Finala & Finala
[2021] FedCFamC2F 607
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Finala & Finala [2021] FedCFamC2F 607
File number(s): SYC 2641 of 2017 Judgment of: JUDGE MORLEY Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – Parenting – mother seeks sole parental responsibility – father seeks equal shared parental responsibility – mother – seeks continuation of same time regime of four nights a fortnight - father seeks graduated regime up to week-about – allegations of significant sexual family violence – Court unable to find family violence occurred.
FAMILY LAW – Property – where Court finds it just and equitable to make a property adjustment order.
Legislation: Evidence Act 1995 (Cth), ss.76, 140, 144
Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 63C, 65D, 65DAA, 65DAB, 65Y, 66C, 68B, 75, 79, 70A, 90XT, 106A, 114, 117Cases cited: A & A & The Child Representative (1998) 22 FamLR 756
AJO v GRO (2005) 191 FLR 317
Amador & Amador [2009] FamCAFC 196
Bevan v Bevan, (2013) 279 FLR 1
Deiter & Deiter [2011] FamCAFC 82
Dickons & Dickons [2012] FamCAFC 154
Eaby & Speelman [2015] FamCAFC 104
Fields & Smith [2015] FamCAFC 57
Fontana & Fontana [2018] FamCAFC 63
Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Grier & Malphas (2017) 55 Fam LR 107
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395
In the Marriage of Harris (1991) 104 FLR 458
Johnson & Page (2007) FLC 93-344
M & M (1988) FLC 91-973
Masoud & Masoud [2016] FamCAFC 24
Mazorski & Albright [2008] 37 FLR 518
McCall & Clark [2009] FamCAFC 92
Napier & Hepburn (2006) FLC 93-303
Pavli & Beffa [2013] FamCA 144
Jabour & Jabour [2019] FamCAFC 78
Shan & Prasad [2018] FamCAFC 12
Stanford & Stanford (2012) 247 CLR 108
Tait & Densmore [2007] FamCA 1383
Talbot & Talbot [2015] FamCAFC 132
Vass & Vass [2015] FamCAFC 51Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 472 Date of last submission/s: 16 December 2020 Date of hearing: 4-6 May 2020, 4-5 November 2020, 16 December 2020. Place: Sydney Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Solari & Stock Lawyers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Watkins Tapsell Solicitor for the Independent Children's Lawyer: Mr Holmes of Holmes Donnelly & Co Solicitors ORDERS
SYC 2641 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FINALA
Applicant
AND: MR FINALA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.That the parents have equal shared parental responsibility for their child X born in 2012 (“X”).
2.That X live with her mother.
3.That X spend time with her father as follows:
(a)during school term time each alternate week from the end of school (or 3.00 pm if not a school attendance day) on Thursday until start of school (or 9.00 am if not a school attendance day) on the following Tuesday, the first such occasion to commence on the Thursday first after school recommences following a school holiday that started in an even numbered year and on the Thursday second after school recommences following a school holiday that started in an odd numbered year;
(b)for half of the school holidays at the end of Terms 1, 2 and 3, being the first half of the holidays that occur in an even numbered year and the second half of the holidays that occur in an odd numbered year, and for the purposes of this order those school holidays commence at the time that X breaks up from school attendance for the Term and end at the time that X recommences school attendance for the new term;
(c)during the school holidays at the end of Term 4 for the first half of such school holidays that commence in an even numbered year and for the second half of such school holidays that commence in an odd numbered year, and for the purposes of this order those school holidays commence at 5.30 pm on 26 December and conclude when X recommences school attendance for the new school year AND X’s alternate week time with her father pursuant to order 3(a) will cease at the breakup of school for X at the end of Term 4;
(d)from 10.00 am on 25 December until 5.30 pm on 26 December each year;
(e)at the end of each odd numbered year from 12.00 noon on 31 December until 12.00 noon on 1 January of the New Year;
(f)from 9.30 am until 5.00 pm on Fathers Day;
(g)on the father’s birthday, from 9.30 am until 5.00 pm if on a non-school day and from the end of school until 6.00 pm if on a school day;
(h)from the conclusion of school (or 3:30 if Easter falls in the school holidays) on Easter Thursday until school drop off (or 9:30am if Easter falls during the school holidays) on Easter Tuesday in even-numbered years;
(i)on X’s birthday if X will not otherwise be in her father’s care at all on that day for two hours if a school day and for four hours if a non-school day;
(j)at such other times as may be agreed between the parents in writing from time to time.
4.That notwithstanding any other order, X will be in her mother’s care as follows:
(a)from 9.30 am on 23 December until 10.00 am on 25 December each year;
(b)at the end of each even numbered year from 12.00 noon on 31 December until 12.00 noon on 1 January of the New Year;
(c)from 9.30 am until 5.00 pm on Mothers Day;
(d)on the mother’s birthday, from 9.30 am until 5.00 pm if on a non-school day and from the end of school until 6.00 pm if on a school day;
(e)from the conclusion of school (or 3:30pm if Easter falls in the school holidays) on Easter Thursday until school drop off (or 9:30am if Easter falls during the school holidays) on Easter Tuesday in odd-numbered years;
(f)on X’s birthday if X will not otherwise be in her mother’s care at all on that day for two hours if a school day and for four hours if a non-school day;
5.That any changeovers that do not occur at X’s school shall occur at the Suburb B McDonalds family Restaurant at corner C Street, Suburb B NSW.
6.That each parent notify the other, as soon as possible, in the event of any serious injury or serious illness suffered by the child whilst with that parent.
7.That the parents shall notify each other as soon as reasonably practicable of any medical issue involving the child whilst in their respective care wherein the child is required to attend upon a hospital or medical practice with that notification to include details of the illness, injury, treating doctor, prognosis and treatment, if known. Should the child be prescribed medication, it is the responsibility of that parent to obtain such medication, which is to be provided to the other parent at changeover.
8.That each party shall cooperate with the other party in signing all documents necessary to renew, replace or extend X’s passport or to enable X to travel internationally, including but not limited to visa applications, and the parties shall each pay half the fees associated with renewing or replacing X’s passport and the father shall pay the costs to the mother within 7 days of receiving a request for payment.
9.That the child’s passport be held by the Applicant Mother.
10.That should X travel with her Father overseas, the Mother is to release X’s passport to the Father at least 14 days prior to travel and the Father is to return X’s passport to the Mother at the next changeover following their return from overseas.
11.That the parents shall each be permitted to take X out of Australia for holidays and for other short periods of time, provided that the following has occurred:
(a)The party wishing to travel overseas ("the removing party") shall give not less than twenty-eight (28) days written notice to the other party of his or her intention to travel overseas with the X the notice shall include details of the proposed travel including but not limited to anticipated departure and arrival dates and details of the country or countries the removing party and X will be travelling to;
(b)The removing party shall provide to the other parent in writing, not less than fourteen (14) days prior to the departure date, an accurate itinerary including but not limited to, the departure and return dates, the country or countries the removing party and X will be travelling to, the approximate dates on which X will arrive and depart each country and a telephone number and address at which the parent and X can be contacted in each country;
(c)The removing party shall not less than 48 hours prior to departure provide the other party with a copy of the X's return air ticket; and
(i)the period of travel shall occur wholly during the time the removing party is scheduled to spend time with X pursuant to these orders, unless otherwise agreed between the parties in writing.
(ii)the travel shall not occur to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
(iii)the travel shall not occur to a country which has a travel alert warning issued by the Department of Foreign Affairs and Trade above Level 1 "Exercise normal safety precautions."
(d)That neither party shall reside with X outside of the Commonwealth of Australia without the consent of both parties or orders made by the Federal Circuit and Family Court of Australia.
12.That the Mother and Father have liberal telephone contact with X between the hours of 6.00pm and 8.00pm during periods of time that X is in the other parent’s care.
13.That at any time whilst X is in the respective care of either parent, immediately upon X requesting to telephone the other parent, the parent who has the care of X shall forthwith arrange for her to have access to a telephone and assist the her in telephoning the other parent and each party shall give X privacy on the telephone and shall not linger in the same room.
14.That both parties are permitted to enrol X into any weekend sporting and/or extra curricular activity in coordination with the other so as to avoid overlap and shall advise the other party, with at least one month's notice of the activity.
15.That each party shall ensure that X attends her scheduled extra-curricular activities.
16.Each party will have liberty to attend all of X's extra-curricular, sporting and school-related activities and the parents are to interact on such occasions only by exchanging polite greetings and each is not otherwise to impose his or her immediate presence on the other parent.
17.That each party notify the other, not more than 24 hours after any change to their contact telephone numbers and/or their email address.
18.That both parties are to speak to and treat the other party in a respectful manner at all times, in particular in the presence or hearing of X, both parties are restrained by injunction from making any comments that are aggressive, sexual or threatening in nature towards the other party.
19.That both parties are to do all things to ensure that:
(a)they use appropriate, age appropriate, parental locks on all electronic devices including, but not limited to, television, internet and applications;
(b)the child receives appropriate adult and parental supervision; and
(c)the child does not view or listen to any television or media that is not age appropriate.
20.That the parties shall respect each other's personal boundaries at changeovers and ensure a swift and efficient changeover to occur between the parties or when both parties are participating in any school or extra-curricular activities. For that purpose, the parties shall;
(a)Not communicate with each other at the changeover unless to discuss an emergency or to greet each other at the commencement;
(b)Not discuss parenting matters in the presence of X;
(c)Not loiter around at the changeover or unnecessarily prolong the changeover;
(d)Respect and stay within 1.5 metres of the other;
(e)Not to follow each other around and/or including to not follow the other parent to their motor vehicle;
(f)Not have any physical contact with the other;
(g)Not enter the other party's motor vehicle.
21.That the parties do all things and sign all documents necessary to enroll X at D Street, Suburb E for the next school term available for X to be enrolled in.
22.That the court make an order under Section 79 of the Family Law Act 1975 (Cth) as follows :
(a)That the net proceeds of sale of the former matrimonial home at F Street, Suburb G in NSW being held upon trust for the parties jointly by Watkins Tapsell Solicitors be divided equally between the parties inclusive of interest, if any, accrued thereon.
(b)That the husband is the sole owner in law and in equity as between himself and the wife of all items of real property, personal property and financial assets currently in his power, possession or control other than as specifically dealt with elsewhere in this order, including, but not limited to, his Commonwealth Bank account …48, his AXI Trader FX trading account, the Motor Vehicle 1, the sole trader business conducted by him as Company H, his gold and silver bullion, the moneys received by him as interim distributions of the net proceeds of sale of the F Street, Suburb G property and the household contents in his possession.
(c)That the wife is the sole owner in law and in equity as between herself and the husband of all items of real property, personal property and financial assets currently in her power, possession or control other than as specifically dealt with elsewhere in this order, including, but not limited to, her Credit Union accounts in her sole name, the Motor Vehicle 2, her account held jointly with her partner with National Australia Bank Limited, the household contents in her possession and her entitlement to benefits as a member of the Super Fund J superannuation fund.
23.That in the event that either party refuses or neglects to comply with any part of order 22 in relation to the execution of any deed, instrument or document then pursuant to section 106A of the Family Law Act 1975 (Cth) the court appoints and authorises the Registrars of the Federal Circuit and Family Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
24.That the father pay half of the costs of the Independent Child’s Lawyer in the sum of $6336 such sum to be paid by the father to the Legal Aid Commission of New South Wales within 7 days of receipt by the father of his share of the moneys dealt with in order 22(a).
25.That the mother pay half of the costs of the Independent Child’s Lawyer in the sum of $6336 such sum to be paid by the mother to the Legal Aid Commission of New South Wales within 7 days of receipt by the mother of her share of the moneys dealt with in order 22(a).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Finala & Finala has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
INTRODUCTION
X, born in 2012, known as X, loves both of her parents. X is most acutely aware that her parents dislike each other intensely.
When X was asked by Dr K, during interviews for the preparation of a family report, “What would you wish for if you could wave a magic wand?”, X answered that she would want her parents “To get back together”. X went on to tell Dr K that her parents are not friends because they do not speak to each other and she described how she tries to get her parents to converse when they come into contact, but she feels sad because she does not think they are going to do that.
X’s parents are not going to get back together and they are not going to be friends, but in the nine years remaining of X’s minority and the many years thereafter when her life develops through its great events, it will be an immense boon and benefit to X if her parents can, at least, converse. If not face to face, as that may be a step or more beyond what X’s mother is able to tolerate for the reasons she asserts in her evidence, at least voice to voice or through the written word.
X’s parents were unable to agree on final parenting arrangements or on final property settlement arrangements and accordingly those issues went to a final hearing over six days during 2020 and these are the reasons for the final orders that result.
The applicant wife and mother is Ms Finala (formerly known as Finala) (herein ‘the mother’ or ‘the wife’) and the respondent and father is Mr Finala (herein ‘the father’ or ‘the husband’).
Duncan Holmes, solicitor, was appointed as Independent Child’s Lawyer (‘ICL’) to represent the interests of X in the proceedings by an order made under section 68L of the Family Law Act 1975 (Cth) (‘the Act’) on 28 August 2018.
At final hearing, Ms Lawson of counsel appeared for the mother. Ms Christie of senior counsel appeared for the father. Mr Holmes appeared on his own behalf as ICL.
The parents began their cohabitation in 2009, were married in 2011, and separated on 16 August 2015 when X was three years of age. At the time of separation, the mother moved, with X, away from the former matrimonial home at F Street, Suburb G and the father remained in occupation of that home until its sale in January 2018.
The parties were divorced on 18 July 2017, the order becoming final on 19 August 2017.
The father has not re-partnered. The mother has re-partnered with Mr L and they have a daughter, M, born in 2019. At the time of the final hearing in 2020 the mother was again pregnant with her second child to Mr L. Mr L does not have any other children.
At the time the final hearing concluded on 16 December 2020 X was eight years and six months of age. She is now nine years and six months of age and that delay is to be regretted and I apologise for that delay to X, to the parents, to Mr Holmes and to the legal representatives for the parties.
THE MATERIAL RELIED UPON
The mother relied upon the following materials:
(1)case outline document dated 30 April 2020, prepared by her counsel, Ms Lawson, and marked exhibit A1;
(2)minute of orders sought on behalf of the applicant wife dated 16 December 2020;
(3)amended initiating application filed 14 November 2019;
(4)notice of risk filed 8 May 2018;
(5)affidavit of Ms Finala (formerly Finala) affirmed 28 April 2020 and filed that day together with documents exhibited at tabs 1 to 24 as referred to in the affidavit;
(6)affidavit of Ms Finala (formerly Finala) affirmed 30 October 2020 and filed 4 November 2020;
(7)affidavit of Mr L affirmed 20 April 2020 and filed 21 April 2020; and
(8)financial statement of Ms Finala dated 23 April 2020.
Both affidavits of the mother, her financial statement and the affidavit of Mr L were adopted by electronic signature in accordance with the COVID-19 practice direction current at that time,[1] and were adopted as evidence in chief in oral evidence during the hearing.
[1] Joint Practice Direction No. 2 of 2020 ‘Special Measures in Response to COVID-19’.
The mother also relied upon the following documents admitted into evidence as exhibits:
(1)exhibit A2 – the mother’s Credit Union account statements for the period 17 July 2014 to 16 July 2017;
(2)exhibit A3 – the mother’s certificate of participation in the Circle of Security parenting course dated 21 July 2020;
(3)exhibit A4 – two photographs contained in a screenshot of a text message conversation both showing a limb, being referred to in exhibit 2 of the mother’s affidavit filed 28 April 2020;
(4)exhibit A5 – the mother’s certificate of completion of “Mothers Matter” dated 1 July 2013;
(5)exhibit A6 – the husband’s costs notice from his solicitors, Watkins Tapsell, dated 3 November 2020 and the mother’s costs notice from her solicitors, Solari & Stock Lawyers, dated 30 October 2020; and
(6)exhibit A7 – an agreed balance sheet dated 5 November 2020.
The father relied upon the following materials:
(1)case outline document prepared by his senior counsel, Ms Christie, and filed 27 April 2020 and marked exhibit R1;
(2)the father’s proposed minute of order (‘respondent’s proposed minute of order’);
(3)amended response to initiating application filed 29 November 2019;
(4)affidavit of Mr Finala affirmed 15 April 2020 together with an accompanying ‘tender book” containing the documents marked 1 to 13 in that affidavit;
(5)affidavit of Mr Finala affirmed 5 May 2020 and filed in Court; and
(6)financial statement of Mr Finala sworn or affirmed 15 April 2020 and filed 17 April 2020.
The father also relied upon the following documents admitted into evidence as exhibits:
(1)exhibit R2 – statements 103 and 104 for the Commonwealth Bank business transaction account in the name of “The Proprietor Company H” for the period 2 April 2015 to 1 October 2015;
(2)exhibit R3 – letter dated 18 September 2015 from Watkins Tapsell Solicitors to Solari & Stock Lawyers;
(3)exhibit R4 – two statements for a Commonwealth Bank awards credit card in the name of the father covering the period 19 June 2015 to 17 August 2015;
(4)exhibit R5 – 11 colour photographs of, variously, the mother, the father and X;
(5)exhibit R6 – photograph of an airline sick bag with writing and stickers and signed “X”;
(6)exhibit R7 – photograph of the reverse of an airline sick bag with writing and stickers and bearing a trademark “ZZ”;
(7)exhibit R8 – child dispute conference memorandum to Court dated 25 July 2018, prepared by family consultant, Mr HH, in relation to interviews with the parents on 19 July 2018;
(8)exhibit R9 – 22 pages of screenshot pictures of text messages between the father and the mother;
(9)exhibit R10 – affidavit of the mother affirmed 1 March 2019 and filed that day but only in relation to paragraphs 56 to 63 therein;
(10)exhibit R11 – response to an application in a case filed, for the mother, on 8 May 2018;
(11)exhibit R12 – “Proof of evidence of Mr Finala – two pages, paragraphs 1 to 26;
(12)exhibit R13 – statements 124 and 125 for Commonwealth Bank premium business cheque account in the name “The Proprietor, Company H” for the period 1 May 2020 to 31 October 2020;
(13)exhibit R14 – transaction listing for Commonwealth Bank premium cheque account in the name of Mr Finala, trading as Company H, for the period 1 to 23 October 2020;
(14)exhibit R15 – N Pty Ltd, account history for Mr Finala for the period 1 November 2019 to 2 September 2020;
(15)exhibit R16 – O School, Suburb P student progress report 2020 semester 1 for X Finala (two pages);
(16)exhibit R17 – CARS student reading strategy analysis report created 29 February 2020 for X Finala;
(17)exhibit R18 – CBA term deposit final statement dated 11 May 2020 for a term deposit in the name of Mr Finala;
(18)exhibit R19 – pages 6 of 8 and 7 of 8 from New South Wales Police COPS entries for 16 February 2016, 4 September 2015, 5 September 2015, 27 September 2014 and 15 March 2014;
(19)exhibit R20 – statement 104 for Commonwealth Bank business transaction account in the name “The Proprietor, Company H” for the period 2 July to 1 October 2015 and evidencing a payment on 3 August 2015 of $10,000 to “Home loan”; and
(20)exhibit R21 – Watkins Tapsell Solicitors matter inquiry transaction report for invoices issued to the father.
The ICL relied upon the following materials:
(1)exhibit ICL1 – Case outline document dated 3 May 2020;
(2)exhibit ICL2 – Family report dated 1 March 2019, prepared by Dr K.
(3)exhibit ICL3 – ICL’s cost notice from the commencement of the final hearing; and
(4)exhibit ICL4 – ICL’s cost notice to the conclusion of the final hearing and in support of the ICL’s costs application.
Both the mother and her witness, Mr L, were cross-examined for both the father and the ICL. The father was cross-examined for the mother and the ICL.
Dr K was cross-examined on behalf of each of the parties and the ICL.
THE ISSUES
In the parenting proceedings the principal issue was the amount of time that X would spend with each of her parents, the mother proposing that X live with her and spend time with her father for four consecutive nights per fortnight during school term and for seven nights during the term 1, 2 and 3 school holidays and for two weeks during the Christmas school holidays, as well as arrangements for special occasions.
The father proposed that X spend time with him on a graduating scale for five consecutive nights per fortnight and then six consecutive nights per fortnight and then, as a third step, live on an equal shared care basis between her parents with changeovers on Mondays at her school, for seven nights with each parent during the term 1, 2 and 3 school holidays and on a week about basis during the Christmas school holidays, as well as arrangements for special occasions.
The mother proposed that any changeovers not occurring at X’s school take place at a location halfway between the parties as agreed and, failing agreement, Suburb B McDonalds. The father proposed that changeovers that do not take place at school occur at the McDonalds at Suburb G.
The mother seeks that X attend D School, Suburb E. The father seeks that X remain at O School at Suburb P.
The mother sought an order enabling her to enrol X in weekend sport and/or extracurricular activities and requiring the father to take X to such activities and, if he was unable to do so, to return her to the mother for that purpose, whereas the father sought an order that both parties be permitted to enrol X into weekend sporting and/or extracurricular activities “in coordination with the other so as avoid overlap” and each ensure that she attends her scheduled extracurricular activities.
In relation to the property settlement matter, the mother sought that, in effect, based upon the joint balance sheet, exhibit A7 (‘the balance sheet’), there be an overall division between the parties including a superannuation splitting order that provides 72 per cent of the net pool to the mother and 28 per cent to the father. The father sought property settlement orders that effected a division of the net pool, including superannuation, but without any superannuation splitting order, 60 per cent to the mother and 40 per cent to the father.
In relation to the property settlement proceedings, there were certain issues outstanding between the parties at the end of the hearing in relation to value of a motor vehicle and household contents, in relation to whether or not there should be addbacks and, if so, how they should be treated in relation to the interim distributions to the parties from the proceeds of sale of the matrimonial home at F Street, Suburb G and in relation to the husband’s paid legal fees, and issues between the parties as to what liabilities should be included in the calculation of the net matrimonial asset pool, all of those issues to be detailed hereunder.
THE ORDERS SOUGHT BY THE MOTHER
The mother sought the following orders as set out in her minute of orders:
PARENTING ORDERS
Parental Responsibility
(1)That the mother shall have sole parental responsible for the child, X Finala born in 2012 (“the child”) in relation to the decisions which affect the child’s education and health.
(2)All other matters, the parties shall have equal shared parental responsibility for the decisions which affect the child X’s long term care, welfare and development.
Care Arrangements
(3)That the child X live with the Applicant Mother.
(4)That the child X spend time with the Respondent Father:
(a)Each alternate weekend from after school Thursday (or 3.30pm) to before school (or 9.00am) Monday during school terms and such weekend time shall be suspended during the school holidays;
(b)During each of the short New South Wales school holidays, for 7 nights at times agreed between the parties and failing agreement:
(i)For the first 7 nights for years ending in an odd number; and
(ii)For the last 7 nights for years ending in an even year.
(c)For the purpose of calculating school holidays, school holidays shall be defined as commencing after school on the child's actual last day of school and the last day of the school holidays shall be before school on the first day of the new term.
(d)For two weeks of the Christmas school holiday periods each year at times agreed between the parties and failing agreement for two weeks commencing 12 noon on New Years' Day in years ending in an even number and for two weeks commencing 12 noon on 15 January in years ending in an odd number.
(e)at any other times, or alternate times, as agreed between the parties in writing.
(5)If the parent that has care of the child, in accordance with the Orders herein, is unable to provide care for the child for a period of 48 hours or longer that parent is to offer the other parent care of the child in the first instance.
Special Occasions
(6)That the care arrangements provided for in Order 4 herein be suspended to provide that the child spends time with each of her parents on special occasions as agreed by both parties in writing or, failing agreement, as follows:
(a)At Christmas:
(i)with the Applicant Mother from 9.30am Christmas Eve to 11.30am Christmas Day each year; and
(ii)with the Respondent Father from 11.30am Christmas Day to 3.30pm boxing day each year.
(b)On New Year’s Eve:
(i)In Even numbered years with the Applicant Mother from 12 noon 31 December to 12 noon 1 January; and
(ii)In Odd Numbered years with the Respondent Father from 12 noon 31 December to 12 noon 1 January.
(c)On Mother's Day with the Applicant Mother from 9.30am to 5.00pm on Mother's Day.
(d)On Father's Day with the Respondent Father from 9.30am to 5.00pm on Father's Day.
(e)On the child’s birthday being the parent who does not otherwise have care of the child on her birthday pursuant to these Orders is to spend time with the child for two hours on a school day and for four hours on a non-school day.
(f)On the Applicant Mother’s birthday with the Applicant Mother from 9.30am to 5.00pm if the birthday falls on a weekend or from the conclusion of day care/school to 6.00pm if the birthday falls on a weekday.
(g)On the Respondent Father’s birthday with the Respondent Father from 9.30am to 5.00pm if the birthday falls on a weekend or from the conclusion of day care/school to 6.00pm if the birthday falls on a weekday.
Changeovers
(7)That:
(a)all changeovers at the commencement or conclusion of the child's school to occur at the child’s school;
(b)all other changeovers are to occur as agreed between the parties in writing or failing agreement at a place that is halfway between the parties' respective addresses and failing agreement, Suburb B McDonalds;
(c)in the event that the child's residence is changed, then then changeover shall occur at the nearest McDonald's restaurant or agreed public venue halfway between the parties' respective homes.
Passport
(8)That:
(a)each party shall cooperate with the other party in signing all further documents necessary to renew, replace or extend the child’s passport or to enable the child to travel internationally, including but not limited to visa applications; and
(b)the parties each pay half the fees associated with renewing or replacing the child’s passport and the father shall pay the costs to the mother within 7 days of receiving a request for payment.
(9)That the child’s passport be held by the Applicant Mother.
(10)That should the child travel with the Respondent Father overseas, the Applicant Mother is to release the child’s passport to the Respondent Father at least 14 days prior to travel and the Respondent Father is to return the child’s passport to the Applicant Mother at the next changeover following their return from overseas.
International Travel
(11)That:
(a)either party be at liberty to travel overseas with the child at any time the child is in their care in accordance with the Orders herein or as agreed between the parties in writing; and
(b)if either party wishes to travel overseas with the child in accordance with this Order they must provide to the other party in writing confirmation that they plan to travel with the child a minimum of two (2) months prior to the planned departure date and provide to the other party the planned dates of travel and all city and countries that will be visited.
(12)At least 21 days prior to travelling overseas with the child the travelling parent will provide the following to the other party the following:
(a)Copies of any forward and return travel tickets;
(b)An itinerary of the planned travel arrangements;
(c)The location/s where the Child will be staying; and
(d)Any other relevant information.
(13)If either party wishes to travel internationally with the child in accordance with these Orders, both parties are to sign all documents as may be necessary to enable the child to travel internationally, including but not limited to any visa or overseas travel document required by that country to enable the child to enter the country in the care of only one parent.
(14)That the parent with whom the child is travelling overseas shall maintain sufficient travel insurance for the child for the duration of travel.
(15)That the mother is at liberty to take the child X on an overseas holiday for a period of up to four weeks every two years and for that purpose the mother shall give the father two months' notice of her intention to travel and in the event that the holiday is to occur during the periods when X is otherwise in the father's care, then the mother shall make arrangements for the father to have some make-up time for the periods lost as a result of her overseas travel.
(16)That Orders 4 and 6 are to be read subject to Order 15 herein.
Medical
(17)That each parent notify the other, as soon as possible, in the event of any serious injury or serious illness suffered by the child whilst with that parent.
(18)That the parents shall notify each other as soon as reasonably practicable of any medical issue involving the child whilst in their respective care wherein the child is required to attend upon a hospital or medical practice with that notification to include details of the illness, injury, treating doctor, prognosis and treatment, if known. Should the child be prescribed medication, it is the responsibility of that parent to obtain such medication, which is to be provided to the other parent at changeover.
(19)That each parent notify the other, as soon as possible, if they have become hospitalised or severely ill and unable to care for the child. In circumstances were one of the parties has become hospitalised or severely ill and unable to care for the child the other parent is to be given first option to care for the child whilst ever the parent is in hospital or unable to care for the child at home.
Communication
(20)That the parties shall be able to have telephone communication with X whilst in the other parent's care, at all reasonable times and with all reasonable frequency.
(21)That both parties shall allow X to contact the other parent whilst in their care if X has a wish to do so.
Discipline
(22)That neither parent shall physically discipline the child at any time.
(23)That neither parent shall not excessively discipline the child by any means, this includes but is not limited to physical, emotional, verbal or psychological discipline.
Injunction
(24)That the parties both be restrained by injunction from denigrating or criticising the other party or members of their family to the child or in the presence of the child or at all.
(25)That both parties are restrained by injunction from accessing the other parties:
(a)Personal computer and mobile phones
(b)Email account
(c)Social media pages, including Facebook, LinkedIn and Twitter; and
(d)Any other online account the other party may have including, external or cloud storage.
Other Orders
(26)That each party notify the other, not more than 24 hours after any change to their contact telephone numbers and/or their email address.
(27)That both parties are to speak and treat the other party in a respectful manner at all times, in particular in the presence or hearing of the child, both parties are restrained by injunction from making any comments that are aggressive, sexual or threatening in nature towards the other party.
(28)That both parties are to do all things to ensure that:
(a)they use appropriate, age appropriate, parental locks on all electronic devices including, but not limited to, television, internet and applications;
(b)the child receives appropriate adult and parental supervision; and
(c)the child does not view or listen to any television or media that is not age appropriate.
Extra-curricular activities
(29)That the mother be permitted to enrol X into any weekend sporting and/or extra- curricular activity and shall advise the father, with at least one month's notice of the activity, noting that X is currently involved in playing soccer in the winter and is intending to participate in Q Club next year.
(30)That in the event that the father is unable to ensure that X attends each of her extra-curricular activities then the father's time shall be suspended from 8.00am on Saturday until the end of the activity to enable the mother to take X to her sporting and/ or extra-curricular activities and the mother shall return X to her father at the end of her activity.
(31)That the parents shall only attend the child X’s sporting events on days when she is in their care pursuant to these Orders unless agreed to in writing by the other parent or unless the sporting event is significant such as a final or grand final.
Change of Schools
(32)That the parties shall do all things and sign all documents necessary to enrol X into school at D School Suburb E with a view for her to commence school from Term 1 in 2021.
Communications at changeovers
(33)That the parties shall respect each other's personal boundaries at changeovers and ensure a swift and efficient changeover to occur between the parties or when both parties are participating in any school or extra-curricular activities. For that purpose, the parties shall;
(a)Not communicate with each other at the changeover unless to discuss an emergency or to greet each other at the commencement;
(b)Not discuss parenting matters in the presence of the child X;
(c)Not loiter around at the changeover or unnecessarily prolong the changeover;
(d)Respect and stay within 1.5 metres of the other;
(e)Not to follow each other around and/ or including to not follow the other parent to their motor vehicle;
(f)Not have any physical contact with the other;
(g)Not enter the other party's motor vehicle;
Injunction in relation to contact between parties
(34)That the Husband is injuncted and restrained from coming within 200 metres of the Wife's address at R Street, Suburb S and any future place of residence of the wife.
FINANCIAL ORDERS SOUGHT
Former Matrimonial Home
(35)That the parties shall do all things and sign all documents necessary to cause the monies held in the Controlled Monies Account administered by the Husband's solicitors, Watkins Tapsell Solicitors to be divided between the parties as follows:
(a)In payment of 74 per cent to the Wife as directed by her; and
(b)In payment of 26 per cent to the Husband as directed by him.
Company H
(36)That the Respondent Husband be declared, as against the Applicant Wife, to hold the sole right title and interest in the company Company H, (“Company H”).
(37)That the Respondent Husband indemnify the Applicant Wife against all manner of actions, suits, causes of action, debts, loans, guarantees, liabilities, dues, costs, interest, tax liabilities (including penalties and interest) and demands whatsoever both at law and in equity in relation to the Company H, both current or at any future time.
(38)That the Husband shall provide to the Wife within 14 days of the date of these Orders;
(a)Framed picture of X (with her ballet costume on and craft within the frame); and
(b)X's Baptism candle;
(c)Dining room table and chairs;
(d)Outdoor setting; and
(e)X's ride-on tricycles and scooters;
Superannuation Splitting Orders
(39)That the Court allocates, as required by Section 90XT(4) of the Family Law Act 1975 (Cth) a base amount of Thirty Six Thousand Dollars ($36,000) to the Respondent Husband out of the Applicant Wife's interest in the Super Fund J member number …19.
(40)In accordance with Section 90XT(1)(a) of the Family Law Act (Cth), the Court:
(a)creates an entitlement on the part of the Respondent Husband to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)makes a corresponding reduction in the entitlement of the Applicant Wife would have had in the Super Fund J Super Fund but for this order.
(41)Whenever the Trustee of the Super Fund J Super Fund makes a splittable payment out of the Applicant Wife's interest in that Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 10 of this Order in accordance with the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001.
(42)This Order has effect from the operative time and the operative time is four working days after the service of these Orders on the Trustee of the SUPER FUND J.
Other Orders
(43)That unless otherwise specified in these Orders:
(a)each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at the date of these Orders;
(b)each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at the date of these Orders;
(c)each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(d)each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at the date of these Orders.
(44)Except as specifically provided for by these Orders to the contrary, the Applicant Wife hereby indemnifies the Respondent Husband from and in respect of all actions, claim, suits and demands as may be made against the Respondent Husband in relation to all liabilities in the name of the Applicant Husband.
(45)Except as specifically provided for by these Orders to the contrary, the Respondent Husband hereby indemnifies the Applicant Wife from and in respect of all actions claim, suits and demands as may be made against the Applicant Wife in relation to all liabilities in the name of the Respondent Husband.
Section 106A
(46)That in the event that either party refuses or neglects to execute any deed or instrument within seven days of that deed or instrument being forwarded to him or her or his or her solicitor, an officer of the Sydney Registry is hereby appointed pursuant to Section 106A of the Family Law Act, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument. The party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this order, to be taxed if not agreed.
(47)That the Husband pay the Wife's costs of and incidental to these proceedings.
THE ORDERS SOUGHT BY THE FATHER
The father sought final orders as set out in his “Respondent’s proposed minute of order” as follows:
PARENTING
Parenting Arrangements
(1)That the parties have equal shared parental responsibility for the child X Finala, born in 2012 ("X").
(2)That X live with the parties during school terms as follows:
(a)That from the date of these orders and for the duration of 2020, that X live with the Father from Thursday after school until Tuesday morning delivery to school in alternating weeks;
(b)That from 1 February 2021, X live with the Father from Wednesday after school until Tuesday morning delivery to school in alternating weeks;
(c)That for orders 2.1 and 2.2 above, that X live with the Mother for all periods that X is not living with the Father;
(d)That from 1 February 2022, X live with each of the parents on a week-about basis from Monday collection after school until the following Monday delivery to school in alternating weeks, with the Mother having the first week.
(3)That X live with the parties during school holidays as follows:
(a)During each of the short New South Wales school holidays for 7 nights as agreed between the parties and, failing agreement:
(i)For the first 7 nights of the school holiday period with the Mother in odd years and the Father in even years; and
(ii)For the last 7 nights of the school holiday period with the Father in odd years and the Mother in even years.
(iii)Any additional school holidays granted by the school shall be shared equally between the parties.
(iv)For the purpose of school holidays, school holidays shall be defined as commencing after school on the child's last actual day of school and the last day of the school holidays shall be before school on the first day of the new term.
(v)For the Christmas school holiday period, X shall spend time with each parent on a week-about basis commencing on Boxing Day until the conclusion of the Christmas school holiday period. A week for the purposes of this order shall be from the first day following Boxing Day for seven consecutive nights. Changeovers during this period to occur at 6:00pm.
Special Occasions
(4)That the parenting arrangements herein be suspended to provide that X spends time with each of her parents on special occasions as agreed by both parties in writing or, failing agreement, as follows:
(a)At Christmas:
(i)With the Mother from 9:30am on 23 December until 10:00 Christmas Day; and
(ii)With the Father from 10:00am Christmas Day to 5:30pm Boxing Day.
(b)New Year's Eve:
(i)In even-numbered years with the Mother from 12:00 noon on 31 December to 12:00 noon on 1 January; and
(ii)In odd-numbered years with the Father from 12:00 noon on 31 December to 12:00 noon on 1 January.
(c)Easter:
(i)In odd-numbered years with the Mother from the conclusion of school or day care (or 3:30 if Easter falls in the school holidays) on Easter Thursday until school or care drop off (or 9:30am if Easter falls during the school holidays) on Easter Tuesday; and
(ii)In even-numbered years with the Father from the conclusion of school or day care (or 3:30 if Easter falls in the school holidays) on Easter Thursday until school or care drop off (or 9:30am if Easter falls during the school holidays) on Easter Tuesday
(d)On Mother's Day:
(i)With the Mother from 9:30am to 5:00pm on Mother's Day.
(e)On Father's Day:
(i)With the Father from 9:30am to 5:00pm on Father's Day.
(f)On the Mother's Birthday:
(i)X will spend time with the Mother on the Mother's birthday from 9:30am to 5:00pm if on a weekend or from after school until 6:00pm if the birthday falls on a week day.
(g)On the Father's Birthday:
(i)X will spend time with the Father on the Father's birthday from 9:30am to 5:00pm if on a weekend or from after school until 6:00pm if the birthday falls on a week day.
Changeovers
(5)That:
(a)All changeovers at the commencement or conclusion of the school day are to occur at X's or school which she is then attending; and
(b)All other changeovers are to occur at either McDonald's F Street, Suburb G or any such other venue as agreed by the parties in writing.
Medical
(6)That both parents are at liberty to attend any medical appointments for X.
(a)That both parents will sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist upon whom X attends while in their respective care to communicate with both parents in respect of all and any medical issues involving X.
(b)That each parent keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to X while they are in that parent’s care and keep the other informed of any medication to be taken by X.
Travel Overseas & Passports
(7)That the parents shall each be permitted to take X out of Australia for holidays and for other short periods of time, provided that the following has occurred:
(a)The party wishing to travel overseas ("the removing party") shall give not less than twenty-eight (28) days written notice to the other party of his or her intention to travel overseas with the X the notice shall include details of the proposed travel including but not limited to anticipated departure and arrival dates and details of the country or countries the removing party and X will be travelling to;
(b)The removing party shall provide to the other parent in writing, not less than fourteen (14) days prior to the departure date, an accurate itinerary including but not limited to, the departure and return dates, the country or countries the removing party and X will be travelling to, the approximate dates on which X will arrive and depart each country and a telephone number and address at which the parent and X can be contacted in each country;
(c)The removing party shall not less than 48 hours prior to departure provide the other party with a copy of the X's return air ticket; and
(i)the period of travel shall occur wholly during the time the removing party is scheduled to spend time with X pursuant to these orders, unless otherwise agreed between the parties in writing.
(ii)The travel shall not occur to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
(iii)The travel shall not occur to a country which has a travel alert warning issued by the Department of Foreign Affairs and Trade above Level 1 "Exercise normal safety precautions."
(d)That neither party shall reside with X outside of the Commonwealth of Australia without the consent of both parties or orders made by the Family Court of Australia.
(e)That, in addition to parties pursuant to these orders, each party is at liberty to take the child X on an overseas holiday for a period of up to four weeks every two years and for that purpose the party taking part in such travel shall give the other party two months notice of their intention to travel.
(f)That the Father shall retain the passports and keep them in his care.
(g)That within four (4) months of the X's passport expiring the parties will do all acts and things necessary and sign all documents necessary to apply for new passports for X. The parties shall share equally in the costs of applying for the passports and within 7 days of the passports issuing, the parties will do all acts and things necessary to deliver the passports to the Father.
Specific Issues
(8)That the Mother and Father have liberal telephone contact with X between the hours of 6.00pm and 8.00pm during periods of time that X is in the other parent’s care.
(9)That at any time whilst X is in the respective care of either parent, immediately upon X requesting to telephone the other parent, the parent who has the care of X forthwith arrange for her to have access to a telephone and assist the her in telephoning the other parent and each party shall give the X privacy on the telephone and shall not linger in the same room.
(10)That each parent is at liberty to attend all and any school functions and/or extra-curricular activities that parents are in the normal course invited to attend.
Extra-curricular activities
(11)The both parties are permitted to enrol X into any weekend sporting and/or extra curricular activity in coordination with the other so as to avoid overlap and shall advise the other party, with at least one month's notice of the activity.
(12)Each party will ensure that X attends her scheduled extra-curricular activities.
(13)Each party will have liberty to attend all of X's extra-curricular, sporting and school- related activities.
PROPERTY
(14)That the residual proceeds from the sale of the F Street, Suburb G property held in controlled monies by Watkins Tapsell Solicitors be divided so as to affect a division of 50% of the net proceeds to the Father and 50% of the net proceeds to the Mother, inclusive of any distributions to the parties previously made from these funds.
(15)That save as otherwise provided in these Orders the Father shall be declared the sole owner both at law and in equity of:
(a)the Father’s bank accounts;
(b)the Father’s contents;
(c)the Father’s business;
(d)any chattels, goods, furnishings and other property of whatsoever kind or nature which are in his possession as at the date of these Orders and in future; and
(e)any monies, shares, debentures and superannuation entitlements, which stand in his sole name as at the date of the Orders and in future.
(16)That save as otherwise provided in these Orders the Mother shall be declared the sole owner both at law and in equity of:
(a)the Mother’s bank accounts;
(b)the Mother’s superannuation;
(c)the Mother’s contents;
(d)any chattels, goods, furnishings and other property of whatsoever kind or nature which are in her possession as at the date of the Orders and in the future; and
(e)any monies, shares, debentures and superannuation entitlements, which stand in her sole name as at the date of the Orders and in the future.
(17)That save as otherwise provided in these Orders to the contrary:
(a)The Father hereby indemnifies the Mother in respect of any actions, claims, suits and demands as may be made against the Mother in relation to all liabilities in the name of the Father including but not limited to the Father’s credit card accounts;
(b)The Mother hereby indemnifies the Father in respect of any actions, claims, suits and demands as may be made against the Father in relation to all liabilities in the name of the Mother including but not limited to the Mother’s credit card accounts.
(18)In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Court is appointed pursuant to Section 106A of the Family Law Act, to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.
ORDERS SOUGHT BY THE ICL
In closing submissions, the ICL expressed the view that orders should be made by the Court in accordance with the father’s minute of order except that the order for the father’s time with X should be confined to orders 2.1 to 2.3 therein and not progress to equal time as proposed in order 2.4, not order 6.1, and for order 7.6 he proposed that the mother retain X’s passport rather than the father.
At the end of the hearing, the ICL made application that the parties pay the ICL’s costs and disbursements in equal shares, including the costs incurred in relation to preparation of the family report by Dr K and the doctor’s attendance at the hearing to give evidence. Senior counsel for the father and counsel for the mother both indicated that their client consented to the costs order sought by the ICL. The ICL’s costs are set out in exhibit ICL4.
The hearing took place entirely by Microsoft Teams.
HISTORY OF THE PROCEEDINGS
It is important to give some history of the proceedings, and in particular of the interim orders made along the way, particularly those made by consent on 4 March 2019.
The proceedings were commenced by the mother filing her application initiating proceedings in relation to property matters only on 20 November 2017, to which the father replied by filing a response confined to property matters on 16 January 2018. The matter had its first return date on 7 February 2018 before Judge Henderson (as her Honour then was) who made certain orders in relation to disclosure by consent and adjourned the matter to 21 May 2018.
On 28 February 2018 the father filed an amended response adding parenting issues and on 8 May 2018 the mother filed her reply addressing parenting issues.
The matter was again before the Court on 2 June 2018 when orders for valuations were made by consent, a child dispute conference was set down for 19 July 2018, and the matter was adjourned to 24 July 2018 for a mention following the CDC (later administratively adjourned to 28 August 2018).
The CDC conference took place on 19 July 2018 with the memorandum to Court being available on 25 July 2018 (exhibit R8).
On 28 August 2018, an order was made under section 68L appointing an ICL to represent the interests of X in the proceedings, for the parents to engage in family therapy and setting the matter down for an interim hearing on 4 March 2019. Interim orders were made in relation to the father’s time with X, summarised as follows:
(1)for the father and X to continue having time in accordance with the “current time regime”;
(2)during the September 2018 school holidays the father’s “usual weekend time regime continue and extend on one occasion from Friday night to Tuesday at 5.30 pm”;
(3)during the December 2018 school holidays, up to Christmas, the father’s usual alternate weekend time extend to Monday at 5.30 pm;
(4)X be with her mother at Christmas from 23 December 2018 till 12 noon on 12 December 2018 and with her father from 12 noon 25 December 2018 until 9.30 am on 26 December 2018;
(5)on two occasions during January 2019 “the father’s usual weekend time is extended from Friday night at 5.30 pm to the following Friday night at 5.30 pm [a full week]; and
(6)during school term time, each alternate weekend from the end of school on Friday until 5.30 pm on Sunday and each alternate Thursday from the end of school to the start of school on Friday.
Accordingly, the interim orders pending interim hearing, made on 28 August 2018, provided for the father to spend time with X at least each alternate weekend from after school on Friday until 5.30 pm on Sunday and each alternate Thursday night from the end of school until the start of school on Friday and for two occasions of one full week each during January 2019.
On 4 March 2019, the interim matter was settled as between the parties and the following orders were made by consent:
(1)releasing the family report prepared by Dr K;
(2)discharging all previous parenting orders;
(3)that X live with her mother;
(4)that X spend time with her father:
(a)until she turns seven on 28 June 2019, each alternate weekend from end of school on Friday until 5.30 pm on Sunday and each alternate week from end of school on Thursday until start of school on Friday;
(b)once X reaches seven years of age, each alternate weekend from after school on Thursday until start of school on Monday; and
(c)from the making of the orders by consent, during the term 1, 2 and 3 school holidays, for seven nights, being the first half of holidays in odd-numbered years and the second half of the holidays in even-numbered years and for half the Christmas school holidays on a week about basis, the father starting with the first week during odd-numbered years and the second week in even-numbered years; and
(d)at other times as may be agreed between the parents.
(5)first refusal order for the other parent if either parent is unable to care for X;
(6)at Christmas, X be with her mother from 9.30 am on 24 December until 11.30 am on 25 December each year and with her father from 11.30 am on 25 December until 3.30 pm on 26 December each year;
(7)on New Year’s eve with her mother from 12 noon 31 December in even-numbered years until 12 noon on 1 January and with her father from 12 noon on 31 December in odd-numbered years until 12 noon on 1 January;
(8)on mother’s day and father’s day with the applicable parent from 9.30 am until 5 pm;
(9)on X’s birthday, if not already spending time with the parent, from 3.30 pm until 6 pm;
(10)on the mother’s birthday, from 9.30 am until 5 pm if occurring on a non-school day and from the end of school until 6 pm is occurring on a school day; and
(11)on the father’s birthday, from 9.30 am until 5 pm if occurring on a non-school day and from the end of school until 6 pm if occurring on a school day.
(7)changeovers to occur at school or as agreed between the parents and, failing agreement, at F Street, Suburb G McDonalds;
(8)the parties to cooperate in obtaining a passport for X, the passport to be held by the mother;
(9)an order under section 65Y of the Act providing for both parents to be able to have X travel overseas with them on the giving of certain notice and compliance with certain conditions;
(10)orders in relation to each parent keeping the other fully informed in relation to medical matters affecting X;
(11)for each parent to have telephone communication with X when in the other parent’s care on Tuesdays and Saturdays between 6 pm and 6.30 pm;
(12)neither parent to physically discipline X;
(13)neither parent to “excessively discipline X by any means, this including but not limited to physical, emotional, verbal or psychological discipline”;
(14)a non-denigration order in the usual terms;
(15)an injunctive order restraining each of the parents from accessing the other parent’s personal computer and mobile phones, email account, social media pages including Facebook, Linked in and Twitter, any online account or Cloud storage;
(16)both parents to enrol in the Parenting after Separation course;
(17)an order that parents only attend X’s sporting events on days when she is in their care pursuant to the orders unless agreed to in writing by the other parent or unless the event is of significance such as a final or grand final.
On 26 September 2019, the matter was in a call over and was set down for hearing on 4 to 6 May 2020, though in the event the matter went over part-heard to 4 and 5 November and then 16 December 2020.
I have included in detail the orders made by consent on 4 March 2019 as that was the regime that prevailed up to the time of the final hearing and thereafter, providing for the father to have four nights per fortnight with X during school term time and half of the school holidays.
I note here that each parent having seven nights during school holidays is not half the school holidays as when school term holidays run for a fortnight from break up of school on Friday until recommencement of school at a Monday they involve 16 nights.
THE EVIDENCE
In preparation for these reasons I have read and carefully considered all of the material relied upon by the parties and the ICL. I have reviewed the transcripts of each day of the hearing, both in printed form and electronic recordings, including submissions made on behalf of each party and by the ICL.
In relation to the property settlement issues, I have referred to and had the assistance of the balance sheet, though certain issues between the parties set out thereon need to be resolved and appropriate findings made.
At the time of conclusion of the final hearing, both parties were 36 years of age. The mother is of Country U heritage. The father is of Country V heritage on his father’s side and Country W heritage on his mother’s side.
The mother is living at Suburb S and the father in Suburb Y, both southern suburbs of greater Sydney.
The mother is in employment with the Employer Z as a professional. The father is self-employed as a sole trader of the business Company H and is a an IT worker.
As I have set out earlier, the parties commenced cohabitation in 2009, married in 2011, separated on 16 August 2015 and were divorced on 18 July 2017, their divorce becoming final on 19 August 2017. At the time of separation, the mother and child left the former matrimonial home at F Street, Suburb G and the father remained in occupation until the home was sold in January 2018.
I will detail the parties’ evidence going principally to the parenting issues first and then specific evidence relating to the property settlement issues, though there is of course much crossover between the two.
At the commencement of cohabitation the mother was employed as an educator at Suburb AA and then in 2010 she changed her employment to Employer BB.
At cohabitation, the father was self-employed as a sole trader of the business Company H, which he had commenced in early 2000 while still at high school. He continued operating that business throughout the period of cohabitation and through separation up to the hearing.
The husband worked principally from home, though he attended at customer premises for software installations, whilst the mother’s employment was away from the home at the relevant education centres and thereafter, from March 2015, as a professional for the then-named Employer Z.
X was born in 2012 and the mother took maternity leave from about the time of X’s birth until 2012 when she returned to work on a part-time basis four days per week from 7 am till 1.30pm at Employer BB. By the end of 12 months from returning to work she was working on a full-time basis. In 2014 the mother changed her employment to become a director at the Employer CC and then in 2015 obtained employment with the Employer DD.
The mother asserts in her evidence that she was the primary carer for X throughout the whole period of cohabitation and that the father was uninterested in X and of no assistance in her care except when third persons were present when, according to the mother, he put on a display of care and affection for X.
The father, for his part, says that he assisted with X’s care to the extent that he was a co-primary carer, being available at the home most of the time, that he was an involved father, and he vehemently denies that he was ever, in any manner, uninterested in X’s care.
Though the father was working from home most of the time, once the mother returned to employment after her maternity leave, X was not at the home for the mother’s working day as the mother was able to place her at the various centres at which she was employed until such time as she took up her employment with the Employer DD in March of that year. There is conflicting evidence between the parties as to who was principally involved in collecting her, though I accept that it was the father who collected her in the afternoon more than the mother as that arrangement continued on past the parties’ separation in August 2015 until the start of 2016.
The parties separated on 16 August 2015 when X was three years of age, the mother and X leaving the matrimonial home to stay with the mother’s parents for a short time until she rented a townhouse at Suburb EE. The father remained in the matrimonial home at F Street, Suburb G until it was sold in January 2018.
At the time of separation, the parents entered into an agreement that the father would spend time with X each Tuesday, Wednesday and Thursday, collecting her from pre-school at about 3 pm and taking her home to the F Street, Suburb G home and the mother collecting her from the father when she had finished work.
The agreement also provided that the father spend time with X each Sunday for four or five hours. The mother asserts in her evidence that she agreed to this arrangement as she was afraid that the father would “take her away from me”, though by this time she had been a professional with the Employer DD for 17 months, and must have had some idea of the legal avenues open to her in that event.
The mother asserts in her evidence that the father often made verbal statements to her that if he did not get what he wanted, that he would take X away from her, but that he never committed such threats to writing in any manner or repeated them in front of witnesses.
During her cross-examination, the mother admitted that from the time of separation to the time she was under cross-examination the father had never, on any occasion, done anything to “take her away from me”.
On 16 January 2016 the parties attended counselling and entered into, what the mother describes as, an “informal agreement” but as such was in writing and signed by each of the parties, it fits within the definition of a parenting plan under section 63C of the Act.
A copy of the document is exhibit tab 5 to the mother’s affidavit. Pursuant to that agreement (which qualifies as a parenting plan), the father was to spend time with X each Tuesday from 3 pm until 5.30 pm and each alternate weekend during the day only from 9.30 am until 5.30 pm until 25 April 2016, at which time his time with X was to increase to each alternate Tuesday night and each alternate weekend Saturday to Sunday. The parenting plan document stated:
Mr Finala and Ms Finala agree that X would be able to sleep at her father’s place at the week beginning 25 April 2016. If X’s sleep patterns improve before 25 April 2016 the [sic] she will sleep at her father’s place. Mr Finala and Ms Finala agree that in six months X will sleep at her father’s for every second weekend 9.30 to 5.30 pm and Tuesday from 3 pm to 5.30 pm.
As events unfolded, the parents agreed in March 2016 that the father’s time with X would include alternate weekends from Saturday to Sunday commencing 16 April 2016.
When X turned four, on 28 June 2016, it was agreed between the parents that she would spend time with her father for three nights each fortnight, being each Tuesday from the end of pre-school at 3 pm until the start of pre-school on Wednesday and each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday, with changeovers taking place at a McDonalds. This arrangement was put in place and continued up until February 2018 when X started school at O School at Suburb P when the Tuesday commencement and Wednesday ending changed from her pre-school to her school.
Thereafter, on 28 August 2018, the interim orders pending interim hearing were made by her Honour Judge Henderson (as her Honour then was) and the parties followed those orders and on 4 March 2019 the interim orders were made by consent between the parties, that regime continuing through to the hearing.
The mother makes it very plain in her evidence that in her view the parents ability to communicate is “very poor”, the mother having asked the father, in a text message on 31 January 2018, to contact here thereafter only through her solicitors (mother’s trial affidavit exhibit tab 8). The father, for his part, made the same request in a text message of 7 February 2018 (contained in the same exhibit to the mother’s trial affidavit).
The father asserted in his evidence that, in his view, he and the mother “have a decent parenting relationship. It’s not perfect, but it works and functions”. He added that the parties “do not speak face to face” but communicate through texts when necessary.
It is inherent in all of the evidence that the parents ceased communicating some years ago and have an extremely poor, virtually non-existent co-parenting and communication relationship.
The mother expressed concerns in her evidence about the father’s parenting capacity, giving evidence about an occasion where she asserted the father dropped X to school at 8 am when teacher supervision was not available until 8.30 am. The father, for his part, asserting that there were a number of other parents at the school at that time as well as five teachers. On the evidence, this only happened on one occasion.
The mother also asserts that she was told by X that during an occasion when the father was spending time with her at the beach, he went into the water to use his boogie board leaving X alone on the beach to watch him. The father’s version has X being cared for on the beach by her paternal grandparents.
The evidence from the hearing as a whole does not enable me to resolve that conflicting evidence. However, the mother’s asserted incidents establishing the father’s lack of adequate parenting capacity to properly supervise X speak to three asserted occasions in five years of separation. However, she also asserts that during their cohabitation she saw the father “shaking X while yelling into her face” though she gives no evidence of what action she took, if any, on the occasion, as to X’s age at the time and as to the extent or force of the asserting “shaking” or what she meant by “yelling”. She asserts that on another occasion during cohabitation the father placed X inside a dark room and stood outside holding the door handle so that X could not get out. She asserts that she heard X screaming and she intervened to release her and settle her for bed. The father denies the asserted conduct.
X has been engaged in weekend soccer and in swimming lessons. For one season, the mother was X’s team coach for her soccer and she asserts that the father would attend X’s games and force his attentions upon the mother by standing close to her, speaking to her, making comments about her appearance and glaring at any male persons the mother spoke to. The father, again, denies that asserted conduct and said that on occasions when he attended X’s soccer games, playing for FF Football Club, the mother approached him. He asserts that on one occasion she asked him to give her a lift in his car, an assertion the mother, in her turn, denied in her cross-examination.
The mother complains that having enrolled X in swimming lessons on Mondays, the father would fail to take her to the swimming lessons during his time, and once again the father asserts that when X had a swimming lesson on a Monday during his time he took her to the lesson.
The mother complains that the father talks to X about the court proceedings and used some occasions of changeovers to attempt to talk to the mother about the court proceedings in X’s presence. The father denies all of those assertions.
In her trial affidavit, the mother asserts that, following the interim orders being made by consent on 4 March 2019, X was not coping with the extra time with her father and was exhibiting some behavioural problems, though she does not go on to give any evidence of what led her to believe that X was not coping or of behavioural problems, other than asserting that X was tired.
The mother established a relationship over the internet with Mr L, a member of the Armed Forces, and they conducted a long distance relationship from its start in about January or February of 2017 until Mr L was able to have his posting changed from Queensland to Suburb E Army Base in Sydney. They commenced cohabiting together in about December 2019.
Prior to that move, the mother fell pregnant and their child, M, was born in 2019. Mr L met X on various occasions from March 2017 through to when he commenced cohabiting with the mother and he has established what, on all of the evidence, including that of the father, is an excellent relationship with X.
The father, to his great credit, says in paragraph 92 of his trial affidavit, referring to Mr L:
[He] has been a good influence on X. X gets on with him. This is reassuring to me as X’s father.
At the time of the final hearing the mother was pregnant with the second child of herself and Mr L.
When Mr L joined the mother, X, and M in Sydney, the mother and children were living at Suburb GG. Shortly before the commencement of the hearing in May 2020, the mother, Mr L, and the children moved to R Street, Suburb S (near Suburb E) on 30 April 2020. This move led to one of the issues to be determined, being what school should be attended by X.
X commenced her schooling and at hearing remained at the O School at Suburb P, but the mother seeks an order that she change to D School, Suburb E at the start of the school year (now the start of term 1, 2022), a school closer to where the mother now resides and consequently a shorter car trip from the mother’s home, though a longer car trip from the father’s home.
The mother provides evidence that the distance by car from her home to the school at Suburb P is 35.3 kilometres, estimated to be a 42 minute drive though she gives evidence it is more like a 55 minute drive each way, whilst the distance from her home to the Suburb E school is 8.7 kilometres or an 11 minute drive. She also gives evidence that the distance from the father’s home to the Suburb E school is 27.9 kilometres or a 30 minute drive.
The father gives evidence, in paragraph 67 of his trial affidavit, that:
...when X is in my care she attends school. When X is in Ms Finala’s care she is frequently absent.
and he attaches, as document 1 to his affidavit, identified as tender document 1, X’s school attendance records from O School”.
Those school attendance records run to 15 pages and there is no differentiation as to who dropped her at or collected her from school. I am unable to use that document to bear out the father’s assertion.
Mr L’s affidavit is, of course, very much in support of the mother’s original stance on hearing, that there should be no increase in the time to be spent between the father and X (though her position softened by the end of the hearing when she conceded that an extra night per fortnight was appropriate.
In particular, he gives evidence of what he observes to be a change in X’s emotional state at changeovers from her mother to her father and from her father to her mother. This is not surprising for X, given the patent hostility and poor co-parenting relationship between her parents, and is not at all uncommon to be observed in children who find themselves in such circumstances.
However, in paragraph 24 of his affidavit he says:
I do not believe X enjoys the time she spends with her father as I have heard her expresses [sic] reluctance to go to her father’s place before handover occurs, particularly with stays of a longer duration. I have also seen and heard Ms Finala encourage X to go with her father and reassure her and make her feel comfortable.
During cross-examination by Ms Christie for the father, Mr L conceded that his observations leading to his expression of his belief in his paragraph 24 were based upon the point of changeovers and that he could have no real knowledge of X’s demeanour, level of comfort and enjoyment during her time with her father.
Mr L, to his credit, says in paragraph 6 of his affidavit:
… I know that I am not [X’s] father and I have no intention of replacing her father. X knows me as “Mr L” and I consider that she sees me as a friend and guardian.
Finally, in relation to Mr L’s evidence, I note the contents of paragraph 16 of his affidavit:
X has told me and Ms Finala “Dadda said M is not my real sister and it made me feel sad – I said to Dadda – No she is my sister and he kept saying Half. Every time I said Sister – he kept saying Half – Half” Ms Finala and I both said "No – M is your sister.” We did not want X to feel upset about it. She felt better after we talked about it. This made X feel that she wasn’t allowed to feel happy about her new sister.
It does the father no credit if there is any truth in what X said to Mr L, who was not cross-examined on this matter and I accept his evidence. It is not appropriate parenting for the father to in any way limit or demean the relationship between X and her sibling, M. If it has occurred, it is another example of the poor co-parenting relationship between the father and the mother, as being an example of the father’s attempt to minimise an aspect of X’s life in her mother’s home. It pairs with the mother being unable to say anything whatsoever to the credit of the father in any way, other than that he wants to have a relationship with his daughter.
The father has paid child support as assessed for X since the time of separation. In paragraphs 277 and 278 of her trial affidavit, the mother asserts that the father does not pay enough towards X’s expenses, but she conceded during cross-examination that in addition to paying child support as assessed, currently in the sum of $991 per month, he also pays half of her school fees, maintains private health cover for X, pays for her piano lessons and has purchased school uniforms and clothing for her use when in his care.
In the mother’s trial affidavit, she estimated that X’s monthly expenses “exceed more than $1600 per month”. During her cross-examination, the mother confirmed that as an approximately accurate figure and then conceded that the father maintains private health cover insurance for X, pays half her school fees, pays for her piano lessons, and pays for clothes and uniforms in his household. When asked why she complained that the father should be giving more money towards X’s expenses, she complained that the father had never paid for her soccer costs, hobby club costs, or swimming.
The mother complains in her affidavit that the father does not take X to birthday parties to which she is invited during his time with her, but in cross-examination she conceded first that he does take her to “some”. When pressed that the father had only missed taking X to such birthday parties when he had a prior important commitment, the mother prevaricated.
Similarly, in relation to her complaint that the father failed to take X to her hobby club event in February 2020, she conceded in cross-examination that the first the father knew of her hobby club event was when he received a text message from the mother, to which he responded immediately “we have a christening” and that as a reason for not being able to take X to the hobby club event it was “perfectly reasonable”.
It was the mother’s case that the father had perpetrated physical and emotional coercive and controlling family violence against her, including an accusation that ranged from six sexual assaults upon her leading up to their separation to six sexual assaults upon her each week from August 2014 until their separation in August 2015.[2] The mother’s accusations that the father engaged in serious family violence, including of a serious criminal nature, is a very important aspect of this matter.
[2] See especially Family Law Act 1975 (Cth) s 4AB.
The mother asserts that the father constantly demanded that she account for how much money she has spent, particularly if her expenditure was over $200. The father asserts in paragraph 149 of his trial affidavit that the mother’s accusation is false and he states that the parties maintained separate bank accounts throughout their relationship and that he had no say in how the mother spent her money. He gives as example the mother’s purchase of a Motor Vehicle 3 during the relationship at a cost of $57,000, on finance, without any notice to or discussion with him.
From the mother’s cross-examination:[3]
Ms Christie: Now you were working full time between the time you got together and the time you went on maternity leave?
Ms Finala: Correct.
Ms Christie: My client didn’t make you deposit your pay in his bank account, did he?
Ms Finala: No.
Ms Christie: My client didn’t make you deposit it in a joint account, did he?
Ms Finala: No.
Ms Christie: My client didn’t make you deposit your pay in an account to which he even had access, did he?
Ms Finala: No.
[3] Transcript 5 May 2020, page 15, lines 30 to 41.
Accordingly, I have conflicting lay evidence from each party. It is improper in such circumstances for the Court to merely ‘pick a mid-point’, as that would be based on convenience, rather than proper legal principles. Accordingly, as the car is in the possession of the husband and he asserts a definite value, whereas the wife asserts an estimated value, I find that the husband’s motor vehicle is valued at $7000.
In relation to the jointly owned household contents, I have the wife’s assertion that the same are valued at $2000 according to the balance sheet (exhibit A7) or as “nominal” according to paragraph 257 of her trial affidavit and item 42 in part I of her financial statement. The husband contends that such contents are valued at $1000 according to his entry on the balance sheet and item 42 in part I of his financial statement.
The wife provides some evidence in paragraph 49 of her trial affidavit and the copies of correspondence found at exhibit tab 3 to that affidavit of the post-separation negotiations relating to the wife attempting to obtain her share of the contents of the former matrimonial home at F Street, Suburb G, but I have no evidence of what is held by the husband and what is held by the wife from the jointly owned contents or the relative values of such holdings. In order 38 in the wife’s minute of orders she seeks certain personal property be passed from the husband to her, but without presenting evidence as to values.
The same problems as to opinion evidence apply to the evidence I have recited about the jointly owned household contents. I intend to deal with this issue by disregarding the jointly owned household contents from the matrimonial asset pool on the basis that I have evidence from the wife of each of the parties having some share of them, but no expert evidence as to value.
It is common between the parties, on the balance sheet and in submissions, that the interim distributions to each of the parties from the sale proceeds made on an informal basis as to $10,000 each on 31 October 2018 and $12,000 each on 10 February 2020 should be added back and considered as components of the property of the parties for consideration under section 79 of the Act.
It is also common between the parties that the interim distribution to the wife pursuant to the consent orders made on 7 February 2018 of $95,000 should be considered as property of the parties under section 79 of the Act, but only as to $57,000, being the initial sum of $95,000 less the $38,000 expended by her on part-repayment of the VV Finance debt relating to her motor vehicle.
I have the evidence of the wife in paragraph 249 of her affidavit as to how she expended the $95,000. It was conceded by the husband in submissions (and based on my calculation) that, after the expenditure referred to in that paragraph, a sum of $4853 would have remained. There was no evidence from either party that the bank accounts of the wife reflected at items 4, 10 and 11 on the balance sheet contain any of those excess moneys.
Accordingly, I find that the excess sum of $4853 has been expended by the wife on living expenses and not relating to repayment of debt, purchase of property, or payment of legal fees.
Accordingly, I find that the appropriate sum to be added back as property for the purpose of section 79 of the Act is $52,147.
The wife asserts that the husband’s expenditure on legal fees in the sum of $218,000 should be added back to the balance sheet as property of the husband. To be clear, her submission is that such should be added back not on the basis that such was paid from any item of a pre-existing property or any capital sum, but on the basis that such was paid from the husband’s post-separation income in circumstances where:
(1)He enjoyed cost-free accommodation in the former matrimonial home up to its sale in January 2018;
(2)Consequent upon that, the loan accounts secured by way of mortgage on the property were in a position where redraw on those accounts covered the required payments during that time, with the consequence that the debit balance of the loan account increased by $36,672 during his sole occupation; and
(3)The husband made no contributions to superannuation, which further freed up his income for payment of legal fees.
I find that the husband’s occupation of the matrimonial home without cost to him for the period from August 2015 until January 2018 should be dealt with in my consideration of the contributions of the parties in terms of section 79(4)(a) to (c) or under section 75(2)(o), but not both, and in consequence I will not add back any sum for the husband’s payment of legal fees.
In a similar vein, the wife proposes that there be an add back of the amount she had paid for legal fees being $41,647 prior to the hearing. She contends that the amount of $41,647 should be the amount added back instead of the $95,000 proposed by the husband in relation to the interim property distribution to her under the orders of 7 February 2018.
I have already determined that an appropriate sum to be included as property for the purpose of section 79 in relation to the interim distribution to the wife of $95,000 is $52,147. That sum includes the $41,647 paid by the wife for her legal fees. It is appropriate that that payment of legal fees remain in the added back sum, as otherwise it imposes a de facto costs order under section 117 of the Act upon the husband without it being imposed on the basis of the proper considerations under that section.
It was submitted by the husband’s counsel that the only liability that should be considered when assessing the property of the parties for the purpose of section 79 is the wife’s car loan debt to VV Finance in the sum of $2855. That would eliminate from consideration the credit card or line of credit debts of the parties (the wife’s ZIP money at $786 and the husband’s MasterCard debts of $1197 and $503). I agree with that submission and I will not take into consideration those credit card and line of credit debts that the parties each acquired post-separation.
In relation to the wife’s debt to the State Debt Recovery Authorities in the sum of $1743, on the evidence that was accumulated by the wife in consequence of receiving parking and/or motor traffic fines. I find that it is not appropriate that that debt be included in the calculation of the property of the parties for the purposes of section 79, but should be left as the responsibility of the wife without being considered under section 79, including in relation to any adjustment on consideration of the matters in section 75(2) of the Act.
The wife’s debt for legal fees, placed on the balance sheet by her as $142,000, will also not be considered as a debt when ascertaining the property of the parties for the purpose of section 79 on the basis that, to do so, would also be to make a de facto section 117 order as discussed above.
Accordingly, for the purpose of “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interest of the parties in the property”, I have identified that property (not including my findings as to how various asserted assets, add backs and liabilities should be treated).
On the basis of the findings made above, I find the property of the parties forming the matrimonial asset pool for the purpose of any orders altering the interests of the parties to the marriage in the property under section 79 is as follows:
ASSETS
1. Joint Proceeds of Sale of F Street, Suburb G (in trust) $560,908.00 2. Husband Commonwealth Bank Account – …48 $18,421.00 3. Wife Credit Union Account – …26 $967.00 4. Husband AXI Trader FX Trading Account $1664.00 5. Husband Motor Vehicle 1 $7000.00 6. Wife Motor Vehicle 2 $36,500.00 7. Husband Company H $9000.00 8. Wife Credit Union Account $1000.00 9. Wife Joint Account with new de facto partner $386.00 10. Husband Gold and silver bullion $2000.00 TOTAL $637,846.00 ADD BACKS
11. Wife Interim distribution – orders 7 February 2018 $52,147.00 12. Wife Interim distribution of sale proceeds, 31 October 2018 $10,000.00 13. Wife Interim distribution of sale proceeds, 10 February 2020 $12,000.00 14. Husband Interim distribution of sale proceeds, 31 October 2018 $10,000.00 15. Husband Interim distribution of sale proceeds, 10 February 2020 $12,000.00 TOTAL $96,147.00 LIABILITIES
16. Wife Car loan – VV Finance $2855.00 SUPERANNUATION
17. Wife Super Fund J – Accumulation Fund $90,796.00
The net matrimonial assets without superannuation are $731,138.00
The net matrimonial assets with superannuation are $821,934.00
Is it just and equitable to proceed with considering and making an adjustive order under section 79 of the Act?
As in most cases, and as referred to by the High Court in Stanford, this husband and wife are no longer living their marital relationship and there is and will be no common use of property by them.
Their marital relationship has ended, including by a final divorce order. Both parties seek that an adjustive order under section 79 of the Act be made. There is a sum of money in solicitor’s trust account being the net proceeds of sale of the former matrimonial home at F Street, Suburb G and that amount is in the joint names of the parties. The parties present different contentions as to how that sum should be divided between them. It must remain there until they reach agreement or until an order is made under section 79 of the Act.
On all of those bases, I find it is just and equitable to make an order under section 79 of the Act in the interest of the parties in the property.
SECTION 79(4)(A)(II)(C)
The husband made a significantly greater initial contribution than that made by the wife at the commencement of their cohabitation by reason of his equity in the Suburb RR unit, being, on the evidence, an equity at the commencement of cohabitation of at least $56,428, which by February 2013 provided the parties with a substantial sum to apply to a purchase of the F Street, Suburb G property. On the evidence, that sum was certainly no less than $246,530 and on the husband’s evidence, the sum was about $300,000.
That increase in value of the husband’s equity occurred during a period of time when the parties were cohabiting and both were making contributions of a financial and non-financial nature, and were contributing to the welfare of the family unit.
Further, the husband made an initial contribution by his ownership as a sole trader of the Company H business that had been trading for a period of about nine years at the commencement of cohabitation and which generated the husband’s income throughout the period of the relationship and after separation.
There is conflicting evidence between the parties as to the wife’s financial position at the commencement of cohabitation. The wife asserts that she had savings of about $5000, home contents and furniture, some superannuation, and a motor vehicle. The husband contends that the wife had no assets of any significance at the start of the relationship, but did have liabilities being a personal loan and a car loan.
I do not have any evidence to resolve that competing evidence, but the wife gave her evidence of specific items of contribution – savings, contents, superannuation and motor vehicle, whilst the husband simply asserted that her assets were not of significance, while not denying that she held the assets the wife asserted. He asserts that she had a car loan which leads me to accept the wife’s evidence that she did own a motor vehicle.
The wife was in employment through the period of their cohabitation, except for the period of her maternity leave during which she did have some maternity leave income. Her return to work in 2012 after maternity leave was on a part-time basis at four days per week, six and a-half hours a day and, by November 2013, she was working full-time again.
The husband operated a business as a sole trader throughout the relationship.
The wife gives evidence of her income through the relationship in paragraphs 229 and 230 of her trial affidavit, but I do not have similar evidence in relation to the husband. I have the wife’s evidence that the husband’s income, following separation for the year ended 30 June 2015 and year ended 30 June 2017 was well in excess of the wife’s income for the years during their relationship, as she reports, and that his income for the year ended 30 June 2016 was in excess of the wife’s income for each year during the relationship other than the year ended 30 June 2012.
I am not able to make a finding as to the precise income contribution of the husband during the relationship, as I can with the wife, but I do find that each of the parties applied the whole of their income during the cohabitation to the purchase, conservation, improvement of their property and toward the welfare of the family unit by payment of living expenses.
I find that it is appropriate to consider the husband’s cost-free occupation of the matrimonial home at F Street, Suburb G from August 2015 until January 2018 when considering any appropriate adjustment between the parties under section 75(2) of the Act in consequence of such occupation without payment having the effect of the loan account debt for the parties secured on that property increasing by $36,672 over that time and that sum therefore not being available to the parties as part of the net proceeds of sale currently held in a trust account and available for distribution between them.
I find on the evidence that the wife made the greater contribution to the parenting of X from her birth in 2012 through to the parties’ separation in August 2015, though I find that the husband also made contribution thereto, though to a lesser degree than the wife.
I find that each of the parties made equal contribution to the welfare of the family unit in relation to the homemaker roles – cooking, cleaning, washing, ironing and shopping and so forth.
Despite the wife’s allegations of family violence perpetrated against her by the husband, including allegations of serious sexual assault on a consistent basis for the final year of their relationship, the wife did not advance what is known as a Kennon argument in relation to contributions, nor could I find that such argument would need to be considered, if advanced, on the basis of the available evidence, particularly in relation to any effect of such conduct on the wife’s contributions.
I find that the wife has made the superior post-separation contribution in consequence of her having primary responsibility for the day-to-day care and control of X.
I further find that post-separation the wife has made the sole contribution to the accumulation of her superannuation benefits with Super Fund J, whereby the value of her superannuation increased from $47,337.09 at 30 June 2015, somewhere a few months before separation, to $90,796.81 on 17 April 2020, an increase of $43,459.72. The husband has not accumulated any superannuation.
I am required to take a holistic view of the parties’ contributions during the relationship, including their initial contributions, contributions made during their period of cohabitation, and their post-separation contributions.
I find that the appropriate approach to take in this matter is a global approach to the whole of the property of the parties for the purposes of section 79 of the Act. On that basis, I find that contributions favour the husband as to 55 per cent and the wife having contributed as to 45 per cent.
CONSIDERATION OF THE MATTERS UNDER SECTION 75(2) OF THE ACT – SECTION 79(4)(E)
In considering what order (if any) should be made under section 79, the Court must take into account the matters referred to in subsection 75(2), so far as they are relevant.
At hearing, both parties were 36 years of age and both in good health.
The wife deposed in her financial statement to a weekly income of $875, composed of paid parental leave and child support as assessed under the legislation received from the husband for X. That financial statement was completed as at 23 April 2020 and, by the time the hearing concluded on 16 December 2020, the wife’s situation would have changed by her return to work following her maternity leave. It is not known on the evidence what the wife’s income from her employment with the Employer Z as a professional would be on either the full-time or part-time basis.
The wife has the assistance in relation to household expenses of the income of her partner, Mr L , and she gives evidence in her financial statement that he has an average weekly gross income of $1635 ($85,000 per year).
The husband deposes to a weekly income from his conduct of Company H as a sole trader of $3462 or $180,000 per year. As between the parties (and not taking into account for this consideration an income of Mr L) the husband is patently in a stronger financial position in relation to income than the wife.
I note the indication of the wife in paragraph 230 of her trial affidavit in relation to her taxable income for the years from 30 June 2009 to 30 June 2016. Presuming she has followed the same course of employment, her income is likely to be around half or a little bit better than that of the husband. This finds in favour of an adjustment in favour of the wife.
Neither party deposes to having the advantage of any financial resources, that referred to by the husband at item 57 in part L “financial resources” being the gold and silver bullion that has been taken into account in the identification of the property of the parties for the purposes of section 79 of the Act.
Each of the parties is both physically and mentally capable of engaging in appropriate gainful employment and continues to do so.
Each of the parties has care and control of the child of the marriage, X, on a substantial and significant time basis and will continue to do so pursuant to the orders that will be made as a result of these reasons, X being in the wife’s care for a greater part of the time than she is in the father’s care during school term time, and being cared for equally between the parties during school holiday times.
I combine this consideration with the consideration of the provision of child support by the husband to the wife under the Child Support (Assessment) Act 1989 (Cth), the extra voluntary financial contributions that he makes toward X’s care, and the consideration of any need to protect a party who wishes to continue that party’s role as a parent.
I find that there is a basis for a slight adjustment in favour of the wife through a combination of those three considerations, what would have been a larger basis for adjustment tempered by the consideration relating to child support and financial provision.
I will now consider the commitments of each of the parties that are necessary to enable him or herself to maintain him or herself and X and, on the wife’s part, her two children with Mr L, in relation to each she has a duty to maintain pursuant to section 66C of the Act.
The wife deposes to her personal expenditure in part G of her financial statement and in part O she sets out further information in relation to living expenses for her family unit that are paid by Mr L.
The husband asserts that his personal expenditures, for himself alone, are $3157 per week, which includes $1329 worth of “total of all other expenditure” that cannot be identified by item as he has not completed part N of the financial statement, noting that he was not required in these proceedings to complete part N.
I find that there is no basis for an adjustment between the parties in relation to their commitments.
The wife is responsible to contribute toward the support of her child M and her other child with whom she was pregnant at the time of the hearing and shares that responsibility with Mr L, whilst the husband is not responsible for the support of any other person. I find that this consideration is in favour of an adjustment in favour of the wife.
Neither party deposes to being eligible for or receiving any pension, allowance or benefit under the law of the Commonwealth or of any State or Territory or other country or in relation to any superannuation fund or scheme.
I do not have sufficient evidence in relation to this matter to make findings in relation to the standard of living that, in all the circumstances, is reasonable other than an inference draw from the evidence that each party enjoys a standard of living that is comparable with that enjoyed by them prior to their separation. There is no basis for an adjustment between the parties on this consideration.
Each of the parties has contributed to the income earning capacity and property of the other party during the period of the cohabitation through their mutual support and the arrangements made between them for care of X whilst both of the parties were working, principally in child care centres at no or low cost in consequence of the mother being an employee at such centres until she commenced employment with the Employer Z. I find that there is no basis for an adjustment between the parties under this consideration.
It is reasonable to assume that the duration of the marriage had some affect upon the earning capacity of the wife in consequence of the period from about June to November 2012 that she was on maternity leave around and following the birth of X, but there is no evidence to enable me to make any actual finding in the matter so as to form a basis for consideration of an adjustment.
The wife is cohabiting with Mr L and I have noted above the wife’s evidence in relation to his income and his contribution to the payment of the family living expenses. The husband is not cohabiting with any other person. I find that there is no basis for an adjustment between the parties on this consideration.
I find that the circumstance of the husband enjoying occupation of the former matrimonial home at F Street, Suburb G from separation of the parties in August 2015 until sale of the property in January 2018 without having to expend any of his income or capital on payment for that accommodation, whilst the wife was responsible for the expense of her rental accommodation through the same period, is a matter that I should take into account under section 75(2)(o).
The husband made a payment from his business account of Company H into the loan account secured by a mortgage on the F Street, Suburb G property in the sum of $10,000 at about the time of the parties’ separation. However, such sum came from his accumulated income through his conduct of the business during the parties’ cohabitation and I do not take that into account as either a sole contribution by the husband or a sole payment by him toward his accommodation costs.
After that $10,000 payment had been made, the loan account had a debit balance of $323,876 and, as at 18 September 2017, some three to four months before the sale of the property, the loan account had a debit balance of $360,548, being an increase in the debit balance of $36,672 during the husband’s sole occupation.
During that time, the husband was in receipt of income and that enabled him to make substantial payments toward his legal costs in this matter, which are not being added back for the reasons given earlier herein. Accordingly, the justice of the case requires that those circumstances be taken into account and I find that those circumstances ground a significant adjustment in favour of the wife, both in relation to the increase in the indebtedness of the loan account and the expenditure by the wife through the relevant period on her own accommodation costs.
I find that a further circumstance that the justice of the case requires that I take into account between the parties is that the husband has been able to pay the greater part of his legal fees from his post-separation income and, accordingly, does not carry a debt for those legal fees, whereas the wife has not been in a position to do that and does carry a considerable debt (asserted by her to be $142,000) for legal fees.
I find that this circumstance justifies an adjustment in favour of the wife.
In considering all of the matters referred to in section 75(2) that I find to be relevant and ground an adjustment between the parties in this matter, is 13.5 per cent in favour of the wife, and with the value of the net matrimonial asset pool inclusive of superannuation being $821,934, such an adjustment from the husband to the wife of 13.5 per cent equates to $110,961.09, being a differential between the parties on the basis of the husband receiving 41.5 per cent and the wife receiving 58.5 per cent of $139,728.78.
WHAT ORDER IS APPROPRIATE IN ALTERING THE INTERESTS OF THE PARTIES IN THE PROPERTY I HAVE FOUND RELEVANT UNDER SECTION 79 OF THE ACT?
As indicated earlier, I take a global approach to the net matrimonial asset pool on a one-pool approach (inclusive of superannuation) and I find that in circumstance where each party retains the assets currently in his or her possession, power or control, the wife retains her superannuation entitlements intact, and the net proceeds of sale from the F Street, Suburb G property are divided equally between the parties, the appropriate division is achieved, the husband then having $340,539 worth (just under 41.5 per cent) and the wife having $481,395 worth (just above 58.5 per cent) and the wife retains sole liability as between them for the VV Finance debt in her name.
I will make orders accordingly.
The parenting issues and property settlement proceedings between the parties are at an end at first instance. It is now up to the parties to do their very best to shield X from their dislike and distrust of each other so as to relieve her from the unfair burden referred to in the family report, reading about which must have caused each of these loving parents pain.
I certify that the preceding four hundred and seventy-two (472) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 17 December 2021
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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