FADEN & FADEN
[2014] FamCA 1182
•19 December 2014
FAMILY COURT OF AUSTRALIA
| FADEN & FADEN | [2014] FamCA 1182 |
| FAMILY LAW – CHILDREN – Best interests – Where there are four children of the marriage – Where there is significant hostility and distrust between the parents – Where the two older children have expressed a wish to live with the father – Orders made for each of the parents to exercise sole parental responsibility in relation to two of the four children – Orders made for the two older children to live with the father and the two younger children to live with the mother. FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE –Where the parties cohabited for 13 years – Where there are four children of the marriage – Where the father earned a greater income during the marriage and the mother undertook most of the home-making duties and care of the children – Where the mother made substantial financial contributions through an inheritance received prior to and after separation – Contributions assessed at 73 per cent to the mother and 27 per cent to the father – Adjustment of 2 per cent in favour of the mother to take into account the father’s higher income and the mother’s lack of employment and health problems – Orders made with the agreement of the parties that part of the mother’s entitlements be realised through the mother retaining 100 per cent of the parties’ superannuation. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 69ZT, 75, 79, 90MT |
| Ferraro and Ferraro (1993) FLC 92-335 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 McLay and McLay (1996) FLC 92-667 Stanford v Stanford [2012] HCA 52; (2012) 293 ALR 70 |
| APPLICANT: | Mr Faden |
| RESPONDENT: | Ms Faden |
| INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | (P) SYC 2007 | 8240 | of |
| DATE DELIVERED: | 19 December 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 13, 14, 15, November 2013, 12, 13,14, 15, 16, 19 May 2014, 4 August 2014, 13, 21 November 2014, 8 – 9 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell (13/11/13-11 December 2013) Self Represented |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan (13/11/13-11 December 2013) Self Represented |
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER: Mr Wong
Orders
parenting
Mr Faden (“the father”) is to have sole parental responsibility for the two children E Faden born … 1999 (“E”) and F Faden born … 2001 (“F”) (“the children”).
The children E and F live with the father.
Before making any decisions relating to long term aspects of the welfare of E and F the father is to send the mother an email outlining the matter which he needs to decide and setting out what his proposals are. The mother is to respond within seven days and the father is to take into account what the mother has said and then inform her of his decision by email no later than 24 hours after making the decision.
Ms Faden (“the mother”) is to have sole parental responsibility for the two children G Faden born … 2003 (“G”) and D Faden born … 2005 (“D”).
The children G and D live with the mother.
Before making any decisions relating to long term aspects of the welfare of G and D the mother is to send the father an email outlining the matter which she needs to decide and setting out what her proposals are. The father is to respond within seven days and the mother is to take into account what the father has said and then inform him of her decision by email no later than 24 hours after making the decision.
The children E and F spend time with the mother during school terms each alternate weekend from after school Friday until 7 pm Sunday. The mother is to return the children to the father’s residence on Sunday evening. The first such time to commence the Friday 5 December 2014.
Both parents are to respect and implement E’s views in relation to the time he spends with them and likewise they are to respect and implement the views of each of the children, about the time they each spend with each parent, once the child has attained the age of 14 years.
Each parent is to use their best endeavours to ensure that each child maintains the best relationship possible with the other parent.
The children G and D spend time with the father during school term time five nights per fortnight continuing the sequence in the same manner as the orders operating immediately before these orders required. (It is noted the orders of 6 January 2010 are the operative orders immediately before the making of these orders.) I note the father’s next time will commence on Wednesday 26 November 2014.
The parents are to ensure that the times the children spend with each parent are to coincide so that the children are together each weekend in one parents house or the other.
The children E, F, G and D spend time with the parents during the school holidays as follows:
(a)
(i)for the first half of the school holidays in 2014 with the mother and the second-half with the father and in each alternate year thereafter; and
(ii)for the first half of the school holidays in 2015 with the father and the second-half with the mother and in each alternate year thereafter.
(b)for such other and further periods as may be agreed between the parties from time to time.
Following any school holiday period the time spent by the children with each parent during school term is to resume by calculating the next weekend time for a parent to commence as if there had not been any school holiday time at all and that the sequencing had continued through that period.
That irrespective of any order to the contrary, the children are to spend time with each party during Christmas as follows:
(a)with the father from 12:30 pm Christmas Eve until 12:30 pm Christmas day in even numbered years and from 12:30 pm Christmas Day until 12:30 pm Boxing day in odd numbered years;
(b)with the mother from 12:30 pm Christmas Eve until 12:30 pm Christmas day in odd numbered years and from 12:30 pm Christmas Day until 12:30 pm Boxing day in even numbered years.
That irrespective of any order to the contrary, the children are to spend time with each party during the Easter long weekend as follows:
(a) The children are to spend time with the father:
(i)from 9.00 am Friday to Sunday 3.00 pm of the Easter long weekend in each even numbered year; and
(ii)from 3.00 pm Sunday of the Easter long weekend to 9.00 am Tuesday after the Easter long weekend in each odd numbered year.
(b) The children are to spend time with the mother:
(i)from 9.00 am Friday to Sunday 3.00 pm of the Easter long weekend in each odd numbered year; and
(ii)from 3.00 pm Sunday of the Easter long weekend to 9.00 am Tuesday after the Easter long weekend in each even numbered year.
That irrespective of any order to the contrary herein, in the event that the children are not spending time with the mother in accordance with these orders on Mother’s Day, then the time the children are spending with the father in accordance with these orders shall conclude at 9.00 am on Mother’s Day until school time on Monday.
That irrespective of any order to the contrary herein, in the event that the children not spending time with the father in accordance with these orders on Father’s Day, then the time the children are living with the mother in accordance with these orders shall conclude at 9.00 am on Father’s Day until commencement of school.
Each parent is to be responsible for the day-to-day care of the children whilst they are in that parents care, including such matters as involvement in extra-curricular activities.
The parent who has sole parental responsibility for a child is to arrange such extra-curricular activities for the child as that parent sees appropriate. Having made such a decision, details of the involvement of the child in the extra-curricular activity is to be provided forthwith to the other parent by email including the time and place that child may be required to participate in that extra-curricular activity whilst in the other parent’s care. The decision as to whether the child does participate in such activity whilst in the care of the parent who does not have sole parental responsibility for the child is to be entirely that parent’s decision.
In the event that changeover does not occur at the children’s respective schools and in circumstances where these orders do not specifically state otherwise, then the parent who is to commence time with the children is to collect them from the other parent’s residence.
Each party shall immediately notify the other if any of the children becomes seriously ill or has or is to be admitted into hospital.
Each parent is to inform the other of any prescription of medicine the children are required to take in the informing parent’s house and where necessary ensure the medication is provided to the other parent.
Each parent is to ensure all professionals carrying out any diagnosis or treatment or therapy on any of the children specified in these orders are authorised to provide information to the other parent upon request from that parent.
Each parent is to authorise the school authorities for the children who are the subject of their sole parental responsibility order to provide to the other parent copies of all school reports and correspondence provided by the school together with the provision of information sought by the other parent. Each parent is to ensure, as best they can, the details of the other parent are provided to and included in the child’s school records.
Each of the parents is to do all such things as may be necessary so as to ensure the continued attendance of the children upon Dr BB, or any other professional recommended by her, at such times and at such places recommended by her, for not less than 12 months from date of these orders.
That the costs of the children’s attendance upon Dr BB, or any other health professional recommended by her, be met in equal shares.
The mother and the father are hereby authorised to release the following documents to any treating psychologist and/or psychiatrist retained by either of them for themselves of the children:
(a)The Expert Reports prepared by Dr KK for the proceedings; and
(b) Any judgment of this honourable Court.
Each parent is granted permission to publish to any school a subject child may attend, any hospital a subject child may attend for treatment; any medical practitioner which a subject child may attend upon for assessment or treatment and to any other relevant authority, a copy of these orders.
Each parent may show a copy of these orders and the reasons for the making of same to their spouse/full time partner.
Each parent is to seek assistance from a professional qualified in protective behaviours relative to children to provide advice to assist the parents in ensuring the children are not exposed to pornographic or inappropriate materials via electronic visual display or communication devices whilst in the care of a parent.
Each parent is to ensure the children are not exposed to any derogatory statements being made about the other parent or that parents spouse or full time partner.
Independent Children's Lawyer to explain orders to the children.
The appointment of the Independent Children's Lawyer is to continue for a period of six months from the date hereof.
Unless the timing and source of payment are varied by the Court when it makes the final property orders herein the mother and father pay the costs of the Independent Children’s Lawyer by payment to Legal Aid NSW within 12 months from the date hereof as follows:
(a) the father to pay the sum of $11,764.23 and
(b) the mother to pay the sum of $13,414.23.
The parties may vary any of the orders made herein by consent where they agree in writing as to the terms of a replacement order. Email exchange showing clear consensus will suffice to effect a variation of an order.
In the event of any further parenting dispute and before either party files a parenting application in the Court, the parties are to seek the assistance of a Dispute Resolution Practitioner.
In the event that a particular problem arises in relation to the time any child spends with a parent pursuant to these orders the parties are to seek the assistance of Dr BB and upon obtaining a recommendation from her in relation to the particular problem the parties are to implement that recommendation.
The Court notes the parties agree that each may take the children on a holiday outside Australia during the time the children are in their care during school holidays or at such other time as the parties may agree in writing (email exchange is sufficient).
Whenever a parent is proposing to take the children for a holiday outside Australia that parent is to give the other not less than six weeks’ notice of such proposal. Details of the proposed holiday are to be provided including copies of E-tickets showing the air travel involved and details of the accommodation the children will be housed in during the holiday. Whenever a parent receives such notice of an intended holiday trip outside Australia that parent is to deliver to the parent accompanying the children on that holiday (no later than 21 days before same) the passports for the children who will be attending and whose passports are held by that parent. Upon return from the trip the other parent is to return the passports within seven days of arrival in Australia.
Each parent is to be responsible for obtaining and keeping current the passports for the children for whom they hold a sole parental responsibility order. Each parent is to ensure they hold current passports for the children in their sole parental responsibility by the end of December 2014.
In the event of either parent being told by one of the children directly, or by another person, of a serious allegation made by the child against the other parent or a member of that parent’s household, then the subject parent is to refer the matter to Dr BB and seek her recommendation before contacting any authority unless the circumstance is so urgent that it requires another action.
These are final parenting orders and consequently all outstanding applications or responses seeking a parenting order are dismissed.
property
The father is to forthwith sign and return to the mother a transfer document which she provides, such document being required to cause the transfer of his right, title and interest in the property at H Street, Town J in the state of New South Wales, being the whole of the land contained in Folio Identifier … (“the former matrimonial home”) to the mother, subject to the existing encumbrance.
The mother is to hereafter indemnify the father and keep him indemnified against any liability he may have pursuant to the mortgages secured against the former matrimonial home and being described as Westpac Rocket Repay Home Loan, Westpac Rocket Equity Loan 1 and Westpac Rocket Equity Loan 2. She is to further indemnify him against any claim made against him arising from his former ownership with the mother of the former matrimonial home.
Within a period of three months of the receipt by the mother of her share of the proceeds of the sale of the shares held by the Faden Family Trust and K Pty Ltd in N Associates Pty Ltd the mother is to cause the father’s liability under the mortgages registered against the title of the former matrimonial home (as specified in the previous order) to be discharged or alternatively do all necessary to sell the property and discharge the mortgages.
The father and the mother are to use their best endeavours to jointly sell, for the best available price, the shares held by K Pty Ltd and the Faden Family Trust in the company N Associates Pty Ltd within a period of 90 days from the date hereof or such longer period as they may thereafter agree to in writing (email exchange is sufficient). In the event that they have not been able to effect a sale of all of the shares held in N Associates Pty Ltd by K Pty Ltd and/or the Faden Family Trust by the expiration of the said 90 day period or further agreed extension, then they are to jointly appoint a trustee for sale of all the remaining shares for the best obtainable market price which can be achieved within a period of six months from the date of the appointment of the trustee for sale.
For the purpose of the preceding order the father and mother are to agree upon the identity of the trustee for sale and the terms of his/her appointment. If they are unable to do so then they are to appoint Ms DG, the single expert appointed jointly for the property determination, and should she decline the appointment then they are to appoint the president for the time being of the Institute of Chartered Accountants in Australia to nominate a chartered accountant to act as the trustee for sale and to specify the remuneration for that trustee.
Upon a sale of the shares in N Associates Pty Ltd being completed by both the Faden Family Trust and K Pty Ltd the sale proceeds are to be applied as follows:
(a)Payment of the costs of the trustee for sale, if necessary. Any payment to be made firstly from the proceeds of sale received by the Faden Family Trust.
(b)Any other cost incurred by the sale (to be paid from the proceeds received by the Faden Family Trust).
(c)The parties are to jointly appoint (and pay from the proceeds of sale of the N Associates Pty Ltd shares received by the Faden Family Trust) JK Financial Group and EE Financial Pty Ltd (“the accountants”) to jointly calculate the company, capital gains and personal taxation to be paid by each of the parties, the Faden Family Trust and K Pty Ltd arising from the sale of the shares in N Associates Pty Ltd as specified in these orders together with any taxation liability arising from any adjustment or extinguishment of any loan account held by each party or by either entity. In calculating the taxation payable by each of the mother and father the accountants are to have regard to the percentage division of the net proceeds of the sale of the shares as is provided for in this order.
(d)For the purpose of calculating the tax liability of either party or the Faden Family Trust or K Pty Ltd arising from these orders the father is to have the option of either taking over the mother’s loan account in K Pty Ltd and/or the Faden Family Trust or alternatively discharging those loan accounts so that the mother has no liability to the company, the trust or to the father arising from such transaction. Further the father is to indemnify the mother against any claim by K Pty Ltd or the Faden Family Trust against the mother in relation to any prior transaction which the company may have had with her. Further the mother is to transfer to the father her loan account/asset in the Faden Family Trust at the election of the father. In any event the mother is to relinquish/forgive or transfer to the father her entitlement in the Faden Family Trust upon receipt of her share of the net sale proceeds of the trust’s interest in N Associates Pty Ltd subject to the taxation incurred by the sale being met, as provided for in these orders.
(e)Discharge of the parties’ liability to the Macquarie Bank for loan facility …40 being for a limit of $533,000 and being contained in two accounts numbered …785 and …456. This is to be paid first from the proceeds of sale of the shares sold by the Faden Family Trust and if any balance is still owing thereafter it is to be paid from the sale of shares by K Pty Ltd.
(f)Payment of the taxation determined as provided for in these orders (the tax to be paid is to come from the sale proceeds of the entity to which the tax is primarily generated from if there be sufficient funds available in that entity, otherwise from sale proceeds available in the remaining entity).
(g)Should it not be possible at the time the funds are available for distribution from the sale of the shares in N Associates Pty Ltd to calculate any of the tax amounts required to be calculated and paid pursuant to the above orders, the parties are to instruct JK Financial Group and EE Financial Pty Ltd to estimate the amount of tax which could be payable and that sum is to be retained in an interest bearing deposit, held in the joint names of the parties, pending the completion of the work necessary to calculate the tax payments required.
(h)The funds remaining, if any, in the Faden Family Trust arising from the sale of the N Associates Pty Ltd shares is to be divided equally between the parties.
(i)The parties are to cause the proceeds of the sale of shares by K Pty Ltd to divided 70 per cent to the mother and 30 per cent to the father provided such percentages relate to a net payment to each of the parties following the payment of all taxes which are incurred arising from both the sale of the shares in N Associates Pty Ltd by both the Faden Family Trust and K Pty Ltd, the discharge or transfer of all loan accounts either party might owe to either the Faden Family Trust or to K Pty Ltd (i.e. personal tax liability) and the receipt into their hands of a net amount (i.e. capital gains tax).
Note: It is the intention of the Court that these orders create a circumstance where the mother will have no interest in or liability to the Faden Family Trust and K Pty Ltd once the interests of those entities in N Associates Pty Ltd have been sold and distributed pursuant to these orders. The orders will also leave with the father all of the parties remaining interests (if any) in the Faden Family Trust and K Pty Ltd. It is further the intent of the Court that all taxation liabilities of K Pty Ltd, the Faden Family Trust and each party, created directly as a result of implementing these orders, is to be paid from the proceeds of the sale of the shares. That is to include capital gains tax, whether arising in either entity or for the parties personally together with any taxation incurred as a result of adjusting or extinguishing loan accounts in the entities where that is necessary. To the extent that the orders ultimately do not achieve the stated intention either party has leave to seek any further orders necessary to achieve that end.
Upon the orders of the Court relative to the sale of the shares held by the Faden Family Trust and K Pty Ltd being completed the father is declared the absolute owner of all of the parties’ remaining interests in the Faden Family Trust and K Pty Ltd. To that end the mother is to transfer to the father all her shareholding in the trustee of the Faden Family Trust, namely M Pty Ltd. The father is to thereafter indemnify the mother against any claims made against her arising from her former shareholding in M Pty Ltd or any office holding in that company. The father is also to indemnify the mother against any claims made against her arising from her former association, transactions or dealings with K Pty Ltd.
In the event that the amount received from the sale of the shares held by the Faden Family Trust and K Pty Ltd in N Associates Pty Ltd is insufficient to meet the expenses of sale or the liability to Macquarie Bank then the parties are to forthwith equally pay the remaining expenses or liability to Macquarie Bank.
Pending the payment to the mother of her entitlement from the sale of the shares held by K Pty Ltd and the Faden Family Trust in N Associates Pty Ltd the order made by the Court on 11 December 2013 requiring the father to pay to the mother the sum of $1,500 per fortnight is to continue.
The Court notes the mother is the absolute owner of the remaining interest the parties had formerly held in the property located at Town Y.
The father is to sign (and forthwith return to the mother) any document delivered to him by the mother as may be necessary to transfer to the mother all and any shareholding or entitlement he may have in the company BD Pty Ltd. The mother is to indemnify the father against any claims made against him arising from his former ownership of shareholding or interest in that company.
Pursuant to s 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) the father and mother and the directors of HH Pty Ltd, as trustee of the X Superannuation Fund, do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes payable to the father from his interest in the X Superannuation Fund 100 per cent of the splittable payment of the father be credited to the mother and that there be a corresponding reduction of the entitlement the father.
The father is to sign all documents presented to him by the mother as may be required to transfer to the mother all his shareholding in the trustee of the X Superannuation Fund, namely HH Pty Ltd and at the time of executing such documents resign all offices held by him in the trustee company.
Otherwise than as ordered herein each of the parties is declared the absolute owner, as against the other of the property both real and personal (including any superannuation entitlement) standing in their sole name or in their name with another not being the other party to this proceeding.
Each party has leave to relist the matter should it be necessary to seek further orders to enable the implementation of these orders.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Faden & Faden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8240 of 2007
| Mr Faden |
Applicant
And
| Ms Faden |
Respondent
And
Legal Aid NSW
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The proceeding before the Court is the final hearing in this matter. There are both parenting and financial disputes. The parenting matter was heard first as the financial matters were not ready and the parenting issues were requiring early attention.
The parenting case relates to the parties’ four boys. They are E born in 1999 (15 years), F born in 2001 (almost 14 years), G born in 2003 (11 years) and D born in 2005 (nine years).
In the earlier hearings in this matter each of the parties were represented. The mother was represented through the first three days of the hearing which occurred in November 2013. There were then a further five days of hearing in May 2014 when neither party was represented. There was further hearing in the matter on 19 May, 4 August, 13 and 21 November and then 8 and 9 December 2014. The parenting and property matters have both been very complex. The last part of the property hearing has largely involved the parties providing information and evidence in answer to my questions and requests.
The proceeding has been before the Court since the filing of the Initiating Application by the father on 30 January 2008. At one time there was an agreement about the parenting orders and final orders were made on 6 January 2010.
Sometime after the consent orders were made any agreement between the parties disappeared. The father had alleged the mother was not parenting the children properly. This included him alleging the children had been left unsupervised and there was an incident when one of the children experienced difficulty in the pool at the mother’s house.
The most significant and devastating event occurred in April 2013 when an allegation was made of inappropriate (abusive) sexual contact between the father and the child D. That allegation tore the last remaining semblance of trust between the parents to shreds.
The father moved on a minute of order which was marked as Exhibit H1 in the hearing. The mother moved on a minute of order marked Exhibit W1 in the hearing. In submissions the Independent Children's Lawyer presented a minute of order which set out the orders he was recommending the Court should consider making.
The orders recommended by the Independent Children's Lawyer are as follows:
Minute of the Independent Children’s Lawyer
1.That subject to order 2, the parties have equal shared parental responsibility for major long term issues regarding [E], [F], [G] and [D] (“the Children”).
2.That the Mother have sole parental responsibility in relation to the following:
a.The education of the Children (both present and future);
b.The health of the Children;
c.Passport Applications, holding of passports and overseas travel.
3.In the exercise of the parental responsibility in order 2 and except in the case of emergencies:
a.The Mother shall consult with the Father with regard to any such issue;
b.The Mother and the Father will make a genuine effort to come to a joint decision about any such issue;
c.If no agreement is reached between the parties the within 14 days the Mother shall make the final decision and advise the Father of her decision in writing (by e-mail or otherwise).
4.That each parent be responsible for the day-to-day care of the Children, including such matters as involvement in extracurricular activities whilst the Children are living with/spending time with her or him.
5.That the Children live with the Mother.
6.That the Children spend time with the Father as follows:
a.During New South Wales school terms from 9.30 am on Wednesday until 9.30 am Monday each alternate weekend;
b.during the school holidays as follows:
i.for the first half of the school holidays in 2014 with the Mother and the second-half with the Father and in each alternate year thereafter;
ii.for the first half of the school holidays in 2015 with the Father and the second-half with the Mother and in each alternate year thereafter;
c.for such other and further periods as may be agreed between the parties from time to time.
7.Following any school holiday period the time spent by the children with the Mother in accordance with order 6(a) shall resume as if such holiday time had not intervened.
8.That irrespective of any order to the contrary, the Children are to spend time with each party during Christmas as follows:
a.with the Father from 12:30pm Christmas Eve until 12:30pm Christmas day in even numbered years and from 12:30pm Christmas Day until 12:30pm Boxing day in odd numbered years;
b.with the Mother from 12:30pm Christmas Eve until 12:30pm Christmas day in odd numbered years and from 12:30pm Christmas Day until 12:30pm Boxing day in even numbered years.
9.That irrespective of any order to the contrary, the Children are to spend time with each party during the Easter long weekend as follows:
a.The children are to spend time with the Father:
i.from 9am Friday to Sunday 3pm of the Easter long weekend in each even numbered year;
ii.from 3pm Sunday of the Easter long weekend to 9am Tuesday after the Easter long weekend in each odd numbered year;
b.The children are to spend time with the Mother:
i.from 9am Friday to Sunday 3pm of the Easter long weekend in each odd numbered year;
ii.from 3pm Sunday of the Easter long weekend to 9am Tuesday after the Easter long weekend in each even numbered year.
10.That irrespective of any order to the contrary herein, in the event that the Children are not living with the Mother in accordance with these orders on Mothers Day, then the time the Children are spending with the Father in accordance with these orders shall conclude at 9 am on Mothers Day until commencement of school.
11.That irrespective of any order to the contrary herein, in the event that the Children not living with the Father in accordance with these orders on Fathers Day, then the time the Children are living with the Mother in accordance with these orders shall conclude at 9 am on Fathers Day until commencement of school.
12.That in the event that changeover does not occur at the Children’s respective school then the Father shall collect the Children from the Mother’s residence at the commencement of the relevant period of time and the Mother shall collect the Children from the Father’s residence at the conclusion of the time.
13.Each party shall immediately notify the other if any of the Children becomes seriously ill or has or is to be admitted into hospital.
14.Each party is authorised if such authorities are necessary, to:
a.contact all professionals that are involved with the treatment of the children’s health and health related issues, this also includes but is not limited to areas of mental and dental health;
b.contact all schools that the Children attend and discuss all matters relating to the Children the staff of the school and to obtain school photographs and reports that are usually made available to parents.
15.That each of the parties do all such things as may be necessary so as to ensure the continued attendance of the Children upon Dr. [BB], at such times and at such places recommended by her, for not less than 12 months from date of these orders.
16.That the costs of the Children’s attendance upon Dr. [BB] be met in equal shares.
17.That the Mother and the Father be and hereby authorised to release the following documents to any treating psychologist and/or psychiatrist retained by either of them for themselves of the children:
a.The Expert Reports prepared by Dr. [KK] for the proceedings; and
b.Any judgment of this honourable Court.
18.That the Mother and Father pay the Costs of the Independent Children’s Lawyer in equal shares.
The father sought the following orders:
Minute of Order of the Father
1. That the Children live with the Father.
2. The Children spend time with the Mother as follows:
2.1each alternate weekend from Friday afternoon from 3.30 pm (ie: after School) to Sunday evening at 6.00pm;
2.2from 9am to 5pm on the Mother’s Birthday where it falls on a weekend or during school holidays;
2.3from 3.30pm (ie: After School) to 8.00pm on the Mother’s Birthday where it falls on weekday in School Term.
2.4for not less than 2 hours on each child’s birthday at such time as is agreed between the parties or in default of agreements, between 4pm and 6pm) (sic); and
2.5from 9am to 5pm on Mothers Day
2.6during the Christmas Eve to Boxing Day period as agreed between the parties and failing agreement, from 3pm on Christmas Eve until 3pm on Christmas Day in even numbered years and from 3pm on Christmas Day until 3pm on Boxing Day in odd numbered years.
3. That all of the children’s scheduled medical appointments be forwarded to the Father in the next 48 hours so he may attend on same.
4. That all of the children’s scheduled education tutoring appointments be forwarded to the Father in the next 48 hours so he may attend and arrange same.
5. That both [AA] Public and [YY] High School be advised of these “Final Orders” thus alerting the School Principals and Teachers as to current custody arrangements for the children.
6. That each party notify the other, as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by that children whilst with that party.
7. That each party notify the other, at least 24 hours before any change to their address and/or mobile telephone numbers and/or their email address.
8. That the Mother be allowed and Encouraged to attend the children’s school, sports, and social events and activities.
9. That each parent take the children to social events (including birthday parties) and extra curricular activities when the children are in their respective care and should either party not be able take (sic) the child/children to a social event (including birthday party) or extra-curricular activity then she/he notify the other party 48 hours in advance and that party shall have the first option to take the child/children and/or organise alternative arrangements to enable the child/children to attend.
10. That, without admission, each party be restrained from denigrating the other party in the presence of the children.
11. That, without admission, each party be restrained from physically disciplining the children.
12. That, within 4 hours of returning the children to the care of the Father the Mother send by way of email to the Father an email updating him on any relevant information regarding each of the children, including but limited to (sic) extra-curricular activities, health issues and social commitments that have arisen during the period of time the children have been in her care.
13. That the Father is to take the Mother’s views and counter decisions into consideration when making final decisions regarding pertinent children matters and their welfare.
14. That the father will receive and consider applications from the Mother in respect to the childern (sic) spending time with her during the school holidays.
The mother sought the following orders:
Minute of Order sought by the Mother
A.“the parties” me and the Applicant Husband/Father and the Respondent Wife/Mother.
B.“children” means”
B.1. [E] born … 1999;
B.2. [F] born on … 2001;
B.3. [G] born on … 2003; and
B.4. [D] born on … 2005.The Court Orders that:
1.Orders 5 and 13 of the final parenting Orders made on 6 January 2010 be discharged.
2.The mother have sole parental responsibility for the children and:
2.1 the mother inform the father of any medical or other professional attendances and to provide him copies of any relevant reports or letter, and the father be able to make his own appointment with the relevant professional (not to be present at those appointments along with the mother, or to instruct the mother to make such appointments) to obtain information and put forth his own views.
2.2 if the child’s or children’s medical or other professional appointments, therapy and/or treatments are to be ongoing, then the father is permitted to arrange to take the child to a proportion of those appointments during the time the child is in his care; and
2.3 if the child’s or the children’s medical or other professional appointments, therapy and/or treatments are to be ongoing and the father does not take the child/children to the appointments, therapy and /or treatment as provided in the sub-paragraph above, then the father’s time with the child/children is suspended to facilitate the mother taking the child/children to the appointment, therapy and/or treatments and the father, or his nominee, return the child/children to the mother’s care no less than 1 hour prior to the appointments, therapy and/or treatment, unless the mother notifies the father in advance and in writing if the child/children are to be returned to her care earlier or later to as (sic) may be necessary to ensure the children’s attendance;
2.4 the mother consult with the father regarding any decisions about major long term issues relating to the children’s’ education (current and future) and religion.
3.The father is restrained from taking the children to any medical appointments, other than in the event of an emergency, unless he has the mother’s prior written consent.
4.The father is restrained from giving information to any of the schools and/or the children’s’ medical practitioners that the mother suffers from any form of mental illness, including Munchausen by proxy.
5.The father is restrained from providing to any person, without the mother’s prior consent in writing, a copy of Dr [KK’s] Family Reports dated 23 January 2013 and 8 November 2013.
6.[Ms Q] restrained from providing to any person, without the mother’s prior consent in writing, a copy of Dr [KK’s] Family Reports dated 23 January 2013 and 8 November 2013.
7.The father do all acts and things necessary not to interrupt a child’s/children’s treatment when child/children are in his care, if doing so will be dangerous for the child and/or entail the child having to undergo more evasive treatment and/or contrary to medical advice (for example with a medication which has a risk of withdrawal seizures, medication to avert surgery and antibiotic treatments), noting that the father is permitted to interrupt treatments which will not be dangerous to the child (even if such interruption is not considered ideal by the mother or treating professional, such as dietary intervention or metabolic supplement or stimulant medication) and, if he does so, he shall notify the mother in writing.
8.The parties do all acts and things necessary to cause [D] and [G] to have separate bedrooms.
9.The parties are restrained from:
9.1 discussing with, showing to and/or allowing the children to be privy to all information and documents relating to these proceedings including but not limited, (sic) the Family Reports prepared by Dr [KK] and affidavit material;
9.2 raising any issues regarding the allegations or regarding conflict and disagreements between the parties in these proceedings with the children.
10.The mother consult with a therapist in accordance with paragraph 196 of the recommendation made by Dr [KK] in his updating Family Report dated 8 November 2013 and the mother is permitted to release to such therapist a copy of Dr [KK’s] Family Report dated 23 January 2013 and a copy of Dr [KK’s] updating Family Report dated 8 November 2013.
11.The parties do all acts and things necessary to facilitate [D’s] and [G’s] attendance on a therapist in accordance with paragraph 197 of Dr [KK’s] updating Family Report dated 8 November 2013 and the parties are permitted to release to such therapist a copy of Dr [KK’s] Family Report dated 23 January 2013 and a copy of Dr [KK’s] updating Family Report dated 8 November 2013.
12.The mother be permitted to give copy of Dr [KK’s] Family Report dated 23 January 2013 and a copy of Dr [KK’s] updating Family Report dated 8 November 2013 and a copy of these Orders to the children’s medical practitioners should she deem it appropriate.
13.Each party is restrained from undermining the therapy process and/or [Dr BB] and permitting or allowing any other person to do so in any of the children’s presence and/or hearing.
14.Each party shall comply with all requests, recommendations and referrals of [Dr BB] including endeavouring to ensure their partners and the children participate in any therapy on the day and time of the appointment offered by [Dr BB] (noting this may be during school or work hours).
15.The father pay, or cause to be paid, when due and payable the cost of [D’s] and [G’s] therapy with Dr [BB], and any other therapist retained in accordance with paragraph 11 of these Orders, and it is noted that the mother will be paying the costs of the therapy to be undertaken in accordance with paragraph 10 of these Orders.
16.It is noted that the parties are to continue to take [D] and [G] to therapy sessions with [Dr BB] unless otherwise agreed between the parties in advance in writing and the wife intends to continue therapy with [Ms W].
17.It is noted that, except for Orders 6 and 13 of the Orders made on 6 January 2010, all other parenting and specific issues Orders made on 6 January 2010 continue to be in force, unless otherwise agreed between the parties in advance and in writing.
18.Each party be at liberty to relist the matter of 5 days’ written notice to the other party in the event of a difficulty with the implementation of these Orders.
19.Within 60 days, the husband pay, or cause to be paid, the wife’s cost of, and incidental to, parenting issues incurred from 8 April 2011 on an indemnity basis.
The consent parenting orders made by the Court as final orders on 6 January 2010 provided for the parents to have equal shared parental responsibility for the children. The orders provided the children live with the mother and spend time with the father during school term time from after school and pre-school Wednesday until school time on Monday, each alternate weekend and on the other Friday from after school until 6.30 pm. There were other orders for the children to spend time with the father during school holidays and on special occasions.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in 1963 and the mother was born in 1967. The father says the parties commenced cohabitation in 1990; the mother says that they commenced cohabitation in 1993. However, there is no dispute that the parties married in 1994.
There are four children of the marriage, namely E, born in 1999, F, born in 2001, G, born in 2003, and D, born in 2005.
The parties separated under one roof in February 2006, and the father left the matrimonial home in July 2006. The father found accommodation which was close to both the former matrimonial home and to the children’s schools. The parties divorced in 2008. The mother has resided in the former matrimonial home since separation. That property is situated at H Street, Town J.
Between August and November 2006, the father spent time with the children at the former matrimonial home on alternate weekends. Between December 2006 and August 2007, the father spent overnight time with the children on Tuesday and Thursday nights and from Friday to Sunday on alternate weekends.
The father requested an equal time arrangement with the children in April 2007. By the end of August 2007, the children spent time in the father’s care on alternate weekends, from the end of school on Thursday to before school on Monday. The children also spent time with the father during school holidays.
In 2007, the parties attended upon Ms Z, a counsellor and Family Dispute Resolution practitioner. During that time the mother says E, the eldest child, started to experience mood swings, and he had atypical angry outbursts.
By February 2008, the children spent alternate weekend time with the father from Thursday after school to Monday before school.
In February 2008, a school counsellor referred the eldest child to the NN Counselling Service.
In March 2008, the children began to spend time with the father from Friday after school to before school on Wednesday on alternate weekends.
The father commenced proceedings in this Court in March 2008.
In April 2008, the eldest child, E, commenced counselling with a child psychiatrist. The father attended this session and asserted that the child’s mood had improved over the three months preceding the session. The father said that he did not have any significant concerns, and said that he wanted an equal time arrangement for the children.
In May 2008, Ms B, Family Consultant, prepared a children and parents issues assessment.
In late May 2008, the parties agreed on interim parenting arrangements for the children. In short, the children would live with the mother and spend time with the father from Wednesday after school until Monday before school on alternate weekends, plus every other Friday afternoon, special occasions, and school holidays on a week about basis.
In August 2008, the child F was diagnosed with Attention Deficit Hyperactivity Disorder and Central Auditory Processing Disorder. The mother agreed for him to attend weekly appointments for tutoring and speech therapy. An orthodontist assessed F and E, and indicated that both children required orthodontic work.
In September 2008, the mother attended an ADHD Parent Workshop, and a paediatrician (Dr DD) reviewed F in relation to his reading difficulties and behaviour. The paediatrician did further reviews in December 2008 and March 2009.
By November 2008, the mother claimed the eldest child’s depression continued to worsen. Consequently, he experienced problems at school, lost interest in extra-curricular activities, and resigned from the school band. He bit a child at school and was suspended. The mother met with the school principal and counsellor.
The eldest child’s condition improved over the summer holidays, and by February 2009 he was happier at school.
By this time, the child F was having ongoing speech therapy and tutoring sessions, the child G had started school, and the youngest child had started at kindergarten.
In June 2009, the mother alleged that the father’s conduct towards her was physically and verbally intimidating in the presence of the children. The mother also alleged that the father used excessive force when he disciplined the children.
A first day Less Adversarial Trial (LAT) was held before me (Justice Le Poer Trench) on 25 June 2009, and a Family Report was prepared by late September that year.
By October 2009, the mother claimed the eldest child’s psychological health had again deteriorated. On some days he was unable to attend school, and sometimes had to be collected from school mid-morning. The child had a session with Dr MH, psychiatrist. Meanwhile, the mother consulted with the children’s paediatrician (Dr DD) regarding the child’s emotional state and his difficulties at school. The paediatrician noted that the child’s headaches appeared to be stress related.
The paediatrician reviewed the child F in relation to his reading difficulties. The child G was referred to the paediatrician (Dr DD) for adenoidal obstruction.
I note here that it has been part of the father’s complaints against the mother for a long time that she has manufactured medical disorders in the children and shuffled them from one medical practitioner to another as she found further medical conditions to be addressed. The father has said he does not experience the children having most of the disorders the mother has claimed they have.
The parties agreed on final parenting orders in December 2009. The orders were made in January 2010. They provided for the children to live with the mother and to spend five nights per fortnight with the father during school terms, plus half of the school holidays and on special occasions. Significantly, the orders restrained each party from denigrating the other in the presence of the children. Around this time both parents attended a session with Dr MH, psychiatrist, in relation to the eldest child.
In July 2010, the father commenced cohabitation with Ms Q, who is now his wife.
In August 2010, the father sent an email to Dr MH. This email stated that he would not attend an upcoming appointment with the eldest child and the mother.
In September 2010, Ms KM (the speech therapist) released a report in relation to the youngest child, D. The mother emailed this report to the father with suggestions as to how to proceed. The mother recommended that the child be referred to an educational psychologist, Mr LL.
In October 2010, Mr LL diagnosed the eldest child with dyscalculia, which is a learning difficulty. Dr DD also reviewed the child.
Also in October 2010, the father contacted the Department of Family and Community Services and made allegations against the mother. The father alleged that the mother left the children at home without supervision on a regular basis. The father asserted that the children told him about this and that the mother admitted this in an email.
The father then informed the mother he would contact the police and bring charges against the mother if she took the children to medical appointments during the father’s time with them.
The eldest child, E, commenced occupational therapy in November 2010.
Also in November 2010, the father further alleged that the mother had left the children unsupervised around a swimming pool. The Department of Family and Community Services contacted the mother in relation to this.
In December 2010, the father sent an email to staff at the children’s school. In this email he made allegations about the mother and her continuing to seek medical intervention with the children.
In March 2011, counsel for the father indicated that the father intended to bring a fresh application for parenting orders on the basis of changed circumstances. The father filed an Initiating Application in April 2011 and sought leave to reopen the parenting matter. In July 2011 the mother sought that this application be dismissed summarily.
In May 2011, I made orders for the children to attend upon a Family Consultant for a child and parent inclusive conference. The Family Consultant interviewed the parents and children separately later in May.
In August 2011, I heard the mother’s application for summary dismissal of the father’s application for leave to re-open the parenting case. I dismissed the application for summary dismissal in November 2011.
By September 2011, the child F had been diagnosed (by Ms KM) with a moderate speech disorder, with mild receptive language impairment and lower average expressive language skills.
Meanwhile, the youngest child, D, was referred to a paediatrician (Dr ED) in relation to tongue tie. Dr ED recommended surgery. He made arrangements for this surgery in February 2012, and the surgery took place in June.
In October 2011, the Family Consultant issued a memorandum following interviews with the parties.
In October 2011, the youngest child started speech pathology/therapy with Ms KM. In 2012, he was in a reading recovery class at school.
In early 2012, an orthodontist (Dr MM) recommended treatment for the eldest child.
An Independent Children’s Lawyer was appointed and began acting in early 2012. In May 2012, the father sent to the Independent Children's Lawyer a video, taken by the father, of the father interviewing the child G.
In early 2012, G began displaying sexualised behaviour, including pelvic thrusting, making sexualised comments, and stating that he watched “Redtube” (a pornographic website). By mid-2012, G’s sexualised behaviour continued; he “humped” toys and told the mother he watched the father and the father’s partner (Ms Q) having sex.
The mother made arrangements for Mr LL (educational psychologist) to assess the children D and G. These assessments occurred in July, and in September Mr L prepared a report which indicated that although G had a borderline to mild level of ADHD (attention deficit hyperactive disorder), he did not have significant learning difficulties.
The eldest child refused to attend school (on 5 September 2012). The mother experienced difficulty in having him attend school regularly and on time.
In September 2012, the children had interviews with Dr KK, the Court appointed single expert. Prior to these interviews taking place, the child F asked the mother what the purpose of these interviews was. He recorded this conversation on his iPod. Following these interviews, Dr KK prepared a Family Report (the first report in these proceedings). This report was released in January 2013.
In September 2012, F told the father, on Father’s Day, that the mother had physically abused him. The father said that the child took photos of the resulting scratching and bruising on his iPod. The mother denied she had abused the child F. In oral evidence the mother said it became necessary for her to physically intervene between the children when they were physically fighting. In such a circumstance she agreed a scratch may have been occasioned to F. I accept that explanation.
In November 2012, the Year Advisor at the eldest child’s high school provided year reports to Dr KK. These reports noted that the child’s attitude towards school had deteriorated over the year.
The child G’s sexualised behaviour continued through late 2012; he grabbed the penis of the mother’s partner, Mr J, through his clothes.
In 2013, the youngest child told Mr J the father did “rude” things.
As stated above, the Family Report was released in January 2013. It recommended inter alia that the mother commence therapy. The mother followed this recommendation and commenced therapy with Ms W, with attendances every two weeks.
In March 2013 the mother sought medical attention for pain in her lower back and hips.
The mother said that in April 2013 the youngest child told her the father had rubbed his penis against the child’s stomach. The mother initially “kept this information to herself … as she did not believe … [the father] could do such a thing”. However, in May she discussed D’s statement with Ms W. The mother then sent an email to the father describing the child’s statement and seeking an explanation.
The mother said that after that occasion, the youngest child made a further statement regarding sexual abuse allegedly perpetrated by the father. The child allegedly said that “Daddy makes me and [G] wait on the bed while he has a shower and when he comes out of the shower we do crazy things.” The mother contacted the police and became concerned about making the children available to spend time with the father. JIRT (Joint Investigative Response Team) interviewed the youngest child regarding his statements, yet did not take any action.
In May 2013, the father provided a copy of Dr KK’s Family Report to Ms LM (a Department of Family and Community Services officer) during a home visit. The father and Ms Q (now his spouse) expressed concern to Ms LM that the mother had “Munchausen by proxy”, given the extent to which she engaged various specialists and medical professions to deal with the children’s special needs. The father asserted that these needs were not as great as reported.
The father said that the mother did not adequately supervise the children, as she spent considerable amounts of time in her home office. Mr J (the mother’s partner) was also working in another city during the week.
In May and June 2013, the child F was fitted with orthotics, and the child G had a hearing test (with an audiologist) and was reviewed for ADHD by Dr XX (paediatrician). G attended diagnostic imaging, which indicated he had a pronounced adenoid enlargement. G underwent a sleep study at a hospital. This study found he had loaded breathing and upper airway resistance. At the end of July 2013 G was referred to an ENT specialist for hearing problems and chronic sinusitis.
At this time, the father expressed a view that the mother exaggerated the children’s health issues.
The youngest child, D, made further statements regarding alleged sexual abuse in July 2013. In mid July, the mother, her partner and the children spent a week at a ski resort. During this time the mother heard the child screaming “get off me!” When the mother investigated, D said that G had been “raping” him. The youngest child then told the mother’s partner that G had rubbed his “naked body” on him and had done so “on numerous previous occasions”. The youngest child told the mother that G “did rude things to him”, “sucks my willy”, “puts his willy in my bottom” and “is raping me.” Following this, the children D and G ceased sharing a room at the mother’s house.
However, the eldest child sent an email to the father, and in this email stated that the youngest child had told him that the mother had asked D to write down that G had raped him.
In response, the father contacted Child Safety Services and complained the mother was “Putting words into [D’s] mouth”.
The mother sought advice from the school counsellor regarding the youngest child’s disclosure. The father contacted this counsellor via email and said that such meetings were not to happen without him being informed. The father also disclosed information about the mother and the court proceedings.
In August 2013, the father said that he would not return the children to the mother’s care. He suggested that the mother spend no more than two hours at a time with the children and that he or Ms Q (his spouse) supervise this time.
The Independent Children’s Lawyer said that the parenting arrangements should not be changed. The mother collected the youngest child from school, but the child G “ran off” to the father’s office. The father then sought interim orders for the children to live with him and spend alternate weekends with the mother. The children remained in the father’s care. However, several days later the father returned the children to the mother’s care. The eldest child was upset and upon his return questioned the mother about the legal proceedings and the Family Report.
The father alleged the mother was verbally abusive towards the children. The father alleged that the mother had physically abused the child F, and this had caused bruising on the child’s arms.
Also in August 2013, the mother consulted with Dr SW in relation to the child G’s complaint that he had headaches and neck pain each morning; the child also said the father did not give him his nasal spray.
In September 2013, the youngest child made further allegations of sexual abuse. The child said that the father had “raped” him. JIRT again interviewed the child, and also contacted the father. The Independent Children's Lawyer recommended the parenting arrangements continue. Dr KK confirmed the Independent Children's Lawyer’s advice, and said the children D and G must sleep in separate rooms.
In September 2013, consent orders were made for G and D to attend therapy with Dr BB. Dr ST (the mother’s and children’s GP), referred G and D to Dr BB. Dr ST swore an affidavit and gave oral evidence in the hearing.
The father and the mother attended separate therapy sessions with Dr BB.
The mother was admitted to hospital in September three times in the space of one week after she reported feeling faint, exhausted and stressed. The mother also said that she experienced heart palpitations.
In October 2013, the children D and G attended two therapy sessions with Dr BB. They attended a further session in November.
Again in October, the youngest child told Mr J (mother’s partner) that the father was rude to him, that the father’s partner (Ms Q) did not believe him, and that he was worried that she would punish him.
During October the mother sought medical attention for lumps in her breast.
In November 2013, Dr KK prepared and released an updating report.
The parenting hearing concluded on 19 May 2014 and judgment on the parenting case was reserved. There have been other attendances before the Court by the parties preparing their property case for finalising.
On 19 September 2014 the father filed an Application in a Case. By that application he sought sole parental responsibility for all four children. He sought other orders relative to the children’s medical and educational welfare. In support he filed an affidavit which, inter alia, alleged the mother was abusing the children and in particular the youngest child, D. He claimed the mother was “making” the youngest child voice allegations of sexual abuse by the father upon him. The father reported the matter to a Department of Family and Community Services officer. The father annexed two emails to his affidavit.
The mother responded by provision of a large affidavit filed in Court on the return date of the father’s application, namely 13 November 2014. The application was listed before me.
The mother opposed the orders sought by the father. In her affidavit she informed the Court that the father has not returned the children E and F to her since 20 September 2014. She said that in June and July the father had encouraged E and F to run away from her home. She denied she had instigated any further allegation against the father. She set out details of a conversation she had with the youngest child after he had visited Dr BB on 11 September 2014.
The mother said that on 14 October 2014 the father advised that he had moved to a new residence at Suburb WW. The mother said the younger children have described this house in exciting and glowing terms. She further said the father has recently acquired a new car which she also sees as potentially attractive to the boys.
When the matter was before me I spoke to the parties about the different courses available to the Court including a re-opening of the hearing where further cross-examination would take place, the Independent Children's Lawyer would be further involved (at a cost to the parties) and it may be necessary to involve the single expert Dr KK in the case. The parties opted to not re-open the case. I suggested I would consider the affidavit material of each parent as recently filed and proceed to deliver my judgment on Friday 21 November 2014 if at all possible. Both parties sought I take that course.
I note here that nothing contained in the affidavits of either party is of surprise to me. The making of further allegations by the youngest child was entirely foreseeable, as is the circumstance of the older two boys refusing to return to live at the mother’s house.
Evidence
The father
The father relied on the following affidavit evidence:
·Affidavit of the father sworn 9 August 2013;
·Affidavit of the father sworn 17 February 2014;
·Affidavit of the father sworn 15 May 2014;
·Affidavit of the father sworn 14 October 2013; and
·Affidavit of Ms Q sworn 14 October 2013.
Prior to considering the written evidence each party and the Independent Children's Lawyer have relied upon, I need to record that at the commencement of the hearing I made a ruling in relation to the application of section 69ZT of the Family Law Act 1975 (Cth) (“The Act”). That ruling was as follows:
Pursuant to section 69ZT(3) I am satisfied that the circumstances of this case are exceptional. I am unable to apply section 69ZT so as to exclude the provisions of certain Parts of the Evidence Act to a particular issue in the case and be satisfied I could reach a proper and just result for the children and the parents. The core issue of parental abuse of a young child may well require an accurate and precise understanding of all issues which are aired in this parenting case.
The effect of that ruling is that all the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) apply to the hearing of evidence which touches on the allegations of sexual abuse made by the youngest child. As a consequent objection was taken to the affidavit evidence of each party, I made rulings on those objections. In relation to the father I considered the affidavit evidence of the mother and her witnesses and excluded parts which I considered offended the rules prescribed by the Evidence Act. Those rulings took place with the assistance of the mother’s senior counsel.
In his affidavit sworn 9 August 2013, the father set out the following evidence.
The father expressed concerns that the mother was subjecting the children to psychological harm and abuse, commencing May 2013.
The father set out his version of events relating to the first of the youngest child’s allegations that the father sexually abused him. He said the child made the first allegation on 30 April 2013 however the mother did not inform the father until 10 May 2013. On 8 May 2013, the mother sent an email to the father asking him to care for the children while she was not available. She attended on a training course. The JIRT interview took place on 17 May 2013 and concluded that “the report had no substance”.
The father married his wife Ms Q in May 2013. It is a facet of the father’s belief that the coinciding of the allegation and the father’s wedding is not accidental.
On 31 July 2013, the father said the eldest child sent him an email which said that the youngest child had told him “mum made him write this thing about [the child G] raping him”. The mother emailed the father on 2 August 2013 to notify him of the youngest child’s allegation. The father said the mother approached the school counsellor about this allegation without his knowledge or consent.
The father claims the children have poor school attendance whilst in the mother’s care. He said the mother is alone during the week, and has no assistance in her care of the children during that time. This is because her partner is working in a different city (at that time).
In the father’s affidavit sworn 14 October 2013, the father set out the following evidence.
In relation to proposals for the future housing of the children, the father proposed the children live with him and his wife in their rented accommodation. It is a four bedroom home surrounded by bushland and close to a beach. The father says it is ten minutes or less from each of the children’s schools and his work. He says that older children share a room downstairs, while G has his own room downstairs and D has his own room upstairs. He further says there are four bathrooms, which are each allocated to a child. I note the father has recently (November 2014) moved to a new rented accommodation at Suburb WW. The father told me this property is a four to five bedroom property (one bedroom currently being used as an office). He said it is closer to the children’s school than his former accommodation. His rental is $6,000 per month.
In relation to proposals for the future education of the children, the father says that his greatest ambition is to ensure the children improve their attendance at school and make up “for the lost foundation work”. He says the children have not had a proper routine due to non-attendance and this has adversely affected their grades.
The father proposes to continue with the youngest child’s reading and speech therapy, with his wife and himself supervising, and hiring tutors as needed.
He says his wife supervises the children with their homework while they are in his care. He says he also assists when he can.
He proposes not to immediately alter the children’s schooling but says that he hopes to look at other schooling options for the children in the future. He says that he and his wife drive the children to school each day they are in his care.
In relation to proposals for future health care, the father said the following.
He proposes to “review holistically” the children’s current medical issues, by engaging an independent paediatrician or physician. He also proposes that an objective expert be recommended to assess the children’s psychological issues.
He proposes that the older children, E and F, attend counselling.
The father’s proposals for supervision of the children during school days will involve him and his wife. They are flexible in their work hours and can supervise the children before and after school. In school holidays he says they are available to take the children on holidays or to attend activities.
In relation to proposals for extra-curricular activities for the children, the father said he and his wife encourage extra-curricular activity. He says F has expressed a wish to play soccer and E has expressed a wish to join the sailing club.
In relation to unsolicited statements made by the children, the father said the children have expressed a wish for more time with him since a young age.
He set out his evidence in relation to the eldest child refusing to return to the mother’s house on his birthday. After refusing to go home and talking to his mother for half an hour, the mother asked him to write an email to her setting out what he wanted to say. The father says the child told him he knew it was so she could use it against the father.
The father says the child F has been vocal about not wanting to return to “the chaos”. The father says F told him it is not so bad when the mother’s partner, Mr J, is there. The father says the stress causes the child stomach issues.
The father says the child G has expressed a wish to spend more time with him, and writes him emails every day when he is with his mother. He has also told the father that the mother often confiscates his electronic device “which he has told us about so he can’t talk to us.”
The father says the youngest child D has said he loves their house and he loves the father and his wife. He says the child also sings love songs for Ms Q. He says that the child tells him the mother and Mr J yell at him and it gives him headaches. The child has also, according to the father, said he wishes Mr J was dead. Further, he says the child became angry after talking to his mother about Mr J’s upcoming birthday, calling him her “minion”, saying that he physically hurts them, and is “just there to surf”. (I note here I do not accept that the youngest child has a difficult or unfriendly relationship with Mr J. I find he has a good and appropriate relationship with Mr J.)
The father says that the child G has run away from the mother’s house on three occasions.
In relation to the description of the relationship between the children, the father set out the following:
·E and F have a strong relationship, they have shared interests and will banter with each other;
·E’s relationship with G is the least close. They are very different in temperament and G’s behaviour frustrates E;
·E’s relationship with D is close and affectionate. E teaches D things and D looks up to E and trusts him;
·F’s relationship with G is quite strained. G’s behaviour frustrates F and F teases G, sometimes cruelly;
·F’s relationship with D is close. F cares for D and can calm him down when he is upset, and D trusts F; and
·G’s relationship with D is very close. G looks out for D and doesn’t understand why he cannot share a room with his brother. D’s trust in G has deteriorated since the allegation of sexual assault. D still enjoys G’s company.
In relation to the children’s relationship with other significant people, the father said the following:
·The father spoke positively about the children’s relationship with his wife;
·The children have a good relationship with the paternal grandparents, particularly the older children E and F;
·The children have a good relationship with the father’s brother and his family, whom they see four to five times per year; and
·The father has friends with families with whom the children spend time and who visit their home.
In relation to concerns the father has for the children in the care of the mother, the father said the following.
The father referred to the third allegation made by the child D of rape by the father. Following that investigation, the father says the mother withheld the child from him from 2.00 pm to 6.00 pm on 4 September 2013.
The father says he is concerned that the mother’s health and mental state will continue to deteriorate, and this will affect the children. He says the mother does not have daily support from her partner, who lives interstate during the week (this has now changed).
The father says the mother has been late on two important school events, one for D and one for F. He says that her lateness upset the children.
In relation to evidence about family violence, the father says he has no history of family violence. He says he does not physically discipline his children. He says the mother’s brother attempted suicide about 20 years ago.
In relation to property matters, the father said the following.
At the commencement of cohabitation, the father says he had a unit in Suburb RR, shares in AM Company and a motor vehicle. He also had loans against the RR property and the shares. He says the mother had, at the commencement of cohabitation a unit in Suburb ZZ, a motor vehicle, and a loan from her father in respect of a computer.
In relation to contributions during the marriage, the father set out the following:
·He worked to pay the mortgage and met all of the outgoings on the property;
·Both parties contributed to the non-financial contributions, with the assistance of a nanny or au pair;
·The paternal grandparents assisted with child care (I note there is no allegation that without this help the parties could not have afforded to both work or alternately not have been able to afford child care);
·The father undertook renovations to the RR property and the former matrimonial home at Town J;
·He would care for the children on week-end mornings while the mother slept in. He would also do the weekend shopping; and
·The mother arranged the timetable and payment for people employed to assist the parties with child care and cleaning. She also did shopping and paid household accounts.
On 17 February 2014, the father swore a further affidavit, which set out the following.
The father says that the mother has not contacted him about medical issues regarding the children, has made appointments with medical practitioners without his knowledge or consent, and her legal representatives have not responded to him.
He said that the children G and D both had appointments on 31 January 2014 with Mr LL about which he was not informed.
He says Mr J does not reside in the mother’s residence during the week and the children have been left unsupervised while the mother has attended medical appointments for herself. He says that the children have informed him of that fact.
He says G and D have been taken to the hospital by the mother when she was attending for her treatment. He said D disclosed that to him.
In the father’s affidavit of 15 May 2014, the father set out the following evidence.
The father proposes that he and his wife, Ms Q, retain 100 per cent of L Pty Ltd. He set out information about the company L Pty Ltd. He said it was registered in January 2010. It was set up by himself and later with Ms Q after the father’s separation from the mother. He says the mother has had no input into that company.
The father says that K Pty Ltd ceased trading when L Pty Ltd was established. The clients of K Pty Ltd are not clients of L Pty Ltd.
The father set out some proposals as to property division however I note that may have changed by the time the evidence has been completed. I will therefore set out the orders the father will finally seek when I hear his submissions. The same will apply to the orders sought by the mother.
In Ms Q’s affidavit sworn 14 October 2013, she set out the following evidence. A significant part of this evidence appears to be largely cut and pasted from the father’s affidavit sworn 14 October 2013, a circumstance which was addressed in cross-examination. I will note the evidence where it diverges from the father’s.
In relation to proposals for the future housing of the children, her evidence echoes that of the father.
In relation to the proposals for the future education of the children, Ms Q’s evidence largely echoes the father’s. She noted the specific learning needs of the youngest child in relation to reading. She also states that she has taken on the responsibility of “ensuring that homework is completed in the family, and make up for the homework that is not able to be completed or supervised by the mother.”
In relation to proposals for future health care, Ms Q largely echoes the evidence of the father. She says that she is not convinced the children are receiving the most appropriate health care under the mother’s care. She says that her observation was “there has been a proactive steering of the children via their health concerns in directions that satisfy the Mothers particular objectives”. She suggests a complete review of the children’s health and mental issues, and that the older children E and F attend counselling.
In relation to proposals for supervision of the children on school days, Ms Q largely echoes the evidence of the father. She says that E and F have told her they frequently feign illness in the mother’s care to avoid school. She said that if the children were in their care they will ensure the children attend school.
In relation to proposals about extra-curricular activities and unsolicited statements which the children have made about where they want to live, Ms Q largely echoes the father’s evidence.
In relation to the description of the relationships between the children, Ms Q largely echoes the father’s evidence.
In relation to the description of the relationship between the children and significant people, Ms Q set out the following. She was positive about the father’s parenting. She says he is a supportive, hands-on father who cares for the children and whom the children love and trust. In relation to other significant people, Ms Q largely echoes the father’s evidence.
In relation to concerns about the other parent, Ms Q set out the following:
·The paternal grandmother was requested by the mother’s legal representatives to write a letter of consent to supervise the father whilst he cared for the children;
·The children were prevented from attending the father’s and Ms Q’s wedding until the last minute;
·She says that it is her observation that the children are more at risk of physical and psychological abuse;
·She says the mother’s treatment of the children is different when her partner Mr J is not present. She bases that observation on reports of the children. She also says that the mother’s health issues are escalating, which will take her focus away from the children;
·She sets out some concern for the child F’s emotional well-being. She says that it had deteriorated in the months before the affidavit was sworn;
·She expressed concern that the child G had a compulsive eating disorder, and has food sensitivities;
·She expressed concern that G has been bullied at school;
·She said that the younger children reported to her the mother rubbed a chicken dish in G’s face in January 2011 because he would not eat it;
·The child F reported the mother scratched his back and left marks in 2012;
·The children were in a car accident on Sunday 26 May 2013, and Ms Q expressed concern the children were not apparently taken to a doctor, nor was the father informed until Wednesday 29 May 2013; and
·Ms Q expressed concern the mother failed to report an alleged sexual assault of the youngest child by G in July 2013 while on holiday in the snow.
In relation to details about alleged family violence, Ms Q largely echoes the father’s evidence.
In relation to relevant facts to support the application, Ms Q set out the following:
·She has a responsibility as the stepmother to love and protect the children; and
·She has concern the mother has not taken responsibility for her abuse of the children.
The mother
The mother relied on the following affidavit evidence:
·Affidavit of the mother sworn on 1 November 2013;
·Affidavit of the mother sworn 8 November 2013
·Affidavit of the mother sworn 9 December 2013;
·Affidavit of the mother sworn 9 May 2014;
·Affidavit of the mother sworn 12 May 2014;
·Affidavit of Mr J sworn 1 November 2013;
·The affidavit of Mr J sworn 14 November 2013;
·The affidavit of Dr ST, sworn 10 October 2013; and
·Affidavit of Associate Professor HG sworn 5 November 2013.
The mother swore an affidavit on 1 November 2013 which set out the following evidence in relation to the parenting matter.
The mother says that parties met in 1990, commenced cohabitation in about 1993, and were married in 1994. There are four children of the marriage:
·E (born in 1999)
·F (Born in 2001)
·G (born in 2003)
·D (born in 2005)
Since the parties’ separation in February 2006, the children have lived primarily with the mother, and spent time with the father.
The mother is in a long-term relationship with Mr J. They commenced cohabitation in May 2011, and currently, he works interstate and returns to live with the mother on the weekends.
In relation to housing, the mother proposes that the children continue to live with her. She says that
·The children have lived in the former matrimonial home for most of or all of their lives. They are familiar with the area and have their social network in that area.
·The house is set up for the children, including a place to do their homework and use the computer.
·E and G have their own rooms, and F and D share at the moment. She proposes to renovate the house to provide each child with their own room, depending on the outcome of the family law matter.
·If the mother is not able to retain the former matrimonial home, she proposes to rent a property in the Northern Beaches Area.
·There is a pool outside, and bushland is nearby.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
I have set out in these reasons the financial circumstances of each of the parties relationships with new partners to the extent the evidence permits a finding. I take those matters into account.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
I have determined that the division of the net assets of the parties following my assessment and weighing of their contributions to the date of hearing will see the mother with $1,491,673 in net assets (plus half the superannuation pool) and the father with $551,714 in net assets (and half the superannuation pool). That determination will mean the mother has $939,959 more in net assets than the father. In the pool of net assets determined for this case that difference is significant.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
I have already set out in these reasons details of the current child support assessment. I take that into account as well as the probability the assessment will reduce because two of the four children will now live with primarily the father.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
From July 2006 the mother has had the exclusive use of the former matrimonial home with the exception that the father did occupy the property on alternate weekends until November 2006.
Between December 2006 and May 2007 the father drew approximately $46,000 from the Westpac Equity loans to pay credit cards.
The mother and father each received, post separation from the Fadenn Family Trust bank account, the sum of $40,000 pursuant to an agreement.
At paragraph 299 of her affidavit the mother sets out the payments which she has been able to identify as having been received by the father post separation. This information she says is derived from documents produced or provided by each of the parties for this hearing. The total of these payments is $1,387,114. That figure the mother says does not include income from N Services, or N Pty Ltd, or L Pty Ltd. Having looked at the entries I can see that some of the entries were for dividends paid by N Associates. They were paid to both K Pty Ltd and the Faden Family Trust. It also included loan account adjustments. There were a number of items which the mother was unable to identify and has assumed the payment was not part of the father’s income. Further, in relation to entries against loan accounts in N Associates, the Faden Family Trust or L Pty Ltd it is not possible to say if movements in those loan accounts against the father’s name were not included in his tax return as income. Some of the detail is included in Exhibit X3 where the source of the evidence to support the assertion is included; however other entries do not provide a reference to where the evidence can be found. One of the assertions in paragraph 299 is that the father received $32,432 from the sale of shares in an entity “ON Pty. Ltd.” on 18 September 2006. The father has not marked that entry as “agreed” and the mother has not specified where the evidence is to support that assertion. I acknowledge that there may be evidence to support this assertion, however the documentary evidence in the case is immense and in the absence of assistance I was unable to find this entry.
The father did answer some of the allegations by agreeing to assertions in the chronology provided by the mother on the first day of the trial. That document was marked as Exhibit X3. The father only marked items up to April 2009. I accept the father has received personally the benefit of some of the items specified by the mother in paragraph 299 of her affidavit.
In August 2006 the father sold shares held in his name in public companies and received almost $4,500.
I take into account the fact that the father has not made any further contributions to the X Superannuation Fund since separation. This is important because the father has been employed by L Pty Ltd since shortly after separation. He has been paid a good salary as disclosed by his income tax returns and other evidence. L Pty Ltd has only made a small contribution to superannuation on the father’s behalf. That was done recently. There will have to be a catch up in the contribution which is required by law to be made. Such a payment can be expected to significantly increase the father’s superannuation entitlement.
The father and his wife had a holiday overseas after their wedding. Part of the cost was met from wedding presents however the father agreed that it could have cost $10,000 in total.
The father was asked to look at the loan account details for K Pty Ltd. He agreed it showed money owing by the mother to K Pty Ltd. He agreed it showed in the 2012 financial year a liability accruing to the mother of $21,862. He said that arose because the accounts carried forward loans which were the subject of Division 7A. He was not entirely clear about that and thought it may have been interest in respect of the Division 7A loan. The loan account of the mother will be transferred to the father as agreed between the parties after they agreed to a method of having K Pty Ltd distribute the sale proceeds of N Associates shares.
The father was asked about the sale of the Town Y farm. He said “I sold the farm to pay the mortgage on the house, actually.” He said he used the proceeds to pay the mortgage and also the Child Support Agency. He agreed he received $50,000 for his interest in the farm property. The father agreed that there was a subsequent court order requiring the father to pay one half of the mortgage on the former matrimonial home, and that he is in breach of that order. He agreed that the breach amounted to about $22,000. It needs to be remembered that the payment made by the father satisfied part of a court order to make payments on the Westpac mortgage on the former matrimonial home. In so doing he did not use his income to meet that part of the mortgage payment, rather he used the parties’ property. This is also true of the payment he made to pay child support arrears.
Each party has paid legal costs associated with Family Court proceedings. The mother has paid $463,230. The father has paid $118,696.
In the valuation prepared by Ms DG she has calculated a Capital Gains Tax figure which will be payable when the Trust sells its interest in N Associates. That figure has been calculated at the top marginal rate of 46.5 per cent. I will assume that rate is appropriate for the purpose of the entry in the balance sheet however, the evidence of the mother would satisfy me she is unlikely to generate income at a level over the next few years which will see her taxed at the top rate. She has in the recent past paid that rate and that is because of distributions from the O Trust and from the P Trust, however those trusts are now depleted. As the parties have agreed to a series of orders which will see the shareholding of N Associates in the Faden Family Trust sold and divided and all CGT paid from the proceeds it is not necessary to consider the matter of the GST payment further under section 75(2).
In relation to the value of the mother’s interest in the Estate of Ms P, the value has been calculated by Ms DG as at 30 June 2012. However the mother has produced evidence to show that the only asset of the Estate now is a shareholding in Westpac Bank which had a value at 20 November 2014 of $17,013. The Estate has sold and distributed shares valued by Ms DG of $29,954. The Westpac shares were valued at 30 June 2012 at $21,616. There has been a devaluation in the shares of $4,603. The effect of the sale of the shares and distribution to the mother is to increase her debt to the estate of about $29,954. Her real interest in the estate therefore is now reduced to the current value of the Westpac shares.
The accounts for N Associates which appear at tab 14 of Exhibit W22 show the income received by the company which is available for distribution to the shareholders decreased from $320,000 after tax in the 2013 year to $242,000 after tax in the 2014 year. This will mean a decrease in income payable to the Faden Family Trust and to K Pty Ltd.
The Faden Family Trust is paid a monthly payment by N Associates. The parties agree that in the 2013 tax year the amount paid by monthly instalment was greater than the dividend declared. The additional payment will need to be credited against the debt owed by N Associates to the Faden Family Trust. The Faden Family Trust accounts for 30 June 2012 which Ms DG used to value that entity show a loan to N Associates of $60,288. That loan will be reduced and thereby reduce the value of the Faden Trust. As both parties agree they hold (for the purpose of this hearing) equal entitlement to the equity in the trust and as I am unable to calculate the reduction in value because I do not know the amount by which the loan account will be reduced, I propose to leave the value as it is stated in the evidence of Ms DG and take into account here that there will be a difference, probably of small dimension.
The father provided at my request a copy of the profit and loss accounts for L Pty Ltd for the 2014 year. The documents show an increase in gross income from $486,015 in the 2013 year to $879,721 in the 2014 year. The net profit however was recorded as a small loss of $19,226 as compared with a loss of $155,240 the previous year. The increase is possibly explainable by the acquisition of the “client list” as referred to in these reasons. Without the benefit of a further analysis by Ms DG it is not possible to say whether the value will have increased. I am sure the father would hope that the value will have increased. As the asset was acquired post separation and was acquired with 100 per cent borrowing it does not impact significantly upon the determination of the assessment of contribution.
I note that part of the income for the 2013 tax year which was available to Ms DG for the valuation of K Pty Ltd included income of management fees from the L Trust. As the father is the only shareholder in K Pty Ltd and the controller of the L Trust I do not think the movement of funds between the entities owned by him is of significance in this determination.
The valuation of the O Trust and the P Trust is stated at 30 June 2012. The Court also has copies of the balance sheet and financial statements for those two entities as at 30 June 2013. The O Trust accounts show the assets of the trust at $689,766 made up of a liability by the mother to the trust of $689,674.
Exhibit H9 shows a history of the payments made by K Pty Ltd to the mother since 16 December 2013. A total of $41,500 has been paid mostly by instalments of $1,500 as required by the order of the Court. As the father is the owner of K Pty Ltd there is a real prospect that he will have to pay tax on that distribution at some future date.
As a consequence of the parties’ agreement to frame orders for the sale of the shares held in N Associates by both K Pty Ltd and the Faden Family Trust the following items were removed from the balance sheet.
·The father’s Tax Account Macquarie Bank was removed because it has a very small credit balance.
·Items which are marked as “nil” value have been removed.
·The mother’s assets listed as:
(i) P Trust $266,000
(ii) The Faden Family Trust $24,000 (now with a substituted figure)
(iii) O Trust $690,000
(iv) Loan payable by the Faden Family Trust $168,258
(v) The mother’s share portfolio $12,236
·The father’s assets listed as:
(i) The Faden Family Trust $24,000 (now with a substituted figure)
(ii) K Pty Ltd $905,000 (now with a substituted figure)
(iii) Loan payable by the Faden Family Trust $133,506
·The mother’s liabilities:
(i) Loan from O Trust $689,174
(ii) Loan from P Trust $211,579
(iii) Loan from K Pty Ltd $131,975.
(vi) CGT on sale of shares by the Faden Family Trust $7,150
·The father’s liabilities:
(i) Loan from K Pty Ltd Pty Ltd $9,191
(ii) CGT on sale of shares by the Faden Family Trust $7,150
(iii) The liability to JK Financial Group (for the Faden Family Trust) has now been paid in the sum of $1,540.
(vi) Tax liability $36,146
The mother’s share portfolio as above set out was acquired with funds from her post separation inheritance.
The father’s tax liability has been created post separation and therefore was excluded from the balance sheet. I take it into account here.
The X Super Fund has assets which consist only of cash at bank. It has been valued at 30 June 2012. Since that time it has grown. The balances of the accounts which hold its funds at November 2014 are as follows: Total value of the assets is $500,343. This is an advance on the value determined by the single expert at $467,000. It is not possible for me to ascertain the division between the parties of the increase in the value of the fund. It is reasonable to conclude the division of the additional growth will favour the father. I will consider this matter under section 75(2).
Conclusion on section 75(2)
Having considered the matters under section 75(2) I determine there should be an adjustment in favour of the mother of 2 per cent. In determining this division I have taken into account the parties’ entitlements to superannuation in the X Superannuation and I have not made a separate assessment of section 75(2) in relation to the superannuation.
The matters which have been most significant for the above determination are as follows:
·The mother’s occupation of the former matrimonial home since the father fully vacated the property in November 2006 (eight years). During this time the property has also housed the children (nine out of 14 days during school term and half school holidays) and the mother’s partner (some of the eight years).
·The father’s superior income in the foreseeable future.
·The division based on assessment of contribution sees the mother with $939,959 more in net assets than the father.
·The relativity of payment of legal costs by the parties.
·Each party will have an entitlement to the X Superannuation Fund in equal shares (although this will be split in favour of the mother in its entirety following further submissions made by the parties at my request. See below.)
·Liability for outstanding child support arrears by the father (mother to receive the benefit when paid).
·The father’s future liability to pay child support.
·The future care of the children (two with the mother and two with the father, however the mother has the younger two).
The decision to provide the mother with a splitting order for the entirety of the superannuation fund provides the mother with a very distinct advantage arising from the orders proposed to be made because it is a sum certain. The amount the parties will receive from the sale of the shares in N Associates is very uncertain.
The above determination will see the mother receive 75 per cent of the parties’ assets and the father receive 25 per cent.
Just and equitable
The division of assets would see the mother receive $1,132,790 worth of net assets and half of the X Fund Superannuation which equates to a value of $250,172. The father will receive $377,597 worth of assets and $250,171 in super.
Orders which should be made
I initially proposed orders which will give effect to the following division of the parties’ assets. There will be a splitting order, however the amount of the split I will be determine below.
The mother will receive:
| Assets | ($) |
| Former matrimonial home | 1,000,000 |
| 25% interest Town Y property 50% The Faden Family Trust | 50,000 208,856 |
| Jewellery | 12,500 |
| Landrover | 12,750 |
| Total Assets | $1,284,106 |
| Liabilities | |
| Rocket Repay Home Loan | 130,000 |
| Rocket Equity Loan 1 | 220,000 |
| Rocket Equity Loan 2 Half the Liability to Macquarie Bank | 250,000 |
| HW Accountants | 5,830 |
| JK Financial Group (for Faden Family Trust) | 1,540 |
| · | |
| Total Liabilities | $873,870 |
Net Assets retained from balance sheet $410,236
Superannuation
The X Superannuation $250,172
The father will receive:
| Assets | ($) |
| 50% The Faden Family Trust | 208,856 |
| K Pty Ltd | 671,643 |
| L Pty Ltd | 50,500 |
| Loan payable by L Pty Ltd | 949 |
| L Trust | 454,000 |
| BMW | 7,000 |
| 50% sailing boat (…) | 1,000 |
| Total Assets | $1,393,948 |
| Liabilities | |
| Loan from L Pty Ltd Half liability for Macquarie Bank Loan | 27,297 266,500 |
| Total Liabilities | $ 293,797 |
| Net Assets | $1,100,151 |
Superannuation
The X Fund Superannuation $250,171
Orders to be made
The above figures show that the mother will retain $410,236 in net assets on the balance sheet. That includes a half share of the Faden Family Trust. She is to receive by my determination net assets of $1,132,790 and superannuation of $250,172. There is therefore a shortfall in net assets of $722,554. This can be made up in a number of different ways.
I consider the mother should receive a greater splitting order than the 50 per cent she would receive based on my determination as set out above. She could receive up to $250,171 in addition to the entitlement of $250,172. If such an order was made then the shortfall would be reduced to $472,383. That sum could be made up from the father’s interest in K Pty Ltd which is valued on the balance sheet at $671,643. In those circumstances it would be necessary to make an order for sale by K Pty Ltd of the shares in N Associates and distribution of the net proceeds, after payment of the expenses which are recited in the proposed orders, referred to earlier in these reasons, of 70 per cent to the mother and the balance to the father.
In addition to the above mentioned possible orders there would need to be an order for the sale of the N Associates shares held by the Faden Family Trust and after payment of the expenses which are recited in the proposed orders referred to earlier in these reasons, equal division of the net proceeds.
Having reached this stage in the judgment I invited further submissions by each of the parties as to the superannuation splitting orders. The following email request was sent to each of the parties.
His Honour wishes to hear from you in relation to a splitting order for the [X] Superannuation Fund.
The value of the fund at the moment is established at $500,343. It is possible to split that in any proportion.
The mother has a small portion of the entitlement (about $80,000) and at the moment her ability to generate substantial superannuation benefits in the future seems problematic. The father on the other hand has a good opportunity through [L Pty Ltd] to build super entitlements into the future.
The split of the net sale proceeds of the shares in [N] Associates P/L by both [K] P/L and the [Faden] Family Trust will possibly not yield the parties all the value which appears in the balance sheet assuming the asset sells for the consideration which the expert Ms [DG] has attributed as the value in each entity because there are payments of taxation which need to be addressed in each entity and in relation to receipt by each party. Thus the amount each is to receive is to be expressed as a percentage of the net proceeds of the sale of those shares.
There are therefore advantages in considering a 100 per cent super splitting order in favour of the mother.
Could you please consider this matter and prepare to make any further submission about the topic when a telephone link is arranged. HH would prefer the link to be sooner rather than later.
Could you please advise what days and times you will be available to address the above matters with His Honour.
The parties both appeared by phone before the Court on 17 December 2014. The mother submitted a 100 per cent split of the X Superannuation Fund should be made.
The father said he did not oppose such an order being made.
Apart from the reasons provided above as to the sense of a splitting order in favour of the mother for the whole of the X Superannuation there are other good reasons why such a splitting order should be made. The mother may not have an opportunity to substantially grow superannuation for herself into the future. As things stand at the moment the father does appear to have that ability.
The ability to support herself in retirement through utilising superannuation will be important for the mother. That is also an important matter for the father. There are also broader considerations which affect the whole of our society as to why the ability to draw on superannuation for support in retirement rather than the government providing that support.
Had the father not consented to such a course, I would certainly have considered it appropriate to make such an order.
As the mother is to have the whole of the parties’ interests in the X Superannuation Fund, it is appropriate that she control the trustee. I will make an order requiring the transfer of the father’s shareholding in the trustee to the mother.
The order made on 11 December 2013 which required the father to cause K Pty Ltd to pay to the mother $1,500 per fortnight needs to continue until the mother receives funds from the sale of the shares held by K Pty Ltd in N Associates. This is necessary to be able to have the mother meet the continuing obligation to the Westpac Bank under the mortgage registered against the title to the former matrimonial home which will become her property by these orders.
The payment of the $1,500 fits most comfortably into a description of spouse maintenance order. I am satisfied that the mother does not have the capacity to support herself adequately at this time (for the reasons amply described above) and there is insufficient evidence to establish that her partner can support her to the level necessary to prevent the Westpac Bank taking action to enter into possession of the property should the mortgage fall into arrears.
When the order was made on 11 December 2013 it provided for the description or characterising of the order to abide the final determination. No specific submission was directed to this issue, however, I conclude the payment should be named as spouse maintenance.
I certify that the preceding One thousand one hundred and forty-four (1144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench dated 19 December 2014.
Associate:
Date: 19 December 2014
Key Legal Topics
Areas of Law
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Family Law
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