HOLLOWAY & HOLLOWAY
[2016] FCCA 2395
•14 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLLOWAY & HOLLOWAY | [2016] FCCA 2395 |
| Catchwords: FAMILY LAW – Property – where equal contributions to a modest asset pool – whether the wife should receive a loading for prospective needs – party’s agree equal division of superannuation entitlements. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Stanford v Stanford [2012] HCA 52 | ||
| Applicant: | MS HOLLOWAY | |
| Respondent: | MR HOLLOWAY |
| File Number: | MLC 3574 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 23 – 24 August 2016 |
| Date of Last Submission: | 24 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Goldsworthy |
| Solicitors for the Applicant: | Geelong Family Lawyers |
| Counsel for the Respondent: | Mr A. Barbayannis |
| Solicitors for the Respondent: | Perisic Lawyers |
ORDERS
Parenting
The husband and the wife have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2012 (“the children”).
The children live with the wife.
the children spend time and communicate with the husband during school term as follows:
a)each alternate weekend from the conclusion of school or kindergarten ( or 3:30 PM if a non-school day) Friday until the commencement of school or kindergarten (or 9 AM if a non-school day) Monday;
b)every other week from the conclusion of school or kindergarten (or 3:30 PM. if a non-school day) Wednesday until the commencement of school or kindergarten (or 9 AM. If a non-school day) Friday;
That notwithstanding any order to the contrary, the Children spend time with each of the parties on special occasions and holiday periods as follows with the times they live and spend time with each party pursuant to these Orders to be suspended in the event that the Children are not already in the care of the respective party at these times:
(a)with the Husband:
(i)from 4.00pm Christmas Eve until 2.30pm Christmas Day in 2016 and each even numbered year thereafter;
(ii)from 2.30pm Christmas Day until 5.00pm Boxing Day in 2017 and each odd numbered year thereafter;
(iii)from 4.00pm on the day preceding Father’s Day until commencement of school/day care or kindergarten as applicable on the first school day following the Father’s Day weekend;
(iv)on each of the children’s birthdays from 9.00am until 2.00pm if on a non-school day and from 5.30pm until 7.30pm if on a school day;
(v)on the Husband’s birthday if it falls on a non-school day from 9.30am until commencement of school/day care or kindergarten as applicable or 9.30am the next morning and if it falls on a school day from conclusion of school/day care or kindergarten as applicable or 3.30pm until commencement of school/day care or 9.30am the next morning;
(vi)for the Easter long weekend should it not fall during the term 1 school holiday period in 2017 and each odd numbered year thereafter from the conclusion of school on Easter Thursday until the commencement of school the following Thursday;
(vii)for one half of the end of term 1 school holiday period on dates to be agreed, and failing agreement such dates to include the long Easter weekend should it fall during said holiday period in an odd numbered year with changeover to take place at 5.00pm on the middle day of the holiday period except that:
A.where the Easter weekend does not fall during the school holiday period then for the first week if it is an odd numbered year and the second week if it is an even numbered year; and
B.where the Easter weekend falls on the middle weekend in an odd numbered year then from 5.00pm on the first Thursday of the holiday period until 5.00pm on the second Thursday or if it is an even numbered year for all of the holiday period excluding the week between 5.00pm on the first Thursday until 5.00pm on the second Thursday;
(viii)for one half of each of the end of term 2 and term 3 school holiday periods at dates to be agreed and failing agreement from conclusion of school, day care or kindergarten as applicable on the last day of term until 5.00pm on the middle day of the holiday period in each even numbered year and from 5.00pm on the middle day of the holiday period until commencement of school on the first day of the new term if it is an odd numbered year;
(ix)on a week about basis during the long summer school holiday period each year on dates to be agreed but failing agreement:
A.in the 2017/2018 holidays and each alternate year thereafter from conclusion of school, day care or kindergarten as applicable, or 3.30pm, on the last day of term 4 until 3.30pm on the date 7 days later and each alternate week thereafter for the remainder of the holiday period, such time being suspended on Christmas Eve, Christmas Day and Boxing Day; and
B.in the 2018/2019 holidays and each alternate year thereafter from 3.30pm, on the date falling 7 days after the last day of term 4 until 3.30pm on the date 7 days later and each alternate week thereafter for the remainder of the holiday period, such time being suspended on Christmas Eve, Christmas Day and Boxing Day.
(x) otherwise expressly agreed.
(b)with the Wife:
(i)from 2.30pm Christmas Day until 5.00pm Boxing Day in 2016 and each even numbered year thereafter;
(ii)from 4.00pm Christmas Eve until 2.30pm Christmas Day in 2017 and each odd numbered year thereafter;
(iii)from 4.00pm on the day preceding Mother’s Day until commencement of school/day care or kindergarten as applicable on the first school day following the Mother’s Day weekend;
(iv)on each of the children’s birthdays from 2.00pm until 7.00pm if on a non-school day and from 3.30pm or conclusion of school day care, or kindergarten as applicable until 5.30pm if on a school day;
(v)on the Wife’s birthday if it falls on a non-school day from 9.30am until commencement of school/day care or kindergarten as applicable or 9.30am the next morning and if it falls on a school day from conclusion of school/day care or kindergarten as applicable or 3.30pm until commencement of school/day care or 9.30am the next morning;
(vi)for the Easter long weekend should it not fall during the term 1 school holiday period in 2018 and each even numbered year thereafter from the conclusion of school on Easter Thursday until the commencement of school the following Thursday;
(vii)for one half of the end of term 1 school holiday period on dates to be agreed and failing agreement such dates to include the long Easter weekend should it fall during said holiday period in an even numbered year with changeover to take place at 5.00pm on the middle day of the holiday period except that:
A.where the Easter weekend does not fall during the school holiday period then for the first week if it is an even numbered year and the second week if it is an odd numbered year; and
B.where the Easter weekend falls on the middle weekend in an even numbered year then from 5.00pm on the first Thursday of the holiday period until 5.00pm on the second Thursday or if it is an odd numbered year then for all of the holiday period excluding the week between 5.00pm on the first Thursday until 5.00pm on the second Thursday;
(viii)for one half of each of the end of term 2 and term 3 school holiday periods at dates to be agreed and failing agreement from conclusion of school, day care or kindergarten as applicable on the last day of term until 5.00pm on the middle day of the holiday period in each odd numbered year and from 5.00pm on the middle day of the holiday period until commencement of school on the first day of the new term if it is an even numbered year;
(ix)on a week about basis during the long summer school holiday period each year on dates to be agreed but failing agreement:
A.in the 2017/2018 holidays and each alternate year thereafter from 3.30pm, on the date falling 7 days after the last day of term 4 until 3.30pm on the date 7 days later and each alternate week thereafter for the remainder of the holiday period, such time being suspended on Christmas Eve, Christmas Day and Boxing Day; and
B.in the 2018/2019 holidays and each alternate year thereafter from conclusion of school, day care or kindergarten as applicable, or 3.30pm, on the last day of term 4 until 3.30pm on the date 7 days later and each alternate week thereafter for the remainder of the holiday period, such time being suspended on Christmas Eve, Christmas Day and Boxing Day.
(x) as otherwise expressly agreed.
That for the purpose of calculating the middle day of the term school holidays, the first day of school holiday is the first day after the conclusion of school term and the last day is the last day prior to the commencement of school term.
That the time the Children live and spend with each of the parties during school terms is to resume on the same rotation after each school holiday period that it would have been had the holidays not taken place.
That changeovers that do not coincide with the conclusion of school and/or day care or kindergarten shall take place by the party who is to commence caring for the Children collecting them from the residence of the other party except where otherwise expressly agreed.
That in the event that an occasion or event significant to one of the parties will fall during a time that the Children are living or spending time with the other party pursuant to the orders herein:
(a)the party seeking to vary the usual arrangements to allow the Children to attend and/or participate in the said event or occasion will seek the consent of the other in writing with as much notice as reasonably possible;
(b)the party receiving the proposal will not unreasonably withhold their consent to the proposed variation; and
(c)the Children shall spend additional time with the party receiving the proposal, equivalent to the time they would have spent with that party but for the variation on dates and times to be agreed.
The Children attend (omitted) Primary School, (omitted), with the child X to commence such attendance on the first day of the 2017 school year and the child Y upon commencing primary school unless expressly agreed otherwise between the parties in writing.
Commencing in 2017 the child Y attend (omitted) Child and Family Centre kindergarten in (omitted), (omitted) area unless expressly agreed otherwise between the parties in writing.
That the Husband and the Wife each be restrained from enrolling the Children in any extra-curricular activity or other commitment that shall fall during a time the Children live or spend time with the other party without the express written agreement of the other party.
That the Husband and the Wife will each keep the other informed of their address and contact telephone number and notify the other within 48 hours of any change.
That the Husband and the Wife are both hereby authorised to receive all information from the Children’s school, kindergarten and day care as applicable that parents ordinarily receive including but not limited to newsletters, school reports and photograph order forms.
That the Husband and the Wife are both hereby authorised to attend at all events at the Children’s school, kindergarten and day care as applicable that parents ordinarily attend including but not limited to parent and teacher interviews, sports events, concerts, parent days and assemblies.
That the Husband and the Wife will each notify the other immediately in the event of any significant illness or injury to either of the Children including the name and contact details of any medical practitioner or facility involved and both parents will be at liberty to receive information from such medical practitioner and/or to visit with the Children in any hospital or other medical facility.
That the Husband and the Wife will each keep the other informed of the Children’s medical practitioners including, but not limited to, doctors and counsellors and both are hereby authorised to receive all information regarding the Children’s health and treatment.
That the Husband and the Wife each forthwith do all acts and sign all documents necessary to enrol in and complete the Our Kids Parenting Program at the Family Relationship Centre (omitted) and to this end:
(a)the Wife enrol in the weekly daytime sessions commencing Wednesday 9 November 2016; and
(b)the Husband enrol in the weekly evening sessions commencing Tuesday 8 November 2016; and
(c)forthwith upon completion of the Program each party will provide to the other a copy of their certificate of completion.
That the Husband will forthwith enrol in personal counselling with a qualified counsellor or psychologist, (“the Counsellor”) and for that purpose:
(a)the Husband have liberty to provide and do provide, a copy of the Family Report of Ms S dated 28 July 2016 to the Counsellor; and
(b)the Husband participate in such counselling for so long as recommended by the Counsellor.
Property
The husband and wife forthwith do all acts and sign all documents to apply the nett proceeds of sale of the property situated at Property G, as follows:
(a)To pay to the wife’s parents, Mr P and Ms J the sum of $3541;
(b)to pay to the wife the sum of $108,689; and
(c)to pay to the husband, the balance remaining.
The wife retain to the exclusion of the husband, all of her right, title and interest in the following:
(a)the interim distribution of $20,000;
(b)her motor vehicle.
The husband retain to the exclusion of the wife, all of his right, title and interest in the following:
(a)the interim distribution of $20,000;
(b)his motor vehicle; and
(c)his motorbike.
That for the purposes of these Orders:
(a)the Husband is the member spouse;
(b)the “Superannuation Fund” is the (omitted), member number (omitted);
(c)“the Trustee” means the Trustee of the (omitted) Superannuation Fund.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as the date of these orders;
(b)monies standing to the credit of either party in any bank account are to become the property of the party in whose name the account appears;
(c)all joint bank and loan accounts be forthwith closed with any balances thereof to be divided equally;
(d)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(e)insurance policies remain the sole property of the owner/beneficiary names thereon/in;
(f)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Holloway & Holloway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3574 of 2016
| MS HOLLOWAY |
Applicant
And
| MR HOLLOWAY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for both parenting and property orders.
The applicant is the mother and the respondent is the father of the children X born (omitted) 2009 (aged seven) and Y born (omitted) 2012 (aged four).
Background
The husband and wife commenced their relationship in 2000, they cohabited in 2002 and married on (omitted) 2011. They separated in October 2014, when the wife left the former matrimonial home in Property G, a suburb of (omitted).
The wife is aged 36 and since 27 June 2015, has been unemployed. She lives in a suburb of (omitted). Prior to the June 2015, the wife was employed in the (omitted) industry and worked shift work. She previously earned approximately $21,000 per annum. Her current income of $524 per week[1] is derived from Centrelink and child support.
[1] Financial Statement of the mother sworn 19 August 2016.
The husband is aged 42, and is currently employed as a (occupation omitted), where he has been employed for the previous 21 years. His current income is between $62,000 and $64,000 per annum.[2] Following separation the husband remained living in the former matrimonial home in Property G, until settlement of the sale took place in May 2016.
[2] Husband's evidence in chief.
Both parties were significantly involved in the care of the children prior to separation. The wife’s evidence was that she took eight months maternity leave following X’s birth and 12 months maternity leave following Y’s birth.
It was agreed that in 2013 (when Y was aged one), the wife commenced work as a part-time (occupation omitted). Her evidence was that she worked the following hours:
a)Wednesday and Thursday from 12 noon to 5.00 PM;
b)Friday and Saturday evening from 5.00 PM to 10 PM.
The husband’s evidence was that she also worked some Tuesdays.
Throughout the relationship the husband has remained employed as a (occupation omitted) and prior to separation his work hours were as follows:
a)Monday to Friday from 8:30 AM to 5:30 PM;
b)each Saturday from 8:30 AM to 4.00 PM.
He currently works every alternate Saturday.
It is evident that there has been a high degree of parental cooperation to care for the boys post separation. The wife vacated the former family home in Property G and moved to live with her parents in (omitted). Property G and (omitted) are located approximately 25 to 30 minutes apart from each other.
The wife asserts that the parenting arrangements which were in place between October 2014 and 31 May 2016 were imposed on her by the husband and that is indicative of his controlling behaviour towards her. The husband asserts that these arrangements were agreed to by the parties and accommodated their respective work obligations.
The arrangements from separation until 31 May 2016 were essentially as set out in paragraph 16 of the wife’s trial affidavit.[3] Both parties agreed that the arrangements involved many changeovers and were disruptive to the children.
[3] Affidavit of Evidence in Chief filed by the Wife on 19 August 2016 at [16].
On 26 April 2016 the wife filed in this court an Initiating Application together with a supporting affidavit. The husband filed a Response and supporting affidavit on 25 May 2016. The first return date of the wife’s application was 31 May 2016.
On 31 May 2016, orders were made by consent, which, in summary, provided for the following arrangements:
a)X and Y (“the children”) live with the husband;
b)The children spend time with the wife in a two weekly cycle as follows:
Week one
i)Tuesday during the day;
ii)Thursday overnight;
Week two
iii)Monday to Wednesday;
iv)Friday to Monday;
c)special occasions and shared a holiday time.
In relation to property, there is a very modest asset pool and fortunately, both counsel were able to agree on the asset pool.
The proposals of the parties
The wife’s proposal
The orders which the wife seeks from the court are set out in her case outline document.[4] In summary, her proposals are as follows:
[4] Outline of Case filed by Wife 21 August 2016.
Parenting
(1)The children live with the wife.
(2)The children spend time with the husband five nights a fortnight as follows:
a.each Wednesday from the conclusion of school or kindergarten until commencement of school or kindergarten Thursday;
b.each alternate weekend from conclusion of school or kindergarten Friday until commencement of school or kindergarten Monday;
c.shared holidays and special occasions.
(3)That X attend (omitted) Primary School primary school, (omitted) from the commencement of 2017 school year.
(4)The Y attend (omitted) child and family Centre kindergarten and thereafter attend (omitted) Primary School.
Property
(1)An equalisation of superannuation.
(2)A division of the non-superannuation assets 75%:25% in her favour
The wife relies on the following documents:
a)Further Amended Initiating Application filed 19 August 2016;
b)Affidavit filed 19 August 2016;
c)Financial Statement filed 19 August 2016 ;
d)Outline of Case filed 21 August 2016.
The husband’s proposal
The orders which the husband initially sought from the court are set out in his Response.[5] In summary, his proposals was as follows:
[5] Response filed by the Husband on 25 May 2016.
Parenting
(1)The children live with the husband.
(2)The children spend five nights a fortnight with the mother as follows:
i)Week one, from the conclusion of school or kindergarten Friday until the commencement of school or kindergarten Monday;
ii)Week two from the conclusion of school Wednesday until the commencement of school Friday.
(3)Shared holidays and special occasions.
(4)The children continue to attend their respective school and kindergarten.
During his final submissions counsel for the husband advised that the husband no longer wished to pursue an application for the children to live primarily with him and that he proposed an equal shared care arrangement for the children. No definitive configuration of equal shared care was submitted, however, the husband’s counsel suggested a five: two; two: five arrangement would be appropriate.
Counsel for both parents advised during final submissions that the parents were able to agree on the arrangements for special occasions, holidays and ancillary matters and that an agreed minute would be provided. I was subsequently advised that there was no such agreement. That is most regrettable.
Property
(1)An equalisation of superannuation;
(2)an equal division of the non-superannuation assets.
The husband relies on the following documents:
a)Response filed 25 May 2016;
b)Affidavit of husband filed 25 May 2016 and 19 August 2016;
c)Financial Statement filed 25 May 2016.
I will firstly consider the competing parenting applications.
The Applicable Law
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly address the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both parents agree that the children currently have and should retain a meaningful relationship with each of them. That is evident from the respective proposals of the parties and I agree with them.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As submitted by the father’s counsel, this is a rare case, where there are no protective concerns about the care each parent provides to the children, subject to some evidence of the father, which is referred to at paragraph 72 hereof.
Each party filed a Notice of Risk, as required by the court. The Notice of Risk filed by the wife[6] does not allege any risk.
[6] Notice of Risk filed by the Wife on26 April 2016.
The Notice of Risk filed by the husband[7] contained a number of allegations against the wife.
[7] Notice of Risk filed by the Husband on 25 May 2016.
The notice alleges that the wife has abused X by hitting him in 2015 and that Y has also disclosed that the wife has hit him.
The Notice also alleges that the mother has perpetrated family violence by yelling at the father[8] and that the mother suffers mental health issues.[9]
[8] Notice of Risk filed by the Husband on 25 May 2016 at paragraph 3 (a).
[9] Notice of Risk filed by the Husband on 25 May 2016 at paragraph 4 (a).
It is abundantly clear that the father’s Notice of Risk is inconsistent with the submissions of his counsel.
I accept the submissions of the father’s counsel that neither parent poses a risk nor are there any protective concerns about the care of the children by either parent for the following reasons:
a)The wife was not cross examined about the issues alleged in the husband’s Notice of Risk;
b)The husband’s initial proposal for the children to spend five nights a fortnight and half holidays in the wife’s care is entirely inconsistent with the allegations of risk;
c)The husband’s final proposal for the children to spend equal time with each parent is entirely inconsistent with the allegations of risk;
d)The husband does not seek any orders addressing any appropriate restraints arising from the allegations of risk;
e)There was no objective evidence to substantiate the allegations;
f)Despite the husband’s alleged concerns about the wife’s mental health, he did not seek to:
i)Have the wife psychiatrically examined;
ii)Subpoena any of the wife’s medical records;
iii)Provide any specific objective evidence of any mental health issues.
g)The evidence of the family consultant[10] that neither the father nor the paternal grandparents were able to identify any incidents where the wife posed a threat to the safety of the children.
[10] At paragraph 64 of the family report.
The additional considerations are set out in s.60CC (3) of the act. I will now address the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is aged seven years and is in grade 1. Y is aged four and attends day-care. He will commence kindergarten in 2017.
Apart from the husband’s evidence and that the children sometimes cry when they are due to spend time with their mother, which the husband seems to interpret as a reluctance to see their mother, the only evidence of the children’s views is in the family report.
The husband’s evidence, whilst being cross examined, was that sometimes the children were in tears on the way to spend time with their mother. He also said that the children sometimes made adverse comments about the time they spent with their mother, such as:
a)the mother was sad and would lie on the bed;
b)the mother spent time with other men;
c)the mother was out half the night.
He also reported to the family consultant that at times the children were reluctant and distressed when he took them to their mother’s home.[11]
[11] At paragraph 35 of the family report.
The husband seemed convinced that this reported behaviour was indicative of the children not wanting to leave his care and spend time with their mother.
He seemed to accept the veracity of the children’s comments and made no attempt to raise these alleged concerns with the wife. He was not able to seriously consider there may have been an alternative explanation for the children’s behaviour. He agreed that the children were aware of parental conflict and had on occasions seen him cry.
He was not particularly receptive to the proposition that the children may have picked up on his lack of enthusiasm for them to spend time with their mother and may be saying and doing things in an attempt to please their father, or making comments which they thought may have been expected of them.
I do not accept that such alleged behaviour of the children, is indicative of their views and attitude towards spending time with their mother, particularly when considered with the comments of the family consultant about the husband’s residual feelings about the parental separation.[12]
[12] Paragraphs 41 and 43 of the family report.
I find that it is entirely probable that the children are aware of their father’s feelings about the separation and his antipathy towards their mother.
The reference to the children’s views in the family report is in paragraphs 46 and 47. Quite properly there is no reference to Y’s views as he is four years old.
X’s views, as reported in those two paragraphs of the family report are entirely contradictory. At paragraph 46, X is reported as stating that he wants to sleep one night, Monday nights at his mother’s home and every other night at his father’s home. He also wanted his father to collecting collected from school on his grandfather to take into school.
When asked to clarify his answers, at paragraph 47, X is reported as wanting to spend time with both parents and that “half with each” would “be good”.
I accept that X is a relatively mature and sensible seven-year-old, however, I do not accept that he is able to comprehend the long-term ramifications of any expressed view.
It is clear to me that the existing arrangements have been disruptive in the extreme and have not provided a sense of stability or routine for either child. X’s views are symptomatic of a young child who has experienced major upheaval in his life and is craving consistency and stability, rather than multiple transitioning between the care of both parents.
Accordingly I do not place significant weight on his alleged views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As previously referred to, both children have an excellent relationship with both of their parents and each set of grandparents.
The observations of the family consultant between the children and each parent are referred to in the family report. At paragraph 52 of the family report, the family consultant observes that whilst in her waiting room, both children were relaxed and comfortable in the presence of both parents.
The observation of the children and their father is referred to at paragraphs 53 and 54 of the family report. The husband was observed to be an appropriate and competent parent and the children had a close and secure relationship with him.
The observation of the children and their mother. As referred to at paragraphs 55 to 57 of the family report. The children were observed to have a warm and engaged relationship with their mother. The wife engaged in creative play with the children and was able to instigate appropriate parental boundaries.
Both parents impress as highly committed, devoted and competent parents to X and Y.
The family report does not make any reference to the relationship between the children and the paternal grandparents. I note that the maternal grandparents did not accompany the wife to the report interviews.
However, because the children live and spend time with each set of grandparents, I am able to infer an equally positive relationship between the children and the grandparents.
Neither counsel sought to cross-examine either parent about the relationship between the children and their respective sets of grandparents.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
Neither parent was critical of the other, in respect of any long-term decisions which had been made thus far, nor did they allege that the other parent had failed to participate in decision-making about major long-term issues. There is disagreement about the future choice of school for the children, however this will be resolved, depending on where the children will primarily live. The proposed school for the children is referred to at paragraphs 162 – 174 hereof.
There was no evidence that either of the children had any particular health needs, or any religious disputes between the parents.
Opportunity to spend time with and communicate with the children
Both parents have availed themselves of every opportunity to spend time with and communicate with the children, although there is some evidence telephone communication has been problematic at times.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parents have fulfilled their respective obligations to maintain the children. Each has been responsible for the cost of supporting the children whilst in their respective care. In addition, the husband has paid child support to the wife in accordance with an administrative assessment.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Both parents proposed that the children spend substantial and significant time with themselves and the other parent. The husband’s amended proposal is for an equal time arrangement and the wife’s proposal is that the children live with her for nine days and spend time with the husband for five days, in each fortnight. Both proposals are unlikely to have any significant effect on the children in terms of their relationship with either parent.
Both parents currently live in the households of their respective parents, the children’s grandparents. The evidence of both parties is that they intended to re-establish independent households once property proceedings had been finalised. The children have an excellent relationship with both their maternal and paternal grandparents and each set of grandparents has extensive involvement in the children’s lives. There was much evidence about the role of the paternal grandparents and the assistance they provided to the husband, in particular, delivering and collecting X to and from school.
Given the closeness of both parents to their respective parents and the fact that the children have resided in the same home as their respective grandparents, for some time, I am able to conclude that the relationship between the children and their grandparents will continue to be encouraged and fostered by the relevant parent.
Accordingly, I find that the orders I intend to make will not adversely affect the relationship between both children and both parents and the respective sets of grandparents.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
At present the wife resides with her parents in (omitted) and the husband resides with his parents in (omitted). The evidence of both parties was that these two suburbs are approximately 25 to 30 minutes distance from each other.
The husband and the wife lived with the wife’s parents in (omitted) for a few years until 2013, when they moved to Property G upon completion of construction of the new family home.
The husband’s evidence is that he intends to continue to live in (omitted) however, he wishes to secure independent accommodation. The wife’s evidence is that she intends to continue to live in (omitted), however, she also wishes to secure independent accommodation.
There was much evidence about the distance between the two suburbs, in the context of which school X and Y should attend. In reality the suburbs are quite closely located to each other and there are no practical difficulties or expenses which would prevent the children maintaining a relationship with both parents.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The final submissions by counsel for both parents acknowledged that X and Y are extremely fortunate to have two competent parents and two sets of loving and competent grandparents.
However, the husband in his material[13] asserted that the wife had some parental deficiencies. These allegations included a vague reference to the wife’s capacity to cope with the children, perceived inability to respond in the event the children developed critical health issues or had a significant accident, a lack of confidence as a parent, her alleged mental health difficulties and the fact that she had allegedly smacked X on one occasion. The allegations of the wife smacking X are referred to in detail at paragraphs 30 - 34 hereof, where the father’s Notice of Risk is referred to.
[13] Father's Trial Affidavit, at paragraphs 7 – 14 and the family report at paragraphs 34, 37,61 and 63.
The family report[14] refers to the inability of the husband or the paternal grandparents to identify any specific incidents where the wife’s care had been a direct threat to the children’s safety.
[14] Family report dated 28 July 2016 at paragraph 67.
It is of some concern, that the husband chose to pursue these allegations during the course of the trial without any independent objective evidence, when the orders sought by him were clearly inconsistent with the wife’s alleged parental incapacity.
I was left with the impression that there may be some residual difficulties with the husband actively promoting the relationship between the children and their mother.
Otherwise, I have no concerns about the capacity of either parent, or of any other person, providing for both the physical, emotional and intellectual needs of the children.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There are no additional characteristics of the children or either of the children’s parents, which are relevant and which have not been considered in these reasons.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is abundantly apparent that both parents have demonstrated an excellent attitude towards the children and the responsibilities of parenthood. X and Y are extremely fortunate children to have such loving and devoted parents.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This is not a relevant consideration.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This is not a relevant consideration.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Post separation the arrangements for the children have involved far too many changeovers and significant disruption.
Initially the arrangements for the children revolved around the respective work commitments of the parents. Immediately following separation the husband was employed in his current job as a (occupation omitted) for (employer omitted) in (omitted) where he had been employed for the past 21 years. His work hours were on weekdays from 8:30 AM until 5:30 PM and on each Saturday from 8:30 AM to 4:00 PM.
The wife was employed as a part-time (occupation omitted). She worked on a Wednesday and Thursday from 12 noon to 5.00 PM, Friday and Saturday nights from 5.00 PM to 10.00 PM, and in addition, the husband asserted that she also works on Tuesdays.
The wife continued with this employment until 27 June 2015 when she ceased work in order to be available to care for the children.
On 31 May 2016, the first return date of the wife’s Initiating Application orders were made by consent providing for the current arrangements for the children, which to a large extent cater to the husband’s work obligations.
These arrangements also involve multiple change overs and disruption for the children. There is no doubt that they have had an unsettling effect on the children. X’s comments to the family consultant about wanting to sleep overnight at the home with the parent who collect him from school, is indicative of the effect of the orders on the children. It would be extremely difficult for the children to have any understanding of the pattern and regularity of the arrangements for their care. On a number of nights during the week the mother has collected X from school and he has remained in her home until being collected by the father at approximately 5:30 PM and then travelling to the father’s home to spend the night. The arrangements for both children are disjointed and unsatisfactory.
The orders which I propose to make will minimise the changeovers and the disruptive movement of the children from one home to the other and will provide a sense of routine and stability for the children.
It is in X and Y’s best interests for long-term routine and stability whilst maintaining an excellent relationship with each parent. It is not in the children’s interest for their parents to be involved in future litigation about the arrangements for the children or indeed the interpretation of the orders I propose to make.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
All relevant facts and circumstances have been referred to in this judgement.
Equal shared parental responsibility
Section 61DA provides, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(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.
(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.
Both parents seek orders for equal shared parental responsibility. I agree with the proposal of the parties that it is appropriate to make an order for equal shared parental responsibility. There is no evidence to rebut the presumption of equal shared parental responsibility.
Whilst there has been obvious disagreement between the parties, some resentment and animosity towards the other, since separation the parents have managed to implement a complicated regime for the children. It is abundantly clear, that absent the goodwill of the mother by collecting X from school on many afternoons, the existing orders would be simply unworkable.
There have been obvious communication problems, and in particular the issues surrounding the Mother’s Day 2015, Y’s 4th birthday and the 90th birthday of the wife’s grandmother. Both parties required significant assistance from their legal advisors to reach an agreement about each of these occasions.
The wife reported to the family consultant[15] that she and the father were able to communicate successfully with each other about the day-to-day care issues for the children. She advised the family consultant that when the husband collected the children at night when he finished work, she then informed him of any specific information about the children’s care. She did however state, that the husband listened but did not provide a response to her.
[15] At paragraph 24 of the family report.
It is anticipated that the parents will be able to continue with this level of communication in the future either personally, via text or email.
Both parties expressed a willingness to attend a parenting course in an endeavour to improve the post separation parental communication and relationship. I intend to order each parent to do so, as it is obviously in the children’s best interests that the communication between the parents is as good as can be.
Under cross-examination the father confirmed his willingness to attend counselling to address his residual feelings about the parental separation. As referred to in the family report,[16] I am optimistic that this may result in improved communication between the parents.
[16] Family Report at paragraphs 41 and 43.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Statutory Pathway
Having determined that it is in the best interests of the children to make an order for equal shared parental responsibility, I am now required to address the statutory pathway set out in s.65DAA(1)-(5).
Firstly, I will address whether the children should spend equal time with each parent.
The father’s final proposal, which was made by his counsel during final submissions, was that the children should live equal time with each parent. It was conceded that a week about arrangement was not appropriate, and it was submitted that an arrangement such as five nights with one parent, two nights with the other parent, two nights with the first parent and five nights with the second parent, would be appropriate.
The mother’s final proposal was in accordance with her initial proposal, so that the children live with her nine nights a fortnight and spend time with the father five nights a fortnight. The preferred configuration was for the children to spend each alternate weekend with their father from the conclusion of school/childcare/kindergarten until the commencement of school/childcare/kindergarten on Monday morning. In addition, the children should spend overnight time each Wednesday with their father.
As the father’s proposal is for equal time with each parent, I will now consider the competing proposals of the parents.
In summary, the father relies on the following factors in support of his application for equal time:
(1)He is a competent parent and demonstrated a degree of insight by amending his application to equal time rather than pursuing an application for the children to live primarily in his care;
(2)His employment arrangements have a high degree of flexibility which would enable him, with the assistance of his parents, to deliver and collect the children from school and childcare;
(3)The parents are able to communicate with each other and the father has conceded he would attend counselling to assist communication;
(4)Both parents have agreed to attend “Our kids parenting program” which will further enhance the post separation parental relationship;
(5)Post separation, the parties have successfully co-parented the children, despite the complicated arrangements.
In summary, the mother relies on the following factors in support of her submission that equal time is not appropriate and that she should be the primary carer of the children:
(1)She is a competent parent and has an excellent relationship with the children;
(2)As she is not currently employed she is available for the children and that availability remains constant;
(3)It is her intention to obtain part-time employment, which will enable her to remain available to transport the children to and from school/kindergarten in the future;
(4)The father’s personal residual feelings about the circumstances of separation inhibit his capacity to fully promote and encourage the children’s relationship with their mother;
(5)The post separation parenting arrangements have involved many changeovers and a significant degree of disruption to the children and this can be addressed by the children primarily living with one parent and spending substantial and significant time with the other parent.
I will now address the competing factors of each parent.
Parental competency
After hearing the evidence of the parents, the family consultant and submissions by both counsel, there is no doubt that both parents are highly competent, loving and devoted to their two boys.
Employment obligations and flexibility
The wife’s pre separation employment obligations are summarised at paragraph 84 hereof. In June 2015 the wife ceased her employment, as she put it, to be able to spend more time with the children and to care for them. Prior to ceasing employment the wife worked shift work on both Saturday and Sunday. This would have made arrangements for the children to be in her care overnight on a weekend almost impossible. To her credit, she has undertaken a course of study in (course omitted) and it is her ambition to obtain part-time employment in an (omitted) role to enable her to care for the children.
Counsel for the husband cross-examined the wife about her employment prospects and she did concede that absent her obligations to the children, she would be able to obtain full-time employment. It is however, very clear from the tenor of her evidence that her preference and expectation is to obtain part-time employment.
The wife impressed me as a truthful witness and a devoted mother who struggled to accept the existing arrangements for the children and the diminution of her role in the children’s lives. I have no doubt that her priority is to be able to care for the children, including delivery and collection to school/childcare/kindergarten, be present at and participate in their extracurricular activities, be available to transport the children to play dates and be involved with their school.
The husband has a responsible position as a (occupation omitted) at (occupation omitted) in (omitted). He has been employed by the same organisation for the past 21 years and is obviously a valued and highly regarded employee.
His current work commitments are summarised at paragraph 83 hereof. In addition to weekday work, the husband now works each alternate Saturday. Prior to separation he worked each Saturday in order to meet the financial obligations of the large mortgage secured against the family home. He is to be commended for his diligent work ethic and endeavours to support the family.
The husband emphasised the flexible nature of his employment, in both his evidence and the interview with Ms S. Unfortunately he did not adduce any evidence from his employer, except a letter dated 27 May 2016.[17] The letter is a very general and is not particularly helpful. It certainly does not refer to any regular arrangements for the father to commence work later than 8:30 AM, or to conclude work earlier than 5:30 PM.
[17] Exhibit H1.
The husband’s evidence is that he is able to work flexible hours and make up any time he is absent from work by working on the Saturday without remuneration. There was no suggestion that he was able to change his employment to part-time or permanently reduce his hours.
When questioned about the arrangements for delivery and collection of X from school, subsequent to the orders of 31 May 2016, it was apparent that the paternal grandparents had delivered X to school on most mornings when he was in the father’s care. It was also evident that X had been collected from school either by his mother, or the paternal grandparents. In fact, the father was not able to provide any specific examples when he had delivered and collected X to and from school or indeed when he had left work in order to attend to the needs of the children. The father had however delivered Y to childcare in (omitted) prior to starting work at 8.30 AM.
As referred to in this judgment, the father’s workplace is located in (omitted), which is approximately 20 to 30 minutes from his home in (omitted). It is his proposal that X continue school in (omitted) and that Y commences kindergarten and then primary school in (omitted). If the father continues with his current employment and there was no evidence to the contrary, it would be almost impossible for the father to personally deliver the children to school in (omitted) at an appropriate time between 8:30 AM and 9.00 AM and then travel to his employment to commence work in (omitted) at 8:30 AM.
I have no criticism of the assistance that the paternal grandparents have provided to the father and indeed they are to be commended for being so involved with their grandsons. However, the wife is available to transport the children to and from school, irrespective of whether they attend primary school in (omitted) or (omitted) and to care for them before and after school. She is also currently available to attend extracurricular activities during the week and to be involved in the children’s after-school play dates and to provide parental assistance at school, such as reading. It is preferable for a parent, if available, to have the involvement with the children which the wife proposes.
Counsel for the father submitted that it was likely that the wife would obtain full-time employment and that may preclude her capacity to parent the children without the assistance of either her parents or before and or after school care.
The evidence of the wife was that she would seek part-time employment to accommodate the children’s school routine. The wife also told the family consultant that it was her plan to locate work within school hours so she would be available to care for the children before and after school.[18] I accept that evidence and find that the wife is in a better position than the husband to cater for the children’s schooling and mid-week extracurricular activities.
[18] At paragraph 29 of the family report.
Communication
There has clearly been communication problems post separation. The wife described the current method of communication about day-to-day issues to the family consultant.[19] She told the family consultant that the husband listened but did not provide a response.
[19] At paragraph 24 of the family report.
The parties have encountered difficulties about the interpretation of the orders for the children to spend holiday time with each parent. Regrettably, they have required extensive assistance from their legal practitioners to resolve the dispute. There have also been disputes surrounding the children’s spending time with their mother on Mother’s Day 2015, on Y’s fourth birthday and attending their maternal great-grandmother’s 90th birthday celebrations.
The husband was cross examined about each of these events and was unable to provide a satisfactory explanation as to why he was unable to respond in a timely fashion and provide his consent to the children spending additional time with their mother on these special occasions.
He did not seem to consider these issues from the children’s perspective.
The husband reported to the family consultant that both parents are able to manage pickup and drop-off’s as well is attending the children’s extracurricular activities, in particular, (hobbies omitted).[20] He also stated that they were able to engage in a civil relationship when both attended (hobbies omitted).
[20] At paragraph 42 of the family report.
Fortunately for X and Y, both parents are prepared to take steps to improve their communication and to obtain some professional assistance. I am cautiously optimistic that the parental communication will improve.
Capacity to promote a relationship with the other parent
The family report writer expressed concerns that the husband has residual feelings about the parental separation, particularly in the context of the wife’s new partner.[21]
[21] At paragraph 43 of the family report.
Counsel for the wife, in her final address, submitted that the wife “was slow to criticise the father” and when there was a dispute between the parties, “she tended to concede and back down”. It was submitted that there were no problems with the wife’s capacity to promote a relationship between the children and their father. The demeanour of the wife when giving evidence, including cross-examination, was entirely consistent with that submission. I am confident that the wife is capable of promoting and facilitating a relationship between the children and their father and has done so post separation.
I was also directed to the comments of the family report writer pertaining to the father’s personal feelings about separation and the impact on his capacity to facilitate a relationship with the mother. This issue is referred to in paragraphs 41, 42 and 43 of the family report.
The husband’s demeanour, particularly when being cross-examined did not demonstrate that he was particularly insightful about the importance of a relationship between the children and their mother. This was particularly apparent in his responses to questions about the events of Mother’s Day 2015, Y’s fourth birthday and the maternal great-grandmother’s 90th birthday. He did not seem particularly concerned about his attitude and the delay in responding to the very reasonable requests of the wife for the children to participate in these special occasions. He was however, able to reflect that if the “tables were turned” and the wife had treated him in a similar fashion in response to requests to spend time with the children on Father’s Day, such attitude would have been less than satisfactory.
I am confident that the husband will comply with orders, however there is an important distinction between the capacity to be fully supportive of the relationship between the two children and their mother and compliance with orders.
I was left with the impression that there was an imbalance of power between the husband and the wife and that the husband sought to impose on the wife and had done so, to date, his preferred proposals about the care of the children.
The evidence of the family consultant
The father’s proposal at the time of the interviews with the family consultant was that the children should live with him nine nights each fortnight and spend time with their mother five nights each fortnight. As previously referred to, the father did not amend his proposal to equal care until his counsel’s final submissions.
The family consultant was not given the opportunity to address the father’s equal time proposal, prior to preparation of the family report. However under cross-examination, the father’s counsel put to her whether she had turned her mind to an equal time arrangement for the children. The proposed configuration of equal time was not put to her.
Ms S’s evidence was that she had turned her mind to equal care. Despite the children being very capable and well adjusted, her evidence was that Y was just too young for equal care. She then referred to the issue of schooling and the proximity of each parent to the children’s school and the ability of each parent to arrange travel to and from school and to care for the children before and after school.
It was conceded by the family consultant that her recommendation that the children live primarily with the father was made on the understanding that the father would be able to carry out the majority of care, including transporting the children to and from school and childcare and be available to care for them before and after school. She seemed to have placed significant weight on the father’s assertions that he had flexible work arrangements which would enable him to transport the children before and after school and to care for them after school.
When it was put to her that the father’s evidence was, that subsequent to the May 2016 orders , the paternal grandparents and the mother had transported X to and from school on every occasion and that the father had not done so, she appeared demonstrably surprised. Her evidence was that the children would benefit if both parents were involved in the children’s school life and were able to personally transport the children to and from school.
When questioned about the capacity of the father to promote the children’s relationship with the mother, she did not seem to understand the distinction between compliance with orders and the capacity to encourage and promote a relationship with the other parent. She was provided with the examples of the disputes about Mother’s Day 2015, Y’s 4th birthday and the attendance of the children at their maternal grandmother’s 90th birthday. She did not seem to appreciate the lack of cooperation and the imbalance of power which was evident from the father’s behaviour on each of these occasions.
Quite clearly her recommendations were based on information which is not correct, in terms of the father’s flexibility and capacity to transport the children to and from school and most importantly to be home to care for them after school.
When cross-examined by counsel for the wife, Ms S conceded that the children were essentially coping well, albeit X craved stability. X reported to the family consultant that what he really wanted in his life was to have routine when he comes home to one house and remained there until the returns to school the following day.[22]
[22] At paragraph 51 of the family report.
The current arrangements rarely provide for X to remain in one house from conclusion of school until the following morning. This only occurs when the mother collects him from school and he remains with her overnight. The father’s evidence about the arrangements for collection of X from school made it abundantly clear that there are multiple change overs for X in the existing arrangements.
The family consultant place considerable weight on X’s alleged views, although X is only seven years of age, albeit mature for his age. X’s views, as stated in the family report and as referred to at paragraph 46 hereof, are contradictory. As previously stated in this judgment, I do not place great weight on X’s views.
What is apparent from X’s reported comments is that he seeks stability and routine and that the chopping and changing between households should cease. He also seeks that the parent who collects him from school is able to continue to care for him afterschool and overnight. The wife who is the only parent who is able to do so.
Conclusion as to equal time
Counsel for the father, during his final address referred to three matters pertaining to X, which are referred to in the family report.
Firstly, X’s level of comfort, which the family consultant has interpreted as meaning that he preferred to be with his father on a more frequent basis.[23]
[23] At paragraph 51 of the family report.
In my view, this statement needs to be read in the context of the preceding sentence, which clearly reflects X’s need for stability and routine and to remain with the parent who collects him from school. As previously referred to, the mother is in a position to do so as the father’s work commitments do not enable him to collect X personally from school.
Secondly, the comments of the family report writer at paragraph 66 and 67, and in particular the tendency of the children to seek out their father in the first instance and then to engage with their mother.
The observation at paragraph 67 needs to be considered in the context that both parents have secure and sound relationships with the children. However, as the children have primarily been in the father’s care overnight since separation and he has been responsible for mainly putting them to bed at night and implementing a routine, it is not unexpected that this would be the case. In my view it is does not diminish the sound nature of the relationship between the children and their mother.
Thirdly, the comments of the family report writer, namely the last sentence of paragraph 69. This statement should be considered in the context of X’s views. As previously stated, I do not consider that X has any understanding or concept of the long term implications of his alleged preference.
This is a finely balanced decision. I am very mindful of the comments of Ms S that Y is just too young to live in a shared care arrangement. For the reasons set out herein, the best arrangement for X and Y would promote stability and certainty and enable both parents to be involved in the children’s schooling life. I consider that living primarily with their mother would be the best arrangement to achieve this.
I have determined that spending equal time with each of the parents is not in the children’s best interests. Having made that determination, I will address whether it is reasonably practicable for the children to spend equal time with each of the parents.
The parents live in relative close proximity to each other and there is no geographical impediment for equal time. However, there is a very realistic prospect that, despite the father’s protestations of work flexibility, he would not be able to deliver the children to school and or kindergarten if he remained in his current employment. He would rely heavily on the assistance of his parents to deliver and collect the children from school, if the children attended school and or kindergarten in the (omitted) area.
Although the parental post separation relationship has been strained, I am of the view that there is a limited prospect of reasonable communication between the parties, particularly if the parties seek and undertake professional assistance.
Having regard to the matters referred to herein and hearing the evidence of the parties and the family consultant, I am of the view that spending equal time with each parent is not in the children’s best interests although it is reasonably practicable.
Having determined that it is not in the children’s best interests to spend equal time with each parent and having considered whether such an arrangement is reasonably practicable, I am now required to consider whether the children spending substantial and significant time with each of the parents is in their best interests and whether that is reasonably practicable.
The wife proposes that the children live with her and spend five nights a fortnight with their father in the configurations referred to at paragraph 15 hereof. In addition, the wife proposes that the children would spend special occasions and half school holidays with their father.
The time the that the wife proposes the children to spend with their father clearly falls within each element of the s.65DAA(3) of the Act and complies with the statue definition of substantial and significant. There was no contrary suggestion or submissions by either counsel.
It was common ground that the children have an excellent relationship with both parents and that it is in the best interests to spend substantial and significant time with each parent. I agree with that proposition.
In terms of reasonable practicability, the parents live in fairly close proximity to each other. The children feel safe and secure with both parents and enjoy the time in each household. I therefore find that it is reasonably practicable for the children to spend substantial and significant time with each of the parents.
For the reasons set out in this judgment, I determine that the most appropriate arrangements and those which are in the children’s best interests are for them to live with their mother and to spend five nights a fortnight in their father’s home.
Choice of School
Apart from the children’s living arrangements, the parents are in dispute about which school and kindergarten the children should attend from the commencement of 2017 school year.
X currently attends (omitted) primary school and is in grade 1. Y attends child care in (omitted).
The wife proposes that X change schools as from the commencement of the 2017 school year. Her proposal is that the children attend (omitted) Primary School in (omitted), with X commencing in term one 2017 and Y, commencing upon the conclusion of his kindergarten year. She proposes that Y attend (omitted) child and family Centre kindergarten in (omitted).
The husband proposes that X continue to attend (omitted) primary school, that Y attend kindergarten in (omitted) and in due course also attend (omitted) primary school.
The evidence of the family consultant was that X did not wish to change schools and that given all of the other changes in his life, his current school provided stability and routine.
However, that evidence must be considered in the context of the initial recommendation as to the children’s living arrangements, which was based on the erroneous belief that the father’s work commitments were sufficiently flexible to enable him to collect the children from school and remain with them after school.
Counsel for the wife suggested to the family consultant that the result of the current proceedings would inevitably be a significant change of routine for both children and that X would be able to cope with a change of school, when viewed in conjunction with changes to his other living arrangements. I accept that as a reasonable proposition.
I also note the evidence of the family consultant that both X and Y are very capable children. I find that X would be able to adapt to a change of school and that it is appropriate to defer a change until the commencement of the new school year.
As I propose to make orders providing for the children to live primarily with their mother, X remaining at (omitted) would present some practical difficulties.
If the wife secures part-time employment, I anticipate that she would be able to deliver and collect X from school in (omitted). However, if the husband retains his current employment and given that he has been there for 21 years, in the absence of any evidence to the contrary, it is reasonable to assume that he would, he would not be able to personally deliver X to school without X attending before school care. The husband is required to commence work at 8:30 AM in (omitted), some 25 to 30 minutes from (omitted) and in order to do so X would need to be at school by 8.00 AM each morning. Furthermore, if he concludes work at 5:30 PM in (omitted) then he would not be able to personally collect X from school in (omitted). This would result in X attending before and after school on the days when he is in his father’s care, or alternatively his grandparents, delivering and collecting X to school each day. I consider there are enormous benefits to children in having their parent involved in their school life and classroom. If X were to remain at (omitted), the opportunities for the husband to be personally involved in X’s school life would remain limited. These considerations are obviously applicable to Y, once he commences school.
However, if X, and eventually Y were to attend school in (omitted), the husband would be able to drop the children at school a short time, prior to his work starting time, which would enable some personal involvement in the children’s school life.
I appreciate that working parents are often required to avail themselves of the assistance of before and after school and extended family members. However, on the evidence before me, the wife is currently able to be personally extensively involved in the children’s schooling life and I consider the personal involvement of a parent to be preferable to the other alternatives.
It is also more practicable for the children to attend school closer to their primary place of residence. There was no objection raised by the husband to the wife’s choice of school, rather his objection was the location of the school.
Property
I will now consider the competing applications for a property settlement.
Relevant Legislation
Property proceedings between parties to a marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52, the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003]FamCA 395.
The approach as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75(2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… The question posed by s.79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
The High Court further stated at [ 42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s.79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
In this matter the parties have separated and both parties have made an application to the court seeking orders altering their respective property interests. It is clearly just and equitable to adjust property matters between the parties.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)Attribute value to the assets comprising the property pool;
(b)Identify and give weight to the various contributions of each of the parties as set out in s.79 (4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)Identify the identify the relevant considerations as set out in section 79(4)(d)-(g), including the matters set out in s.75 (2) so far as they are relevant and then decide whether any further adjustment is appropriate;
(d)Consider whether the proposed orders are to equitable.
Proposals
The final proposals of each party in relation to property were made by their respective counsel during final addresses. Both counsel advised that the parties agreed that it was appropriate to deal with their assets on a two pool basis, firstly non-superannuation assets and secondly, the combined superannuation entitlements of the parties.
Wife
The wife’s proposal was as follows:
a)Non-superannuation assets should be divided so that she received 75% of the assets and the husband received 25% of the assets;
b)The parties combined superannuation entitlements should be equally divided.
Husband
The husband’s proposal was as follows:
a)Non-superannuation assets should be divided equally between the parties;
b)The parties combined to superannuation entitlements should be equally divided.
Issues in dispute at the hearing
The parties agreed that their respective contributions to the acquisition, conservation and improvement of their assets was equal.
The only issue in dispute was whether any adjustment should be made to the wife, from the non-superannuation assets, arising from s.79(4) (d) – (g) and s.75(2) factors and if so, the extent of an adjustment.
The agreed assets and liabilities of the parties
The assets and liabilities of the parties were agreed in accordance with a table which was prepared by both counsel and handed to me during final addresses.
The agreed assets and liabilities are as follows:
| Assets and liabilities | Ownership | Value |
| Nett proceeds of sale of the former matrimonial home | Joint | $165,523 |
| Interim payment of $20,000 to the wife | Wife | $20,000 |
| Interim payment of $20,000 to the husband | Husband | $20,000 |
| Wife’s car | Wife | $1500 |
| Husband’s car | Husband | $6500 |
| Motorbike | Husband | $7000 |
| Total non-superannuation assets | $220,523 | |
| Less liabilities | Loan to wife’s parents | $3541 |
| Nett non-superannuation assets | $216,982 | |
| Total superannuation | $130,341 | |
| Total assets | $347,323 |
Contributions
Both parties agreed that the contributions to the asset pool were equal. Neither party sought to distinguish the initial contributions, contributions during the marriage nor post separation contributions.
I will now address the future needs factors.
Section 75(2) Factors and Sub-Sections 79(4)(d), (e), (f) and (g)
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage
As to the asset pool is modest, neither proposal would have any affect on the proposed earning capacity of either party to the marriage.
Section 79(4)(e): the matters referred to in Section 75(2) so far as they are relevant
Section 75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
The wife is aged 36 and the husband is aged 42. Both parties enjoy good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
Prior to separation the wife earned approximately $21,000 per annum. Her current income of $524 per week is derived from Centrelink benefits and child support payments. She ceased employment in June 2015 and has commenced a course in (course omitted). She anticipates being able to obtain part-time employment.
The husband is currently employed as a (occupation omitted) and has worked for his employer for the previous 21 years. His current income is between $62,000 and $64,000 per annum. He is employed on a full-time basis.
There is an obvious discrepancy of current income between the husband and the wife. There is no evidence as to the quantum of the wife’s future earning capacity once she completes her course and obtains employment either part-time or full-time.
The property of the parties, except that their respective motor vehicles, comprises the proceeds of sale of the former family home, namely $165,000. Each party has had an interim distribution of $20,000 from the proceeds of sale of the family home. Neither party has any financial resource.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
Subsequent to separation the two children, X and Y, lived with the father for 9 nights a fortnight and with their mother for five nights a fortnight. The parenting orders which I propose to make will provide for the children to live with their mother for nine nights a fortnight and spend time with their father for five nights a fortnight.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
Each party has filed a Financial Statement in the preceding. The wife also filed an amended Financial Statement.[24] The respective Financial Statements set out at part G and part N the respective commitments of each of the parties.
[24] filed on 19 August 2016
(e) the responsibilities of either party to support any other person; and
Both parties have a responsibility to share the financial support of the children.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
The wife deposes in her Amended Financial Statement[25] that she is in receipt of a government pension of $377 per week and a family tax benefit of $89 per week.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
[25] At Part D, item 12 of Amended Financial Statement filed by the Wife on 19 August 2016.
Both parties have been responsible for their own financial support post separation.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
Post separation the wife has commenced a course in (course omitted) which will hopefully enable her to obtain employment in the future.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
This is not a relevant consideration.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
Both parents agree that they have equally contributed to their joint property and each party is capable of earning an income in the future.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The husband and the wife cohabited for 12 years and were married for approximately 3 ½ years.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
The wife’s evidence is that she will seek part-time employment upon completion of her (omitted) course. It is her wish to work school hours so that she can care for the children, including delivering and collecting the children from school and kindergarten and be available to care for them after school.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
Neither party cohabits with any other person.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
The only substantial non-superannuation asset of the parties, apart from their respective motor vehicles, is of the proceeds of sale of the former family home of proximally $165,000. I propose to make an order distributing the proceeds of sale between the parties.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
The husband has been administratively assessed to pay child support to the wife. The wife’s Amended Financial Statement states that she receives child support payments of $58 per week.[26]
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
[26] Item 13 of Part D of Amended Financial Statement filed by the Wife on 19 August 2016.
All relevant circumstances have been referred to herein.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not a relevant consideration.
Is it just and equitable to alter the parties’ property interests
Both parties, in their respective Application and Response have sought orders adjusting their respective interests in property.
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties.
Adjustment of interests
After consideration of the contributions and relevant s.75(2) factors, I consider that there should be an adjustment to the wife on account of s.75(2) factors of 10% of the non-superannuation property pool.
I am therefore satisfied that a distribution of the assets as to 60% to the wife and 40% to the husband of the non-superannuation pool and an equalisation of the superannuation assets is appropriate.
Conclusion
After payment of the sum of $3541 to the wife’s parents, the division of assets I have determined is summarised as follows:
Wife’s Assets
| Payment from funds in trust | $108,689 |
| Honda Motor Vehicle | $1500 |
| Interim payment to the wife | $20,000 |
| Total non-superannuation assets | $130,189 |
| Wife’s superannuation | $57,757 |
| Share of husband’s superannuation | $7413 |
| Total superannuation assets | $65170 |
Husband’s Assets
| Payment from funds in trust | $53,292 |
| Husband’s car | $6500 |
| Husband’s motorbike | $7000 |
| Interim payment to the husband | $20,000 |
| Total non-superannuation assets | $86,792 |
| Husband’s superannuation | $72,584 |
| Wife’s share of husband’s superannuation | ($7413) |
| Total superannuation assets | $65,171 |
After considering both parties circumstances, I am satisfied that the distribution of property between the parties is just and equitable.
I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 14 September 2016
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