Janaway & Janaway
[2021] FedCFamC1F 97
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Janaway & Janaway [2021] FedCFamC1F 97
File number(s): DNC 227 of 2018 Judgment of: BERMAN J Date of judgment: 1 October 2021 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Where the wife seeks sole parental responsibility in relation to health and education – Where the husband seeks equal shared parental responsibility – Where there has been conflict in relation to the child’s health issues – Best interests of the child – Orders.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of child – Where the wife seeks that the child live with her and spend significant and substantial time with the husband – Where the husband seeks an equal shared care arrangement – Where the child is currently living with the wife and spending five nights per fortnight with the husband – Where each proposal recognises the importance of meaningful relationship – Where the evidence does not suggest that an increase in the child’s time with the husband would be in the child’s best interests – Orders.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the wife seeks an equal division – Where the husband did not challenge an equal division – Where the parties agree the assets and liabilities but remain in dispute as to the division of items of jewellery – Consideration of a purported loan from the paternal grandmother to the husband – Where the paternal grandmother indicated no intention to collect the money – Where an equal division has merit – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 75(2) Division: Division 1 First Instance Number of paragraphs: 220 Date of hearing: 19 – 22 July 2021 Place: Heard in Darwin, delivered in Adelaide Counsel for the Applicant: Ms Farmer Solicitor for the Applicant: Withnalls Lawyers Counsel for the Respondent: Ms Franz Solicitor for the Respondent: Darwin Family Law ORDERS
DNC 227 OF 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JANAWAY
Applicant
AND: MS JANAWAY
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The parties have shared parental responsibility for X born … 2013 (“the child”) save and except that MS JANAWAY (“the wife”) shall have sole parental responsibility in relation to matters pertaining to the medical and health considerations affecting the child provided that prior to making the sole determination about any such issues the wife shall:
(a)Use her best endeavours to advise MR JANAWAY (“the husband”) in writing of the decision intended to be made;
(b)Seek the husband’s written response to the issues to be decided; and
(c)Advise the husband in writing as soon as reasonably practicable of her ultimate decision.
2.The child shall live with the wife.
3.The child shall spend time with the husband as follows:
(a)During school terms each alternate week from conclusion of school on Friday (or 3.00 pm if a non-school day) until the commencement of school on the following Wednesday or 8.00 am if a non-school day;
(b)During school holidays at the end of terms one and two for the first half in even numbered years and for the second half in odd numbered years; and
(c)During school holidays at the end of term three for the first half in even numbered years and for the second half in odd numbered years.
(d)During school holidays at the end of term four:
(i)Until the child turns 9 years of age for a period of seven consecutive nights to commence on the first Friday of the holidays and each alternate week thereafter;
(ii)After the child turns 9 years of age for the first half in even numbered years and for the second half in odd numbered years; and
(iii)At such other times as may be agreed between the parties.
4.That the school holidays are deemed to commence at 5.00 pm on the last day of the school term and the school holidays are deemed to end at 5.00 pm on the last day of the gazetted school holidays, and the midpoint shall be calculated accordingly with changeovers to occur at 5.00 pm.
5.That notwithstanding any other order, the child shall spend time with each of the parents on days of special significance as follows:
(a)With the wife on Mother’s Day from 5.00 pm Saturday until the day prior to the commencement of school the following Monday;
(b)With the husband on Father’s Day from 5.00 pm Saturday until the day prior to the commencement of school the following Monday;
(c)With the non-resident parent on the child’s birthday being in each year from 3.00 pm to 6.00 pm on a school day and if a non-school day from 1.00 pm to 5.00 pm on a non-school day;
(d)In odd numbered years the child shall spend time with the husband from 2.00 pm Christmas Eve to 2.00 pm Christmas Day and in even numbered years the child shall spend time with the husband from 2.00 pm Christmas Day to 2.00 pm Boxing Day;
(e)In even numbered years the child shall spend time with the wife from 2.00 pm Christmas Eve to 2.00 pm Christmas Day and in odd numbered years the child shall spend time with the wife from 2.00 pm Christmas Day to 2.00 pm Boxing Day;
(f)With the husband from 5.00 pm for four consecutive nights at the conclusion of Ramadan (Eid al-Fitr) in even numbered years;
(g)With the wife from 5.00 pm for four consecutive nights at the conclusion of Ramadan (Eid al-Fitr) in odd numbered years.
6.That in the event that a party is unable to care for the child for more than forty eight (48) hours the other party shall have the first option to care for the child, and if the child is cared for by a third party then the non-resident parent shall be provided with the name and contact details of that third party.
7.That the child shall communicate with the non-resident party at all reasonable times as agreed and in default of agreement each Tuesday between 7.00 pm and 7.30 pm with the resident parent to arrange for the child to telephone the non-resident parent either by way of FaceTime/ Skype/ WhatsApp/ Messenger or any other electronic medium as agreed between the parties provided:
(a)The child shall be given privacy during the call; and
(b)Each of the parties will facilitate any reasonable request by the child to contact the non-resident parent at any other time.
8.That changeovers occur as agreed between the parties and when not to and from school then at Location F situate in the Suburb C Shopping Centre.
9.That the child be permitted to travel intrastate and interstate with either party providing the travelling party has provided the non-travelling party with:
(a)Not less than thirty (30) days written notice for interstate travel; and
(b)Itineraries, contact address and telephone numbers for the child so that the child can communicate with the non-travelling party at all reasonable times.
10.That neither party be permitted to travel overseas with the child unless with the authenticated written consent of each of the parties in which circumstances the parties will do all things and sign all documents necessary for the child to obtain an Australian passport within thirty (30) days of a request by either party.
11.That the wife shall retain the child’s passport and she shall provide it to the husband not less than fourteen (14) days prior to any notified overseas travel for the child with the husband and the husband shall return the child’s passport to the wife immediately upon the conclusion of the overseas travel.
12.That a copy of this order authorises the child’s school and medical practitioners to provide each of the parties copies of:
(a)School reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the child; and
(b)Medical reports including any referrals, information regarding any medical condition suffered by the child, including treatment and/or any other information or material concerning the health and wellbeing of the child.
13.That the parties be permitted to attend any school events that parents are ordinarily invited to attend.
14.That the parties be restrained by injunction and an injunction is granted restraining each of them from approaching, entering or remaining in the vicinity of each other’s residence.
15.That each parent will advise the other parent of their respective telephone numbers (including mobile and landline numbers) and of their residential addresses and each parent shall within forty eight (48) hours of any change of either of their telephone numbers or residential address advise the other party of that change.
16.That in full and final settlement of all claims for property settlement and division pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”):
(a)That within forty five (45) days of the date of these orders the husband pay to the wife the sum of ONE HUNDRED AND SEVENTY FIVE THOUSAND SIX HUNDRED AND SIXTY SEVEN DOLLARS ($175,667) (“the settlement sum”);
(b)That simultaneously with the payment of the said settlement sum the wife do transfer to the husband all of her estate, title and interest in the property situate at G Street, Suburb H in the Northern Territory (“the Suburb H property”).
17.That should the husband default in the payment of the said settlement sum to the wife and should such default continue for more than fourteen (14) days then the parties will do all things necessary to cause the Suburb H property to be placed on the market for sale by private treaty or public auction upon such terms and conditions as the parties may agree and in default of agreement as may be ordered by this Honourable Court provided that from the net proceeds of sale the wife shall receive so much of the said settlement sum as shall remain outstanding together with default interest calculated from the date of default pursuant to the rules and regulations as provided for by the Act .
18.That the husband shall retain the following assets, chattels and investments for his sole use and benefit free from any claim by the wife:
(i)The Suburb H property;
(ii)All funds standing to the credit of the husband in any bank account;
(iii)The Motor Vehicle 1;
(iv)All household contents currently held in the husband’s possession, power and control;
(v)The husband’s tools;
(vi)The jewellery as specified in paragraph 214 of the judgment;
(vii)All member entitlements held in Super Fund 1;
19.That the wife do retain the following assets, chattels and investments for her sole use and benefit free from any claim by the husband:
(i)All funds standing to the wife’s credit in any bank account;
(ii)The Motor Vehicle 2;
(iii)Household contents currently held in the wife’s possession;
(iv)The jewellery and effects as set out in paragraph 218 of the judgment;
20.That the husband retain the following liabilities and indemnify the wife with respect of same:
(i)J Bank Home Loan account …37;
(ii)Westpac credit card;
(iii)The husband’s individual taxation liability;
(iv)Loan agreement with Ms I Janaway;
21.That the wife retain the following liabilities and indemnify the husband with respect of same:
(i)The wife’s HECS debt;
(ii)The wife’s individual taxation liability.
22.In accordance with s 90XT(1)(a) of the Act whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of the husband from his interest in Super Fund 2 (“Plan”) – …85 under the K Fund (“Fund”) and L Pty Ltd (“Trustee”), the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount of FORTY THREE THOUSAND FIVE HUNDRED DOLLARS ($43,500) and there be a corresponding reduction in the entitlement the husband would have had but for these orders.
23.That the operative time for compliance with the order providing for a superannuation split to the wife shall be four (4) business days after the date upon which a certified copy of this order is served on the trustee of the fund.
24.That there be liberty to apply as to the implementations of the orders by way of superannuation split either by the parties or the trustee of the said fund.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janaway & Janaway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Janaway (“the husband”) and Ms Janaway (“the wife”) each seek orders as to the future parenting arrangements for X born in 2013 (“the child”) and for settlement of property.
At the conclusion of the proceedings counsel for each of the parties relied upon documents setting out the orders sought.
Whilst there is substantial agreement as to the parenting orders, the parties are not able to agree the following issues:
(1)The wife seeks sole parental responsibility for the child in relation to health and education but not in relation to the child’s religious and cultural upbringing whereas the husband seeks an order for equal shared parental responsibility.
(2)The wife seeks that the child live with her and spend time with the husband during school terms on each alternate week from 3.00 pm Friday until 8.00 pm on Wednesday whereas the husband seeks that the child spend week about in each of the parties care.
(3)The wife seeks that for the term four (Christmas) school holidays the child’s time with each of the parties shall be on a week about basis until the child reaches the age of 12 years at which time the wife seeks that the child spend the first half in even numbered years with the husband and the second half in odd numbered years.
(4)The husband seeks that the school holidays should be dealt with on a week about basis.
(5)The wife seeks that at the end of term four in 2022 and each alternate year thereafter the wife be permitted to remove the child from Australia and travel to Country M for a period of not more than 21 days with the husband’s time to be suspended during the period of travel. The husband opposes all overseas travel unless agreed.
In respect of settlement of property the parties agree the following:
(1)That the husband will pay the wife a settlement sum yet to be determined.
(2)That contemporaneously with the payment to the wife of the settlement sum she will transfer her estate, title and interest in the property situate at G Street, Suburb H, Northern Territory (“the Suburb H property”).
(3)That the wife will pay to the husband the sum of $2,100 being her one half share of the costs of the jewellery valuation.
(4)That other than the division of jewellery, the parties will each retain all other personalty in their separate possession, power and control.
(5)Upon noting that the trustees of the husband’s superannuation entitlement with Super Fund 2 have been afforded procedural fairness there be a superannuation split from the husband’s splittable interest to the wife in the base amount of $43,500.
The parties agree the value of their assets and liabilities as follows:
ASSETS VALUE The Suburb H property $460,000 The motor vehicle 1 (husband) $10,000 The motor vehicle 2 (wife) $2,500 LIABILITIES VALUE J Bank Home Loan on Suburb H property $115,274 HECS Debt of the wife $9,005 SUPERANNUATION VALUE Q Super (wife) $25,328 Super Fund 2 (husband) $109,829 Super Fund 1 (husband) $2,400
Taking into account the adjustments for the separate contributions of the parties and the relevant section 75(2) factors, the wife considers that the property of the parties should be adjusted to equality.
For his part, no attempt was made by the husband to provide any basis for the settlement sum to be paid by him. The husband conceded that the settlement sum of $90,000 as set out in his case outline document was influenced by an out of date valuation of the Suburb H property.
In final submissions, the husband’s counsel did not seek to challenge an equal division of the property of the parties and whilst the wife’s proposition was not the subject of the husband’s consent it was not opposed.
THE PARTIES
The husband was born in Australia and is 43 years of age. The wife was born in Country M and is 39 years of age.
The parties commenced a relationship in Country M in 2000, were married in Country M in 2001 and separated on 25 May 2018.
Following their marriage the parties returned to Australia in 2001.
The wife has extended family in City N, Country M whereas the husband’s extended family in Country M is limited.
The wife did not complete her university studies in Country M and upon taking up residence in Australia, enrolled in a Bachelor’s Degree in Darwin. The wife holds a Post Graduate Diploma but did not complete the degree requirements to become a registered professional.
She is currently studying part-time to obtain a Master’s Degree and she plans to complete her studies in 2024.
She presently works full-time as a professional earning approximately $67,000 per year.
The husband holds the qualification of an engineer. The husband’s employment required the parties to relocate from Darwin to both interstate and overseas postings. From 2001 to 2007 the parties remained in Darwin. From 2007 to 2011 the parties lived in City O returning to Brisbane between 2011 and 2012. From mid-2012 to mid-2017 the parties lived in Country P during which period the child was born.
The family returned to Darwin whereupon the husband secured employment on a fly in fly out basis from October 2017 before securing employment in Darwin in November 2018.
The husband’s employment was significantly affected by the closure of Australian international borders and on 20 March 2021 he was advised that there was no further work available for him. The husband undertook a number of training courses to update his qualifications and as a result was offered casual employment between October to December 2020. That temporary employment was converted to full-time casual employment in January 2021.
The husband’s evidence is that he has been offered and will accept full-time employment with a salary of between $80,000 and $90,000 per annum.
The husband’s job description and work related duties were not the subject of exploration by counsel.
The husband agrees that the wife was the child’s primary caregiver but that he was involved with the child to the extent possible. The wife highlights that the husband was required to undertake shift work and for significant periods was required to travel interstate.
The wife contends that from 2014 the husband’s behaviour became aggressive. He complained of headaches and vision loss and eventually was diagnosed with multiple brain tumours. The husband underwent his first significant operation in April 2015 with a second surgical procedure to remove brain tumours in June 2015.
The wife considers that for a period of eighteen months the husband enjoyed a good recovery but from time to time was debilitated by frequent headaches and mood swings.
The wife and the child returned to Darwin from Country P in May 2017 and took up residence with the paternal grandmother.
Shortly thereafter the parties undertook modest renovations to the Suburb H property given that it had been the subject of long term rental up to that time.
In early 2018 the husband was advised that the remaining two brain tumours needed to be treated either by radiation therapy or surgery.
Following a rapid decline in the relationship between the parties, they separated on 28 March 2018.
The wife initially lived at a woman’s shelter until June 2018. She alleges that the husband’s conduct leading up to separation constituted family violence and in particular the circumstances of the wife’s departure from the Suburb H property.
The husband commenced proceedings on 4 May 2018 and relevant to an order sought by the wife that she be permitted to take the child to Country M to visit her extended family, the husband sought and obtained the placement of the child on an airport watch list. The wife was last able to take X for a holiday to Country M in March 2017.
The wife and child lived in Q Group assisted accommodation between June 2018 to January 2019 whereupon they moved into private rental accommodation.
On 11 December 2020 Judge Young made the following orders until further order:
1. That [the child] born in 2013 spend time with the father as follows:
(a)commencing 5 February 2021, during school terms, from after school Friday (or Thursday if Friday is a public holiday) until before school the following Wednesday in each alternate week;
(b) for the first half of 2021 school holiday periods;
(c) from 12 pm on 25 December 2020 to 5pm on 1 January 2021;
(d) from 5pm on 8 January 2021 to 5pm 15 January 2021; and
(e)from 5pm 22 January 2021 to 5pm Wednesday 27 January 2021.
The orders also provided for the child to spend time with each of the parties on days of significance including Mother’s Day, Father’s Day, the child’s birthday and the birthday of each of the parties.
The parties were not able to reach easy agreement as to the medical and health needs of the child and as such the interim order provided for the parties to continue to engage the child with play therapy with the parties to alternate in taking the child to his appointments.
The order required the wife to make appointments for the child to see a paediatrician with the parties alternating in taking the child to his appointments.
The ability of the parties to communicate civilly was so compromised that the orders provided for the parties to communicate with each other via a nominated communication app in a courteous manner.
Following the making of the interim orders, the proceedings were transferred to the Family Court of Australia.
DOCUMENTS RELIED UPON
The husband relies upon the following documents:
(b)Trial Affidavit of husband filed 10 June 2021;
(c)Financial Statement of husband filed 10 June 2021;
(d)Affidavit in Reply of husband filed 7 July 2021;
(e)Affidavit of Ms I Janaway (the paternal grandmother) filed 10 June 2021;
(f)Affidavit of Ms A (play therapist) filed 7 June 2021; and
(g)Case outline document providing summary of proceedings and husband’s proposed orders filed 10 July 2021.
The wife relies upon the following documents:
(a)Trial Affidavit of the wife filed 25 June 2021;
(b)Financial Statement of wife filed 24 June 2021;
(c)Affidavit in Reply of wife filed 15 July 2021; and
(d)Outline of case setting out summary of proceedings, draft balance sheet and proposed orders sought.
LEGAL COSTS OF THE PARTIES
Exhibit “1” contains the cost statements for each of the parties.
As at 18 July 2021, the husband’s costs both paid and unpaid are in the sum of $36,830.85. Of that sum, $26,347.76 has been paid leaving outstanding costs of $10,483.09 with unbilled disbursements of a further $500.
The future costs to the conclusion of the proceedings were estimated to be between $12,000 and $20,000.
The husband has paid his costs from his personal funds or from funds loaned from the paternal grandmother.
The wife’s costs both paid and unpaid are in the sum of $41,529.06 of which the wife has paid $99. Her unbilled costs as at 20 July 2021 are in the further sum of $13,260 with anticipated disbursements of $1,500.
The total costs of the parties are in or about the sum of $110,000.
THE EVIDENCE
The husband
The husband remained resolute in his refusal to allow the wife to take the child to Country M for a holiday.
He was challenged as to the basis for the watch list order that he sought at the commencement of the proceedings. The husband considered that he had held a long term fear that the wife was unsettled in Australia and if given the opportunity to travel with the child to Country M may not return. The husband did agree that as a family, they had travelled to Country M on a number of occasions and had taken advantage of accommodation in the premises owned by his mother in City N.
The implication was that the mother could not be trusted to travel with the child to Country M, remain in City N proximate to her extended family and the remanence of the husband’s family and then return the child to Australia.
The husband acknowledged that there may be a benefit to the child maintaining a relationship with the extended family but this was offset by his view that the wife was a flight risk.
The husband was asked to consider paragraph 13 of his affidavit filed 7 July 2021 where he agrees that he told the wife to “fuck off” during arguments however, he contends that the abuse was not one sided and that in a response he was told by the wife to “fuck off” and that he was an “arsehole” and “useless”.
Whilst it is likely that as at the time of separation the parties behaved aggressively towards each other, there is no evidence presented by the husband that would point to the wife being the perpetrator of family violence.
It is an unfortunate aspect of the proceedings that at the date of separation the attention of the parties was focused on their separate allegations regarding the retention of a quantity of jewellery. That issue has been an ongoing thread through the warp and weft of the proceedings and it is likely that a significant proportion of the costs incurred by each of them is as a direct result of their inability to reach agreement as to the division of the jewellery items. It is likely, when taking into account the costs involved in the dispute, that the retention of jewellery will represent a pyrrhic victory in terms of the value of the items involved.
It was apparent that the parties have a different perception of the child’s developmental and behavioural needs. The husband did not entirely agree with the evidence of the wife’s proposition that the child has learning difficulties. The husband considered that when the child was in his care the purported behavioural issues reported by the wife were not apparent.
The husband initially sought an order for sole parental responsibility but conceded that the parties should share parental responsibility together with a week about arrangement “at the bare minimum”[1]. The husband agreed that as at the date of the family report dated 24 July 2019 (“the first report”), there was a lot of argument and distress between the parties leading up to and following their separation.
[1] Family Report dated 24 July 2019, paragraph 30.
The husband considered that the conflict was high but did not diminish his view that the wife was psychologically manipulative of the child and did not resile from the accuracy of the family consultant recording that when the husband asked the child to explain why he was aggressive and was observed to punch, kick and bite his partner and her child, the child’s response was “Mum said to hurt you”[2] and that he considered that the wife “has an awesome ability to make him [the child] hate”.[3]
[2] Ibid, paragraph 46.
[3] Ibid.
It appears that the child’s behaviour at school was such that during a parent teacher interview both the child’s teacher and the school principal recommended that the child consult with a paediatrician. Arrangements were made for the child to be assessed by Dr R (“Dr R”) who diagnosed the child with the following:
(a) Moderate to severe expressive language disorder.
(b) Moderate speech sound disorder.
(c) Fine motor and gross motor delays.
(d)Childhood trauma, being exposure to alleged domestic violence and non-harmonious parental separation.
(e) Attention difficulties.
(f) Memory problems. [4]
[4] Trial affidavit of the husband filed 10 June 2021, paragraph 168.
In addition, the child was referred to Ms S (psychologist) for a mental health plan.
It is the husband’s stated position that he is not able to communicate with the wife. At paragraph 183 of his trial affidavit, the husband refers to their joint attendances on the paediatrician and he alleges that the wife raised her voice and was verbally abusive towards the husband such that, thereafter, he refused to attend any joint medical or therapeutic counselling appointments.
The intention of the husband was to suggest that the wife lacked restraint and was not able to control herself.
The husband was asked to consider notes of Ms S which would appear to contradict the husband’s assertion that when the parties were in her presence, it was the wife who was loud and abusive.
The report by Ms S to Dr R in an email dated 13 March 2020 is of high relevance in considering the damaging effect on the child of the ongoing parental conflict:
Dear Dr R,
Thank you for referring [the child] DOB: …2013 to T Psychology Services for psychological intervention for anxiety. I met with [the child’s] parents [the wife] and [the husband] on the 12/3/2020, to obtain some background information regarding [the child’s] presentation, the nature of his anxiety and any issues that may be impacting on his functioning and development. Unfortunately, the parents are in a high conflict situation and were unable to engage in a productive discussion regarding [the child]. Given that appropriate treatment would require me to address the parenting issues as they impact on [the child] and assist the parents to develop greater sensitivity to [the child’s] needs, it is my professional opinion that this is not possible given the parents current circumstances. I would recommend that [the child] be referred to B Counsellors where he can work through some of the family conflict issues at his own pace, in a playful manner. I have informed the parents that I will not accept [the child’s] referral until such time as they are prepared to address the parenting issues that so clearly put this young man under enormous stress. I am happy to discuss this matter further and can be contacted on Tel: … during business hours.
Kind Regards,
Ms S[5]
[5] Trial affidavit of the mother filed 25 June 2021, annexure “M”.
The husband reluctantly conceded the accuracy of the observations of Ms S that both parties engaged in inappropriate conduct.
The husband agreed that he would not support the child attending further paediatric follow up nor counselling, therapeutic intervention or in particular play therapy.
On closer examination, the husband’s concerns are not with the assistance that further professional intervention might provide to the child but rather that he was not prepared to engage in any appointment that also involved the wife.
Exhibit “2” in the proceedings is evidence of a snap shot of communication between the parties between 11 and 13 November 2020.
The communication provides a clear basis for determining that the parties remain mistrustful of each other and that the prospects for a reconciliation of their differences in order to assist the child going forward is forlorn of hope.
The husband agreed with the accuracy of paragraph 54 of the first family report wherein it is recorded that he refused for the child to attend optometry and optical tests, believing that the wife had made unnecessary appointments.
The concern in respect of the inability of the parties to reach a consensus as to the provision of necessary medical services for the child is also reflected in the husband’s evidence that the husband took the child with him to see a general practitioner and following the doctor observing the child to have a cough, prescribed a Ventolin puffer.
The husband concedes that he did not tell the wife about the diagnosis and Ventolin prescription because he did not consider that the puffer was necessary.
The husband’s trial affidavit between paragraphs 80 to 87 refer to a purported loan from the paternal grandmother in the sum of $80,000.
It appears that prior to the commencement of the relationship with the wife, the husband and his mother purchased a property at U Street, Suburb V (“the Suburb V property”) for $155,000. The husband did not have the financial ability to complete the settlement and the purchase was enabled by the paternal grandmother contributing the sum of $50,000 and her becoming a co-borrower.
On 19 September 2002 the paternal grandmother transferred her interest in the Suburb V property to the husband for the consideration sum of $82,500.
The Suburb V property was sold on 10 June 2005 for $235,000 with the net proceeds being in the vicinity of $60,000 but reduced by $10,000 being a repayment to the paternal grandmother.
The purported loan seems to be based upon the assessment of the value of the paternal grandmother’s one half interest in the Suburb V property.
The loan was never repaid and the evidence of the paternal grandmother is that she does not expect it to be repaid.
It is assumed that the husband raised the purported loan as an issue relevant as to the financial contributions of the parties.
Even putting to one side the clear indication from the paternal grandmother that she does not expect her son to repay any money to her, the husband’s evidence was unreliable and unsatisfactory as to the circumstances of any outstanding amount to his mother.
It is also likely that the balance of the net proceeds of sale of the Suburb V property could not be directly traced to the Suburb H property but rather may well have been spent, either in whole or in part, on modest renovations to the Suburb H property in or about 2017 in preparation for the parties return.
The husband’s evidence in respect of any purported loan and if so the weight that it should be given was unconvincing and unsatisfactory.
I form the view that when discussing issues relating to the ability of the parties to reach consensus in respect to the needs of the child, the husband’s evidence is reliable. There is little avenue or scope for the Court to find that the husband is prepared to reach easy agreement with the wife.
Ms A
Ms A is a registered play therapist and following the completion of an Advanced Diploma in family therapy and some further training with the Australian Association of Play Therapy has been practicing as a registered play therapist since 2003.
Her affidavit filed 7 July 2021 refers to the outcomes that play therapy is intended to achieve, namely to “strength build”.[6]
[6] Affidavit of Ms A filed 7 July 2021, paragraph 11.
Ms A commenced play therapy with the child on 27 November 2020. Following a face to face interview with the husband on 20 November 2020, the recommendation of Ms A that the husband should not discuss his concerns and the present conflict with the wife in the presence of the child was apparently followed.
Similarly, Ms A counselled the wife to not engage in discussions about adult issues between the parties in the presence of the child.
Between November 2020 and June 2021 each of the parties have attended on various occasions with the child.
It is difficult to understand the therapeutic focus of the play therapy. There was little assistance as to how long it was intended that the play therapy sessions would continue or what therapeutic milestone indicator or goal would demonstrate that the utility of play therapy was no longer required to assist the child.
The evidence as to the therapeutic benefit to the child of his continued involvement in play therapy was virtually non-existent.
I do not propose to continue the interim order that required the parties to ensure the child attended for play therapy until such time as the therapist or such other involved health professional determined that the sessions were no longer necessary.
The evidence of Ms A and the involvement of each of the parties in the play sessions is of little or no assistance. In any event, it is likely that the significant cost associated with each play session is likely to be prohibitive, certainly as to the more precarious financial position of the wife.
Ms I Janaway
Mrs I Janaway is the paternal grandmother of the child.
Her evidence was consistent and measured. She clearly holds the child with great affection and given her clear and unequivocal statement that she has no intention of seeking to collect any money from the husband however it may have been incurred, it is surprising that he sought to pursue and press the matter of a purported loan as relevant to the weight to be given to the separate contributions of the parties.
The evidence of the paternal grandmother was both reliable and persuasive.
The wife
The wife conceded that she did not inform the husband of her intention to separate. She agreed that she collected the child from school, sought and obtained emergency accommodation at a woman’s shelter and attended upon her solicitor.
The parties each identify with their Country M heritage.
The wife considered that the parties were non-practicing Muslims and whilst the parties were unlikely to be able to discuss issues of religion, religion was not likely to be an issue as between the parties.
It was put to the wife that she had made a unilateral decision to move the child from W School and enrol him in another school in 2019. The wife conceded that she did not discuss her intention to change the child’s school with the husband but considered that there had been a discussion between the parties at an earlier time and it was her view that the husband would not oppose a change. Moreover, she considered that she was not able to afford the school fees.
The evidence in support of the wife’s application to hyphenate the child’s surname to BB-Janaway or Janaway-BB is set out in paragraph 99 of the wife’s trial affidavit. The wife’s maiden name is BB and her concern is that if she is permitted to travel with the child to Country M, movement in and out of the country will be very difficult if the child and the wife do not share the same surname. The wife’s concerns are predicated on her being permitted to travel to Country M with the child and her intention to change her name back to her maiden name.
The wife was asked to consider that the parties had been able to converse with each other via the parenting app and that there had been compliance by each of them of the interim orders made.
The wife contended that in any dealings with the husband she was anxious and became easily distressed.
It is an observation of the wife’s demeanour and attitude whilst giving her evidence that she appeared emotionally labile and was quick to transition to tearful display.
The wife was keen that both parties be able to attend joint sessions with the child’s health professionals. It is a reasonable assessment of her evidence that her motivation was because she considered the child would benefit by both parties gaining a similar understanding from the relevant practitioner.
It appears that the orders for school holidays created difficulty for the parties in that they were not able to agree on the start and finish date for the holidays and in particular whether the arrangements for the child to spend time with the husband during school terms would be suspended during school holidays or simply continue as part of the normal rotation.
Whilst the parties were eventually able to reach agreement in respect of each occasion of school holidays, it was the wife’s position that it was not easy to do so and she found the interaction with the husband to be hostile and distressing.
During the course of the evidence, an issue arose as to the wife’s determination that the husband not be made aware of her current residential address.
I emphasised to the parties but to the wife in particular that given the age of the child, it was not in his best interests to be required to keep a secret where he has deep affection for his parents and is therefore likely to suffer a crisis of loyalty.
It is acknowledged that the wife has made a concession, subject to orders of injunction being put in place, that she will provide the child’s residential address and appropriate contact details.
The wife asserted to the family consultant that part of her fear was based upon information provided by the child, detailing a threat by the husband to shoot her with a bow and arrow.
The wife’s evidence on this topic was unconvincing and whilst may well be a genuinely held view arising from her anxious state, there is no cogent evidence that would suggest the husband presents as a clear and present danger to her.
I am satisfied from the wife’s evidence that her inability to reach easy agreement with the husband as to the medical needs of the child accurately reflects the current circumstances.
As discussed, the husband did not impress as to his readiness to compromise and when faced with his opposition, the wife defaults to a position of subservience.
It is conceivable that the husband’s opposition to the wife seeking to engage the child in therapeutic assistance is capriciously withheld.
It is likely that the wife is more insightful as to the medical and therapeutic needs of the child than the husband.
I find that save and except the allegations of the wife that the husband is a perpetrator of family violence, her evidence when focused on the needs of the child should be considered as reliable.
Family Consultant
As at the date of the first family report the child was five years of age.
The family consultant noted that whilst the interim orders required the parties to use a communication book, both parties acknowledged that it was no longer used and considered that the other party was responsible.
The husband advised that he would communicate with the wife by email but was never favoured with a response. His complaint was more detailed in that the wife did not provide information about the child and in particular her arrangements to travel away from the Northern Territory.
For her part, the wife’s contention was that the husband had withheld the communication book and that he was intent on questioning her about matters relating to her personal circumstances and not relevant to the ongoing care of the child. The wife advised the family consultant that she felt intimidated by the husband whereas he expressed the concern that the wife would not include him in the decision making process for matters pertaining to the child.
At the time of the first report, the husband’s position was to seek sole parental responsibility acknowledging his concerns for their ability to exercise shared parental control.
In interview, the child spoke favourably of his interaction with the parties and described and considered that they were each his favourite.
He had some knowledge of the conflict between the parties and correctly observed to the family consultant that the parties were fighting and that “Dad was angry and kicked Mum out and you are going to fix it”.[7]
[7] Family Report dated 24 July 2019, paragraph 106.
The observed interaction of the parties was benign and supports a finding that the child has a strong attachment with each of them.
The family consultant considered that the child had a positive relationship with the parties and that they provided an appropriate support network and were protective of him.
The family consultant summarised the parties’ relationship at paragraph 135 of the first report:
The parenting relationship is characterised by verbal conflict, poor communication and cooperation over parenting, allegations about the former partners behaviour and parenting practices, and poorly resolved conflict between parents. All of these behaviours pose risks to [the child’s] wellbeing and development, both now and in the future. It is critical to [the child’s] future emotional and psychological well-being that the parents are able to manage conflict in such a way that will have the least impact upon [the child].
With respect to the husband, the family consultant recorded the following at paragraph 136 of the first report:
[The husband] presents with significant levels of distrust, anger and hostility towards [the wife]. [The husband’s] hostility towards [the wife] was consistent throughout the interview and at times affected his ability to be child focused. The writer is concerned that [the husband] may not be able to promote [the child’s] relationship with his mother and will need significant support to ensure he remains child focussed.
Whilst the wife appeared distressed and anxious in terms of her ability to work with the husband, nonetheless the family consultant considered that she would promote an ongoing relationship between the husband and the child and could “prioritise the [child’s] needs above those of her own”.[8]
[8] Ibid, paragraph 137.
Aware of the orders sought by each of the parties, the family consultant recommended that a shared care arrangement was not in the child’s best interests and may well represent too greater disruption in the child’s life.
Whilst not able to support shared care, the family consultant considered that it would be in the child’s best interests for him to spend significant time in the husband’s care.
At the time of the second report the child was seven years of age.
The personal circumstances of the parties had changed. The husband lives with his partner, Ms Y (“Ms Y”) and her son aged ten in the Suburb H property.
The husband was employed and at the time of the report would be required to travel to City Z and stay overnight each alternate Monday.
The wife and X live with one of her female friends in a two bedroom rental property.
The family consultant identified the high levels of parental conflict, the child’s significant health and education needs and the hostile parenting relationship to all represent a risk to the child’s emotional and psychological development.
Each of the parties complained that there was still overt hostility towards each other.
The husband continued his allegation that the wife was verbally abusive to him and in particular to health professionals engaged in the child’s ongoing care. There was no suggestion that the husband would resile from his strongly held position that the parties were not able to jointly attend the child’s sessions with various health professionals.
The husband did consider that there were some advances in the relationship between the parties and various text message exchanges suggested a better level of communication and some co-operation. The wife expressed feelings of continuing intimidation by the husband. She was generally unable to participate equally in the confrontation and felt belittled by him.
The wife expressed awareness of the impact of their interpersonal conflict on the child and in particular that the parties’ behaviour had the potential to place the child at risk of emotional harm.
The wife was concerned that the parties were not able to reach agreement as to the child’s engagement in curricular and extra-curricular activities. Every decision in respect of the child was difficult and caused the wife to experience anxiety, distress and upset.
Of particular concern was the wife’s ongoing complaint that the child’s urgent need for speech and occupational therapy and a diagnosis of whether the child presented with ADHD had not been able to go forward because of the lack of co-operation between the parties.
The family consultant recorded that the child presented as having average and appropriate maturity for his age.
Unsurprisingly, the child said that he was sad and wanted more than the parties to be friends and although he wished they could reconcile he recognised that the parties did not like each other.
The child expressed a view of wanting to spend equal time with each of the parties. The family consultant did not find that the child presented as having experienced family violence between the parties. The child was adversely impacted by the conflict and discord between the parties.
The family consultant recognised that the child had complex health and educational needs and may well present with a possible diagnosis of ADHD.
Whilst axiomatic, the family consultant recognised that the hostility between the parties made it difficult for them to remain child focused.
It is clear during the course of the evidence that each of the parties albeit with a different presentation, were clearly focused on the deficiencies of the other’s parenting rather than the needs of the child.
The family consultant considered each of the proposals of the parties and ultimately determined that the child would be best served by being in a safe and stable future.
In a similar manner as considered in the first report, the family consultant formed the opinion that a shared care arrangement would be too disruptive for the child.
The family consultant could not support the husband’s proposal of a shared care arrangement but considered that regular and significant time with the husband would be in the child’s best interest, noting that as matters progress at about ten years of age there might be some advantage to the husband’s time being extended presumably by between one and two nights.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I approach the parenting component of the proceedings from a focus on the practical reality of the separate proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
PARENTING CONSIDERATIONS
Meaningful relationship
The parties are not agreed as to parental responsibility but each of them acknowledge that it is important for the child to maintain a substantial and significant relationship with each of them.
The separate proposals of the parties are consistent with their recognition that a meaningful relationship is important to the proper development of the child. What they are not able to reconcile is their inability to approach the ongoing needs of the child by consensus.
The family consultant supports that at the least the child should spend significant and substantial time with the father.
The issue of contention is not whether the child has a strong attachment to each of the parties but the extent to which an order that is predicated upon a joint parenting approach has the potential to reduce the child’s stability and create a level of conflict not able to be masked by the parties when they engage with the child.
Is the child at risk
It is not suggested by either party that the other presents as an unacceptable risk to the child. To do so would be inconsistent with the orders each of the parties seek.
The family consultant considers that the continuing inter-parental conflict has the potential to place the child at risk of psychological and emotional harm. At present that is not necessarily self-evident in the child’s presentation although it is not well understood and ill-defined by the evidence as to how much of the child’s current behaviour, aggressive conduct and symptoms of attention deficit disorder may be fuelled by the ongoing conflict.
I have considered the evidence and I am not satisfied that either of the parties place the child at any physical risk or would subject the child to neglect or abuse. It may not be capable of resolution, but the family consultant has recognised over a period of four years that the ongoing conflict was likely to have an adverse effect on the child.
Wishes of the child
Not much is known of the child’s wishes. It is apparent from the child’s interaction with the family consultant that he has a strong and loving attachment to each of the parties and his view that he should spend equal time with each of them was recorded. The family consultant did not consider that the child’s views should be determinative and taking into account the various and health behavioural issues that affect and impact upon the child’s presentation, the evidence suggests that it is likely that the child’s expressed wishes was a reflection and consequence of divided loyalty.
It is apparent from the recommendations of the family consultant that she gave weight to the child’s wishes but considered that at this stage he lacked the level of maturity required to displace other relevant factors.
The nature of the relationship of the child with the parties and the evidence of the family consultant is that the child has a strong emotional attachment with each of the parties but that he has been in the mother’s primary care during the course of the relationship and certainly post-separation.
The observations of interaction between the child and the parties were positive and the child was complimentary of the husband’s partner and his step-brother.
The likely effect of any changes in the child’s circumstances
The husband seeks that the parties share the child’s care. Whilst it may only seem to be a small transition from the current five nights per fortnight to what would in effect be seven nights per fortnight, I consider that belies the potential detriment arising from the simmering tensions between the parties.
At present, the child’s current circumstances are well understood. That observation is not to ignore that much of the child’s conflicted presentation may well be exacerbated by his experience of having to satisfy his parents in circumstances where they remain in dispute.
There has not been any evidence presented which would provide a counterfoil to the child’s current presentation. Whilst I cannot opine whether the child may be benefited or adversely affected by the husband’s proposal, the evidence of the family consultant having had the advantage of assessing the parties and the child over a period of four years does not support any significant change to the current arrangements at this time.
It is not a matter of fairness or otherwise to a party who seeks arithmetical equality.
The test must always be what is in the child’s best interests. That must be a consideration from the child’s perspective and not the desires of each of the parties.
What is understood is that the parties currently struggle to keep their interpersonal conflict in check and quarantined from the child. To some extent they have been successful but not entirely so. The child is well aware of the parties mutual dislike for each other.
The test is not that the relationship between a child and a party be optimal but that it be meaningful.
In this case, even were the Court to find that the parties should have equal shared parental responsibility, the presumption that arises therefrom is easily rebutted by a consideration of the evidence. If not equal time then the Court should consider significant and substantial time. That level of involvement between the husband and the child was the recommendation of the family consultant based upon her observations and long term assessment.
It may be that there could be an extension of the child’s time with the husband as he gets older but again, the decision should not be through the lens of either of the parties but whether there is evidence that would promote a finding that more time between the child and the husband would be to the child’s advantage.
The fact that the child could cope with more time in years to come is not a sufficient basis for making such an order in circumstances where the volatility of the relationship between the parties easily rebuts any presumption, leaving a vacuum of evidence as to the potential for advantage.
Further litigation
The parties have been before the Court since 2018. As considered, the costs to each of them has been significant. Furthermore, in evidence the parties showed clear signs of being emotionally affected by the proceedings with the wife demonstrating symptoms of high anxiety and emotional distress.
I consider that a retention of the current parenting arrangement is an outcome that is least likely to lead to further litigation. There is a level of certainty as to the current arrangements which would not be the case if orders were made in terms of the husband’s proposal.
Parental responsibility
Parental responsibility is to be informed by what is in the best interests of the child.
At present, the parties have attempted to reach agreement but not met with any significant level of success. There may be some fleeting signs that perhaps the parties are slowly reconciling their differences but the level of hostility, anger and upset must all be weighed against the advantage to the child of equal shared parental responsibility.
To a significant degree I am guided by the observations and opinion of the family consultant.
Looking at the matter from a variety of aspects that impact upon the child, it does not appear that education and religion are problematic for the parties. Even with their reduced ability to communicate it appears that broad agreement has been reached about those matters.
The concession by the wife to disclose her address removes a significant barrier as between the parties and relieves the child of being placed in the invidious position of understanding the need to keep his address secret as far as his mother is concerned but to answer questions of the husband that would reveal his residence.
Whilst finely balanced, I consider that the parties are able to manage shared parental responsibility except for sole parental responsibility to the wife for the child’s health considerations.
There is ample evidence that the parties have not been able to agree ongoing health issues in respect of the child and there is no evidence to suggest that the various proposals of the wife, in particular for the child to undergo optometry examination, are misguided or unreasonable. The demonstrable opposition of the husband both in terms of the history of the matter but also his presentation in evidence leaves little hope that in the important area of the child’s health, emotional wellbeing and behavioural management, there is likely to be any ready consensus between the parties.
The child presents with health and behavioural needs that require attention and determination rather than be mired in the ongoing internecine dispute between the parties.
I propose to order that the wife have sole parental responsibility for the child’s health needs including emotional and psychological support.
Overseas travel
I do not diminish the wife’s genuine desire to travel to Country M with the child so that he can meet members of the wife’s extended family.
The husband opposes such travel.
Whilst the wife’s presentation is one of cultural overlay, I do not consider that it is persuasive.
There is high level of animosity between the parties and any travel by the wife involving taking the child out of the Commonwealth of Australia is likely heighten the husband’s anxiety.
It is likely that the mechanics of the wife taking the child to Country M would create argument and rancour.
The wife does not offer any security sum and even though it may be considered unlikely, I am not satisfied that the benefit that would flow to the child outweighs the conflict that such travel would engender.
It may well be that there could be little opposition to the child travelling overseas once he turns 14 years of age and indeed it may well be the case that the husband’s current opposition is based upon the current age of the child and may be less relevant from the child’s age of 14 or 15 years.
CHANGE OF NAME
The basis for the wife’s application to hyphenate the child’s surname by a combination of Janaway and BB is scant. It is not suggested that the child needs to identify with the wife to a greater degree than with the husband.
The only basis for the wife’s application is that in the event of travel there may be a difficulty created by the child retaining the surname of Janaway and the wife being able to establish a connection to the child if she reverts to her maiden name. As has now been determined, unless there is consent of the parties, neither party will be able to remove the child from Australia.
In those circumstances there is no basis for the orders sought by the wife. Moreover, any suggestion of the potential for confusion arises not from the circumstances of the child but rather because the wife may well return to using her maiden name. If that does not occur, then the child’s identity is well founded in the retention of Janaway as his current surname.
PROPERTY SETTLEMENT
The parties agree that it is just and equitable for the Court to embark upon a consideration of property settlement in respect of their separate legal and equitable interests.
The husband accepts that his retention of the Suburb H property will necessitate the payment of a settlement sum to the wife.
Subject to a minor adjustment arising from the division of jewellery, the parties are agreed as to the assets and liabilities.
There is reason to consider whether the legal fees of the parties should be the subject of add-back. The husband’s fees have been paid to the sum of $26,347.76 and I am satisfied that the source of the husband’s payment was either from income earned or more likely, from monies provided by the paternal grandmother.
The wife’s fees remain unpaid other than as to the sum of $99.
The modest nature of the asset pool and the extent of the wife’s liability for unpaid legal fees is potentially a relevant factor pursuant to s 75(2)(o) of the Act.
The wife seeks that there be an equal division of the net assets of the parties. There is agreement as to a base amount to be transferred from the husband’s splittable interest in his Super Fund 2 to a nominated superannuation fund entitlement of the wife in order to achieve equality.
There is little factual dispute between the parties as to the history of the parties’ relationship.
The wife acknowledges that at the commencement of cohabitation the husband held an interest in the Suburb V property and that upon its sale, following the transfer of the interest of the paternal grandmother to the husband, the relatively modest balance was of some assistance not in terms of the purchase of the Suburb H property but rather in terms of its renovation and upgrading.
No evidence was presented as to whether monies spent on the Suburb H property resulted in a meaningful increase in its value.
Given the circumstances of the parties after the conclusion of the proceedings, it is likely that the preponderance of s 75(2) factors would fall in favour of the husband.
His income and job security is superior to that of the wife.
He has the ongoing support of his mother as evidenced by her contribution to his legal fees. No evidence was presented by the husband as to how he proposes to pay the settlement sum as assessed but it is likely it will be by way of further assistance from his mother.
The wife is in receipt of modest income from her current employment and pursuant to the parenting orders, will have the primary financial obligation in respect of the child in circumstances where the husband’s level of child support currently being paid does little to assist the wife in meeting the financial obligations pertaining to the child.
Whilst it could be argued that the contributions of the parties should be considered as equal and that the s 75(2) factors are generally in favour of the wife, the adjustment as proposed by her would nonetheless fall within the generous ambit of my discretion.
In circumstances where the husband did not significantly oppose the adjustment proposed by the wife I consider that the basis of the orders she seeks has merit.
ASSETS AND LIABILITIES OF THE PARTIES
Jewellery
During the proceedings the parties remained at a stalemate as to the division of jewellery. By closing submissions, it was apparent that each party had made some concessions in relation to the jewellery. Counsel for each party indicated that the parties would hopefully reach some sort of overall agreement and provide chambers with a list of some sort.
The parties were unable to reach an agreement and no list was provided to my chambers.
A joint valuation of the jewellery was prepared by AA Jewellers on 25 February 2019. The valuation was prepared for probate purposes, with both a value and scrap value provided. In the absence of the parties reaching an agreement as to what figure should be adopted, I have determined that the scrap value should be adopted.
An additional issue with the valuation was that some items were valued together with other items, for example, a 14 carat cuff, 18 carat bracelet was valued together with various 21 carat yellow gold bangles. The difficulty with this is that at the conclusion of the evidence both parties had agreed to the husband retaining the wide cuff bracelet with the wife to retain the balance of the bangles. Without any other evidence as to the value of each individual piece of jewellery or an agreement by the parties as to how these items are to be separated with respect to value, I am unable to make an order reflecting the concessions made by the parties.
At the conclusion of the proceedings the parties had narrowed down their dispute to two types of jewellery. The parties could not agree on who should retain what is detailed as “One large (European full sovereign) .916carat Gold”[9] coin which the wife considers the husband’s father gave to her, shortly before his passing, for the birth of the child. The husband disputes that this item was gifted by his father to the wife. The parties could also not agree who should retain ten 21 carat yellow gold bangles and five 22 carat yellow gold half round bangles.[10] It was the wife’s position that the husband gifted her these items for her 35th birthday and for the child’s circumcision.
[9] Trial affidavit of the wife filed 25 June 2021, annexure “V”.
[10] See trial affidavit of the wife filed 25 June 2021, annexure “W”.
Doing the best that I can, I propose that the wife retain the following jewellery:
No Item Value 1 Omega & pendant $532.00 2 Diamond pendant set in 18 carat yellow gold $2,866.20 3 Ladies chains & pendants $420.00 4 Pearl strand $110.00 5 Eye pendant $328.00 6 Elephant pendant $354.00 7 Dress earrings $85.00 8 Dress rings $252.00 9 Diamond pendant and chain set in yellow & white gold $634.50 10 Ten 21 carat yellow gold bangles $2,940.00 11 Five half round 22 carat yellow gold bangles $1,070.00 TOTAL $9,591.70
The husband is then to retain the following jewellery together with any other remaining jewellery of the parties:
No Item Value 1 Gold bangles & bracelets (14 carat cuff, 18 carat bracelet and 21 carat yellow gold bangles) $2,070.00 2 One large (European full sovereign) .916 carat gold coin $652.08 3 Various coins (13 small (half sovereign), five large (full sovereign), six with ribbon (half sovereign) coins) $1,171.80 TOTAL $3,893.88 Balance Sheet
ASSETS VALUE The Suburb H property $460,000 The Motor Vehicle 1 (Husband) $10,000 The Motor Vehicle 2 (wife) $2,500 Jewellery to be retained by the wife $9,591.70 Jewellery to be retained by the husband $3,893.88 TOTAL $485,985.58 LIABILITIES VALUE J Bank on Suburb H property $115,274 HECS debt of the wife $9,005 TOTAL
BALANCE$124,279
$361,706.58SUPERANNUATION VALUE CC Super Fund (wife) $25,328 Super Fund 2 (husband) $109,829 Super Fund 1 (husband) $2,400
I find the assets and liabilities of the parties available for division to be as follows:
CALCULATION
The total assets are in the sum of $485,985.58 less the total liabilities are $124,279. The net balance is $361,706.58. The wife is to receive 50 per cent of the net pool and accordingly she is to retain the settlement amount of $180,853.
The wife is to retain the following:
(1)Motor Vehicle 2 $2,500
(2)Jewellery $9,591
TOTAL $12,091
LESS HECS debt $9,005
NET TOTAL $3,086
Given the wife is entitled to $180,853 and she retains net property to the value of $3,086, the husband is required to pay her the settlement sum of $177,767 less her share of the jewellery valuation cost of $2,100 leaving a balance of $175,667.
The parties have agreed the superannuation split and I propose to allow the husband 45 days to pay the settlement sum to the wife.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 1 October 2021
0
0
0