GUZNICZAK & ROGALA
[2017] FamCA 758
•19 September 2017
FAMILY COURT OF AUSTRALIA
GUZNICZAK & ROGALA [2017] FamCA 758 FAMILY LAW – CHILDREN – Application filed by husband seeking residence of children – Where husband seeks orders that children spend time with the wife - Where husband seeks orders for sole parental responsibility of the children including their health and education – Where communication between the parties in relation to matters involving the children is poor – Where there is a high level of conflict between the husband and wife - Allegations of family violence – Orders that children live with the mother – Orders that children shall spend time with or live with the father as agreed and failing that as provided for in the Orders – Orders that children be able to communicate with the parent when they are not in their care – Injunctive Orders – Orders in respect of travel and the issue of passports for the children
FAMILY LAW – PROPERTY – Application for an adjustment of property interests – Where husband and wife were married for almost 11 and have two children – Where husband contributions were greater than the wife – Where the husband inherited a half interest in a property post separation
Family Law Act 1975 (Cth)
Calvin & McTier [2017] FamCAFC 125 Holland & Holland [2017] FamCAFC 166
APPLICANT: Mr Guzniczak
RESPONDENT: Ms Rogala
INDEPENDENT CHILDREN’S
LAWYER
Mark MacDiarmid Family Law Specialist
FILE NUMBER: of DATE DELIVERED:
SYC 2420 of 2014
19 September 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Benjamin J
HEARING DATE: 27 & 28 February 2017, 1, 2, 3 & 6 March 2017 REPRESENTATION
COUNSEL FOR THE APPLICANT: Ms Suzanne Christie
SOLICITOR FOR THE APPLICANT: Marks Griffiths and Bova Pty Ltd
COUNSEL FOR THE RESPONDENT: Ms Mary-Clare Kennedy
SOLICITOR FOR THE RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER
Crawford Ryan Lawyers Pty Ltd
Mr Mark MacDiarmid
Mark MacDiarmid Family Law Specialist
PARENTING ORDERS
1.All prior parenting Orders in respect of B born 2006 (‘the son’) and C born 2008 (‘the daughter’) (collectively referred to as ‘the children’) are discharged.
Parental Responsibility
2.Subject to these Orders; Mr Guzniczak (‘the husband’) and Ms Rogala (‘the wife’) (jointly ‘the parents’) shall have equal shared parental responsibility for the children.
3.If it has not already occurred, within six (6) weeks from the date of these Orders the parents shall make an appointment for the children to see and consult a paediatrician:-
(a) such person shall be agreed between the parents;
(b) if the parents are unable or unwilling to agree as to an appropriate person, then she/he shall be the specialist paediatrician as is nominated by the Independent Children’s Lawyer after consultation with the parents;
(c) if, after the cessation of the appointment of the Independent Children's Lawyer, the paediatrician appointed pursuant to this order is unable or unwilling to continue to treat and consult with the children then the next paediatrician shall be the person as is agreed between the parents;
(d) If the parents are unable or unwilling to agree on such further paediatrician she/he shall be the person as is recommended by the current paediatrician or if she/he is not available then as is recommended by the children’s medical General Practitioner, subject always to the power of a court to make parenting orders; and
(e) the treating paediatrician shall be requested to provide advice to the parents with respect to the ongoing medical and dietary needs of the children, and the parents shall adopt and follow such treatment and dietary recommendations, subject always to the power of a Court to make parenting orders.
4.Other than in a medical emergency or as is referred by the children’s General Practitioner and/or paediatrician, neither parent may take the children to any other health practitioner for the purposes of treatment or assessment without the prior written agreement of the other parent.
5.Within seven (7) days of the appointment of the children’s paediatrician pursuant to these Orders, the parents will provide such medical practitioners with copies of the following documents:-
(a) these Orders;
(b) the reasons upon which these orders are based;
(c) the Report of Dr FG dated 7 January 2017;
(d) the Report of Dr FG dated 28 February 2017;
(e) the Report of Dr FN dated 25 November 2016; and
(f) the amended Report of Dr FH dated 5 January 2015.
6.If they have not already done so, both parents shall within seven days contact G Group (telephone number - …; address … – Suburb E) for the purpose of seeking a diagnosis of the son in the context of autism, and will at that time provide G Group with copies of the following documents:-
(a) these Orders;
(b) the reasons upon which these orders are based;
(c) the report of Dr FG dated 7 January 2017;
(d) the report of Dr FG dated 28 February 2017;
(e) the report of Professor FN dated 25 November 2016; and
(f) the amended report of Dr FH including his amended report dated 5 January 2015.
7.Within forty eight (48) hours of being requested by the children’s General Practitioner or General Practitioner practice group, paediatrician or G Group, each parent will provide all authorities necessary to effect the children’s ongoing medical treatment, including the sharing of information between the children’s medical treaters.
8.If they have not already done so, pursuant to s 13C of the Family Law Act 1975 (Cth) each parent shall within twenty one (21) days contact H Group at Sydney telephone number … and attend and complete the first reasonably available and offered program for the V Program (or such other similar program or therapist nominated by the Independent Children’s Lawyer in the event that the parties are not accepted by H Group) to enable both parents and, if requested by H Group, the children to participate in therapeutic counselling.
9.Subject to assessment as to suitability and acceptance of the parties by the V Program (or such other program or therapist nominated by the Independent Children’s Lawyer in the event that the parties are not accepted by H Group pursuant to the previous order):-
(a) each parent is to attend at such times, dates and places, and ensure the payment of any fees as are necessary and attend any courses recommended by H Group to facilitate their participation in such program;
(b) in the event that H Group recommends that the children participate in any other program or follow up any referral, including the D Program, then each parent shall do all things and compete and sign all documents including, without limitation, the provision of any necessary consents and ensuring that the children attend all appointments, necessary for the children to be enrolled in and participate in such program or follow up such referral;
(c) the parents are directed and authorised to provide H Group with copies of the following documents:
i.these Orders;
ii.the reasons upon which the orders are made.
iii.the report of Dr FG dated 7 January 2017; and
iv.the report of Dr FG dated 28 February 2017.
10.If there is a dispute as to the nomination or selection of the medical practitioner for the children leave is granted to both parents and/or the Independent Children's Lawyer to apply to Benjamin J for specific Orders in that regard. Such leave to apply shall be available for six (6) months from the date of these Orders.
11.The husband and wife shall sign all documents and do all acts as are reasonably necessary to enrol the son for high school as agreed by them in writing, if the parents are unable to agree then as follows:-
(a) School 1, Suburb J, provided it is available for/to the son; and if not
(b) School 2, Suburb O, provided it is available for/to the son; and if not
(c) School 3.
12.The husband and wife shall sign all documents and do all acts as are reasonably necessary to enrol the daughter for a high school as agreed by them in writing, if the parents are unable to agree then as follows;
(a) School 4, Suburb O, provided it is available for/to the daughter: and if not
(b) School 4, Suburb M.
Live with (residence)
13.The children shall live with the wife.
Spend time with (contact)
14.The children shall spend time with or live with the husband as is agreed between the parties. In the event that the parties are unable to agree the children shall spend time with the husband as follows.
15.During school terms as follows:-
(a)In a two-weekly rotating cycle commencing with week one on the first Wednesday after the commencement of each school term, if the children were primarily with the husband for the last week of the preceding school holiday period, or commencing with week two on the first Friday, if the children were primarily with the wife for the last week of the preceding school holiday period, as follows:
i.Week one - From 3.00 pm or the conclusion of school on Wednesday until Friday at 9.00 am or the commencement of school that day, and each alternate week thereafter during that school term;
ii.Week two - From 3.00 pm or the conclusion of school Friday until 9.00am Monday or the commencement of school that day and each alternate week thereafter during that school term.
16.During school holidays as follows:-
(a)For half of the New South Wales end of terms 1, 2 and 3 school holidays periods at times agreed between the parties and failing agreement for the first half of the school holidays in years ending in odd numbers and for the second half of school holidays for the years ending in even numbers;
(b)For half of the Christmas school holidays periods, but subject to the Christmas Day Orders;
i.at times agreed between the parties, and failing any agreement;
ii.the first week in December 2017/January 2018 school holiday period and the December 2019/January 2020 and each alternate week thereafter over those holiday periods, and the second week in December 2018/January 2019 and each alternate week thereafter over that school holiday period;
iii.from December 2020, when the daughter has attained the age of 12 for one half of the Christmas/New Year holiday period:
(A)commencing the second half in that year and thereafter, in even numbered years; and
(B)commencing the first half in 2021 and thereafter, in odd numbered years.
iv.Irrespective of which year, the children to be returned to the wife at 9.00am on the Sunday before the commencement of school term 1 in each year.
v.For the purposes of these school holiday arrangements, times shall commence and conclude in accordance with the published school holidays of the school in which each child is enrolled. The first night being from the conclusion of school and the last night being the night preceding the commencement of school, except in terms of the end of the Christmas/New Year holiday where the last day will be the Sunday before the commencement of term 1 in each year.
17.Notwithstanding other Orders, the children shall spend periods of time with each parent over the Christmas Eve, Christmas Day and Boxing Day periods as is agreed in writing between the parents, and failing agreement:-
(a)the children shall spend time with the husband from 12.00 noon Christmas Day to 6.00pm Boxing Day in 2017 and each alternate year thereafter; and 9.00am Christmas Eve to 12.00 noon Christmas Day in 2018 and each alternate year thereafter; and
(b)the children shall live with the wife from 9.00am Christmas Eve to 12.00 noon Christmas Day in 2017 and each alternate year thereafter; and from 12.00 noon Christmas Day to 6.00pm Boxing Day in 2018 and each alternate year thereafter.
18.Notwithstanding other Orders, the children shall spend time or live with each parent over the Easter periods as is agreed by the parties in writing, and failing agreement:-
(a)with the husband from 11.00am Easter Sunday until 11.00am on the following Tuesday in 2018 and in each alternate year thereafter and from 11.00am Good Friday to 11.00am Easter Sunday in 2019 and in each alternate year thereafter; and
(b)with the wife 11.00am Good Friday to 11.00am Easter Sunday in 2018 and each alternate year thereafter and from 11.00am Easter Sunday until 11.00am on the following Tuesday in 2019 and each alternate year thereafter.
19.If as a consequence of these Orders the children are to spend Father’s Day with the wife over that weekend, then such time shall with the wife shall cease and the children shall spend time with the husband from 5.00pm on the Saturday before Father’s Day until 9.00am or the commencement of school the following Monday.
20.If as a consequence of these Orders the children are to spend Mother’s Day with the husband over that weekend, then such time with the husband shall cease and the children will live with the wife from 5.00pm on the Saturday before Mother’s Day until the following Wednesday or Friday depending upon whether it is a week one or week two.
21.For the purpose of changeover, other than is specified in these Orders:-
(a)Where possible changeovers shall occur at the children's school;
(b)If the changeover is not reasonably feasible at the children's school;
i.the husband shall collect the children from the wife's home at the commencement of his time with them; and
ii.the wife shall collect the children from the husband's home at the conclusion of the husband’s time with them.
22.Such other and alternative times as is agreed in writing between the parties.
Communication
23.When the children are living with or spending time with a parent, the children shall communicate via telephone, Facetime or Skype (or similar electronic means) with the other parent as follows:-
(a)Mondays from 8.00pm to 8.15;
(b)Wednesdays from 8.00pm to 8.15pm;
(c)Or such similar times or other times notified reasonably in advance having regard to children’s extra-curricular activities, such as sport, dancing, music etc., and their bedtime.
and that the parent with whom the children are spending time with facilitate such communication.
24.At a time agreed by the parties in writing or in the event that there is no agreement on or after 30 May 2019, the husband may purchase and maintain at his own expense a mobile telephone for each of the children to enable them to communicate with their parents.
Injunction
25.Each party be and is restrained from:-
(a)making negative, abusive or demeaning comments about the other party or his/her family or friends in the presence and/or hearing of the children or either of them and ensure other members of that parent’s household do not do so;
(b)discussing these proceedings with the children or in the presence and/or hearing of the children or either of them; or
(c)showing any document connected with these proceedings to the children.
26.Neither parent shall commit the children to an extra-curricular activity during a period when the children will be living with the other parent, without first discussing the activity with the other parent and obtaining that parents’ consent to such activity.
Travel and Passport
27.Either of the parents shall be at liberty to take the children outside of the Commonwealth of Australia for the purposes of a holiday, subject to:-
(a)The travelling parent providing the other parent with at least sixty days (60) days’ notice of their travel plans including dates and times of travel, details of airline or shipping company, flight or cruise number/s, scheduled arrival and departure times, expected accommodation in each place at which the children will be staying overnights and (if reasonably available) telephone numbers of such locations where the children will be staying;
(b)The overseas travel to be in times the children would otherwise spend with the travelling parent unless otherwise agreed in writing by both parties. IT IS NOTED that in the event that the travel is to be to North America and/or Europe or other long distance destination the travelling parent may request additional time for such travel provided he/she offers make up time. Such request must not be unreasonably refused;
(c)The travelling parent shall arrange for the children to contact the non-travelling parent at least once per week at reasonable times; and
(d)Any overseas holiday to be taken by either party with the children shall be only taken to those countries listed in Schedule 2 to the Family Law (Child Abduction Convention) Regulations 1986 with the exception of stopovers where the children do not leave the airport terminal, unless otherwise agreed in writing by the parties.
28.As to a passport for each of the children:-
(a)Each parent shall within fourteen (14) days of request sign all documents and papers to enable the issue of a passport for each of the children and, when needed the renewal of a passport for each of the children;
(b)Such application/s shall include that the passport is to be delivered to or collected by the wife;
(c)Unless otherwise agree in writing, within seven (7) days of receipt of the each of the children’s passport the wife shall deliver such passport/s, together with a copy of this Order, to Crawford Ryan Lawyers Pty Ltd, or to such other Solicitor as is agreed in writing between the parties; and
(d)Such legal practitioners shall hold the passports for both the husband and wife and shall not release the passport or passports other than in accordance with these Orders, other Orders of a Court exercising jurisdiction under the Family Law Act 1975 (Cth) or in accordance with the written directions of both parties.
29.Unless otherwise agreed between the parents in writing, the wife and husband are permitted to travel interstate with the children during periods in which the children are living with them provided that the travelling parent provides the other party with fourteen (14) days’ notice (or such other notice period as agreed) of their travel plans including dates and times of travel and contact details for the duration of the trip.
30.In the event that a parent requires the children’s passports for identification or similar purposes (‘the requesting parent’), the other parent shall do all acts and things necessary to have the children’s passports released to the requesting parent.
31.The passports are to be returned to the Crawford Ryan Lawyers Pty Ltd or such other Solicitor as is agreed in writing between the parties, within seven (7) days of use by one or other parent.
32.The parents shall do all acts and things and sign all documents necessary to renew each of the children’s passports not less than six (6) months before the relevant date of expiry.
Generally
33.Pursuant to s 65DA(2) and s 62B, of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
34.Within sixty (60) days from the date of these orders each the husband and wife are requested to agree in writing to a single general medical practitioner or practice to be used by and for each of the children (except in the case of emergency):-
(a) The Court requests the Independent Children's Lawyer assist the parties in reaching such agreement;
(b) In the event that the parties are unable to reach such agreement the Court gives leave for either party or the Independent Children's Lawyer list this issue before Benjamin J, or if he is not readily available another judge of the Family Court, to determine the question of a general medical practitioner or practice for the children; and
(c) The application for leave shall be made by way of an application in a case supported by a short affidavit and written submissions. Any response/s shall be by way of a response to an application in a case supported by a short affidavit and written submissions. Such application will be determined in Chambers on the papers unless a request is made in the application or response for a short hearing.
35.Such leave shall be available for twelve (12) months from the date of these Orders.
36.The appointment of the Independent Children’s Lawyer is continued for a period of two (2) years from the date of these Orders.
37.All outstanding parenting issues be and are dismissed except any issue arising from the request that the parties appoint medical practitioners (for a period of twelve (12) months) and as to costs.
38.Any remaining costs applications as between the parents relating to the parenting proceedings to be made in accordance with the Family Law Rules 2004 (Cth).
39.BY CONSENT the husband and wife shall each pay to the Legal Aid Commission of New South Wales the sum of $5,526 by way of agreed costs of the Independent Children's Lawyer less any composite amount one and/or other parent has paid to the Commission.
40.Such costs to be paid at the time of payment of money pursuant to the property orders or six (6) months from the date of this Order, whichever is the earlier.
41.At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
42.Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
PROPERTY ORDERS
1.Within sixty (60) days from the date of these orders the husband shall pay to the wife the sum of $1,463,275.00.
2.Upon payment of that sum and release of the wife from the Viridian loan to the Commonwealth Bank the parties shall to do all acts and things and sign all documents necessary to transfer the wife's interest in the K Street, Suburb T (‘the property’) to the husband.
3.The husband shall indemnify the wife in respect of all liabilities which may be secured the property including, Council and Water Rates and the Viridian loan to the Commonwealth Bank in the name of both parties.
4.Within sixty (60) days from the date of these Orders the husband shall secure from the Commonwealth Bank and provide evidence to the wife of a release of her personal covenants in respect of the Viridian loan.
5.Within twenty one (21) days of the date of these Orders the husband do all things and sign all documents necessary to transfer to the wife the Japanese motor vehicle registration number …, which is in the wife's possession.
6.Subject to these Orders and as against each other the parties retain all other property in their respective ownership, possession and/or control, including but not limited to the following: -
(a) funds in any financial institutions in that party’s name;
(b) the husband shall be solely entitled to the bequest to him arising from the estate of his late father;
(c) their respective superannuation entitlements;
(d) personal effects, jewellery, household contents in their respective possession or control, motor vehicles and shares in public companies.
7.The husband shall be liable for the debts in his name and the wife shall be liable for debts in her name as were as disclosed in the draft balance sheet (Exhibit F29 and M12).
8.In the event that the husband does not pay to the wife the amount due to her within the time provided by these Orders, leave is granted to the wife to apply to this Court for mechanical orders for the sale of the property to enable payment NOTING that the effect of these Orders is intended to create an equitable charge or lien over the property securing the wife’s entitlement to the property settlement orders.
9.The wife’s application for spousal maintenance is dismissed.
10.The wife’s application for a departure from a Child Support Assessment is dismissed NOTING that such application was not argued nor was it heard on its merits.
11.All extant applications, other than any applications for costs, are dismissed.
12.Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth).
13.At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
14.Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Guzniczak & Rogala has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
FAMILY COURT OF AUSTRALIA AT HOBART FILE NUMBER: SYC 2420 of 2014
Mr Guzniczak Applicant
And
Ms Rogala Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
1.Mr Guzniczak (‘the husband’) and Ms Rogala (‘the wife’) married in August 2003 and separated in April 2014. There are two children of their relationship, namely B (‘the son’) who is aged eleven and C (‘the daughter’) who is aged nine years (collectively ‘the children’).
2.In a letter dated 16 April 2016[1] Dr FE, who knows the husband and has seen the son, described the parents’ conflict with a degree of understatement, saying:-
His [The son’s] parents have gone through a very bitter separation and communicate poorly.
[1] Exhibit M5.
3.Unlike Dr FE, I have seen each of the parties and heard their evidence and the evidence of the other witnesses. These parents have been in conflict for many years and that conflict pervaded their relationship with each other and with their children.
4.The husband began taking legal advice on family law issues as early as 2010 or 2011. He continued to take such legal advice, including extensively seeking advice and assistance immediately before and after separation in April 2014. He collected and collated evidence from about 2009 and 2011, in anticipation of proceedings. That evidence includes his notes in his diaries from 2009 to 2014, statements made to and recorded by health care professionals, including with one a request that she notify child protection authorities.
5.The husband put money aside in the bank account/s of his mother and had placed $10,000 in cash in his sister’s safe. His approach to the task of collecting evidence was methodical and calculated, such as the making of a secret audio/visual recording of the wife which was also placed in his sister’s safe for some years. I find that the husband was at times manipulative, given his propensity to exaggerate and to undermine the wife with medical practitioners, in particular Dr FK. The wife was oblivious to his collection of evidence and the obtaining of family law legal advice.
6.The parties’ relationship began to deteriorate after the birth of the daughter in May 2008. The nature and the frequency of the parental conflict exponentially increased from then until April 2014. This fragmentation of their relationship was marked by mutual arguments, disrespect and petty point scoring. The notion of parental alliances to meet the needs of the children was abandoned as each parent pursued their own particular parenting approach often rejecting that of the other parent.
7.There were some episodes of violence by the wife to the husband. This was in the light of each party knowing ‘the buttons to push’ to achieve a reaction from the other parent. All the while the husband was collecting material for later use.
8.Neither of these parents respects nor trusts the other parent.
9.When these children become adults and reflect upon the nurture, love and security to which they were entitled, they will instead remember the conflict, dishonesty and emotional abuse that each of these parties had visited upon each other and the children.
10.Each parent bears responsibility for this outcome.
11.These parents disagree about arrangements for the children, parenting approaches, treatment of the children and the like. They each point their respective fingers at the other and entirely blame the other for the conflict that exists between them. Each parent displays limited or no insight into their own participation in that conflict. These children have carried the burden of the conflict since before 2014 and are likely to carry this burden and its collateral damage to them into the future.
12.Consequently, the parties, particularly the husband, have placed voluminous materials before the Court and have raised issues about the veracity of a large number of facts. They placed before the Court a large number of factual issues to be determined, many of which had limited relevance given the position each party took regarding parenting.
13.Unsurprisingly, the parents have also been unable to resolve property issues arising between them. As a consequence a significant amount of their hard won resources have been frittered away in these proceedings. I will firstly deal with parenting issues and then property.
THE ISSUES
14.The parenting issues are:-
(a)With which parent should the children primarily live?
(b)Should the primary resident parent have sole parental responsibility, should it be equal shared responsibility or some variant of one or other primary determination?
(c)Once residence is determined then what time and how should the children spend time with the other parent? That issue is substantially agreed;
(d)A significant sub-issue are the allegations of violence, abuse and neglect by the wife, some of which are admitted, and how that impacts upon the substantive determinations;
(e)Underlying the determinations is the issue of the entrenched conflict between these parents; and
(f)Which high school the children should attend and whether the husband should have sole responsivity in respect of education?
15.The property issues involve the determination of the property of the parties, including the recent bequest to the husband from his late father’s estate, the respective contributions and the other factors having regard to the parenting determinations.
Orders sought by the parties
16.The husband orders that:-
(a)he have sole parental responsibility for the children; and if that is not adopted then there be equal shared parental responsibility, but that he solely determine questions of health and schooling; finally, if the Court determines unconditional equal parental responsibility that the husband be permitted to enrol the son in either the School 2 in Suburb O, School 1 in Suburb J and School 6 in Suburb M and the daughter in School 5 in Suburb M and School 4 in Suburb O;
(b)presumably if the husband has sole parental responsibility for the children he seeks an order to authorise the children’s schools to provide the wife with relevant schooling information;
(c)that the parents share the children’s artwork, awards and achievements, and that those works remain the property of the children. That I have to deal with this part of the application is a waste of time. I decline to make such an order. This is because the children’s artwork, awards and achievements are theirs to do with as they please. This Court should not unduly interfere in that area. If a child wins an award it is hers or his. If they make artwork or the like and give it to one parent or another, so be it. That is what children do and the idea that this Court is asked to make such an order is frankly ridiculous;
(d)perversely, given his approach in 2016, the husband seeks an order against himself that he advise the wife of the children’s attendance upon any medical practitioner and advise her of any medication prescribed or treatments recommended for the children from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover;
(e)both parents be restricted from providing supplements or natural remedies to the children without the written consent of the other parent and that both parents be restrained from discussing any diet or restricting any food group from the children unless on the recommendation of the children’s paediatrician. Given the facts of this case and the findings I have made in these proceedings, I am unwilling to make one or both of these orders. This is because inevitably these parents will regularly feed these children and may from time to time say things such as ‘what would you like to eat?’ or ‘You can’t have ice-cream for breakfast’ or a plethora of other examples. This form of order simply sets the parents up to fail and ensures that these proceedings will continue in one form or another until each child attains the age of 18;
(f)each parent is restricted from enabling the children to travel interstate without either written agreement or the giving of notice, including dates and times of travel and contact details for the duration of the trip;
(g)if agreed between the parents in writing, and pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) (‘the Act’) the wife and husband are permitted to remove the children from Australia for limited overseas travel once per year, provided there is at least three (3) months’ notice and a detailed itinerary. Further, that such trips only be to States who have adopted the Hague Abduction Convention;
(h)to the effect that he hold the children’s passports and birth certificates;
(i)the children live with him;
(j)the children spend substantially equal time with the wife over school holidays, plus special days such as alternate Easter, Mother’s Day and children’s birthdays and alternate Christmas days. The children to spend time with the husband on his birthday;[2]
[2] I have not made orders for time for the birthdays of the children and their parents. Those dates will fall where they fall in each year. The birthdays of the parties and the children recur in March, April and May of each year. They will at times fall in Easter, school holidays, and around Mother’s Day and Anzac Day. With orders for school holidays, Easter, Mother’s Day and five days and nine days per fortnight with each parent during school term, to try and finesse birthdays into this period would be a nightmare. Such orders are likely to lead to yet further confusion and conflict between these already conflicted parents. It could set these parties up to breach such complicated orders. Consequently, I do not intend to further hamstring these children’s lives. Birthdays will fall where they fall; each parent may celebrate the child’s or their birthdays the week before or after depending on how the school year and Easter falls. Alternatively, these parents could talk to each other and pretend to co-operatively parent.
(k)during school terms on a fortnightly basis that they live with the wife Wednesday to Friday in week 1 and Friday to Monday in week 2 or, if that is not adopted, week about;
(l)that changeover shall be at school or from the house where the children are presently residing or spending time.
(m)the children have either Facetime or Skype communication with the other parent on Monday and Wednesday evenings. Further, that when the children are older the husband be permitted to provide each of them with mobile telephones, to enable them to communicate with their parents as they wish. If the children are travelling overseas the travelling parent shall facilitate electronic communication twice per week;
(n)That neither party:-
i)make any comments about the other party in the presence and/or hearing of the children and ensure other members of the household do not do so;
ii)discuss these proceedings with the children or in the presence and/or hearing of the children or either of them;
iii)show any document connected with these proceedings to the children; or
iv)commit the children to an extra-curricular activity during a period when the child/ren are living with the other parent, without first discussing the activity with the other parent and obtaining their consent to such activity.
(o)At other times as agreed between the parties in writing.
17.Finally the husband seeks an order that the wife enrolls in and completes an anger management course, or attends upon a psychologist, within 28 days of the date of these orders and provides evidence of such completion or attendance with the psychologist.
18.Given the conflict that I have discussed throughout these reasons, I have made order for each of the parents to complete a parenting program course, if they have not already completed such a course. Given the wife’s anger related to her cohabitation with the husband and having regard to her approach since separation, I do not intend to order that she attend an anger management course. In any event she is now taking treatment from a psychologist.
19.The wife sought the following orders:-
(a)the children live with her;
(b)that the parents have equal shared parental responsibility for the children subject to the wife having sole parental responsibility regarding the son’s health;
(c)the children spend time with the husband:-
i)during school term weekly from after school Thursday to 5.00pm Saturday.
ii)the children spend time with the husband for one half of the school holiday periods;
iii)alternate year Christmas Days and Easter;
iv)specific arrangements for Mother’s Day, Father’s Day, the children’s birthdays and parents birthday
v)other times by agreement;
(d)changeover arrangements;
(e)communication arrangements;
(f)injunctions as to mutual non denigration and non-discussion of these proceedings, including showing the children documents from these proceedings, the attending of some school functions at times when the children are spending time or living with the other parent, and orders limiting communication between the parents except as is necessary for parenting arrangements or in the case of an emergency;
(g)the issue of passports and the holding of passports by the Court for the children;
(h)authority for each parent to obtain information from the children’s schools. This order seems superfluous, give the mother’s application for equal shared parental responsibility;
(i)specific orders that the son be enrolled in both School 3 in Sydney and School 2; and
(j)conditional permission for each parent to take the children on holidays outside Australia.
20.The Independent Children’s Lawyer submitted that, given the conflict and the likelihood of it continuing over at least the next few years, his appointment should be extended for two years from the date that final orders are made. He said:-[3]
So in the substantive matter, your Honour, I have emailed your associate a minute of order. And I’ve spoken to my friends about that. I haven’t provided them with that minute of order, but I’ve explained to them what I’m proposing. In brief, your Honour, what I’m suggesting is guided largely by the single expert. It is very much, in the parental responsibility domain, what I had suggested in my case outline, that is that the parents have equal shared parental responsibility, subject to a mechanism being in place for the appointment of a paediatrician, who would then oversee medical issues in relation to the children. I’m not anticipating that that would be a delegation of the judicial power of the Commonwealth, or overtake the parents’ responsibility otherwise, but simply that that person would be the person to whom they would go to for advice.
So I’m not suggesting that that person had any power to impose decisions on the parents, but that that is the person .... I’m also suggesting that my appointment be extended for a period of two years following judgment, not to act as arbiter, but in the event that the parents were not able to see the paediatrician that they had agreed upon and they were unable to decide, that I would be in a position to break that deadlock and simply appoint a paediatrician, in consultation with the parents, so largely to assist the parents, again, rather than being in any arbitral position with the parents. And that as a role to assist the parents to keep them out of this court, in the event that they do struggle to make a decision around those issues. And I would arrange mediations and other things, from an alternative dispute resolution perspective, to attempt to help the parties in that.
[3] Transcript of Proceedings dated 6 March 2017 – page 473 and Exhibit ICL5 – relating to medical treatment.
21.I have accepted those submissions and I am not delegating powers to the Independent Children's Lawyer, but I am enabling him to assist as a ‘safety valve’ at least over that period. Neither counsel for the parties made submissions contrary to that extension of time. Further, given the evidence, the findings of fact and the matters which I have addressed in these reasons, I am satisfied that such a course ought to be adopted. It is also likely that such an extension of appointment time could reduce the need for the children to be exposed to further and possibly unnecessary litigation without such a safety valve.
22.As to the issue of which high school the children should attend the Independent Children's Lawyer submitted that:-[4]
It seemed that while there had been some disagreements in relation to school, and both parents had different aspirations, the parents had conceded to each other that the children would be following down more or less a particular track. So I wasn’t so concerned that they wouldn’t be able to come to an agreement on schools for the children. I may be wrong, your Honour, but that was simply my assessment of what I had heard with them.
[4] Ibid.
23.There was no agreement as to schools and I have made a determination as set out later in these reasons.
24.As to the substantive parenting issues, the Independent Children's Lawyer submitted that the following orders ought to be made:-
(a)the parents have equal shared parental responsibility for the children;
(b)the parents shall consult such paediatrician as is agreed between them, and failing agreement as is nominated by the Independent Children’s Lawyer after consultation with the parents, with respect to the ongoing medical and dietary needs of the children and will follow all treatment and dietary recommendations and further referrals to other treating medical and allied practitioners made by such paediatrician (‘the children’s paediatrician’);
(c)other than in a medical emergency or as referred by the children’s paediatrician, neither parent may take the children to any health practitioner for the purposes of treatment or assessment without the prior agreement of the other parent;
(d)forthwith upon the appointment of the children’s paediatrician pursuant to the previous Order, the parents will provide such person with copies of some nominated expert medical reports and the parenting orders;
(e)if they have not already done so, the parents forthwith arrange a diagnosis and treatment for the son with a named medical service provider and that the provider be given copies of the orders and nominated expert medical reports;
(f)that the parents attend and complete the V Program, or such other program or therapist nominated by the Independent Children’s Lawyer in the event that the parties are not accepted by H Group, and, if recommended, that the children to participate in therapeutic counselling. That the service provider be given copies of the orders and nominated expert medical reports;
(g)the children live with the mother;
(h)the children shall spend time with the husband during school terms in a two-weekly cycle from the conclusion of school on Wednesday until Friday morning in week one and from Friday afternoon week 2 until the following Monday morning;
(i)the children spend time with the husband for one half of the school holiday periods, with special arrangements over the end of year holidays until the younger of the children turns 12;
(j)special arrangements for Christmas Day, Easter, birthdays, Mother’s Day and Father’s Day;
(k)at other times as agreed between the parties in writing from time to time;
(l)arrangements for electronic communication twice per week and the provision of mobile telephones when the children are older.
(m)changeover arrangements;
(n)injunctions against each parent as to non-denigration, providing information about these proceedings and unilaterally enrolling the children in extracurricular activities;
(o)either parent is permitted to remove the children from the Commonwealth of Australia as agreed and failing agreement for periods that fall entirely within times when the children are in that parent’s care; and
(p)conditionally permitting the parents to take the children out of Australia and the provision and safe keeping of passports for the children.
BACKGROUND
25.The husband is aged 58 years and works in the commercial sector.
26.The wife is aged 43 years and says she works school hours in the financial sector. Both the husband and wife assert that she is in good physical health.
27.The wife says the parties commenced living together in March 2001 at the husband’s property at Unit 4, L Street, Suburb T (‘Unit 4’). The husband contends that they commenced living under the same roof, but not in a de facto relationship until the second half of 2002. The evidence of both parties is that they met in about 2000. It is not in issue that the parties commenced living under the same roof in March 2001.
28.The husband asserted that he owned and lived in Unit 4 and that the wife lived in Unit 1, L Street, Suburb T (‘Unit 1’). He says that the wife moved into his home unit in March 2001 and she paid him $100 per week rent, for about one year. He says that the wife’s tenancy on her unit had ended in about 2001, and that the joint residence occurred in that circumstance. Further, that the wife and he each purchased groceries and shared household duties, and that they kept their finances and financial affairs separate. He says that the second bedroom of that Unit was dedicated to the wife’s belongings and that the wife asserted to him that she did not want to be in a de facto relationship.
29.The husband asserted that the wife maintained contact with her former boyfriend and was, as it were, leaving the door open for that relationship to be revived.
30.The wife contends that she arranged for a named friend of her sister to move into her Unit, she was upset in cross-examination about the husband’s allegation that they lived together in some form of financial arrangement. I prefer her evidence about this date. The husband’s explanation is implausible.
31.There is a concession that the relationship was a de facto relationship by late 2002. However, given the concerns I have about the quality of both parties’ evidence and particularly that of the husband and the objective evidence supporting the wife’s contentions, I am satisfied that the parties’ cohabitation as a couple and commencement of joint contributions commenced in March 2001.
32.For the reasons below, I accept the evidence of the wife that she paid to the husband $100 per week from about March 2001 until the parties married.
33.At March 2001 the husband had the following assets:-
(a)Unit 4 Suburb T;
(b)savings accounts totalling approximately $350,000;
(c)superannuation of approximately $17,820;
(d)shares in publicly listed companies worth approximately $4,735;
(e)a car;
(f)the furnishings and contents at his apartment;
(g)a debt to his parents $20,000 as at June 2002 (the husband conceded this).
34.The wife asserted that she had savings of $40,000 with the Commonwealth Bank, a motor vehicle of unknown value, unspecified shares and superannuation entitlements.
35.The husband commenced work with his present employer in April 2003.
36.The parties married in August 2003.
37.In 2005 the husband sold Unit 4 for $655,000 and applied that amount to the acquisition of K Street, Suburb T (‘the matrimonial home’), which cost $1,300,000.
38.The parties depose that this was purchased in joint names.
39.The wife applied her savings toward that purchase. The husband contends this was $175,000 and the wife asserts she saved $250,000 between March 2001 and the date of that purchase. Counsel for both the husband and wife submitted that from cohabitation to separation the contributions were equal. I have accepted and adopted those submissions,
40.In April 2006 the son was born and he is now aged 11. The daughter was born two years later and is now aged nine. 9
41.The parties undertook marriage counselling from 2009 to 2014. The husband asserts that the wife worked interstate for about 19 days in 2010, about 12 days in 2011 and about 7 days in 2012.
42.The wife travelled with friends to New York for about a week in April 2011.
43.In 2012 the parties substantially repaid the mortgage secured over the matrimonial home to the Commonwealth Bank.
44.The wife received a redundancy payment of $80,000, which she says she applied to the parties’ property. She says she saved a further $110,000 over her years of work.
45.The wife complained that the husband was controlling or her. The husband denied such controlling behaviour.
46.In early 2013 the husband reduced his working days to four days per week.
47.Between 2012 and 2014 Dr FK treated the son, and the wife says she sought a second opinion. She emailed the husband in March 2014 in that regard.[5]
[5] Wife’s trail affidavit filed 22 December 2016 paragraph 229
48.The husband asserts that the wife assaulted, abused and/or threatened him, at times in the presence of the children, in November 2009; March 2010; February 2011; 27 May 2011; 29 May 2011, twice on 4 August 2011; 16 November 2011; 26 November 2011; June 2012; 8 February 2013; 9 March 2013; 27 March 2013; 1 May 2013; 4 June 2013; twice on 13 July 2013; July 2013; 8 September 2013; 14 February 2014; 17 February 2014; 10 March 2014; 6 April 2014; 8 April 2014 and 18 April 2014. The wife admitted some of these events, and except as to their extent and provocation, others were denied.
49.The wife asserted that the husband at times stood over her, cornered her or blocked her entry.
50.The husband asserted that the wife force fed the daughter on 10 February 2013 and put the child in a car for about one hour, and that she yelled at him when he tried to intervene. The wife gives a much different history of that alleged event.
51.The husband read, recorded and / or copied a text and emails between the wife and members of her family and has used those in these proceedings. These otherwise private communications reflect upon the poor relationship between the parties at that time, the wife’s unhappiness in the relationship and the husband’s pursuit of information and material which he has used in these proceedings. He alluded to a text on 12 February 2013, and emails in April 2013, and on 29 April 2013. I am satisfied that the husband did not have the wife’s permission to access this information. This reflects badly on the husband, and as I indicated in these reasons, he exaggerated, prevaricated and used his version of events to promote his parenting application.
52.His early access to legal advice, the performance on the video recording the undermining of the wife with the children’s paediatrician, the creating of records with medical practitioners, police and the like undermine the veracity of his evidence and has cause me to have concerns about his willingness to enable the children to continue to have a close relationship with their mother. This concern was added to by the secretive and manipulative approach adopted by the husband in having the son examined and treated by medical practitioners in 2016 in the absence of the wife’s knowledge. His explanation that it was open for the Independent Children's Lawyer to inform the wife know, given the husband’s partial disclose to the Independent Children's Lawyer is fabricated to hide his underlying forensic purpose.
53.The husband spoke to a police officer in March 2014, but did not proceed with any further action in respect of alleged assaults inflicted by the wife on the husband.
54.The husband asserted that the son complained that the wife assaulted him on 6 March 2013 about which the wife gave an innocuous explanation.
55.The husband asserted that the wife threatened to lock the daughter in a car on 23 March 2013, and made another threat to the child on 24 March 2013.
56.The husband says that on 8 May 2013 he repaid his parents the advance of $20,000 made in 1997. I have discussed this repayment elsewhere in these reasons.
57.The husband says that:-
(a)on 29 June 2013 the wife threatened self-harm;
(b)on 23 July 2013 the daughter woke up with concerns about her parents’ relationship;
(c)on 14 December the wife popped the son’s balloon as an act of discipline;
(d)on 8 April 2014 the son behaved aggressively to him;
(e)on 16 April 2014 his son hit him with his new tennis racket;
(f)on 25 April 2014, after separation, the daughter said to him words to the effect “R says to say to you that you’re a horrible person and that she hates you”; and
(g)on 6 June 2014 the daughter reported to him that “I don’t want to be at Mumma’s I want to be with you … R is mean to me, she pushes me out of my bed onto the floor and makes me sleep there and I get cold.”
58.These are examples of the husband’s long-term collection of information and evidence, which I find, was to be used by him to promote these anticipated proceedings.
59.The wife says the parties separated under the same roof on 6 April 2014.
60.The husband contacted the police on 17 April 2014 and an ex parte violence order was made.
61.The wife was arrested by the police and taken to a police station where she was interviewed.
62.This order was discharged on May 2014. I have serious concerns about the husband’s assertions that he was fearful of the wife and I am concerned that this proceeding was for the purposes of becoming the primary parent of the children and limiting the children’s time with the wife. I have come to this conclusion having regard to the evidence before me and the findings and comments set out in these reasons.
63.The following day on 18 April 2014 the husband says the parties separated. The wife left the house with the children. The husband changed the house locks.
64.The husband retained occupation of the matrimonial home and the wife has lived with the children in rental accommodation since that time.
65.These proceedings were commenced by the husband in the Federal Circuit Court on 24 April 2014 and were transferred to the Family Court in August 2014. Interim parenting orders were made and a partial property order was made on 27 October 2014.
66.After separation there was difficulty in the parents arranging time between the children and the husband. The wife did not enable the children to visit their paternal grandmother prior to her death on 28 May 2014, which reflects poorly on the wife at that time. She did however take the children to the paternal grandmother’s funeral and the husband complained that their involvement was not to the level he desired. Given the proximity of the death to the parties’ separation and the level of hostility between the parties this was not unexpected.
67.Neither parent can take pride in their behaviour at and around that time. The wife was given no credit for taking the children to the funeral.
68.On 9 June 2015 the husband completed the ‘Keeping Kids in Mind’ course. Based on his evidence as to his parenting approach both before and after completing that course, it seems that the husband learnt little from this course and his attendance was more likely for appearance than to improve his parenting.
69.On 10 May 2016 the husband's father died and the husband became entitled to a share of his late father’s estate.
70.In late 2014, pursuant to orders, the parties engaged a paediatrician, Dr FH, who in January 2015 in turn diagnosed the son with Asperger’s/Autism Spectrum Disorder, Borderline Intellectual ability, mild language delay and family issues. The son was referred to a psychologist and had tutoring.
71.Since that time the parties have been unable to agree on the best treatment for the son. The have argued about the children’s involvement in some extracurricular activities.
72.The wife has views about dietary needs of the children, particularly the son, and the husband disagrees with her approach.
73.In 2016 the husband, without notice to the wife, sought additional medical advice for the son. He took him to see to see a child psychiatrist for assessment without notice to the wife.
74.At the same time as the parties had arranged for the son the see his agreed paediatrician, Dr FH, the husband was arranging for the son to see other medical practitioners without notice to Dr FH.
75.This is in the context that the son had an epileptic seizure in late April 2016 and saw Dr FH on 30 March 2016.
76.On 18 April 2016 the husband took the son to see Paediatrician, Dr FM without notice to the wife. The child also saw Associate Professor FN who provided the husband with a report dated 13 August 2016 as annexed in the husband's affidavit. The wife was provided with no notice of the appointments or the report prior to reading the husband's December 2016 affidavit. On 19 December 2016, shortly before Christmas, the wife became aware of the husband organising for the son to attend upon appointments with Associate Professor FN.
77.In 2016 Family Therapy was arranged with Dr FA. The wife sought counselling for the children, as she believed the children were not coping with the parties’ separation. The husband did not support this counselling. In August 2016 the wife made an appointment for the children to meet with Ms AB for counselling and the husband was invited to attend.
78.On 1 January 2017 the wife became aware of the extent of the doctors that the husband had been taking the son to see without her knowledge or consent.
79.These parties could not agree on whether it was night or day. They have put in issue a plethora of facts and extensive histories. Inevitably, given the nature of this litigation and despite my best endeavours, I will make minor mistakes as to issues of fact. No particular fact is determinative of the outcome of this proceeding.
80.The detail to which the parties, particularly the husband have addressed each issue has imposed a significant time burden in terms of writing these reason, as such they are well outside the time to which reasons are and should generally be delivered.
81.Any statement of fact should be regarded as a finding of fact unless the contrary is clear from the context of the statement.
82.The parries made written submissions as to the children’s schooling which were submitted pursuant to a direction made by the Court.
83.An application was made by the Independent Children’s Lawyer to reopen the case in relation to correspondence with regards to the events in May 2016. Leave to reopen was declined on Friday 10 March 2017.
THE EVIDENCE
84.The husband relied upon the following documents:-
(a)his amended initiating application filed 31 October 2016;
(b)the outline of case prepared by his counsel dated 21 February 2017 and filed 24 February 2017. This included the proposed orders in the minute of order attached to his case outline which set out his current position;[6]
(c)his affidavit filed 6 December 2016 (‘the husband’s trial affidavit’);
(d)his proof of evidence made in February 2017;[7]
(e)his financial statement filed 13 February 2017 (‘the husband’s financial statement’);
(f)an affidavit of Mr AD filed 14 August 2014;
(g)Joint balance sheet tendered after hearing (‘the joint balance sheet’);[8] and
(h)written submissions prepared by his counsel dated 14 March 2017 relating to the high schools the children should attend.[9]
[6] Exhibit F1. This was treated as a submission and not as evidence of the facts asserted - unless the fact was not in issue or was addressed in the evidence and the subject of a finding.
[7] Exhibit F4.
[8] F29. This was also marked M12, each party attributed the same value to each item and I have treated them as agreed facts.
[9] Exhibit F30. This was treated as a submission and not as evidence of the facts asserted - unless the fact was not in issue or was addressed in the evidence and the subject of a finding.
85.The wife relied upon the following documents:-
(a)her amended response filed 13 December 2016;
(b)her case outline document prepared by her counsel filed 15 February 2017;[10]
(c)her affidavit filed 22 December 2016 (‘the wife’s trial affidavit’);
(d)her financial statement filed 16 February 2017 (‘the wife’s financial statement’);
(e)an affidavit of Ms AE filed 23 December 2016;
(f)an affidavit of Ms AF filed 22 December 2016;
(g)an affidavit of Mr AG filed 21 February 2017;
(h)an affidavit of Ms AG filed 26 February 2017;
(i)outline of wife’s closing submission prepared by her counsel and tendered on the final day of trial;[11]
(j)the Joint balance sheet[12] (‘the joint balance sheet’), and
(k)written submissions prepared by her counsel dated 15 March 2017 relating to the high schools the children should attend.[13]
[10] Exhibit M1. This was treated as a submission and not as evidence of the facts asserted - unless the fact was not in issue or was addressed in the evidence and the subject of a finding.
[11] Exhibit M13.
[12] Exhibit M12 – this was also marked F29, each party attributed the same value to each item and I have treated them as agreed facts.
[13] Exhibit M15. This was treated as a submission and not as evidence of the facts asserted - unless the fact was not in issue or was addressed in the evidence and the subject of a finding.
86.The Independent Children’s Lawyer relied upon the following documents:-
(a)the case outline and summary of argument of the Independent Children's Lawyer dated 23 February 2017;[14]
(b)Child Dispute Conference Memorandum to Court.[15] This report was prepared by Family Consultant, Ms AJ on 20 June 2014;
(c)the psychologist expert report of Dr FG (‘the single expert’) dated 7 January 2017.[16] This had a brief biography of the single expert, and not issue was raised as to his qualifications;
(d)the psychological report of the single expert dated 28 February 2017.[17] This contained a section relating to raw data of his interview with the children which was left out of his 7 January 2017 report; and the children spend time with the husband;
(e)a minute of order regarding the children’s medical treatment.[18]
[14] Exhibit ICL1. This was treated as a submission and not as evidence of the facts asserted - unless the fact was not in issue or was addressed in the evidence and the subject of a finding.
[15] Exhibit F28.
[16] Exhibit ICL3.
[17] Exhibit ICL4.
[18] Exhibit ICL5.
87.At the end of the hearing I made consent orders in relation to appointing a paediatrician to treat the children and restraining the parties from taking the children to a doctor without letting the other party know.
THE WITNESSES
Mr AD
88.Mr AD provided evidence contained in his affidavit filed 14 August 2014, which was read into evidence without cross-examination.
89.This evidence was in the form of a cheer squad affidavit or a character reference.
90.I have given no weight to paragraph 5 as it is hearsay. Paragraph 6 is vague and self-serving on the part of the husband.
91.Given the concerns I have as to the quality of the husband’s evidence to me, I am not greatly assisted by reports of what was said to his confirmation sponsor, his Godfather Mr AD.
92.Mr AD provided evidence of the husband’s drinking habits when Mr AD was with him.
93.He also provides evidence of one occasion in May 2014 when the children expressed to him they were having fun with the husband.
94.Further, his evidence dealt with the sadness of the children attending a wedding and a subjective view of the husband’s friend in relation to the wife. There was also apparently some discourtesy in the precincts of this Court between this witness and the wife’s mother in June 2014.
95.Mr AD’s evidence has limited, if any, forensic value.
The husband
96.Shortly before the husband gave evidence there was an issue about the admission of further evidence on behalf of the wife. I rejected an affidavit by the wife, but allowed in an affidavit by the husband’s sister, Ms AG (‘the husband’s sister’), and his brother-in-law, Mr AG (‘the husband’s brother-in-law’), at least in part.
97.Time was given for counsel for the husband to take instructions.
98.A copy of the transcript of the evidence in chief of the husband was made available to the parties.
99.In chief the husband conceded that he had placed $10,000 in cash in his sister’s safe, which he asserted was from the sale of the motor vehicle. That $10,000 was paid back to him in cash by his sister in March 2016 and he has some $3,500 remaining which he kept in an envelope in his wardrobe. He did not disclose either the $10,000 held in the safe or the remaining $3,500 which he has in his wardrobe. He did not disclose that sum in his financial statement, saying he forgot. Given my overall assessment of the husband’s evidence and the particularity of his evidence I do not accept that he ‘forgot’. I am satisfied that this was money he sought to conceal from the wife in the context of these proceedings.
100.The husband’s sister asserted that the husband placed about $50,000 into their mother’s bank account in March and May 2014 and that the husband’s sister required him to take that money back in March 2016. The husband conceded that he was given the $50,000 by his sister and he questioned her as to whether the money was in fact his. His explanation was inherently implausible.
101.In his evidence the husband said that in March 2014 he deposited about $30,989 into his mother’s account. In the preceding May (2013) the husband had deposited $20,000 into his mother’s account. He was obtuse in relation to whether the money was a gift or a loan. He asserted that the money was needed by his parents although there was evidence, from the husband, that his parents between them had significant other funds available to them. I do not believe that this was a loan; I find that the husband was putting funds aside in the event that his marriage failed.
102.Of the $50,000 the husband said when he received it back he says he spent $41,000 on a skiing trip to Canada and taking the children to Disneyland and home maintenance. The husband disclosed the $9,000 balance in his financial statement.
103.In his cross-examination the husband conceded that he made an appointment to see Mr V, a solicitor, in 2011.
104.In cross-examination the husband agreed that in 2011 he saw a solicitor, Mr V, in relation to his father’s estate. He did not inform the wife of that meeting. When asked if he obtained family law advice from Mr V his answer was ‘absolutely’.
105.This was around the time that the husband, at least on one occasion, video recorded the wife during an argument. Interestingly, he asserted that this only occurred on one occasion and when pressed about a another occasion on 29 June 2011[19] he obfuscated and said it was simply a recording of the child and was not a recording of the wife. The husband was asked whether there were any other tapes and he initially declined. He was then taken to his own affidavit to a document headed ‘tape with [the wife]; 29 June 2011 8.15am’. This was described differently to the previous recording which was described as ‘videotape’. That tape was not provided. The explanation offered by the husband was that it was just one of his regular videos of the children in which he managed to collect some evidence which he put aside. It is not clear whether it was an audio tape or a videotape. His evidence is not clear in that respect. His explanation that it was ‘just one of his regular videos ...’ is incongruous in terms of the husband transcribing or partly transcribing the material.
[19] Page 43 of the annexures to the husband’s trial affidavit.
106.The husband’s explanations in relation to these events were inherently implausible. I am satisfied that he was not being frank in his evidence to the Court.
107.The husband video recorded the wife in their home on Thursday 4 August 2011, about two and a half years prior to separation.[20] The husband set up this audio video trap for the wife: the telephone was placed in a manner concealed from the wife and the husband placed himself in the centre of the screen being fully aware that he was being recorded and knowing that his wife was not aware of its existence. It was theatrical and manipulative behaviour. The parties had been in a relationship for many years and I am satisfied that the husband knew what ‘buttons to push’ to upset or aggravate the wife.
[20] The transcribed recording is annexure D to the husband’s trial affidavit – pages 38 to 43. The video recording is Exhibit F3.
108.In that recording when the wife first came into the kitchen the husband said to her ‘why are you angry?’ I am satisfied that he was baiting the wife.
109.The husband asked leading questions of the wife and it was put to him that he ‘goaded’ the wife. I accept that was the case.
110.I accept that the wife conceded, without knowing that she was being watched, that she had hit him twice. The husband asserted that he had been hit seven times, fully aware that their discussion was being recorded.
111.His demeanour in that video was significantly different to the demeanour which he exhibited in the witness box. In person he appeared as an assertive and determined person who would put his point of view and would not be deflected. In the video recording he played the role of the victim and I use the term ‘played’ given the circumstance of his entrapment of the wife.
112.The wife, not knowing that she was being recorded, asserted that the husband yelled all the time. I find that the husband conceded the yelling when he said ‘I am not yelling now’. The wife, not knowing that she was being recorded, observed this was the first time he had not done so.
113.The husband’s explanation to the Court was that he was going to use this recoding to demonstrate to the wife her poor behaviour. He said that he changed his mind. He did not show the recording to the wife nor did he tell her of its existence at that time. He had it placed safely away, in his sister’s safe at times, and produced it for the hearing. The wife discovered its existence when provided with the husband’s trial affidavit, shortly before the hearing.
114.In the recording the husband had highlighted areas which he clearly considered were of assistance to him and he put in capital letters the parts where he said the wife was yelling.
115.I accept the wife raised her voice. I do not accept that she was yelling.[21]
[21] Husband’s trial affidavit pages 38 to 43.
116.I am satisfied that this was a staged performance by the husband to try and collect evidence against the wife for use in anticipated later court proceedings.
117.Given all of the husband’s evidence, I conclude that he commenced evidence gathering for the purpose of anticipated family law proceedings from at least 2011 onwards. I am further satisfied that the husband undertook a least one further recording of the wife[22] to which I have earlier referred.
[22] Husband’s trial affidavit page 43 tape 29 June 2015.
118.The husband said that this August 2011 incident was a mild episode. I do not believe him. I am satisfied that if there had been regular occurrences as asserted by the husband he would likely have recorded these by either using an audio tape or a video tape. He did not do so.
119.Apart from the admissions of the two ‘hittings’, this is no more than a wife expressing exasperation with a husband at a time when the parties’ marriage was clearly failing.
120.The husband seemed to have no insight into his behaviour by making such covert recordings in the family home. At one part of the transcript he added the words ‘advancing’ to indicate the wife’s actions.
121.When I observed the recording there was no sign of the wife advancing in those circumstances. I raised this with counsel for the husband and she asked for it to be crossed out. I did so. However, this is an example of the husband’s, at times, exaggeration of evidence and this is an example of the husband adding to evidence.
122.Often during the course of the hearing the husband would be non-responsive to questions and would take the opportunity of making submissions in his own case. These were generally about what a good and decent husband he was and having often none too subtle adverse attacks upon the wife.
123.He made few, if any, positive remarks about the wife during the course of his evidence. The whole tenor of his evidence was that he was the better parent and that the wife was a poor parent, a disciplinarian, abusive to him, violent to him and abusive to the children.
124.The demeanour of the husband was of a very intense witness. He seemed angry at times. An example of this was in relation to his views of the wife in respect of the children’s diet:-
THE HUSBAND: … I think, as a fact of this case, this diet of [the son] became a big issue and [the wife]?, I suppose, is different to me in that she sees [naturopathic] alternative things as more important. I think she has always done that. I think this issue has become a big one particularly. However, if I look at all the things that the children need provided for them – schooling, sports, management of other health issues – day-to-day sort of health issues – all of the things that go with parenting, there are many things that co-operatively we have done that I think the single expert recognised in the report that he wrote and in the conversation – not the conversation, sorry, in reading that report, that had been done for the children and were working. This diet issue is a particular one that needs resolution. You asked me yesterday why I didn’t take it to [the wife]. I felt that her views were so strong on it that she wouldn’t listen to it, as she hadn’t listened to [Dr FK] previously. …
MS KENNEDY: Could you just explain to his Honour why, with an order for equal shared parental responsibility, it was appropriate for you to take your son to see a child psychiatrist without notice to the mother?
THE HUSBAND: Because [Dr FM] and [Dr FE] suggested that he should be reviewed by a child psychiatrist – one. And, two, because I felt that, given [the wife’s] dedication to the diet, her refusal to follow [Dr FK’s] requests previously, who was a paediatrician, that I needed a report or more evidence to present to her and her lawyers or to the ICL, who I had already written to and not had a response from, in the hope that the diet could be stopped. And if all of that failed, then I hoped that we would come to the Family Court and the Family Court of Australia would stop the diet because based
MS KENNEDY: So you?
THE HUSBAND: may I keep speaking please – because based on [the wife’s] behaviour in the past, I believed – and based on the kind of correspondence I always received from her lawyers – and I was right because exactly what I thought would happen, in the end did happen, and rule 15.55 was brought up. I believe that if I was shut down in trying to help my son, by [the wife’s] lawyers, and that the damage being done to [the son] – it never got in front of the family law court – that he would be left on that diet until he was 18 years of age because the child has already been told he will always be on the diet. So that is why I didn’t tell [the wife]. Because I didn’t have enough of a report based on the psychological impact and the physical impact on our son. And it was [Dr FM], a paediatrician, that said “I’m not qualified to report on the psychological damage. You need to go and get an assessment. I suggest that you go and talk to a child psychiatrist that specialises in diet”. So that is why.
MS KENNEDY: So you were gathering evidence to bring to court to show the court to shut [the wife] down?
THE HUSBAND: If it took the court to stop the diet, fine. And what actually I thought would happen, happened because as soon as the diet was raised I was served a letter from [the wife’s] lawyers saying I wasn’t allowed to contact any other practitioners, under rule 15.55. So, had the lawyers had the case vacated, [the son] would be sitting there on this diet for another two years with a BMI between one and two percent and probably, based on the outcome of that, possibly on the diet until he was 18. That was not an option for me. I don’t, to be totally frank, care about rule 15.55. My son needed help and I sought that help even if that meant not involving his mother, who would not listen. Who would not listen.
(d)The respective contributions by the parties to the matrimonial property;
(e)The adjustments in respect of other factors regarding that property; and
(f)The overall adjustment of that property.
638.The husband seeks:-
(a)To retain the matrimonial home;
(b)To pay the wife $1,150,000 excluding the $100,000 paid to the wife by way of partial property order;
(c)The wife’s spousal maintenance application be dismissed;
(d)The wife’s child support departure application be dismissed;[206]
(e)The husband transfer to the wife legal and equitable title in a japanese motor vehicle;
(f)As against each other each party retain legal and equitable ownership of property, including superannuation in such parties’ possession or control and
(g)Each party be responsible for liabilities in that party’s sole name.
[206] This was not argued and there was little or no evidence in respect of it. As such it will be dismissed.
639.The wife seeks:-
(a)A sum equivalent to 60 per cent of the pool of property excluding the inheritance from the husband’s father’s estate. This is calculated by dividing the non-inheritance assets as to 60 per cent to the husband and 40 per cent to the wife and then seeking an adjustment against the total pool of property, including the inheritance, of 20 per cent. This is said to make a total of $2,318,831 less some assets in the wire’s possession or control, including superannuation of about $219,996, total $268,098. The wife’s debts of $43,511 would be added back in leaving a balance payable to her of $2,093,609. This would amount to about 50 per cent of the total pool of property, including the inheritance;
(b)The wife seeks an anticipatory order for sale of the home if the money is not paid to her within 42 days[207];
(c)An indefinite order for spousal maintenance of $500 per week, CPI indexed; and
(d)Child support.
[207] Given the amount involved, I have provided a period of 60 days.
640.Each of the parties seeks costs orders. Obviously, I will not deal with those at the present. I will make an order leaving costs to be the subject of an application or applications under the Family Law Rules 2004 (Cth).
Approach
641.In this matter my task is to:-
(a)Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
(b)Determine whether it is just and equitable to make an order altering those interests and if so:
i)Identify relevant contributions pursuant to 79(4)(a)-(c) of the Act and assess them;
ii)Consider relevant matters referred to in s 79(4)(d)-(g) of the Act; and
(c)Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
642.In Stanford v Stanford (2012) 247 CLR 108 the High Court set out the first step requiring the identification of the existing legal and equitable interests in property of the parties.
643.Thereafter the Court must determine whether it is or is not just and equitable to make an order altering the parties’ property interests. Often, given the circumstances of the parties, that step will be uncontroversial; as is the case where the parties separated in April 2014 and given the property applications of both. Consequently I have no difficulty in concluding that it would be just and equitable to make a property settlement order as between these parties and I find that it is just and equitable to make a property settlement order.
The pool of property
644.The parties provided a joint balance sheet which was updated on 20 May 2017.[208] The balances in this document did not add up. Consequently, when I deliver my reasons I will give the parties seven days to check the arithmetic before perfecting the orders.
[208] Exhibit F29 and M12.
The Inheritance
645.In that joint document the husband has sought to treat the bequest to him from his late father, who died in May 2016, as a financial resource. The wife treats it as property.
646.It was an agreed fact that the value of the husband’s interest in his late father’s estate is $1,513,000.
647.The parties dispute a number of items including a liability of $17,500 claimed by the husband for probate legal fees. In his outline of evidence[209] the husband claims he has spent or incurred fees of $19,303.10. In the joint balance sheet he seeks to deduct an amount of $17,500 from the non-inheritance property. Given the evidence, I accept the figure of $17,500. However, given the reason it was incurred and the conflict between the husband and his sister over that estate, I have determined it should be deducted from the inheritance. This leaves the value of the inheritance at $1,495,500.
[209] Exhibit F4 - Proof of evidence - paragraph 13 and annexure F.
648.The next question for me is whether the husband’s inheritance is to be treated as a financial resource, as submitted by counsel for the husband, or property available for adjustment pursuant to the s 75(2) factors.
649.The question of how to treat a late acquired inheritance was the subject of a very recent decision of the Full Court in Calvin & McTier [2017] FamCAFC 125 (12 July 2017) where Bryant CJ, Ryan & Aldridge JJ dealt with an appeal as to the approach to be taken to a substantial inheritance received by the husband well after the parties separated. The issue that that trial judge needed to determine was whether or not that inheritance should be included amongst the property of the parties which was to be divided by the Court. The Full Court observed:-
19.… It is apparent, however, that the crux of this challenge is the degree of “connection” – or, as the ground has it, the lack of connection – between the inheritance and the parties’ matrimonial relationship.
20.It is clear that the court has the power to make an order dividing the inheritance.
650.Later the Full Court said:-
24.Thus, both the relevant definition of “matrimonial cause” and s 79 refer to all of the property held by the parties at the time of the hearing before the court. All of the property then held by both of the parties or either of them can therefore be the subject of orders under s 79, regardless of when particular assets were acquired. The fact that the court is to take into account the contributions of a party with respect to the acquisition, conservation or improvement of that property or to the welfare of the family makes this abundantly clear (s 79(4)(a), (b) and (c)). Such contributions may, of course, continue long after separation.
25.In this matter, that property could include the inheritance. So much was accepted by senior counsel who appeared for the husband, who also accepted that there is a significant body of Full Court authority to the effect that, in the exercise of the court’s discretion, property acquired after separation can be the subject of division. See, for example, Jones & Jones (1990) FLC 92-143 at 77,993; Thynne & Madison [2007] FamCA 558; Norman & Norman [2010] FamCAFC 66; Polonius & York [2010] FamCAFC 228 (“Polonius & York”); and Singerson & Joans [2014] FamCAFC 238.
651.Further to Full Court concluded on the question of property and approach:-
51.In short, we consider that the court retains a discretion as to how to approach the treatment of after-acquired property. The trial magistrate could have included the inheritance amongst the property to be divided or dealt with it separately. The trial magistrate was not obliged to follow one course or the other. The submissions of the husband are no more than an invitation to “pok[e] around in the entrails of discretion” (to adopt the remarks of French CJ, which his Honour made during the unsuccessful application for special leave in Singerson & Jones [2015] HCATrans 195).
52.It is worth repeating that it was not submitted that any error said to have arisen from the inclusion of the inheritance for division led to a result which, after consideration of the contributions and the s 75(2) factors, was inappropriate. Rather, the submissions were directed to the process.
652.The Full Court went on to say about the approach:-
Ground 2 – Was the only way to make an appropriate assessment of the s 79(4) factors to include the inheritance in the net assets and resources to be divided? (original emphasis)
54.We accept that in the second sentence of the following passage of the trial magistrate’s reasons, his Honour erred:
59.Despite the inheritance being received nearly four years after the parties’ separation, I propose to include what remains of the inheritance in my calculation of the net value of the assets and resources. Without doing so I do not consider that I can appropriately assess the matters that I am required to, pursuant to section 79(4).
55.Had the inheritance been treated separately, the assessment of the s 79(4) matters could still be undertaken, although there would need to be a separate consideration of all relevant matters in relation to each group of property leading to, most likely, different findings in relation to each group.
56.However, we do not need to take this further as this ground was properly accepted to be an adjunct to ground 1 and, in the absence of success on that ground, was not productive of any material error.
653.In Holland & Holland [2017] FamCAFC 166 the Full Court comprising Ainsley-Wallace, Murphy and Aldridge JJ had yet again an opportunity to consider recent inheritances. They relevantly said:-
34.In respect of the last point, it is important to emphasise that the categorisation of property as “an inheritance” or as “after-acquired” property often leads to an erroneous argument that unless contributions to that property can be established, the property should be “excluded from consideration”. As we have said, that argument is erroneous by reason of ignoring the fundamental premise that s 79 is directed to all of the existing legal and equitable interests in property of the parties or either of them without exclusion of any of those interests.
61.Rather than an infelicitous use of the expression “financial resource” or of expressions indicating that Property W was “excluded” so as to inform a decision whether an “asset by asset” or “global” approach should be adopted, in our view, her Honour has excluded Property W altogether from a consideration of the contributions made to the parties’ existing interests in property. As we have earlier sought to demonstrate, doing so is an error of principle.
654.I have included the inheritance as property of the husband but as a separate asset. I have considered it in the context of the agreed position of the parties that the wife has made no relevant contributions to this particular asset and that it is the property of the husband. However, as I have set out below I have considered this property in the overall determination of the property adjustment. That is that there was no contribution to this asset by the wife, but it was a s 75(2) factor to which I had significant regard.
655.I have treated the inheritance as property of the husband. Given the concession by the wife’s counsel that she made no contribution towards the inheritance, the net amount of the inheritance, combined with the significant initial contributions by the husband to the remaining property, I will not include the inheritance in the net value of that remaining property.
The Superannuation
656.The parties have agreed as to the value of their respective superannuation funds. The funds are of the accumulation type. The wife’s funds total $219,995 and the husband’s funds total $311,455. Neither party seeks a splitting order. Counsel for the wife submits that there should be three lists of property: the superannuation, the inheritance and the other property. The position of the husband was not clear.
657.The joint balance sheet includes superannuation in the total net assets. The amounts are relatively close, although I have had regard to the $311,455 not being readily available to the husband at this time. Given the approach I am taking regarding the inheritance, that is to leave the net sum with the husband, and the relativity of the superannuation values at this time, I have determined to leave it as part of the global approach in the remaining property.
The bank accounts, furniture and cars
658.The wife asserts that her two St George bank accounts have credits of $214 and $183 respectively. The husband asserts that they are $16 and $1,283. As the only evidence of the accounts is in the wife’s Financial Statement, I will adopt those latter figures.
659.Similarly, I have adopted the husband’s figures in the joint balance sheet as to the amount in the Commonwealth Bank account of $2,882, as it accords with the wife’s financial statement.[210]
[210] Wife’s financial Statement at page 6 – item 37.
660.The parties are unable to agree on the value of the wife’s household contents. No objective independent evidence of the value of the contents in the wife’s possession was adduced. The husband contended in the draft balance sheet that it had a value of $40,000. In her financial statement the wife deposed her contents had a value of $5,000.[211] In the joint balance sheet the wife conceded, against her interests, that it had a value of $10,000. Given that concession I have treated the value of her household contents as $10,000. There was no issue as to the value of the household contents of the husband.[212]
[211] Ibid at page 7 – item 42.
[212] Joint balance sheet - item 12.
661.As to the cars, the wife uses a japanese motor vehicle which is owned by the husband. The parties are in agreement that the car is to be transferred to the wife. I will make that order and consequently I will put its value on the wife’s side of the ledger.
662.The wife deposes to its value in her financial statement at $2,000[213] and contends that value in the joint balance sheet. The husband contends its value at $3,000. No objective independent evidence of the value of this car was in evidence and the wife having made this concession as to value, against her interests, I have treated the Japanese motor vehicle’s value as $2,000.
[213] Wife’s Financial Statement at page 7 – item 40;and page 12 – Note 1.
663.The husband owns a German car which he deposed, in his financial statement, had a value of $43,000.[214] In the joint balance sheet the husband contended the vehicle had a value of $37,500 and the wife contended its value at $50,000.
[214] Husband’s Financial Statement at Page 7 – item 40.
664.No objective independent evidence of the value of this car was adduced. As such the only two amounts reasonably available for me to consider were the two amounts propounded by the husband. He deposed to its value at $43,000 and adduced no evidence to the contrary. He was not cross-examined on that sum nor did he give evidence as to why or if he believed its value had fallen. As such I will treat its value in accordance with his financial statement, namely $43,000.
CBA Viridian line of Credit and Westpac Credit Card
665.The parties have a Viridian Line of Credit, which seems to be secured by a mortgage against the home.
666.In the joint balance sheet the husband contends that it has a total liability of $6,000 and the wife contends it is $9,380.[215] A reading of the husband’s financial statement shows that the $6,000 is 50 per cent of the loan.[216] The $6,000 propounded by the husband seems to be an error on the joint balance sheet. The wife deposes the amount of the Viridian debt at $4,690, being her 50 per cent share. Thus she contends the Viridian debt of $9,380.
[215] Joint balance sheet - item 13.
[216] Husband’s Financial Statement page 9 – item 47 (other mortgage).
667.No particular document was submitted as to the current debt, or at least no document was brought to my attention. As such I will treat the debt as being $9,380. As the loan is apparently secured over the home by mortgage, as asserted by the husband in his financial statement, I will order that the husband repay the loan and indemnify the wife.
668.The wife deposes to a Westpac Credit line totalling $883. It is not set out in her trial affidavit or her financial statement. As such I will not have regard to this amount.
669.The wife asserts she has a debt to a Credit Card which she claims in the joint balance sheet is a liability of $5,049 absent any documentary evidence. In her financial statement the wife deposes that the debt is $4,844.[217] I will adopt that figure.
[217] Page 9 – item 50.
Personal loan from Mr AD $116,000
670.The husband claims a personal loan from Mr AD totalling $116,000. This is set out in the husband’s financial statement.[218] The husband’s costs letter shows this loan was used to pay part of his costs.[219]
[218] Page 9 – item 50.
[219] Exhibit F2.
671.The husband was not cross-examined on this debt. As such I will include it as a liability of the husband.
Family Law Fees
672.The wife seeks a liability of $60,467 for outstanding legal fees as set out in her financial statement.[220] In her costs letter[221] the wife discloses that she has paid $72,240.30 in solicitor’s fees and had a further $34,865 in outstanding fees plus $32,489 yet to be billed as work in progress. The wife had paid disbursements of $49,591.
[220] Item 53.
[221] Exhibit M2.
673.There are outstanding disbursements of $2,246. There are outstanding fees to her counsel of $13,200 and the estimate of the costs of the hearing was $35,860. The total of the wife’s legal fees will be around $244,000 of which $121,832 has been paid.
674.In her trial affidavit the wife says she received a partial property order of $100,000.[222] The husband said this was an agreed order made in the Federal Circuit Court on 14 August 2014. Of that sum the wife says she applied $61,712.91 to legal costs.
[222] Wife’s trial affidavit - paragraph 638.
675.At separation the husband had accumulated savings in his St George account of about $290,000.[223] He has a loan from his friend of $116,000 and his explanation of this was set out in his trial affidavit when he said:-
[223] Exhibit M11.
171.I had been saving the funds in my St George Maxi saver account for the children to attend private high schools. I saved these funds over years for fear that at my age I may be unable to obtain another job if I lost my current employment. However, since separation these funds have been depleted by paying [the wife] $1,000 per week and legal fees.
676.The parties have not yet accessed the Child Support system and the $1,000 per week is in part to cover the child support expenses. In addition the husband has paid other amounts for the children totalling about $37,000 over the last about three years.
677.I accept that this is greater than would be a child support assessment at this time. However, the husband has had occupation of the matrimonial home to the exclusion of the wife.
678.The wife has an income of about $79,800 per year plus superannuation and a bonus of $8,732 in the 2016 financial year.[224] The wife asserts that husband has an income of over $220,000.[225] She was not challenged on this evidence. In his financial statement he shows his income from salary at $4,298 per week ($223,496 per year).
[224] Wife’s trial affidavit paragraph 497, her evidence about a bonus and the wife’s financial statement.
[225] Wife’s trial affidavit paragraph 498.
679.The husband had paid his legal costs from the loan from Mr AD and from his wages.[226] The husband has not fully explained how he has expended the $290,000. I infer that $100,000 was used to fund the parties’ property order.
[226] Exhibit F2.
680.Given all of those circumstances I will accept the wife’s liability for legal costs of $60,467.
681.In addition, given that in allowing the debt of $116,000 to Mr AD, which I have, in effect means that the wife is in part funding the husband’s legal costs. Accordingly, I will disregard the payment of $61,712.91 out of the partial property order of $100,000.
682.As to the balance of $38,287.09 I will not order that to be deducted from the amount payable to the wife pursuant to the property orders. This is because I have taken that sum into account on the adjustment of the property on contribution between the parties.
683.As such the property of the parties, other than the husband’s inheritance, is as follows:-
Property or debt Owned Value The matrimonial home agreed value Jointly $2,800,000.00 St George Account Maxi Saver Account Husband $30,414.00 St George Freedom Cheque Account Husband $10,916.00 St George Complete Freedom Account Wife $16.00 St George Savings Account #51 Wife $1,283.00 Commonwealth Bank Account Wife $2,882.00 German car Husband $43,000.00 Japanese car (wife’s car) Husband $2,000.00 Shares Husband $2,616.00 Shares Wife $33,185.00 Household contents Wife $10,000.00 Household Contents Husband $20,000.00 Super- Accumulation 1 Husband
$240,552.00 Super – Accumulation 2 Husband
$63,852.00 Super – Accumulation 3 Husband
$7,051.00 Super - Accumulation Wife
$219,995.00 CBA Viridian Line of Credit Joint ($9,380.00) Westpac Credit Line Account Wife ($0.00) Credit Card Account Wife ($4,844.00) Personal Loan – Mr AD Husband ($116,000.00) Personal Loan – Family Wife ($18,000.00) St George Bank Wife ($19,579.00) Family Law legal fees Wife ($60,467.00) Total $3,259,492.00
Contributions
684.As to the inheritance, there is no issue that the wife made no contribution to that property.
685.The parties cohabited from March 2001 until April 2014, a period of about 13 years.
686.There are two children of the marriage and I accept that the wife has been the primary carer of the children through the whole of their lives. I accept that the husband has been significantly involved in their care.
Initial contributions
687.As to the other property, it is an agreed fact that the husband’s initial contributions included his savings of about $350,000 and his home unit with a net value of about $350,000.
688.At the commencement of the relationship the husband owned:-
(a)Unit 1 with an agreed value of $350,000;
(b)A motor vehicle, which was not the subject of an objective valuation and which the husband asserted had a value of $25,000;
(c)Furniture, which was not the subject of an objective valuation and which the husband asserted had a value of $15,000;
(d)Agreed savings of about $350,000;
(e)Superannuation of about $17,820; and
(f)Shares of about $4,735.
689.At the commencement of our cohabitation the wife owned:-[227]
[227] Wife’s trial affidavit – paragraph 515.
(a)Savings of about $40,000;
(b)A motor vehicle;
(c)Shares; and
(d)Superannuation entitlements.
690.The husband asserted that the wife did not own her car and owed a $40,000 HECS debt. The wife was not cross-examined on these items.
691.In any event, the assets of the wife were of relatively minor consequence as the husband had made overwhelming initial contributions at the commencement of the relationship.
692.I accept that the wife managed and organised the improvements to Unit 4, the husbands unit, including, installing a new kitchen, some internal painting, the building of a deck, sanding of floorboards, installing a new balcony, and new blinds. Unit 4 was sold in 2005 for about $655,000 and the net proceeds were applied towards the deposit on the matrimonial home. As I said earlier, this home was purchased in January 2006 for $1,300,000.
693.The husband worked throughout the marriage. The wife worked mostly during the marriage, apart from some time off after the children were born and for a period of a few years, until three weeks before separation.
694.Counsel for both the husband and wife submitted that from cohabitation to separation the contributions were equal. I have accepted and adopted those submissions.
695.The husband sought to make significant issue about the $1,000 per week he pays to the wife after separation. This needs to be seen in the context of his large income, that there was not a child support assessment and that the husband occupied the former matrimonial home. The husband no doubt paid rates, insurance, repairs etc. on the home and paid a modest sum on the Viridian loan. However, the wife has needed to pay rent; this is presently $770 per week.[228]
[228] Wife’s Statement of Financial Circumstances at page 4 – item 21.
696.The wife had the primary care of the children up to trial and will retain that role as primary carer, I have has regard to this future finding in respect my considerations of the other factors. At the same time the husband has been substantially involved in the care of the children. He has provided for them when they are in his care and has paid significant accounts to meet their needs, as I detailed earlier in these reasons, including school fees. I accept that he is likely to be primarily liable for their increasing school fees into the future. I have has regard to this later finding in respect my considerations of the other factors.
697.The wife has had the benefit of the partial property order to which I referred to earlier and to which I have had regard in the consideration as to contributions.
698.Having considered all of the evidence in the context of the contributions and in particular to the initial contribution I determine that they ought to favour the husband as to 65 per cent and as to the wife as to 35 per cent.
The Other Factors
699.I will first consider what I ought to do regarding the $1,495,500 bequest to the husband.
700.Counsel for the wife submitted that it ought to be added back to the non-inheritance property and there be an overall adjustment to provide that the wife received about 50 per cent of all the property.
701.If I adopted that course it would give little real meaning to the husband’s initial contribution of in excess of $700,000, made so many years ago. It would mean a significant percentage of the bequest to which he is entitled from his father would likewise be transferred to the wife.
702.Counsel for the husband submitted that the way to deal with the inheritance was by way of an allowance in respect of the s 75(2) factors on the non-inheritance property.
703.Whilst I have written these reasons in this part of judgment my thinking was not linear. I thought through each approach with various percentages within the scope of the argument made to me.
704.The bookends of the overwhelming initial contribution at the commencement of the relationship and the very late bequest at the other end are such that I have determined not to make a s 75(2) adjustment against the inheritance, but rather make it against the non-inheritance property. As part of that reasoning, I also considered the significant time the children are with the husband, the likelihood that the children will attend private high schools and the wife’s present earning capacity.
Section 75(2)(a) - the age and state of health of each of the parties; and
705.The husband is aged 57 years and he is in good health. He claims his time remaining in the workforce is less than the wife. He asserted to the Court that he wanted to be the primary carer for the children pursuant to orders, and that the children should attend private high schools. That will be for a period of ten years or more and I infer that the husband will likely be earning and accumulating superannuation over at least that period.
706.The wife is aged 42. She is in good health.
Section 75(2)(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
707.The husband in full time secure employment. He earns over $220,000 per year, and there is evidence that in the past he has received at least one bonus. I accept that the husband will have substantial sum of money from his father’s estate and a large income for the medium to long term. He has accumulated superannuation at a level so that he has $100,000 more in superannuation than does the wife. He will have significant other property.
708.The wife is in secure employment and earns between $80,000 and $90,000 per year. As the children become older it is likely that her income will improve given her work history. She will have a significant amount of money as a result of these orders.
709.I have had regard to the financial resources of the husband, which are considerably more than that of the wife.
Section 75(2)(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
710.The wife will have the primary care of the children now aged 10 and eight years. The son has significant health difficulties which will need to be constantly addressed. The husband spends significant and substantial time with the children; effectively equal time over holidays and five out of nine days per fortnight during school term.
75(2)(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
711.Each of the parties has the need to support themselves. Each has the wherewithal to meet that obligation.
712.I have anticipated that once these reasons are delivered the $1,000 per week paid to the wife by the husband will evaporate. The wife will be entitled to seek a Child Support Assessment, which will be far less than the $1,000 per week she is presently paid.
Section 75(2)(e) - the responsibilities of either party to support any other person; and
713.On the evidence before me, this is not a relevant consideration.
Section 75(2)(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
714.On the evidence before me, this is not a relevant consideration.
Section 75(2)(g) - where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
715. This was not the subject of any submission.
Section 75(2)(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
716.On the evidence before me, this is not a relevant consideration.
Section 75(2)(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
717.On the evidence before me, this is not a relevant consideration.
Section 75(2)(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
718.On the evidence before me, this is not a relevant consideration.
Section 75(2)(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
719.The parties’ relationship subsisted for about 13 years. Given the wife’s role as primary carer for the children, her desire and need to work school hours, and having regard to her income before the children were born, I accept that the duration of the marriage and the care of children has moderately compromised her ability to earn income.
Section 75(2)(l) - the need to protect a party who wishes to continue that party’s role as a parent; and
720.I repeat the comments made in the preceding paragraphs.
Section 75(2)(m) - if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
721.On the evidence before me, this is not a relevant consideration.
Section 75(2)(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
722.I have had regard to the terms of the prosed property orders, in particular the husband’s whole retention of the bequest.
Section 75(2)(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
723.On the evidence before me, this is not a relevant consideration.
Section 75(2)(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.
724.I have had regard to the circumstance that there is presently no child support assessment, however, there is likely to be one in the future. Under the current scheme I have taken judicial notice that an administrative assessment would likely be less than $20,000 per year. If that is the case, bearing in mind the relative income of the parties and their respective assets, there may be an administrative application for a departure from any assessment. I will not guess as to that outcome of any such application.
Section 75(2)(o) - any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
725.I have considered the inheritance under this provision as well as the preceding ones. I have been careful, however, to consider it only once in respect the various factors.
Section 75(2)(p) - the terms of any financial agreement that is binding on the parties to the marriage.
726.On the evidence before me, this is not a relevant consideration.
Section 75(2)(q) - the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
727.On the evidence before me, this is not a relevant consideration.
Summary
728.Having considered all of those matters to be taken into account I have determined that there should be an adjustment in the wife’s favour of 15 per cent.
Consideration of Just and Equitable
729.There are two pools of assets. The first is the inheritance with a net value of $1,495,500.
730.The second pool is the non-inheritance property. This comprises of superannuation with a value of $531,450 and other (net) property of value of $2,728,042. Thus the total of the non-inheritance property totals $3,259,492.
731.If I adjust the property on the basis of equality the outcome would be that the wife would be paid $1,463,275.00 by the husband. This would leave her with the following property:-
Property or debt Owned by Value St George Complete Freedom Account Wife $16.00 St George Savings Account Wife $1,283.00 Commonwealth Bank Account Wife $2,882.00 Japanese car (wife’s car) To be wife’s $2,000.00 Shares Wife $33,185.00 Household contents Wife $10,000.00 Payable to wife $1,463,275.00 Super - Accumulation Wife
$219,995.00 Westpac Credit Line Account Wife ($0.00) Credit Card Account Wife ($4,844.00) Personal Loan – Family Wife ($18,000.00) St George Bank Wife ($19,579.00) Family Law legal fees Wife ($60,467.00) Property to wife $1,629,746.00
732.conversely , if the wife was paid $1,463,275.00 by the husband, he would retain the following property (plus the bequest):-
Property or debt Owned by Value The matrimonial home agreed value Jointly $2,800,000.00 St George Account Maxi Saver Account Husband $30,414.00 St George Freedom Cheque Account Husband $10,916.00 German car Husband $43,000.00 Shares Husband $2,616.00 Household Contents Husband $20,000.00 Super- Accumulation 1 Husband
$240,552.00 Super – Accumulation 2 Husband
$63,852.00 Super – Accumulation 3 Husband
$7,051.00 CBA Viridian Line of Credit To be husband’s ($9,380.00) Personal Loan – Mr AD Husband ($116,000.00) Payable to wife ($1,463,275.00) Net property $1,629,746.00
733.Having considered all of the relevant matters I have determined that this is a just and equitable outcome and I will so order.
Spousal maintenance
734.No cogent evidence was adduced in respect spouse maintenance apart from the wife’s financial statement. No submissions were made by the wife and as such the application will be dismissed.
Child support
735.There is no child support assessment and as such the application lacked jurisdiction and could not be argued on its merits. As such it was likewise dismissed.
Costs of Independent Children's Lawyer
736.The parents[229] agreed that they ought to be responsible for the costs of the Independent Children's Lawyer, which are an agreed amount of $11,052. This creates a liability of $5,526 for each parent, less any composite amount that one or other of the parents has paid to the Legal Aid Commission of New South Wales.
[229] Transcript of Proceedings dated 6 March 2017 – page 524 and 525.
737.I was asked by the parties and the Independent Children's Lawyer to make a consent order in these terms and I will so order .
I certify that the preceding seven hundred and thirty-seven (737) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 19 September 2017.
Associate:
Date: 19 September 2017
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