Jarrett and Jarrett
[2011] FMCAfam 1054
•21 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
JARRETT & JARRETT [2011] FMCAfam 1054
FAMILY LAW – Parenting & Property.
Family Law Act 1975, ss.75(2)(o), 79(4)(d)-(g), 117
Browne and Green (1999) FLC 92-873
DJM and JLM (1998) FLC 92-816
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
MH & MZ (2005) FLC 93-226; (2005) 34 Fam LR 169
Kowaliw and Kowaliw (1981) FLC 91-092
Money v Money (1994) FLC 92-485
Norbis v Norbis (1986) 161 CLR 513
AJO v GRO (2005) FLC 93-218
Pierce v Pierce (1998) FLC 92-844
Townsend and Townsend (1995) FLC 92-569
Williams & Williams [2007] FamCA 313
Applicant: MR JARRETT
Respondent: MS JARRETT
File Number: WOC 320 of 2010
Judgment of: Altobelli FM
Hearing dates: 7-8 March and 6-7 September 2011
Date of Last Submission: 7 September 2011
Delivered at: Sydney
Delivered on: 21 October 2011 REPRESENTATION
Counsel for the Applicant: Ms Friedlander
Solicitors for the Applicant: Fulcrum Legal
Counsel for the Respondent: Mr Greenaway
Solicitors for the Respondent: Jordan Antonopoulos & Co ORDERS
PARENTING
(1)The parties have equal shared parental responsibility for the Child [X] born [in] 2005.
(2)The Child live with the Mother.
(3)The father spend time with the child:
(a)Each alternative weekend from after school Friday until commencement of school the following Monday morning provided that the father deliver the child to the school for the commencement of the school day;
(b)In the alternative, in the event that the father is not able to deliver [X] to school, from after school Friday until 6pm Sunday evening and for the purposes of facilitating the order the father shall return the child to the mother at her place of residence;
(c)From after school each alternate Tuesday until before school on Wednesday during the week prior to the father spending time with the child pursuant to orders 3(a) or 3(b) herein;
(d)One half of each of the short school vacation periods;
(e)Unless the parents otherwise agree, the father shall have the first week of the school vacation period in odd numbered years and the second week in even numbered years;
(f)For the Christmas school holiday period for the year 2011/2012, alternate weeks commencing on the first day of the Christmas school holiday period;
(g)For the Christmas school holiday period for the year 2012/2013, alternate weeks commencing on the second week of the Christmas school holiday period;
(h)For the Christmas school holiday period commencing for the year 2013/2014, for one half of the Christmas school holiday period being the first half in odd numbered years, and the second half in even numbered years;
(i)For the years commencing 2013 and following, the time spent with the child by the parent with whom the child shall spend time on Christmas Day, will be suspended on Boxing Day from 9am until 7.30pm on that day and for the purpose of facilitating this Order the parent who shall spend time with the child on Boxing Day will collect and return the child to the other parent’s home.
(j)In the event that Father’s Day does not occur during the father’s time pursuant to these orders, from 9am until 7.30pm on that day and for the purpose of facilitating the order the father shall collect the child from the mother’s place of residence and return the child to her at the end of such time; and
(k)At such other times as the parties may agree.
(4)In the event that Mother’s day occurs during the time the child spends with the father pursuant to these orders, such time shall be suspended between the hours of 9am and 7.30pm and for the purpose of facilitating such order the mother shall collect the child from the father’s place of residence and return the child to him at the end of such time.
(5)That each parent has reasonable telephone communication with the child when the child is not with that parent defined to mean not less than once every two (2) days.
(6)That each parent do all things necessary to ensure that the other is provided with a copy of all school reports and material for the school which the child attends, by the school.
(7)Each parent shall as soon as practicable inform the other in the event that the child suffers any serious accident or illness which requires the child to seek medical or hospital assistance.
(8)Neither parent shall denigrate the other in the presence or hearing of the child or permit any third party to do so.
(9)Each parent shall keep the other informed at all times of their residential address and telephone contact number.
(10)During the times the child shall spend with the father, the father shall not leave the child in the care of either the paternal father Mr J or brother Mr K.
(11)Both parents must within two working days:
(a)Contact the program provider CatholicCare and arrange an appointment within 28 days for an initial assessment as to suitability for a post-separation parenting program.
(b)Attend the appointment at any reasonable location nominated by the provider and complete the assessment.
(c)If assessed as suitable for a program or part of a program and the program provider nominates a particular program to attend, he/she must attend that program or part of the program (as the provider directs) as soon as practicable.
PROPERTY
(12)Within sixty (60) days of the date of these Orders the wife pay to the husband or as he directs in writing the sum of $131,150.
(13)At the same time as the payment ordered at (12) above, the husband will do all things necessary to transfer to the wife all of his interest in the property at Property K (the home).
(14)Simultaneously with 13 above the mother will do all acts and things and sign all documents to pay the amounts necessary to discharge or refinance in her sole name any mortgage or liability secured against the home.
(15)The father shall be solely entitled as between the parties to the following:
(a)All motor vehicles and motorcycles registered in his name.
(b)Shares, savings and investments in his possession and control.
(c)Personal documents and files in his possession or control.
(d)His superannuation entitlements.
(e)Any interest in property located at Property F.
(16)The Mother shall otherwise be solely entitled as between the parties to the following:
(a)Shares, savings and investments in her possession and control.
(b)[omitted] Investment with the [omitted] Bank together with the associated [omitted] Bank Investment Loan.
(c)Her Superannuation entitlements
(d)[omitted] motor vehicle – registration no. [omitted].
(17)Subject to 13, 14, 15 and 16 above each party shall be responsible for the debts in their respective names and the wife shall be solely responsible for all outgoings on the home including the mortgages.
(18)If the wife is unable to make the payment to the husband required under these orders then:
(a)The home is to be forthwith listed for sale in accordance with these orders.
(b)The net sale proceeds shall be calculated after deduction of all expenses relating to the sale, and the amount payable in respect of any mortgage secured against the home but not outgoings including council water rates (which shall be the sole responsibility of the wife).
(c)The net sale proceeds shall then be divided as to 55% to the husband and 45% to the wife after adjusting for the assets retained by each party as listed in paragraphs 76 and 77 of these reasons for judgment.
(19)That the Father and the Mother shall promptly do all acts and things and give all consents and execute all documents in writing necessary to give effect to these Orders.
(20)That in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein, the Registrar of the Court be appointed, pursuant to Section 106A executed such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.
(21)If it becomes necessary for the home to be sold in accordance with these orders then the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
(22)That the parents have liberty to apply before Federal Magistrate Altobelli in relation to the interpretation and implementation of these orders.
(23)Save as otherwise provided for in these orders the husband and the wife are declared to be the sole owners at law and in equity of all other property or resource in their possession or control.
IT IS NOTED that publication of this judgment under the pseudonym Jarrett & Jarrett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEYWOC 320 of 2010
MR JARRETT Applicant
And
MS JARRETT Respondent
REASONS FOR JUDGMENT
Introduction
1.This case is about parenting matters, as well as alteration of property interests. [X] was born [in] 2005, and is now 6 years old. His parents cannot agree as to where he should live or how much time he should spend with the other parent. His parents also cannot agree about the division of their property by way of a property settlement. These reasons for judgment will explain the orders that I have made on these issues.
Background
2.[X]’s father is the applicant in these proceedings. He lives in [omitted], is 38 years old and is an [occupation omitted]. [X]’s mother is the respondent in these proceedings. She is also 38 years old, lives in a southern Sydney suburb and is a [occupation omitted].
3.[X]’s parents commenced living together in 1992, married in 1997, but then separated for a few weeks in either 1997 or 1998. On either account of their relationship, it was a volatile one. There is a dispute about whether the final separation took place in 2007, or at some other time, but I’m satisfied that nothing turns on this and I therefore need to make no findings in this regard. The post-separation period was just as volatile as pre-separation. Each parent makes allegations against the other about matters that they either did, or failed to do, during the course of their relationship and afterwards. As it turns out, nothing really hinges on these allegations, so far as the findings that I need to make are concerned. The allegations do reflect, unfortunately, on the emotional immaturity of both of [X]’s parents.
4.From a financial perspective, the parties purchased and sold property during the course of their relationship, just like most people do in their situation. Nothing turns on the specific details of these purchases and sales, and how they were financed. A significant issue raised by [X]’s father, however, is that he made a greater financial contribution as a result of a gift given to him by the paternal grandfather, and an inheritance by the paternal grandmother. The father asserts that this should result in a significantly greater assessment of contribution in his favour, but the mother says that her own contributions need to be taken into account in assessing the weight, if any, to be given to this contribution. Both parties worked during the course of their relationship, though there were periods when the husband was unemployed. The husband purchased and sold motor vehicles. The wife made an investment which was not successful, as it turns out. Despite the volatility of their relationship, the strong impression formed from the totality of their evidence is that certainly up until the time of separation, they worked together for the mutual benefit of each other and their son [X], pooling their resources and income. To the extent that, during the course of these proceedings, they sought to distinguish the quality and quantity of the contribution made by each other in diverse ways, it was undignified, unhelpful to the assessment of contribution process, and again reflected on the emotional immaturity of [X]’s parents.
5.Since separation, [X] has been primarily in his mother’s care. This was, originally, a matter to which his father readily consented. On 8 March 2011 I made orders pending further order that there be equal shared parental responsibility, that [X] lives with his mother, and spends time with his father once each fortnight from 6 pm on Friday to the commencement of school on Monday. As at that date, the father, who had hitherto been seeking an order that [X] live with him, conceded that he should remain living with his mother. Curiously, by the time this matter resumed hearing before me on 6 September, his position had once again changed so that he sought an order at the final hearing that [X] live with him. After having heard all of the evidence, I suspect his change in position had more to do with meeting his own needs, than meeting the needs of [X].
6.The mother has re-partnered with a significantly younger man who is in the final stages of his training as a [occupation omitted]. She is now pregnant to him and expects to give birth to their first child early in the new year.
7.The father’s final proposal before the Court is contained in his counsel’s case outline document dated 5 September 2011. I reproduce his proposal in the first schedule to these reasons. The father had a main proposal, and two alternatives. The first proposal was that [X] live with him and spend time with his mother from after school on Thursday to the beginning of school on Monday on alternate weekends, and from the end of school on Thursday to the beginning of school on Friday in alternate weeks, together with half the school holidays. The first alternative proposal was that [X] live with his mother, and spend time with him (if he is working in Sydney and the mother continues to live in Sydney) from the end of school Thursday to the beginning of school Monday on alternate weekends and from after school on Thursday to the beginning of school on Friday in alternate weeks, plus half of school holidays. The father’s second alternative proposal was that if he and the mother lived in the same area, that there be an equal time arrangement on a week about basis, plus half the school holidays.
8.The father’s proposal for property settlement was that contribution be assessed as to 70 per cent in his favour with a five per cent adjustment in favour of the parent with whom [X] would live.
9.The mother’s proposal in relation to parenting is contained in her amended response filed 26 August 2011. She proposed that [X] live with her and spend time with his father each alternate weekend from after school Friday until the commencement of school on Monday and from after school each alternate Tuesday until 6:30 pm, together with half the school holidays.
10.The mother’s proposal in relation to property settlement was that contribution be assessed as being equal, and that there be a 10 per cent adjustment under section 75(2) in her favour. I reproduce the mother’s proposal in relation to parenting in the second schedule to these reasons.
11.Evidence in this case was given by the father, the mother, the paternal uncle Mr K and the mother’s partner, Mr H. Each was cross-examined. A family report was prepared by a family consultant, Ms K, and she too was cross-examined. After setting out the applicable law, I intend to deal with Ms K’s evidence first, then proceed to deal with the parenting part of the case, and then finally deal with the alteration of property settlement issues.
The Applicable Law
Property
12.The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
13.The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
14.Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the husband in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In MH & MZ (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
15.Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
16.In relation to add-backs, the applicable law can be found in decisions such as the Full Court's decision in AJO v GRO (2005) FLC 93-218:
30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-816 the Full Court said at 85,262:
“11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.”
31. As the Full Court said in Browne and Green (1999) FLC 92-873 at 86,360:
“44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.”
Parenting
17.In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
18.The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
19.At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
20.If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
21.Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
22.In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
23.A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Parenting issue
The Family Report
24.Ms K’s family report is dated 28 February 2011. It follows a familiar format. She met with the mother, the father, [X], and Mr H. She did not meet with the paternal uncle or paternal grandfather in circumstances where, I am satisfied, they were invited to attend if the father wanted them to do so.
25.By way of background, Ms K correctly records that since separation, [X] has lived with his mother and spent time with his father, though there were periods when both occupied the former matrimonial home and hence were involved in shared care. After the father left the former matrimonial home for the last time in October 2009, he commenced spending regular time with [X]. Based on her observations of the father, she concluded that he was continuing to struggle with the emotional aspects related to the end of the relationship. I agree that this conclusion is soundly based on all the evidence that was before me. Ms K makes the observation, certainly in an indirect sense if not directly, that [X]’s parents have significant difficulty in communicating with each other. Indeed, based on all the evidence before me there is no doubt in my mind that [X]’s parents regrettably cannot communicate with each other, have no trust in each other, and regrettably again the prognosis is not good for them in this regard.
26.Despite the issues to which I have referred in the previous paragraph, Ms K’s observations of [X] suggest he is quite a resilient little boy. He was observed to present as a confident, articulate little boy who moves easily between his parents without any tension or awareness of the tensions which exist between them. Ms K states that he appears, at this stage, not to have been adversely affected by the parental difficulties. [X] described each of his parents in positive terms, and in Ms K’s observations of his interactions with the parents and Mr H, he behaved in a similar fashion.
27.Ms K’s evaluation commences from paragraph 30. She was of the opinion that [X] is securely attached to each of his parents and is able to move between them without experiencing any significant tension, at this stage. Ms K clearly was concerned about the future however, urging the parents to develop more appropriate communication strategies and a greater degree of trust in each other. Based on the evidence I have seen, however, I am not sure there is much hope about the parents’ capacity to do this.
28.Ms K was firmly of the view that [X] was settled in his current arrangements at home and at school, and that there was no reason to change the substantive parenting arrangements. There was, however, scope for the father to become even more involved in his son’s life, especially if he could change his current working arrangements in order to accommodate earlier collection of [X] from school, and later return of him to school. There was also potential to become more involved in [X]’s curricular, and extra-curricular activities.
29.Ms K acknowledged the father’s concerns about the role that Mr H would play in parenting [X]. She records that whilst this concern is understandable, Mr H had indicated that his role in [X]’s life was not one of a parent, but more a supportive one.
30.At paragraph 34 of her report, Ms K deals with the issue of allegations made against the paternal grandfather for inappropriate sexual conduct, including possible sexual assault. This became quite a significant issue at the hearing. I will deal with this in the context of exploring the issue of protecting [X] from harm. In her report, Ms K sounded a note of caution about the paternal grandfather’s involvement in [X]’s care, until more information became available about the allegations against him. There are likewise some concerns about the paternal uncle, which I will, again, deal with below.
31.Despite Ms K’s concerns about the parents she thought that they were still capable of sustaining equal shared parental responsibility. Given that this is what each parent proposes, I have no difficulty with this and will make orders in those terms.
32.Ultimately, Ms K recommends that there be equal shared parental responsibility, that [X] lives with his mother, that [X] spends time with his father each fortnight from Friday until Monday provided the father is able to collect him from school and return him to school. As an alternative, and on the assumption that the father was not able to collect and return [X] to school, [X] could spend time with his father from Friday until 6 pm Sunday together with some midweek contact, though not overnight. She recommends that school holidays be shared provided the father is able to supervise [X] and that, unless the Court could be reassured in this regard, [X] not be left in the care of either the paternal grandfather or paternal uncle. She strongly recommended that the parents engage with an appropriate agency for a parenting orders program in order to address their communication issues, and better understand [X]’s needs.
33.Ms K was cross-examined, firstly on 7 March, and then on 7 September 2011. Nothing was put to her which she accepted that would cause me to reduce the weight that I would otherwise place on her report and its recommendations. Moreover, it was specifically put to her that now that the mother was pregnant, Mr H’s role and potential involvement in [X]’s life would change. Ms K was firmly of the view, albeit as a general proposition, that her recommendations would not be changed by the mere fact of the arrival of a baby, provided that this does not coincide with other dramatic changes in [X]’s life at about the same time.
34.I accept Ms K’s evidence and her recommendations with the exception of one matter that I will discuss below.
Meaningful relationship
35.The evidence before me indicates that [X] has a good and meaningful relationship with both of his parents. I am satisfied that this will subsist irrespective of whether I accept the mother’s proposal, or the father’s proposal. For all practical purposes, meaningful relationship is not an issue in this case.
Protecting [X] from the risk of harm.
36.The mother’s case is that [X] is at risk of harm if the father leaves him alone in the care of the paternal grandfather and paternal uncle. Indeed, she seeks a specific order that during the times that [X] spends with his father, the father is to be principal carer of [X] and is not to leave him in the care of either the paternal grandfather or the paternal uncle. It is significant to note that this was a restraint proposed by the mother in her original response filed on 8 April 2010. In other words, the father had more than ample opportunity to confront these concerns of the mother, and the allegations made by her. Indeed, in the father’s case an affidavit was filed by both his brother and father. The father’s case is there is no basis whatsoever for any concern. I intend to make orders in terms of order 11 of the amended response, and thus impose a restriction in the terms proposed by the mother. I find that there are sufficient concerns about both the paternal grandfather and the paternal uncle to justify this order. I record my disappointment at the cavalier fashion in which this part of the father’s case was conducted. In relation to the paternal grandfather, even though he filed an affidavit, he was not available to give evidence. His father was, apparently, on a cruise. Given the timeframe with which this litigation was conducted, I find it extraordinary, in the face of the serious allegations made about the paternal grandfather, that the father could not arrange for him to be present. Indeed, there was not even an application for the paternal grandfather to give evidence by telephone. That the father did not call the paternal grandfather in his case, in order to address these concerns, is noticeable. The Court is entitled to draw, and does in fact draw the inference that even if the paternal grandfather had been called, his evidence would not have been of assistance in the father’s case. The evidence before the Court does confirm that he was charged and convicted of indecent assault in November 1996, at a time which coincides with the allegations made against him. In the circumstances of this case, there must be some concern about the paternal grandfather’s suitability to be in some way involved in [X]’s care, and I have real concerns in my mind about the risk of harm that he presents. I acknowledge that the allegations made against the paternal grandfather are based on hearsay assertions. I further acknowledge that the evidence of a criminal conviction against him does not itself prove the present allegations made against him. But even evidence of otherwise low probative value becomes cogent when there is no rebuttal from the source where it would be most expected.
37.In relation to the paternal uncle, his oral evidence raises serious questions in the Court’s mind about his health and his suitability to assist in [X]’s care. It is alarming that the paternal uncle’s serious health issues were not disclosed in his affidavit sworn 15 February 2011. It is difficult to believe that the father, who lives with the paternal uncle, was not aware of the substance of the evidence that his brother would give about his health, when cross-examined. As it is, I am not able to make a finding to the effect that the applicant father was well aware of the nature and extent of his brother’s health issues, because this was not put to him in cross-examination. Nonetheless, it does lead to some concerns in the Court’s mind as to whether the father has disclosed all relevant information about his parenting proposals to the Court. Certainly, so far as the paternal uncle is concerned, the health issues that he himself referred to in cross-examination raise issues about his capacity to be involved in any way in [X]’s care. In view of the above, it is necessary to make the order sought by the mother in this regard.
Views of the child
38.[X] is six years old. He is caught up in the intense conflict his parents are experiencing, both in relation to their separation, and in relation to him. Any views [X] may have expressed in any context are not reliable and I give no weight to them.
Nature of child’s relationship
39.As I indicated above in the context of meaningful relationship, [X]’s good relationships with his parents are evident. This is not a consideration that is determinative on the facts of this case.
Willingness and ability to facilitate a relationship between [X] and his parents
40.An important part of the father’s case was that the mother was not facilitating and encouraging [X]’s relationship with him. I do not accept this. It is inconsistent with the fact of [X]’s good relationship with the father. If it were the case that the mother was not encouraging [X]’s relationship, she has clearly failed. In any event, I accept her evidence that she does want to encourage this relationship and sees a vitally important role for the father in [X]’s life. She was quite persuasive in her evidence in this regard. As for the many examples advanced on behalf of the father to demonstrate the mother’s lack of willingness, I think these are more appropriately classified as good examples of the singular inability of the mother and father to communicate with each other, a fact plainly admitted by both of them. I reject the father’s assertion that the mother was seeking to control his relationship with [X] by, for example, insisting the father’s time be structured around [X]’s extra-curricular activities. This evidence certainly demonstrates the mother’s poor attitude about parenting in that she sought to prioritise [X]’s extra-curricular activities over his time with the father. I do not accept, however, that this was an attempt to exclude the father from [X]’s life. Certainly, I trust for the parents, that my reasons will adequately record for them my belief that [X]’s extra-curricular activities should not be prioritised over the father’s time with [X] but, by the same token, the father must understand the importance of these activities to [X] and see them as opportunities for him to become constructively involved in these activities.
Likely effect of change
41.Pursuant to the orders made on 8 March 2011, [X] spends time with his father each fortnight from Friday 6 pm to the commencement of school on Monday. The mother’s proposal involves adding on top of this each alternate Tuesday afternoon, and half the school holidays and special days. The father’s main proposal, for [X] to live with him, certainly involves significantly greater change for [X] than the mother’s proposal, or even the father’s alternative proposals. The difficulty for the father, shortly stated, is that no case is made for change. By that I mean it is not in [X]’s best interest for there to be a change. There is no benefit to him inherent by the changes proposed by the father. [X] is a surprisingly well adjusted child despite his parents’ chronic inability to communicate. The family report strongly contra-indicates changes to [X]’s environment. The Court is not applying any presumption of status quo here, it is simply saying that in the absence of evidence demonstrating the benefits of change for [X], and in the absence of evidence suggesting that there are any concerns to his wellbeing where he is, it is not in his best interest to implement the proposals of the father. The Court appreciates that change is an inevitable feature of family life, both before and after separation. Moreover, there are normal changes associated with a child’s developmental progress through life but the sort of change that the father proposes, both in his main and alternative proposals, are simply not warranted. I accept that the evidence indicates that the mother is pregnant and will shortly give birth to another child. If it was part of the father’s case that this presents the prospect of detrimental change to [X], it was a case that had no plausible evidence to sustain it.
Issues of practical difficulty and expense
42.The geographical distance between the homes of each parent has not created any insurmountable issues for these parents and [X]. They have satisfactorily dealt with these issues in the past and I am confident will continue to do so in the future, despite their chronic inability to communicate.
Parental capacity
43.Both parents have the capacity to meet the needs of [X]. To the extent that their cases involved attacks on the others parental capacity, it is inconsistent with the evidence, and is more reflective of their own emotional immaturity, than reality. The only significant impediment to the parental capacity of each parent is their inability to communicate. Each parent must realise that if they do not improve this, there is a risk of harm to [X] in the future, particularly in terms of his relationship with each parent.
Attitudes to [X] and to the responsibilities of parenthood
44.The fact is that both parents have issues here. First and foremost their inability to communicate is chronic. Neither is better than the other in this regard. I find it was irresponsible for the father, as a parent to [X], to seriously advance his brother and father as substitute carers for [X] when he is not available. It demonstrates an inability to separate and prioritise [X]’s interests and needs above that of the father’s other adult family members. The father’s 2009 conviction for dangerous driving (130 kilometres in an 80 kilometre zone) is immature and irresponsible, as was his attempt to minimise the seriousness of this before the Court. The father also demonstrated real lack of insight into both his son’s needs, and his personal relationship with the mother, by thinking that they could agree to things when it was patently obvious to the Court in cross-examination that they could not. As the father was cross-examined about his own proposals to the Court, it became rapidly apparent that he had really not thought this through. Even the most cursory reality testing of the father’s proposals indicated the true level of superficial consideration that he had given to them.
45.The mother is not free from criticism. She did seek to control the terms of [X]’s time with this father, not as part of a campaign to exclude him from [X]’s life, but certainly as illustrative of the poor attitude on her part that seemed to prioritise [X]’s extra-curricular activities over that of his relationship with his father. The mother’s written communication with the father was provocative, insensitive, unnecessary, and lacked any child focus. She would have lost nothing by simply telling the father about some of her own travel arrangements.
46.The net effect of my findings about parental attitudes and irresponsible parenting means that the Court should be sensitive to further changes in [X]’s life, because he is clearly in a vulnerable environment. Orders must be structured in such a way, and with as much precision, as the circumstances allow. In addition, the parents must, to the extent reasonably possible, be excluded from being in each others’ personal presence.
Order least likely to lead to further proceedings
47.Whilst the Court cannot exclude the possibility of future litigation between these parents, it is unlikely that, in the normal course and bearing unforeseen circumstances, the mother’s pregnancy will of itself justify revisiting these orders. The family consultant was able to offer a very general opinion that whilst the birth of a step sibling to [X] is a dramatic change in the mother’s household, it will nonetheless make no difference to him if it does not coincide with other dramatic changes in [X]’s life at the time. I must say, there is certainly no evidence before the Court to suggest that the mother will not be able to cope with either the physical, financial or emotional changes that would occur as a result of the baby’s birth. Indeed, she gave the impression of having carefully considered all of the likely changes, and to have the resources to be able to more than adequately cope with them.
Orders in [X]’s best interests
48.For the reasons that I have set out above, the father’s first proposal is not in [X]’s best interests. Similarly, I do not accept the father’s second alternative proposal for equal time. In the circumstances of this case, it is neither in [X]’s best interest, nor reasonably practicable, particularly given the parents’ chronic communication difficulties which would, in my mind, make them unable to implement an equal time arrangement.
49.
This leads to the consideration of the father’s first alternative proposal, and the mother’s proposal. There is no difficulty with half the school vacation periods but I do not accept the mother’s restriction and
Ms K’s recommendation that the father must personally supervise the child, provided neither the paternal grandfather or paternal uncle care for [X]. The net effect of the mother’s restriction would be that, in all likelihood, the father would only be able to enjoy four weeks of school holiday contact with [X] out of the possible six weeks each year. There is no reason why the father might not be able to arrange other suitable alternative arrangements for [X]’s care during school holidays such as school holiday sports and activities programs. So long as the father is available both before and after these activities there is no reason to believe that they cannot enjoy this special holiday time together.
50.
In his first alternative proposal, the father seeks orders for contact from the end of school on Thursday to the beginning of school on Monday on alternate weekends together with Thursday to the beginning of school on Friday in the alternate week. The mother proposes Friday to Monday, and an afternoon in the alternate week. I am satisfied that
Ms K, during cross-examination, was prepared to consider the introduction of an overnight in the alternate week. Indeed it is hard to see on the evidence why [X] could not sustain an overnight. Accordingly, in the alternate week, [X] should spend time with his father from after school on Tuesday until before school on Wednesday. The remaining difference between the mother and father’s proposal is one night each fortnight. If I had some more optimism about the parents’ ability to communicate and each parents’ ability to prioritise [X]’s needs over their own, I would have been inclined to make the order sought by the father. On the evidence before me, however, I think it is the mother’s proposal for Friday to Monday which is both in [X]’s best interest and reasonably practicable. That is the order that I intend to make.
51.Given that the parties have agreed to equal shared parental responsibility, I must consider equal time. Equal time is not in [X]’s best interest, and is not reasonably practicable. I must also consider substantial and significant time. I am satisfied that the orders that I propose above amount to substantial and significant time, are in [X]’s best interest, and is reasonably practicable.
Property issue
Balance sheet issues
52.The balance sheet that was produced during the course of written submissions is reproduced below:-
| Jarrett | WOC320 of 2010 | 6/09/2011 | |||
| Asset List | |||||
| No. | Assets: | Title | Husband Asserts | Wife Asserts | Agreed? |
| 1 | Property K | J | $ 715,000.00 | $ 715,000.00 | Yes |
| 2 | Property F | H | $ 8,250.00 | $ 8,250.00 | Yes |
| 3 | 2001 [motor vehicle omitted] | H | $ 10,000.00 | $ 10,000.00 | Yes |
| 4 | 2004 [motor vehicle omitted] | H | $ 3,500.00 | $ 3,500.00 | Yes |
| 5 | 2009 [motor vehicle omitted] | H | $ 12,500.00 | $ 12,500.00 | Yes |
| 6 | [N] Shares | H | $ 300.00 | $ 300.00 | Yes |
| 7 | [omitted] savings account | H | $ 3,082.00 | $ 3,082.00 | Yes |
| 8 | [N] Shares | W | $ 300.00 | $ 300.00 | Yes |
| 9 | 1999 [motor vehicle omitted] | W | $ 2,500.00 | $ 2,500.00 | Yes |
| 10 | [omitted] Offset Account | W | $ 1,226.00 | $ 1,226.00 | Yes |
| 11 | [M] Shares | W | $ 6,300.00 | $ 6,300.00 | Yes |
| 13 | Furniture and household effects | W | $ 4,000.00 | $ 500.00 | No |
| 14 | Addback - W's unpaid mortgage | W | $ 20,000.00 | $ - | No |
| 15 | Addback - W's redundancy payment | W | $ 54,977.00 | $ - | No |
| 16 | [omitted] Investment | W | $ 50,000.00 | $ - | No |
| 17 | Addback - sale proceeds of 2 cars and 1 boat | H | $ - | $ 21,000.00 | No |
| 18 | Addback - husband's unpaid mortgage | H | $ - | $ 13,482.00 | No |
| 19 | Addback - husband's sale [omitted] car | H | $ - | $ 8,000.00 | No |
| 20 | Addback - husband's unpaid drawdown 2007 | H | $ - | $ 3,500.00 | No |
| 21 | Addback - husband's gift to father | H | $ - | $ 10,000.00 | No |
| TOTAL ASSETS | $ 891,935.00 | $ 819,440.00 | No | ||
| Liabilities: | |||||
| 22 | [omitted] mortgage variable | J | $ 75,701.00 | $ 75,701.00 | Yes |
| 23 | [omitted] mortgage fixed | J | $ 66,698.00 | $ 66,698.00 | Yes |
| 24 | [I] Personal Loan | H | $ 7,500.00 | $ 7,500.00 | Yes |
| 25 | [omitted] Visa | W | $ 10,981.00 | $ 10,981.00 | Yes |
| 26 | [omitted] Amex | W | $ 300.00 | $ 300.00 | Yes |
| TOTAL LIABILITIES | $ 161,180.00 | $ 161,180.00 | Yes | ||
| Superannuation: | |||||
| 27 | [B] Superannuation | H | $ 46,076.00 | $ 46,076.00 | Yes |
| 28 | [M] Superannuation (rolled into [I]) | H | Yes | ||
| 28 | [I] Super | H | $ 30,507.00 | $ 30,507.00 | Yes |
| 30 | [U] Super | W | $ 9,397.00 | $ 9,397.00 | Yes |
| 31 | [A] Superannuation | W | $ 56,715.00 | $ 56,715.00 | Yes |
| TOTAL SUPER | $ 142,695.00 | $ 142,695.00 |
53.I will only deal with the contentious issues in the balance sheet.
54.Item 13 deals with the wife’s furniture and household effects. The only evidence of value is that asserted by the wife of $500 in that it is evidence against interest. Whilst the husband asserts a value of $4000, there is no evidence in this regard. Item 13 is problematic in another way. Both parties seek specific orders in relation to personal property. What I do not know is whether the value of these contentious items is reflected in item 13. I can only assume it is, otherwise there would be property of the parties not identified on the balance sheet. In the circumstances therefore, I find that the value of all items of personal property in dispute between the parties is $500.
55.Item 14 is an add back of wife’s unpaid mortgage. The husband asserts that this amount should be added back as the wife was in occupation of the former matrimonial home and did not pay the mortgage. The figure of $20,000, however, is unsupported by any cogent, probative evidence. The wife makes a contrary assertion in relation to item 18 of the balance sheet, which I will discuss below. I rule, in relation to item 14, what I will rule in relation to item 18. There is no satisfactory evidence establishing the amounts asserted in each case. In circumstances where both the husband and the wife had periods of occupation of the former matrimonial home where the mortgage was unpaid (except, perhaps, by way of mortgage offset account) I decline to allow this add back.
56.Item 15, the wife’s redundancy payment. The wife asserts the redundancy payment came after separation. The husband asserts that even if that was the case, it was derived from a period of employment before separation. The amount is not in dispute. I decline to allow the add back. The wife’s evidence is set out at paragraph 52 of her affidavit, sworn 1 March 2011. This evidence was not challenged in cross-examination, and accordingly I accept it. The evidence sets out how she spent this money. To the extent that the deposit of the redundancy in an account acted as an offset to reduce the mortgage interest, the husband is deemed to have benefitted from it. To the extent that she spent the money on the expenses deposed to in her affidavit, I consider this to be a reasonable expenditure. I decline to allow the add back.
57.Item 16 is a [omitted] investment. The wife deposes to the circumstances of this failed investment at paragraph 28 of her affidavit 1 March 2011. She says that the decision to invest was, in effect, a joint decision. The husband disputes this. I prefer the wife’s evidence. There is no doubt in my mind that if this had been a successful investment, its value would have been shared between the husband and the wife. There is no evidence whatsoever to support the husband’s contention that it should be added back at its original value of $50,000. I decline to allow this add back. This was simply a failed investment and there is no element of waste or negative conduct attributable to it.
58.17 is an add back for the sale proceeds of two cars and one boat. The evidence of both the husband and wife satisfies me that during the period of their cohabitation, the husband purchased and sold motor vehicles, a boat and trailer. I do not accept the wife’s evidence that these transactions were unilateral in nature, and without consultation with her. There was some focus on post-separation disposals which, in cross-examination, the husband agreed. The difficulty is adding back anything in the absence of evidence as to the value of the items disposed of. Certainly the wife could not establish why the figure of $21,000 should be added back. I decline to allow the add back.
59.Item 18 is a claimed add back for the mortgage payments the husband did not make. For the same reasons as I articulated at item 14 above, I decline to allow this add back.
60.Item 19 is an add back for the sale by the husband of a [omitted] racing car. For the same reasons as articulated at item 17, I decline to allow this add back. There is simply no rhyme or reason for the figure of $8000.
61.Item 20 relates to an unpaid draw down in 2007 by the husband. The evidence about this is unclear but in any event, it is possible that the draw down took place during cohabitation. In the absence of evidence, I do not allow the add back.
62.Item 21 is a gift that the husband made to his father of $10,000. The husband concedes that he gave his father $10,000 to buy a car in November 2010. The wife submits that this should be added back. The husband submits that the payment came from his own funds, well after separation. I certainly do not accept that any transactions that occurred before separation, as between the father and his father, would provide any justification for the payment. Ultimately, however, I do not allow the add back because the husband’s contention that it was a payment made from his savings well after separation is a possible explanation in the circumstances.
63.Items 25 and 26 are [bank omitted] credit card commitments of the wife. The husband does not dispute the quantum but does dispute whether these liabilities should appear in the balance sheet. I decide that they should not. In the circumstances in which I declined to allow add back at item 15 above, it is inequitable to allow debts asserted by the wife of a post-separation character to be included on the balance sheet. I am satisfied that the adjustment at item 15 satisfactorily allows for reasonable post-separation living expenses.
64.In an earlier iteration of the balance sheet, there was reference to a GE Furniture loan that the wife had taken out. The husband opposed its inclusion on the balance sheet. Just to put the matter beyond doubt, I decline to include this liability. It is the wife’s post-separation liability. She does not give evidence of the purchase price of the furniture that was apparently purchased with the loan. It may correspond to the furniture at item 13, but I do not know. It is not just and equitable in the circumstances to include it.
65.It is a regrettable common feature of litigation in this court that add-backs are routinely sought in circumstances where little, if any, consideration has been given as to whether there is evidence to support the claim. The fruitless argument in this case about add-backs consumed a disproportionate amount of court time, both in the hearing of the case and writing of the reasons. It may well be time to make both litigants and their lawyers accountable for this.
66.Having regard to my findings above, the balance sheet in this matter is as follows:-
No. Assets: Title 1 Property K J $ 715,000.00 2 Property F H $ 8,250.00 3 2001 [motor vehicle omitted] H $ 10,000.00 4 2004 [motor vehicle omitted] H $ 3,500.00 5 2009 [motor vehicle omitted] H $ 12,500.00 6 [N] Shares H $ 300.00 7 [bank omitted] savings account H $ 3,082.00 8 [N] Shares W $ 300.00 9 1999 [motor vehicle omitted] W $ 2,500.00 10 [omitted] Offset Account W $ 1,226.00 11 [M] Shares W $ 6,300.00 13 Furniture and household effects W $ 500.00 TOTAL ASSETS $ 763,458.00 Liabilities: [bank omitted] mortgage variable J $ 75,701.00 22 [bank omitted] mortgage fixed J $ 66,698.00 23 [I] Personal Loan H $ 7,500.00 24 TOTAL LIABILITIES $ 149,899.00 NET NON-SUPER ASSETS $ 613,559.00 Superannuation: [B] Superannuation H $ 46,076.00 27 [M] Superannuation (rolled into [I]) H 28 [I] Super H $ 30,507.00 28 [U] Super W $ 9,397.00 30 [A] Superannuation W $ 56,715.00 31 TOTAL SUPER $ 142,695.00 TOTAL COMBINED PROPERTY $ 756,254.00
Assessment of contribution
67.The husband opened his case on the basis of 70 per cent contribution in his favour, and a maximum of five per cent as an adjustment under section 75(2). Having regard to the findings I have made about parenting, it must follow that he concedes a five per cent adjustment in the wife’s favour.
68.The wife opened her case by saying the contribution was equal and that there should be a 10 per cent adjustment under section 75(2) in her favour.
69.The husband’s evidence about contribution is contained in his affidavit of 15 February 2011, with the major assertions at paragraph 10, 11, 14 and 17. There was no serious challenge about this evidence. I accept that the husband’s father provided $40,000 as a gift that was used to purchase the parties’ first property at [omitted]. I place no weight on the wedding gifts that the husband says came from his side of the family. The redundancy payment seems, on the husband’s own evidence, to have been accumulated during the relationship, so I place no weight on it. The most substantial and unchallenged contribution is the inheritance ultimately received in August 2000 of $165,265. This means that the total cash contributions provided by or through the husband total approximately $200,000 at the time of receipt. The weight to be given to this contribution today is of course a matter for separate assessment.
70.In the cross-examination of the husband, it was apparent that the wife was seeking to contend that the husband had wasted some of this money in frivolous and unilateral expenditure on motor vehicles. I neither accept that this expenditure was wasteful, nor that it was unilateral. The evidence does not support this finding. This marriage needs to be understood in the context of the findings that I have made above about poor communication, as well as immaturity, both of which are likely to have pre-dated the separation if human nature is true to form. As for extravagance or waste, it is more likely than not that both the husband and wife lived, at times, beyond their means, at least to a certain extent
71.Notwithstanding the facts about contribution referred to above, mostly unchallenged by the wife in cross-examination, the wife somehow maintained that her contribution should be assessed as equal to that of the husband. At paragraph 56 of her affidavit of 25 August 2011, she makes an assertion not contained in her affidavit of 1 March 2011 about her parents paying for the wedding. Whilst the fact of payment was not disputed by the husband, she was unable to produce any documents to corroborate the quantum. Even if it could be established, I decline to attribute weight to it. Even if it did occur, these matters of parental generosity do not automatically amount to contributions. In any event, I note that I have declined to place any weight on the husband’s assertion as to the wedding gifts received from his side of the family.
72.The wife’s case for equal contribution was pressed on her assertion that she earned more than the husband throughout the period of cohabitation, especially, she asserts, as the husband had several periods of unemployment. I reject this. Firstly, she has not established on the balance of probabilities that she did, in fact, earn more than the husband. The table at paragraph 79 of her affidavit is incomplete, starting as it does in 2004, even though the parties married in 1997. Moreover, the periods of the husband’s unemployment ignores the reality of the lump sum payments he often received when he was made redundant or retrenched. However, the reality of this relationship is that, like many, many others in Australia today, the husband and the wife performed different roles in a relationship in which they worked towards the common good of advancing their relationship and providing for each other and their son, [X]. Apart from the additional financial contributions made by the husband, I assess contribution in all respects as having been equal.
73.The weight to be given to the additional financial contribution of the husband needs to consider a number of matters. Whilst on the one hand it represents a significant proportion of the current pool of assets – indeed about 25 per cent, a significant period of time has elapsed since then, not all the assets into which they were contributed remain intact, and there have been myriad contributions since then. If I were to accept the husband’s submission that his contribution should be assessed at 70 per cent and wife’s 30 per cent, it increases the cash value of his contribution of $200,000 into about $312,000, the approximate differential between the husband and the wife’s respective entitlements. This is not, in my opinion, just and equitable as it over values his contributions over the myriad subsequent contributions of the husband and wife. Even at 65 per cent, the differential is about $234,000 which also does not reflect the myriad contributions made. If I assess contribution at 60 per cent, it reduces the differential to $156,000 which I think more accurately reflects the appropriate weight to be given to this contribution, as well as reflecting the subsequent contributions made. Hence, I assess contribution at 60:40 in the husband’s favour.
74.In relation to section 75(2) considerations, the wife proposes 10 per cent, the husband 5 per cent. The wife earns over $600 per week more than the husband, and her weekly expenditure is $200 per week less than his. True it is that she is pregnant, but her evidence was that she would take a relatively short maternity leave period before returning to work. She will, of course, have [X] with her for most of the time. The husband pays child support. The extent to which the wife’s partner contributes to the household is unknown, but the Court was left with a clear impression that her partner’s role is far greater than the wife has asserted in the past, and will probably become greater in future after their child is born. Both the husband and the wife have debts arising out of these proceedings. To the extent that these relate to legal fees, I do not consider them to warrant any special consideration. In the circumstances of this case, a five per cent adjustment in the wife’s favour is appropriate.
A just and equitable order
75.Having regard to my assessment of contribution at 60:40 in the husband’s favour, and 5 per cent for section 75(2) in the wife’s favour, this produces a final result of 55:45 in favour of the husband. I consider that the order is as just and equitable as the circumstances permit. As the net pool of assets is $756,254, the respective entitlements of the parties becomes:
i)H: $415,940 (55%)
ii)W: $340,314 (45%)
76.The husbands existing assets and liabilities include:
Property F
$8,250
[motor vehicle omitted]
$10,000
[motor vehicle omitted]
$3,500
[motor vehicle omitted]
$12,500
[N] shares
$300
[bank omitted] shares
$3,082
[I] loan
($7,500)
[B] Super
$45,076
[I] Super
$30,507
$106,716
Payment due to him
$309,224
$415,940
77.The wife’s entitlement, assuming she retains the home, would be:
Property K
$715,000
[N] shares
$300
[motor vehicle omitted]
$2,500
[bank omitted] account
$1,226
[M] shares
$6,300
Furniture
$500
[bank omitted] mortgage
($75,701)
[bank omitted] mortgage
($66,698)
[U] super
$9,397
[A] super
$56,715
$649,539
Less payment to the husband
$309,224
$340,315
Orders
78.The husband seeks orders for the sale of the former matrimonial home, but the wife seeks to retain the same. There is no evidence about this issue, so I intend to give the wife the opportunity to buy the husband out, but if she cannot do so within a reasonable time, the home will need to be sold. The wife will be responsible for outgoings on the former matrimonial home including the mortgage.
79.The orders in relation to motor vehicles seem unproblematic and uncontentious so I will make the same.
80.Both parties seek conflicting orders in relation to items of personal property. There is no cross-examination about this. The affidavit evidence was unhelpful in determining the issue. As I indicated earlier in my reasons the only finding I can make about the value of these contentious items of personal property is that they are valued at $500. It would be ludicrous to order this property to be sold, or even divided in specie. The latter could be highly problematic for the parties to this litigation given their trust and communication issues. The only just and equitable outcome I can reach is to leave these items with the wife but allow the husband to receive 55% of the value. My orders reflect this.
81.Each of the husband and wife propose that they retain their respective superannuation entitlements in specie, so this will need to be factored into the adjustment.
82.I ignore any orders in relation to items of property not the subject of evidence, e.g. frequent flyer points.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 21st October 2011
Schedule
Orders sought by the father in relation to parenting
1. That the Mother and the Father have equal shared parental responsibility for the child [X] (born [in] 2005), including but not limited to the following:
1.1.schooling and place of education;
1.2.medical treatment and therapy;
1.3.religion;
1.4.sport;
1.5.travel, including the issuing of passports.
2. In the first instance:
2.1.That the child live with the Father.
2.2.That the child spend time with the Mother as follows:
2.2.1.From the end of school on Thursday to the beginning of school on Monday, on alternate weekends, provided that the Mother deliver the child to the school for the commencement of the school day, and that in the event the Mother is not able to deliver the child to school, then from after school on Thursday until 6pm on Sunday evening, and the Mother shall return the child to Father at his place of residence.
2.2.2.From the end of school on Thursday to the beginning of school on Friday in each alternate week and that the Mother deliver the child to the school for the commencement of the school day and that in the event the Mother is not able to deliver the child to school, then from after school on Thursday until 7pm that evening and the Mother shall return the child to the Father at his place of residence.
2.2.3.For half of all school holiday periods, at times as agreed between the parties, and failing agreement being the first half in even-numbered years and the second half in odd-numbered years, subject to the following Orders.
2.2.4.At such other times as agreed between the parties
2.3.That the Mother communicate with the child as follows:
2.3.1.by telephone at any reasonable time;
2.3.2.by videoconference at any reasonable time;
2.3.3.by e-mail, text message or other electronic means that any reasonable time; and
2.3.4.at such other times as agreed between the parties.
2.4.That in the event that Father's Day does not occur during the Father's time, from 9 AM to 7:30 PM on Father's Day, and that the Father will collect and return the child from the Mother's home.
2.5.That in the event that Mother's Day occurs during the Father's time, then the Father's time is suspended from 9 AM to 7:30 PM on Mother's Day, and that the Mother is to collect the child from the Father and return the child to the Father on such an occasion.
2.6.That the child is to be with the father at Christmas, from 6:30 PM on Christmas Eve to 1 PM on Christmas Day in oddnumbered years, and from 1 PM on Christmas Day to 1 PM on Boxing Day in evennumbered years, and that the party who is to spend time with the child is to collect the child from the other party at the commencement of their time.
3. In the alternative:
3.1.That the child live with the Mother.
3.2.That the child spend time with the Father as follows:
3.2.1.While the Father is working in Sydney and the Mother is living in Sydney:
3.2.1.1.From the end of school on Thursday to the beginning of school on Monday, on alternate weekends, and that in the event that a public holiday or pupil free day falls on the Thursday or Monday, the Father's time is to commence at the end of school on Wednesday and conclude no later than the beginning of school on the next school day.
3.2.1.2.From the end of school on Wednesday to the beginning of school on Friday in each alternate week, and that in the event that a public holiday or pupil free day falls on the Wednesday, Thursday or Friday, the Father's time is to commence at the end of school on Tuesday and conclude at 6 PM on Friday as applicable.
3.2.2.For half of all mid-term school holiday periods, at times as agreed between the parties, and failing agreement being the first half in even-numbered years and the second half in odd-numbered years.
3.2.3.Prior the child's 8th birthday, for a total of half the Christmas school holiday period, in blocks of alternating one-week periods, unless otherwise agreed between the parties, so that the Father has the first week in even-numbered years (and alternating each week thereafter), and the second week in odd-numbered years (and alternating each week thereafter).
3.2.4.Following the child's 8th birthday, for half of the Christmas school holiday period, at times as agreed between the parties, and failing agreement being the first half in evennumbered years and the second half in odd-numbered years.
3.2.5.That in the event that Father's Day does not occur during the Father's time, from 9 AM to 7:30 PM on Father's Day, and that the Father will collect and return the child from the Mother's home.
3.2.6.That in the event that Mother's Day occurs during the Father's time, then the Father's time is suspended from 9 AM on Mother's Day, and that the Mother is to collect the child from the Father on such an occasion.
3.2.7.At Christmas, from 6:30 PM on Christmas Eve to 1 PM on Christmas Day in oddnumbered years, and from 1 PM on Christmas Day to 1 PM on Boxing Day in evennumbered years, and that the party who is to spend time with the child is to collect the child from the other party at the commencement of their time.
3.2.8.At such other times as agreed between the parties.
3.3.That the Father communicate with the child as follows:
3.3.1.by telephone at any reasonable time;
3.3.2.by videoconference at any reasonable time;
3.3.3.by e-mail, text message or other electronic means that any reasonable time; and
3.3.4.at such other times as agreed between the parties.
4. In the second alternative:
4.1.That in the event the Father and the Mother lives in the same area (within 30 minutes’ drive of each other) the child is to live with each party on a week about basis with changeover to take place at the end of school on Friday.
4.2.That the child will live with the Father for half of all mid-term school holiday periods, at times as agreed between the parties, and failing agreement being the first half in even-numbered years and the second half in odd-numbered years.
4.3.Prior the child's 8th birthday, with the Father for a total of half the Christmas school holiday period, in blocks of alternating one-week periods, unless otherwise agreed between the parties, so that the Father has the first week in even-numbered years (and alternating each week thereafter), and the second week in odd-numbered years (and alternating each week thereafter).
4.4.Following the child's 8th birthday, with the Father for half of the Christmas school holiday period, at times as agreed between the parties, and failing agreement being the first half in evennumbered years and the second half in odd-numbered years.
4.5.That in the event that Father's Day does not occur during the Father's time, from 9 AM to 7:30 PM on Father's Day, and that the Father will collect and return the child from the Mother's home.
4.6.That in the event that Mother's Day occurs during the Father's time, then the Father's time is suspended from 9 AM on Mother's Day, and that the Mother is to collect the child from the Father on such an occasion.
4.7.At Christmas, with the Father from 6:30 PM on Christmas Eve to 1 PM on Christmas Day in oddnumbered years, and from 1 PM on Christmas Day to 1 PM on Boxing Day in evennumbered years, and that the party who is to spend time with the child is to collect the child from the other party at the commencement of their time.
4.7.1.At such other times as agreed between the parties.
4.8.That each party may communicate with the child as follows:
4.8.1.by telephone at any reasonable time;
4.8.2.by videoconference at any reasonable time;
4.8.3.by e-mail, text message or other electronic means that any reasonable time; and
4.8.4.at such other times as agreed between the parties.
5. That for the purposes of these Orders, the following shall apply:
5.1.School terms and school holidays are determined having regard to the school the child attends.
5.2.The Mother is to attend changeover personally, but in the event she is unable to, she may appoint a representative to do so, but that the Father is required to consent in writing to that representative being appointed and the Father will not unreasonably withhold his consent.
6. That Father is to attend changeover personally, but in the event he is unable to, he may appoint a representative to do so, but that the Mother is required to consent in writing to that representative being appointed and the Mother will not unreasonably withhold her consent.
7. That each party is permitted to attend any events involving the child, including but not limited to school, school events, sporting events, theatre, parties and so on.
8. That in the event that either party travels interstate or internationally without the child, the other party is to have first option to care for the child during the time the travelling party is away.
9. That each party is restrained from travelling interstate or internationally with the child without the written consent of the other party, such consent not to be unreasonably withheld, and that in the event such consent is provided the travelling party will provide the other party with the following details:
9.1.Full itinerary of the travel,
9.2.Contact telephone numbers for the travelling party while travelling and of anywhere the child may be staying, and
9.3.Details of all other persons travelling with the child or who may spend time with the child during any part of the travel.
10. That the child's passport is to remain with the Father at all times, except for when the passport is in use by the child when travelling with the Mother on travel which must not occur without the written consent of the Father.
11. That each party forthwith provide the other with all contact details including but not limited to telephone numbers, e-mail addresses and residential address, and that each party will notify the other of any change to any of these details within 48 hours of such change.
Orders sought by mother in relation to parenting
1.The parties have equal shared parental responsibility for the child [X] born [in] 2005.
2.The child live with the mother.
3.The father spend time with the child:
3.1Each alternative weekend from after school Friday until commencement of school the following Monday morning provided that the father deliver the child to the school for the commencement of the school day;
3.2In the alternative, in the event that the father is not able to deliver [X] to school, from after school Friday until 6pm Sunday evening and for the purposes of facilitating the order the father shall return the child to the mother at her place of residence;
3.3From after school each alternate Tuesday until 6.30pm during the week prior to the father spending time with the child pursuant to orders 3.1 or 3.2 herein; (The father shall return the child to the mother at her place of residence)
3.4One half of each of the short school vacation periods provided that the father is available to supervise the child;
3.5For the purpose of facilitating the order pursuant to order 3.4 herein, the father shall have the first week of the school vacation period in odd numbered years;
3.6For the Christmas school holiday period for the year 2011/2012, alternate weeks commencing on the first day of the Christmas school holiday period provided that the father is available to supervise the child;
3.7For the Christmas school holiday period for the year 2012/2013, alternate weeks commencing on the second week of the Christmas school holiday period provided that the father is available to supervise the child;
3.8For the Christmas school holiday period commencing for the year 2013/2104 and in odd numbered years thereafter, for one half of the Christmas school holiday period.
3.9For the years commencing 2013 and following, the time spent with the child by the parent with whom the child shall spend time on Christmas Day, will be suspended on Boxing Day from 9am until 7.30pm on that day and for the purpose of facilitating this Order the parent who shall spend time with the child on Boxing Day will collect and return the child to the other parent’s home.
3.10In the event that Father’s Day does not occur during the father’s time pursuant to these orders, from 9am until 7.30pm on that day and for the purpose of facilitating the order the father shall collect the child from the mother’s place of residence and return the child to her at the end of such time; and
3.11At such other times as the parties may agree.
4.In the event that Mother’s day occurs during the time the child spends with the father pursuant to these orders, such time shall be suspended between the hours of 9am and 7.30pm and for the purpose of facilitating such order the mother shall collect the child from the father’s place of residence and return the child to him at the end of such time.
5.That each parent has reasonable telephone communication with the child when the child is not with that parent.
6.That each parent do all things necessary to ensure that each is provided with a copy of all school reports and material for the school which the child attends, by the school.
7.Each parent shall as soon as practicable inform the other in the event that the child suffers any serious accident or illness which requires the child to seek medical or hospital assistance.
8.Neither parent shall denigrate the other in the presence or hearing of the child or permit any third party to do so. (or their family/partner)
9.Each parent shall keep the other informed at all times of their residential address and telephone contact number.
10.During the time the child spends time with the father pursuant to Order 3.1 herein, the father shall take the child to swimming lessons on the Friday after school from 5.00 to 5.30 at [omitted]. The father shall also take the child to weekend sport such as [omitted] in winter and [omitted] in summer.
11.During the times the child shall spend with the father, the father shall be the principle carer of the child and the father shall not leave the child in the care of either the paternal father Mr J or brother Mr K.
12.In the event that the father changes his place of residence to reside closer to the Property K area, the parties shall attend mediation for the purposes of increasing the time the father shall spend with the child in the event that they are not able to reach an agreement.
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