JACKSON & SHEA
[2014] FamCA 72
•12 February 2014
FAMILY COURT OF AUSTRALIA
| JACKSON & SHEA | [2014] FamCA 72 |
| FAMILY LAW – CHILDREN – Parental responsibility – Orders – wife sought equal shared parental responsibility save that she have sole parental responsibility for the child’s religious observances and medical and dental treatment – husband sought equal shared parental responsibility – extent and degree of observance of their shared faith – no orders made for sole parental responsibility in respect of either issue – parties have equal shared parental responsibility FAMILY LAW – CHILDREN – With whom a child spends time with – Orders – the child shall spend equal time with the parties FAMILY LAW – PROPERTY SETTLEMENT – Contributions – just and equitable – wife had significant financial benefit of family trust – husband had made smaller financial contributions – wife argued not just and equitable to alter the current legal and equitable interests of the parties – husband had still contributed to the assets of the parties over the course of a long marriage – orders made altering property interests 72/28 in favour of the wife FAMILY LAW – PROPERTY SETTLEMENT – “add-backs” – legal fees – partial property settlement – parties’ legal fees considered under s 75(2)(o). Property Law Act 1969 (WA) s 126 |
| Bevan v Bevan [2013] FamCAFC 116 MRR v GR (2010) 240 CLR 461 N & N (1981) FLC 91-111 |
| APPLICANT: | Mr Jackson |
| RESPONDENT: | Ms Shea |
| FILE NUMBER: | MLC | 5985 | of | 2011 |
| DATE DELIVERED: | 12 February 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 22, 23, 24, 25 July 2013 15 & 16 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Strum |
| SOLICITOR FOR THE APPLICANT: | Berry Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Vohra |
| SOLICITOR FOR THE RESPONDENT: | Forte Family Lawyers |
Orders
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for the child of the marriage C born … February 2004.
That save as otherwise provided for herein, during school terms, the child shall live with the parties on a week about basis as follows:-
(a)With the husband from 5.30pm on Friday until the commencement of school on the following Wednesday and in each alternate week thereafter;
(b)On the intervening Wednesday from the conclusion of school until 8pm; and
(c)With the wife at all other times, PROVIDED THAT on any occasion that handover does not take place to and from the child’s school then the husband shall deliver the child to the wife’s home or subject to further agreement between the parties, the number 3 bus stop at the corner of M Street and K Street, Suburb L.
That during school term holidays the child live with the parties as follows:
(a)With the party with whom the child has not been living on the last day of the school term – during the first half of the school term holidays, commencing at the conclusion of school on the last day of the school term and concluding at 6.30pm on the mid-point of the school term holiday;
(b)With the other party – during the second half of the school term holidays commencing at 6.30pm at the mid-point of the school term holidays until the commencement of school on the first day of the following school term;
PROVIDED THAT the school term holidays shall be calculated as commencing at 5.30pm on the day school concludes until 6.30pm on the day immediately preceding school recommencing.
At the commencement of each school term the week about living arrangements resume on the basis that the child live with the party with whom she did not live in the second half of the school term holidays.
That as and from the long summer holidays commencing 2014/2015 unless otherwise agreed in writing, the child shall live with each of the parties as follows:-
(a)With the wife from the conclusion of school on the last day of the school year for seven (7) days concluding at 6.30pm on the last day of the school year concluding at 6.30pm on the seventh (7th) day of the holidays, and thereafter;
(b)With the husband for seven (7) days concluding at 6.30pm on the fourteenth (14th) day of the holidays, and thereafter;
(c)With the wife for fourteen (14) days concluding at 6.30pm on the twenty eighth (28th) day of the school holidays, and thereafter;
(d)With the husband for fourteen (14) days concluding at 6.30pm on the forty second (42nd) day of the school holidays;
(e)Thereafter, any remaining unallocated days be divided between the parties in two (2) equal blocks to conclude at 6.30pm on the last day of the holidays immediately prior to the first day of the new school year.
That the child spend time with the wife on Mother’s Day from 9.30am until 5pm if Mother’s Day does not fall on a day when the child would otherwise live with the wife.
That the child spend time with the husband on Father’s Day from 9.30am until 5pm if Father’s Day does not fall on a day when the child would otherwise live with the husband.
That on the child’s birthday she spend time with the parties with whom she is not otherwise living on that day for two (2) hours at a mutually agreed time and in default of agreement between 5pm and 7pm on a school day and between 10am and 12 noon on a non-school day.
That the parties use a communication book (or otherwise communicate by SMS text message or email) to keep each other appraised of any matters relevant to the child including her health and education.
That if either party propose to travel interstate with the child such party is to provide the other party not less than seven (7) days’ notice in writing of their intention to do so.
That if either party seeks to travel overseas with the child such party shall request in writing the other party’s written consent to do so at least twenty eight (28) days prior to the intended overseas travel AND thereafter provide the other party with a copy of their itinerary, return tickets and contact telephone numbers not less than fourteen (14) days prior to the overseas travel.
That for the purpose of any agreed overseas travel each party do all things and sign all such documents as may be necessary to facilitate the timely release to the travelling parent, of the child’s passport PROVIDED THAT the Passport will be held by the wife in the calendar year 2014 and each alternate year thereafter and by the husband in the calendar year 2015 and each alternate year thereafter.
That the parties sign all documents and do all acts and things necessary to authorise the child’s school report, school notices, school photographs and any other information to be sent by the child’s school to each of the parties.
That the child be permitted by each of the parties to take her personal and school possessions back and forth between the respective residences of the parties AND the husband ensures that he returns the child’s overnight bag to the wife’s home after he has delivered her to school in the mornings.
That the parties shall keep each other informed in a timely fashion of any health issues/medical treatment of the child which occurs when the child is with either of them respectively.
That each of the parties advise and keep advised the other of them as to their respective residential address and landline and mobile telephone numbers and any changes thereto.
That neither party remove the child from enrolment at N School without the written agreement of the other party or Order of this Honourable Court.
That in respect of the following Jewish Festivals the child shall spend time with the parties as follows:-
(a) Pesach (Passover):-
(i)In 2014 the child shall spend time with the wife for the entirety of the Passover Festival NOTING that the child will travel with the wife to Perth, Western Australia;
(ii)In 2015 the child shall spend time with the husband on the first night of Passover from 5pm to 10am the following morning and with the wife on the second night from 5pm until 10am the following morning and in alternate years thereafter;
(iii)In 2016 the child shall spend time with the wife on the first night of Passover from 5pm to 10am the following morning and with the husband on the second night from 5pm until 10am the following morning and in alternate years thereafter.
(b) Rosh Hashanah (New Year)
(i)In 2014 the child spend time with the husband from 4pm on the first night of Rosh Hashanah until 8am the following morning and with the wife from 4pm on the second night of Rosh Hashanah until 8am the following morning and in alternate years thereafter;
(ii)In 2015 the child spend time with the wife from 4pm on the first night of Rosh Hashanah until 8am the following morning and with the husband from 4pm on the second night of Rosh Hashanah until 8am the following morning and in alternate years thereafter.
(c) Yom Kippur (Day of Atonement)
(i)In 2014 the child spend time with the wife from 4pm on the eve of Yom Kippur until 8am the day after Yom Kippur and in alternate years thereafter;
(ii)In 2015 the child spend time with the husband from 4pm on the eve of Yom Kippur until 8am the day after Yom Kippur and in alternate years thereafter.
The husband and the wife provide the child with privacy whenever practical when she speaks to the other parent by telephone.
In full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a)That within sixty (60) days the wife do pay or cause to be paid to the Trust Account of Berry Family Law for and on behalf of the husband the sum of EIGHT HUNDRED AND FIFTY SIX THOUSAND FIVE HUNDRED AND TWENTY DOLLARS ($856,520) (“the settlement sum);
(b)That pending payment of the said settlement sum the wife be restrained and an injunction granted encumbering, restraining her from selling, disposing of or otherwise dealing with the property situate at M street, Suburb L in the State of Victoria (“the M Street property”) SAVE as provided by paragraph 21 (c) hereof.
(c)That in default of payment of the settlement sum pursuant to paragraph 21 (a) hereof and should such default continue for more than thirty (30) days THEN the M Street property shall forthwith be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and in default of agreement as may be ordered by this Honourable Court with the net proceeds of sale to be applied as follows:-
(i)In payment of all costs, commission and expenses of the default sale;
(ii)Secondly, to discharge any encumbrances in respect of the M Street property;
(iii)Thirdly, in payment of the settlement sum or so much thereof as may be outstanding together with default interest from the due date until the date of payment at the rate prescribed pursuant to the Family Law Rules 2004 (Cth) from time to time;
(iv)Fourthly, the balance if any to the wife.
(d)That the wife indemnify the husband and keep him so indemnified against any and all liability of the husband to the wife’s mother Ms B Shea.
(e)That each party be liable for and indemnify and keep indemnified the other against any liabilities of each of them associated with or attached to any item of property retained by the first named party.
(f)That the husband shall retain to the exclusion of the wife the following:-
(g)The real property registered in his sole name situate at O Street, Suburb P in the State of Victoria, subject to the mortgage thereover;
(i)His shareholding in Q Pty Ltd and the business trading as “R Business”;
(ii)Funds standing to his credit in bank accounts;
(iii)His publicly listed shares;
(iv)All motor vehicles in his possession;
(v)His art business equipment, collectables, household contents and personal effects;
(vi)His liabilities to his parents;
(vii)His credit card liability;
(viii)His entitlements in the T Superannuation Fund.
(h)That subject to these orders the wife shall retain to the exclusion of the husband the following:-
(i)The real property registered in her name and situate at:-
1. M Street, Suburb L in the State of Victoria;
2. U Street, Suburb H in the State of Western Australia;
(ii)Her interest in the property situate at:-
1. V Street, Suburb G in the State of Western Australia;
2. W Street, Suburb H in the State of Western Australia;
(iii)Her interest in:-
1. S D & Co Pty Ltd;
2. The D1 Trust;
3. The D2 Family Trust;
4. The D personal account;
5. Funds standing to her credit in bank accounts;
6. Her publicly listed shares;
7. Her motor vehicle;
8. Her household contents and personal effects;
9. Her entitlement in X Superannuation and Y Superannuation.
That each party will do all such things and sign all such documents that may be required to give effect to the terms of this order PROVIDED that if the parties or either of them shall refuse or neglect to execute any transfer or other documentation pursuant to the terms of these orders within seven (7) days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose THEN and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his/her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and to the same accordingly.
That all applications be otherwise dismissed and removed from the pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jackson & Shea has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLC 5985 of 2011
| Mr Jackson |
Applicant
And
| Ms Shea |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed in the Family Court of Australia on 6 July 2011, Mr Jackson (“the husband”) sought orders for property settlement following a marriage of 13 years. Before the filing of any response the husband filed an Amended Application on 4 August 2011 which provided for additional orders in relation to the parenting arrangements in respect of the child of the marriage C born in February 2004 (“the child”). The Amended Initiating Application did not alter the orders sought by way of settlement of property. The broad thrust of the parenting orders sought by the husband was as follows (my summary):-
·That the child shall spend time with each of the parties on a week about basis;
·That the week about basis would continue during the school holiday periods (as distinct from the long summer vacation);
·That the child would spend three weeks with each of the parties over the long summer vacation on an alternating basis;
·That the parties should agree in respect of any holiday arrangements as proposed by a travelling party for a period of one week in school term holidays or three weeks in Christmas holidays;
·That the child’s passport is to be held by the husband’s solicitors;
·That the child is to continue her education at N School subject to agreement;
·That the child will spend the Jewish Festivals with each of the parties on an alternating basis in relation to the Passover, Yom Kippur and Rosh Hashanah;
·Appropriate arrangements for Mother’s Day, Father’s Day, the parents’ birthdays and the child’s birthday.
Ms Shea (“the wife”) filed a Response to the Initiating Application on 14 September 2011, but soon thereafter filed an Amended Response on 10 November 2011. The orders sought by the wife can be summarised as follows:-
·That the parties have equal shared parental responsibility for the child;
·That the child spend time with the husband each alternate weekend from 5.30pm Friday until 5.30pm Sunday, each alternate Saturday between 9.30am and 5.30pm and every Friday from after school care until 7.45pm;
·The wife proposes usual orders in respect of Father’s Day, communication by telephone and the child’s birthday;
·Specifically, the wife sought orders that the husband’s time with the child be suspended for two weeks in January in each year, for the Passover observance (approximately eight days to enable the wife and the child to spend that time in Perth with her family), Yom Kippur and Rosh Hashanah in each year and on Mother’s Day;
·The wife sought what in reality amounts to a mandatory injunction requiring the husband to ensure the child adhere to orthodox Jewish kosher rules in his home and vegetarian dietary principles outside the home;
·In relation to settlement of matrimonial property the wife sought what might be described as a general order that there be a just and equitable division of property between the parties reserving the right to better particularise the orders that she ultimately will seek.
In preparation for the trial the husband filed an Amended Amended Initiating Application on 13 February 2013 which did not seek to vary or amend the orders for settlement of property as sought but was more expansive in respect of parenting issues relating to the child. The orders sought can be summarised as follows:-
·That the child is to live with the husband and the wife on a week about basis from Friday to Friday;
·The child will spend one half of each school term holidays with each of the parties;
·That the child will spend the long summer vacation, namely the first week of the vacation holidays (7 days) with the wife, the next 7 day period with the husband, the following 14 day period with the wife and the final 14 day period with the husband;
·Appropriate arrangements for Mother’s Day, Father’s Day and the child’s birthday;
·Terms and conditions to apply if either of the parties intend to travel with the child either interstate or overseas;
·The proper exchange of information relevant to the child in terms of education and medical treatment;
·That the child is to continue with her education at N School;
·That the child spends time with each of the parties over the Passover Festival period and with each of the parties in respect of Yom Kippur and Rosh Hashanah Festivals on an alternating year basis.
At trial the husband tendered a minute of the parenting orders sought by him which was in similar terms to the orders sought in the Amended Amended Initiating Application but with differences as to the following matters:-
·The issue of equal shared parental responsibility;
·That the child would live with the husband for six nights a fortnight as opposed to seven together with some more minor drafting amendments to other orders sought. This necessitates the incorporation of the parenting orders sought by the husband at trial in these reasons:-
1.The parties have equal shared parental responsibility for the child of the marriage, [C], born … Feburary 2004
2.That, save as otherwise provided herein, during school terms, the child live with each of the parties on a week about basis, as follows:-
a.with the husband from 5.30pm on Friday until 5.30pm the following Thursday and in alternate weeks thereafter; and
b.with the wife at all other times.
3.That, during school term holidays, the children live with each of the parties as follows:-
a.with the party with whom the child has not been living on the last day of the school term – during the first half of the school term holidays, commencing at the conclusion of school on the last day of the school term and concluding at 6.30pm at the mid-point of the school term holidays;
b.with the other party during the second half of the school term holidays, commencing at 6.30pm at the mid-point of the school term holidays until the commencement of school on the first day of the following school term.
4.That, at the commencement of each school term, the week about living arrangements resume on the basis that the child live with the party with whom she did not live in the second half of the school term holidays.
5.That during the long summer vacation in 2013/2014, the child live with each of the parties for a continuous period of 21 days and that, during the wife’s period, she be at liberty to travel with the child to Israel, upon the terms and conditions hereinafter provided, and any days in the said long summer vacation in excess of 42 days be equally divided between the parties.
6.That during long summer vacations commencing in 2014/2015, unless otherwise agreed in writing, the child live with each of the parties as follows:-
a.with the wife, from the conclusion of school on the last day of the school year, for seven (7) days concluding at 6.30pm on the last day;
b.with the husband, for seven (7) days concluding at 6.30pm on the last day;
c.with the wife, for fourteen (14) days concluding at 6.30pm on the last day;
d.with the husband, for fourteen (14) days concluding at 6.30pm on the last day;
e.thereafter, any remaining unallocated days be divided between the parties in two equal blocks concluding at 6.30pm on the eve of the first day of the next school year.
7.That the child spend time with the wife on Mother’s Day from 9.30am until 5pm if Mother’s Day does not fall on a day when she would otherwise live with the wife.
8.That the child spend time with the husband on Father’s Day from 9.30am until 5pm if Father’s Day does not fall on a day when she would otherwise live with the husband.
9.That, on the child’s birthday, she spend time with the party with whom she is not otherwise living that day for two (2) hours at a mutually agreed time and in default of agreement between 5pm and 7pm on a school day and between 10am and 12 noon on a non-school day.
10.That the parties use a communication book (or otherwise communicate by SMS text message or email) to keep each other apprised of any matters relevant to the child (including her health and education).
11.That if either party proposes to travel interstate with the child, such party provide to the other party:-
a.not less than twenty-eight (28) days’ notice in writing thereof, including a proposed itinerary and contact details; and
b.make-up time in respect of time foregone by the other party;
12.That if either party seeks to travel overseas with the child, such party request in writing the other party’s written consent to do so at least twenty-eight (28) days prior to the intended overseas travel and thereafter provide the other party with a copy of the itinerary, return tickets and contact telephone numbers not less than fourteen (14) days prior to the overseas travel.
13.That, for the purpose of any agreed overseas travel, each party do all things and sign all documents as may be necessary to facilitate the timely release to the travelling parent, of the child’s passport, which is otherwise to be held by the Melbourne Registry of the Family Court of Australia at all other times (such passport to be returned to the Registry within 7 days of the child’s return to Australia).
14.That each party provide the chid with privacy, whenever practical, when she speaks by telephone to the other parent.
15.That the parties sign all documents and do all acts and things necessary to authorise the child’s school reports, school notices, school photographs and any other information to be sent by the child’s school to each of the parties at the recipient’s expense, if any.
16.That each party permit the child to take her personal and school possessions back and forth between the respective residences of the parties.
17.That each of the parties keep the other informed in a timely fashion of any health issues and medical treatment of the child occurring when the child is in his/her care.
18.That each of the parties advise and keep advised the other party as to their respective residential address and landline and mobile telephone numbers and any changers thereto.
19.That neither party remove the child from enrolment at [N School] without the written agreement of the other party or order of this Honourable Court first had and received.
20.That, in respect of the following Jewish Festivals, the child spend time with the parties as follows:
(a)Pesach (Passover)
(i)In 2014, the child spend time with the husband on the first night of Pesach from 5pm to 10am the following morning and with the wife on the second night from 5pm until 10am the following morning and in alternate years thereafter;
(ii)In 2015, the child spend time with the wife on the first night of Pesach from 5pm until 10am the following morning and with the husband on the second night from 5pm until 10am the following morning and in alternate years thereafter;
(a) Rosh Hashana (New Year)
(i)In 2013, the child spend time with the husband from 4pm on the first night of Rosh Hashana until 8am the following morning and with the wife from 4pm on the second night of Rosh Hashana until 8am the following morning and in alternate years thereafter;
(ii)In 2014, the child spend time with the wife from 4pm on the first night of Rosh Hashana until 8am the following morning and with the husband from 4pm on the second night of Rosh Hashana until 8am the following morning and in alternate years thereafter;
(b) Yom Kippur (Day of Atonement)
(i)In 2013, the child spend time with the wife from 4pm on the eve of Yom Kippur until 8am the day after Yom Kippur and in alternate years thereafter;
(ii)In 2014, the child spend time with the husband from 4pm on the eve of Yom Kippur until 8am the day after Yom Kippur and in alternate years thereafter.
21.That, within 60 days, the wife produce documentary proof to the husband’s solicitors that she has successfully completed a Post Separation Parenting Course in compliance with paragraph 11 of the orders of 16 April 2012.
22.That, for the purposes of changeover, the party with whom the child has been living or spending time shall deliver the child to the other party at the commencement of the other party’s time with the child.
23.Such further or other order(s) as the Court deems appropriate.
The husband’s counsel also tendered a Minute of Order as to property and other orders sought.
By further Amended Response filed 1 March 2013 the wife sought orders summarised as follows:-
·That the parties have equal shared parental responsibility save that the wife have sole parental responsibility for:-
(i)Making decisions concerning the child’s Jewish observances; and
(ii)Day to day medical and dental treatment including medical and dental check-ups.
·That the child spend four nights a fortnight with the husband by way of each alternate weekend from 5.30pm Friday to 6pm Sunday and each Wednesday from after school until the commencement of school on the following day;
·Usual appropriate orders in respect of Mother’s Day, Father’s Day and the child’s birthday;
·For half of all school holidays save that in the long summer school holidays the child will spend time with each of the parties on a week about basis;
·Not dissimilar to the earlier orders sought in the Amended Response, the wife seeks that the child shall live with her during all periods of Passover (8 days), Yom Kippur and Rosh Hashanah in each year;
·That the child attend for any Bat Mitzvah lessons at the direction of the wife (to the exclusion of the husband);
·That the wife hold the child’s passport;
·Terms and conditions of the wife being able to remove the said child from the Commonwealth of Australia for the purposes of overseas travel (noting that there is no provision now for the husband to take the child out of the Commonwealth of Australia);
·That in addition to the mandatory obligation sought to be imposed on the husband as to the dietary requirements of the child, the wife seeks that the husband only take the child to the Suburb Z synagogue for religious observance;
·On any occasion that the husband is unable to care for the child then the wife is to be given first option to be an alternate carer; and
·The husband and the wife do organise and host in alternate years the child’s birthday party.
At the commencement of the trial counsel for the wife tendered a Minute of Final Orders sought both in respect of parenting and matrimonial property settlement. I will consider orders sought by the parties in respect of property settlement later in these reasons. The minute of final orders as tendered have some additional and/or changed orders sought namely:-
·That the wife now proposes that the child spend time with the husband from 5.30pm Friday until the commencement of school or 9am on Monday in addition to every Wednesday from after school to the commencement of school the following day, namely five nights per fortnight.
There are other ancillary orders sought by the wife that whilst not controversial are nonetheless not included in the further Amended Response and accordingly, I set out herein the orders sought by the wife at trial in full:-
(1)That the Amended Amended Initiating Application of the husband filed 13 February 2013 be dismissed.
(2)That the parties have equal shared parental responsibility for the child [C] born … February 2004 (“[the child]”) save that the wife have the sole parental responsibility for:-
(a)Making decisions concerning [the child’s] Jewish observances; and
(b)Day to day medical and dental treatment for [the child] including medical and dental check-ups.
(3)That [the child] live with the wife.
(4)That [the child] spend time with the husband as follows:-
(a)On each alternate weekend from 5.30pm Friday until the commencement of school or 9am on Monday, with the wife to deliver [the child] to the husband’s residence at the commencement of such time and the husband to deliver [the child] to the wife’s home at the conclusion of such time;
(b)Every Wednesday from after school until the commencement of school the following day, with the husband to collect [the child] from the number [3] bus stop at the corner of [M Street] and [K Street], [Suburb L] or the husband collect [the child] directly from school, and the husband either ensure that [the child] catches the school bus to school near the wife’s home the following morning or he deliver her to school;
(c)On Father’s Day each year from 10.30am until 5pm;
(d)By telephone at any reasonable time by the husband telephoning the wife’s landline or mobile number;
(e)On [the child’s] birthday each year as follows:-
(i)If [the child’s] birthday falls on a weekday, for two hours at times to be agreed between the parties;
(ii)If [the child’s] birthday falls on a weekend, for four hours, at times to be agreed between the parties;
(f)For half of all school term holidays as follows:-
(i)The school term holidays be calculated as commencing at 10am on the first day after school concludes until 6pm on the day immediately preceding school recommencing;
(ii)That changeover at the midpoint of the school holidays take place at 6pm;
(iii)That the husband have the second half of the school term school holidays in 2013 and each alternate year thereafter, and the husband have the first half of the term school holidays in 2014 and each alternate year thereafter.
(g)During the long summer school holidays as follows:-
(i)In alternate weeks;
(ii)That the long summer school holidays be calculated as commencing at 10am on the first day immediately after school concludes until 6pm on the day immediately preceding school recommencing;
(iii)Changeover shall occur at 6pm;
(iv)As may otherwise be agreed between the parties.
(5)That the husband’s time with [the child] be suspended as follows:-
(a)The husband’s time pursuant to paragraphs 4 (a) and 4 (b) be suspended during all school term and long summer holidays;
(b)For Pesach each year commencing at 6pm on the evening of the day before Pesach eve and concluding at 6pm on the day after Pesach concludes (Pesach occurring for eight days);
(c)For Yom Kippur each year from 6pm on the evening of the day before the eve of Yom Kippur until 6pm on the day after Yom Kippur;
(d)For Rosh Hashanah each year from 6pm on the evening of the day before the eve of Rosh Hashanah to 6pm on the day after Rosh Hashanah;
(e)On Mother’s Day each year from 10.30am until 5pm;
(f)If [the child] is in the care of the husband on her birthday, then:-
(i)For two hours if that birthday falls on a weekday;
(ii)For four hours if that birthday falls on a weekend.
(g)For any Bat Mitzvah lessons that [the child] is to attend, at the direction of the wife.
(6)That [the child’s] passport currently held by Berry Family Law be returned to the wife.
(7)That within seven days of receiving a request from the wife in writing, the husband do all such acts and things and sign all such necessary documents as may be required to obtain a new Australian passport for [the child], and any such new passport that is issued be retained by the wife.
(8)That the wife be permitted to remove [the child] from the Commonwealth of Australia as follows:-
(a)For a period of 21 days in December 2013/January 2014 for the purposes of [the child] attending the Bar Mitzvah of her cousin [AA] in Israel;
(b)For a period of 21 days in 2016 for the purpose of [the child] attending the Bat Mitzvah of her cousin, [BB] in Israel; and
(c)For one half of the second term school holidays each year.
(9)That for the purposes of paragraph 8 (a) and 8 (b) the wife provide to the husband not less than one month prior to the proposed trip to Israel a copy of the itinerary (including flight details) and contact details for the wife whilst she is in Israel.
(10)For the purposes of paragraph 8 (c), the wife provide to the husband not less than 14 days prior to the proposed trip a copy of the child’s itinerary (including flight details) and contact details for the wife overseas.
(11)That during the time that [the child] spends in the husband’s care:-
(a)The husband do all acts and things necessary to ensure that [the child] observes the Jewish dietary laws of Kashrut, save that if the husband takes [the child] to eat outside of his home he do all acts and things necessary to ensure that [the child] adheres to vegetarian dietary principles; and
(b)The husband only take [the child] to [Suburb Z] Synagogue for religious observance.
(12)That in the event the husband is unable to care for [the child] during any of the times she is to spend in his care, the husband give the wife the first option to be an alternative carer for [the child] during those times.
(13)That the husband and the wife organise and host, in alternate years, [the child’s] birthday party (not to occur on a Saturday), with the wife to organise and host the party in 2014.
(14)That the husband and the wife provide the child with privacy whenever practical when she speaks to the other parent by telephone.
(15)That the parties arrange for the child’s school reports, school notices and school photographs and any other information to be sent by [the child’s] school to each of the parties and each of the parties sign such authorisation as may be necessary to facilitate the same and to pay one half of the respective costs; if any.
(16)That the child be permitted by each party to take her personal and school possessions back and forth between the respective residences of the parties.
(17)That the parties shall each keep the other informed in a timely fashion of any health issues/medical treatment of the child which occurs when the child is with them respectively.
(18)That each of the parties advise the other party as to where they are living and if they change their address they are to communicate any change of address promptly.
Whilst I will give detailed consideration to matters relevant to matrimonial property settlement later in these reasons, it is useful to highlight at this stage that whilst the husband seeks orders for settlement of property pursuant to Section 79 of the Family Law Act1975 (Cth) (“the Act”), in her Further Amended Response and repeated in the Minute of Order as tendered by her counsel, the wife seeks a declaration that each of the parties retain property currently held or controlled by each of them not by way of Section 79 relief but by way of declaration presumably in respect of declaration pursuant to Section 78 of the Act.
The parenting orders sought by each of the parties are to be seen against the backdrop of the orders made by Senior Registrar Fitzgibbon on 16 April 2012 which provide for the current parenting arrangements in respect of the said child. It is relevant that those orders provide for the child to spend five nights a fortnight with the husband from 4.30pm Friday until the commencement of school on Monday (or 12 noon if Monday is a Victorian Public Holiday) and each Wednesday night from the conclusion of school until the commencement of school on the following day and to also record the agreement between the parties amongst other comprehensive interim arrangements as to each of the parties travelling with the child both interstate and overseas.
The trial commenced before me on 22 July 2013 and evidence was taken thereafter on 23, 24, 25 July 2013, 15 and 16 August 2013 and following an argument on the wife’s Application in a Case seeking orders to adduce further evidence from the wife’s mother Ms B Shea on 29 August 2013 and orders made by me on 11 September 2013 granting leave to the wife to rely upon an affidavit of the wife’s mother affirmed on 23 August 2013 and an interim costs order made in favour of the husband, the evidence resumed on 7 October 2013 and concluded on 8 October 2013.
Counsel for each of the parties elected to make submissions in writing and these were received by the end of October 2013. Each of the submissions were both comprehensive and helpful. Of relevance at this stage is to note that the orders sought by each of the parties in respect of parenting orders and settlement of property were again set out but with some further differences to the Minute of Order presented by each of them at the commencement of the proceedings. I do not set those out further but in respect of the drafting of the orders that I will make, I will have regard to them generally.
Trial directions were made by Cronin J on 6 March 2013 and it should be noted that each of the parties complied with those orders. The husband relied upon the following documents:-
(1) Amended Initiating Application filed 13 February 2013
(2) Financial Statement of husband filed 26 April 2013
(3) Trial Affidavit of husband filed 26 April 2013
(4) Affidavit of husband in Reply filed 6 June 2013
(5) Affidavit of Mr CC (Valuer) filed 1 July 2013
(6) Affidavit Mr DD (Valuer) to be filed (sworn 19 July 2013)
(7) Affidavit of Mr EE (Family Consultant) filed 11 April 2012.
The wife relied upon the following documents:-
(1) Further Amended Response filed 1 March 2013
(2) Trial Affidavit of wife filed 20 May 2013
(3) Financial Statement of wife filed 20 May 2013
(4) Affidavit of Ms FF (valuer) filed 17 July 2013
(5) Affidavit of Mr GG filed 4 April 2012.
Short Chronology
1961 Date of birth of husband (53 years)
1962 Date of birth of wife (51 years)
24.6.1972 Deed of Trust Executed to establish the D2 Family Trust
3.8.1972Deed of Appointment in favour of Ms B Shea (the wife’s mother) appointing her as trustee of the D2 Family Trust upon the death of Mr HH (the wife’s grandfather)
Mar 1979Death of Mr HH
22.5.1977Establishment of the D1 Trust
Jul 1983Wife at age 21 receives a 1/7th share of property situate at W Street, Suburb H, Western Australia and a 1/5th interest in V Street, Suburb G, Western Australia
1987Husband purchases property at JJ Street, Suburb KK, Victoria (the JJ Street property)
1990Husband commences his art business under the business name of “R Business”
1995Wife purchases property at M Street, Suburb L, Victoria (the M Street property)
1995Wife sells land gifted to her and purchases property at U Street, Suburb H, Western Australia (the U Street property)
1997Date of marriage – parties reside in the M Street property
1998Husband leaves education field and practices in art field
1999Wife’s father gifts a share portfolio to her
Feb 2000Husband purchases property at O Street, Suburb P, Victoria (the O Street property)
Feb 2004Date of birth of the child C (10 years)
Mid 2005Parties vacate M Street property in preparation for demolition and rebuilding and reside in rented accommodation at Suburb P
Dec 2004Husband sells JJ Street property
Late 2006O Street property is demolished and rebuilt
Nov 2006 Parties return to M Street property
Sep 2008O Street property completed
Aug 2008Husband returns to education role full time at LL School
2009Husband takes up full time education role position at MM School
Feb 2011Parties separate under the one roof
12.12.2011Husband leaves the matrimonial home at M Street and resides in the O Street property
Background
The parties each presented evidence as to their differing involvement in the upbringing and the care arrangements in respect of the child. At paragraph 21 of the husband’s Affidavit filed 26 April 2013 (the first trial Affidavit), he sets out his significant involvement in the parenting arrangements in respect of the child. In particular he says:-
21. When the wife and I were living together I was substantially involved in the upbringing and parenting of [the child]. I say that:-
(a)From the time the wife and [the child] came home from hospital I was just as much responsible, as was the wife, for bathing [the child], preparing and feeding [the child] bottles, changing nappies (most of which I had purchased), putting her to bed and playing with her. The wife and I had, in my opinion, equal input to looking after [the child]. Although the wife was not working until [the child] went to crèche when she was two years old, the wife suffered from post-natal depression and was on medication on an ongoing basis for depression. When [the child] was born I was not working [in an education role] but conducting my [art] business. As such I was at home during the day most of the time and only went to the [O Street] property to attend the [art] business in the evening…I had plenty of time to be heavily involved in the parenting and upbringing of [the child] in her early years;
(b)In 2006 when [the child] went to crèche, the wife recommenced work on 3-4 days per week plus weekend work. I continued to be heavily involved with [the child’s] parenting and upbringing and was probably more involved because of the wife commencing a part-time day job during the week and at weekends;
The husband asserts that his early involvement with the care of the child continued thereafter. The husband details his involvement in the social and personal development of the child including assisting and teaching her how to dress herself, basic life skills, manners and discipline and social development. On the husband’s case, his close involvement continued up until separation.
The wife presents a different scenario.
At paragraph 53 of her Trial Affidavit filed 21 May 2013 (the wife’s Trial Affidavit) she says:-
53. I continued to be responsible for managing the household and [the child’s] day to day needs. I did the cooking, washing and cleaning of the household with little assistance from [the husband]. I would manage [the child’s] bedtime routine including bathing, insisting on a regular bed time and reading [the child] a story in her bed.
54.[The husband] and I often disagreed about [the child’s] behaviour and discipline. I favoured an approach which set defined boundaries about what behaviour was appropriate or inappropriate and disciplined [the child] by, for instance, sending her to another room or reprimanding her verbally. On the other hand, [the husband] rarely disciplined [the child] and would disagree with discipline in front of [the child].
The parties agree that they separated in February 2011, that date coinciding with the child’s seventh birthday party. The wife says that by that time the parties were “effectively living separate lives. We rarely socialised together, and we rarely jointly participated in the care of [the child]”.
Following separation it appears that the parties argued as to whether the husband should move out of the former matrimonial home. The wife alleges that the husband refused to do so seeking to negotiate his departure from the home on the basis of an agreed position that the care of the child would be shared equally between the parties.
Whilst this issue was the subject of substantial evidence during the course of the trial, it is not controversial that the circumstances within the home up to the time that the husband left the property were tense, unpleasant and significantly distressing to the child.
On the wife’s case, it is only after separation that she says the husband started to take an interest in the child and sought to undertake parenting activities that he had not previously engaged in.
Whilst I will give greater consideration to the reports of the Family Consultant Mr EE, in his report of 22 September 2011 he says that:-
[The child] showed the early signs and symptoms of her exposure to the parental conflict.
The husband presents a significantly different picture. It is his position that after separation, in particular after he vacated the former matrimonial home on 12 December 2011, the wife has set about with the clear intention to restrict the time that the child would spend with him and was resistive to the husband wanting to involve himself in medical or dental appointments in respect of the child. There was little or no effective communication between the parties and a summary of the wife’s view of the post-separation relationship is that it was toxic.
The parties would appear to have little regard for each other and particularly in respect of the wife her disdain for the husband during the course of her evidence was palpable. It appears that even the day of final separation was an example of high conflict and drama. The wife alleges that the Court orders required the husband to leave the M Street property by 4pm on 12 December 2011. Those orders also provided an interim property payment of $100,000 and Consent Order that the child would spend time with the husband each Wednesday overnight and each alternate weekend from Friday 4.30pm to Sunday at 6.30pm. When the wife and the child returned to the home expecting that it would be vacant, the husband was still in residence. The wife alleges that the husband left at 7pm and it is her take on the husband’s behaviour that he deliberately remained in the home to further upset her without advice to her that he would be delayed. The wife alleges that the child was not protected from the conflict.
Unfortunately the events of 12 December 2011 were the catalyst for an Intervention Order Application brought by the husband on both his behalf and that of the child. The husband alleges that he was assaulted by the wife. She denies that allegation. Ultimately the Intervention Order was settled by consent on the basis that it did not apply to the child.
On 16 April 2012 orders were made by Senior Registrar Fitzgibbon as to the time that the child would spend with the husband. Generally those orders have been the subject of proper compliance by the parties, although significant disagreement has arisen in circumstances where the wife seeks extra time with the child usually to accommodate travel and other arrangements to visit her family in Western Australia or other family commitments overseas. The husband has been prepared to accommodate such requests but the parties remain in dispute as to the extent of make-up time.
The child is presently in year 5 at N School and is attending the Suburb NN Campus. By consent, school reports for the second semester of 2012 and the first semester of 2013 were admitted into evidence and would suggest the child is at an average level namely, “at the standard expected of the year level at this time of the year at our school”. The summary of the child’s teacher Mr OO in the 2013 school report provides:-
It has been a great pleasure working with [the child] this first semester. Her positive approach and friendly nature are a credit to her. She is well liked by her peers and has a strong social network. She bounces into class each morning excited and ready to share her stories with the class. [The child] thrives when working collaboratively and can always be counted on to do her bit in group work. When working independently she can lose confidence when challenged and needs to remind herself of the processes we have practised to clearly set out what she is required to do. [The child] easily reads at school and her comprehension of literal and inferential information is improving.
This would suggest that to some degree either the parties have become more child focussed as time has passed or they are able to put aside their enmity for each other in circumstances where the child might witness the parental dislike and tension. It is likely that the passage of time has reduced the vitriol and the parties are more attuned to the effect that the parental conflict has on the child.
Whilst there appears to be general consensus that the child will continue her education at N School (and indeed given the nature of the school reports, the stability created by the child’s attendance would speak strongly in favour of her continued enrolment) the issue of her attendance at the Suburb NN Campus has led to a more recent conflict in respect of the manner in which the child travels to and from school. In 2012 the wife would generally collect and return the child to and from school each other day. The husband would collect the child from after school on Wednesday afternoons and return her to school on the following morning. The parties agreed to trial the child taking the bus to and from school. The number 3 bus has a bus stop near the M Street property. Whilst the child became familiar with the number 3 bus, the husband wanted the child to catch a number 4 bus route with a stop close to his house. The wife alleges that the child became distressed arising out of the uncertainty of a different bus route and in particular that she would not be able to sit with her friend PP who catches the number 3 bus. Whatever the circumstances were, it appears that the husband accepted, albeit with some level of reluctance, that the child was distressed in being required to take a different bus route from the husband’s home and a practice has developed wherein the child now takes the number 3 bus route and is collected by the husband from the stop.
A prime example of the entrenched mindset of each of the parties towards the other is well demonstrated by the evidence given by each of them in respect of time the child spent with the husband over the previous school holidays. It is asserted by the wife that the husband had forgone the first night of the school holidays because the child was distressed at leaving her care. The child was returned with the consent of the husband. He says that the child was obviously distressed and it was proper to deal with the matter by recognising the child’s needs at that particular time. His position is that it shows a significant level of insight on his behalf and a willingness to put aside his own views and the conflict between the parties, thereby giving proper focus to the child’s needs. In short, he says it is a good example of the husband being able to put aside the differences between the parties and focus on the child’s needs. The wife however says that it is an example of the husband simply not recognising that the primary bond is with her and the child is not ready for the extended time that the husband seeks. Moreover, she is critical of the manner in which the husband gave his evidence on this topic and rather than communicate directly with the wife he involved the child inappropriately in what should have been an adult conversation.
It would appear that the parties still have some significant distance to travel before the child can experience the full benefit of interaction with each of her parents without acrimony. An area of substantial contention between the parties is the extent to which each of them will be involved in the religious education, instruction and upbringing of the child. The issue was brought into sharp focus by the orders sought by the wife that she have the sole parental responsibility for making decisions concerning the child’s Jewish observances. Whilst ultimately there was a concession by the wife that the child would spend in alternate years Yom Kippur and Rosh Hashanah with each of them, the wife seeks that the entirety of the Passover Festival comprising about eight days be spent with the child travelling to Perth to be with the mother’s family. The husband resists that application. As an extension of this dispute the wife seeks that she be solely responsible for the child undertaking her Bat Mitzvah. The wife also seeks that in the husband’s home he do all things necessary to ensure that the child observe Jewish dietary laws of Kashrut save and except outside of his home then the child will adhere to vegetarian dietary principles. It is also the wife’s application that the child shall attend the Suburb Z Synagogue exclusively for religious observance.
At present order 14A of orders made on 29 November 2011 provide:-
The husband and the wife each intend to ensure that the child adheres to:-
(a)Orthodox Jewish Kosher in the home; and
(b)Vegetarian dietary principles outside the home.
It is alleged the husband has breached the order and the wife highlights the husband’s evidence as to his motive in his original agreement to the order on the basis that it was “to keep the peace”. The import of the wife’s focus on this aspect is to show that the husband has little or no respect for the religious beliefs of the wife. Whilst I will deal with the matter in more detail, a short summary of the husband’s position is that he intends for the child to be brought up in the Jewish Faith and when the practices of the wife in relation to religious observance are placed under scrutiny she does not practice the obligation that she now seeks to impose on the husband. In short, the issue of religious observance can be distilled to a question of degree rather than Jewish identity. The issue of the child spending the Passover Festival with the wife’s family in Perth may have a separate significance not so much because of the religious nature of the event but because a practice has developed over a number of years to which the child may identify.
The respective proposals of the parties
The husband seeks equal shared parental responsibility for the child whereas the wife seeks sole parental responsibility for decisions concerning the child’s Jewish observances and day to day medical and dental treatment for the child including medical and dental check-ups. The husband’s counsel makes the observation that there is an inconsistency in an order being framed as equal shared parental responsibility but with certain areas to be left to the sole parental responsibility of one party. That issue only becomes a matter of concern if I decide that the order should be something other than equal shared parental responsibility.
Both parties admit that there has been scant attention and/or evidence to issues relating to medical and dental treatment and check-ups for the child. At best the wife relies upon the general poor relationship between the parties to support the contention that unless she is responsible for medical and dental treatment, there is likely to be ongoing difficulties which will impact adversely on the child.
The parties are not significantly apart on the time that the child will live with the husband during school terms. The wife seeks an order that would see the child spending five nights a fortnight with the husband albeit on the basis of Friday through to Monday, each alternate weekend and each Wednesday overnight. The husband seeks six nights in a block or in the alternative five nights in a block and one night in the intervening week, or as a final position five nights in a block with the intervening Wednesday evening for the child to spend dinner with him.
In a general sense the parties are agreed that the end of term school holidays should be shared but there is still significant disagreement as to how the Christmas vacation period should be arranged. The wife seeks that the child shall spend the long school holiday period on an alternate week basis with each of the parties.
The wife seeks orders that she be responsible for the child’s religious observance and whilst she is prepared to consult with the husband ultimately she wishes to have the final determination. As discussed, this resonates with the wife seeking that she be solely responsible for the arrangements and religious instruction in respect of the child’s Bat Mitzvah.
Overview of evidence – The Husband
The husband was asked in cross examination why he had changed his position from equal time to six nights a fortnight. The husband answered that week about would be difficult in circumstances where the parties did not get along. It was put to the husband that the difference in terms of his orders was illusory and that what he sought was effectively equal time. Ultimately the husband agreed that he was prepared to make some concession in that regard. The husband failed to recognise that if his preparedness to seek less time with the child was based upon a recognition of a demonstrably poor and conflictual relationship with the wife then it was not likely that the husband’s current position addressed the issue.
The poor relationship is perhaps best exemplified by the circumstances surrounding the child spending the first night of a ten day period with the husband with the wife following the recognition by him of the child’s distress. Whilst it may be a matter of disagreement, it would be said that the husband acted properly in returning the child to the wife’s care. The difficulty is that the husband was not able to communicate with the wife directly and used the child to effect the communication. When asked why the child was involved at all, the response of the husband was that he did not think the wife would speak to him. He said:-
I have found it increasingly more difficult to speak to the wife but once six nights per fortnight is put in place we will all learn to live with it.
It is helpful that when the child was returned to the care of the husband the balance of the holiday period was enjoyed by the child.
It would appear that the child has a significant level of sensitivity about her demeanour and whilst there is evidence which would support the contention that when the child is with the husband she misses the wife, I am satisfied that the converse is also the case.
Following separation the parties remained unhappily under the same roof. The husband recognised that the child was not coping with the conflict and was experiencing distress. The husband’s position was that he did not intend to leave the home until there had been a clear arrangement in place. Notwithstanding this, the husband recognised that the ongoing conflict was adversely affecting the child and in his words “as time passed things got worse”.
Notwithstanding that observation the husband wanted something in place to ensure that the child spent time with him.
I consider that at that time the parties were more focused on their own strategy rather than any proper regard to the manner in which the child was coping with the toxic atmosphere within the home. The day of final separation was also marred with high conflict and tension adversely impacting upon the child. Almost immediately upon vacation, the husband went to the police and alleged that he had been assaulted by the wife. For reasons that are not clear he sought an intervention order which also included the child. This matter was the subject of cross examination of the husband and it was put to him whether he was seriously suggesting that the child needed protection from the wife. The husband raised an allegation in 2009 that there had been an incident involving the wife and the child. The husband had not made any complaint against the wife and it was difficult to understand why after two years the husband would again raise the alleged incident if not to gain some strategic advantage in respect of the wife. Ultimately the husband was of the view that the child was “at some danger from her mother”. I reject the husband’s position on this topic entirely and find that there was no good and proper basis for the actions that he took either in terms of any alleged assault or in terms of the inclusion of the child in an intervention order directed against the wife. The action was inflammatory and likely to exacerbate the conflict.
There was however a concession by the husband that from time to time the wife had allowed the child to spend extra time with him. It was then put to the husband that he had not reciprocated in kind to the wife and an example was given during the Christmas school holidays when the child’s cousins had travelled from Perth and the wife wanted the child to spend a few hours with her cousins. The husband refused.
Importantly the husband conceded that the child has expressed a view as recently as the last weekend before the trial that she wanted things to remain as they are. She said that she did not like coming to him on Wednesday.
The husband was cross examined on matters relating to religious observance. The husband conceded that during the marriage the parties kept a “Jewish household”. He acknowledged that they kept separate crockery, cutlery, separate compartments in the dishwasher, different crockery for milk and meat and that there was proper attention paid to ensure that products consumed in the house were Kosher. In the husband’s home there are not two sinks and the husband says that he had discussed the matter with the child in terms of the differences in religious observance and that she needed to understand that some households might be described as more or less religiously observant. It was noted that even when the parties were together some foods that had been consumed outside of the home were clearly not Kosher ie pizza and other fast food. I am satisfied that whilst the husband’s home has less attention paid to religious observance than in the wife’s home, it is a matter of degree only. It could not be said that in the husband’s home there has been significant or total abandonment of the Jewish Faith or general observance.
The child is to undertake her Bat Mitzvah in 2016. The husband’s position is that he wants to be involved in the process and he considers it important that the child undertake a Bat Mitzvah with her friends and as part of “a community”. The husband’s general position is that these are matters about which agreement is capable with a modicum of goodwill. Generally the husband was trusting of the wife to make medical and dental arrangements and there seemed to be a concession that in general terms it is more likely than not that she would undertake those roles properly. Having said that the husband could not see any reason why he should not be able to take the child to a doctor or a dentist if it became necessary.
Considerable evidence was given in respect of the Passover Festival. The difficulty in this regard is the manner in which the sharing of Passover could take place. The husband concedes that a practice has developed over a number of years for the wife and child to spend the Passover Festival in Perth with the wife’s family. Whilst he has not been a part of that process, the husband would nonetheless like to have the first night of Passover with the child, family and friends. The husband properly recognised that whilst there was significant benefit in family being together, given the fact that the parties have now separated there was significant benefit to the child in spending the Passover night or some part of Passover with him. It would be, in his view, a different but nonetheless enriching experience for the child.
Overview of Evidence – The Wife
The wife asserts that the orders sought by the husband would result in significant distress for the child. It is her position that the child is anxious and a transition to six nights a week would not be “seamless”. In summary, if the husband is successful to extend time both during school term and as he proposes during the Christmas vacation period, the child would be distressed.
Moreover the parental conflict is at such a level that the parties would not be able to engage in the necessary communication that shared parenting would require.
The wife submits that the husband does not respect her beliefs and the husband does not offer the wife the same level of flexibility that she offers him.
There was significant focus upon the perceived differences in the way each of the parties practice Judaism and how that impacts upon the child. The wife’s evidence is that it is not that the manner in which she practices Judaism is the only religious pathway but rather it is what the child has always known.
In evidence the wife agreed with the husband’s assertion that he was made to feel unwelcome in the celebration of the Passover Festival in Perth with her parents. Whilst not necessarily germane to the issues that I need to determine, it is clear that the wife’s family did not hold the husband in high regard and that on those occasions when the wife’s family and the husband came together the wife was embarrassed by some of his behaviour which she considered “ill mannered”. The attitude of the wife towards the husband can be fairly demonstrated by her evidence on the effect of her proposed arrangements to take the child overseas between 18 December 2013 and 8 January 2014 and in addition, what proposal if any the wife has to provide make-up time to the husband if the wife is permitted to take the child to Perth to celebrate the Passover Festival. The wife concedes that on her proposal and on her return from overseas, the maximum time the husband could spend with the child would be two weeks. Moreover, depending upon when the 2014 Passover Festival falls, the husband will miss out on either time with the child during school holidays or his time intra-term. It was the wife’s evidence that if her arrangements for the child result in a reduction in time between the child and the husband then the husband would simply have to accept it. When it was put to her that it might not be considered in the child’s best interests to miss out on time with the husband in circumstances where albeit begrudgingly the wife concedes that there is a loving relationship, she considered that the child would not be in any way adversely affected.
The wife was asked about her involvement in the preparation of the Family Report by Mr EE. Somewhat reluctantly, the wife was prepared to give credit to the husband for his agreement to the recommendations of the report by way of interim orders. Whilst the wife was somewhat responsive to the recommendations, she admitted that she did not place great weight on the report process. This then led into the somewhat curious evidence of the wife’s attendance upon Mr QQ, psychologist. The involvement of Mr QQ was discovered by focus upon the wife’s credit card statements which were produced as part of the discovery process. It appears that she attended upon Mr QQ on the advice of her solicitor. The wife was cross examined on this topic and it was put to her that she attended upon Mr QQ not for any assistance by way of counselling or therapy but rather, to seek his advice as to how she should present to the Family Consultant. When pressed, the wife’s response was that she could not remember why she saw Mr QQ other than it was upon the suggestion of her solicitor. The best that she was able to recall was that she went to see Mr QQ to gain an understanding about the Court process. The wife’s evidence on this issue lacked candour and was unimpressive.
The wife was cross examined about her change in attitude to the extent of time that the child should spend with the husband. Reference was made to the wife’s Further Amended Response filed 1 March 2013 which sought to reduce the time that the child spent with the husband to four nights a fortnight notwithstanding that the current arrangements had been in place for an extended period. Moreover, at the commencement of the proceedings the wife’s position had changed again in that she is now prepared to leave the current arrangements in place. The response was that the orders sought in the Further Amended Response document were reactive to the child’s wishes namely, that she spend less time with the husband but that by the time of the trial notwithstanding matters allegedly raised by the child, the parties were in a routine.
Whilst the wife conceded that the child loves each of her parents and that the husband is an important factor in her life, she did not consider that the extent of attachment between the child and the husband was the same as between the child and herself. Her evidence was that the bond between the wife and the child was stronger and in matters of the celebration of religious festivals it was more important that the child hear her grandfather read the “Haggadah” than the husband.
The wife summarises her position in respect of the Jewish faith by referring to herself as “a modern orthodox Jew”. Whilst she agrees that she sometimes celebrates the Sabbath with others not strictly in accordance with orthodox principles, the celebration of the Jewish High Holy Days with her family is the manner in which she wishes those occasions to be presented. It became clear in her evidence that the source of ongoing discussions between the wife and her family is at least significantly influenced by the dictates of her mother. The attitude of the wife towards the husband was also brought into sharp focus by her evidence as to attempted communication between the parties during the course of proceedings. It appears that on 24 July 2013 after the conclusion of Court, the husband tried to ring the wife and find out what arrangements were being made for the child’s care during the course of the proceedings. The wife did not take the husband’s calls but rather required that the communication occur via text messaging. For reasons best known to the wife, she was evasive as to the arrangements she had made and when she advised the husband that a sitter had been arranged for the child she refused the husband’s further enquiry as to the identity of the sitter. Her answer was simple and succinct “he didn’t need to know”.
I find the wife is reluctant to engage in any constructive dialogue with the husband. She does not regard him highly and is generally dismissive of his attempts to maintain an involvement with the child.
Whilst there was extensive cross examination of the wife as to matters of religion, a reasonable summary of how she views the husband’s involvement is encapsulated in her statement that “I do not think that the husband has any feeling for her Judaism”.
Without promoting any good reason, the wife’s attitude is that the husband lacks observance to the tenants of the Jewish faith, that he is not religious and that he is unlikely to be able to pass on any aspects of Jewish life to the child.
Accordingly, the wife’s evidence is that the husband should not be involved in the child’s Bat Mitzvah and was not prepared to give any indication as to how the Bat Mitzvah arrangements would occur, for example it might occur in Perth, or possibly in Melbourne, but could not rule out the possibility that she might decide the Bat Mitzvah occur overseas. She was prepared to consult with the husband but if there was a disagreement she would have the final word.
The wife was cross examined at length as to the extent of the parental conflict. She agreed that the relationship between the parties was “mutually destructive”. She considers that both of the parties are to blame but that the clear evidence of conflict and communication demonstrates that a shared parenting outcome could not possibly be in the child’s best interests. It was put to the wife that she did not want there to be a reconciliation between the parties to lessen the conflict between them and notwithstanding urging from counsel, the wife was not able to answer.
The wife was not prepared to concede that if the husband did have six nights a fortnight with the child then this would reduce the difficulty with handover and that if the wife was prepared to support the arrangements then it was likely to be in the child’s best interests. The wife was not prepared to make that concession.
In terms of the qualities of the husband, the wife conceded that the husband would be able to offer the child different experiences, would teach her manners, was very patient and loves her. When asked what qualities he offered the wife as a husband, her tacit response “not much”. She did not consider that he was a provider, nor did he undertake any of the physical activities and household duties in or around the home. In the wife’s eyes she did not consider that he “amounted to much”. Generally he was both a disappointment to her and importantly to the wife, her family. The wife conceded that her family held the husband in disdain.
The wife was not prepared to countenance any extension of the current fortnightly arrangements and in particular would not consider or want a block of five nights.
It is noted that a recommendation of Mr EE is that the parties attend a post-separation parenting course. The husband successfully completed the course. The wife has not undertaken the course. Whilst she attempted to explain her circumstances in terms of work, school holidays and religious holidays, I was not convinced that the wife was genuine in her intention to attend such a course once the proceedings have concluded.
Notwithstanding the wife seeks orders that she has sole parental responsibility for the medical and dental health of the child, I find that there is little evidence in support of the application. There is however evidence that the wife considers that it was her role during the marriage to attend to the child’s medical and dental appointments and to the extent that the child had been taken to an optometrist, the wife did not consider that the husband needed to know about that appointment. In terms of the cancellation of a dental appointment made by the husband for the child, the wife did not tell the husband that she cancelled the appointment on the basis that “I didn’t tell him because he did not need to know”.
I find the wife has little or no regard for the significant benefits that the child will experience from a proper relationship with the husband, that the relationship will be supported by the wife only as may be required pursuant to any orders that I make and that regrettably, her adverse view of the husband is entrenched. The problem is significantly compounded by the influence exerted over the wife by her family and I find that there is truth in the statement by the wife that her family holds the husband in disdain. The wife is significantly influenced by the wishes of her family but in particular her mother and to a significant degree the wife’s trenchant opposition to the Passover Festival being celebrated other than in Western Australia is an example of the extent to which the wife is under the thrall of her family.
Whilst the husband’s behaviour following the separation of the parties, his continued presence in the former matrimonial home and his application in seeking an intervention order against the wife initially to include the child does him no credit, the wife’s evidence in respect of her perception of the relationship between the husband and the child was unimpressive, disrespectful and entrenched.
Family Consultant
The Family Consultant, Mr EE, was called and gave evidence in relation to his Affidavit filed 11 April 2012 which had as Annexure TH1 a copy of his Family Report dated 22 February 2011 and as Annexure TH2 a copy of his report dated 13 March 2012. The first report was prepared in respect of an order dated 31 August 2011 and had as its focus the interim arrangements but in particular against the background of the parties following separation continuing to live together under the same roof. As has been the subject of earlier comment, at that stage the husband continued to reside in the former matrimonial home over the objection of the wife. He was reluctant to leave the property until and unless appropriate arrangements were put in place for time that he would spend with the child. There were also issues raised as to the financial ability of the husband to effectively relocate himself. The wife’s position was that the husband remained living in the home in circumstances where it caused unnecessary distress to the parties but in particular to the child.
The wife alleged to the Family Consultant that she had been the primary care giver to the child and was “largely responsible for her religious observance and is seeking specific orders around the Jewish religious calendar to attend events in Perth, Western Australia”.
The first report raises the separate view and attitude of each of the parties towards the other as being one of intimidation, aggression and bullying and each deposed the extent to which they were involved in the parenting of the child.
At the time of the first interview the child was aged 7 years. The Family Consultant records the child’s presentation as:-
shy and anxious and had some difficulty separation from her mother but once engaged she was happy to chat about superficial issues and play. However, whenever issues or questions pertaining to her parents or the separation were broached she became evasive or silent and required reassuring. She was concerned that her parents would read the report and stated that she loved them both equally.
At paragraph 21 the Family Consultant records:-
The impact of parental conflict is critical to the discussion in this case. In general the proximity and frequency of the conflict, the context, and the level of the child’s exposure to it, broadly corresponds to the impact it has on the child. The more frequent and close the child is to the conflict the greater the impact. There is a variety of adjustment issues associated with children’s exposure to parental conflict. Depression, learning and behavioural difficulties, anxiety disorders, regressed behaviours, and sleep difficulties amongst others tend to be over-represented in this group.
The Family Consultant also formed the view that the child identifies the wife as the primary attachment relationship. He opines:-
While [the husband] undoubtedly has a close and nurturing relationship with [the child] her early and current psychological dependency is with [the wife] and it is from this relationship that she will need to incrementally separate. In this context it is recommended that [the child] live with [the wife] and spend time with [the husband].
He did not find favour with the husband’s application for week about shared care and was of the view that for this arrangement to be put in place there needed to be:-
A high level of constructive communication and problem solving, alignment of parenting issues, commitment by both parties to the concept and the ability of both parties to keep any parental conflict encapsulated.
The conditions for such an arrangement were not evident in the circumstances as the Family Consultant found them at the time.
Consistent with the nonetheless significant involvement of the husband with the child, the recommendation of the Family Consultant was that the child should spend five nights per fortnight and half of all school holidays with the husband to occur over a relatively short period of time. That recommendation was the ultimate foundation for the interim orders that currently endure.
The Family Consultant did not consider that he had sufficient expertise or experience in matters related to the Jewish faith and did not feel inclined to comment on the child’s religious education and instruction but proffered the general view that religious duties and responsibilities should be shared. Mediation involving the family Rabbi may be of assistance.
Following orders made by Cronin J on 29 November 2011 the Family Consultant prepared a report pursuant to Section 62G (2) of the Act.
The parties continued to experience significant conflict, with the husband seeking either shared care or in the alternative, six nights a fortnight and the wife being prepared for the incremental introduction of “block time up to five nights per fortnight providing each stage is consolidated first”. In a general sense the position of the parties as to the preferred parenting arrangements have changed little from their presentation to the Family Consultant in March 2012. The significant difference however is that on this occasion the husband had left the former matrimonial home and had moved into a studio apartment above his business premises.
The child’s presentation to the Family Consultant was one of caution when speaking of her parents and in particular any areas of conflict. Importantly, the report records that:-
[The child] feels her life is more settled and less worrying now her parents are physically separated and attributes this to a significant reduction in parental conflict. [The child] commented, “Mum and Dad seem happier now and I am happy as well”. However, despite the overall sense of improvement in her wellbeing she notes her parents still do not communicate and reports feeling a little anxious when they are in the same vicinity as each other.
In its conclusion the Family Consultant considered:-
These couples have limited problem solving skills within the context of the relationship and respond to disagreements with angry outbursts, loud arguing and insults when their demands are not met.
By necessary implication the Family Consultant was not prepared to recommend that there be any increase in the overall time spent by the child with the husband but did proffer the opinion that there was merit in a block format if for no other reason than it enabled routines to be developed within each of the respective households and an obvious reduction in the handover arrangements which would lead to the child being less exposed to the parental conflict.
There was no reference made in the second report to the matter of the child’s religious observance within the Jewish Faith.
In his evidence the Family Consultant did not resile from the general thrust of the matters raised in the two reports and his final recommendations. Obviously some time had elapsed since the last report and this caused him to opine that as the parties and the child entered into a routine the feelings of loss would diminish. Whilst noting the internecine conflict, the Family Consultant was cautiously confident that the child would develop normally albeit with the possibility of some anxiety. It was important to the Family Consultant that the child presented as requiring a sense of security and therefore a home base. Whilst he agreed that there was not a significant qualitative difference between five nights and six nights, on balance in a case where there remains mistrust and conflict and it is unlikely that the parties would embark upon a business like relationship as to shared care, it was necessary to balance the time that the child would spend with each of the parties as against the perceived need of the child to have the security of a home base.
The Family Consultant considered that time in a block would likely lead to less conflict and taking into account the child’s presentation and emotional functioning, that was the underpinning to his recommendations.
The Family Consultant was reluctant to enter into issues relating to the child’s involvement in the Jewish faith. He did consider that a Bat Mitzvah was a “right of passage” and that it was clearly distressing that in respect of a significant developmental milestone the parties were not able to reach any accord or accommodation. Without any significant conviction, the Family Consultant did not speak against the parties retaining shared responsibility for the child’s religious observance.
Religious issues
The wife seeks “sole parental responsibility” for making decisions in respect of the child’s Jewish religious upbringing and in particular in relation to her Bat Mitzvah.
The husband seeks an order of equal shared parental responsibility and opposes any diminution of his ability to make decisions in relation to the observance of the Jewish faith by the child.
The parties are agreed that the child will continue to attend the N School and accordingly, this would provide the child with significant stability both in terms of her education but also ongoing support for the child’s identification with the Jewish Faith.
The parties diverge on matters relating to which synagogue the child will generally attend, the dietary observance by the husband when the child is in his care in the home and away from the home, the wife’s intention to decide the manner in which the child will undertake her Bat Mitzvah and the related issue of the Passover Festival being the subject of observance in Perth with the wife’s family.
The issue of religion arises on the wife’s case only. The evidence is that whilst the parties identify and do so strongly with the Jewish faith, the extent to which they are religiously observant is a matter of degree. It was put to the wife that during the course of the marriage the family was “traditional” rather than “strictly religious”. The central submission on behalf of the husband being that the differences between the parties really amount to no more than a matter of degree. That issue was addressed by the wife’s counsel in her closing submission document as follows:-
59. The cross examination with respect ignores the point of the wife’s case. She repeated a number of times that she was concerned to follow certain tenets of her faith for traditional rather than religious reasons. She seeks that [the child] only attend an Orthodox Synagogue and preferably the [Suburb Z] Synagogue as she had always done. It is the husband who claims a long and proud family connection with this synagogue and so it would seem [the child’s] attendance there ought not be a matter of controversy. This again illustrates the level of conflict between the parties.
The decision of the Full Court in N & N (1981) FLC 91-111 is a convenient starting point. Whilst the parties both considered themselves to be orthodox Jews, they nonetheless differed markedly in the extent to which they involved themselves and the children in the ritual observance of the Jewish faith. The husband was described as a devout man and proud of his heritage. The wife was also of strong conviction although the trial judge found that at times she had difficulty coping with her religion “in the secular community”. Evidence was called from a Rabbi and a Professor as to the special position of a father and sons in the Jewish Faith. The issue of the extent and degree of observance by each of the parties in N & N (supra) was a matter of evidential significance in the case and ultimately was a significant factor in the determination of the trial judge to grant “custody” of the children (then aged 7 and 5) to the husband. Whilst the Full Court dismissed the mother’s appeal, at pages 76,828 – 76,829 the Full Court said:-
Ordinarily the question of the religious upbringing of children is a matter to be determined by the custodian after the question of custody has been determined and the religious differences of the parties is not a determinant or even a significant factor in a custody case. Otherwise it would involve the Court in the task of passing judgment upon the appropriateness of one form of religious upbringing as distinct from another…
Only in unusual circumstances will the Court be prepared to consider whether the nature and degree of religious observance of one parent and the proposed religious upbringing of that parent could have such an effect on the welfare of the child that it should assume significance in a custody decision. There are rare cases where a parents religious upbringing is seen as inimical to the welfare of the child. Comparison may be made with those cases in which the welfare of the child requires a Court to order that the child receives certain medical treatment although that it is contrary to the parents’ religious beliefs, but in the usual situation there is unlikely to be any clash between a Court’s perception of the child’s welfare and needs and the religious beliefs and observances of either parent.
Where the children have been accustomed to a particular religious upbringing or lifestyle the question of continuance or change in a particular case may be a relevant factor. Whether it is and what weight should be attached to it should obviously be varied from case to case. This however is a lifestyle issue rather than a religious issue as such.
In this case the religious difference between the parties were allowed to assume great significance in the conduct of the case by the parties and in Her Honour’s reasons for judgment. Both parties saw their religious differences, which it was said led to the breakdown of the marriage, as being important to them and put that aspect to the forefront of their case for the custody of their children, whereas at best it ought to have been presented as but a factor of lifestyle which the trial judge may consider in making an overall determination. The contest here was not whether the religious beliefs of one party were in some way inimical to the welfare of the children; the parties shared the same religious faith, the issue on which so much time was spent was one of degree about “shades of orthodoxy”.
To some extent the successful application to call evidence from the wife’s mother has made those considerations irrelevant.
Under the heading of “[The wife’s] Financial Affairs” the wife’s mother says that:-
28. [The wife’s] financial affairs, with the exception of her employment income earned from [Company E], her Bendigo bank account, her day to day trading Westpac accounts and shares which she owns in her own name, are managed from the office of [S D] and Co Pty Ltd. Funds are paid to and from the office on her behalf, and the details required for her taxation returns are prepared each year by the office staff.
29. [The wife] has been the recipient of funds paid to her or held for her from various sources over the years. The sources of funds paid to her or held for her are trust distributions, rental from her property at [U Street], her share of the rental from residential flats in [Suburb G] and [Suburb H] and interests from the Westpac term deposits taken out by me in her name in Perth.
At paragraph 37, the wife’s mother sets out the distributions before tax made to the wife which are repeated in the aide memoir being Exhibit 27. There appears to be a significant reduction in the extent of distributions. This is a matter of critical comment by the husband. He considers that the distributions have been deliberately withheld in order to reduce the financial resource and circumstances of the wife in order to provide some assistance in terms of the outcome of these proceedings. The husband compares the wife’s circumstances in 2011 and 2012 to the reduction in distributions in favour of the wife’s sister Ms TT.
More detail is set out at paragraph 46 of the affidavit of the wife’s mother. I accept as accurate the transactions set out in the ledger. This issue also has residence in respect of the D Personal Account of the wife and three Westpac term deposits held in the wife’s name being account numbers …74, …23 and …04.
The wife’s mother refers to the D Personal Account of the wife being a Westpac bank account number …29 jointly held in the name of Ms B Shea and her sister and is “used to manage the funds going to the family members from their rental properties and their [D] personal accounts”. It is effectively used as a “parking bay” for funds being held on behalf of the various family members.
The wife’s mother also alleges that from time to time funds from the Westpac account are placed on term deposits in the individual names of the family members. The wife’s mother has complete authority to set up and transact accounts in the name of the wife and she alleges in paragraph 51 that:-
When funds are paid to [the wife] from her [D] personal account, a cheque is drawn on bank account number …29. I deposit this cheque at the bank into [the wife’s] Westpac Bonus Saver Account. My recollection is that the funds have been deposited into the same account for [the wife] since at least the year 2000.
In particular, the wife’s mother says that at 1 July 2006 she had opened three Westpac term deposits in the wife’s name:-
Account number …74 $220,000
Account number …23 $110,000
Account number …04 $ 87,000
Total $487,000
On 16 June 2011, the wife’s mother alleges that she determined to redeem two of the term deposits totalling $320,000 (should be $330,000) to enable funds to be available to the wife. In particular the wife’s mother considered that the wife would require money to fund her legal fees and some living expenses. The redeemed monies were placed into the Westpac account number …29.
At the commencement of the proceedings it was asserted by the wife that her D Personal Account was in debit to the sum of $179,168. The wife seeks that this be brought to account as a liability. In her evidence, the wife was not able to explain how the liability was calculated and in particular the inter-relationship between the D Personal Account and her term deposits, in particular Westpac term deposit number …04 standing to the credit of the wife at $87,000. In the wife’s first financial statement filed 14 September 2011, the aforementioned term deposit with Westpac was recorded as having a current balance of $87,000. Listed incorrectly as a financial resource, the wife records that the balance standing to her credit in the D Personal Account as at 31 July 2011 as $102,295. By reference to Annexure BS1 to the affidavit of the wife’s mother, reference is had to the personal account transactions relevant to the wife. As at 15 July 2011 the credit balance was $292,856.81. On 22 August 2011 the credit balance was $272,856.81. At 25 January 2011 (close to the date of separation) the balance was $240,169.46. At the conclusion of the 2011 financial year the credit balance stood in the sum of $321,618.81. There were substantial drawings from the account which at the commencement of trial in July 2013 saw a debit balance in the account of $92,168.34. Even the most cursory consideration of the transactions between a date approximating separation and the commencement of the trial shows a significantly different income pattern in that the distributions from D2 Family Trust were significantly reduced and the debits were the subject of significant increase. It would not appear to be controversial that the extent of the debits is referrable to the wife’s legal fees.
The husband complains that the wife refused to make full and frank disclosure in respect of the transactions comprising the D Personal Account. Whilst the timely disclosure of the details in respect of the D Personal Account would no doubt have been of considerable assistance, ultimately the proper disclosure by way of further discovery and the evidence of the wife’s mother enables the Court to properly consider the legal and equitable entitlements of each of the parties, their assets, liabilities and relevant issues that arise therefrom.
By reference to paragraph 63 of the affidavit of the wife’s mother there is an explanation as to how the liability of $179,168.34 referred to in Exhibit 33 is calculated. Essentially the wife’s personal account was overdrawn in the sum of $92,168.34 and if the evidence of the wife’s mother is accepted namely, that the amount remaining in the Westpac term deposit in the wife’s name in the sum of $87,000 is not her entitlement, then a simple addition of the two results is the asserted figure.
It is further asserted by the wife that her position has worsened and that at the conclusion of evidence there is a debit in the D Personal Account of $212,168.
A further issue arises as to how the Court should consider the legal fees of each of the parties and in particular the significant drawings on the D Personal Account by the wife to pay her legal fees. That issue will be given separate consideration.
Term deposits of wife
The evidence is that at the date of separation the term deposits held by the wife (three in number) totalled $407,000. According to the evidence of the wife’s mother as at 1 July 2006 the wife held three Westpac term deposits totalling $487,000. As a result of the intention to call evidence from the wife’s mother, a spreadsheet was provided to the wife’s solicitors on 16 August 2013 which sets out the interest earned on the wife’s Westpac term deposits from 2008 to 2011 being the date upon which the wife’s mother realised two of the three term deposits, leaving the remaining Westpac deposit of $87,000. Paragraph 56 of the affidavit of the wife’s mother sets out the relevant history:-
On 16 June 2011, I made the decision to redeem two of [the wife’s] term deposits (totalling $320,000) in order to fund upcoming drawings from [the wife’s] [D] personal account. I anticipated that [the wife] would require money to fund legal fees and to make provision for some of her living expenses. The redeemed funds were deposited into Westpac account number …29.
The evidence presented on behalf of the wife in respect of the management of the term deposits and the inter-relationship with the D Personal Account is at best confusing and at worst unsatisfactory. The wife’s mother presented three examples in paragraph 61 to hopefully demonstrate the inter-relationship between the term deposits and the D Personal Account. Example one and two in paragraphs 61 and 62 are predicated on the wife retaining the existing Westpac term deposit of $87,000. It is also predicated on the wife’s mother’s evidence that the remaining term deposit has already been brought to account in the transaction statement. Unfortunately there was no evidence elicited from the wife’s mother which identified the transactions showing monies coming out of the personal account and into the various term deposits and then those funds being redeemed. If examples one and two are correct, then example three in paragraph 63 is incorrect because it would result in a double counting. Notionally, if the wife (or her mother) relinquished the $87,000, that would not change the extent of the personal account. Accordingly, the liability as at 4 July 2013 would be $92,168.34. If the evidence of the wife’s mother is to be accepted, the transactions involving the term deposits are not set out in the transaction details of the Ms Shea personal account and presumably the balance from time to time in the personal account is a notional balance which should in theory include the remaining term deposit of $87,000.
Further discovery, in particular of documents that would show the flow of money into and out of the term deposits may have been of assistance. Given however that the wife’s financial statement filed 20 May 2013, the joint list of the parties assets and liabilities (Exhibit 33) and her trial affidavit at paragraph 129 all record the Westpac term deposit of $87,000 as property of the wife, I consider that it should remain as such. I am not satisfied on the balance of probabilities that the evidence given by the wife, but to a greater extent by her mother, adequately or at all explains the circumstances by which it is alleged the amount standing to the credit of the wife in the remaining term deposit is in some way already incorporated in the D Personal Account whether that be a debit or a credit of the wife.
Treatment of D Personal Account liability
As stated, the evidence of the wife is that the D Personal Account is in debit to the sum of $212,168.34. On the wife’s case, it has increased from the figure of $179,168.34 as at 4 July 2013. I have already indicated that I am not persuaded as to the extent of the liability but to some extent whatever the liability is I consider that it is a temporary position relevant only to a snap shot in time.
BS1, being the annexure to the affidavit of the wife’s mother, sets out the transactions in respect of the D Personal Account. The first transaction date is 30 June 2000 and records an opening balance of $107,744.50. The evidence is that the wife and her sisters received equal distributions up to and including 30 June 2010. Thereafter, there were differing distributions with the wife receiving $67,505 and her sister Ms UU receiving a distribution of $121,432. I have already made comment that the distribution to the wife for the year ending 30 June 2012 was in the sum of $20,000, being significantly less than the previous history of distributions. Even on the wife’s case, the average of the distributions received by the wife from the D2 Family Trust over the course of 12 years is $82,000 per annum. That of course brings to account the significantly reduced distributions over the last two years of that history.
The assertion by the husband is that the wife’s mother has deliberately distributed only a relatively small percentage of the income available for distribution, simply to assist the wife in these proceedings. The husband asserts that the income for the trust in 2012 was $402,081 and that the 2013 financial year will be approximately the same. Accordingly, if the distributions between the three sisters followed the pattern that was in place for 10 years between 2000 and 2010 financial years, the wife would receive a distribution of approximately $133,000.
The evidence of the wife’s mother where it was not supported by independent evidence being documents setting out the transaction history, was unsatisfactory. She was clearly hostile towards the husband and her answers to proper questions put by counsel were evasive and at times obstructive. She made it clear that she did not welcome the intrusion of the litigation into her personal affairs and it was not my impression that she came to the Court in order to assist.
She was unconvincing in respect of her evidence as to the distribution policy into the future and I am left in little doubt that once the proceedings are concluded, no good reason exists for the wife’s mother to do other than resume a pattern of distribution which would see each of the three sisters treated equally.
To the extent that at the conclusion of proceedings there remained a liability of the wife in favour of the D Personal Account is a matter of timing only. Even on the wife’s case, at the conclusion of the 2013 financial year any liability is likely to be extinguished by reference to distribution, rental income and other interest available to the wife. The situation will be significantly improved for the wife at the conclusion of the 2014 financial year. Accordingly, I do not propose to bring to account any alleged liability of the wife to the D Personal Account.
Legal fees
Pursuant to the Order of Cronin J made 6 March 2013, each of the parties tendered to the Court a costs statement. The advice to the husband forms Exhibit 3 but sets out the following:-
1.Total costs incurred to 17 July 2013 $189,384.89
2.Total amount paid $129,315.00
3.Anticipated future costs $ 60,000.00
Exhibit 20 reflects the wife’s costs statement and provides the following information:-
1.Total costs to date $236,340.55
2.Total amount paid $222,181.69
3.Wife’s previous lawyers costs & disbursements $ 48,538.76
4.Estimate of future costs $50,000 to $60,000
The source of funds used to pay the wife’s costs came from drawings from D account. In relation to the husband, I have assumed that the source of funds predominantly is the partial property settlement of $100,000 paid to the husband by Order made 29 November 2011.
As is self-evident from the proceedings, the trial has extended beyond the anticipated five days and in relation to the further evidence of the wife’s mother a further sum of $27,016 by way of interim costs order was paid to the husband pursuant to my Order of 11 September 2013.
I am obliged to consider how best to reflect the payment by each of the parties of their legal fees. I also note that notwithstanding the pre-trial estimates of further fees to be incurred by the parties that those estimates are likely to have been significantly exceeded. Accordingly, the parties are likely to carry forward substantial liability.
Neither party put forward a clear position as to how the legal fees of each of the parties should be brought to account. Implicit in the wife’s case however is that there be added back to the pool the sum of $100,000 received by the husband by way of partial settlement of property and the further sum of $27,016 by way of interim costs order. Given that monies received by the husband were used predominantly for the payment of his legal fees, it raises the issue as to whether the legal fees of each of the parties should be the subject of an add-back or whether they should be considered as a contribution pursuant to Section 79 (4) or a relevant matter pursuant to Section 75 (2) (o).
I am also mindful of the source of funds from which the wife paid her legal fees. Monies came to the wife from the D Personal Account originating from distributions from the D2 Family Trust.
In the decision of Omacini & Omacini (2005) 33 Fam LR 134 at 144, the Full Court considered the circumstances when it would be appropriate to notionally consider an add-back. The following considerations were highlighted:-
1.The payment of legal fees in particular from the property of the parties.
2.A premature distribution of matrimonial assets.
3.In circumstances where a party has dealt with property either recklessly or with the intention to waste or cause the diminution of same thereby reducing their value.
In Chorn & Hopkins (2004) FLC 93-204 at 79,322-3 the Full Court said:-
This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest) it is appropriate to add-back those costs as a notional asset. It also confirms a principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account. In summary, we consider that the abovementioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge, in determining how to exercise that discretion, regard should be had to the source of funds.
If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the parties, who has had the benefit of them.
If funds used to pay legal fees have been generated by a party post-separation from his or her endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party has made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post separation income or acquisitions.
As already considered, Murphy J in Watson v Ling (supra) placed significant importance on the determination of the legal and equitable interests of each of the parties. The flow on effect has a substantial implication in respect of the concept “add-backs”.
The position following Stanford that the concept of an add-back being a notional item of property to the interests held by either of the parties, will have limited compass in the future.
In Watson v Ling Murphy J at paragraph 33-34 said:-
First, consistent with existing authority, it can be recognised pursuant to Section 75 (2) (o) (see, for example, Omacini & Omacini [2005] FamCA 195, Brown & Green (1999) FLC92-873 and Cerini [1998] FamCA 143,. Secondly, it might be contended that it might be recognised within the assessment of contribution. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made disproportionately greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing and legal equitable interests would have been greater or a greater value.
The assessment of the circumstances under discussion is, ultimately, a matter of discretion. Equally however, authority dictates that it will be the exception rather than the rule that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party.
In Truman & Truman [2013] FamCA 765, Fowler J had to consider the treatment of legal fees incurred by each of the parties. Both the husband and the wife had already paid approximately $200,000 in legal fees and the wife owed her solicitors and accountants over $350,000 in fees. At paragraph 54 His Honour said:-
This Court does not follow the practice of adding back and dividing non-existent assets. There is no warrant for doing so in the Act. That once fashionable practice was one which assisted in pointing perhaps a way to a just solution; however, there exists plenty of opportunity for the Court to come to a just and equitable assessment as to the source and application of funds in its consideration of contributions under Section 79 (4) and matters referred to in Section 75 (2) and also in particular Section 75 (2) (o).
His Honour considered that the parties legal costs would not be added back noting that the wife had received partial property settlement payments of about $216,000 which had been applied to meet her costs.
It could not be said that the husband has made a direct contribution or had any involvement in the monies received by the wife in the D Personal Account which was then ultimately used not just to pay the wife’s legal fees but also the interim orders totalling $127,016 to the husband. It would be artificial to bring back to account this sum as notional property of the husband in circumstances where the source of those funds, namely the D Personal Account, is not included. Moreover, to bring to account monies paid by the wife to the husband would have a level of artifice which is difficult to rationalise given my finding that no liability in respect of the D Personal Account should be included as a liability of the wife.
Ultimately, I consider that the issue of the parties respective legal fees should be brought to account as a Section 75 (2) (o) factor favourable to the wife.
Superannuation of the parties
The husband has an entitlement as a member of T Superannuation Fund in the sum of $280,108. The wife has an entitlement as a member of X Superannuation and Y Superannuation in the total sum of $112,238.
There were no submissions made in respect of how the Court should treat the respective superannuation entitlements of each of the parties. No evidence was led as to the method and manner by which contributions to their separate superannuation funds have been made, although it is reasonable to assume that at the very least some contribution arose from the employment arrangements of the husband and the wife.
I was not asked to consider superannuation separately or to apply different considerations in respect of any finding as to contribution and then further factors that might be relevant pursuant to Section 75 (2) of the Act.
The parties each represented their superannuation entitlement in Exhibit 33 and the total of the superannuation entitlement of each of the parties is the gross sum of $392,346.
As will be set out in the assets and liabilities of each of the parties, the total property of the husband and the wife excluding their superannuation entitlements is $3,375,700. Accordingly, the superannuation interests of the parties represents about 11.6 per cent of the total property held by each of the husband and the wife.
Taking into account the age of the parties and that they are approaching an age that would constitute a condition of release (see Wunderwald & Wunderwald (1992) FLC 92-315) that neither party sought a separate order in respect of superannuation and that the interest is a relatively small value in terms of the other assets, I consider it is appropriate to depart from the approach promoted by the Full Court in Hickey & Hickey (2003) FLC 93-143 and Coghlan & Coghlan (2005) FLC 93-222 namely that superannuation should be dealt with separately from property as defined in Section 4 (1) of the Act.
Joint list of parties assets and liabilities
HUSBAND
Assets
O Street, Suburb P (Vic)
960,000
Less mortgage
-760,000
200,000
Bank Accounts
Bendigo Bank (…80)
3
Bendigo Bank (…56)
81
Bendigo Bank (…16)
66
U Bank (…79)
1,209
U Bank (…09)
80
U Bank (…56)
448
ING (…56) (Q Pty Ltd)
18
1,905
Publicly Listed Shares
Wesfarmers (2 @ $38.95)
78
Ansell (1 @ 18.87)
19
97
Q Pty Ltd t/as R Business
Nil
Motor vehicles
Hyundai motor vehicle (net of finance lease)
E4,800
Mitsubishi motor vehicle
1,000
5,800
Art business equipment
E9,000
Artworks & Violin
E10,000
Household contents
E3,000
Total Assets (excluding superannuation)
229,802
Liabilities
Husband’s parents
24,000
Wife’s mother
25,000
Bendigo Bank overdraft (…66)
10,222
Credit cards
Westpac Visa
22,485
Bendigo Bank Visa
2,716
Bendigo Bank Visa
7,689
Bankwest Mastercard
11,033
43,923
Total Liabilities
103,145
Superannuation
T Superannuation
280,108
Net Total – Husband
406,765
WIFE
M Street, Suburb L (Vic)
1,625,000
U Street, Suburb H (WA)
475,000
V Street, Suburb G (WA) (1/5th)
440,000
W Street, Suburb H (WA) (1/7th)
557,143
1,472,143
Publicly listed shares
David Jones Ltd (3,463 @ $2.46)
8,519
Telstra Corporation (3,200 @ $4.91)
15,712
Tatts Group Ltd (8,660 @ $3.29)
28,491
Arrium Ltd (757 @ $0.97)
735
53,457
Bank Accounts
Westpac term deposit (…04)
87,000
Bendigo Bank term deposit (…68)
19,872
Westpac Bonus Saver (…09)
2,225
Westpac e-Saver (…72)
887
Westpac Choice e-Account (…39)
988
110,972
Toyota motor vehicle
3,500
Household contents
5,000
Total Known Assets (excluding superannuation)
$3,270,072
Liabilities
Wife’s father
20,000
Westpac Visa Card
1,029
David Jones store card
0
21,029
Superannuation
X Superannuation
12,174
Y Superannuation
100,064
112,238
Net Known Total – Wife
3,382,310
Net Total – Husband & Wife (known)
$3,789,075
Accordingly, in respect of the property held by each of the parties and listed above, I find that as a result of the separation of the parties and the need to make orders that properly reflect their separate interests in common property, it is just and equitable to make orders in terms of Section 79 of the Act.
Global or asset by asset approach
The wife submits that I should adopt an asset by asset approach and in doing so give proper recognition to her substantial interests in property in Western Australia totalling $1,472,143.
The same might also be argued in respect of the wife’s publicly listed shares and to the extent that the term deposit and Bendigo Bank deposit represents money by way of trust distribution in favour of the wife, it is probably acknowledged by the husband that he made no direct contribution to that property.
The relationship however is of 13 years and I have already found that each of the parties contributed significantly (but in the case of the husband, to a greater degree than the wife) to the funds required for the day to day expenses of the family.
Each of the parties have a proper relationship with the child and played a significant part in contributing towards the welfare of the family.
The approach to be adopted is a matter of discretion. See Norbis v Norbis (1986) FLC 91-712.
Nonetheless, I am obliged to make an order that is just and equitable. A consideration in that regard is whether I am able to have proper regard to the differing issues that are relevant to the parties. In terms of the issue of contribution, the wife seeks to minimise the contribution of the husband generally but in particular highlights the extent of the wife’s property held by her at the commencement of cohabitation and maintained during the period of cohabitation without financial contribution of the husband.
Those matters are identified and I consider that the interests of each of the parties and the obligation to conduct an exercise that results in an outcome that is just and equitable can best be achieved by a global approach rather than by an asset by asset approach.
Contributions
I have had regard to the contributions of the parties during the period at the commencement of marriage and cohabitation, during the marriage and post-separation.
I have already made comment as to the extent of the wife’s property interests and other benefits that inured to her at the date of commencement of cohabitation.
The husband also held property interests and whilst significantly more modest than those held by the wife, nonetheless the capital contribution made by the husband to the M Street property for its renovation and improvement was significant notwithstanding that it was matched by the wife.
Other than what might be considered the natural increase in the value of the property held by the parties at the date of marriage, each of the parties were in gainful employment, adjusted their employment to take into account the care of the child and in a general sense their contributions during the marriage could be considered as equal.
Whilst the wife was critical of the husband in terms of his art business endeavours, nonetheless each of the parties undertook their marital obligations seriously albeit with some unhappiness.
Whilst probably the wife performed the majority of the homemaking responsibilities undertaken to a higher degree, I do not consider that the husband’s involvement should be trivialised.
Essentially the gravamen of contribution issues as between the parties revolves around the weight that should be given to the inclusion in the wife’s property of the Western Australian interests, her share portfolio and monies brought to account in the Westpac term deposit and possibly the Bendigo Bank term deposit.
In Pearce & Pearce (1999) FLC 92-844 at page 85,811, the Full Court said:-
In our opinion it is not so much a matter of erosion of contribution but a question of what weight should be attached in all the circumstances, to the initial contribution. It is necessary to weigh the initial contribution by a party with all other relevant contributions both of the husband and the wife. In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use made by the parties of that contribution.
…there is no principle that the length of the marriage leads to a livelihood that other contributions will outweigh or weigh equally with a particular contribution. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome, which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.
As discussed, the value of the wife’s interest in the Western Australia property, publicly listed shares and the Westpac term deposit is $1,612,600. This must be given significant weight.
Having regard to the extensive evidence of the parties, their respective contributions should be reflected as to 72/28 in favour of the wife.
Other factors
Notwithstanding some health considerations that affect each of the parties, generally I consider that their health is good and at the conclusion of the proceedings will not interfere with the wife’s ability to retain her employment at Company E and the husband’s ability to conduct his employment in the education field.
In terms of their respective income, the husband receives a reasonable level of remuneration from his employment which in any event significantly exceeds that of the wife. The wife however has the substantial advantage of an ongoing financial resource in her capacity as a beneficiary of the D2 Family Trust. I do not propose to repeat my earlier remarks but specifically I consider that the wife will receive an income distribution in excess of $100,000 per annum (noting that even on the wife’s case the average over the last 12 years has been about $92,000), in addition the wife will receive rental income from her interest in the Western Australian properties together with some small interest from her share portfolio and Westpac term deposit account.
The orders that I have made in respect of the parenting arrangements as to the child C will see her care effectively shared between the parties. Each of them will support the child when she is in their separate care and I have no doubt that the child will be well cared for in terms of her physical and financial needs.
Neither of the parties are in receipt of any pension, allowance or benefit and to the extent that I have brought to account their modest superannuation entitlements in terms of their separate property interests, that is not a relevant factor that needs to be considered.
The parties will continue to have a high standard of living. Notwithstanding the effect of the orders made that provide for the payment of a settlement sum in favour of the husband, I do not consider that in the medium to long term there will be a significant impact on the wife.
It is true, that unless the wife receives family support she may have to realise some of her interest in property held by her which will necessarily reduce the extent of rental income in her hands.
Nonetheless, the more significant income stream namely via trust distributions is unlikely to be affected by any order that I may make.
The parties have ongoing liabilities. Significantly, each of the parties have outstanding legal fees to be paid. I note my remarks in respect of the wife’s case that she is significantly indebted to the D Personal Account. When dealing with that matter I have determined that the liability is somewhat illusory and in all probability was either extinguished in the 2013 financial year but most certainly would be in the 2014 financial year. In any event, the evidence of the wife’s mother is that she would not take any enforcement proceedings against the wife in any event. I do not consider that any purported liability of the wife in relation to the financial entities controlled by her mother represents a factor that needs to be brought to account.
The husband does not currently pay child support. However, each of the parties contribute 50 per cent towards the child’s private school fees. In addition, the husband gives evidence that he places $20 per week into a bank account for the child which sum is now $8,780.
More relevantly though is that the child has a substantial credit balance in the D1 Trust which is available to the parties for any requirements in respect of the child. Whilst the wife and her mother were somewhat reluctant to discuss the child’s beneficial entitlement, nonetheless it is a resource and is available to support the child’s proper needs.
Finally, the legal fees of each of the parties and the payment by the wife to the husband in the sum of $127,016 are to be dealt with pursuant to Section 75 (2) (o). I do not propose to embark upon an arithmetical exercise and in a general sense I do not consider it appropriate to allocate a discrete percentage adjustment for relevant Section 75 (2) factors including Section 75 (2) (o).
Having considered all relevant factors and exercising the discretion that I have, I consider that there should be a further adjustment in favour of the husband of 6 per cent.
Conclusion
A distribution to the husband of 34 per cent of the net property of the parties would see the husband with an overall entitlement of $1,288,285. The husband currently holds property (including his superannuation entitlement) to the sum of $406,765, leaving a settlement sum payable by the wife to the husband of $881,520. On the basis that it would also be reasonable for the wife to be responsible for the husband’s outstanding liability to her mother, the settlement sum should be reduced by a further $25,000 to $856,520.
I received no submissions from the parties as to the time that the wife would need in order to satisfy a settlement sum given that the wife’s case is that there should be no adjustment at all.
Taking into account the wife’s financial position and what appears to be a close familial relationship with her parents, I consider that the wife should be given 60 days to pay the settlement sum.
I have given proper and careful consideration to the matters relevant to Section 79 of the Act. I am satisfied that the orders so made represent an appropriate balance taking into account the assets and liabilities of each of the parties and their respective financial resources together with the financial circumstances of the child C.
Accordingly, orders will be as set out at the commencement of these reasons.
I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 February 2014.
Associate:
Date: 12 February 2014
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Injunction
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