Hills and Caldwell (No 2)
[2020] FamCA 905
•27 October 2020
FAMILY COURT OF AUSTRALIA
| HILLS & CALDWELL (NO. 2) | [2020] FamCA 905 |
| FAMILY LAW – PARENTING – Where the parents have had poor communication – Where this communication has improved since separation – Where the parents can agree on major long term issues – Order for equal shared parental responsibility for the younger two children – No order for parental responsibility for child aged almost 16 years – Orders for the two younger children to spend five nights per fortnight with the mother. FAMILY LAW – PROPERTY – Where neither party made a significant initial contribution to the marriage – Where contributions during the marriage were equal other than a gift of $50,000 from the husband’s parents – Where the husband’s post separation contribution was greater than the wife’s – Husband’s contributions assessed as 70 per cent of the net property and the wife 30 percent – Where there is an adjustment for the wife under section 75(2) of the Family Law Act 1975 (Cth) – Where that adjustment is ten per cent in favour of the wife. |
| Australian Passport Act 2005 (Cth) s 11 Family Law Act 1975 (Cth) ss 60CC(3), 61(C), 61DA, 65Y, 75(2), 79, 90XT(1)(a),(4) Family Law (Superannuation) Regulations 2001 Limitation Act 1969 (NSW) s 14 |
| Kennon & Kennon (1997) FLC 92-75 |
| APPLICANT: | Mr Hills |
| RESPONDENT: | Ms Caldwell |
| INDEPENDENT CHILDREN’S LAWYER: | Doolan Wagner Family Lawyers |
| FILE NUMBER: | SYC | 7626 | of | 2015 |
| DATE DELIVERED: | 27 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 13, 14 & 15 October 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Blackah |
| SOLICITOR FOR THE RESPONDENT: | Marsdens Law Group |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Doolan Wagner Family Lawyers |
Orders
IT IS ORDERED
PARENTING
That the parents have equal shared parental responsibility for the children Y born … 2006 and Z born … 2008 (“the children”).
That the children live with the husband and spend time with the wife during school term as follows:
(a) In week 1, from Wednesday after school until 5 pm on Sunday.
(b)In week 2, from after school on Wednesday until school starts on Thursday provided that this time can be extended to Friday, in relation to either child, by agreement.
That, in the absence of agreement, the children spend time with the parents during school holiday periods as follows:
(a)With the husband from 9 am on 1 January until 12 noon on 15 January each year.
(b)With the wife from 12 noon on 15 January until 3 pm on 29 January each year.
(c)With the wife in odd numbered years from 9 am on 21 December until 3 pm on 24 December and from 6 pm on 28 December until 3 pm on 1 January.
(d)With the wife in even numbered years from 9 am on 19 December until 9 am on 21 December and from 3 pm on 24 December until 6 pm on 28 December.
That, in the absence of agreement, the children spend time with the parents during Easter as follows:
(a)With the wife in odd numbered years, from 3 pm Easter Saturday until 3 pm on Easter Monday and in even numbered years from 3 pm on Holy Thursday until 3 pm on Easter Saturday.
(b)With the husband in odd numbered years, from 3 pm on Holy Thursday until 3 pm on Easter Saturday and in even numbered years from 3 pm Easter Saturday until 3 pm on Easter Monday.
That, notwithstanding any other order, the children spend time with the wife on the weekend of Mother’s Day from 3 pm on Saturday until 6 pm on Sunday.
That, notwithstanding any other order, the children spend time with the husband on the weekend of Fathers’ Day from 3 pm on Saturday until 6 pm on Sunday.
That unless otherwise agreed the parties are to communicate by email in relation to the children and keep each other advised of a current email address.
That each parent provide a response by email to any request by the other within 48 hours of receiving such request.
That each party notify the other as soon as possible of any medical emergency, illness or injury suffered by the children that requires treatment by a health professional.
That the wife, within seven days of these Orders obtain a referral from a general practitioner for Z to attend a consultation with a paediatric respiratory specialist and the parent in whose care Z is at the time of the first available appointment shall take Z to the appointment and the parents shall follow the recommendations and advice of that specialist, including, but not limited to any recommendation in relation to an asthma plan.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
IT IS ORDERED BY CONSENT
That the parties shall continue to reside within a radius of 10km of V School.
That unless agreed to in writing the children shall continue to attend their current schools.
That pursuant to section 65Y(2)(b) of the Family Law Act1975 (Cth) the parties shall be permitted to take the children from the Commonwealth of Australia and that pursuant to section 11(1)(b) of the Australian Passport Act 2005 (Cth), the children are permitted to travel internationally for the purpose of orders provided that the travelling parent has:
(a)Provided written notice of their intention to travel no less than six weeks prior to the date of departure.
(b)Provided a full copy of the itinerary, including flight details and accommodation details, and contact numbers for the children and return ticket no less than 7 days prior to departure.
(c)Provided a copy of the certificate of travel insurance in respect of the children no less than 7 days prior to departure.
That in the event that either party plans to take the child interstate for a holiday, the parent that wishes to travel:
(a)Provides written notice to the other parent no less than two weeks prior to the date of departure.
(b)Provides a full copy of the itinerary, including flight and accommodation details, and contact numbers for the child to the other parent.
That in the event that either party plans to take the children on an international holiday the parties shall do all things and sign all documents necessary to ensure that the children have a current Australian Passport, at the cost of the travelling/requesting party. Such passport shall remain in the custody of the travelling/requesting party and not be used for international travel other than in accordance with Order 14. That party shall make the passport(s) available to the other parent to facilitate any subsequent travel pursuant to Order 14 or as otherwise agreed.
That each of the parties are to do all acts and things necessary and give all irrevocable authorities to ensure that their respective details are provided to any school the children may attend from time to time and further in this regard that copies of all reports, merit cards, school photograph order forms, any written material or newsletters and any other documents are sent to both parties.
That both parties and members of their immediate families be entitled to attend all sporting and extra-curricular events involving the children including but not limited to:
(a)Sporting fixtures.
(b)Extra-curricular activities that allow for parental attendance.
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duty and social functions and the parent who has the child in their care on the day of such an activity will be responsible for their day to day care at such an event and the child’s transportation to and from that event unless otherwise agreed to between the parties.
That the wife be restrained by injunction from denigrating the husband or members of the husband’s family to the children or in the presence of the children.
That the husband be restrained by injunction from denigrating the wife or members of the wife’s family to the children or in the presence of the children.
That the parties are restrained by injunction from discussing these proceedings with or in the presence of the children or from showing to the children any document connected with these proceedings.
PROPERTY
That the husband and the wife do all things required to distribute the net proceeds of sale of the property at B Street, C Town in the following manner and priority:
(a) In payment of the mortgage, agent’s commission and costs of sale.
(b) In payment to the wife of 40 per cent of the balance remaining.
(c) In payment to the wife of $733.
(d) In payment to the wife of $4,050.
(e) In payment of the balance to the husband.
That pursuant to s 90XT(4) of the Family Law Act 1975 (Cth), the Court allocates a base amount of $35,000 to the wife out of the husband’s interest in the P Super.
That in accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth), the Court:
(i)Creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii)Makes a corresponding reduction in the entitlement of the husband, or such other person to whom a splittable payment may be made, would have in the fund but for these orders.
That whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in Order 23 of these Orders in accordance with the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001.
That the operative time for Order 23 of these Orders is twenty eight (28) business days after the making of these Orders.
That other than as provided in these orders, each party will be entitled to any property in his or her possession.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hills & Caldwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7626 of 2015
| Mr Hills |
Applicant
And
| Ms Caldwell |
Respondent
REASONS FOR JUDGMENT
Mr Hills (“the husband”) and Ms Caldwell (“the wife”) are the parents of three children, X who is almost 16 years old; Y who is 14 years old and Z who is 12 years old.
The children live primarily with the husband. Y and Z spend time with their mother regularly for five days each fortnight. X does not. The parents have agreed that parenting arrangements for X should not be the subject of any orders relating to where she lives.
In relation to Y and Z, the husband seeks no change in the current arrangements. The wife seeks to increase the time that the children spend with her by one night per fortnight.
The most significant dispute is about parental responsibility. The husband seeks sole parental responsibility for the three children and the wife seeks equal shared parental responsibility.
An Independent Children’s Lawyer (“ICL”) has been appointed for the children and a report has been prepared by a Family Consultant.
The parties also seek orders in relation to the division of their property.
Both parties seek an adjustment of property interests in circumstances where they are separated and no longer jointly enjoy the benefit of their assets. The husband seeks an order that he receive 65 per cent of the net assets together with a further adjustment in relation to expenses which he has paid for the children.
The wife seeks half of the net proceeds of sale of a jointly owned property at B Street, C Town (“the C Town property”) and half of the husband’s superannuation entitlement.
HISTORY
The parties married in 1999 and separated in October 2015.
At the time of the marriage, the wife was training to be an educator. The husband worked in customer service.
The wife did not work after X was born in 2004.
They purchased the C Town property in 2004 and lived there until January 2009.
In order to purchase C Town, they obtained a mortgage from J Bank. The husband’s parents advanced $50,000.
In 2006, the husband’s parents gave the parties an additional $50,000. The money was paid into the mortgage account.
From 2007 until 2010, the husband undertook full time study towards a degree. The family received Austudy and Centrelink benefits.
In 2009, they moved from the C Town property to live in accommodation belonging to the tertiary institution which the husband attended. The C Town property was rented and the rent applied to the mortgage.
In January 2011, the family moved to rented accommodation in Suburb W and the husband commenced work.
They separated in October 2015.
After the parties separated, in late 2015, the husband withdrew $53,000 from the mortgage account. Of this sum, $3,000 was used by the husband to pay “current expenses, power bills etc.” and $49,500 was paid to his parents.
From November 2015, the children lived primarily in the care of the husband.
Between 18 November 2015 and 23 November 2015, the husband transferred a total of $49,500 to his parents. In an undated letter which is annexed to the wife’s affidavit (Page 382 of the Court Book), the husband said that these transfers were a partial payment of the loan made by his parents.
Between 11 February 2016 and 1 June 2016, the husband paid a further $24,000 to his parents. In the same letter, the husband stated that these transfers were “repayments to my parents who were paying my legal costs during that time…”
The whole of the rental income was retained by the husband but the wife was required to pay tax on her notional half share.
In about April 2018, X stopped spending overnight time with the wife. Currently, she and the wife text frequently and X visits the wife for a day or an afternoon every two or three months.
In 2018, the husband married Ms K who has two children aged 17 years and 13 years. They do not currently share a house although during the period when the five children were not able to go to school because of the COVID-19 restrictions, they lived together in Ms K’s house.
The wife took over the management of the C Town property in July 2019.
C Town property has been sold and is awaiting settlement of the sale.
The husband is employed as an educator but is currently receiving the Jobkeeper payment. The wife is employed as an allied health worker, although she is currently on workers compensation.
PARENTING
The parents have agreed on a number of orders about overseas and interstate travel, access to school and extracurricular activities, non-denigration and discussing the proceedings with the children.
Those orders have been made by consent.
The issues remaining to be determined are the competing applications in relation to parental responsibility and the wife’s application for additional time with Z and Y.
THE FAMILY REPORT
The Family Consultant conducted interviews with the family in April 2020 and produced a report dated 14 May 2020.
The Family Consultant provided an overview of the family and the nature of their difficulties in the following terms:
[The wife] advised that she left the relationship due to the ongoing family violence and the impact on her mental health. [The husband] maintained that he was not aware that [the wife] intended to leave the relationship but that he believes it is attributed to a significant decline in her mental health.
…
[The wife] alleges serious psychological, financial, verbal and sexual abuse and coercive control perpetrated by [the husband who] adamantly denies this.
The wife has a significant mental health history characterised by anxiety and the husband has also had mental health issues.
X has been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”) but manages her own medication. Y has been diagnosed with an Autism Spectrum Disorder.
At the time of the separation, the wife made a number of allegations about the husband including that he had psychopathic traits and that he might kill the children. Although she now acknowledges that she does not hold those concerns, there is no doubt that the existence of those allegations, and the allegations of family violence, have coloured the parental relationship and continue to do so.
The Family Consultant reported that both parents advised that the current time spending arrangement is well established and working well for the children.
The wife told the Family Consultant that, while she had held concerns for the children in the care of their father in the past, she no longer held those concerns.
The Family Consultant reported, in relation to her interview with X:
She said that she has a “good” relationship with Y but that “we are not particularly close”. She said that her relationship with Z is “good” also. X said that her relationship with her father “is good” that “we just kinda exist”. X stated that her relationship with her mother is “alright”, that she does not see her often but that it is good when she does as her mother understands her. She said that she sees her mother once or twice per term and more frequent on school holidays…
X said that her mother and father do not communicate well with each other and as a result, there can be “mix ups” due to different understandings of what is communicated. X said that this impacts Y and Z. X said that it is not intentional on her parents’ part, but they have “different perceptions”. She gave an example of when they tell the children different plans as to what an email says and it creates confusion.
The Family Consultant said that X “felt uncomfortable when living with her mother” as she does:
“…not get on so well with my mother”, but that she enjoys brief time with her. X explained that her mother “gets stressed a lot over lots of little things and it feels overwhelming that she gets stressed”. She gave an example of her telling her a story about something she did with her friends and that her mother would fixate on minor details.
In relation to Y, the Family Consultant reported:
Y said that he gets on “fairly well” with X and that sometimes they talk about school things, as they both do Q Language and that they like making jokes and writing funny things. Y stated that his relationship with Z is “alright” and that they like playing games together, such as catch or board and card games. Y said that his relationship with his mother is “good”, “she is good at understanding things” and that they enjoy reading together, playing board, and card games. He said that his relationship with his father “is pretty good too”, that they have a similar taste in music and that they enjoy listening and talking about music and playing sport.
The Family Consultant reported that Y, when asked if anything should change, said:
…his father could be more flexible with the time restrictions. Y explained that his father likes to have a schedule and that people need to follow it. Y said that he is “not a fan of that”.
Y said that he would like more time with his mother and he suggested Wednesday to Friday on the second week of the fortnightly schedule. He said that he communicated this to his parents previously but that it was not possible due to his mother’s work schedule. He said that he feels confident expressing what he wants to his parents and he thinks that they would oblige if they can. Y said that he needs to remember to suggest this to his mother before she gets her work roster. Otherwise, Y said he wants the other time spending arrangements to remain the same.
In relation to the communication between the parents:
Y said that he gets involved in the communication between his parents at times as “it gets confusing”. Y suggested that his parents could improve their communication and ensure that it is clear. He gave the example of trying to arrange the changeover from R Town and how confusing it was. Y said that he does not feel like he has to get involved but that he wants to, so he can help, but that it would be better for everyone if they communicated better.
In relation to her interview with Z, the Family Consultant reported:
Z said that the most important people to her are her parents and siblings. Z stated that she gets on well with X and that they like to walk the dogs together and watch TV together. Z said that her relationship with Y is “good” that they often play games together both inside and outside. Z said that she has a good relationship with her mother, that they like to read together and currently they are decorating her bedroom together. Z advised that she has a “good relationship” with her father as they are both very musical.
Z said that she is “pretty happy” with the current arrangements and “she wants things to stay as they are”.
All three children reported a positive relationship with the father’s new partner and her children.
FAMILY VIOLENCE
Although the allegations of family violence were made by the wife, and denied by the husband, it was not suggested that those allegations would be relevant to the very limited decision about whether the children would spend one extra night each fortnight with the mother.
Although counsel for the wife made a passing reference to Kennon & Kennon (1997) FLC 92-75, nothing was put to the husband in cross-examination about this issue.
In those circumstances, it is not necessary to examine the allegations in detail.
WIFE’S APPLICATION FOR ADDITIONAL TIME
The views of the two children in relation to this issue are not the same.
The wife does not assert that Z wants to spend more time with her. Z told the Family Consultant that she is happy with the current arrangement and does not want any change.
Both parents accept that Y has expressed a desire to spend more time with the wife.
Y told the Family Consultant that he is comfortable speaking to his father about making those arrangements.
However, the wife gave evidence that Y has spent an extra day with her on only one occasion in 2020. The husband disputed that evidence but was unable to give an instance of any other occasion. Y told the Family Consultant that on occasions it had not been possible for him to spend extra time with his mother because of her work schedule.
In mid 2021 Y will be 15 years old, the age when both parents accepted that X should be able to determine where she spends her time.
It is the husband’s position that both Y and Z should spend time with their mother “as a unit” and that there should not be orders which differentiate between the time Y spends with his mother and the time Z spends. Apart from that being his preference, the husband gave no reasons for that position.
I accept that Y should be able to spend time with his mother in accordance with his wishes but, having regard for Z’s wish that the current arrangements should not be changed, I am not prepared to make any order to that effect.
The orders will provide that Y can spend additional time with his mother as agreed.
Having regard to the very narrow scope of the determination I am asked to make, I do not consider that any of the factors in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) carries any particular weight, other than the children’s respective views.
PARENTAL RESPONSIBILITY
The husband seeks sole parental responsibility for all three children.
The wife seeks equal shared parental responsibility.
It is to be remembered that the major long term issues which are the domain of parental responsibility are defined in the the Act as:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
It is the husband’s case that the parents have been unable to communicate about appropriate arrangements for the children with the effect that:
…the children have suffered numerous poor outcomes and unnecessary stresses as a result of our failure to co-parent.
The husband provided a number of recent examples “to demonstrate that this is still very much a live issue”. Those examples were:
· Confiscation of Y’s phone;
· The S Program;
· Z’s asthma treatment; and
· Y’s reading material.
The husband also relied on the events in 2015 and 2016 surrounding Y’s possible attendance at L School.
Although the first and the last of the recent examples do not come within the definition of those matters that are the purview of sole parental responsibility, an examination of what actually happened in relation to each incident is illuminating of the attitudes of the parents and the real effect of an order for sole parental responsibility.
Confiscation of Y’s phone
The husband deposed that on 7 June 2020, he confiscated Y’s phone because Y was being distracted from his school work. The father asked Y to surrender the phone. Y refused. The father confiscated the phone telling Y it was for a week.
7 June 2020 was a Sunday. Y was to go to his mother on Wednesday.
On Monday 8 June 2020, there was the following email exchange between the parents:
Husband:I have confiscated Y’s fone for the week. This is because he Repeatedly refused to handed over when it was distracting him.
He is due to get it back next Sunday.
I can either hand it over to you On Wednesday, or I could keep it here if you don’t want the hassle. Your call.
In general I think Y's phone is contributing to his problems keeping up at school. I think this problem needs to be addressed more generally.
Wife:Ok. Would it suit you if I came over to pick it up at 4.30pm on Wednesday?
(As per the original)
There was no further discussion between the parents.
The wife returned the phone to Y.
In cross-examination, the wife said that she has explained to the children that when they are at their father’s house they abide by his rules and when they are at her house, her rules apply. She said that she discussed the confiscation of the phone with Y and decided to return it to him because “it wasn’t an issue at my place and he wasn’t in trouble from me about the phone”.
It is difficult to see how this issue would have had a different outcome if the husband had sole parental responsibility.
The husband conceded in cross-examination that he should have considered the fact that Y was going to be in his mother’s care before confiscating the phone.
The S Program
The S Program is a program at Y’s school which allows students with special educational difficulties to complete their Years 11 and 12 over three years instead of two.
The wife deposed that in about November 2019, she became aware of the program from another parent whose son was a participant and mentioned it to Y, suggesting that he make enquiries to see if the program might suit him. She did not inform the husband.
Y told the husband about the S Program in July 2020. The husband deposed “It seems Y believes this matter is settled”.
The husband is critical of the wife not telling him about the S Program either before she mentioned it to Y or at the same time.
However, in cross-examination, the wife said that the decision to participate in the S Program had been made by Y in consultation with his learning support teacher and had not required or involved her input or consent.
The husband, when told by Y about the S Program in July 2020, made no enquiries about the program but conceded in cross-examination that the program appeared to be suitable for Y.
The interaction of the parents in relation to the S Program is typical of their style of communication and results, as became clear in the cross-examination of both of them, in decisions about important issues being made by the children themselves.
A further example of that happening is the recent negotiation instituted by X who proposed to both parents that, for the next month while she is preparing for and sitting the Higher School Certificate examinations, the younger children should live primarily with their mother. That significant change in parenting arrangements, with which both parents have agreed, was initiated and negotiated by X.
Z’s asthma treatment
There is a dispute between the parents about whether Z has asthma and whether she needs treatment.
Each parent persists in taking Z to different doctors.
Dr T, to whom the mother takes Z, has diagnosed asthma and prescribed an asthma plan.
Dr M, to whom the husband takes Z, does not agree.
The husband’s position at trial was that Z does not have asthma. He deposed that Dr M:
…advised me that the medication can have side effects such as stunting the child’s growth.
That has not always been the husband’s position.
The Family Consultant reported:
[The husband] gave the example of [the wife] obtaining steroids from the GP to manage Z’s asthma. [The husband] said that Z does not have asthma, but is susceptible to chest infections. He said that the family GP has reassured Z that she does not have asthma but that having a bit of medication for her chest when at her mother’s house will not have lasting negative impacts.
In cross-examination, the husband was unable to explain the difference between what he told the Family Consultant and what he deposed.
In an affidavit sworn on 20 November 2015, the husband deposed:
I am particularly concerned that the two girls, who are asthmatic, do not have access to their asthma prescription medicine… This is an asthma risk.
Z uses asthma medication at the wife’s home and does not use it at the husband’s home.
The real concern, exposed by this incident, is that neither parent considered resolving the issue by agreeing to take Z to a specialist so the diagnosis could be resolved.
If the father had a genuine concern about the asthma treatment, his failure to seek specialist advice is inexplicable.
That concern would not have been addressed by an order for sole parental responsibility.
Y’s reading material
Recently, Y told the husband about a book he was reading with the wife. The father was concerned that a particular passage in the book might upset Y and sent an email to the wife. She did not respond.
In cross-examination, the wife said that she read the passage to which the husband referred and discussed the passage with Y.
She did not reply to the husband’s email because, she regarded it as an unwarranted and unwanted intrusion on her parenting and an example of what she believes is the husband’s attempts to control her parenting.
She conceded that the preferable course would have been to briefly acknowledge the husband’s concerns and indicate that she would deal with the matter.
However, an order for sole parental responsibility would not have affected the issue.
L School
The Family Consultant reported, that the husband advised that Y missed a scholarship to L School as the wife “blew it up”.
The husband in his oral evidence and in cross-examination of the wife, was critical of her for sabotaging his efforts for Y to attend the school.
There were two separate attempts to secure a scholarship for Y.
While the parents were still living together, they made enquiries about a scholarship for Y. Those representations were unsuccessful and on 10 March 2015 the wife received a letter stating that no scholarship would be awarded.
After separation, the husband, apparently without the knowledge of the wife, again commenced negotiations with the school principal.
The husband also had discussions with Y about attending L School.
A file note from Y’s school counsellor dated 30 November 2015 recorded:
Y tells me he is going to L School. Knows some of teachers – Dad’s friends.
Y has not told his mother about going to L School next year we agreed it is best for his Dad to speak to Mum about this.
The husband sent an email to the principal on 15 December 2015 enquiring about a scholarship. The principal replied on 16 December 2015 encouraging the husband to submit an application and the husband responded to the text the same day. There is no evidence that the wife was a party to any of these discussions.
On 23 January 2016, the husband’s solicitors wrote to the wife’s solicitors advising that Y had been granted a full scholarship to L School and would be starting there on 29 January 2016. The letter sought the wife’s consent for Y to change schools.
On 25 January 2016, the wife’s solicitors wrote to the husband’s solicitors stating, inter alia:
I have been advised by my client that she has spoken to [a staff member] at L School and he has advised her that Y has not been offered a position at L School, let alone a scholarship.
The enrolment form your client submitted (without my clients [sic] consent) is still under consideration by the head master [sic] and is unlikely to be determined by term 1.
My client was advised by [a staff member] today that Y will need to commence school at [his current school] and that he in fact advised your client and Y of this.
Furthermore, my client has received emails from Y regarding L School, the emails suggest that Y believes he is attending L School. My client is concerned that Y is getting his hopes up, and your client is encouraging him, despite your client knowing that Y has not been accepted into L School.
The evidence does not support the husband’s contention that the wife “blew up” Y’s chance of a scholarship. It does, however, support the contention of the ICL that the husband went ahead and made arrangements for Y to attend L School without telling the wife or consulting her, but discussed the matter with Y.
Another example of the husband’s failure to consult the wife or keep her advised is found in the attempts to arrange counselling for Y in 2016. Both parents agreed Y would benefit from counselling. This was at a time when there was in place an order that the parents have equal shared parental responsibility.
The ICL tendered a series of emails between the parents on 6 August 2016 in the following terms:
Husband:You may be aware that [Y] has been experiencing a lot of anxiety in the last few months and has missed a lot of school. The school is concerned. I have been trying to find him some support. GP has recommended a psychologist at Suburb AA who specialises in autism spectrum.
It is hard to get appointments outside school hours, and it would facilitate [Y] seeing this psych if you were willing to take him sometimes when he is with you. I am envisioning a 10 week course of appointments, 50 minutes each. There would be no cost to you of course.
Are you willing to support [Y] in this way?
Wife:I agree that Y would benefit from some counselling. I understand that it is possible for him to see the school counsellor regularly.
Please sent through the details of the person you are suggesting and a copy of the referral.
Husband:The school, like every other Public school has very limited counselling resources, and can’t offer anything like a weekly session. Just an occasional touch base.
Wife:Please send through the details of the person you are suggesting and a copy of the referral.
Husband:Don’t have any of this yet.
On 16 August 2016 there was a further exchange:
Wife:I think it’s important for Y that we act on this. Could you please give me the details so that I can make an appointment.
Husband:Let me be clear. I am acting on this. All I have asked is if you are willing to take him along sometimes if an appointment happens to fall on your days. You’ve given no answer to this, which is making it harder to set it up
Wife:
When you have done this we can go ahead and make appointments for Y. I am happy to take him to any appointments made by me during his time with me, if these are the times that prove to be available.
The husband did not reply.
On 28 August 2016 there was a further exchange:
Wife:Have you made any progress with this yet?
I think it is important for Y that he see a counsellor as soon as possible.
Husband:Yes we are onto it. I’ll let you know when we need you to help.
Wife:I would like to know the name of the counsellor you are proposing he see, and to see a copy of the referral letter.
That was the end of the discussion. The wife was not provided with the name of the counsellor or a copy of the referral.
In cross-examination, the husband conceded that he had taken Y to a psychologist on one occasion but “it didn’t work out”. The wife had not been told.
At the time of the trial, more than four years later, the husband said he was still trying to find a psychologist who specialised in children on the autism spectrum. He said he was in the process of making enquiries of a practitioner from somewhere north of Sydney whose name he did not recall, to see if that person could make a suggestion but he had not advised the mother of that fact. Neither had the father contacted the BB Centre as recommended by the Family Consultant in her report, or any of the organisations offering support to children on the autism spectrum, seeking a referral to an appropriate practitioner.
The failure of the husband to arrange appropriate counselling for Y was not in any way attributable to the wife or to the fact that there was in place an order for equal shared parental responsibility. The situation would not have been any different if there had been an order for sole parental responsibility in place.
Throughout the proceedings, the husband was asked on a number of occasions to give concrete examples of any occasion on which the parents had failed to reach a decision to the detriment of the children. The only example he gave was in relation to a trip to Country DD in 2020 where the wife’s consent was not given until the matter was in court on 17 December 2019. However, it is not clear what the difficulty was as the mother agreed with the proposal immediately when it was put to her. I note that the wife was first told about the planned holiday by an email on 30 November 2019.
The ICL referred to numerous instances of email exchanges where the parents politely resolved issues, such as their agreement about Y going to his present school. They have been able to negotiate their parenting arrangements during the COVID-19 pandemic when the children were home schooled for a time.
I do not accept the husband’s contention that the parent’s difficulties with communication have led to poor outcomes for the children. Neither do I accept that they have not been able to reach appropriate decisions.
The Family Consultant reported:
[The wife] said that the current situation “is as good as it gets”. She said that the co-parenting relationship was very difficult initially but that she and [the husband] have managed this better in recent years. [The wife] believes that things are “relatively stable” in their co-parenting relationship as [the husband] has remarried and is less focused on intimidating her. She said that his emails have become more polite but on the odd occasion, she receives aggressive emails from him. She said that she prefers to only communicate by email and limit any other interaction due to her experiencing ongoing fear of [the husband].
In cross-examination by the husband, the wife said that they had demonstrated, over the past five years that they were able, using emails, to negotiate and resolve issues relating to the children.
Having regard to the husband’s application, it was curious that, in submissions, he asked that no orders be made in relation to the arrangements for the children after X has finished her exams because the parents would “sort it out”. Similarly, it was his submission that there was no need to make orders about Christmas because, in the past, they had always reached agreement.
Depriving a parent of parental responsibility is a serious matter and the circumstances in which it can be done are proscribed in s61DA of the Act in the following terms:
61DA Presumption of equal shared parental responsibility when
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
There is no evidence that the wife has engaged in abuse of any of the children or in family violence.
The evidence upon which the husband relies does not lead to a conclusion that the parents are unable to make decisions in relation to their children.
There are no issues between the parents in relation to the children’s religious upbringing.
They have agreed on orders which require them to live proximate to Y’s school.
There are no issues relating to the children’s education.
They have agreed on orders relating to overseas travel.
The only health related issue is that of Z’s asthma and the parents have agreed to seek and follow the advice of a paediatric respiratory specialist to resolve that matter.
When the husband was asked to state what issues he foresaw arising that would require decision making in relation to health and education he was unable to name any but said that he could not predict what might arise.
The evidence is not sufficient to rebut the presumption in favour of equal shared parental responsibility.
In relation to X, just as the parents have agreed that she should not be the subject of any orders regulating her living arrangement, I do not propose to make any orders in relation to parental responsibility. That will leave X in the position, as has pertained for the whole of her life, that each of her parents has parental responsibility for her pursuant to s 61(C)(1) of the Act.
PROPERTY
A number of factual issues emerged in the course of the evidence and submissions. They are:
· Was the advance of $50,000 from the husband’s parents for the purchase of C Town a gift or a loan?
· Did the husband pay $9,430 in addition to the rental income, towards the costs of C Town after separation?
· What was the origin of the $24,000 paid by the husband to his parents in early 2016 and how should that payment be treated?
· Is the husband entitled to be reimbursed for the money he has spent on the children’s activities and expenses since they have lived with him and, if so, what is the proper amount?
· How should the husband’s superannuation entitlements be split?
Was the advance of $50,000 from the husband’s parents for the purchase of C Town a gift or a loan?
It is accepted that the husband’s parents advanced $50,000. The wife’s case is that the advance was a gift.
After the parties separated the husband paid $49,500 to his parents by drawing down on the mortgage account. He conceded in cross-examination that no request had been made for repayment and that, had the parties remained together, no repayments of the asserted loan would have been made until the mortgage debt had been repaid.
The husband in cross-examination, said that the loan was undocumented, there was no provision for repayment, and that there was no provision for interest.
On 8 April 2004, the husband’s mother swore a declaration for the purpose of the application of the parties for mortgage finance, stating that the advance was “a non-repayable gift of $50,000”.
If, as the husband asserts, the advance was a loan, it was a loan without a specified payment provision which implies that it was payable on demand. In that event, section 14 of the Limitation Act 1969 (NSW) would have the effect that the asserted loan could not be enforced after six years from the date of the advance.
The advance was either a gift or a loan which is statute barred.
In either event, no money was owed to the husband’s parents.
The payment of $49,500 to the husband’s parents was a premature distribution of the parties’ property and must be accounted for.
Did the husband pay $9,430 in addition to the rental income, towards the costs of C Town after separation?
The wife asserts that C Town was rented and that the rent was sufficient to cover the costs of the mortgage and other outgoings and to leave a surplus which was retained by the husband.
The husband disputes that assertion. It is his case that he subsidised the costs of C Town to the extent of $9,430 over the period since separation.
The husband tendered the statements provided by the rental agent and some, but not all, of the statements for the mortgage account, together with a summary which he prepared. I do not accept the accuracy of the summary. However, I accept that the net rental payments received were $69,146.
However, I do not accept that the income from C Town was insufficient to pay the outgoings. The bank statements tendered by the husband reveal that the total of the mortgage payments, from the tendered documents, over the period when the property was rented after separation was $31,513 and, in addition, the husband paid rates of $6,648 and a further $3,586 for repairs.
I do, however, accept that the husband paid more money into the mortgage account than was required to service the mortgage with the effect that the mortgage balance at December 2015 (after the husband had withdrawn $53,000), was $189,015 and as at September 2019 the balance was $149,124.
The wife does not assert that she made any contribution of funds to the mortgage or outgoings until July 2019 when she took over the management of the property and paid an unspecified sum for maintenance.
In so far as the parties were able to retain the C Town property after separation, and reduce the mortgage, that was due to the contribution of the husband and that contribution must be taken into account.
What was the origin of the $24,000 paid by the husband to his parents in early 2016 and how should that payment be treated?
The husband asserts that the funds came from his personal earnings after separation.
The payments were transferred from an account in the name of the husband which had been opened in November 2015 with the transfer of $53,000 from the mortgage account.
By the end of November 2015, the whole of the $53,000 had been transferred from the account leaving a nil balance. Thereafter, the funds which were paid into the account appear to be the husband’s earnings.
I am satisfied that the transferred funds were from the husband’s earnings and that they should not be taken into account as a premature distribution.
Is the husband entitled to be reimbursed for the money he has spent on the children’s activities and expenses since they have lived with him and, if so, what is the proper amount?
The husband seeks reimbursement from the wife of the sum of $27,011which he claims is “half of the children’s expenses 2016-2020”. In support of that claim, he tendered some of the receipts for the regular expenses which, he said, were illustrative of the costs of their regular activities.
I accept that, in addition to housing, feeding and clothing the children, the husband has paid their educational expenses, uniforms, medical and dental expenses, music lessons and sport.
The wife has not made any contribution to those expenses and she has not paid child support.
Whilst the claim for reimbursement will be removed from the balance sheet, the contribution by the husband to the children’s financial support is a significant contribution that must be recognised.
How should the husband’s superannuation entitlements be split?
The wife seeks a splitting order which would have the effect of allocating half of the husband’s superannuation to her.
The husband concedes that the wife should receive half of the superannuation accumulated during the marriage but no a proportion of the superannuation which accrued in the five years after separation, when he was solely providing the financial support for the children.
However, the husband conceded that there was no evidence of the value of his superannuation at separation.
The current value of the husband’s superannuation is $103,373 and the current value of the wife’s superannuation is $11,008.
Doing the best I can with the evidence available, I propose to allocate $35,000 from the husband’s fund to the wife.
I accept this allocation is arbitrary but I also accept the husband’s submission that it would not be equitable to allocate half of his current entitlement to her after five years of post-separation contribution in the circumstances which I have described.
THE BALANCE SHEET
At the commencement of the trial, the parties provided a joint balance sheet. At the commencement of submissions, they made a number of amendments and the amended document is reproduced below. Disputes apparent on the balance sheet will be dealt with using the item numbers in the document.
| Ownership | Description | Applicants value | Respondents value | ||||
| ASSETS | |||||||
| 1 | Joint | B Street, C Town | 530, 000 | 530,000 | |||
| 2 | Joint | D Bank Account no. ending …53 | 0 | 0 | |||
| 3 | Husband | D Bank Account no. ending …43 | 6,110 | Agreed | |||
| 4 | Husband | Household contents | 6,000 | Agreed | |||
| 5 | Wife | D Bank Account no. ending …90 | 2,251 | 2,251 | |||
| 6 | Wife | Household contents | 2,000 | E 2,000 | |||
| 7 | Wife | Motor Vehicle 1 | 2,600 | E 2,600 | |||
| Total | $ 548,961 | $ 548,961 | |||||
| ADDBACKS | |||||||
| 10 | Husband | Reimbursement of ½ share payment to wife for Dr N’s report fees | 4,050 | 4,050 | |||
| 11 | Wife | reimbursement of 1/2 of children's expenses 2016-2020 | 27,011 | 0 | |||
| 12 | Wife | reimbursement of 1/2 of moneys spent on the C Town 2016-2020 | 4,670 | 0 | |||
| Total | $35,731 | $ 4,050 | |||||
| LIABILITIES | |||||||
| 13 | Joint | D Bank Account no. ending …22 | 144,037 | 144,037 | |||
| 17 | Wife | Loan to sister | 0 | 45,000 | |||
| 18 | Wife | HECS debt | Agreed | 79,563 | |||
| 19 | Wife | SFSS debt | Agreed | 36,448 | |||
| Husband | HECS Debt | 87,450 | Agreed | ||||
| Total | $347,498 | $ 392,498 | |||||
| SUPERANNUATION | ||||||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | ||||
| 20 | Husband | P Super | accumulation | 99,571 | 101,239 | |||
| 21 | Wife | P Super | accumulation | 11,008 | 11,008 | |||
| Total | $ 110,571 | $ 112,247 | ||||||
| FINANCIAL RESOURCES | ||||||
| Ownership | Description | Applicants value | Respondents value | |||
| Total | $ 0 | $ 0 | ||||
| NETT TOTAL ASSETS (including Superannuation) | $ $347,673 | $272,760 |
Item 4 – husband’s contents
There has been no valuation of the relevant items. The husband’s estimate will be accepted.
Item 8 – add back of $50,000 drawn by husband from mortgage
The husband concedes that he withdrew $53,000 from the mortgage account after separation. This issue will be dealt with in the consideration of the s 75(2) adjustment.
Item 10 – money to be reimbursed to the wife
It is accepted that the husband must reimburse the wife for money which she paid on his behalf. This item will be removed from the balance sheet and dealt with in the orders for the payment of the proceeds of sale of C Town.
Item 11 – reimbursement of children’s expenses
This item will be dealt with as a contribution.
Item 12 – reimbursement of expenses paid by husband for C Town
This item will be dealt with as a contribution.
Item 13 – mortgage over C Town
C Town has been sold and the parties agree that the net proceeds of the sale will be about $373,500. I propose to include the proceeds in the balance sheet.
Item 16 – money owed for children/school activities
For the reasons which had earlier been explained, this item will be removed from the balance sheet.
Item 17 – loan from wife’s sister
These funds were borrowed by the wife to pay her legal fees.
The wife is entitled to borrow to pay her fees and to instruct lawyers to act for her but the consequences cannot be visited upon the husband.
This item will be removed from the balance sheet.
Items 18 and 19 – HECS and SFSS debts
The wife’s debt is $79,563 and the husband’s debt is $87,450.
There is no evidence about the circumstances in which those debts will be required to be repaid.
Relevantly, there is no suggestion that the debts will have to be repaid out of the proceeds of sale of C Town.
No submissions were made by either party about the treatment of the debts.
I propose, for the purpose of this distribution, to remove them from the balance sheet, leaving each party to deal with his or her debt and to make no adjustment in relation to the debts.
Items 20 and 21 – Superannuation
The information provided by the fund established that the current value of the husband’s superannuation is $103,373 and of the wife’s fund $11,008.
I therefore find that the assets of the parties are:
ASSETS
VALUE
C Town property (net proceeds)
$373,500
H
Bank account
$6,110
H
Household contents
$6,000
W
Bank account
$2,251
W
Household contents
$2,000
W
Car
$2,600
Total
$392,461
SUPERANNUATION
H
P Super fund
$103,373
W
P Super fund
$11,008
Total
114,381
NET ASSETS
506,842
CONTRIBUTIONS
At the commencement of the relationship, neither party had any significant assets.
In 2004 the husband’s parents gave the parties $50,000 which was used to purchase C Town. In 2006, the husband’s parents gave the parties another $50,000. Both of those sums were contributions on behalf of the husband.
Other than for the money contributed by the husband’s parents, the contributions during the marriage were equal.
After separation, the husband’s contributions exceeded those of the wife.
The post separation period is five years of a total of almost 21 years. However, during that five year period, the husband provided financially for the children, was their primary carer and made the sole financial contributions to the conservation of the C Town property, although it is difficult to quantify what the quantum of those contributions was. He also managed the C Town property until July 2019.
I assess the husband’s overall contributions as 70 per cent and the wife’s as 30 per cent.
SECTION 75(2)
The wife is 50 years of age and the husband is 49 years of age. They both have some time to continue to earn and contribute to superannuation.
The husband’s earning capacity is superior to that of the wife.
Since the financial year ended 30 June 2016, their respective taxable incomes have been:
Husband
Wife
2016
36,663
$19,112
2017
$17,956
$39,272
2018
$64,302
Nil
2019
$64,006
$20,832
2020
$38,681
Nil
The wife is currently in receipt of a workers compensation payment but her usual occupation is as an allied health worker. There is no evidence that she has any greater earning capacity.
The husband is a casual educator and it could be anticipated that he will return to his pre-COVID-19 earning capacity in due course.
The husband has remarried. Although he does not presently live with his wife, he did not suggest that this was to be a permanent arrangement once their children are older. He gave no evidence of his wife’s income or assets.
The husband removed $53,000 from the mortgage account at the time of separation. That transaction must be regarded as a premature distribution to himself. The amount is significant, some 13.5 per cent of the current asset pool and requires an adjustment in favour of the wife.
The husband will continue to bear the financial burden of the care of the children. The wife, in cross-examination, said that she would contribute financially to the children’s care as she was able to do so from her income but declined to state that she would contribute out of capital. It is likely that the husband will continue to bear the burden of the children’s financial care alone. They are 16, 14 and 12 years of age.
Taking all of those matters into account, it is appropriate to make an adjustment in favour of the wife of 10 per cent.
CONCLUSION
The husband will receive 60 per cent of the non-superannuation assets and the wife will receive 40 per cent.
In addition, the wife is entitled to 40 per cent of the value of their chattels which is $18,961. She is entitled to $7,584. She has chattels to the value of $6,851. The husband will pay her, from his share of the sale proceeds, $733.
The wife will receive an allocation of $35,000 from the husband’s superannuation, leaving her with total superannuation of $46,008 which is approximately 40 per cent of their combined funds.
COSTS OF THE ICL
The ICL, as she is required to do, made an application for costs at the conclusion of the matter.
Having regard to the respective financial positions of the parties, I do not propose to make any order.
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 October 2020.
Associate:
Date: 27/10/2020
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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