Herouz & Herouz

Case [2021] FamCA 112

FAMILY COURT OF AUSTRALIA

Herouz & Herouz [2021] FamCA 112

File number(s): SYC 4915 of 2017
Judgment of: MCCLELLAND DCJ
Date of judgment: 15 March 2021
Catchwords:

FAMILY LAW – CHILDREN – Best interests of the children – Where the mother seeks orders for sole parental responsibility and for the children to live with her and spend alternate weekends with the father – Where the father and the Independent Children’s Lawyer seek orders for shared parental responsibility and for the children to spend equal time with the parents – Where the mother asserts risk to the children’s emotional and psychological wellbeing in the extended care of the father – Where the Court finds the main risk to the children is continued exposure to the parental conflict – Orders made for shared parental responsibility and for the children to live with the mother and spend substantial and significant time with the father.

FAMILY LAW – PROPERTY – Final property orders – Where the parties seek orders for an adjustment of the matrimonial property pool – Where the Court finds that the contributions that the parties made during the course of their relationship is equal – Where The Court determines the husband is entitled to a 2.5% adjustment in his favour as a result of a greater initial contribution – Where the Court finds that the wife is entitled to a 10% adjustment on the basis of s 75(2) factors in respect to the career sacrifices she has made and to take on homemaker and parenting responsibilities which has enabled the husband to advance in his career – Orders made for a 57.5 per cent distribution of the matrimonial asset pool in favour of the wife.

FAMILY LAW – CHILD SUPPORT – Child support departure orders – Where the mother seeks child support departure orders for non-periodic payments of the children’s school and medical expenses – Where the parties acknowledge that the father currently pays those expenses – Consideration of the ss 116 and 117 Child Support (Assessment) Act 1989 (Cth) – Where the Court concludes that s 116(1)(b) is a jurisdictional precondition for making child support departure orders – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2), 79

Evidence Act 1995 (Cth) s 140

Child Support (Assessment) Act 1989 (Cth) ss 116, 117

Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)

Tribunals Amalgamation Act 2015 (Cth)
Cases cited:

A v A (1998) FLC 92-800

Adamson & Adamson (2014) FLC 93-622

B and B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Calder & Calder (2016) FLC 93-691

Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631

Coghlan and Coghlan (2005) FLC 93-220

Deiter & Deiter [2011] FamCAFC 82

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

DJM and JLM (1998) FLC 92-816

Drewett & Drewett [2012] FamCA 320

Dundas & Blake (2013) FLC…

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Herouz & Herouz [2021] FamCA 112
Case
[2021] FamCA 112
Decision Date

CaseChat Overview and Summary

In *Herouz & Herouz*, heard by McClelland DCJ, the Court considered parenting, property, and child support matters between Ms Herouz (the Applicant) and Mr Herouz (the Respondent). The parenting dispute involved the mother seeking sole parental responsibility and the children to live with her, while the father and the Independent Children’s Lawyer sought shared parental responsibility and equal time. The mother alleged risks to the children's emotional and psychological wellbeing in the father's extended care. In relation to property, the parties sought final orders adjusting their matrimonial pool. The child support aspect concerned the mother's application for departure orders regarding non-periodic payments for the children's school and medical expenses.

The Court was required to determine the best interests of the children in relation to parental responsibility and living arrangements, considering the mother's assertions of risk. In the property proceedings, the Court needed to assess the parties' contributions and consider relevant factors under section 75(2) of the *Family Law Act 1975* (Cth) to determine an equitable distribution of the matrimonial asset pool. For child support, the Court had to consider the jurisdictional requirements of sections 116 and 117 of the *Child Support (Assessment) Act 1989* (Cth) in relation to departure orders for non-periodic payments.

Regarding parenting, the Court found that the primary risk to the children was their continued exposure to parental conflict. Consequently, orders were made for shared parental responsibility, with the children to live with the mother and spend substantial and significant time with the father. In the property division, the Court found the parties' contributions to be equal, but granted the father a 2.5% adjustment for greater initial contribution, which was offset by a 10% adjustment in favour of the mother under section 75(2) for her career sacrifices and homemaker/parenting responsibilities. This resulted in a 57.5% distribution of the matrimonial asset pool in favour of the mother. The child support departure application was dismissed, as the Court concluded that section 116(1)(b) of the *Child Support (Assessment) Act 1989* (Cth) was a jurisdictional precondition that was not met.

The final orders reflected these determinations. Parenting orders established shared parental responsibility, with the mother having sole responsibility for decisions regarding the children's psychiatric and psychological counselling, and the children living with the mother. Specific arrangements were detailed for the children's time with the father, including alternate weekends and substantial time during school holidays, with detailed provisions for Christmas and Easter. Injunctions were imposed restraining the parties from denigrating each other or discussing parenting matters in the children's presence. Property orders directed the applicant to pay the respondent a sum of $188,711.80 within 60 days to retain the former matrimonial home, with alternative provisions for the respondent to pay the applicant or for the property to be sold and proceeds divided 57.5% to the applicant and 42.5% to the respondent. Each party was to retain their respective superannuation entitlements and other specified assets, with the joint bank account to be closed and the balance retained by the respondent. The child support departure application was dismissed.

Orders

Orders of the court

SYC4915 of 2017

BETWEEN:

MS HEROUZ

Applicant

AND:

MR HEROUZ

Respondent

MARSDENS LAW GROUP

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:

Parenting

1. Subject to Order 2, Ms Herouz (“the Applicant”) and Mr Herouz (“the Respondent”) shall have shared parental responsibility for the children, D born in 2007, E born in 2009 and F born in 2012 (collectively “the children”).

2. Despite Order 1, the Applicant shall have sole parental responsibility in determining whether the children require psychiatric and/or psychological counselling and/or therapy, including determining the identity of the therapist and the times at which the children should attend such therapy.

3. In exercising parental responsibility pursuant to Order 2, the Applicant shall:

(a) Notify the Respondent of any decisions she is called upon to make in relation to the children attending proposed therapy at least seven (7) days prior to making such decision, or as soon as practicable, whichever is the earlier;

(b) Consider any input the Respondent provides the Applicant in relation to the decision;

(c) Otherwise be solely entitled to make the said decision.

4. The children shall live with the Applicant.

5. Unless otherwise agreed by the parties in writing, the children shall spend time with the Respondent each alternative week from the conclusion of school or 3.00 pm on non-school days on each alternate Thursday until the commencement of school or 9.00 am on non-school days on the following Tuesday.

6. Unless otherwise agreed by the parties in writing, the children shall spend time with the parties during school holidays as follows:

(a) In the short NSW Gazetted School holidays, the children are to spend equal time at the end of terms 1, 2 and 3, on a week about basis.

(b) The Christmas school holidays as follows:

(i) For the Christmas school holidays as follows in even numbered years:

A. for weeks 1 and 2 of the holidays with Applicant;

B. for weeks 3 and 4 of the holidays with the Respondent;

C. for week 5 of the holidays with the Applicant; and

D. for week 6 of the holidays with the Respondent.

(ii) For the Christmas school holidays as follows in odd numbered years:

A. for weeks 1 and 2 of the holidays with Respondent;

B. for weeks 3 and 4 of the holidays with the Applicant;

C. for week 5 of the holidays with the Respondent; and

D. for week 6 of the holidays with the Applicant.

(c) For the purposes of Orders 7(a) and (b), changeover shall occur at 9.00am on Monday.

(d) For the purposes of Orders 7(a) and (b), the Monday following the last day of school will be considered the first day of each school holiday period.

7. Despite any other order, unless otherwise agreed by the parties in writing, the children shall spend time with the parties during the Christmas period as follows:

(a) In odd numbered years:

(i) From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Respondent; and

(ii) From noon on Christmas Day to noon on Boxing Day with the Applicant;

(b) In even numbered years:

(i) From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Applicant; and

(ii) From 12 noon on Christmas Day to 12 noon on Boxing Day with the Respondent.

8. Despite any other order, unless otherwise agreed between the parties in writing, the children shall spend time with the Applicant from 9.00 am on Mother’s Day until the next day at the commencement of school or, if not a school day, 9.00 am.

9. Despite any other order, unless otherwise agreed between the parties in writing, the children shall spend time with the Respondent from 9.00 am on Father’s Day until the next day at the commencement of school or, if not a school day, 9.00 am.

10. Despite any other order, unless otherwise agreed between the parties in writing, the children shall spend time with the parties during the Easter period as follows:

(a) In even numbered years:

(i) From 12 noon on Good Friday to 12 noon on Easter Saturday with the Applicant; and

(ii) From 12 noon on Easter Saturday to 12 noon on Easter Sunday with the Respondent;

(b) In odd numbered years:

(i) From 12 noon on Good Friday to 12 noon on Easter Saturday with the Respondent; and

(ii) From 12 noon on Easter Saturday to 12 noon on Easter Sunday with the Applicant.

11. The parties shall each facilitate telephone or video calls between the children and the other party on any day when the children are living with them on which falls a birthday for any of the children or the other party.

12. The children are permitted to attend any other special occasion or family event that may arise and neither party shall unreasonably withhold their consent in allowing the children to participate and attend special occasions and/or family events.

Changeover

13. Unless the parties are delivering or collecting the children from school, the parties shall collect the children from the residence of the other party at the commencement of the children’s time with that party.

14. The parties shall use their best endeavours to ensure changeover of the children at their respective homes occurs swiftly and promptly.

Communication

15. Each party shall give written notice of any change to their residential address, email address, or telephone number, within 24 hours of such change, to the other party.

16. The parties shall, when the children are in their care, facilitate the children telephoning the other party in accordance with the children’s wishes.

Injunctions

17. The parties are each restrained by injunction from denigrating the other party or a member of that party’s family or household within the presence or hearing of the children or permitting any other person to do so.

18. Unless otherwise agreed to between the parties in writing, the parties are restrained by injunction from attending the children’s events on days that the children are not in their care, except for the following:

(a) End of year school speech day;

(b) Parent teacher meetings;

(c) School awards ceremonies;

(d) School sports carnivals; and

(e) School assemblies.

19. The parties are each restrained from discussing parenting arrangements, matters relating to the children or issues that one party has with the other party in the presence of the children.

Property

20. Within 60 days, the Applicant pay to the Respondent the sum of $188,711.80 (“the settlement sum”). Simultaneously with the payment of the settlement sum, the Respondent shall do all acts and sign all necessary documents required to transfer his interest in the property known as B Street, Suburb C to the Applicant.

21. In the event of the Applicant being unable or unwilling to comply with Order 20, then the following shall apply;

(a) Within 90 days of the date of these orders, the Respondent pay to the Applicant the sum of $836,288.20 (“the default settlement sum”); and

(b) Simultaneously with the payment of the default settlement sum, the Applicant shall do all acts and sign all necessary documents required to transfer her interest in the property known as B Street, Suburb C to the Respondent.

22. In the event of the Respondent being unable or unwilling to comply with Order 21, then the parties shall do all acts and things and sign all documents necessary to sell the property known as B Street, Suburb C and divide the net proceeds of the sale according to the following percentages:

(a) 57.5 per cent to the Applicant; and

(b) 42.5 per cent to the Respondent.

23. Should it be necessary, the parties are granted liberty to apply to the Court, in the event that they are unable to agree in respect to the implementation of Order 22.

24. That the Applicant shall retain all her right, title and interest in the following:

(a) Bank accounts in her sole name;

(b) Her interest and entitlement to all superannuation funds standing in her sole name; and

(c) Motor vehicle 1.

25. That the Respondent shall retain all his right, title and interest in the following:

(a) Bank accounts in his sole name;

(b) Company R Shares registered in his sole name and any other shareholding in his sole name;

(c) His interest and entitlement to all superannuation funds standing in his sole name;

(d) The parties’ wine collection;

(e) His designer watch;

(f) Motor vehicle 2; and

(g) Motor vehicle 3.

26. Within 28 days of the date of these orders, the parties shall do all such acts and things, and sign all documents necessary, to close the joint ANZ Bank account (BSB: …, Account: …55), and the Respondent shall retain the balance.

27. Except as otherwise provided for by these orders, the parties each be declared solely entitled to all other property in their respective possession or control.

28. Except as otherwise provided for by these orders, each of the parties shall be solely liable for all debts and liabilities held in their respective names.

29. In the event that either party neglects to or fails to sign any document relevant to these orders within seven (7) days of such document being presented to him/her then, pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of the Sydney Registry of the Family Court of Australia shall be appointed to do all acts and things necessary to execute the deed or instrument necessary to give validity and operation to the sale of the matrimonial home.

Child Support Application

30. The Applicant’s child support departure application be dismissed.

Independent Children’s Lawyer’s Costs

31. In the event that either party opposes the making of orders requiring them to pay the costs of the Independent Children’s Lawyer, they are to, within 14 days of the date of these orders, provide written submissions of no more than two (2) pages to my associate.

32. In the event that neither party provides written submissions in accordance with Order 31:

(a) Within six (6) months of the date of these orders, the Applicant and Respondent each pay one half of the costs of the Independent Children’s Lawyer to Legal Aid NSW the sum of $6,679.06 each.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

In respect to the property aspect of the parties’ dispute, I have determined that the parties’ contributions during the course of their marriage were approximately equal. I have determined, however, that the father is entitled to an adjustment of 2.5 per cent in his favour as a result of a greater initial financial contribution. That adjustment is however offset by considerations set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) which I have assessed to be 10 per cent. This results in an overall distribution in favour of the mother of 7.5 per cent.BACKGROUND The parties helpfully agreed to the joint chronology that sets out agreed facts and, where not agreed, the parties’ respective contentions in respect to relevant events. I will subsequently set out my findings in respect to contentious factual issues where it has been necessary for a factual finding to be made in arriving at my conclusion as to the orders that I make in these proceedings. In 1975, the father was born. He is currently aged 45 years. In 1980, the mother was born. She is currently aged 40 years. In 2005, the parties married. In June 2005, the parties purchased the former matrimonial property at B Street, Suburb C (“the Suburb C property”), for the purchase price of $530,000 including stamp duty. The purchase was financed by a mortgage from Australia and New Zealand Banking Group (“ANZ bank”) in the sum of $465,000. The father contends that the remaining balance, being $53,000, consisting of 10 per cent deposit and $13,816.20 stamp duty, was financed from his personal savings and the mother did not contribute to these funds. The father contends those payments were made on or about 7 August 2005. Comparatively, the mother contends that the remaining balance of the purchase price was financed from the parties’ joint savings. I have accepted the father’s contentions in respect to those payments. The parties’ deposited their incomes, during periods of paid employment, into a jointly held ANZ bank offset account (“the joint offset account”) which was used to pay the mortgage secured over the Suburb C property. On 17 June 2005, the parties’ commenced cohabitation in the Suburb C property. In 2007, the parties’ child, D, was born. He is currently aged 13 years. In 2009, the parties’ child, E, was born. He is currently aged 11 years. In 2012, the parties’ child, F, was born. She is currently aged eight (8) years. From May 2007, there were periods of time whereby the mother was not in paid employment and cared for the children. The father contends that, in November 2015, an incident occurred whereby the mother shouted at him and pushed his glasses in his face. The mother contends that, on 11 December 2015, an incident occurred whereby the father became aggressive, intimidated the mother and shouted at her. The mother further contends that she was required to leave the Suburb C property to avoid further conflict. The father contends that, in 2016, he made a lump sum payment of $10,000 towards the mortgage secured over the Suburb C property.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In those circumstances, I do not propose to treat the parties’ superannuation entitlements separately from the parties’ non-superannuation assets. As the parties’ property can be adjusted in accordance with the percentage split which I propose to make in this matter, without disturbing their existing superannuation entitlements, I do not propose to make a superannuation splitting order. I will, however, take into consideration their existing superannuation entitlements as an existing asset that they each have on their respective sides of the balance sheet.Summary and conclusion in respect to the property aspect of the proceedings In this matter I have found that the net asset and superannuation pool of the parties is as follows: Having determined that the net asset pool, including superannuation, is $1,606,216, in circumstances where I have determined that the mother should have an adjustment in her favour of 7.5 per cent, the mother is entitled to a distribution that results in an outcome whereby she receives 57.5 per cent of the amount of $1,606,216 which is equivalent to $923,574.20. The mother currently has the following assets and superannuation: In circumstances where the mother currently has total assets including superannuation to the value of $87,286 it is necessary for the mother to obtain from the father additional funds of $836,288.20. Alternatively, in the event that she wishes to acquire the Suburb C property, it will be necessary for the mother to pay the father the amount of $188,711.80, being the difference between the sum of her total assets and the agreed value of the property at $1,025,000, less the amount of $923,574.20, being the adjustment that I have determined is required to achieve the percentage split of the net asset pool of 57.5 per cent to the mother and 42.5 per cent to the father. During the course of the proceedings the mother expressed a strong desire to acquire the Suburb C property and for title to be transferred to her name. In circumstances where the orders I have made will result in the children spending their time primarily with the mother, I propose to make orders providing the mother with the opportunity of raising funds for that purpose. I will specify a period of 60 days for that purpose. In the event that outcome cannot be achieved, the orders will provide for the father to have that opportunity on the payment of the additional funds of $836,288.20, which I have referred to above. If that cannot be achieved, as a final default position, the orders will provide for the property to be sold and the proceeds divided according to the percentages that I have determined in this decision. There is a small amount remaining in the joint offset account. Both parties agree that it should be closed. I have made an order to that effect with the small amount being credited to the father. Accordingly, in respect to property matters, I make the orders set out at the commencement of these reasons for judgment. CHILD SUPPORT DEPARTURE

Ratio Decidendi

Legal Principle Established

The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: see Deiter & Deiter [2011] FamCAFC 82 at [61]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N & S (1996) FLC 92-655 at 82,713 (per Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96]. ·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010).·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.Additional considerations