HILL & WATERS

FAMILY COURT OF AUSTRALIA

HILL & WATERS

[2015] FamCA 70

FAMILY LAW – PARENTING – Where the matter proceeded on an undefended basis – Where the husband seeks substantial and significant time with the children – Where the family consultant and Independent Children’s Lawyer support substantial and significant time between the husband and the children – Where the children have previously had a strained relationship with the husband – Where the family consultant opined that to strengthen the relationship between the children and husband the children need to spend more time with the husband – Order made that the children spend three nights per fortnight with the husband but the elder child does not have to spend time with the husband if he does not wish to but may spend additional time if he chooses – Order made for equal shared parental responsibility.

FAMILY LAW – PROPERTY – Where the matter was undefended – Where the husband seeks that the superannuation and non-superannuation assets be divided as to 70 percent in the wife’s favour and 30 percent in his favour – Where contributions were equal during the marriage – Where the wife has the ongoing primary care of the children – Where the husband has a far superior earning capacity – Orders as sought by the husband are just and equitable.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Hill

RESPONDENT:

Mr Waters

INDEPENDENT CHILDREN’S LAWYER:

Mr Christaki

FILE NUMBER:

SYC

7713

2012

DATE DELIVERED:

5 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

5 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Lewarne & Goldsmith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The applicant mother and respondent father have equal shared parenting responsibility for the children of the relationship namely B, born … 2000 and C, born … 2004 (“the children”).
The children shall live with the mother.
The current parenting orders in relation to the children spending time with the father shall remain in force until 7 March 2015 after which time all previous orders are discharged.
I note that an arrangement will be made for the children to meet with Dr D prior to 7 March 2015 with the understanding that Dr D would speak to the children about orders 5 – 16 below.
The children spend time with their father commencing 7 March 2015 in the following manner:
5.1.For the first two visits on alternate weekends the children shall spend time with their father from 10.00 am Saturday until 7.00 pm Sunday. For the purposes of this order the mother shall deliver the children to the father at 10.00 am and the father shall return the children to the mother at 7.00 pm.
5.2.For a further two visits on alternate weekends the father shall collect the children from school on Friday afternoon and shall return the children to the mother at 7.00 pm on Sunday.
5.3.Thereafter on the next alternate weekend, and then on each alternate weekend during school term, commencing from the conclusion of school Friday and concluding at the commencement of school on the following Monday, with such time to be extended to the commencement of school on Tuesday morning in the event that Monday is a public holiday.
5.4.For the first week of the school holidays at the conclusion Term 2 of each year.
5.5.For a period of two weeks during the Christmas longer school holiday period to commence at 5.00 pm on the first Friday after 1 January of each year.
The children shall spend time with their father on the following special occasions:
6.1.From 5.00 pm Christmas Day until 5.00 pm Boxing Day each year.
6.2.From 5.00 pm Easter Sunday until 5.00 pm Easter Monday of each year.
In the event that the children are not in their father’s care on Father’s Day, then the children shall spend time with their father from 6.00 pm Saturday preceding Father’s Day until 6.00 pm on Father’s Day.
For the purposes of orders 5, 6 and 7, B is at liberty to decline the time with his father if he doesn’t wish to spend the time. He also is at liberty to spend additional time as he wishes.
For the purposes of the above orders, where the father is not collecting the child from the school, the mother shall deliver the children at the commencement of the father’s time and the father shall return the children to the mother at the conclusion of the father’s time.
In the event that the children are in their father’s care on the Mother’s Day weekend, then the father’s time with the children shall be suspended from 6.00 pm on the Saturday preceding Mother’s Day until 6.00 pm on Mother’s Day.
The father shall make arrangements for himself and the children to attend and continue to attend upon Dr D, child, adolescent and family psychiatrist, for the purpose of confidential individual and family therapy with Dr D for as long as Dr D determines is necessary.
The mother, if she wishes to do so, is invited to participate in the confidential family therapy with Dr D and she shall pay the costs of her individual sessions with Dr D.
The father shall facilitate the children's attendances upon Dr D at such times and at such places as directed and arranged by Dr D from time to time and the father shall pay the costs of his and the children's individual and joint sessions with Dr D, including any joint sessions the mother may have with the children.
For the purpose of order 13, the father shall arrange all appointments for the children with Dr D and notify the mother within 24 hours of making the appointment of the appointment dates and times and the father shall collect the children from after school or during school on the day of either or both of the children's appointments with Dr D and shall return the children back to school or the mother, if the child/ren are not due to spend time with the father in accordance with court orders, no later than 1 hour after the conclusion of those appointments.
If either or both of the children are not available to attend upon Dr D due to illness then the mother shall notify the father as soon as practicable that the child/ren is/are unable to attend the appointment with Dr D and the mother shall within 24 hours provide to the father and the Independent Children's Lawyer a medical certificate from a registered medical practitioner indicating the nature of the child/ren's illness and including confirmation that in that medical practitioner's opinion that it would not have been possible for the child/ren to physically attend the appointment with Dr D.
The father and the mother shall each comply with all reasonable requests, referrals and recommendations of Dr D.

Property

Pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”), an order is made in the terms of paragraphs 18 – 26 below.
The applicant and the respondent will forthwith do all acts and things necessary to cause E Pty Ltd to list on the market for sale and sell the property situate and known as F Street, Suburb G with a real estate agent as agreed to between the parties. In the event that the parties are unable to reach an agreement as to a real estate agent, then the respondent husband shall provide to the applicant wife a list of three real estate agents together with their market appraisals and commission structures and the applicant wife shall choose one of the agents nominated from one of the three agents nominated by the husband within 14 days of being provided with the husbands list of agents. In the event that the wife does not make an election within 14 days then the husband is at liberty to nominate and appoint the agent of his choice.
Immediately upon the settlement of the sale of the property at Suburb G, the applicant and respondent cause the proceeds of sale shall be dispersed as follows:-
19.1.In payment of outstanding council, water rates and any other outstanding charges against the property.
19.2.In payment of agent’s commission and legal fees of the sale.
19.3.The balance thereafter to be placed into the Trust account of Lewarne & Goldsmith Solicitors until all Capital Gains Tax liabilities as are realised and paid subject to paragraph 23 below.
The parties forthwith do all acts and things necessary to cause E Pty Ltd to list for sale and sell the property situate and known as H Street, Suburb I with a real estate agent as agreed to between the parties. In the event the parties are unable to reach an agreement as to a real estate agent, then the respondent husband shall provide to the applicant wife a list of three real estate agents in the Suburb I area with their marketing campaigns and fee structures and the applicant wife shall choose one of the three nominated agents as proposed by the respondent husband within 14 days of being provided with the husbands list of agents. In the event that the wife does not make an election within 14 days then the husband is at liberty to nominate and appoint the agent of his choice.
Immediately upon the sale of the Suburb I property the applicant and respondent cause the proceeds of sale shall be dispersed as follows:-
21.1.In payment of council, water rates and any other outstanding charges on the property.
21.2.In payment of agent’s commission and legal fees of the sale.
21.3.The balance thereafter to be paid into the Trust account of Lewarne & Goldsmith Solicitors until the Capital Gains Tax liability of the applicant and respondent respectively is realised subject to paragraph 23 below.
Immediately upon the settlement of the first property to sell and at settlement of the sale as referred to in paragraphs 18 and 20 above, the applicant and respondent are to cause the following liabilities of the husband are to be discharged:
22.1.An amount of $5,976.30 to be paid to the respondent husband representing reimbursement to the respondent husband of the following expenses he outlayed in preparing the property at Suburb J for sale:
22.1.1.Carpet deposit paid $1,000.00 paid 16 November 2013.
22.1.2.Final carpet invoice $2,137.00 paid 11 December 2013.
22.1.3.Laws $45.00 paid 17 December 2013.
22.1.4.Plants $327.00 paid 17 December 2013.
22.1.5.Landscaping works $709.50 paid 17 December 2013.
22.1.6.Electrical works $327.80 paid 27 December 2013.
22.1.7.Handyman costs $1,430.00 paid 30 December 2013.
22.2.In payment of the husband’s outstanding tax bill for Capital Gains Tax from the sale of the Suburb K property together with all interest accrued (estimated at $28,000.00).
22.3.The balance of the costs ordered by Federal Circuit Judge Monahan to be paid to the Respondent husband in the sum of $176.00
The respondent and applicant each will direct Messrs Lewarne & Goldsmith Solicitors to pay the Capital Gains Tax or any tax associated with the sale of F Street, Suburb G in the name of E Pty Ltd and H Street, Suburb I in the name of E Pty Ltd Limited to be paid and after all taxation is paid for the disposal of any asset of the E Pty Ltd, the balance of funds retained in Lewarne & Goldsmith Solicitors Trust account are to be dispersed as follows:-
23.1.Such sum as required to ensure the wife receives 80 per cent of the nett non superannuation pool after the net asset pool has been calculated following the sale of the remaining two properties and all taxes have been paid and subject to the other assets of the marriage on the balance sheet.
23.2.Such sum as required to ensure the husband receives 20 per cent of the nett non superannuation pool after the net asset pool has been calculated following the sale of the remaining two properties and all taxes have been paid and subject to the other assets of the marriage on the balance sheet.
The applicant wife is otherwise to retain what she has received to date and what is currently in her possession and control including (Subject to the adjustment in order 6 above):-
24.1.Proceeds from the sale of the shares owned by E Pty Ltd, $103,192.00 (already received).
24.2.Lump sum already paid $2,650.00
24.3.Proceeds received from the wife from the sale of the property L Street, Suburb K, $93,000.00.
24.4.Total already received to date in cash from the wife $198,842.00.
24.5.2 x motor vehicles ($18,000).
24.6.Wife’s superannuation (estimated $183,000.00).
The respondent husband is otherwise to retain what he has in his possession and control including:
25.1.CBA shares ($8051).
25.2.Superannuation (currently $234,781.00).
25.3.Husband’s motor vehicle ($28,000).
In the event that either party refuses or neglects to sign any document within a reasonable time from any such request to give effect to these orders then the Registrar of the Family Court Sydney is appointed to execute any such document to give effect to these orders pursuant to Section 106A of the Act.
All other outstanding applications be dismissed.

Costs

Each party pay the Independent Children's Lawyer the sum of $1,650 by way of the Independent Children's Lawyer’s costs. Those monies to come from the trust account of Lewarne & Goldsmith Solicitors.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill & Waters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7713 of 2012

Ms Hill

Applicant

And

Mr Waters

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

This matter proceeds before me on an undefended basis. The wife did not appear at the final hearing today, nor did she attend the first day of the hearing on 18 December 2014. She was given notice on a number of occasions of the court events but failed to file any material in respect of the final hearing. She was also served with short minutes of orders sought by the husband and by the Independent Children’s Lawyer.
The husband seeks final parenting orders for the children, B Waters (“B”), born in 2000 and currently aged 14 years and 9 months old, and C Waters (“C”), born in 2004 and currently aged 10 years and 3 months old. Together I will refer to them as the (“children”). The husband also seeks property orders.
Interim consent orders were entered into between the parties on 6 March 2013 that provide for the children to live with the wife and spend time with the husband from 9.00am until 9.00pm each alternate Saturday and 9.00am until 7.00pm each alternate Sunday. Since September 2014, following recommendations of Dr D who is providing family therapy to the children, B has elected to spend time with the husband only from 10.00am until 2.00pm each alternate Sunday. He no longer spends time with the husband on Saturday. C has continued to spend time with the husband in accordance with the interim orders.
The husband has re-married and he and his new wife, Ms M, have one child together. Ms M has recently re-joined the workforce.

APPLICATIONS

The husband proposes that the parents have equal shard parental responsibility for the children and the children live with the wife. He seeks a transitional arrangement for a period of eight weeks but ultimately that the children spend time with him each alternate week from the conclusion of school on Friday to the commencement of school on the following Monday, with the caveat that B can choose not to go. In respect of holiday time, the husband seeks the children spend time with him for the first week of the school holidays at the conclusion of Term 2 each year and for a period of two weeks during the Christmas school holiday period from 5.00pm on the first Friday after 1 January each year. The husband also seeks orders in relation to other holidays and special occasions. As well as B being at liberty to decline the time with his father if he doesn’t wish to spend the time he also will be at liberty to spend additional time if he wishes.
The Independent Children’s Lawyer seeks orders consistent with the husband. However, further orders are sought by the Independent Children’s Lawyer in respect of family therapy and the husband supports those applications.
The husband seeks final property orders which will effectively result in him receiving 20 percent of the non-superannuation assets. If superannuation is treated as an asset the percentage division is 70/30 in the wife’s favour.
Although the wife has failed to participate I take into account that in her Initiating Application filed 1 March 2013 she sought a division of superannuation and non-superannuation assets as to 70 percent to the wife and 30 percent to the husband. She also sought additional orders in respect of spousal maintenance and child support but I will be dismissing those applications on the basis that she has not participated in the proceedings and has not consequently prosecuted those applications.

DOCUMENTS RELIED UPON

The husband relies upon:
9.1.Minutes of Order in the husband’s case outline document;
9.2.Affidavit of Mr Waters filed 19 January 2015;
9.3.Husband’s financial statement filed 19 January 2015;
9.4.Family Report of Ms N released 21 October 2013.
The Independent Children’s Lawyer has also asked me to read:
10.1.Child Inclusive Conference Memo of Ms N dated 19 February 2013.
10.2.Child Inclusive Conference Memo of Ms N dated 17 May 2013.

DETAILED CHRONOLOGY

The husband was born in 1970 and is currently 44 years of age.
The wife was born in 1973 and is currently 41 years of age.
In March 1999 the husband purchased a property at L Street, Suburb K (“the L Street property”)
The parties commenced living together in a de facto relationship in April 1999 when the husband moved into a property the wife had purchased at O Street, Suburb K (“the O Street property”). At that time, the wife’s daughter from a previous relationship, Ms P (“Ms P”), was also residing with the parties. The husband says he treated Ms P as his own child and supported her until she moved out in 2009. There were problems arising from the husband’s relationship with Ms P which I will discuss later.
At the commencement of the relationship the husband was employed by Q Bank. The husband remained at this employer until 2002 when he moved to the R Bank and was promoted in 2006. In 2008 the husband moved to the S Bank and remains in that position.
At the commencement of the relationship the wife was also working for the Q Bank. She remained in that employment until 1999 when she took up a position with the Australian Taxation Office (“ATO”).
B was born in 2000. Following B’s birth the wife took 12 months maternity leave.
In March 2001 the O Street property was sold for $135,000. The net proceeds were $60,000. The parties put those monies into a property at Suburb J, which was purchased in joint names for $200,000. The parties thereafter built a home on that land for $175,000. The Suburb J property became the former matrimonial home.
C was born in 2004. Following C’s birth the wife took two years off work to care for the children.
The wife returned to work in 2006 part time with the ATO. She remained in this employment until 2009 when she took extended sick leave.
In 2006 the husband received an inheritance from the estate of his maternal grandmother in the sum of approximately. $130,000. That money was used to reduce the joint borrowings of the parties.
In or about 2006 a discretionary trust controlled by the parties purchased a property at Suburb G for $170,000. The funding for that property and additional monies for extensive renovations was all borrowed. That property was rented out. The loan over the property has now been discharged.
In 2010 the parties purchased a property at Suburb I for $220,000. The total costs were again borrowed. Again the trust was the vehicle by which the property was acquired. The loan against the property has now been discharged entirely. The property was used as a holiday home for the family.

The parties were married in 2011.
In July 2011 the wife established a company T Pty Ltd.
The parties separated on 1 March 2012. They continued to reside under the same roof as a separated couple. The husband continued to transfer all of his income into the parties’ joint account but at some later point began to transfer only $4000 of his fortnightly income to cover bills and matrimonial expenses.
On 15 June 2012 the wife changed the locks on the former matrimonial home and the husband was unable to enter the house.
On 22 June 2012 the wife had the locks changed on the Suburb I property.
The husband commenced residing with his new partner in or about August 2012. At that time she had two children, U, aged 15 years old, and V, aged 10 years old. Those children spend each alternate week residing with their mother and the husband.
On 29 September 2012 the wife unilaterally sold shares owned by the E Pty Ltd Pty Limited and received $46,602.43
In October 2012 the wife and children moved out of the former matrimonial home and into rental accommodation.
In April 2013 the L Street property was sold for $320,000. The wife received as a result of consent orders of 18 February 2013 an amount of $93,000 from the sale of that property and $55,000 was paid into the trust account of the husband’s solicitors to be used for future Capital Gains Tax payments.
After separation there were difficulties in relation to the children spending time with their father. The husband had to bring a contravention application and as a result of those proceedings the wife was required to enter into a bond for a period of 12 months. There was makeup time ordered including overnight time during the 2013/2014 Christmas school holiday period.
The children commenced counselling with Ms W during 2013, however that counselling ended at the end of 2013.
Ms N released her report on 21 October 2013. Since March 2014 the children have engaged in therapy with Dr D.
In December 2013 the former matrimonial home at Suburb J was sold for $758,500. There was a difficulty in relation to the wife signing documents for the scheduled settlement. An urgent application was filed but the wife ultimately signed the discharge before the scheduled date in court. All those funds went towards discharging liabilities.
The husband and Ms M’s first child, X, was born in 2013 and is now 15 months old.
There were occasions when B left his father’s premises and returned to his mother’s premises during times he was supposed to be with his father.
On the Australia Day long weekend in January 2014, on the final makeup occasion, both children jumped out of the husband’s front window. The children caught a taxi to the wife’s home. The husband then collected the children and they spent the scheduled overnight time with him.
Apart from last Christmas night, no incidents have occurred since January 2014 where there have been difficulties with compliance.
The parties were divorced on 19 February 2014.
The husband and Ms M were married in late 2014.
I made some orders on 18 December 2014 for the children to spend time with the husband on Christmas 2014 from 5.00pm until 5.00pm Boxing Day. The husband arrived to collect the children but no one was home. At 10.15pm Christmas night, B telephoned the husband to advise that the children could not attend because they were stuck in a storm. The children were dropped off to the husband by the wife at around 10.00am Boxing Day morning.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

The family consultant opined that for the children to have a satisfying relationship with the husband that covers the wide range of family experiences of a weekend and week days, they need to spend more time with him.
The Independent Children’s Lawyer submitted that any ongoing relationship between the children and both parents would be of benefit to them.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

I am mindful that the most recent expert report in this matter was written in October 2013 and as I have said the children have been seeing Dr D since March last year.
The wife contends the husband was verbally and emotionally abusive of her throughout the marriage and also of her daughter from a previous marriage. That is what she told the family consultant. She also asserted that the children were exposed to the husband’s alleged verbal abuse of her such as yelling of profanities. She said on one occasion the husband threw an item at her which struck the wall and that he would often grab her or push her against the wall. The wife stated that the husband was usually intoxicated when he was aggressive.
The wife told the family consultant that during the marriage the husband drank alcohol to excess on most days of the week. She raised concern that the husband could behave abusively towards the children while drunk.
The husband expressed to the family consultant that the marriage was characterised by mutual “yelling”. He believed the wife was often depressed and her behaviour towards him was as a result of her moods and anger. He said he did not push or physically assault the wife but did on one occasion throw a dinner plate against the wall in frustration.
This matter is being heard on an undefended basis and none of these assertions have been the subject of any testing.
The husband admitted he probably overstepped the mark in his role as a step-father to Ms P. He said the wife did not support his discipline of her. He described Ms P has an angry teenager who made verbal derogatory comments to him and he told the family consultant that Ms P hit the husband and they both “ended up both knocked to the floor”.
The family consultant in her assessment did not find that the husband was presently abusive of the children. She did opine however that past issues may result in certain difficulties with the children’s ongoing relationship with the husband. She had hoped there would be therapy and as I stated Dr D has been seeing the children in 2014 and will continue to do so.
The Independent Children’s Lawyer submits that both parents are protective of the children in relation to physical and emotional harm and both parents have utilised the services of Dr D in relation to individual and family therapy.

The additional considerations

Children’s views (s 60CC(3)(a))

B expressed to the family consultant that the feels “uncomfortable” when with his father because it is “weird” being around him. He said his father could be aggressive for apparently no reason. He described his relationship with his father as “awkward”, “uncomfortable” and “weird” and said he was worried his father might resort to “violence again, some violence against me”. B also stated he remembered his father drinking to excess “coming home drunk and vomiting before going to bed”. He said he recalled arguments between his parents “once a week” and his father was “drunk three nights a week, to a maximum of six or seven nights a week, but usually four or five nights a week”.
The family consultant noted that B was inconsistent with his account of the relationship between his father and Ms P. He said there were heaps of “fights and violence” between Ms P and the husband. Later in the interview he said he did not recall any violence between the husband and Ms P.
B told the family consultant he did not want to spend time with his father.
Again I emphasise, firstly these assertions are untested in the context of this hearing and this information is more than a year old, during which time there has been family therapy.
C described her relationship with the husband as ‘uncomfortable”. She explained she did not like being around Ms M’s children and expressed she did not feel like the husband had “made an effort to see us by ourselves because the other kids are always there”. She said she did not like those children.
When asked, C included amongst her three wishes that one of them be “not to see her Dad”. She confirmed to the family consultant she would prefer to spend time with the husband without Ms M’s children being present.
The Independent Children’s Lawyer submitted that the weight of the children’s wishes should be balanced against additional considerations and the benefit of the children having a meaningful relationship with both their parents.
Again I am mindful of the fact that a year has passed and the children have been having therapy with Dr D with each of the parents since March 2014.

Relationships of the children with the parents and other persons (s 60CC(3)(b))

The children seem to have a close and loving relationship with the wife. The children live with the wife.
The wife told the family consultant that the relationship between the children and the husband had deteriorated to such an extent that they, especially B, do not feel “comfortable” and do not wish to spend time with him. She reported she had difficulties getting the children to see the husband. I note that apart from a relatively minor hiccup on Christmas night 2014, since the wife was placed on a bond there has not been any other occasion where the wife has been unable to get the children to go to their father.
The wife also expressed to the family consultant that she believed there to be a fundamental problem in the husband’s relationship with the children in that they do not “trust” him. She said the children believe the husband does not respect them but sees them as “things”.
The husband expressed concern to the family consultant about the poor state of his relationship with the children in October 2013. He said he believed at that time C was managing better than B.
The family consultant observed the wife, B and C to interact with ease and as a cohesive threesome.
The family consultant noted that in the morning observation of the children with their father, there was little interaction between them and the children initially ignored their father. She recorded that “their relationship appeared awkward”. In the afternoon’s observation the children initially appeared nonplussed and greeted the husband indifferently. She recorded that the husband appeared stilted and lacking in confidence. Eventually the husband and children were happy to play a board game and the children became engaged with the husband. The family consultant noted that they appeared “to find a level of comfort with each other”.
When observing Ms M, her daughter, and C, the family consultant observed them to appear familiar and relaxed in each other’s company. However, initially the children did not interact with Ms M’s children.
Again all those observations are made as the most recent professional observations I have, and I take into account that since the observations were made there has been 2014 therapy with Dr D.

Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the child (s 60CC(3)(c))

Significantly, the wife has not participated in these proceedings of recent times in any meaningful way.
The wife has not complied with directions of the Court.
The husband, by way of consent orders, has been responsible for making appointments with Dr D and taking the children to the appointments.
The husband has pressed seeing the children on a regular basis. The husband has had to file a contravention application in relation to the wife’s non-compliance with orders.

Extent to which each parent has fulfilled their obligation to maintain the child (s60CC(3)(ca))

The husband has continued to be up to date with his child support payments and also pays for their school fees and private health insurance. The husband also meets all the children’s costs in relation to therapy with Dr D.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

The children do not currently spend overnight time with the husband, although I am asked by both the husband and the Independent Children’s Lawyer today to make orders that will graduate to that position.
I find the children are likely to be able to manage this change with the assistance of Dr D.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

Not applicable.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f))

The wife has had poor mental health which she attributed to problems in the marriage. She told the family consultant the husband made her feel “trapped, dependent and lonely”. She said her mental health suffered due to the stress of a poor relationship and the husband’s alleged aggressive behaviours towards her daughter, Ms P.
The wife in October 2013 told the family consultant she is now mentally well and supported emotionally and socially by family members.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

At the time of the family report, B’s grades at school had been consistently falling and his level of absenteeism from school had increased.
I am heartened by reading the children’s school reports provided today, (Exhibit 1). I would infer the treatment and time the children are spending with Dr D has had something to do with the improvement in school performance. It is almost certainly true that B has improved since the family consultant recorded he was presenting expressionless and uncommunicative, and at times inconsistent and incoherent. She then opined that B’s thought processes appeared to be impaired. She suggested that B was at risk, or already suffering from, mental health difficulties, particularly depression. She raised concern that the wife appeared not to appreciate the extent of his problems.
That information needs to be read in light of B’s most recent school report which shows excellent grades particularly in Maths and Science.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))

The wife’s failure to take part in the proceedings is of concern.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

Not applicable.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

The Independent Children’s Lawyer submits that the children need finality and certainty in their arrangements and these proceedings need therefore be brought to an end.

Any other relevant fact or circumstance (s 60CC(3)(m))

Not applicable.

EQUAL SHARED PARENTAL RESPONSIBILITY

The family consultant noted that the usual circumstance in which a shared parental responsibility order would be made, were far from being present given the state of the communication between the parties and the extent acrimony remains present. Normally those indicators are matters which would contraindicate the making of a shared parental responsibility order. In this case I do not on the evidence make any findings of existence of family violence so the presumption of parental responsibility applies. If I made an order what would have to happen is the parties would be required to make a genuine effort to consult one another in relation to any long term decision. True it is that if they were not able to agree, the matter would have to come to court. That is probably a better outcome than placing parental responsibility solely in the hands of the wife in circumstances where she has demonstrated a total lack of willingness to engage with the husband in any proper way in these proceedings in recent times.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

Having decided to make an order for equal shared parental responsibility I have to consider whether or not I make an order for equal time or substantial or significant time.
The husband is not seeking an order for equal time.
The final proposal by the husband and Independent Children’s Lawyer is a substantial and significant time order, and I find that is in the best interests of the children to make an order in the terms that have been sought and I proceed to do so.

APPROACH TO PROPERTY ADJUSTMENT

In this matter my task is to:
96.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
96.2.Determine whether it is just and equitable to make an order altering those interests and if so;
96.2.1.Identify relevant contributions and assess them;
96.2.2.Consider relevant matters referred to in Section 79(4)(d) – (g) of the Act;
96.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

The balance sheet, as incorporated from the husband’s case outline document, is set out below. The balance sheet indicates that the net assets including monies already received by the wife and superannuation are somewhere approaching $1,100,000.

Item no.	Title	Description
1	J	F Street, Suburb G	$190,000.00
2	J	H Street, Suburb I	$270,000.00
3	J	Motor Vehicle 1	$15,000.00
4	J	Motor Vehicle 2	$3,000.00
5	H	S Bank shares - 97 shares	$8,051.00
6	H	motor vehicle 3	$28,000.00
7	W	Shares sold by wife and proceeds retained solely by wife of the shares owned by E Pty Ltd P/L	$103,192.00
8	H	Lump sum paid by husband as ordered by the court to be classified at final hearing	$2,650.00
9	W	Proceeds received by wife from sale of the property at L Street, Suburb K	$93,000.00
10	W	Super	$183,000.00
11	H	S Bank super	$239,952.00
Total assets			$1,135,845.00
Item no.	Title	Description
12	H	Funds owed to husband for repairs carried out to Suburb J property prior to sale	$5,976.00
13	H	Balance of husband's outstanding CGT for sale of property at L Street, Suburb K	$36,000.00
Total liabilities			$41,976.00
Total net assets			$1,093,869.00

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out above demonstrates, the assets are held unevenly.
The husband wishes me to make an order under s 79 and in all the circumstances, I find that it is just and equitable to make an order altering property (including adjusting liabilities).

CONTRIBUTIONS

Initial Contributions

At the commencement of cohabitation the wife owned the O Street property, subject to a mortgage. The husband had also just purchased the L Street property. There might be a slight adjustment of initial contributions in favour of the wife but this adjustment is outweighed by inheritance the husband received in 2006 from his grandmother’s estate.

Financial Contributions

Both parties were employed during the relationship. The husband asserts that throughout the course of the relationship the parties intermingled finances and I accept all of his employment income was paid into the household, as was the wife’s when she was working.
The parties also jointly sold and purchased property throughout the relationship in their names and also through the family trust. Shares were also purchased by the family trust. The wife sold all shares in the family trust after separation and received the totality of proceeds.

Non-Financial Contributions

The wife was the primary carer of the two children during the marriage. The husband did however assist with the care of the children.

Post Separation Contributions

The husband paid most of the costs to prepare the Suburb J property for sale and has paid all mortgage payments on the property following separation.
Following separation the husband continued to deposit his income into the joint account, initially the full amount of that income and later an amount of $4000 per fortnight. From July 2012 the husband began only depositing $400 per week but paid all bills including mortgage repayments, utilities, insurances and children’s expenses as presented to him by the wife. The husband ultimately stopped depositing any money into the joint account as he became aware the wife had been withdrawing funds without his consent. The husband set out in his affidavit details about when he stopped this arrangement, and a schedule of withdrawals the wife made from the account.
Since separation the parties have sold the L Street property and the wife has received proceeds of that sale. I have also referred to details of the sale of the former matrimonial home above.
There is a liability outstanding in relation to Capital Gains Tax which I am told today has reduced to about $28,000.

Conclusion on contributions

Overall I am comfortable in making a finding, as sought by the husband, that contributions towards the acquisition, conservation and improvement of the property of the parties, during the marriage, should be seen as equal.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

The husband is 44 years of age and the wife is 41 years of age.
The wife had previous mental health issues which the husband says have been addressed and are no longer an issue.
The wife is not in any paid employment. The husband contends the wife would be able to find employment.
I have no information from the wife because of her non participation in the proceedings, as to what her current earning capacity really is.
The husband accepts that he has a far superior earning capacity, and has an income of about $200,000 gross a year.
The husband’s new wife also has a good earning capacity.
The wife will have the ongoing primary care of the two children who are aged 14 and 10.
On the basis of the evidence which I have, a 15 percent adjustment for s 79(4)(d) – (g) matters in favour of the wife is appropriate.

JUST AND EQUITABLE

The result of contribution and s 79(4)(d) – (g) findings leads to an approximate 65/35 division of assets (both superannuation and non-superannuation assets) in the wife’s favour.
The orders which the husband proposes achieve an approximately 65/35 division of all the assets of the parties (including superannuation assets). The orders are based on an 80/20 division in the wife’s favour of the non-superannuation assets after payments are made to the husband for capital gains tax and repairs carried out to the Suburb J property.
I find that the orders proposed by the husband to be just and equitable and otherwise appropriate.

CONCLUSIONS / ORDERS

I previously noted that the wife has not appeared at the final hearing and has failed to prosecute her spousal maintenance and child support orders and those applications will be dismissed.

COSTS OF THE INDEPENDENT CHILDREN'S LAWYER

The Independent Children's Lawyer made an application for costs. The only significant relevant matter pursuant to s 117(2A) of the Act is the financial circumstances of the parties. The Independent Children's Lawyer is to be treated as being unfunded. Both parties have the capacity to and should pay the costs of the Independent Children's Lawyer as sought.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 February 2015

Associate:

Date:

[2015] FamCA 70

5 February 2015

Key Legal Topics

Areas of Law

Family Law

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Costs