GOODALL & GOODALL
[2017] FCCA 1971
•30 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOODALL & GOODALL | [2017] FCCA 1971 |
| Catchwords: PROPERTY – Just and equitable settlement – whether a splitting order can be made in relation to the husband’s “retirement fund”. |
| Legislation: Family Law Act 1975 (Cth), ss.74(1), 90MT(1)(b), 75(2), 64B(2)(b), 60B(1), 60B (2), 60CC(2), 60CC(3), 65DAA, 79(2), 79(4), 72(1) Family Law (Superannuation) Regulations 2001, Part VI, reg.13 |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Densmore (2007) FamCA 1383 |
| Applicant: | MS GOODALL |
| Respondent: | MR GOODALL |
| File Number: | DGC 3326 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 31 January 2017, 1 February 2017, 2 February 2017 & 3 February 2017 |
| Date of Last Submission: | 3 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Dolphin Lawyers |
| Counsel for the Respondent: | Mr Weil |
| Solicitors for the Respondent: | Otis Legal |
ORDERS
Parenting
All previous parenting Orders in relation to the children
X born (omitted) 2010
Y born (omitted) 2012, and
Z born (omitted) 2015
(“the children”) are hereby discharged.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the wife.
The husband shall spend time and communicate with the children as follows:
(a)for as long as he is employed as a (occupation omitted) or in a (occupation omitted) role which requires him to comply with any schedule tied to the (employer omitted) (“(employer omitted)”) or the (employer omitted) (“(employer omitted)”):
(i) during the (employer omitted) schedule (being defined as from the commencement of the (employment omitted) schedule in which the husband is involved each year);
A.from 9:00 a.m. on the Saturday of each weekend when the husband is required to (employment omitted) in Melbourne to 6:00 p.m. on Sunday or five hours after the commencement of a Sunday (employment omitted) involving the husband, whichever is the later;
B.from the conclusion of school or childcare on each Tuesday to the commencement of school or childcare on each Thursday save that the husband may elect to keep Y and Z or either of them for the day on Thursdays until each is enrolled in school;
C.for one two-week period each year by agreement between the parties and failing agreement for two weeks commencing at 6:00 p.m. on the Tuesday after the (omitted) of the (employer omitted) in which the husband is involved each year, such time to commence in 2018;
D.from the conclusion of school or childcare to 7:00 p.m. on each of the children’s birthdays in even-numbered years and from the conclusion of school or childcare to 7:00 p.m. on the evening before the child’s birthday in odd-numbered years should the birthday fall on a school day;
E.for four hours on each of the children’s birthdays by agreement should the birthday fall on a non-school day and failing agreement from 10:00 a.m. till 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years; the
F.from the conclusion of school to 7:00 p.m. on the husband’s birthday each year should it fall on a school day and from 2:00 p.m. to 6:00 p.m. should it fall on a non-school day
G.at other times by agreement between the parties in writing.
(ii) from the conclusion of the (employer omitted) each year (as defined in paragraph 4(a)(i) hereof) to the commencement of the (employer omitted) in the following year:
A.during school terms on each alternate weekend from the conclusion of school or childcare on Friday to the commencement of school or childcare on Monday commencing on the first weekend after the husband’s (employment omitted);
B.for half of the long summer holidays each year by agreement between the parties in writing, and failing agreement, for three weeks from 12:00 noon on the first Saturday in 2017-2018 and in each alternate year thereafter and for three weeks concluding at 12:00 noon on the last Saturday in 2018-2019 and in each alternate year thereafter;
C.from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in odd-numbered years and from 4:00 p.m. on Christmas Day to 4:00 p.m. on Boxing Day in even-numbered years;
D.from the conclusion of school or childcare to 7:00 p.m. on each of the children’s birthdays in even-numbered years and from the conclusion of school or childcare to 7:00 p.m. on the evening before the child’s birthday in odd-numbered years should the birthday fall on a school day;
E.for four hours on each of the children’s birthdays by agreement should the birthday fall on a non-school day and failing agreement from 10:00 a.m. till 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
F.at other times by agreement between the parties in writing.
(b)from the date one month after the husband’s retirement from full-time (employment omitted) or his final resignation from any other role as specified in paragraph 4(a) hereof:
(i) during school terms on each alternate weekend from the conclusion of school or childcare on Friday to the commencement of school or childcare on Monday;
(ii) for half of each school term holidays by agreement between the parties in writing, and failing agreement from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in even-numbered years, and from 6:00 p.m. on the second Saturday to the commencement of the next school term in odd-numbered years;
(iii)for half of the long summer holidays each year by agreement between the parties in writing, and failing agreement, for three weeks from 12:00 noon on the first Saturday in odd-numbered years and for three weeks concluding at 12:00 noon on the last Saturday in even-numbered years;
(iv)from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in odd-numbered years and from 4:00 p.m. on Christmas Day to 4:00 p.m. on Boxing Day in even-numbered years;
(v)from the conclusion of school or 6:00 p.m. if not a school day on the day before Good Friday to 6:00 p.m. on Easter Saturday in even-numbered years and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in odd-numbered years;
(vi)from the conclusion of school or childcare to 7:00 p.m. on each of the children’s birthdays in even-numbered years and from the conclusion of school or childcare to 7:00 p.m. on the evening before the child’s birthday in odd-numbered years should the birthday fall on a school day;
(vii)for four hours on each of the children’s birthdays by agreement should the birthday fall on a non-school day and failing agreement from 10:00 a.m. till 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(viii)from the conclusion of school to 7:00 p.m. on the husband’s birthday each year should it fall on a school day and from 2:00 p.m. to 6:00 p.m. should it fall on a non-school day; and
(ix) at such other times as the parties may agree in writing.
(5) The husband’s time with the children shall suspend if necessary on the following occasions:
(a) from 4:00 p.m. on Christmas Eve to 11:00 a.m. on Christmas Day in even-numbered years and from 11:00 a.m. to 4:00 p.m. on Christmas in odd-numbered years;
(b) from the conclusion of school on the day before Good Friday to 6:00 p.m. on Easter Saturday in odd-numbered years and from 6:00 p.m. on Easter Saturday to 6:00 p.m. on Easter Monday in even-numbered years;
(c) from the conclusion of school or childcare to 7:00 p.m. on each of the children’s birthdays in odd-numbered years and from the conclusion of school or childcare to 7:00 p.m. on the evening before the child’s birthday in even-numbered years should the birthday fall on a school day;
(d) for four hours on each of the children’s birthdays by agreement should the birthday fall on a non-school day and failing agreement from 2:00 p.m. to 6:00 p.m. in even-numbered years and from 10:00 a.m. to 2:00 p.m. in odd-numbered years;
(e) from the conclusion of school to 7:00 p.m. on the wife’s birthday each year should it fall on a school day and from 2:00 p.m. to 6:00 p.m. should it fall on a non-school day; and
(f) at other times by agreement between the parties in writing.
(6) For the purposes of determining the husband’s time with the children pursuant to paragraph 4(a)(i) and (ii) hereof, the husband shall provide to the wife a copy of the (employer omitted) schedule each year within 48 hours of receiving it from his (employer omitted).
(7) Changeover shall take place at the children’s schools or child care centres where time is stated as commencing at the conclusion or concluding at the commencement of school or child care, and otherwise changeover shall take place at a location agreed by the parties, and failing agreement at the wife’s home at the commencement of time and at the husband’s home at the conclusion.
(8) The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)posting derogatory material about the other or any member of the other’s family or household on any form of social media;
(c)discussing these proceedings or any parenting disputes or issues in the children’s presence or hearing, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct; and
(d)allowing the children or any of them to access, read or have read to them any portion of the Court’s Reasons for Judgment in this matter.
(9) The parties shall continue to use a communications book to provide information about the children and in addition each party shall be at liberty to contact the other by SMS text message, but only to provide or to seek information about the children or their care arrangements, and the parent receiving the text message shall acknowledge such receipt by return text message and all such text messages shall be civil in tone.
(10) Each party shall notify the other as soon as practicable in the event of the children or any of them suffering any serious illness or injury while they are in their respective care and each shall authorise any medical or allied practitioner who treats the children or any of them to communicate and consult with the other parent.
(11) Each party shall advise the other of any medication prescribed for the children or any of them, including the dosage prescribed, and ensure that such medication travels with the children and that the children take their medication as prescribed.
(12) The wife shall authorise any school or the organisers of any extracurricular activities in which the children are enrolled, to provide to the husband at his expense, if any, all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the children or any of them.
(13) The parties shall be at liberty to attend any of the children’s school events and extra-curricular activities such as sporting events, concerts, parent-teacher interviews and the like, and neither shall prevent the children or any of them from communicating with the other parent at such events.
(14) The parties shall be at liberty to provide a copy of these Orders (but not the Court’s Reasons for Judgment) to the children’s childcare centre, school or schools.
Property Orders
(15) The net proceeds from the sale of the property at Property A shall be disbursed so that the wife receives 72.5% of the parties’ net non-superannuation assets, and the husband receives 27.5%.
(16) If he has not already done so, then within 30 days of the date of these orders the husband shall do all such acts and things and sign all such documents as might be necessary to transfer to the wife at the expense of the wife the Holden (omitted) motor vehicle registration number (omitted), and the husband shall forthwith discharge the debt to (omitted vehicle) Finance attached to the said vehicle.
(17) Pursuant to s.74(1) of the Family Law Act 1975, and commencing on 31 August 2017, the husband shall pay to the wife by way of periodic spousal maintenance the sum of $5000 per month until she completes her (omitted) qualifications, or until the end of the year 2020, or until he retires as a (occupation omitted), whichever is the soonest.
(18) The husband shall retain for his own use and benefit absolutely all his right title and interest in (business omitted) (ACN (omitted)) and the wife shall waive and/or forgo any benefit or interest which she may have in that company;
(19) The husband shall be liable for and hereafter forever indemnify the wife against any and all claims, demands, liabilities of whatsoever nature and kind including but not limited to any borrowings, debts, loans or taxation liabilities with respect to (business omitted) ((omitted)).
(20) Within 30 days of being requested to do so in writing by the husband or his nominated representative, the wife shall do all such acts and things and sign all such documents as might be necessary to relinquish any interest in and resign from any position held in relation to the Goodall Family Trust (“the Trust”), including any action necessary to remove herself as a beneficiary of the Trust.
(21) Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:
(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b) monies standing to the credit of the parties in any joint bank account shall be divided between the parties in the proportion of 72.5 per cent to the wife and 27.5 per cent to the husband;
(c) insurance policies remain the sole property of the owner named thereon;
(d) each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e) each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
A. Upon the Court being provided with evidence that the trustee of the husband’s superannuation fund has been afforded procedural fairness in relation to the proposed superannuation split, the Court intends to make the following Orders:
(1)In accordance with s.90MT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband Mr Goodall (Member No. (omitted)) in the (omitted) Super Fund (“the fund”), the wife Ms Goodall will be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using the base calculation of 95% (ninety five per cent) and there will be a corresponding reduction in the entitlement of the husband.
(2)The trustee of the fund must comply with the obligations imposed upon trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001.
(3)The husband is hereby restrained by himself his servants and agents from making any binding death benefit nomination to the trustee of the fund in favour of any person who is an eligible beneficiary within the meaning of reg.13 of the Family Law (Superannuation) Regulations 2001 which would have the effect of diminishing the value to the wife of the splitting Order made in paragraph 1 hereof.
(4)Paragraphs 1 and 2 of these Orders bind the trustee of the fund when these paragraphs take effect from the operative time, being the fourth business day after the date these Orders are served upon the trustee.
(5)The wife and the husband shall do all such things and execute all such documents as are necessary to facilitate the rollover by the trustee of the fund of the husband’s entitlements pursuant to paragraph 1 of these Orders to another regulated superannuation fund, an approved deposit fund, or a retirement savings account or other such applicable fund or account at the sole nomination of the wife as soon as that is practicably possible after the operative time.
IT IS NOTED that publication of this judgment under the pseudonym Goodall & Goodall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3326 of 2015
| MS GOODALL |
Applicant
And
| MR GOODALL |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings resulting from the breakdown in the marriage between Ms Goodall (“Ms Goodall” or “the wife”) and Mr Goodall (“Mr Goodall” or “the husband”).
The parenting proceedings concern their three children: X born (omitted) 2010 (“X”), Y born (omitted) 2012 (“Y”) and Z born (omitted) 2015 (“Z”) (collectively “the children”).
This matter is somewhat complex due to the work commitments of the husband, who is a (occupation omitted), although perhaps not more so than other matters where parents have irregular and changing roster commitments.
The wife seeks orders that the children continue to live with her and spend time and communicate with the husband six times per month, or as agreed by the parties.
The husband seeks orders that the children spend time and communicate with him at specific times that allow him to meet his commitments to his employer.
In the property proceedings the wife seeks orders that she receive 100% of the proceeds of sale of the former family home at Property A and a superannuation split in final settlement of all property matters, plus a monthly spousal maintenance payment for the remainder of the husband’s (omitted) career. The husband seeks orders that the former matrimonial home be sold and following this the non-superannuation assets be divided 60% to the wife and 40% to the husband. He also seeks a superannuation split.
Therefore, the issues to be decided in this matter can be stated thus:
A.What kind of time should the children spend with the husband while he is a full-time athlete?
B.Is it just and equitable to alter the parties’ property interests?
C.If it is just and equitable, what are the property interests of the parties and what is their value?
D.What were the parties’ contributions to the property?
E.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
F.In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
G.Should the husband be ordered to pay periodic spousal maintenance to the wife, and if so, for how long and of what amount?
Background
Ms Goodall was born on (omitted) 1990 and is currently 27 years old. She has not worked since the parties were married and has taken care of the children on a full time basis since X was born in 2010. At the time of trial she had enrolled in a four-year (omitted) degree which was due to commence in March 2017.
Mr Goodall was born on (omitted) 1988 and is currently 29 years old. He works as a (occupation omitted) in the (employer omitted) (“the (employer omitted)”) for the (employer omitted) (“the (employer omitted)”).
The parties commenced living together in (omitted) 2009 and were married on (omitted) 2013. They separated on a final basis in July 2015 and were divorced on 15 November 2016. X, Y and Z are the only children of the marriage.
Both parties appear to have repartnered, although Ms Goodall’s partner does not live with her and the children.
Procedural History
This matter commenced when Ms Goodall filed an Initiating Application, Affidavit in Support and sworn Financial Statement in this Court on 26 October 2015. She sought interim and final Orders in relation to property only at this stage in the proceedings.
Mr Goodall filed a Response, Affidavit in Support and sworn Financial Statement on 6 November 2015. In his Response Mr Goodall sought both property and parenting Orders.
The matter first came before me in the Duty List on 2 December 2015. I adjourned the matter to 8 December 2015 for mention in relation to parenting matters only. I otherwise adjourned the matter to 10 February 2016 for a Directions hearing in the Duty List.
On 8 December 2015 the parties were able to reach agreement in relation to parenting matters and I made interim Orders in terms of the Minute of Consent Orders signed by the parties. These Orders provided for the children to live with the wife and spend time and communicate with the husband on a regular basis. I also ordered that the parties communicate via text message in relation to care arrangements and restrained them by injunction from communicating with each other via text messages in relation to other matters.
When the parties came before me on 10 February 2016, they were again able to reach agreement in relation to the interim care arrangements for the children. I again made interim Orders by consent that the children spend regular time with the husband on days that did not clash with his training and match commitments. The Orders also provided for the parties to attend a post separation parenting program and a Conciliation Conference, and for the husband to pay the wife the sum of $60,000.00 in three instalments with the nature of those payments to be characterised at trial. The matter was otherwise adjourned to 2 August 2016 for Mention and for Final Hearing on a date to be fixed in 2017.
On 2 August 2016 I again made interim Orders in terms of the Minute of Consent Orders signed by the parties. These Orders again allowed the husband to spend time with the children so as to allow him to meet his work commitments. I also ordered the wife to file an Amended Initiating Application.
The trial began on 31 January 2017 and ran for four days. Both parties were represented by counsel.
Witnesses included Mr Goodall, Ms Goodall, the paternal grandmother Ms A, and the Family Report writer Ms L (“Ms L”) all of whom underwent cross-examination.
At the conclusion of the trial I reserved my decision.
Issues and Evidence
Parenting
Issue A. What kind of time should the children spend with the husband while he is a full-time athlete?
Orders which specify how much time a parent should spend with a child are parenting orders under s.64B(2)(b) of the Family Law Act 1975 (Cth) (“the Act”).
The law in relation to parenting matters is found in Part VII of the Act.
The objects and principles underlying Part VII are set out in s.60B of the Act and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I note that in this case it is agreed between the parties that they will share parental responsibility for the children equally and that the children will live primarily with their mother. It was the husband’s initial proposal that the children live equally with both parents, and there was some indication at trial that the wife could foresee such an arrangement at a time in the unspecified distant future, but neither side pressed that issue at trial.
The husband’s Outline of Case Document filed on 30 January 2017 sought orders that the children “live and spend time with the father”:
(a)each week from 5:00 p.m. on Tuesday until Friday morning at the commencement of child care or school, for so long as the father is an (occupation omitted) or is employed in the (omitted) industry such that his duties include any (omitted) involvement, and otherwise:
(i)in the first week of every fortnight from 5:00 p.m. on Tuesday until Friday morning at the commencement of childcare or school;
(ii)in the second week of every fortnight from 5:00 p.m. on Wednesday at 6:00 p.m. on Sunday.
He otherwise generally sought to spend time with the children for half of all school holiday periods, and on special days such as Christmas, Father’s Day and birthdays.
While not unique, the father’s profession and work commitments mean that he does not work to a regular roster. This problem often faces fly in/fly out workers, medical professionals, firefighters, factory workers and others whose family commitments are forced to fit in with those arrangements.
That position makes it difficult for the Court to draft Orders which provide consistent, regular, and frequent time for children to spend with both parents.
That is not in any way intended as a criticism of the husband, but merely a statement of fact about his professional circumstances.
The (employment omitted) lasts in general from February/March to September/October each year beginning with the (employment omitted) and concluding with the (omitted) culminating in the (omitted) which is held either on (omitted).
(occupations omitted) are paid salaries that most people would consider to be very high indeed. In this case, Mr Goodall’s current salary is about $700,000 per year plus (omitted) fees of about another $170,000. He is also eligible for bonus payments depending on how well he (employment omitted).
For those very high salaries, (occupations omitted) are expected not only to (employment omitted) each weekend and (omitted) other day of the week, but their families are expected to participate in appropriate (employer omitted) and (omitted) events.
During the (employment omitted), in addition to a heavy and onerous (employment omitted), Mr Goodall is expected to be available (omitted) and for (employment omitted).
He is also required to travel interstate whenever the (employer omitted) requires him to do so, and on a travel timetable drawn up by the (employer omitted). It is not simply a matter of him finding his way to another city and turning up at the (employer omitted) finding his own way home. His every move on those occasions is controlled by the (employer omitted).
In the off (employment omitted) schedule, while he is able to take some time off in the immediate post-schedule period, he is expected to begin (employment omitted) months in advance of the (employment omitted) which begins in February each year.
Mr Goodall put it succinctly when he told Ms L in his interview for the family report in these proceedings that “they own me”, and under cross-examination, the wife agreed with the husband’s counsel that “for their money they want their blood”.
His contractual commitments to his employer therefore are far more onerous than are the professional commitments of most people, even those who work with irregular rosters.
There is no suggestion in these proceedings that Mr Goodall is unable to care for his children in the general sense. All appear to have appropriately developing relationships with him according to Ms L.
There is no suggestion that he abuses alcohol or takes illicit drugs, and nor is there any suggestion that he is a violent or even an angry man.
Those features alone distinguish this case from the majority of family law cases which come before this Court.
The wife would like Mr Goodall to spend more time with the children than he currently does, and she seeks orders that would not take into account his (omitted) commitments, and would see him spending regular and frequent time with the children throughout the year.
The issue in this case, therefore, is different to most cases in that there are genuine practical difficulties in the husband’s spending such regular and frequent time with his children.
The Act states that when considering whether or not to make a particular parenting order, the court must take the best interests of the child as its paramount consideration (s.60CA).
Section 60CC(2) and (3) set out 16 separate considerations that the court must take into account when deciding what orders might be in a child’s best interests.
While I have in mind all of those provisions, few of them are particularly helpful to the Court in situations of this kind.
I will consider and refer to those which are relevant in turn.
The first two considerations are set out in s.60CC(2) and are called “primary considerations”.
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The meaning of the phrase “meaningful relationship” has been discussed in many cases before this Court and the Family Court of Australia.
In in Mazorski v Albright (2008) 37 FLR 518, Brown J said at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, the meaningfulness of a child’s relationship with his or her parents does not depend on the amount of time he or she spends with each of them, but on the quality of that time.
In Tait & Densmore (2007) FamCA 1383, Cronin J discussed the distinction made between an optimal relationship and a meaningful relationship by Kay J in Godfrey & Sanders (2007) FamCA 102, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. […] The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and each of their parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and their parents are able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing that relationship must be a primary consideration of the Court in considering what is in their best interests.
In relation to s.60CC(2)(b), there is no evidence that these children are at risk of physical or psychological harm from being exposed to abuse, neglect or family violence.
However, they are at some emotional risk from the dispute between their parents and the impact on them of that dispute, and I will return to that issue later in these Reasons.
Section 60CC(3) then sets out 14 “additional considerations”, although not all are relevant to these proceedings.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Both parties agree that X wants to spend more time with her father and is disappointed when that is not possible. She did not state any clear views to Ms L but was “stern faced when she stated that she does not like (omitted), but promptly smiled when speaking about her father and his (omitted)“job” ”.
Even if X had stated clear views, her age, at 6 ½, means that they would be given little weight.
Both Y and Z are likewise too young to express clear views or to have any great weight given to them.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
All three children were seen with both parents during Ms L’s interviews in preparation for her family report.
Ms L observed that the children greeted their father warmly and were happy and excited to see him. She describes their interactions thus:
64. Mr Goodall was seen to engage with X in playing with a tea set and there was strong eye contact and smiles. He also had brought appropriate books and drawings of activities for the children which were suitable for the (sic) ages. X spoke to her father about driving past the father’s “(employer omitted)”. The writer observed that Mr Goodall easily and happily engaged with each child individually as well as with the sibling group. He also helped the children go to the toilet and managed the practical demands of these young children and was sensitive to making sure the children had sufficient hydration as the day was quite warm.
65. Mr Goodall was adept at managing to play with his daughter and Y[1] one handed given that he had been holding and nurturing Z on his hip. X was seen to tickle Z while Z was cradled in his father’s eyes (sic). The writer observed that Mr Goodall and the children were able to share laughter and jokes together. At all times Mr Goodall was child focused and appropriate with the children who were settled calm and interested in playing with their father.
[1] Ms L's report refers to Y as being a boy, but when asked about that at trial she put the mistake down to typographical errors or errors from her “Dragon Dictate” program. She said she had never been in any doubt that Y was a girl when she was conducting her interviews.
Ms L’s observations of the children with their mother are set out as follows:
66. The children were observed with their mother and there was a strong attachment between the children and Ms Goodall. They sat close next to her and were tactile with her. She was adept at supporting and calming and playing with them whilst managing the demands of all three children. Z also stayed in her arms while she engaged with the other two children. During the observation Ms Goodall was seen to guide the children appropriately in their play and manage any sibling tensions. She was able to shelter the children from any feeling she experienced on the day when she and her former partner met in the writers; (sic) waiting room to exchange the children. The children were healthy and well looked after and Ms Goodall was also observed to be child focused and a highly competent parent.
In other words both parents have warm, loving and appropriate relationships with all three of their children.
At trial, under cross-examination by counsel for the wife, Ms L noted that she had not seen the children or the parties since January 2016, more than a year before the trial. She commented that the children, now being a year older than when she saw them, have entered different stages of development.
She nevertheless emphasised the need for certainty and predictability in the children’s care arrangements so that their relationships with their parents could develop appropriately.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Ms Goodall has made almost all of the major long-term decisions in relation to the children since separation. She has decided where they live and where they go to childcare, although the parties were able to decide together about where X goes to school.
Ms Goodall complains that Mr Goodall has only spent time with the children in accordance with his own wishes (or Court Orders which essentially follow his proposals), and that he has used his (employment omitted) schedule as an excuse not to see the children. It was her expressed wish at trial that he spend more and more regular time with all of the children.
She was particularly scathing about Mr Goodall’s decision to go on holiday with his girlfriend to (country omitted) at the end of the 2016 (employment omitted) schedule rather than spending time with the children.
Mr Goodall, on the other hand, complains that Ms Goodall has prevented him from seeing the children, and that she has been inflexible about times while wanting him to be flexible in circumstances where he has serious restraints on his time imposed by his employer.
He professes a wish to spend as much time as possible with the children, although it was clear from his evidence at trial, despite his statement that he wanted the children “to be part of” his (employment omitted) world rather than “to fit in with it”, that he does expect his time with the children to be arranged so that it does not clash with his (employment omitted) timetable.
In relation to the trip to (country omitted), Mr Goodall told the Court that he has a brother who lives in (country omitted), that he had never been there before, and that he was able to be anonymous in (country omitted). He said that he appreciated the break from people recognising him and stopping him in the street in Melbourne.
None of that explains why he did not take the children with him so that he could spend time with them on that holiday.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Mr Goodall pays child support for the children pursuant to a Child Support Assessment provided by the Department of Human Services (Child Support). He is currently assessed to pay about $2700 per month.
Both parents support the children when they are in their respective care, and as Ms Goodall cares for the children for most of the time, the majority of that burden falls on her.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have lived all their lives with their father being a (occupation omitted) and with the irregular changes in their routine which have had to be made as a result of his profession.
There is no suggestion that the children should be separated from either parent as a result of these proceedings, and indeed, for as long as the father remains a (occupation omitted), there can be little major change to their circumstances.
It was Ms L’s evidence at trial she had not assessed the children’s capacity for change, although she thought that “too many changes too quickly for everybody will only unsettle things”.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulty involved in drafting Orders for these children to spend meaningful time with their father is perhaps at the core of these proceedings.
As already stated, these children have lived with that difficulty for their whole lives, and during the marriage that difficulty was accepted as a normal part of their everyday lives.
Moreover, I note that it was the wife’s evidence at trial that she understands that she has to make compromises if she wishes the family to benefit financially from the husband’s (omitted) career.
So, while Orders will have to be made which are not perhaps “the norm” for separated families, it is not the case that those orders will “substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis”.
I will therefore make Orders which take the husband’s (employment omitted) commitments into account but which ensure that the children spend regular time with him.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion, in the evidence before the court, that either parent’s capacity to provide for the children’s needs when they are in their care is lacking. Indeed, the observations of Ms L as set out above show that both are capable and caring parents.
The only matter of relevance under this consideration is whether the paternal grandmother is in a position to provide the husband with the support he needs to care for the children during the (employment omitted) schedule, and especially on weekends.
The husband’s mother, Ms A, filed an affidavit in these proceedings on 16 January 2017, in which she states as follows:
7. I am happy and available to act as a consistent and ongoing support to Mr Goodall. I understand the short notice schedule changes and sometimes unexpected demands placed on him as an (occupation omitted) in the (employer omitted) system (sic) Through speaking with Mr Goodall, I know about and understand the detail and requirements of the structured time on parenting arrangements he is seeking for this from this honourable court […]. If Mr Goodall is granted the parenting orders he is seeking, I am fully prepared to support Mr Goodall, Ms Goodall and the children to ensure that the arrangements can work effectively for all concerned. I will be available as and when required by Mr Goodall, including to collect or deliver the children.
However, Ms A also deposes that her husband, Mr J, is: “a long-term Type 2 diabetes sufferer and has had a long history of morbid obesity and related sedentary lifestyle. In recent years there has been an expected downward progression to his condition and the medium to possibly long-term prognosis according to the medical advice we have received is that he will need to be placed in full-time care or in the worst case scenario, will die from problems arising from his chronic disease. All of this notwithstanding, and while Mr J has limited mobility, he is well able to dress and feed himself and can live independently. This has essentially been the case since about 2004. As such, whilst Mr J values my presence and assistance, he does not actually require that much from me and can get by day to day without my involvement.”
Ms A gave evidence at trial and was cross-examined by the wife’s counsel.
It was her evidence that her husband is self-sufficient in relation to his personal needs and that she doesn’t “look after him personally”.
She said she had left him by himself at their home in (omitted) for the whole of the previous day, and that when she had left home that morning, he had been preparing his breakfast.
She denied the allegation, made by the wife during her evidence at trial that she had told the wife’s father’s partner that she would be unable to care for both her husband and the children on an ongoing basis.
It was the husband’s evidence, confirmed by his mother, that she had her own room at his home and that she visited overnight on a regular basis.
However, Ms A was adamant that in general it was the husband who looked after the children even when she was present.
She did say that it was easier for the husband to have her present on (employment omitted) days because he practices certain routines on the mornings of those days (such as (omitted)), and the children can be demanding of his attention.
The husband’s mother is clearly a very capable woman and I have no doubt that she is able to meet the children’s needs when she is present.
However, were it necessary for her to be present to look after the children on every occasion when the husband’s (employment omitted) obligations meant that he was unable to, that would be a very onerous burden for a grandparent to bear, even if she did not have a husband with chronic medical conditions.
I also note the evidence of the wife in this regard, who said at trial that it was her experience, having spent a lot of time with the husband’s family over the years of the relationship and marriage that Mr J was quite demanding of his wife’s time and was in and out of hospital on a fairly regular basis. It was Ms Goodall’s evidence that she believes Ms A is underestimating the difficulties she would face if she were required to care for the children on a regular and reasonably frequent basis.
I note in this regard that Mr Goodall’s new partner is said to live with him, and that she has attended at (omitted) with the children.
However, she did not file any affidavit in these proceedings, and she did not give evidence at trial, so the court was unable to make any assessment of her capacity to meet the children’s needs. That is most unfortunate.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The parties to this marriage met and commenced their relationship while both were still in their teens. They married after the birth of their second child, and separated only weeks after the birth of their third. The actual marriage lasted only about 20 months or so, although the relationship was of course much longer than that.
The children are of an age where they are entirely dependent on the adults in their life to provide for them both materially and emotionally, and they will not be mature enough to take care of themselves for many years yet.
I do take into account, however, Ms L’s opinion given under cross-examination at trial, that while X and Y are “at the next stage of development in terms of individuating away from their parents”, “Z, on the other hand, is still very much – needs a lot of nurturing and – and connection with both parents”. She also said that Z’s time with his father needs to be more than just being put to bed and woken up, and should involve interaction with his father which is activities based.
From the evidence of both parties at court, Z and Y attend childcare on Thursdays, and it would be possible for Mr Goodall to look after Z on those days when he does not have (employment omitted) commitments. So that Z’s relationship with his father can be further strengthened, I will make allowance for that possibility in drafting Orders for Mr Goodall to spend time with the children.
At the time of trial, the husband was 28 years old, and the wife was 26.
The husband impresses as a rather passive and even timid man, used to being treated like the (occupation omitted) that he is, but nevertheless also used to being told what to do and to having his life organised for him insofar as finances and his (employer omitted) obligations are concerned.
He expressed at Court his discomfort at having to present to the public as an extrovert, and it was his evidence that he avoids conflict wherever possible, which has the unforeseen and no doubt unwanted consequence that small disputes between him and Ms Goodall often escalate to become major unresolved battles.
There is considerable evidence before the court that he has been entirely unwilling to communicate directly with the wife, instructing his solicitors to make clear that all communications in relation to the children should pass through them.
He complains that the wife harassed him through the use of multiple text and telephone messages, to which he rarely responded. For her part, the wife acknowledges that her behaviour was sometimes inappropriate in that regard, but says that the husband’s lack of response forced her to make multiple calls and send multiple text messages when she needed to communicate with him in relation to the children.
In the immediate aftermath of the separation, the wife was forced to issue these proceedings to obtain support for herself and the children, as the husband had made no real provision for that support of his own volition.
It is easy to see how the wife felt that her husband had simply abandoned her and the children in order to live his new life with his new partner, although I am not satisfied that his behaviour was motivated by malice.
Despite his evidence that his future was uncertain after his current (employment omitted) contract expires at the end of the (employment omitted), Mr Goodall did not appear to have made any particular plans for his post-(employment omitted) future, saying only that he might be able to obtain a position as an (occupation omitted) and that he was undertaking a (omitted) course. It was his evidence that he had “no idea” in what field he might use that qualification if he did not obtain a position in the (employer omitted) or one of its (omitted).
None of that indicates a particular maturity in the husband. Nevertheless, he presented at trial as a somewhat reserved and thoughtful man, who loves his children and who felt keenly the constraints of his professional obligations.
The wife impressed as a forthright and capable woman and a devoted mother, although some of her responses to the husband’s behaviour could be said to indicate a lack of emotional maturity.
She has essentially had the sole care of the children since separation some two years ago, and she has made plans for her future by enrolling in a (omitted) degree. In order to participate in and complete that study, she has put the two younger children in child care on the days when she is required to attend lectures.
Being a full-time student and a single parent is not an easy life, but Ms Goodall impresses as someone who has the maturity to persist through any difficulties to ensure that her children are well cared for and that she is not financially dependent on the husband into the distant future.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother’s attitude to the children and to her responsibilities as their mother is exemplary. She has cared for them to the best of her ability and has put them first since their births.
However, her grief and distress at the breakdown of her relationship with her children’s father has, at times, caused her to behave in a less than totally responsible manner in relation to the children.
The most salient example of this occurred in January 2017 when, pursuant to Court Orders, the children were to spend time with their father between 21 and 22 January 2017. I note that those Orders were made by consent.
It has been the practice of the maternal grandfather and the wife (and presumably in previous years the husband) for many years to take the children camping in (omitted) with several other families in the later weeks of January each year.
When it became clear that the camping arrangements in 2017 would clash with the husband’s time with the children pursuant to the Orders, and the husband let the wife know that he was not prepared to change his time, it appears that the wife told the children that they couldn’t go camping because their father would not let them.
She filmed Y in a state of great distress after being told she would not be able to go camping, and then sent that video to the husband.
The video was tendered in evidence at trial, and it shows the wife telling Y, who is sobbing inconsolably, that it was not the wife’s fault that she was unable to go camping.
There is no attempt by the wife, at least in that video, to positively encourage Y to spend court-ordered time with her father, nor indeed to comfort her daughter.
That she then sent the video to the husband, can only be seen as an attempt to manipulate the husband’s emotions in order to get him to change his mind about spending time with the children during that period.
If that kind of emotional manipulation is extrapolated to other situations, the court would have some serious concerns about the wife’s attitude to parenting her children. However, overall, the Court is satisfied that Ms Goodall is a caring, capable and responsible parent.
The husband’s attitude to his parenting role is somewhat self-focussed, as he expects the wife to be flexible about arrangements for him to see the children, while being fairly inflexible himself as evidenced by the example in relation to the children going camping above.
He clearly loves his children dearly, and was obviously shocked to receive the video showing Y’s distress.
However, his evidence at trial was that he had never told the wife anything about his new girlfriend, despite the fact that she was spending time with the children, saying merely that he thought the wife knew about his new partner anyway, and that he didn’t think she needed to know anything about what happened during his time with the children.
That shows a lack of insight into his role as the children’s parent, and particularly into the importance of their mother’s role in their life, and indicates that his view of his parental responsibilities is not particularly sophisticated.
(j) any family violence involving the child or a member of the child’s family;
There is no suggestion that either party has engaged in behaviour which would satisfy the definition of family violence in s.4AB of the Act.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This is not a relevant consideration in these proceedings.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
X, Y and Z are currently 6½, 5 and 2 years old respectively. They are therefore, as previously stated, entirely dependent on the adults in their lives to provide for their needs. It is almost impossible to make Orders which will last for the whole of their childhood and their adolescence until they are 18.
Nevertheless, I intend these Orders to be final as far as that can be so in a practical sense, and if there is a major change in the parties’ circumstances which is not provided for in the Orders I intend to make, the parties will need to attend family dispute resolution before returning to court.
(m) any other fact or circumstance that the court thinks is relevant.
The wife seeks an Order that the children spend every Christmas lunch with her. It was her evidence at trial that her family celebrates Christmas together at lunchtime and that the husband’s family celebrate Christmas dinner in the evening. She would be happy for the parties to alternate Christmas mornings.
The husband’s proposal for the Christmas period as set out in his Outline of Case Document filed 30 January 2017 is as follows:
3. That notwithstanding any other orders, the children shall spend time with each parent on special occasions as follows:
(a) for Christmas Eve, Christmas Day and Boxing Day:
(i) from 3:00pm Christmas Eve until 3:00pm Christmas Day in even numbered years with the Father and in odd numbered years with the Mother;
(ii) from 3:00pm Christmas Day until 3:00pm Boxing Day in odd-numbered years with the mother and in even numbered years with the father.
He does not seem to have been asked any questions about the wife’s proposal at trial.
In those circumstances, and absent any evidence from the husband that would prevent such an Order, I will make Orders for the children to wake up on Christmas morning with their father and mother in alternate years, and for them to spend every Christmas lunch time period with their mother and every Christmas evening with their father.
Another matter which I take into consideration under this section is that an Order was made by consent on 10 February 2016 requiring both parties to participate in a post-separation parenting program. The wife did so, but the husband delayed enrolling in such a course until the months immediately preceding the trial.
When asked about that issue at trial, the husband said he had been “waiting for a phone call” about the course, that he thought he would be able to just “walk into” a one-day course, and, rather extraordinarily, that the only experience he had had of parenting courses was from the television show The Simpsons. No reason was given for the delay in making enquiries and it can only be put down to the husband’s reluctance to attend.
Ms L made clear in both her report and her oral evidence that for any care arrangements for these children to work in their best interests, the parties will need to communicate directly with each other.
It is to be hoped that their participation in the post-separation parenting programs will provide them with some skills and knowledge that will benefit them in that regard and allow them to communicate in an adult and civil fashion.
In terms of the structure of the time Mr Goodall spends with the children, Ms L was clear and firm at trial that because it was agreed that Mr Goodall would have the children from Tuesday night to Thursday morning or Thursday afternoon, it would be disruptive for the children, and indeed potentially damaging for their future emotional regulation, for them to have the Thursday night with their mother and then return to their father on the Friday night if he were (employment omitted). It was Ms L’s evidence that it would be better for the children to spend Thursday and Friday night with their mother before going to their father for one overnight on the weekends they were to spend time with him.
I take that evidence on board and will therefore make Orders that Mr Goodall spend time with the children from the Saturday morning to the Sunday evening on the weekends when he is (employment omitted) in Melbourne.
In relation to the husband’s proposal that he spend two weeks with the children at the end of every (employment omitted), it was Ms L’s opinion that, despite the children having spent 15 days away from their mother when she went to (country omitted) in 2016, it would not be in Z’s best interests to spend two weeks away from her until he is about three years old.
I will therefore make Orders which allow for Mr Goodall to have the children in a block of two weeks after the (employment omitted) each year from 2018 onwards.
In addition to those matters set out in s.60CC, I must have regard to s.65DAA of the Act which states:
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(Notes omitted)
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
I have considered the possibility of the children spending equal time in each parent’s care. However, the evidence before the Court is that the husband is not pressing for that arrangement at this time, and in any event, based on the evidence above, I am in no way convinced that it would be appropriate for these children at their ages and stages of development.
The distance between the parents’ homes does not create a practical difficulty for the children in spending time with both parents as they currently live in adjoining suburbs.
However the husband’s capacity to implement a regular weekend arrangement as proposed by the wife is severely limited by his professional obligations, despite his evidence that he has negotiated some flexibility with his (employer omitted).
Nevertheless, he seeks Orders for substantial and significant time as defined in the Act, and he does have capacity to spend time with them during the week, and on the weekends when he is (employment omitted) in Melbourne.
Under cross-examination at trial, Mr Goodall expressed a distinct reluctance to have the children on weekends when he had a (employment omitted) in Melbourne.
His only reason for that appeared to be that he had to spend more time in preparation for a (employment omitted) and would therefore be unable to spend much time with the children. I was not particularly impressed by that evidence.
It was also his opinion that the children would not be able to attend (employment omitted) because they would have to stay up too late. He conceded, however, that the children would not need to attend his night (employment omitted) and that whether they did or not, it would be his mother and not him who looked after them at those times.
It appeared to me that Mr Goodall had a very clear view of when he was prepared to spend time with the children, that his proposed regime was one that took his needs rather than the children’s into account, and that he could not see past that regime. I gained the impression that he referenced his (employer omitted) commitments at times when he did not wish to spend time with the children, but that he emphasised the (employer omitted)’s flexibility about those commitments in relation to times when he did wish to see the children.
He cannot have it both ways, and in Order to create some certainty for both the children and their mother, I intend to make orders that will see Mr Goodall taking care of the children (or at least being responsible for their care) for two nights during the week and on weekends during the (employment omitted) schedule when he has (employment omitted) in Melbourne. That regime will satisfy the definition of “substantial and significant time”.
He will have the capacity to spend significantly more time with the children in the off-schedule, and even more once he is no longer engaged in work tied to the (employer omitted) schedule, and I will make orders that account for those circumstances.
Finally, the Court is particularly concerned about the parties’ lack of communication and their ability to resolve difficulties which might arise from an arrangement for the husband to spend substantial and significant time with the children.
I will therefore make Orders which continue the use of a communication book as both parties appear to be able to communicate reasonably well through that medium and for them to text in limited circumstances in relation to the children’s care arrangements.
It might be useful for the parties to attend mediation or counselling in order to discuss how they might communicate in other ways that meet the needs of both parties and the children, although I will not make an Order for that process to occur.
Decision, Issue A
When I take all the above matters into account, I find that it is in the children’s best interests to spend substantial and significant time with their father which takes the limitations created by his professional obligations into account, but not to the extent that the father would wish.
That is a situation with which the children are familiar, having grown up with their father as a (occupation omitted), and in all the circumstances of this case it is the most practical arrangement possible.
I will make an Order that the husband provide to the wife a copy of his (employer omitted) schedule for the following (employment omitted) within 48 hours of him receiving it so that there is clarity and certainty about when he will be spending time with the children during each (employment omitted).
Ms L suggested that Ms Goodall might have a calendar at her home on which those dates are marked so that the children have some idea about who will be caring for them each weekend.
Property
Issue B. Is it just and equitable to alter the parties’ property interests?
This question arises from the terms of s.79(2) of the Act, which states that a court must not alter the property interests of parties to a marriage unless it is just and equitable to do so.
In Stanford v Stanford[2] the High Court stated that it is not a simple matter to decide what is just and equitable. At paragraph 36 of their judgment, their Honours stated:
The expression "”just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
[2] Stanford v Stanford (2012) FLC 93-518.
Nevertheless, the High Court went on to say, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
In Bevan & Bevan the Full Court said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[3] .
[3] Bevan & Bevan [2013]FamCAFC 116 paragraph 70.
In this case, the parties were married and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases” in this context, and therefore I find that it is just and equitable to alter the property interests of the parties.
The Issue C. If it is just and equitable, what are the property interests of the parties and what is their value?
The assets and liabilities to be divided between the parties can be set out as follows, taking into account the orders made by the Court on 3 February 2017 and rounding figures to the nearest dollar:
Assets
Owner
Value
Proceeds from the sale of Property A
Husband
$unknown
(omitted) Bank Account
Husband
$2,740
(omitted) Bank Account
Husband
$3,183
(omitted) Bank Account
Joint
$0
(omitted) Bank account
Husband
$2,762
(omitted business) account
Husband
$199,800
Holden (omitted) motor vehicle
Husband
$16,000
Goodall Family trust
Husband
Nil
Furniture & chattels
Husband
$2,000
Furniture & chattels
Wife
$2,000
TOTAL Assets
unknown
Liabilities
Owner
Value
(omitted) Bank Mortgage owing on Property A
Husband
$432,351
(omitted vehicle) Finance re Holden (omitted) motor vehicle
Husband
$7,920
TOTAL Liabilities
$ 440,271
NET NON-SUPERANNUATION ASSETS
Both
$unknown
Superannuation
(omitted) Super Fund
Husband
$157,841
(omitted) Fund
Wife
$4,450
Total Superannuation
$162,291
Financial Resources
(employer omitted) Retirement Fund
Husband
$153,472
I note the following matters in relation to the above table:
(a)Orders were made at the end of the trial for the sale of the property at Property A, which was the former family home and which was registered in the name of the husband. That property has been tenanted since the wife and children moved out at the end of 2015. The husband says the property is worth $875,000 and the wife says it is worth $900,000. The issue will be (or has been) determined by the sale price, but the Court does not know its true value.
(b)The husband’s evidence is that he has several bank accounts either in his name or prima facie under his control:
· a (omitted) Bank Account connected to his mortgage account. Bank statements tendered at trial by the wife show four withdrawals of $10,000 each being withdrawn from that account by the husband between 29 February and 3 March 2016. They show further withdrawals of $10,000 and $5,000 respectively on 12 and 13 April 2016. That is, the husband withdrew sums totalling $55,000 from his mortgage offset account in a six-week period between the end of February and mid-April 2016. He does not appear to have been asked questions about these particular withdrawals at trial, but I note that orders were made by consent on 10 February 2016 which required Mr Goodall to make cash payments to the wife totalling $60,000 over the ensuing months. I can only infer that those payments were taken from this account.
He was asked at trial about the balance of that account being $13,542 on 14 December 2016, and $2,740 by the time Mr Goodall affirmed his Financial Statement on 27 January 2017. His response was that his financial affairs are managed by his manager so that he can concentrate on (employment omitted). It was his evidence that while his manager operates this account, he has access to it. He could not explain how $10,802 withdrawn from this account between 14 December 2016 and 27 January 2017 had been spent.
· A personal (omitted) Bank Account. Statements tendered at trial by the wife show a balance in that account of $37,635 on 31 December 2016. It was the husband’s evidence at trial that while that account is in his name, it too is controlled by his manager. He said he was given a $2,000 per month “allowance” from that account, which is where his salary from the (employer omitted) was deposited and various expenses met. He did not know exactly how monies withdrawn had been spent so that the balance had fallen to $3,183.70 by the time he swore his last Financial Statement on 27 January 2017.
· The husband’s company’s (omitted) Bank Account. On 31 December 2016, that account, which is in the name of (business omitted), had a balance of $233,295 as shown in statements tendered by the wife at trial. By the time of trial one month later, the balance had fallen to $199,800. It was the husband’s evidence that he did not have full control over that account either. He said that, again, his manager operates that account, into which the $150,000 plus per year he earns for (employment omitted) services is paid. He said that his manager gives him an allowance and pays monies from that account to the wife as ordered by the Court. He thought that his manager had paid his lawyer’s costs, moving costs, living expenses, rent and the like from that account.
After some further questioning, it became clear that two amounts totalling $32,544 had been paid to the Australian Taxation Office (“the ATO”) in January 2017 for tax owed by Mr Goodall, those sums accounting for most of the difference between the $233,295 in that account on 31 December 2016 and the $199,800 on 31 January. When he was asked whether his estimate of a $30,000 debt owed to the ATO stated in his Financial Statement affirmed on 27 January 2017 was the same debt as had been paid in the two instalments earlier in January 2017, Mr Goodall simply said that he did not know, and that he relies on others to provide him with financial information. There was no corroborative evidence as to the existence of an unpaid debt of $30,000 to the ATO as neither his manager nor his accountant had sworn an affidavit in these proceedings. It addition, the question of whether that is a joint debt or a personal debt incurred well after separation, was not canvassed at trial. In light of that evidence, or lack thereof, I have not included the purported $30,000 debt to the ATO in the table above.
· The $153,472 currently held for the husband in the (employer omitted) Retirement Fund is apparently not strictly a superannuation entitlement, as what evidence there is about that sum indicates that it is intended to pay for any health or medical expenses (employees omitted) may incur after their (omitted) careers are over. It is therefore not an amount which could be subject to a superannuation split under s.90MT of the Act. I consider it to be a financial resource in the hands of the husband and will return to that issue later in these reasons when discussing the provisions of s.75(2) of the Act.
· Both parties have sworn or affirmed that their furniture and chattels are worth only $2000. Given that both parties live in three or four bedroomed houses catering for each of them and the three children, it is highly unlikely that that is the case, but in the absence of any further evidence, I will accept those estimates for the purpose of this exercise.
Ms Goodall has already received $60,000 in cash from the parties’ non-superannuation assets pursuant to orders made by consent on 10 February 2016. I characterised those payments as a part property settlement during the trial.
Counsel for the wife urged upon me in his final submissions not to include that sum in the final asset pool as the wife had used the vast majority of it to pay her legal fees. He submitted that if the wife’s legal fees ought to be included, then so should the husband’s, as if he had not paid his fees those monies would have been available for distribution between the parties. In other words, the husband too has effectively received a part property settlement in the form of monies removed from his accounts and paid to his lawyers.
At no time did the husband disclose to the Court what he had paid in legal fees since the commencement of these proceedings.
In those circumstances, the argument of counsel for the wife has some force, and I find that it would not be just and equitable to include the $60,000 paid to the wife in the property pool to be divided, as to do so would ignore the fact that the husband too has received an unquantified sum, likely to be of similar amount, from the parties’ assets.
To put it bluntly, I was not at all impressed with the evidence of the husband in relation to his financial affairs, although I found him to be a witness of truth. He has clearly abdicated all responsibility for the management of those affairs to others, and to put it in the vernacular, he has no clue about how much money he has, where it is, or how it is spent. He has simply not troubled himself to know that information and it was clear at trial that he was embarrassed to admit that fact.
This is an extraordinary position for a person with his history to be in. After 10 years of (employment omitted), where his salary has exceeded the wildest dreams of most working people, he has, in the context of that salary, very little to show for it. Either he has received some very poor financial advice over those 10 years, or he has ignored the sound advice he has received.
Issue D. What were the parties’ contributions to the property?
This question arises from s.79(4) of the Act which reads:
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 to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The evidence in this case is that throughout the relationship and marriage, the husband (employment omitted) and earned a very significant income, while the wife worked outside the home until X was born, after which she stayed home caring for the house and the children.
Those facts are not in dispute between the parties.
Their contributions during the marriage, therefore, can be said to have been equal, with the husband contributing more financially, and the wife contributing more as homemaker and parent.
There is also evidence that the wife contributed to the husband’s profession by attending at (employment omitted) and (employer omitted) events with him, and essentially by being available to the (employer omitted) whenever her presence might enhance his contribution to the (employer omitted). Similarly, there is evidence that the husband was also involved in homemaker and parent tasks.
Post separation, they have continued those primary contributions. That is, the husband has continued to support the family financially through his regular payments to the wife, and she has continued to look after the children for the vast majority of the time.
I therefore find that the contributions of the parties to their property overall have been equal.
Issue E. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e) (see above).
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the parties are of similar age and health and neither has yet reached his or her 30th birthday.
They have property whose total worth is unknown, and superannuation entitlements worth $162,291. In addition, the husband has a financial resource in the form of his retirement fund of $153,472.
The husband has declared the amount he says he has in the (employer omitted) Retirement Fund but has provided no documents in relation to it nor any evidence from his manager or his accountant in relation to its nature. The Court was informed from the bar table that the Retirement Fund is not a superannuation fund and it is therefore not subject to any form of superannuation split. However, the exact nature of the husband’s entitlements to the money in that fund is a mystery, and I consider it therefore to be an amount of money to which the husband has entitlement while the wife does not.
I note that the amount said to be in that fund is almost the same as the value of the husband’s superannuation entitlements.
The husband’s Financial Statement affirmed and filed on 27 January 2017, states that he receives a gross sum of $12,606 per week in salary from his (employer omitted) which extrapolates to a yearly income of $655,512. At other times in his evidence, he said, or agreed with statements put to him, that he was earning about $700,000 in salary alone.
That document also declares an income to (business omitted) of an estimated $2884 per week, or a yearly sum of $149,968. However, it is clear from the husband’s (omitted) Bank Account company bank statements as tendered by the wife at trial that in addition to his salary, in the six months to 31 December 2016 the husband received sums totalling $15,125 from what might be called minor sponsorships and promotional fees in addition to the annual sum of $159,500 from his (employer omitted) for those services. The total of those payments, noting that the minor sponsorship and promotional fee payments are only for six months, is $174,625.
Mr Goodall has been (employment omitted) professionally since 2007, and while in his early years he did not earn a salary which compares to his current earnings, in the 10 years since 2007 he must have earned at least $3 million, and most probably more.
Obviously, he is unlikely to earn his current salary for the rest of his working life. He is currently under a three-year contract to the (employer omitted), with whom he has spent his entire professional (occupation omitted) career, but as he says in his affidavit affirmed and filed on 16 January 2017:
There is no certainty whatsoever that I will be so (a contracted (occupation omitted)) beyond then. Even if I am, my income as a (occupation omitted) will taper of (sic) significantly and would be likely to be far less than half what I currently earn. Also the prospect of another multiple year contract is negligible. A very small proportion of (employer omitted) continue (employment omitted) into their thirties. I will be 31 years old when my current contract ends. [….] The (employer omitted) can be a fickle industry and the end of the (employment omitted) career can happen suddenly, for instance due to a carer (sic) ending injury or concussion, or a change of direction by a (employer omitted). I have worked extremely hard for many years to reach the elite level in my chosen (career omitted) but every (employment omitted) knows a professional career is a relatively short journey.
Mr Goodall’s future prospects for employment beyond his (omitted) career are most uncertain, although it was his evidence that he might be able to obtain a position as an (occupation omitted) either at his current (employer omitted) or another.
I take all of those circumstances into account.
The wife is currently entirely dependent on spousal maintenance and child support provided by the husband, together with the government child care rebate.
She is currently studying for a (omitted) degree and once she graduates, she might earn, according to the husband, a salary of up to $67,600 per year.
Clearly, at very least for the next four years or so, Mr Goodall’s earning capacity is vastly greater than the wife’s.
In addition, Ms Goodall has the primary care of the three very young children of the marriage, and she stated at trial that she would like to work full time only when the youngest, now two-year-old Z, goes to school.
The parties have been used to a very comfortable standard of living throughout the relationship and marriage. While it might not be possible to continue that high standard of living into the future, both will need to provide premises for themselves and the children for many years to come.
When I take all the matters set out in s.75(2) of the Act into consideration, and particularly those matters described in s.75(2)(b), (c), (d), (g), (h), (k) and (l), I find that it is appropriate to make an adjustment to the parties contribution-based entitlements of 22.5% in favour of the wife.
That is, the parties’ net assets, excluding their superannuation entitlements, should be divided 72.5% to the wife and 27.5% the husband.
Issue F. In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
The exact value of the parties’ net non-superannuation assets is unknown.
I have decided that the wife should receive 72.5% of those assets.
It is not in dispute that she will retain the Holden (omitted) motor vehicle which is worth $16,000. At a subsequent hearing on 26 June 2017 I made Orders for the husband to obtain a roadworthy certificate for that vehicle, and provide that certificate to the wife within seven days. Those Orders then provided for the wife to take possession of the vehicle and to register it in her own name. No Orders were made on that day for the husband to pay out the balance of the lease on that vehicle before transferring it to the wife, although such an Order was sought by the husband in his outline of case document filed 30 January 2017. I will make such an order as part of these final Orders for the sake of completeness.
In addition to the motor vehicle, the wife will also retain her furniture and chattels worth $2000.
The net proceeds of sale of the real property are unknown to the court. If they are insufficient for the wife to receive 72.5% of the non-superannuation assets over all, it will be necessary for the husband make up the remainder in a cash payment.
The husband already has bank account credits totalling $208,485, and furniture and chattels worth $2000, a total of $210,485 worth of assets, as well as a financial resource worth $153,472. However, he will also have to pay out the lease on the Holden (omitted) if he has not already done so and that payment should be counted as a deduction from the husband’s bank balance when the figures are calculated to provide for the settlement I have found to be just and equitable.
For the sake of clarity the calculations should be as follows:
· The wife should receive the Holden (omitted) at $16,000, her furniture and chattels at $2000 and such sum from the net sale proceeds (and possibly the husband’s bank accounts) that would mean she retains 72.5% of the total non-superannuation assets.
· The husband should retain his bank accounts worth $208,485 (from which the payout cost of the Holden (omitted) lease should be deducted), his furniture and chattels worth $2000, and his interest in the (employer omitted) Retirement Fund worth $153,472. He should then either receive further monies from the sale proceeds of the real property or pay the wife a cash sum so that he retains 22.5% of the total non-superannuation assets.
Both parties also sought a superannuation split, the wife seeking an equalisation of the parties’ current entitlements and the husband seeking an equalisation of the superannuation entitlements the parties have accrued since the beginning of their cohabitation relationship in August 2009.
The husband’s entitlements at the time of trial were worth $157,841, and the wife’s were worth about $4450.
It is the husband’s evidence that he had accrued superannuation entitlements in the two years before the parties began to live together and he sought to have those entitlements, on his evidence worth about $10,000, quarantined from any superannuation split.
However, the Orders sought by the husband in his Outline of Case Document filed on 30 January 2017, included the following:
That there be a splitting order to equalise the parties’ respective superannuation and like entitlements accrued since 1 August 2009 and each party thereafter relinquish any entitlement to the other’s superannuation and like entitlements .[4]
[4] Emphasis added.
I can only infer that the words “and like entitlements” in that proposed order refer to the husband’s entitlements in the (employer omitted) Retirement Fund.
As I have already stated, it was the husband’s counsel’s submission at trial that the entitlements of the husband in that fund are not superannuation entitlements, in which circumstances they are not subject to the provisions for superannuation splitting orders set out in Part VIIIB of the Act.
I am therefore able only to make a splitting order in relation to the $157,841 of the husband’s entitlements in his (omitted) super fund, and in those circumstances, and in the interests of a just and equitable settlement overall, I will not quarantine those superannuation entitlements accrued by the husband before the parties’ cohabitation.
However, because the husband has “like entitlements” of similar amount, and because the husband’s proposal is that the parties’ superannuation and “like entitlements” should be equally divided, I will make an Order for the wife to receive 95% of the husband’s entitlements in his (omitted) superannuation fund.
In that way, the proposal of the husband can be effected, at least in principle.
Issue G: Should the husband be ordered to pay periodic spousal maintenance to the wife, and if so, for how long and of what amount?
Section 72(1) of the Act states as follows:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
I have already set out the relevant matters pertaining to s.75(2) in the context of the requirements of s.79 and will not repeat them here.
The wife says that she is and has always been reliant on the husband’s financial support in order to care for the children both before and after the breakdown of the parties’ marriage.
She says she has no qualifications and she needs the continuing financial support of the husband in order to gain qualifications which would allow her to be independent in the future.
She seeks the sum of $5000 per month by way of spousal maintenance until she completes her (omitted) degree or until the husband ceases to be a full-time (occupation omitted).
It is clear from the wife’s Financial Statement sworn 21 December 2016 that her only income apart from the husband’s current payment to her is by way of the government child care rebate which averages out at about $170 per week.
I am satisfied, therefore, when I consider again the matters set out under s.75(2) of the Act in this context, that the wife has a need for spousal maintenance under s.72(1) of the Act.
The husband’s Financial Statement affirmed 27 January 2017 states that he pays the following expenses to or for the benefit of the wife and children:
Lease payments on the Holden (omitted) $180 per week
Rent $500 per week
“Maintenance and Child Support” $920 per week
Private health insurance $114 per week
Child care $414 per week
Foxtel $35 per week
Total $2163 per week.
The evidence before the court is that Mr Goodall has been assessed to pay about $2700 per month in child support for the three children. When extrapolated to a weekly amount, his child support liability is approximately $623[5] per week.
[5] $2700 x 12 ÷52 = $623
As a result of Orders I intend to make as part of the property settlement, he will not have liability for weekly payments of $180 in relation to the Holden (omitted), although I intend to make an order that he discharge that liability entirely from his bank accounts.
If I take the child support amount of $623 per week from the $920 per week Mr Goodall says he pays in “Maintenance and Child Support”, the sum of $297 per week remains as general spousal maintenance.
When I take those two sums ($180 and $623) away from his current payments as set out in his Financial Statement affirmed 27 January 2017, he is currently paying, on his own evidence, $1360[6] per week in general spousal maintenance for the wife.
[6] $2163 - $180 - $623 = $1360
$5000 per month as sought by the wife translates to $1154[7] per week.
[7] $5000 x 12 ÷ 52 = $1154
Clearly then, Mr Goodall is in a position to pay the spousal maintenance sought by the wife in the sum of $5000 per calendar month and I will make an order for that sum accordingly.
Those payments will cease upon Ms Goodall completing her (omitted) degree, or at the end of 2020, or upon the husband ceasing to be a full-time (occupation omitted), whichever is the sooner.
For the sake of clarity, that sum will be ordered as spousal maintenance only, and does not include Mr Goodall’s liability to pay assessed child support.
Conclusion
These parties are still young, and they will be X, Y and Z’s parents for the rest of their lives. It is vital that they learn to communicate with each other as parents, and leave behind the grief, anger and distress associated with the breakdown of their marital relationship.
It is to be hoped that, with the settlement of these proceedings, they will be able to approach their lifelong roles as parents in an adult and responsible fashion so that their still very young children can grow up in a healthy and safe environment.
I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 30 August 2017
Key Legal Topics
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Family Law
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Equity & Trusts
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Injunction
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Procedural Fairness
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Statutory Construction
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Remedies
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