H and H
[2003] FMCAfam 41
•17 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2003] FMCAfam 41 |
| FAMILY LAW – Property – contributions – superannuation – children – residence – shared equal residence – effect on children of changing their circumstances – best interests. |
Family Law Act 1975 (Cth), ss.60, 65, 68, 75, 79
Child Support (Assessment) Act 1989 (Cth)
Family Law Reform Act 1995 (Cth)
Children’s Law Act 1989 (UK)
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC 92-877
B and B Family Law Reform Act (1997) FLC 92-755
Tomassetti (2002) FLC 93-023
| Applicant: | D M H |
| Respondent: | S A H |
| File No: | PAM1934 of 2002 |
| Delivered on: | 17 April 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 20 & 21 January 2003 and written submissions |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Givney |
| Solicitors for the Applicant: | Karen L Haga & Associates |
| Counsel for the Respondent: | Mr S. Stewart |
| Solicitors for the Respondent: | Meyer Pigdon |
ORDERS
Within eight weeks of the date of these orders the husband shall pay to the wife the sum of one hundred and twenty three thousand, five hundred and ninety two dollars and sixty five cents ($123,592.65) and shall give her a discharge of the ANZ mortgage or a release from the mortgagee of her liability pursuant to it. In the event that the wife has any liability to Orix or an associated entity in relation to the car loan on the husband’s Toyota Prado, he shall also provide her with a release from the lender of her indebtedness pursuant to the loan.
Simultaneously, upon compliance by the husband with order 1, the wife shall do all acts and things and sign all documents as are necessary to transfer to him her right, title and interest in the property situate at and known as 2-4 W Street, B.
In the event that the husband fails to comply with order 1 each party shall immediately take all necessary steps and execute all necessary documents to cause the property known as and situate at 2-4 W Street, B, being the whole of the property contained in Certificate of Title Folio Identifiers 6 ("the property") to be sold by private treaty at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and to distribute the proceeds of the said sale as follows:
(a)In payment of agents commission and advertising expenses and legal expenses of the sale;
(b)In discharge of the Mortgage in favour of Australia and New Zealand Banking Group Limited registered over the property;
(c)35 per cent to the husband;
(d)The balance to the wife, from which she pay the husband an adjusting amount so that the husband receives 35% of the nett assets (excluding superannuation).
That in the event that the property fails to be sold by private treaty within a period of 3 months from the date order 3 becomes operative, then each party take all necessary steps and execute all necessary documents to cause the property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and that the proceeds of the sale be distributed in accordance with Order 4 herein.
That pending the sale of the property the husband continue to pay, as they fall due, all regular instalments in respect of the mortgage, council rates, water rates and household insurance in respect of the property, and shall indemnify and keep indemnified the wife in respect of any such amounts, and if any such amounts remain unpaid as at the date of sale of the property, the husband shall be solely liable for any such arrears.
That Orders 7-8 have effect from the operative time which is
20 January 2003.That in accordance with Paragraph 90MT(1)(a) of the Family Law Act1975, whenever a splitable payment becomes payable to S A H from his interest in the T Staff Superannuation Fund (member number 951), D M H is entitled to a base amount in the sum of $72,219.00 and there is a corresponding reduction in the entitlement S A H would have had but for these orders.
That in accordance with Paragraph 90MT(1)(a) of the Family Law Act1975, whenever a splitable payment becomes payable to S A H from his interest in the T-F Staff Productivity Fund (member number 951), D M H is entitled to a base amount in the sum of $13,780.12 and there is a corresponding reduction in the entitlement S A H would have had but for these orders.
That, having been accorded procedural fairness in the making of these orders, Orders 6-9 (inclusive) binds the Trustee of the T Staff Superannuation Fund and T-F Staff Productivity Fund.
That unless otherwise provided in these orders the husband and wife are declared to have the sole right title and interest in:
(a)Any chattels, goods, furnishings and other property which is in their possession.
(b)Any moneys, shares, debentures, investments and superannuation entitlements which stand in their sole name or to their credit respectively at the date hereof.
That in default of either or both of the husband and the wife doing all such things and executing all such documents as may be needed to comply with these orders that a Registrar of the Parramatta Registry of the Federal Magistrates Court or such other person appointed by the court is authorised to do all such acts and things and execute all such documents on behalf of either or both of the husband and the wife.
That the parties have joint responsibility for the long term care, welfare and development of (“the children”) V A H born 17 March 1996, T H H born 17 March 1996 and R M H born 19 June 1998.
That each party shall have responsibility for the day to day care, welfare and development of the said children, whilst the children are in their care.
That the children live with the wife.
That the husband have contact with the said children as follows:
(a)each alternate weekend from 5.00 p.m. Friday to the commencement of school on Monday;
(b)each alternate Tuesday from after school until the start of school the next day;
(c)for one half of each school holiday period as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years;
(d)from 6.00 p.m. on Christmas Eve to 4.00 p.m. on Christmas Day in alternate years commencing in 2003 and from 4.00 p.m. on Christmas Day to 4.00 p.m. on Boxing Day in alternate years commencing in 2004, provided that every second year, commencing in 2003, such contact shall occur in Melbourne;
(e)on each of the childrens’ birthdays in alternate years commencing in 2004 from 6.00 p.m. on the birthday to the start of school the next day;
(f)on the day following each of the childrens’ birthdays in alternate years commencing in 2003 from 6.00 p.m. to the start of school the next day;
(g)from 6.00pm on the Saturday immediately preceding Father’s Day until the start of school the next day.
(h)at other times as agreed between the parties.
If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
After school holidays, weekend contact shall resume on the first weekend after school has resumed if the husband has had the care of the children during the first half of the holidays AND on the second weekend if he has had the care of the children during the second half of the holidays.
That each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
SCHOOL HOLIDAY CONTACT:
(a)SHALL commence at 10.00am;
(b)SHALL conclude at 4.00pm;
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be school holidays.
In the event that the children are in the husbands care on a weekend that includes mothers day, contact shall end at 6.00pm on the Saturday immediately beforehand.
Midweek and weekend contact is suspended during school holidays.
Unless otherwise provided in these orders the parent with the care of the children for the first half of the Christmas holidays may take the children to Melbourne provided they give the other party at least 8 weeks written notice.
Unless otherwise provided in these orders the husband shall collect the children from the wife’s residence at the start of contact.
Unless contact ends on a school day the wife shall collect the children from the husband’s residence at the end of contact.
That the wife shall promptly inform the husband of upcoming activities and events for the children.
That pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure "A" and these particulars are included in these.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
That the solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1934 of 2002
| D M H |
Applicant
And
| S A H |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for the adjustment of property and for parenting orders. The parenting orders concern residence and contact to the parties’ three children V A H and Tania H H both born on 17 March 1996 and R M H born 19 June 1998.
The applications
D M H (“the wife”) started the proceedings when she filed an application for final orders on 24 May 2002. Later, on 23 December 2002 she filed an amended application. It sets out the parenting orders sought at trial. During the hearing her counsel outlined the proposed s79 orders sought. In essence, she sought orders as follows:
·That the children live with her.
·That the parties have joint responsibility concerning their long term care, welfare and development.
·That the parties have individual responsibility for the day to day care of the children whilst the children are in their care.
·That the children have contact with their father each alternate weekend from 6.00 pm Friday until the start of school Monday, each alternate Tuesday evening, each alternate Thursday evening, for half school holidays as well as addressing particular special occasions when the father would have contact.
·That the former matrimonial home at 2-4 W Street, B be sold and that after payment of expenses and mortgage that the wife have the proceeds.
·A splitting order.
·Otherwise that each party keeps the assets and financial resources that they currently have.
The precise form of the orders sought by the wife were included in written submissions. The s.79 orders differed slightly and are set out below.
8. That each party forthwith take all necessary steps and execute all necessary documents to cause the property known as and situate at 2-4 W Street, B, being the whole of the property contained in Certificate of Title Folio 6 (hereinafter called "the property") to be sold by private treaty at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and to distribute the proceeds of the said sale as follows:
(a) In payment of agents commission and advertising expenses and legal expenses of the sale;
(b) In discharge of the Mortgage in favour of Australia and New Zealand Banking Group Limited registered over the property;
(c) 74 per cent to the wife.
(d) The balance to the husband.
9. That in the event that the matrimonial property fails to be sold by private treaty within a period of 3 months from the date of these Orders, then each party take all necessary steps and execute all necessary documents to cause the property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and that the proceeds of the sale be distributed in accordance with Order 9 herein.
10. That pending the sale of the property the husband continue to pay, as they fall due, all regular instalments in respect of the mortgage, council rates, water rates and household insurance in respect of the property, and shall indemnify and keep indemnified the wife in respect of any such amounts, and if any such amounts remain unpaid as at the date of sale of the property, the husband shall be solely liable for any such arrears.
11. That Orders 12 to 14 have effect from the operative time.
12. That in accordance with Paragraph 90MT(1)(a) of the Family Law Act, 1975, whenever a suitable payment becomes payable to S A H from his interest in the T Staff Superannuation Fund (member number 951), D M H is entitled to a base amount in the sum of $49,382.00 and there is a corresponding reduction in the entitlement S A H would have had but for these Orders.
13. That, having been accorded procedural fairness in the making of this Order, this Order binds the Trustee of the T Staff Superannuation Fund.
14. The operative time for this Order is 20 January, 2003.
15. That apart from as provided otherwise herein the husband and wife be declared to have the sole right title and interest in:
(a) Any chattels, goods, furnishings and other property which is, at the date hereof, in their possession respectively.
(b) Any moneys, shares, debentures, investments and superannuation entitlements which stand in their sole name or to their credit respectively at the date hereof.
S A H (“the husband”) completed an amended response that became an exhibit in the proceedings. It sets out the orders sought by him. They are as follows:
CHILDREN'S ORDERS
1. That the parties retain joint responsibility for the care, welfare and development of the children of the marriage V A H born 17 March 1996, T H H born 17 March 1996 and R M H born 19 June 1998 ("the children") including but not limited to equal responsibility for decisions in relation to the children's education, health and extra-curricular activities.
2. That each party have sole responsibility for the day to day care, welfare and development of the children whilst they are in their care.
3. That subject to Order 4:
(a) the children live with the husband every alternate week from after school on Monday until the commencement of school on Monday the following week, such periods to commence on the first Monday following the making of the Orders with the husband to collect the children from school.
(b) In the alternative the children live with the husband and the wife have contact every second weekend from after school Friday to before school on Monday and one weeknight from after school until before school the next morning as agreed.
4. That the children live with the husband during the following times:
(a) For half the school holidays, being for the first half of the school holidays commencing in even numbered years and the second half of the school holidays commencing in odd numbered years, and the children live with the wife on the other half.
(b) On the children's' birthdays, if the children's birthdays falls on a weekend day when the husband does not have the children with him, from 6.00pm until the commencement of school or until 10.00am the following day. If the children's birthdays fall on a school day when the children are not with the husband, then the husband shall have the children with him for a period of two hours. In such instance, the parties shall agree which two hours the husband will have, failing which the husband shall have the children from 5.30pm until 7.30pm.
(c) On the children's birthdays, if the children's birthdays falls on a weekend day when the husband does not have the children with him, from 6.00pm until the commencement of school or until 10.00am the following day. If the children's birthdays fall on a school day when the children are not with the wife, then the wife shall have the children with her for a period of two hours. In such instance, the parties shall agree which two hours the wife will have, failing which the wife shall have the children from 5.30pm until 7.30pm.
(d) That the children live with the husband from 6.00pm on Christmas Eve to 4.00pm on Christmas Day commencing 2003, and each alternate year thereafter.
(e) That the children live with the wife from 6.00pm Christmas Eve to 4.00pm Christmas Day, commencing 2002, and each alternate year thereafter.
(f) That the party with residence of the children for the first half of the Christmas holidays may decide that residence periods over the Christmas period take place in Melbourne provided that party give the other party at least 8 weeks written notice.
5. That the husband and wife share equal responsibility for collecting and delivering the children at the beginning and end of residence periods as agreed.
6. That each party inform the other of upcoming events and activities for the children. Within 48 hours of receiving notice of such events and activities including but not limited to the children's parties and performances the children are participating in both at school and outside of school.
7. That in the event the husband is unsuccessful in his application for joint residence the husband have contact with the children. In addition to contact in Order 4 as follows:
(a) every alternate weekend from after school on Fridays to before school on Mondays;
(b) one weeknight each week alternating every second Tuesday with every second Thursday, with Tuesday contact to be the Tuesday prior to a contact weekend and Thursday contact to be the Thursday after a contact weekend or such other weekdays as agreed, from after school to before school the following morning,.
8. That in the event that the husband is unsuccessful in his application for joint residence, that the wife provide the husband with:
copies of all school and pre-school notices, newsletters and special announcements within 72 hours of receiving them;
(a) the children’s recent school work, recent pre-school work and recent homework at the next contact period;
(b) the children’s current homework that is given before a contact period and due afterwards at that contact period.
8. That neither party shall take the children out of school early or keep them home from school unless they are ill or as agreed between the parties.
9. That each party be restrained from changing the children's place of residence from within the Sydney metropolitan area unless agreed to in writing between the parties.
10. That the wife be restrained from changing the children's surname.
11. That pursuant to Section 65DA(2), the particulars of the obligations these Orders create and particulars of the consequences that may follow if a person contravenes these Orders in annexure A and these particulars are included in these Orders.
PROPERTY
12. Within 28 days of the date of these orders and simultaneously with the husband's compliance with orders 13 and 14 the wife do all things and sign all documents necessary to transfer her interest in the property at 4 W Street B ("the home") being the whole of the land contained in Certificate of Title Folio Identifiers 6 to the husband.
13. That simultaneously with the wife's compliance with order 12 above the husband discharge or re-finance the mortgage secured over the home to Australia and New Zealand Banking Group Limited mortgage number U783924 and indemnify and keep the wife indemnified from any claims for any monies in respect of the home including utilities and other outgoings.
14. That simultaneously with order 12 above the husband pay to the wife the sum of $66,881.50.
15. That if the husband does not comply with orders 13 and 14 within 42 days of the date of these orders, the parties do all things and sign such documents as are necessary to forthwith list for sale and sell the property at 4 W Street, B by auction or otherwise in accordance with Schedule A which is intended to form a part of these Orders, and upon settlement of the sale of the property, the proceeds be distributed as follows:
(a) to pay the mortgage, all legal fees and agents costs associated with the sale;
(b) to pay any arrears of rates;
(c) 65% to be paid to the husband;
(d) 35% to be paid to the wife
16. That (pursuant to s.90MT(4)) the base amount of $68,143.00 (gross) be allocated to the wife in respect of the husband’s superannuation interest in the following funds:
(a) T Staff Superannuation Fund;
(b) F Staff Productivity Fund;
(c) Rollover Deferred Annuity Fund;
(d) Managed Deferred Annuity Bond;
(e) Commonwealth Rollover Fund;
(f) FinSuper.
17. And that (pursuant to s.90MT(1)(a)), whenever a splittable payment becomes payable in respect of that interest, the wife is entitled to be paid the amount calculated in accordance with the Family Law (Superannuation) Regulations in respect of that base amount, and there is a corresponding reduction in the entitlement of the husband.
18. If the base amount referred to in Order 17 is gross that the wife indemnify and keep indemnified the husband in respect of any tax which might be payable in respect of or upon her receipt of any amount pursuant to Order 17.
19. That pending sale of the property the husband, whilst he is in occupation of the property, will continue to pay as they fall due all regular instalments of the mortgage, council rates, water rates and household insurance in respect of the property and shall indemnify and keep indemnified the wife in respect of any such amount.
20. That in the event the husband vacates the property, the husband and wife shall each make payment of half of all regular instalments in respect of the mortgage, council rates, water rates and household insurance in respect of the property and shall indemnify and keep indemnified the other party in respect of their 50% share of the repayments of any such amounts.
21. That the parties are otherwise solely, legally and beneficially entitled to all other real and personal property of whatsoever nature and kind in their respective ownership, possession or control as at the date of these orders, including but without limiting the generality thereof, money on deposit, shareholdings, insurance policies, boats, motor vehicles, furniture, furnishings and effects and superannuation.
22. That save and except as these orders provide to the contrary, each of the parties shall, by this order, mutually release the other from all debts owing from one to the other.
23. That in default of either or both of the husband and the wife doing all such things and executing all such documents as may be needed to comply with these orders that a Registrar of the Sydney Registry of the Family Court of Australia or such other person appointed by the Court be authorised to do all such acts and things and execute all such documents on behalf of either or both of the husband and the wife and order that in the event that either party procure compliance with the Orders set out hereunder by obtaining execution of documents pursuant to this Order, then the party procuring such execution of documents shall be indemnified by the other party for his or her costs and expenses incurred in obtaining such compliance.
24. That the wife pay the husband's costs of this application.
Both parties tendered documents that became exhibits in the proceedings.
The evidence
The applicant wife relied upon the following evidence:
·Her affidavit sworn 19 December 2002 and her oral testimony.
·Her financial statement sworn 19 December 2002.
·Affidavit of Robert Furney sworn 19 December 2002. As agreement was reached in relation to the value of the former matrimonial home this witnesses’ evidence did not require adjudication.
·Affidavit of R F sworn 27 December 2002 and his oral testimony.
·Affidavit of J F sworn 27 December 2002 and her oral testimony.
The respondent husband relied on the following evidence:
·His affidavit sworn 23 December 2002 and his oral testimony.
·His financial statement sworn 23 December 2002.
Pursuant to s.62G(2) of the Family Law Act 1975 on 28 June 2002 the court ordered that a family report be prepared. The parties and their three children were interviewed on 18 December 2002. Court counsellor Brian Sheridan prepared a report that is dated 24 December 2002[1]. He concluded his report with the following recommendation:
It is assessed that the father would have the capacity to provide a good standard of care for a the children if a shared residency of the girls were to occur. However, the poor state of the relationship between the parties and the mother’s opposition to a shared residency indicate that practical problems may arise which could imperil the otherwise healthy adjustment of the girls. The mother’s offer of an additional night per week plus the notification of, an invitation to the father to attend events in the girls’ lives would be a reasonable minimal level of paternal contact if the court were not to favour a shared residency[2].
[1] Exhibit D
[2] Paragraphs 34 & 35 Exhibit D
The court received written submissions which were not provided in accordance with the timetable agreed at the end of the hearing. This non-compliance with the court’s directions has not in any way influenced my deliberations.
The issues
The principal issues raised in the proceedings are these:
·The effect on the children of reducing the time they spend with their mother and increasing it with their father.
·The parties’ capacity to cooperatively implement an effective shared residence living arrangement for the children.
·The significance of the husband’s greater initial contribution.
·Whether the wife should have the majority (if not all) of the immediately available assets and the husband’s s.79 entitlement ordered against his superannuation.
·If the wife has all the currently available assets and the husband takes the superannuation whether that outcome is just and equitable.
·The wife’s future needs.
Short history
The husband was born on 26 February 1962 and is thus 40 years old.
The wife was born on 27 July 1969 and is thus 33 years old.
The parties married on 27 December 1992. They commenced cohabitation in April 1992.
There are three children of the marriage whose details I have already identified.
The parties separated on 24 June 2001. They remained living in the former matrimonial home until the wife left it on 20 July 2001. Since separation the children have lived with her and have had contact with the husband. The husband continues to live in the former matrimonial home.
Chronology of events
The parties met when they were both employed by F in Melbourne. The husband accepted a job in Sydney which resulted in the parties relocation from Melbourne. When they moved to Sydney they moved into a townhouse at Artarmon where they lived for about one year. The husband’s employer paid their moving costs. They then moved into rented accommodation at Cremorne.
At the commencement of cohabitation the husband had a half interest in a home in Melbourne (subject to a mortgage), savings of a few thousand dollars, some furniture and personal belongings. He had recently received an inheritance of $3,000. The wife had a 1983 Mitsubishi Colt.
When the parties started living together they established a joint account into which they paid most of their wages. Their daily living expenses were drawn from this account and it was the account used to accrue savings.
Until the wife stopped work five weeks prior to the twins birth, both parties worked full time. The wife worked as an administrative assistant in insurance companies and then a legal firm. The twins were born at 35 weeks gestation. The husband worked as an actuarial consultant and then as a manager in insurance companies.
In 1994 the husband sold his half interest in the Melbourne property to the other owner. Because he was more intimately involved in the transaction than the wife was, I accept his evidence that he received approximately $15,000 nett for his interest in the property.
When the parties bought their home at B it was in poor condition. During the year before the twins were born, together they painted the inside of the house, the husband replaced the architraves, internal doors and door frames and added fly screens to the windows. The wife sanded and varnished all of the new woodwork. During the latter part of her pregnancy, the husband demolished the bathroom and installed a new one. Other than employing a plumber and tiler to work in the bathroom, the husband did the balance of the bathroom renovation. It took him three months, working on weekends and after work. Because she was heavily pregnant the wife was unable to assist the husband with the bathroom renovation.
In about 1996 the husband left T Life and went to work for F Life.
T Australia later acquired F Life. The husband was the national manager of direct sales.
Before the 1998 extensions started the husband put a new roof over the front of the house and also replaced a double door and door jam. He estimates that this and the balance of the renovations undertaken amounted to an average of one day a week work for thirty weeks each year for five years. In addition to providing some minor assistance to the husband during renovations, the wife cared for the children and ensured that they did not interrupt the husband’s study nor building work.
After the twins birth the wife was primarily responsible for their care. The husband started a new job the day after they were born and was employed in an executive capacity continuously until the parties separated. He still is. The husband usually left for work at 7.00 am and was home at about 7.00 pm. Mostly, though not always, the twins were awake when the husband arrived home from work. They were bathed and fed before he got home. Their usual bedtime was 7.30pm. By the time the twins were 3 or 4 years old they usually awoke at first light. In summer this was about 5.30 or 6.00 am. Before then they were usually still asleep when the husband left for work. Hence the husband’s opportunity to spend time with the children predominantly revolved around weekends and during holidays.
Throughout the marriage the husband continued to study to achieve actuarial qualifications through the Institute of Actuaries of Australia. Each year the course went for six months and at the end of each year he undertook exams. He studied on Sunday mornings when the wife took the children to church and also in the evenings after the children were in bed. In 2000 he continued the course through Macquarie University. This required his attendance at two lectures a week after work during term and exams in June and November. He increased his study to one day of each weekend until the wife took the children to stay in the pre-exam weeks to her family in Melbourne for two weeks. He suspended his studies for the year after the twins were born and again after R was born.
When R was born the twins were only a little over 2 years old. The wife felt she was having difficulty coping with the full time care of the three children and discussed with the husband that she needed a break. He did not agree and told her, “That’s why you are a full time mother, to be there”. In the end, her parents paid for the twins to attend family day care one day a week for about five months.
On 24 June 1998 the husband’s parents gave the parties an interest free loan of $53,997 to fund further renovations and extensions. That loan was repaid in November 1999 when the parties drew down on their ANZ mortgage. They increased the mortgage by $50,000 in order to do so.
The building work involved extending the living and dining rooms and completely redoing the kitchen. Whilst builders completed the extensions, between November 1998 and January 1999 the wife took the twins to Melbourne where she stayed with her parents. The husband joined them for the Christmas week. Otherwise he stayed in Sydney. He then spent two weekends painting the interior extensions and the exterior of the house before the wife and children returned from Melbourne. Throughout the remainder of 1999 he completed further improvements that included demolishing a shed which was turned into a stand alone study, fencing, rewiring and decking, the details of which are contained in paragraphs 122-125 of his affidavit. Between Easter 2000 and September 2001 he spent about four months preparing and then paving a carport[3]. The wife’s step-father assisted him.
[3] Paragraph 126 wife’s affidavit.
The twins started school at W Public School in 2001. They enjoy school and both are doing well. R attends B Pre School on Mondays and Tuesdays and is on a waiting list at W Long Day Care Centre to attend on Fridays. The wife thinks it is unlikely that a place will be made available. She attends preschool from 9.00 am to 3.00 pm.
In May 2001 the wife told the husband that she no longer loved him. He moved into the study. At the same time he transferred $11,000 from their joint savings account and paid it into the fixed mortgage. He did so without the wife’s prior knowledge. At separation the ANZ fixed mortgage had a balance of about $85,000 and the ANZ variable loan had a balance of about $96,000.
Prior to the wife’s departure from the matrimonial home the parties had a discussion about its disposition. The wife believed that she and the husband had reached an agreement that the home would be sold. They had a real estate agent inspect the property and the husband prepared a letter to the ANZ Bank[4] that intimated they may sell the home within three to six months. Having considered the matter further the husband has remained in the home and did nothing further to sell it.
[4] Annexure A Husband’s affidavit
At separation the parties applied to suspend the monthly repayments due on the ANZ variable mortgage. As the account was in advance the bank advised that it did not require repayments until 19 October 2002[5]. In October 2002 he continued the suspension for a further three months. Thus he has had the benefit of the $11,000 lump sum payment derived from the joint account and occupation of the home without paying the variable loan.
[5] Annexure B Husband’s affidavit
At separation the husband was assessed to pay child support at $597 per week.
Immediately after separation the husband had contact with the children on Sundays and for a short time on Wednesday evenings. Quickly, weekend contact extended so that it became regular alternate weekend contact and Wednesday evening gave way to Thursday night from 6.00 pm to 7.30 pm. Now, Friday contact starts at 6.00 pm and continues until the start of school Monday, each alternate Thursday from 6.00 pm to 7.30 pm and each alternate Tuesday from 6.00 pm to 7.30 pm as well as half of each school holiday period.
Since separation, the wife has obtained worked for ACAAS Home Care, providing respite care for persons in need. She usually works from about 9.30 am to 2.30 pm Monday and 11.00 am to 1.00 pm Tuesday.
The husband’s circumstances and proposals
On 28 January 2003 the husband starts work as General Manager Marketing employed by I Pty Limited. His salary is $160,000 per annum inclusive of 9 per cent superannuation. He will salary sacrifice to cover the costs of his car. His key responsibility is to develop and launch between two and four life insurance and superannuation products annually. Before he signed the contract he obtained his employer’s agreement that his working hours will be flexible to take into account his family commitments. He estimates that he can probably do about 50 per cent of his work from home. About once a month he must travel to Melbourne, where call centre staff and head office are located. These trips are about three days duration.
The husband wants the opportunity to purchase the wife’s interest in the matrimonial home. In respect of the children he invites the court to make a shared residence arrangement. If he is unsuccessful in his application for shared residence he wants an order that the children live with him and have contact with the wife. Prior to filing his amended response which revealed his application for sole residence, the husband did not tell the wife he intended to make it. His rationale for the alternate proposal is as follows:
If the court were to decide that joint residence is not feasible as an alternate I would see sole residence of the girls as I believe that I will be able to better consult with D and keep her updated and informed (sic) she has with me.
Presently, he pays $624.00 per week child support. Additionally, he provides health insurance.
The wife’s circumstances and proposals
The wife and children live in rented premises at 1/60 K Street, B. The wife would like to purchase a home in the same area, although is concerned that she may not be able to afford to do so. This is because the children have established friends in the local area and their school is close to their home. Eventually, she would like to complete a community services certificate at TAFE which will involve her attendance one day per week. When the children are old enough she would like to study nursing. Outside of school hours she is available to care for the children on a full time basis. She takes the children to their extra curricular activities, funky dancing and previously gymnastics and fits in with their commitments. She agrees with her husband that they have a difficult relationship and considers that his proposal for shared care is impracticable for them and disruptive for the children. Because she has been the children’s primary care giver since their birth she believes that the children would suffer if they no longer lived with her. Mrs H is close to her family and she usually visits them at Christmas time in Melbourne.
In addition to child support of $624 per week she receives $65 per week salary, $80 per week family allowance and $208 supporting parents benefit.
Relevant Law
The approach to the determination of an application under s.79 is well established by authority (In the Marriage of Lee Steere and Lee Steere[6]; In the Marriage of Ferraro[7]; In the Marriage of Clauson[8] the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
[6] (1985) FLC 91-626
[7] (1993) FLC 92-335
[8] (1995) FLC 92-595
In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell[9].
[9] (1999) FLC 92-877
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed: B and B: Family Law Reform Act.[10] Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
[10] (1997) FLC 92-755.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular contact carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
Although not binding authority the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50/50 shared parenting application pursuant to the current legislation should consider. There is a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (supra). In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act 1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act 1975. In doing so they reviewed the English and Canadian authorities.
Although there are consistencies in the applicable family laws between these countries there are differences that cannot be overlooked. The English law gives the person who has a residence order the authority to manage the child’s daily life. In Australia that arises pursuant to a specific issues order. An order for residence will do no more than determine with whom a child will live. The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s.1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the “presumption of no order”).”[11] One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[12] In Canada, decision-making authority is part and parcel of any order for custody. As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live. Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[13] It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody). The maximisation provision is, of course, not absolute. It will be restricted to the extent that it conflicts with the best interests of the child.[14]
[11] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” (1986) Australian Journal of Family Law 18 at 20.
[12] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial Vol. 15 at 13-78.
[13] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[14] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2). Each factor fits comfortably within s.68F(2). Based on other courts experience these factors have be useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.
Assets at the date of hearing
The parties reached agreement as to the value of some assets. They were also in agreement as to the quantum of some liabilities. The Ernst and Young valuation of the superannuation is calculated using
3 January 2003 as the relevant date, the date that the trustee of the T funds provided its response to the superannuation form 6 request for information. Because of the proximity to the hearing I accept its value as at the date of hearing. I find the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table:
| Assets as at the date of hearing | $ |
| 4 W Street, B (agreed) | 378,000 |
| Shares (agreed) (H) | 13,514 |
| Toyota Prado (agreed) (H) | 32,000 |
| Husband’s savings | 5,100 [15] |
| Dinghy and kayak (H) | 1,200 |
| Husband’s household furniture | 5,500 [16] |
| Wife’s savings | 980 |
| Mazda Astina (W) | 12,400 |
| Wife’s furniture | 5,000 |
| TOTAL | 453,694 |
| Superannuation Assets | |
| T Staff Superannuation Fund (H) | 72,219 |
| T-F staff productivity Fund (H) | 19,131 |
| T roll over deferred annuity (H) | 23,722.15 |
| T managed deferred annuity bond (H) | 17,283.69 |
| Total splittable superannuation | 132,306.34 |
| FIN super (H) | 4,251.55 |
| Law Industry Superannuation Trust (W) agreed | 1,553.00 |
| TOTAL superannuation assets | 134,330.93 |
| TOTAL ASSETS | 588,024.93 |
| Liabilities as at the date of hearing | $ |
| ANZ mortgage | 181,988 [17] |
| Orix car loan (H) | 34,000 |
| T loan (shares ) (H) | 28,675 |
| Loan (H) (parents for legal fees) | 5,317 |
| Wife’s visa credit card (W) | 5,500 |
| J and R F (W) car loan | 12,400 |
| Husband’s visa | 250 |
| TOTAL LIABILITIES | 319,894.93 |
| NETT ASSETS | 448,192.73 |
| Financial Resources | |
| Commonwealth Roll over fund (H) | 12,442.77 [18] |
| Commonwealth financial services (W) | 11,901.15 [19] |
[15] Husband’s financial statement
[16] Husband’s financial statement
[17] Page 5 written submissions on behalf of the applicant
[18] Exhibit A
[19] Exhibit N
The parties agreed on the value of the splittable superannuation. During the hearing there was disagreement as to how the husband’s Finsuper should be categorised. Counsel for the wife submitted it is an asset while the husband’s counsel argued that it is a financial resource. The Finsuper interest is unsplittable (see s90MD) as the withdrawal benefit is less than $5,000. See Regulation 11 Family Law (Superannuation) Regulations 2001. Section 90MC of the Family Law Act 1975 provides “A superannuation interest is to be treated as property for the purpose of paragraph (ca) of the definition of matrimonial causes in section 4”. In s.90MD superannuation interest is defined as follows “a superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest.” One must then consider s.90MF to understand whether the exclusion contained in the s.90MD definition applies. Reversionary interest is defined in s.90MF thus “For the purposes of this Part, a person's interest in an eligible superannuation plan is a reversionary interest at any time while the person's entitlement to benefits in respect of the interest is conditional on the death of another person who is still living.” As there is no suggestion that the husband’s entitlement is thus affected I am satisfied that prima facie his Finsuper fund is an eligible superannuation interest.
Does s.90MA “The object of this part is to allow certain payments (splittable payments) in respect of a superannuation interest to be allocated between the parties to a marriage, either by agreement or court order” mean that a superannuation interest is to be treated only as property when it is sought to invoke the provisions of Part VIIIB and not otherwise? In my view it does not. The intent of s.90MA when read in conjunction with s.90MC is to extend the definition of matrimonial cause so that the categorisation of an eligible superannuation interest is changed to make it an asset for the purpose of the application of s.79. This outcome did not find favour with Stevenson J in Hickson[20] where Her Honour said “..it would seem illogical that I am required to treat as “property” a superannuation benefit which will not vest in the husband for many years..”. It does not appear that counsel there raised whether in these circumstances there should be a discounting of the affected interest to take into account the delay before it could be taken up and the risks associated with it. For example in the same way that a minority shareholding in a private family company is treated. In Georgeson[21] the Full Court emphasised the desirability of expert evidence in complex cases and there approved an approximate flat discount rate of 65% against the current value of the shares. Because the valuation methodology is mandated by the regulations the discount factor must be applied either as a s.75(2) or s.79(2) factor adjusted in favour of the party who has the asset but is unable to realise it for many years. In the absence of evidence as to the appropriate discount, for example taking into account rates of growth, the nature of the fund, whether it is capital guaranteed, its returns over a number of years it is difficult to decide an appropriate discount. In this case the issue is not significant because the amount in the fund is small. If it were large, in either dollar or percentage of nett assets terms it could materially affect the outcome.
[20] PAF 5398 of 2001 (unreported) delivered 27 February 2003
[21] (1995) FLC 92-618
This means that although the super splitting legislation has resulted in the unsplittable superannuation being categorised as an asset the effect of the legislation does not enable the court to make splitting or flagging orders in relation to it. If it were considered necessary subject to the fund’s roll-over rules the court would be able to order the husband to roll an unsplittable fund into a larger fund thus bringing the amount within the splitting provisions.
The husband’s entire splittable superannuation is preserved until he reaches his applicable preservation age and satisfies the conditions of release (usually permanent retirement from the workforce). For persons born between 1 July 1960 and 30 June 1964 the preservation age is between 55 and 60 in accordance with a sliding scale.[22] The values identified are gross values and do not take into account taxation of the superannuation benefits. Taxes are payable when a superannuation benefit becomes payable. At this time it is not possible to quantify the amount of tax that will be levied. The amount depends on many factors, including maximum benefit limits, pre 1 July 1983 service, age at receiving the benefit, marginal tax rate after retirement to identify but a few. A split of the husbands superannuation is likely to be advantageous to both parties as there will be two Reasonable Benefit Limits applicable and thus the threshold before tax is payable is in effect doubled. It seems to me that the principles outlined in Rosatti[23] apply in relation to whether or not the potential tax liability should be taken into account. Extrapolated for the purpose of superannuation assets the factors appear to be:
a)When the preservation age will be reached.
b)When the member spouse is likely to retire.
c)Whether the interest is taken as a lump sum, pension or a mixture of the two.
d)The capacity to quantify tax payable. This will include consideration of the effect of two reasonable benefit limits.
[22] Exhibit A
[23] (1998) FLC 804
In Rosatti (supra) the Full Court speaks in terms of the probability of the sale of an asset and hence incurring a CGT liability, however with superannuation the issue is access to it by the member (and after a split in some cases a non-member spouse). Provided the member lives until retirement the triggering event for the assessment of tax must occur. Does this mean that the court must take into account potential tax liability? In my view it does not. Rossati (supra) emphasises that each case turns on its own facts. Because the super splitting legislation mandates the valuation methodology tax, other than un-deducted contribution tax and surcharge tax identified in the last member statement, will not affect the value of the asset. But tax may be a relevant liability as distinct from the value of the superannuation interest. Alternatively it may be relevant s.75(2) factor “the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur”.[24]
[24] Rosatti at par 85,043
It is at least 15 years before the husband will reach the age at which he can take his superannuation. This many years away it is impossible to know what changes may be made to the superannuation tax system or his marginal tax rate after retirement. Because of these uncertainties I have no evidence about what any tax liability might be. Thus I do not include any notional tax liability. The issue will be considered further under s.75(2)(n).
The wife has an interest in the Law Industry Superannuation Trust, the value of which was agreed. Only the husband’s counsel addressed its characterisation. I accept that it is an asset, something that is impliedly conceded by the wife’s counsel’s silence.
Both parties have interests in a Commonwealth Roll Over Fund. This is a deferred annuity and does not fall within the scope of the super-splitting legislation. Both counsel agreed that these interests are financial resources.
Evaluation of contributions
Nearly eleven years since the parties commenced cohabitation, each has made contributions that fall within s.79(4)(a)-(c).
During the first year of their relationship they made a decision to move to Sydney predicated upon career advancement for the husband. This reflected a pattern that thereafter developed whereby family decisions were made which enabled the husband to achieve considerable expertise and competence in his field in reinsurance and to take advantages of opportunities within the industry for promotion. By 1994 he worked in an executive capacity in insurance and has done continuously since. By April 1992 he received a salary package of approximately $64,000. His earnings grew and by 1997 his salary increased to over $100,000. The husband’s earnings were supplemented by bonuses and eligible termination payments. Between December 1995 and December 2000 he received $48,049 extra payments paid, I infer, at the discretion of his employer. It is unclear whether the eligible termination payments were received directly or paid into one of his superannuation accounts. Because I am satisfied that he applied all of his income received during cohabitation to joint matrimonial expenses, nothing turns on the distinction. Once the wife started maternity leave his salary became the financial mainstay for the family. Together with his initial contribution it provided substantially for the accumulation of superannuation, the acquisition of personalty and the equity in their home. His contributions started on 27 April 1992[25] to the T Managed Deferred Annuity Bond and later to the splittable superannuation interests. It seems likely that both parties’ Commonwealth Roll Over Funds and the husband’s Finsuper account were established prior to cohabitation or whilst they were working outside of the insurance industry. In the circumstances I infer that no meaningful contribution has been made to the acquisition of Finsuper or Comsuper since cohabitation. The husband has received a loan from to his parents for legal fees. I infer the wife has legal fees too. Hence, the loan to his parents will be his sole responsibility and is not a matrimonial liability to which the wife should contribute.
[25] Attachment B Exhibit A
By comparison, the wife made a smaller initial contribution than the husband and her income was always significantly less than his was. At the commencement of cohabitation she earned about $30,000 a year as an administrative assistant compared to the husband’s $42,000. Thereafter, the gap grew ever wider because of promotion opportunities that the husband took. Once the wife withdrew from paid employment she was unable to make a continuing financial contribution until she returned to part time work during 2001. For a few weeks she worked at a stall at the Royal Easter Show in 2001 which money, together with her previous salary and bonuses totalling $7,211 she applied for the common benefit of the family. Although not always happy to do so, she managed the household finances in accordance with a strict budget designed by the husband. More than he did, she wanted to spend a greater portion of the family’s income on day to day living expenses. The husband insisted upon a different financial strategy, emphasising early repayment of the mortgage and healthy contributions towards superannuation. Thus, although his income was the only income after the twins’ birth the wife contributed indirectly to the additional payments made towards the ANZ mortgage and to the post-separation contributions made to the husband’s superannuation funds by adroit financial management of the home.
I am satisfied that but for the advance payments made on the ANZ mortgage the husband would have been unable to afford to contribute to his superannuation funds at the same rate after separation. That is because he would have been paying additional mortgage payments. Since separation the wife has acquired a car, paid for by her parents. The loan must be repaid – it will be her responsibility to do so. Valued comparatively the husband’s financial contributions exceed the wife’s.
Although he agreed that the renovations and improvements to the home were a hobby, that does not diminish the significance of these contributions. These contributions were significant, both in terms of the amount of the husband’s time they consumed and the improved capital value of the property. I do not accept the husband’s estimate, “that D and I saved approximately $48,000 in costs for all the renovation work I did on the home”. His estimate was no more than a guess. He has maintained the property since separation. By comparison, the wife’s contribution to the substantial repairs and renovations to the property was modest. Her step-father contributed to a small degree on her behalf. The husband’s non-financial contribution to the maintenance and improvement of the property substantially exceeds the wife’s.
The husband’s employment, work in and about the property and study meant that the day to day care of the family and management of the home was overwhelmingly the wife’s responsibility. The husband’s employment required that he work extended hours and he was usually away from the home twelve hours a day, five days a week. The parties agreed that the wife would withdraw from paid employment to take on the role of carer to their children. Her diligent attention to the children and the home meant that the husband could pursue his career confident that their children’s daily needs were competently attended by the wife. He trusted the wife to largely meet their joint parental responsibility for the care of the children and accepted her judgment in relation to the daily matters necessary to run the children’s lives. Their roles were complimentary and to a significant degree both excelled. The husband developing his career and improving the property, the wife meeting the needs of three young children and managing the home. As far as possible she cared for the children so that they did not interrupt their father whilst he studied or worked on the property. Whilst she took the children to Melbourne during renovations and when the husband studied for exams, the wife had the exclusive care of them. Since separation, the children have lived with her. On a day by day basis she has substantially attended to their needs. The husband made a contribution to the welfare of the family to the extent that he was able to. Quite apart from providing financially for the family he routinely took over the care of the children when he came home from work for half an hour or so before they went to bed which gave the wife a break. Later he spent time with the children in the mornings and most weekends spent at least one day actively involved in the children’s care. Since separation he has become more significantly involved in the children’s care by virtue of his exclusive care of the children during periods of contact. Overall the wife’s contribution to the welfare of the family substantially exceeds the husband’s. Her contribution must be recognised in a real and substantial way. See Ferraro (supra).
Evaluating their contributions it is clear that the husband made a greater initial contribution and his parents later provided an interest free loan which facilitated completion of the renovations without financial penalty from the mortgagee. The husband’s counsel submitted that his initial contribution “was a most significant sum in the financial history of the marriage and should be given considerable weight” emphasising that without it the parties would not have been able to acquire their home when they did. Whilst it was significant the thrust of this submission when linked to a claim that the husband should be assessed as having made a total contribution at 70% it is over stated. Perhaps the parties may have needed to save more diligently or not holiday as expensively, but given their income they would have still bought a home – albeit a little later than they did. The husband earned consistently greater income and applied it to the benefit of the family, including the acquisition of superannuation. These considerations in conjunction with his contributions as a home maker and parent to the welfare of the family and the conservation and improvements to matrimonial assets are considerable. They must be balanced against the wife’s lesser financial and non-financial contribution towards the assets, but significantly greater contributions to the welfare of the family. Also her indirect financial contribution to the growth of superannuation prior and subsequent to separation and support of the advance mortgage repayments that since separation the husband has had exclusive benefit of.
The orders I propose will not affect the earning capacity of either party.
The husband is assessed to pay child support at $624.00 per week. His financial support of the children, based on the Child Support (Assessment) Act 1989 is at an appropriate level and contributes meaningfully to the children’s expenses.
I find, therefore, the parties’ total contribution should be assessed as being equal. I apply this assessment also to the superannuation assets as since separation the nature of contributions made earlier continued.
Section 75(2)
Subsection (a) – the husband is 41 years old and is in good health. The wife is 33 years old and is also in good health. I make no adjustment pursuant to the subsection.
Subsection (b) – the husband works full time in the insurance industry. Recently he changed employers and improved his conditions so that he can work flexible work hours and partly from home. In spite of the improved conditions he has maintained a gross salary of $160,000 per annum. He has acquired considerable skills and acumen in his chosen field and I am satisfied that he will continue to earn at least a comparable income in the medium to long term. Both parties have comparable financial resources. While the wife has some earning capacity, it does not compare to the husband’s. Previously, she acquired skills as a personal assistant and worked within the insurance industry and also in legal practice. By the time she gave up work to care for the children, the gap in the parties’ earning capacity was wide and it is now substantial. Whilst the wife may improve her earning capacity once she has completed her studies, it is likely to be a number of years before she could contemplate working full time and even then she is unlikely to earn anywhere near the income that the husband can. The wife’s income is supplemented by a supporting parents benefit and child support. Whilst this narrows the gap between the husband’s total income and the wife’s total income, there is still a stark difference in their nett positions. In Clauson (supra) the Full Court said, “In addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction upon an independent lifestyle which the obligation to care for children usually entails”[26]. I make an adjustment in the wife’s favour pursuant to the subsection.
[26] at par 81,911
Subsection (c) – within weeks the twins will celebrate their seventh birthday. R is four and a half years old. Responsibility for the care and control of the children has primarily fallen to the wife. Although the husband seeks an order that he have the children one-half of the time, I am not satisfied that that outcome is in their best interests. Day to day primary responsibility for the care of the children will remain with the wife. Their age means they will be dependant upon her for many years to come. Because both parents are ambitious for their daughter’s success the children will enjoy the opportunity to acquire a good education and to participate in diverse extra-curricular activities. Mostly, the wife will take the children to and from school and preschool, care for them during term when they are ill and ferry them to their out of school activities. Her care of the children will be supplemented by the husband’s continuing role in the children’s life. Whilst he willingly accepts some of the burden of taking the children to sports, for example swimming and will attend school based activities key responsibility on a day by day basis falls to the wife. I am satisfied that there should be an adjustment in the wife’s favour according to the subsection.
Subsection (d) – The parties have the commitments identified in their financial statements. Both incur expenses in relation to the children, precise details of which are not in evidence. I do not accept that weekly expenditure of $432 for the husband’s Toyota and $86 car parking are necessary commitments to the full extent paid. The car was leased prior to separation but has been maintained without any apparent attempt to give up the lease and take on a less expensive vehicle. Nor is $319 per week superannuation a necessary commitment at the level it is paid. Including those expenses at the amount identified the husband’s income exceeds total fixed expenditure by $433 per week. The wife’s average income exceeds her total fixed expenditure by $550 per week. Her commitments include a modest rental payment and otherwise modest expenditure on necessary day to day expenses. Because the children are more substantially in her care and will continue to be so she expends a greater proportion of her weekly total income on necessary commitments for herself and the children. I make an adjustment in her favour pursuant to the subsection.
Subsection (e) – Other than the children neither party has responsibility to support any other person. I make no adjustment pursuant to the subsection.
Subsection (f) – Whilst she has substantial care of the children and until she obtains full time employment the wife is likely to remain eligible to receive a partial supporting parents benefit and family allowance. Because of his care of the children the husband also receives a small family allowance benefit. Neither party currently receives a pension, allowance or benefit from any superannuation fund or scheme. I make an adjustment in the husband’s favour pursuant to the subsection.
Subsection (g) – Until they had their children, the parties enjoyed a comfortable lifestyle that enabled them to travel overseas and acquire savings. Once the wife gave up paid employment their standard of living became more modest because they had the children’s expenses and only one, albeit a good income, upon which to live. The husband’s income would have enabled a more flamboyant lifestyle, but they chose to focus on the acquisition of assets, a strategy that stood them in good stead. Subsequent to separation the wife has endured a reduction in her standard of living, but it does not appear that the husband has done so. He has remained in the home and the apparent indicia of his day to day life is largely unchanged. However, I have already taken into account the husband’s occupation of the home elsewhere and also the financial consequences to the wife of her care of the children. In those circumstances I do not consider it appropriate to make any further adjustment under the subsection.
Subsection (h) to (k) – these subsections do not arise.
Subsection (l) – The husband agrees that the wife’s capacity for part time employment is dependant upon the residence arrangements ordered by the court. As I have already indicated the children will be more substantially cared for by the wife than the husband. The wife’s evidence combined with the fact of her absence from the paid work force on a full time basis since the twins birth, satisfies me that to the extent possible she wishes to continue her role as a parent. Because she has substantial responsibility for the care of three quite young children, it is reasonable that she limits her hours of employment so that she works a few hours during the week that coincides with actual school hours. As the children get older it is reasonable that the wife increase her hours of employment so that she regularly works two or three days a week during school hours and during part of the school holidays. Both parents recognise the benefits for these children of a parent’s substantial care. Even when they are teenagers the children will still require the involvement and support of their parents although it will be reasonable that the wife does not necessarily limit her work to the narrow band of school hours. Because I have already taken into account aspects of the financial consequences of the wife’s care of the children to the extent not already addressed under s.75(2)(b) and (c) I make an adjustment pursuant to the subsection in favour of the wife.
Subsection (m) – Neither party cohabits with another person.
Subsection (n) – The husband wants the opportunity to purchase the wife’s interest in the home. Counsel for the wife submits that he is unable to afford to do so and that it should be sold. As he has remained in occupation it is appropriate that he have the opportunity to do so. He has the greater earning capacity and hence superior ability to service significant borrowings. He will need to increase his debt level to purchase the wife’s interest in the matrimonial home. Because he wants to retain the home he will not incur rehousing costs and the costs associated with re-financing the mortgage will be less than the total costs the wife will incur on a purchase. For her part the wife wishes to purchase a home in the area that she and the children currently live. Sixty five per cent of the non-superannuation assets is $124,072.65 and sixty five per cent of the splittable superannuation is $85,999.12. Of the non superannuation assets the wife has nett assets of $480 and will therefore receive a further cash payment of $123,592.65. Otherwise she will keep the property and carry the liabilities identified in paragraph 49. It is unlikely that this is sufficient to enable her to purchase a home without also acquiring a mortgage. She will have her own superannuation entitlement of $85,999.12 which will be achieved by ordering a split in her favour of the husband’s interest in particular funds. There is nothing that indicates one fund rather than another should be the subject of a splitting order. In those circumstances I consider it preferable to split the funds to the extent possible so that the wife has particular funds and the husband retains the others. This may have the effect of minimising management and administration fees payable in the long term by the parties. The husband will pay $123,592.65 to the wife. The funds for which will be derived by increasing the mortgage. Thus he will have non superannuation assets of $66,808.35 and splittable superannuation of $46,307.22. Both parties will retain their financial resources, the husband’s being slightly greater than the wife’s. In paragraph 55 I indicated that I would consider the issue of taxation of superannuation further as a potential s.79(2)(h) issue. Because the outcome of the s.79(4) and s.75(2) exercise is a substantial splitting of the superannuation interests, no further adjustment for potential tax liability is appropriate. I make no adjustment pursuant to the subsection.
Subsection (na) – The husband is assessed to pay child support of $620.00 per week. This contribution is substantial. Because his contact with the children will increase by two evenings per fortnight during school term, his child support will reduce, but only by a small amount. Nonetheless his level of child support will remain substantial. I make an adjustment in his favour pursuant to the subsection.
Subsection (o) – The husband’s interest in Finsuper of $4,251.55 is an asset. He cannot access this money for at least fifteen years. I am satisfied that I should take into account in favour of the husband that part of the assets that he will receive are not immediately available to him. Because of the modest size of the Finsuper asset the adjustment in his favour is small.
Subsection (p) – This subsection does not arise.
Having regard to all of the s.75(2) factors I find it appropriate that there should be an adjustment in the wife’s favour of fifteen (15) percent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2) – see Tomassetti[27]. Any lesser adjustment, given the size of the asset pool, would be notional.
[27] (2002) FLC 93-023
Section 79(2) is this a just and equitable outcome?
Because the court must consider the actual orders not just the percentage distribution under s.79(2), justice and equity in cases where the court may order a splitting or flagging order requires careful consideration of the range of orders available. Counsel for the wife submitted five schedules reflecting a 65 %–35% distribution of the nett assets. The purpose of the schedules was to show the comparative effect of the actual orders the court may make. Thus the schedules while all effecting the same percentage split overall, proposed different percentages applied to immediately available assets and splittable superannuation. Central to the wife’s submission is her need to rehouse and buy a home. She concedes that if one party were to receive all of the immediately available assets while the other was required to wait for the entitlement to be paid from superannuation, then the party receiving the lions share of the currently available assets would receive a lesser percentage when the court undertook the s.79(2) exercise. I agree. Neither counsel addressed how such a discount factor should be calculated.
Counsel for the husband submitted in essence that both parties should have to wait for the superannuation entitlement to be paid out. Superannuation has long been regarded as a joint venture to which parties contribute and plan for their retirement. The intent of the super splitting legislation is to ensure that the artificial divide whereby one party, commonly the husband, has the sole benefit of superannuation saved for during cohabitation, no longer operates. Because of the super splitting legislation the non member party, usually the wife, can share in the benefits of retirement planning through superannuation. Thus the spectre that in her retirement she is more likely to live in comparatively parlous circumstances can be redressed. Does this mean that the court must order the distribution of the assets in accordance with the findings otherwise made pursuant to s.79(4) and s.75(2) to both the splittable superannuation and also the available assets? In my opinion it does not. The court is enjoined to consider the particular circumstances of each case and hence deliver individual justice. Thus in some cases it will be appropriate to order that a party take their superannuation entitlement by an adjustment to other assets. This is the approach adopted by Moore J in Levick[28]. Her Honour balanced the factors set out below before deciding that the wife should have a greater percentage of the available assets and a lesser percentage of the splittable superannuation in order to give effect to the appropriate overall percentage distribution. The relevant factors were :
·The purchase price of appropriate accommodation and rehousing costs for both parties.
·The need for a financial buffer for ordinary exigencies of independent living.
·The current level of the parties superannuation.
·The probability that the wife would be able to acquire appropriate superannuation benefits from her own future income.
·The husbands substantial earing capacity and ability to borrow significant sums at favourable rates (from his employer).
[28] [2003] FamCA 40 (unreported)
Applying those factors in Levick the wife’s entitlement to the available assets increased so that she had 66.5% of the non superannuation assets and 40% of the splittable superannuation. Because the husband had to wait 10 years and pay tax on his interest (as did the wife but on a lesser sum) the wife’s superannuation entitlement reduced from 40% to 36.5% equivalent to 3.5% of the other available assets.
From the wife’s entitlement she will not only need to pay the purchase price of a home, but also stamp duty, legal costs and associated rehousing costs. There was no evidence about the range of house prices in the area she wished to buy into. However I accept that she needs every available cent to be able to purchase a house that she can afford to keep once loan repayments are taken into account. There is no suggestion that even with 100% of the available non-superannuation assets that she will have enough to buy a home without borrowing additional money. If that result were ordered she will have considerably less available in superannuation upon her retirement. Because she has the care of young children and is unlikely to achieve well paid employment for many years there is little likelihood that she will be able to acquire adequate superannuation from her own earnings. Unless provision for her future retirement is provided in these proceedings the prospect is that she will have manifestly inadequate superannuation upon retirement.
In determining the appropriate s.79(2) adjustment I must consider similar issues as they pertain to the husband. He also needs adequate accommodation for himself and the children when they are with him on contact. His greater earning capacity means that he can service higher mortgage repayments than the wife can. Also that he can make greater contributions to superannuation and is probably better able to provide adequate superannuation benefits than she will. Unfortunately the evidence concerning his borrowing capacity was vague, revealing little more than he had raised the issue with his father. Although the wife’s counsel submitted that the house had to be sold that outcome does not accord with the husband’s intent. He has considerable business acumen and understands money. I accept that his stated aim of retaining the home is achievable provided the court orders an adjustment within the range of reasonable exercise of its discretion or the spectrum of the applications. Were it otherwise I would have expected more precise evidence as to his borrowing capacity.
The effect of the orders will mean that the husband will have significant debts to service. He will have the mortgage, car loan, Orix share loan and his visa debt. Additionally he will have to pay the wife approximately $123,000. Whether he will pay commercial interest rates on the amount borrowed to pay the wife is uncertain. I cannot assume that his father will be able to lend him the entire amount needed to comply with these orders and hence it is likely that some interest and instalment payments will be regularly repaid. When his child support obligation is added it is probable that the husband has reached the limit of his capacity to service his outgoings. Thus increasing the amount he must pay the wife may well result in his capacity to retain the home being put at real risk. That possibility does not determine the issue. It must be balanced with the wife’s obvious need to have as much money immediately available to her so that she can acquire appropriate accommodation. There is insufficient evidence to enable me to be satisfied that the greater sum sought will make a material difference to her chances of buying into the market at a level she can afford. I would have needed specific information about median house prices in the region and more particular evidence about the limits of her borrowing capacity. Thus while I am satisfied that additional funds improve her prospects of acquiring accommodation that she desires I am not satisfied that it puts that outcome within her reach. Does this mean that a party can avoid further adjustment pursuant to s.79(2) by voluntarily taking on liabilities to the maximum of their repayment capacity. It does not. If I was satisfied that the husbands quest to retain the home was unreasonable and that by ordering a greater immediate payment to the wife she would have appropriate accommodation that she could afford to repay, I may have increased the payment to her.
Balancing the parties need for proper future financial security through superannuation with the effect of the orders that follow from the s.79(4) and s.75(2) exercise I am satisfied is a just and equitable outcome. No further adjustment is appropriate. Hence the husband will have the house, shares, Toyota Prado, his savings, dinghy and kayak and household furniture which have a total value of $435,314. His liabilities total $244,913, which gives him a nett position of $190,401. He is entitled to $66,808.35 and so must pay the wife $123,592.65. By way of cross check the wife is entitled to assets worth $124,072.65. Her savings, car and furniture less her visa debt and the loan to her parents leaves her with nett assets of $480. $124,072.65 less $480 is $123,592.65. At settlement the husband must give the wife a release from the mortgagor, Orix and the car loan - if she is personally liable for the later. It would be inconsistent with s81 and the clean break principle to leave them unnecessarily financially connected. Both parties will retain their resources and unsplittable superannuation interests.
The superannuation splitting orders will have effect from the date of the hearing rather than judgment. As far as possible it is desirability to limit the need for trustees of the funds to recalculate member entitlements on a date they have not already undertaken. As far as possible the super split will be effected by orders a 100% in the wife’s favour of specific funds rather than ordering she have part of each fund. Upon the split she will have the option to remain in the fund or roll over her interest into another fund. Administratively it is less complicated from the trustees perspective, and probably also the parties that the smallest number of funds are required to make changes to their members entitlements. This is also consistent with the spirit of s.81. Thus the orders will split 100% of the T Staff Superannuation fund in the wife’s favour and otherwise operate against the husband’s interest in the T – F staff productivity fund. The base amounts will be $72,219 and $13,780.12 respectively.
In the event that the husband fails to pay the moneys ordered and/or provide the necessary releases then the home will be sold. Although it has an agreed value, the nett proceeds cannot be known. The total assets, excluding superannuation and the home are $58,694 and the total liabilities excluding the mortgage and the husbands loan to his parents are $80,825. On this basis excluding the home and superannuation the husband’s liabilities exceed his assets by $5,611. The husband should carry 35% of the liabilities and the wife the remaining 65%. Therefore on the sale of the home when the husband receives his 35% nett there will have to be an adjustment in his favour paid from the wife’s 65%. The adjusting figure is the amount needed to ensure that the husband receives 35% of the nett assets referred to in this paragraph having regard to those he retains. Pending settlement the husband must maintain the property and pay rates, taxes and mortgage instalments as and when they fall due. If he defaults the default must be paid out of his share of the proceeds.
Determining the children’s best interests
It is apparent that prior to separation the applicant was primarily responsible for the children’s care. The respondent helped out as much as he could, but the demands upon his time from work, travel to and from work, study and renovating the home necessarily substantially limited the time he had available with the children.
In his affidavit material the respondent gives a detailed account of his involvement in the children’s lives. He gives a clear and cogent account of concerned and capable involvement in the children’s care when he was available. During the working week, his involvement was limited and the time available for significant involvement in the children’s care centred on weekends and during holidays. Since separation the respondent’s care of the children has become more structured. During contact he has been responsible for the care of the children to an extent he has never consistently provided before.
When the parties started their family they decided that the children should enjoy all the benefits that derived from a parent’s full time care. Thus, the applicant gave up paid employment and from the time of the twins birth she was intimately and more extensively than any other person responsible for the children’s day to day care. Not only was she primarily responsible for the children’s actual care, but also responsible for making most of the day to day parenting decisions that needed to be taken. The respondent recognised her obviously competent, child focussed parenting style and comfortably left it to the applicant to make the daily decisions for them both. There are numerous examples in the evidence that reflect the applicant’s much greater involvement in the minutia of the children’s lives compared to the respondent’s. For example, the respondent deposes that the parties joined the Multiple Births Association, a support group for parents with twins. He is still a member of the association and receives its newsletters. Prior to separation he attended weekend events a few times a year. What he did not disclose was that the applicant took the children to association activities once or twice a week, writes the newsletters and was an office bearer of the association. This is but one example of many in which the respondent emphasises his involvement with the children but does so in a way that appears to attempt to mask the far greater role in the same activities that the applicant undertook.
Because he worked full time the respondent found it too taxing to take the children’s night time feeds and so getting up to them in the night was overwhelmingly their mother’s responsibility. The respondent attended school concerts and plays, school and preschool when he could, usually with the applicant. It was the applicant who took the children to playgroup, preschool and involved herself in the children’s lives to an extent that the respondent did not. Whilst the respondent took over their care when he arrived home in the evenings, and assumed it in the mornings at different times in the children’s lives, he did so in the context of the applicant’s full time care of the children.
I am satisfied that as at the date of separation the children’s mother was their prime care giver. From her more than any other person, the children derived their sense of security and stability. This necessarily follows from my assessment of the substantially greater time that she was actually responsible for their care and the quality of parenting that she gave the children. That situation has continued since separation.
Hence, not only do the children continue to derive their fundamental sense of stability from their mother, but to a greater degree than any other person she has provided the foundations upon which the children’s relationships, attachments and emotional wellbeing have been established. Throughout the entirety of the children’s lives the applicant has demonstrated a superior capacity to meet their physical, emotional and intellectual needs. I have no doubt that she will continue to do so.
Court counsellor Sheridan interviewed the parties and children. His investigation of the children’s attachments, wishes and adjustments included individual sessions with the children as well as observations of them with their parents. Reporting on V he said, “V presented as a happy and outgoing 6 year old child. V was well able to articulate her family’s living circumstances and reported enjoying both contact with her father and returning home to live with her mother. V understood the purpose of the assessment as being to decide where the girls lives. Projective techniques supported her verbalisations of happy family relationships.” When he reported on T the court counsellor said, “T’s interview presentation was that of a cheerful and communicative 6 year old girl. In the interview T reported that her parents were separated and that she enjoyed going to her father’s house for weekends and on one night a week. Projective techniques indicated T’s attachment to all family members.” R also “Presented as confident and happy within the interview situation. R was able to articulate her family situation to a level which was to a good age appropriate standard. Her description of family relationships and projective techniques indicate a happy child within her family.”
The court counsellor’s observations of the children with each of their parents corroborated his impression that the children were confident and happy. During the period that he observed the girls with their mother he saw, “Spontaneous interaction between the mother and the girls.” Which he concluded indicated “loving mother/daughter relationships”. The court counsellor reached the same conclusion of the children’s relationship with their father. During the observation session the father communicated with his daughters in a caring, focused and age appropriate manner.
The court counsellor’s observations and opinions must be given considerable weight. By and large they corroborate the parties’ evidence that these three children are happy, well adjusted children with close loving relationships with both of their parents. I am satisfied that the court counsellor’s opinion about the quality of the children’s relationship and their adjustment generally is accurate. Having accepted his opinion, which was not the subject of meaningful challenge, I am satisfied that this outcome reflects most favourably upon the applicant’s capacity as a parent. She has demonstrated over the children’s lifetime competent parenting that has ensured that the children’s physical, intellectual and emotional needs have been met at a continually high level. The father’s involvement with the children has been much less, but it too has contributed meaningfully to their adjustment. This means that prior to separation the children experienced positive parenting from both parents and from their point of view lived in an environment of mutual respect and love vis a vis their parents. This means that they did not experience their father’s daily absence from their lives as unsettling or impliedly a lack of interest in them. To the extent possible the respondent enthusiastically involved himself in the children’s lives and they have grown confident in his love for them.
Although prior to separation the respondent was primarily responsible for decisions concerning the children, this does not mean that the respondent was uninterested in the decisions taken. Once the parties had agreed that the twins should start preschool the parents visited B Preschool together before enrolling them there. They both attended the twins’ first day of preschool. They took a similar approach when it was time for the twins to start school. Initially they had disagreed about which primary school the twins would attend. The respondent preferred B Primary School whilst the applicant believed W Public School was superior. Having together visited both schools and spoken to parents whose children attended those schools the applicant prepared a list of the pros and cons of each school. After he reviewed the list the respondent agreed with the applicant’s preference for W Public School. Together the parents took the children for their first day at school in February 2001.
The respondent’s interest in the children’s education was not reflected in the same level of active participation in the children’s school life that the applicant undertook prior to separation. That is because he was at work and by and large unable to do so. Since separation and since contact has included the opportunity to take them to school, the respondent has enjoyed greater participation in the children’s school and pre-school life than he did previously. He has more direct awareness about the children’s friendships and contact their teacher than previously.
Although at an intellectual level the applicant has accepted the respondent’s greater involvement in the children’s school and social lives, at an emotional level it has taken her time to adjust to it. That is because in the roles that each undertook during the marriage the respondent identified the care of the children, and daily interaction, for example at their schools, as the applicant’s responsibility and hence domain. To some degree the applicant has been torn between recognising the benefit to the children of their father’s greater involvement in their lives and the additional strain on her managing the practical effects of it. Both parties complain that the other does not effectively communicate arrangements made concerning the children and that the process of agreeing to change previously established plans is difficult and stressful. For example the respondent told the court counsellor “he and the mother barely communicate and that he is despairing over the lack of, and hostile manner of the mother’s communication with him regarding the girls”. The applicant agrees that communication is poor and told the court counsellor “that it has descended into a bitch fight”. She agrees that currently the parties only form of reasonable communication is by e-mail. This is a poor substitute for effective oral discussion and problem solving.
Both parties impressed me as insightful, well educated and intelligent people. Both have a capacity for introspection and compromise. The difficulty both have is that when it comes to each other their capacity for compromise and reflection is undermined by their personal relationship. The applicant considers that the respondent is patronising towards her and does not respect her intellectual ability nor judgment. She gave examples which corroborated the reasonableness of her opinion. The court received numerous E-mails that passed between the parties. Child support is a highly contentious issue. The respondent resents the level of child support he is required to pay whilst the applicant considers that she struggles to provide the children with a reasonable standard of living. In an e-mail dated 22 May 2002[29] the respondent said, “The money I give you each week is ample for the children’s needs. But perhaps you’ve fallen into old ways and you are using some of it on yourself and not putting their needs first”…… “if you can’t manage on what I give you I will happily take the children back”. On matters concerning the children’s future education because he has tertiary qualifications and the applicant does not, the respondent has emphasised that his life experience better equips him to plan the children’s academic future than the applicant is able to. Superficially that is a reasonable proposition. However, it ignores the applicant’s intellect, capacity for good judgment and knowledge of the children. His discussions with her concerning the issue, as indeed was his oral evidence was patronising and lacked sensitivity.
[29] Exhibit I
The respondent made numerous complaints about the applicant’s failure to consult him on important issues concerning the children. And complained that when she did her focus was mainly money and not the children. For example on 9 August 2001 T fell from a trampoline and had a suspected fractured eye socket. He complains that the applicant did not wait at Hornsby Hospital and that she took T to The San, a private hospital. He describes the child’s injury as ‘just a black eye”[30]. The photograph of the child’s eye reveals that it was terrible and no doubt an alarming injury. On the one hand the respondent minimises the injury, complains that the applicant was only interested in insurance details whilst on the other resented her quick attention to the injury because she went to a fee paying hospital. In my opinion this was a potentially serious incident that needed both parties attention to their daughter, not distractions about why the applicant selected a particular hospital for urgent treatment. It augurs poorly for successful equal shared parenting.
[30] paragraph 43.1
Surprisingly another contentious issue is swimming lessons. This is an activity the respondent is particularly keen to promote. While the applicant has cooperated with this, she has tried to achieve the respondent’s cooperation in limiting swimming during winter. Although the children swim in an indoor heated pool, they have been prone to colds, something the applicant believes is aggravated by swimming. The respondent basically refused to accept her advice or the validity of her observations. Eventually the only way the applicant was able to achieve his cooperation was to give him a letter from the children’s doctor, Dr S. Both parties have complained when the other parent organises activities in “their time”. This tension became apparent in late 2002 when the respondent’s planned trip to Adelaide fell through. The applicant had happily agreed to have the children on the Thursday he was intending to be away and made arrangements for them. At the last minute the respondent did not go. There then ensued a heated e-mail debate about the respondent’s insistence that he have the children and the applicants determination that the children attend the planned Christmas production at their church.[31] There are similar examples where the applicant’s behaviour was unreasonable. Her refusal to discuss dance activities and sensitivity to the respondent’s observation that the children wanted their hats is another.
[31] Exhibit Q
Because their communication is difficult and too often ineffective there is a real possibility that the children will be overtaxed in a shared equal parenting regime. Both parents see themselves as taking responsibility for particular extra curricular activities. What they do not pay sufficient attention to is the effect on the children of the impact all the arrangements have on them. Presently they do gymnastics (with the applicant), swimming (with the respondent) and dance (the applicant). There is an unresolved debate about whether they should also do Little Athletics. I was left with the very strong impression that week about living arrangements would make it even more likely that the children will be overwhelmed by too many activities. This is most likely to wear them down and eventually undermine the happy existence that they presently enjoy and which serves them so well.
The court counsellor commented unfavourably on the parties’ capacity to problem solve about matters that they disagreed upon. He said in essence that while both parties desired better communication between them, both blamed the other for their difficulties. He recognised that their relationship had periods when they were able to get along adequately, but said that it “waxed and waned”. Their general communication style was that they would tell the other party what was happening but would not necessarily try to constructively resolve a dispute. This accords with my observations of the parties. I agree with the court counsellor’s opinion that effective equal shared parenting, if it is to have reasonable prospects of meting the children’s needs requires good communication between the parents. In my opinion much more sophisticated communication demonstrated over a considerable period than these parties have achieved. The husband’s counsel submitted in essence that this would mean that a recalcitrant parent could always undermine a legitimate application for shared residence. That may be so, but that same recalcitrant parent may find that this approach results in a change in residence.
In a geographical sense the parties will probably live sufficiently close to each other that shared equal parenting will be feasible. This could mean that the children would be able to go to school reasonably comfortably from both parents’ homes. The respondent hopes that he would live within 15 minutes drive of the applicant’s home. This distance is too great to have the children have their neighbourhood friendships immediately available after school from both homes. The respondent has gone to considerable effort to put himself in a position whereby he could have residence of the children or share it with the applicant. He has taken up employment with I Pty Ltd that entitles him to work from home for half of the time. Subject to the exigencies of an executive position he could work from home each second week. The terms of his contract make this clear.[32] His position is new and he is required to deliver 3-4 new products. He will need to visit Melbourne probably monthly for 2-3 days to supervise call centre staff. I was uneasy about the reality that the respondent would be certain to have completely available time so that he could fully attend to the children during the week he had them. His plans seemed to be aspirational and I felt reflected a lack of experience in the full time care of the children whilst at the same time managing a full-time executive position. Whilst I accept that he will be present at the home, it was clear that his employers pay him to provide sophisticated services to the company. He has always worked long hours in the industry in order to earn the salary he will be paid by I Pty Ltd. In spite of his evidence to the contrary I do not accept that the respondents hours will rarely exceed 35 hours each week. It is likely to be more than that quite routinely. Even if I am wrong the respondent’s availability to care for the children ultimately is not sufficient to justify a change to the children’s living arrangements as he suggests. There are compelling reasons associated with their welfare which mean that equal shared parenting or indeed a change in residence to the respondent is an outcome that is inconsistent with the children’s best interests.
[32] Annexure D to husbands affidavit.
The respondent’s alternative proposal that he have residence of the children given his concession to the court counsellor that “Mrs H is a good mother who loves the girls and is dearly loved by the girls” concerned me about his insight into the children’s emotional and psychological well-being. He barely acknowledged that the children might be distressed leaving their mother’s primary care. He did not consider that there was any basis for considering that they might be traumatised by it. To a considerable degree I felt the respondent in pursuing this application demonstrated a willingness to place his own needs significantly ahead of the children’s. It reinforced my sense that he only had limited insight into his contribution to the parties’ poor communication and lack of trust of each other. In spite of his assertions that he believed relations and communication might improve once the proceedings were over, his attitude represented by his application for residence makes this outcome possible but unlikely in either the short or long term.
Subject to the changes I will order I am satisfied that the current arrangements whereby the children live with their mother and have contact with their father is the arrangement that meets their needs to the greatest degree. Short term and long term. They have loving relations with both parents, are happy and healthy. Their lives are well ordered and they clearly thrive in the continued care of their primary carer.
Parenting orders are never final in the sense that children's and their parent circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospect for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties to a failed marriage moving on with their life. It can undermine their capacity to parent to the fullest extent of their ability. Two years after their separation, these parties are clearly uncomfortable with each other and do not have sufficient comprise vis a vis the other for me to confidently conclude that there will be no future litigation. Further litigation will fuel acrimony and undermine such capacity as these parties may have to let the unhappy past go. To the greatest extent possible I am satisfied that the court should make orders that will be least likely to involve these parties and children in future litigation. These orders I am satisfied achieve that outcome.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: