage distribution, which had to be considered: see Russell v Russell (1999) FLC 92-877.
54The overall process to be applied in property settlement cases was summarised by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, where their Honours said at [39]:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
Stanford v Stanford (2012) 247 CLR 108
55In Stanford, the High Court challenged the validity of approach described above.
56The High Court emphasised that the provisions of s 79 empower the Court to make orders "altering the interests of the parties to the marriage in [their] property" (although the proceedings are described as relating to "property settlement"). As a result, it is essential to begin consideration of whether it is just and equitable to make a property settlement order "by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in [the property available for distribution between them]": see Stanford at [37].
57Of particular importance are [35] to [46] of the plurality decision in Stanford (under the heading The operation of section 79), in which it was emphasised that:
... the requirements of [s 79(2) and s 79(4)] are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
58In relation to the expression "just and equitable", the plurality said at [36] (footnotes omitted):
… "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. (Emphasis added.)
59The plurality then said that, while the power given by s 79 is not to be exercised in accordance with fixed rules, "three fundamental propositions" adhere to the power to make property orders under that section:
59.1Firstly, "it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property." The interest of parties in property cannot be altered unless their existing legal and equitable interests in the property can be identified.
59.2Although the court has a very broad power to make orders in relation to property, "it is not a power that is to be exercised according to an unguided judicial discretion". The judicial discretion must be exercised in accordance with legal principles – including the principles which appear within the FLA itself. Further, "because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is 'just and equitable' to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist": see Stanford at [39].
59.3The question presented by s 79 is whether those rights and interests should be altered.
60The consideration of the various factors in s 79(4) (including the parties' contributions in all their various guises) does not give rise automatically to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The just and equitable requirement in s 79(2) must also be considered and applied. Thus: "to conclude that making an order is 'just and equitable' only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the [FLA]".
61After referring to the above three propositions, the plurality in Stanford explained at [42] that – in the vast majority of cases – the requirements of s 79(2) are fairly easily satisfied:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
62Before proceeding further, I record that my attention has been drawn to the decision of a judge of the Federal Circuit Court of Australia in Paxton & Paxton [2016] FCCA 1689 ("Paxton"). Among other things, the decision purports to examine and interpret Stanford and other cases. The judge's understanding of the effect of Stanford is novel. It appears to be unique, and somewhat courageous. I have been unable to locate any authority – much less any authority binding on this Court – which supports that understanding, or the judge's categorisation of wholly uncontentious dicta in a number of first instance judgments delivered after Stanford as being "impermissible deviations" from the propositions approved by the High Court. Leaving aside the infelicity of some of the judge's comments, his Honour's discussion of aspects of the meaning and effect of Stanford is neither principled nor persuasive. It is certainly inconsistent with the large number of Full Court decisions which have been handed down since Stanford. I need say nothing more about Paxton.
Summary of current position
63The Full Court has taken the opportunity to discuss the decision in Stanford in a number of comparatively recent decisions, including Bevan & Bevan [2013] FamCAFC 116, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
64I recognise that I am bound by the Full Court's explanation of the operation of s 79 and acknowledge that it has ruled in the decisions referred to above that:
64.1it would be a "fundamental misunderstanding" to read Stanford as suggesting that the matters referred to in s 79(4) must be ignored in determining whether it is just and equitable to make an order altering property interests;
64.2on the other hand, a consideration of the s 79(4) matters is not mandatory in answering the s 79(2) question;
64.3the just and equitable requirement is not "a threshold issue, but rather one permeating the entire process"; and
64.4while the s 79(2) and s 79(4) issues must not be conflated, "they are intertwined because the text of the [FLA] links them".
65I respectfully agree with Thackray CJ in Fielding & Nichol (supra) at [33] that the effect of the Full Court's analyses of the operation of s 79 is that "it is open to a trial judge, in addressing the s 79(2) question, to consider matters that may be seen as arising under s 79(4), but consideration of those matters is by no means conclusive in determining whether the 'just and equitable' test has been met".
66As discussed in my decision in Fitzgerald-Stevens & Leslighter (supra), and assuming a "step" or "stage" based approach to the determination of an application brought pursuant to the provisions of s 79 (which I shall call "the property settlement exercise") is still appropriate, my view is that a pragmatic and principled approach to the determination of such an application is as follows:
66.1The first process in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.
66.2The second process involves ascertaining whether it is just and equitable – within the meaning and contemplation of 79(2) – to make an order altering the interests of the parties in their property. In most cases (relevantly, where the parties have separated and are no longer living in a marital relationship) the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties' interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth processes.
66.3In the course of ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property (in other words, during the second process described above), it is legitimate to consider the contributions of the parties in all their various guises, but consideration of those matters at this stage of the property settlement exercise is not obligatory; still less is that consideration conclusive in determining whether "the 'just and equitable' test" has been met.
66.4In the third process, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c), and determine their contribution-based entitlements.
66.5In the fourth process, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) – including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant – and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous process.
66.6Finally, the Court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further substantive "adjustment"; it is an opportunity for the Court to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.
66.7Throughout the process described above, the Court must bear in mind that the "just and equitable requirement" – to use the words appearing in the heading to s 79(2) – is neither "a threshold issue" nor some sort of "factor" to be considered wholly within one or more of the steps, stages or processes referred to. Instead, it pervades and informs the entire process.
Property and liabilities as at the date of trial
67I find that the parties' property and liabilities (as at the date of trial) are as set out and identified in the following schedule, which I shall call "the property schedule".
68It is difficult to identify the value of the parties' interest in their major asset, the Suburb P property, due to the lack of evidence about how the 40% relating to Keystart is calculated. I have done my best to factor that in, but there may need to be an adjustment to the figures depending on how Keystart calculates its interest.
PROPERTY SCHEDULE
Jointly held property
1.
[the Suburb P property] ($350,000)
$350,000
2.
Less: mortgage (Keystart)
($152,000)
3.
Less: Legal Aid debt for [C]
($2,324)
Total
$195,676
Father's Property
4.
[Ford Fiesta]
$9,000
5.
Boat
$1,000
6.
Household chattels
$3,000
7.
Bank account ending #603
$190
8.
Paid legal fees (add back)
$47,500
9.
Less: Credit card debt
($9,859)
10.
Less: Personal loan and car loan
($7,500)
Total
$43,331
Mother's property
11.
[Hyundai Tucson]
$5,000
12.
Household chattels
$4,000
13.
Bank account ending #609
$1,100
14.
Bank account ending #170
$757
15.
Paid legal fees (add back)
$5,000
16.
Less: Loan from maternal grandparents (home maintenance)
($4,000)
17.
Less: Mother's legal fees (Debt to Legal Aid)
($5,674)
Total
$6,183
Superannuation assets
18.
Father
$33,150
19.
Mother
$20,000
Total
$53,150
TOTAL OF ALL PROPERTY
$298,340
69At the time of the trial, the only items that remained in dispute were the amount of the father's credit card debt and his student loan. The father maintained he had a credit card debt of some $9,000. The mother wanted the amount "vouched" (in other words, she required evidence that the debt was as they father asserted it to be). The only evidence I have in relation to that matter is a copy of a Bankwest Zero MasterCard statement for the period 23 June 2015 to 23 July 2015. This lists the father's outstanding balance as $9,859: see exhibit H1. I have included this amount in the property schedule.
70The father also maintained he had a student loan in the amount of $4,400. No evidence was presented at trial as to what this debt was or to prove its existence. Consequently, I do not propose to take it into account.
71It was agreed by the parties at the commencement of the trial that legal fees should be added back into the "pool" of property available for distribution. Such an approach is entirely uncontroversial: see NHC & RCH (2004) FLC 93-204 at [55]-[60]; see also Harrington & Harrington and Ors (supra) at [18]‑[19].
72It is unfortunate that the parties spent very little time preparing this aspect of the case. There was a dearth of evidence upon which the Court could draw conclusions. It was also unfortunate, given the limited nature of the asset pool, that the parties could not agree a distribution between themselves. Nonetheless, the parties were able to agree much of the contents of the property schedule, which assisted the Court in the property settlement "exercise". Otherwise, the parties simply asked the Court to deal with the issue of property settlement as best it could.
Should I make a property order?
73Before proceeding further with what might be perceived as the next relevant process in the property settlement exercise, it is pertinent to record that I do not propose to proceed with that exercise by applying a general assumption to the effect that the parties' rights to or interests in their property should be different from those that now exist. I reject that assumption. In other words, I recognise that the core issue for determination in these proceedings is whether the parties' rights to and interests in the property contained in the property schedule should be altered: see my discussion of the High Court's decision in Stanford above.
74It is also pertinent to record that consideration of the various factors in s 79(4) – including the parties' contributions in all their various guises – does not automatically give rise to a right on the part of either of the parties to have the property contained in the property schedule divided between them by reference to those factors. The "just and equitable" requirement in s 79(2) must be (separately) considered and applied. I am conscious of the need not to conflate the requirements or considerations contained in s 79(2) on the one hand, and s 79(4) on the other.
75As explained above, however, the parties in this case separated well before the commencement of property settlement proceedings. It is readily apparent that the express and implicit assumptions underpinning the property arrangements they had made during their cohabitation have been brought to an end by the "severance of the mutuality of the marital relationship". Further, any assumption the parties may have had to the effect that they could change or adjust their property arrangements consensually (as each may need or desire) no longer applies.
76Further, both parties have asked the Court to make orders altering their property interests, now that their relationship has ended.
77It follows that it can be considered just and equitable that the Court should make a property settlement order (which order is to be determined by applying s 79(4), including the s 75(2) factors): see, again, my discussion of the High Court's decision in Stanford above. Indeed, I am satisfied that, in the circumstances of the case now before me, it is just and equitable within the meaning of s 79(2) to alter the existing interests held by the parties in their property.
Contributions
78Having identified the property available for distribution between the parties, I turn now to identify and assess the parties' contributions in all their various guises.
79When the relationship commenced, the parties had no assets of significant value. The only item of significant value acquired during the marriage was the Suburb P property. No deposit was paid for the property and, as a consequence, they only own 60% of the gross value.
80The parties were unable to agree upon the manner in which their respective contributions should be assessed. For example, the mother said that she was the primary homemaker, and that she was responsible for the household chores. At trial, the father disputed this and said that he undertook these tasks. He asserted that the mother did the washing, and not much else in the way of household chores.
81The father also said that he paid the entirety of the expenses associated with the Suburb P property. In this regard, the mother said that all expenses were paid from a shared bank account. Unfortunately, there is no evidence before me that could clarify the issue. Both parties acknowledge, however, that the mother has paid all the expenses associated with the Suburb P property since separation. She has paid the mortgage, rates and taxes since 2012.
82It appears that both parties were employed until C was born. At that time, the mother took a year off to care for him. I find that – during this time – she was the primary homemaker and caregiver for C, despite the father's assertions to the contrary. I accept that the father assisted with C's care, but the primary responsibility lay with the mother in this regard.
83The father worked in paid employment throughout the relationship. Very little evidence was presented regarding his income. He said his income was about $1,200 per week, or $62,400 per year.
84A year after C's birth, the mother returned to work. Her current working arrangement is outlined elsewhere in these Reasons.
85During that time, the mother also studied, and I accept that she relied on the father to assist her while she was studying. I find, however, that her parents were primarily involved with assisting her with C's care.
86Since separation, the mother has remained the primary caregiver for C, and has taken on the financial obligations of the parties. The father pays child support, being $196 per week, but otherwise does not contribute financially.
Conclusion regarding the parties' respective contributions
87An assessment of contributions is not a strict mathematical or accounting exercise: see, for example, Dickons & Dickons [2012] FamCAFC 154. It is not always possible to balance "like with like", in that the different forms of contribution can have very different characteristics and may carry different weight. Similarly, the timing of the forms of contribution can be telling. In a very broad sense, the exercise is what might be considered an imprecise, macrocosmic one – as opposed to a detailed, microcosmic analysis of the source and destination of each dollar passing through the parties' hands and their every action, inaction or reaction (however small or insignificant). "The task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of [a] particular relationship": see Dickons & Dickons (supra) at [24]; see also Bolger & Headon [2014] FamCAFC 27 at [23] to [28].
88In all the circumstances, including the period of cohabitation, I conclude that 55% of the property available for distribution should be allocated to the mother. This is on the basis of her contributions from the commencement of cohabitation to the time of trial. I also conclude that the remaining 45% should be allocated to the father on the same basis. While both parties worked and cared for C during the relationship, it is the mother who has borne the bulk of the responsibilities since separation, in particular to the extent that those responsibilities have related to C and to the Suburb P property (where she and C live).
89In G & G [2004] FamCA 1179, the Full Court said (in relation to an exercise of judicial discretion such as that which I have performed in the previous paragraphs):
…[Words] will often (perhaps always) fall frustratingly short of an incontestable explanation for any particular exercise of discretion – or, for that matter, for a finding by an appellate court that a particular exercise was wrong. All the relevant factors can be described, with modifiers in abundance, but still the analysis will beg the question, "Yes, but why that figure and not another?" or "Why was that the range rather than some other parameters?"
The deficiency is unavoidable. When there are a number of "right" results available, the explanation for the choice of one over others can never be incontestable. Nor can the reasons for saying that a result is outside a range be beyond challenge. The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result. ...
(In) respect of virtually every exercise of discretion, by definition, it will not be possible to deliver a judgment which excludes reasoned argument that another result was available.
90For what it is worth, I concur with the Full Court's view as expressed in the passage from G & G (supra) quoted above. The "balancing exercise" the Court must perform is rarely an easy or non-contentious one. It is also worth noting what Coleman J, sitting as a single judge exercising appellate jurisdiction, said in a well‑known passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193:
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
Section 75(2) factors
91So far, in considering the question of property settlement, I have dealt with the identification of the parties' property and related issues. The Court has power to make an adjustment to a party's property settlement entitlement based on such contributions in order to take account of, among other things, both parties' respective means and needs. The Full Court has been critical of shorthand terms being used to describe this step in the property settlement exercise, preferring to refer to it simply as "the section 75(2) factors": see Clauson & Clauson (1995) FLC 92-596. In essence, s 75(2) is concerned with the process of arriving at a just and equitable result: see, in that regard, Waters & Jurek (1995) FLC 92-635.
92I turn now to consider the s 75(2) factors where they are relevant. I have either not referred to, or only mentioned briefly, factors which have no or minimal relevance to the present case.
93At trial, the father was aged 35 and the mother was aged 29.
94Both parties appear to be in good health. Both have complained of depression in the past, but there was no evidence before me that either party suffers a condition that would impact upon his/her ability to work, either now or in the future.
95The mother is C's primary caregiver, and the father spends time with him.
96The mother retrained as a [nurse's assistant] during the relationship, and is now working in that capacity on a full-time basis. She also sees private clients in her role as a [hairdresser]. Her taxable income in the last financial year was $43,920.
97The mother is also in receipt of Centrelink benefits. It appears from her bank statement at annexure TA-6 of her affidavit sworn 3 May 2015 that, at trial, she was receiving $539 per fortnight by way of family payment and Centrelink pension.
98At the time of trial, the father was a [store manager]. In his papers for the judge, he said that he was earning $1200 per week. There was no evidence that the father receives any government benefits.
99The father has a diploma from [an overseas College], and is currently enrolled in a degree at [University A]. His university studies will result in associated debt, in that the fees will be deducted from his salary at some time in the future. If he is to complete that degree – and there is no evidence to suggest that he will not – his earning capacity will eventually far outweigh that of the mother. I am satisfied that the father has a greater current income, and a greater income earning capacity, than the mother.
100I have set out the arrangements for C elsewhere in these Reasons. C will continue to live with the mother and spend time with the father.
101There is no evidence that either party is responsible for supporting anyone other than themselves and C.
102The parties have modest superannuation entitlements (to which reference is made in the property schedule).
103The mother would like to retain the Suburb P property. While the father expressed a desire to return to the home, his minute of orders sought suggests he is content for the mother to retain it. Unless the mother can refinance or borrow the funds, however, it appears likely that she will struggle to keep the property if a significant cash adjustment is ordered.
104Both parties are entitled to a reasonable standard of living. Having regard to the father's earning capacity, I am satisfied that he will be able to maintain a reasonable standard of living. The mother expressed no interest in further retraining. Indeed, she said that she wished to continue in her current employment.
105This was a relatively short marriage. There was no evidence to suggest that it has affected either party's earning capacity.
106Both parties wish to continue their roles as parents. Given the family arrangements, I find that the mother's role is likely to be more onerous than that of the father. She will remain primarily responsible for the care and supervision of C.
107There was no evidence that the mother is cohabitating with another person.
108The father pays child support for C. I have no reason to believe he will cease to do so in the future.
109There seem to be no other relevant facts or circumstances which the justice of the case requires to be taken into account.
Conclusion regarding s 75(2) factors
110In my opinion, the most significant of the s 75(2) factors are that the mother will retain the primary and predominant responsibility for the care and supervision of C and that the father's earning capacity is greater than that of the mother (particularly if he completes his degree).
111I have not ignored any of the other matters referred to under the heading Section 75(2) factors.
112Having regard to all the evidence before me, I am persuaded that it is appropriate to make an adjustment on the basis of the s 75(2) factors. I am so persuaded because the purpose (or one of the purposes) of the s 75(2) adjustment is to assist the Court in the process of arriving at a just and equitable result. To refuse to make an adjustment in the present proceedings would be to run the risk of making orders which are neither just nor equitable.
113On balance, and all the circumstances, I conclude that an appropriate adjustment of the parties' entitlements on the basis of contribution alone is to increase the mother's entitlement by 5% (and decrease the father's entitlement by a corresponding amount). I recognise, of course, that such an adjustment creates a "differential" between the parties of 10%.
114It follows that the overall distribution of the property between the parties should be on the basis of 60% to the mother and 40% to the father.
115Clearly, the observations I have already quoted from G & G (supra) and Steinbrenner& Steinbrenner (supra) also adhere to the exercise of judicial discretion I have just performed in relation to the s 75(2) factors.
Just and equitable?
116As indicated above, the High Court in Stanford explained that the consideration of the various factors in s 79(4) – which includes reference to s 75(2) factors – does not automatically give rise to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The requirement contained in s 79(2) must be considered and applied.
117I propose to (metaphorically) step back and consider whether the outcome achieved by my consideration of the parties' contributions and the s 75(2) factors has brought about a just and equitable result.
118The Full Court has cautioned against assessing the s 75(2) factors in percentage terms, without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is "the critical issue": see Clauson & Clauson (supra).
119If the mother is entitled to 60% of all the property available for distribution as at the date of the trial, then she is entitled to property to the value of $179,004 (being 60% of $298,340). The value of property, including superannuation, in her possession or under her control at trial is $221,859 (being items #1, #2 and #3, #11 to #17 inclusive and #19 in the property schedule). It follows that if the mother is to retain those items (and I am aware that item #3 comprises the Legal Aid debt), then she should pay the father $42,855 (being the amount by which the value of the property she is to retain exceeds the value of the property to which she is entitled – i.e. $221,859 minus $179,004).
120I stress that these figures are dependent on Keystart. I have utilised the available figures as a guide on the assumption that they are accurate – or at least close to the correct figure.
121The difficulty a trial judge faces in determining which orders may be perceived to be just and equitable in property settlement proceedings involving a property "pool" of very modest value was recognised by the Full Court in Dow-Sainter & Dow-Sainter (1980) FLC 90-890 at 75,616:
Such situations are not uncommon in this Court being caused by the brutal and inescapable fact, that when two parties separate, property which may have allowed them together a reasonably comfortable standard of living, is simply not sufficient when divided.
122I accept that the asset pool is not large enough to satisfy the legitimate needs and wishes of both parties. I have done the best I can, however, to the strike the balance the law requires of me.
123The father has an outstanding costs order of $3000, which he is obliged to pay to the mother. In all the circumstances, I propose to deduct this amount from the funds the mother is to pay to him. I am mindful that the father's assets in the property schedule include an addback of his paid legal fees. The mother's assets also include an addback of paid legal fees, although the figure is much lower. This was an agreed position at trial, however, which is consistent with the relevant law.
124It follows from the above that the mother must pay the father $39,855 (being $42,855 minus $3,000). Such a payment will achieve an overall division of the property referred to in the property schedule on the basis of 60% to the mother and 40% to the father.
125I am very conscious that justice and equity must be done to both parties, and I am satisfied that the split that I have decided upon achieves that result.
126My orders relating to financial matters can be found at the end of these Reasons.
Child Related Matters
127The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
128Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Pt VII of the FLA.
129The Full Court carefully analysed the structure and effect of Pt VII in Goode & Goode (2006) FLC 93-286 ("Goode"). It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
130Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child" [s 64B(3)]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ even though such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent): see the definition of "major long-term issues" in s 4(1).
131If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision [s 65DAC]. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent [s 65DAE].
247.13Both parties and their servants or agents be and are hereby restrained by injunction from applying substances (including, but not limited to, chilies and soap) to any part of C's body as a disciplinary technique.
247.14Until further order of the Court, the father, his servants and/or agents be restrained and an injunction is hereby granted restraining him from removing or attempting to remove or causing or permitting the removal of C from the Commonwealth of Australia.
247.15The Australian Federal Police be requested to place C's name on the Airport Watch List operating at all international ports in Australia, and the mother do supply the Australian Federal Police with a sealed copy of this order.
248I do not know the parties' present circumstances. Over the course of a three day trial, however, I observed them begin to appreciate the need for a more respectful and constructive relationship to adhere between them.
249I intend to make orders in this matter based, as far as I am able, on the position at trial. The parties should understand, however, that if there has been a significant change in circumstances – which change impacts on C's best interests – then they have the right to return to the Court for further guidance. Still, the Court hopes that, given the effluxion of time, the parties will have already become more amenable to attempting to resolve parenting issues in a respectful, cooperative and child-focused manner.
Parental responsibility, equal time and substantial and significant time
250As indicated above, the Court must apply a presumption that it is in C's best interests for his parents to have equal shared parental responsibility. The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused C (or another relevant child), or has engaged in family violence.
251As discussed under the heading Child Related Matters above, I am required to consider whether C spending equal time with the mother and the father would be in his best interests (and related questions) and, in turn, whether C spending substantial and significant time with the mother and the father would be in his best interests (and related questions). In this case, I have found that it is not in C's best interests for the mother and the father to have equal shared parental responsibility.
252In all the circumstances, and for the reasons discussed above, I am not satisfied that any form of shared parental responsibility arrangement could work effectively in C's best interests.
253I have also found that it is not in C's best interests to spend equal time, at this stage, with each of his parents. I am not satisfied that such an arrangement could work. The parents' relationship and attitude to each other have been described elsewhere in these Reasons.
254In my opinion, the making of an order for equal shared parental responsibility would simply create an opportunity for there to be further friction in the relationship between the mother and the father. Such an order would generate heat, but no light.
255I have no doubt that the mother will make appropriate decisions for C in relation to major long-term issues.
Conclusion
256I have borne firmly in mind, throughout my consideration of the parties' competing applications, the various factors and considerations referred to under the heading of Child Related Matters above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals – and I decide, having considered all the factors that I believe to be relevant, that the following orders are those that are most likely to advance C's best interests (which, after all, comprise the paramount consideration in these proceedings).
Orders
257The orders I intend to pronounce immediately are as follows:
Dictionary
(1) In these orders –
(a)"[C]" means the child of the marriage born [in] 2007;
(b)words in the singular number include the plural and words in the plural number include the singular;
(c)the words "day" and "days" bear their ordinary meanings, and include Saturdays, Sundays and public holidays;
(d)"[the Suburb P property]" means the [former matrimonial home]
(e)"Keystart" refers to Keystart Home Loans, a scheme governed by the Corporations (Western Australia) Act 1990 and regulated by the Australian Securities and Investments Commission.
Property
(2)Subject to paragraphs 4 and 5 hereof and within 60 days, the mother [MS ANNING] must pay to the father, [MR DILLON], the sum of $39,855.
(3)Contemporaneously with the payment in (2) above, the father must transfer his interest in [the Suburb P property] to the mother.
(4)The parties must forthwith join in making inquiries of Keystart to ascertain the value of their interest in [the Suburb P property] (as at 3 August 2015).
(5)All the father's share and interest, if any, in the following assets and property do forthwith vest in the mother:
(a)[Hyundai Tucson];
(b)household contents at [the Suburb P property];
(c)bank account ending #609; and
(d)bank account ending #170.
(6)All the mother's share and interest, if any, in the following assets and property do forthwith vest in the father:
(a)[Ford Fiesta];
(b)household contents in his possession;
(c)bank account ending #603; and
(d)boat or its sale proceeds.
(7)Unless otherwise specified in these orders and save for the purpose of enforcing these orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the beneficiaries named therein;
(c)each party be solely entitled to the exclusion of the other to any money standing to the credit of such party in his/her name in any accounts with any bank or other financial institution;
(d)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other; and
(e)each party be solely liable for, and indemnify the other against, any liability encumbering any item of property (including [the Suburb P property]) to which that party is entitled pursuant to these orders.
(8)Each party retain sole liability for their sole debt to the exclusion of the other party, including but not limited to any debit card, visa card, master card, overdraft, mortgage or loan accounts.
(9)The parties have liberty to apply in relation to the implementation of these orders on an urgent basis, such application to be dealt with by a Judge of this Court other than the Honourable Justice Walters.
(10)All extant applications in relation to financial matters otherwise be dismissed.
Parenting
(11)All previous parenting orders be discharged.
(12)The mother have sole parental responsibility for [C].
(13)Notwithstanding the preceding paragraph above, in exercising sole parental responsibility in relation to major long-term issues, the mother must:
(a)consult the father in relation to any decision to be made about the relevant issue, such consultation to be by way of letter, email or SMS text message (but not limited to such forms of communication);
(b)make a genuine effort to come to a joint decision about the issue; and
(c)in the event that the parties are unable to come to a joint decision about the issue, notify the father of any decision relating to the issue within seven (7) days of making such decision.
(14)Unless already completed by the mother, the mother must:
(a)attend and complete, as soon as practicable, the Mums and Dads Forever Program or other appropriate post separation parenting program ("the Program") at an organisation as nominated by the Director of the Family Court Counselling and Consultancy Service;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the father.
(15) [C] live with the mother.
(16)[C] spend such substantial and significant time with the father as shall be agreed upon between the parties from time to time in writing – or, if not agreed, as shall be fixed in accordance with (31) below.
(17)Both parties be entitled, upon giving 14 days' written notice to the other party, to cancel any relevant Sunday visit between the father and [C] – provided that a "make-up visit" is proposed and arranged as soon as practicable.
(18)Subject to (19) below, the father be at liberty to attend [C's] school for assemblies, sports carnivals and other school events.
(19)Notwithstanding (18) above, in the event of the mother being in attendance at [C's] school when the father attends for assemblies, sports carnivals or other school events, the father be restrained by injunction from communicating with the mother or approaching within 20 metres of her.
(20)The mother must forthwith sign all such documents and do all such acts and things as shall be necessary to authorise all schools which [C] may attend from time to time to:
(a)provide to the father, at his expense, copies of all notices, newsletters, photographs, reports and other material ordinarily provided to parents;
(b)provide the father with access to the school's Internet "portal" as it relates to parents; and
(c)subject to (18) and (19) above, permit the father to attend all school assemblies, sports carnivals and other school events to which parents are ordinarily invited.
(21) Each parent must:
(a)advise the other parent immediately in the event that [C] suffers any serious illness or injury; and
(b)authorise any medical or other health care professional (including but not limited to, psychologists and speech therapists) upon whom [C] may attend from time to time, to communicate with the other parent regarding [C's] condition and/or requirements.
(22)Nothing in these orders shall prevent either the father or the mother from having [C] treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to [C] during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment must immediately notify the other parent of the following details:
(a)the name and contact details of the medical or other health care professional ("the therapist") administering the treatment;
(b)the medical or other complaint for which [C] was taken to the therapist; and
(c)any treatment and/or medication prescribed for or provided to [C],
and authorise the therapist to communicate with the other parent regarding [C's] condition and/or requirements.
(23)The parties must maintain a communication book with respect to [C's] welfare, which book must be exchanged at each handover.
(24)The father must provide the mother, in advance and via the communication book, with details of any medical treatment or appointments needed by [C] during the mother's time with [C]; and
(25)The mother must provide the father, in advance and via the communication book, with details of any medical treatment or appointments needed by [C] during the father's time with [C].
(26)For 24 hours immediately prior to the commencement of any spend time period, and during all spend time periods, the father be and is hereby restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the father strictly in accordance with such prescription; and
(b)any over-the-counter legal medication or pharmaceutical substance ordinarily sold in major pharmacies or supermarkets, and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
(27)Both parties and their servants or agents be and are hereby restrained by injunction from applying substances (including, but not limited to, chilies and soap) to any part of [C's] body as a disciplinary technique.
(28)The father and his servants and agents be and are hereby restrained by injunction from:
(a)criticising, abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings (including court orders or any proposed variation of court orders),
to, with, or in the presence or hearing of [C], and from permitting any other person to do so.
(29)The mother and her servants and agents be and are hereby restrained by injunction from:
(a)criticising, abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings (including court orders or any proposed variation of court orders),
to, with, or in the presence or hearing of [C], and from permitting any other person to do so.
(30)Until further order of the Court, the father, his servants and/or agents be restrained and an injunction is hereby granted restraining him from removing or attempting to remove or causing or permitting the removal of [C] from the Commonwealth of Australia.
(31)There be liberty to the parties to apply on an urgent basis in relation to definition or further definition of the substantial and significant time the father is to spend with [C] pursuant to (16) above, such application to be dealt with by a Judge of this Court other than the Honourable Justice Walters.
(32)All extant applications in relation to parenting issues otherwise be dismissed.
I certify that the preceding [257] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
21 April 2017
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