JASENTU & SUWANDARATNE
[2017] FCCA 2515
•18 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JASENTU & SUWANDARATNE | [2017] FCCA 2515 |
| Catchwords: FAMILY LAW – Property – Contributions – discussion of s.79(2) of the Family Law Act 1975 – is it just and equitable to adjust property interests of the parties – discussion of s.75(2) factors. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Stanford v Stanford [2012] HCA 52 In the Marriage of Hickey [2003]FamCA 395 Pierce & Pierce [1998] FamCA 74 Wallis & Manning [2017] Fam CAFC 14 |
| Applicant: | MS JASENTU |
| Respondent: | MR SUWANDARATNE |
| File Number: | PAC 3048 of 2015 |
| Judgment of: | Judge Williams |
| Hearing dates: | 24 July – 27 July 2017 |
| Date of Last Submission: | 27 July 2017 |
| Delivered at: | Melbourne/ Parramatta |
| Delivered on: | 18 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen of Counsel |
| Solicitors for the Applicant: | Coleman Greig Lawyers |
| Counsel for the Respondent: | Mr Levy of Counsel |
| Solicitors for the Respondent: | Diamond Conway Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Greenaway of Counsel |
| Solicitor for the Independent Children’s Lawyers | Legal Aid NSW Parramatta Family Law |
ORDERS
That the Mother shall have sole parental responsibility for the child X born (omitted) 2010 (hereinafter "the child") provided that the Mother shall:
(a) notify the Father of any proposed decision relating to major long term issues, including but not limited to:
(i)proposed decisions about which schools the child shall attend;
(ii)proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and
(iii)ensure that such notification is given to the Father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
(b) take into consideration any views expressed by the Father in respect of such proposed decisions.
That the child shall live with the Mother.
That the child shall spend time with the Father as follows:
(a) During NSW School Terms:
(i)From the conclusion of school (or otherwise 3pm) Thursday to the commencement of school (or otherwise 9am) Tuesday, in each alternate weekend.
(b) During NSW School holidays:
(i)For one half of the Terms 1, 2 and 3 of each NSW gazetted school holidays by agreement and failing agreement:
1. in the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and
2. In the second half of the holidays in each year ending in an odd number, from 3pm on the middle Saturday of the holiday period to 3pm the Saturday immediately preceding the resumption of school; and
(ii)For one half of the Term 4 NSW gazetted school holiday by agreement, and failing agreement:
1. In the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and
2. ln each year ending in an odd number from 3pm on the middle Saturday to 3pm the Saturday immediately preceding the resumption of school.
(c) At such other times as may be agreed between the parties.
That the Father's time pursuant to Order 3a is suspended during all NSW school holiday periods, and the Father's time with the child pursuant to Order 3a is to recommence after each NSW school holiday period on the first Thursday following the commencement of school term.
Notwithstanding the arrangements otherwise provided for by these orders, the following arrangements shall prevail on the following occasions:
(a) The child shall spend time with the Father from 3.00pm Christmas Eve to 3.00pm Christmas Day in every year ending in an even number and from 3.00pm Christmas Day to 3.00pm Boxing Day in every year ending in an odd number.
(b) The child shall spend time with the Mother from 3.00pm Christmas Eve to 3.00pm Christmas Day in every year ending in an odd number and from 3.00pm Christmas Day to 3.00pm Boxing Day in every year ending in an even number.
(c) The child shall spend time with the Mother from 9.00am to 6.00pm Mother's Day in every year.
(d) The child shall spend time with the Father from 9.00am to 6.00pm Father's Day in every year.
That for the purposes of changeover, this shall be effected with the child being collected by the Father at the commencement of the child's time with him from school and with the child being delivered to school at the conclusion of the father's time, and in the event that changeover does not coincide with the commencement or conclusion of school, changeover shall occur with the child being collected by the Father from McDonald's (omitted) at the commencement of time and with the Mother collecting the child from McDonald's (omitted) at the conclusion of the Father's time with the child.
That the parent with whom the child is not ordinarily living or spending time shall have telephone communication with the child between 5.00pm and 5.30pm each Tuesday and Thursday, with such communication to be initiated by the parent with whom the child is not living or spending time by contacting the parent with whom the child is living or spending time on that parent's contact telephone number.
For the purposes of Order 7 above, the parent with whom the child is living or spending time shall ensure that the child is available to receive the other parent's call, that their contact telephone is switched on and in a reception area, that the child is provided with a quiet place for such phone call to take place and that the phone call is not placed on loudspeaker.
That within 14 days of these orders and within 14 days of the child's subsequent enrolment at any school the Mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Father copies of the child's school reports and merit cards, any written material pertaining to the child's academic and extra-curricular activities.
That the Mother shall furnish to the Father within seven days of receipt of same copies of all order forms for school photographs of each child.
That both parties shall be at liberty to attend at the child's school functions and extra-curricular activities, the type of which parents are normally invited to attend.
That for the purposes of communicating information as between them the Mother and the Father shall:
(a) communicate by telephone matters of an urgent nature and otherwise;
(b) by sending the other a text message.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
That neither party shall denigrate the other party or members of the other party's family or discuss any aspect of these proceedings to and with the child, or in the presence or hearing of the child and shall use their best endeavours to prevent any third person from doing so.
That in the event that the child becomes ill or injured whilst in the care of either party, that party shall forthwith notify the other party and the party with care of the child at the time shall do all things necessary to ensure that the other party is able to speak to the child's treatment team and discuss the child's care.
The parties shall keep each other informed of:
(a) any serious medical problems or illnesses suffered by the child while in the other's care;
(b) any medication that has been prescribed for the child;
(c) any other matter relevant to the child/ welfare.
That should a medical emergency arise in relation to the child whilst the child is in the care of one party, then that party shall notify the other as soon as practicable of the time and nature of such medical emergency, the name and address of any treating practitioners and/or hospital and location of the child.
That neither parent shall cause the child to be enrolled in any extra-curricular or sporting activities during the time the child spends time with other parent, without the other parent’s consent, in writing.
That each party be permitted to travel overseas with the child during those times that they are scheduled to spend with the child pursuant to these Orders upon the following occurring:
(a) The travelling parent will provide the other parent with written notice of their intention to travel as soon as practicable and not less than 28 days prior to travel taking place;
(b) The travelling parent will provide to the other parent copies of return airline tickets, an itinerary and addresses and telephone numbers to allow the other parent to contact the child whilst travelling.
In relation to the child’s passport the following shall apply:
(a) The Wife will hold the child’s passport at all times subject to this Order;
(b) The Wife shall release the child’s passport to the Husband upon written request to do so to enable the Husband to comply with this Order and otherwise arrange for travel to take place;
(c) The Husband shall return the passport to the Wife at the first changeover for the child after his return from overseas.
That within forty-two (42) days of the date of these Orders, the parties do all acts and things including signing all such documents as may be necessary to give effect to the following simultaneously:
(a) Payment by the Husband to the Wife in the- sum of $449, 517 directed to Coleman Greig Lawyers;
(b) The Wife to transfer to the Husband all of her right, title and interest in the property known as and located at Property A in the State of New South Wales, being the whole of the land contained within Folio Identifier (omitted) ("the Property A property") at the Husband's cost; and
(c) The Husband to cause a discharge of the mortgage secured against the Property A property and shall indemnify and keep the Wife indemnified in relation to the same
In the event the Husband fails, neglects or refuses to comply with Order 21 hereof, then forthwith upon the expiration of time for compliance pursuant to Order 21 the following shall apply:
(a) The parties shall do all acts and things including signing all documents necessary to place on the market for sale by private treaty the Property A property as follows:
(i)The parties shall instruct a solicitor as agreed upon by them to have the conduct of the sale or, in the absence of agreement reached within seven (7) days of the date of non-compliance pursuant to Order 21, the parties shall jointly approach the President of the Law Society of New South Wales .or his/her nominee for a solicitor to be appointed;
(ii)The parties shall agree upon an agent to market the property or, in the absence of agreement reached within seven (7) days of the date of non-compliance pursuant to Order 21 the parties shall jointly approach the President of the Real Estate Institute of NSW or his/her nominee for an agent to be appointed; and
(iii)The parties shall agree on a sale price for the property, or, in the absence of agreement reached within seven (7) days of the date of non-compliance pursuant to Order 21J the sale price is to be $2,300,000.00.
(b) That in the event that the Property A property does not sell within three (3) months of being placed on the market, the parties shall do all things and sign all documents necessary to list the Property A property for sale by public auction, with such auction to be held within six (6) weeks of the expiration of the three month period referred t6 in this Order, and the parties agree that the reserve price will be as agreed between them, or in default of agreement, $2,300,000.00.
(c) The Husband and the Wife shall cooperate in every way with the agent including (without limiting the generality of the foregoing):
(i)Making the key available to the agent;
(ii)Allowing inspection of the Property A property at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring the Property A·property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v)Signing all documents requested by the agent in relation to the listing for sale of the Property A property.
On settlement of the sale of the Property A property, the proceeds of sale be paid in the following manner and priority:
(a) The costs of the sale charged by the lawyer and real estate agent appointed pursuant to orders 22(a)(i) and 22(a)(ii) above, including but not limited to fees, disbursements and commission;
(b) Any amounts required by way of adjustment to payments of municipal and water rates with respect to the Property A property;
(c) The amount required to discharge the mortgage secured over the Property A property;
(d) The sum of $449,517 to the Wife, plus interest payable calculated at the rate prescribed by the Family Law Rules2004 (Cth) from the date payment was due until the date the payment was made on a daily basis; and
(e) The balance payable to the Husband or as he may direct.
That within 14 days of the date of these Orders the Husband shall make available the following items to the Wife for collection from the Property A property and pending her collection he shall maintain such items in good condition:
(a) The (omitted) set purchased for the child. by the maternal grandfather;
(b) From the Wife's office room:
(i)The Wife’s (omitted) Laptop;
(ii)The (omitted) printer;
(iii)The Wife's personal belongings in the cupboard, including, but not limited to, the child's additional toys and the Wife's boxes and tennis and squash racquets;
(c) From the Kitchen:
(i)The (omitted) coffee machine;
(ii)The (omitted) cake mixer and cake mixing bowls;
(iii)The wife’s cutlery (located in the cabinet under the television);
(iv)The Wife’s candles;
(v)Baking trays;
(vi)The wife’s dishes;
(vii)The Wife’s Dinner trays;
(viii)The Wife's silver trays and silverware in the show cabinet;
(ix)The Wife’s dinner set;
(x)The Wife's crystal (omitted) mug; and
(xi)The Wife's books and book case above the television;
(d) From the Sitting Room:
(i)The Antique Chair;
(ii)The Wife's family pictures and pictures from (country omitted);
(e) From the Family Room:
(i)The Wife's antique elephants and ornaments;
(ii)The Wine Trolley;
(iii)The Wife's armchair and small stools from (country omitted); and
(f) From the Garage:
(i)The Golf Set;
(ii)The Wife’s wine bottles;
(g) All other personal. mementos and items of sentimental value, together with any other personal effects.
That except as otherwise provided for in these Orders, the Wife retain, to the exclusion of the Husband, the following:
(a) All funds held in any bank accounts or investments standing in her sole name;
(b) Superannuation entitlements in her name;
(c) Motor vehicle registered in her name;
(d) Household furniture and contents in her possession or control; and
(e) Any other item of personal or financial resource in her possession or control.
That except as otherwise provided for in these Orders the Husband retain, to the exclusion of the Wife, the following:
(a) All funds held in any bank accounts or investments standing in his sole name;
(b) Superannuation entitlements in his name;
(c) Motor vehicle registered in his name;
(d) Household furniture and contents in his possession or control;
(e) Any other item of personal·or financial resource in his possession or control;
That each party indemnify the other in relation to any liabilities standing in their sole name at the time of the making of these Orders.
That in accordance with Section 90MT(1 )(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the Respondent husband from his interest in (omitted) Super, the Applicant Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Act (Superannuation) Regulations 2001, using the base amount of $50,000 and there is a corresponding reduction in the entitlement the Respondent husband would have had but for these Orders.
That having been accorded procedural fairness in relation to the making of these Orders, the Orders bind the Trustee of (omitted) Super.
That these Orders have effect from the operative time and the operative time is 7 working days from the date of service of sealed Orders upon the Trustee.
That the parties are granted leave on seven days' notice to the Court and to the other party to relist the matter for further Orders or Directions to implement these Orders.
That in the event that either party refuses or neglects to execute any deed or instrument necessary to effect all or any of the Orders made herein, the Registrar of the Family Court of Australia be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the names of the said parties and do all acts and things necessary to give validity and operation to the said deed or instrument.
That the Registrar be authorised to execute such necessary instrument upon being satisfied by Affidavit that any neglect or default has occurred.
IT IS NOTED that publication of this judgment under the pseudonym Jasentu & Suwandaratne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PAC 3048 of 2015
| MS JASENTU |
Applicant
And
| MR SUWANDARATNE |
Respondent
REASONS FOR JUDGMENT
PARENTING
Introduction
The applicant is the mother and the respondent is the father of the child X born (omitted) 2010.
The parties are in dispute about the living arrangements for X and division of their property.
Issues in Dispute
The following issues were in dispute in the parenting proceedings:
1.Whether both parents should have equal shared parental responsibility for X or whether the parent whom he permanently lives should have sole parental responsibility;
2.With whom X should live;
3.The time X should spend with the parent with whom he does not live during school term.
The following issues were in dispute in the property proceedings:
1.The weight to be accorded the husband’s initial contributions;
2.The weight to be accorded to the contributions of each party during the relationship;
3.Whether there should be an adjustment to the wife for s.75(2) factors.
Synopsis
In relation to parenting, I have determined it is in the child’s best interests that :
i)The wife have sole parental responsibility;
ii)The child live with his mother and spend a five night block each fortnight with his father;
iii)The child spend special occasions and holiday time with each parent.
In relation to property, I have determined that:
i)The agreed asset pool should be divided between the parties, so that the wife receives 40% and the husband receives 60%;
ii)There be a split of $50,000 of the husband’s superannuation entitlements in favour of the wife.
The reasons for my determination follow.
Background
The wife was born on (omitted) 1973 and is aged 44. The husband was born on (omitted) 1964 and is aged 53. Both parents are originally from (country omitted) and are (occupations omitted). They commenced cohabitation in (omitted) 2008 and married on (omitted) 2008. They separated in June 2015. The period of cohabitation was just over seven years.
In 1992 the husband commenced living in Australia, having previously lived in (country omitted). Prior to his arrival in Australia, two properties in (country omitted) were transferred to the husband, (omitted) and (omitted) (country omitted). Although this issue was referred to in the husband’s trial affidavit, there was no cross examination or submissions about it, and ultimately neither party sought any relevant adjustment arising from ownership of property in (country omitted).
In (omitted) 1998 the husband purchased a property, Property B. The purchase price was $360,000. In order to fund the property, the husband obtained a mortgage from the (omitted) Bank. The mortgage was subsequently refinanced and transferred to the (omitted) Bank.
In (omitted) 1999, the husband increased the mortgage secured against the Property B property by $40,000.
In 2006 the wife commenced living in Australia, having previously also lived in (country omitted).
In 2007 the parties commenced their relationship, which was arranged by their respective families.
In (omitted) 2007, the parties commenced cohabitation prior to marrying in (omitted) 2008. They lived in the Property B property, where they remained until (omitted) 2012, except for period of living in (omitted) New South Wales.
In early 2008 the husband gave the wife gifts of jewellery, as was the marriage custom in (country omitted).
Between (omitted) 2008 and (omitted) 2010, the wife was employed as a (occupation omitted) in various locations, including the (employer omitted) in Sydney and (employer omitted).
Between 2008 and (omitted) 2009, the husband was employed at the (employer omitted) as an (occupation omitted).
Between (omitted) 2009 and (omitted) 2009, the husband was employed at the (employer omitted) and resided in (omitted) prior to obtaining employment at the (employer omitted) in (omitted) 2009, where he remained until (omitted) 2010.
From (omitted) 2010 to (omitted) 2010 the wife was employed at (employer omitted). In (omitted) 2010, she commenced maternity leave prior to the birth of their son on (omitted) 2010.
From (omitted) 2010 to (omitted) 2010 the husband was employed at (employer omitted), and thereafter at (omitted) until (omitted) 2011. The family then returned to the Property B property and lived there until the parties purchased and moved into a property at Property A in (omitted) 2012.
In (omitted) 2011 the wife purchased a (omitted) motor vehicle for $74,500, which was used by both parties.
In (omitted) 2011 the parties entered into a contract to purchase the Property A property and undertook renovations to it between (omitted) 2011 and (omitted) 2012.
In (omitted) 2012, the husband sold the Property B property and the nett proceeds of sale of approximately $145,000 were paid into the mortgage secured against the Property A property.
In 2013 a property situated at (country omitted) was transferred to the wife. Again, neither party cross examined or made submissions about this property, nor sought any adjustment arising from its ownership.
In mid-2013 the wife commenced working as a (occupation omitted) until (omitted) 2014, when she obtained employment at the (employer omitted).
From (omitted) 2014 until (omitted) 2014 the husband was employed at the (employer omitted). He was unemployed between (omitted) 2014 and (omitted) 2014, until he commenced work as a (occupation omitted) in (omitted) New South Wales until he ceased in (omitted) 2015.
In (omitted) 2015 the wife was employed on a full-time basis on a week on, week off arrangement with (employer omitted) until (omitted) 2015.
In (omitted) 2015 the wife was employed four days a fortnight with the (employer omitted) until (omitted) 2016.
In (omitted) 2015 the husband commenced employment on a part-time basis as an (occupation omitted) and as an (occupation omitted). He remains in that employment.
On (omitted) 2015 the wife and X left the Property A property after a series of altercations between the husband and the wife. The wife obtained rental accommodation in (omitted), where she remains to date. The husband and his mother remain residing in the Property A property.
Between 2 July 2015 and 10 September 2015 the husband, spent supervised time with X on a regular basis for three hours on each occasion.
In (omitted) 2015 the wife obtained employment at (employer omitted) as a (occupation omitted), where she remains employed. In addition, since (omitted) 2015, she has been employed by the (employer omitted).
On 25 September 2015 orders were made by Hannam J for X to live with the wife and spend four nights per fortnight, together with holiday time, with the husband.
In January and February 2016 the family attended upon Dr B for the purposes of a family report.
From (omitted) 2016 to date, the wife has also been employed on a part-time basis with (employer omitted) and from (omitted) 2016 has been in the (employer omitted).
The proposals of the parties
The wife’s proposal
Parenting
The orders which the wife seeks from the court are set out in her Case Outline. Her proposal for X to spend time with the husband during school term was modified to reflect the existing arrangements, so that X would spend a four night block with his father in each alternate week.
The wife’s proposals, in summary, are as follows:
1. The wife have sole parental responsibility for X;
2.X live with the wife;
3.X spend time with the husband as follows:
a. during school term, from after school Friday to commencement of school Tuesday, each alternate week;
b. for one half of all school holidays, with the time during the long summer holidays to be on a week about basis until the commencement of 2018/2019 summer holidays;
4.X spend special occasions, with each parent;
5.Each parent be permitted to travel overseas with X, subject to provision of appropriate notice, and itinerary and production of the child’s passport to enable travel.
Property
The orders which the wife seeks in relation to property are also set out in her Case Outline. The exact amount which the wife submitted the husband should pay to her was clarified during final submissions.
The wife proposed the following:
1.That the husband pay to her $610,000;
2.The wife transfer to the husband her interest in the Property A property;
3.The Property A property be sold, in the event the husband defaults in payment to the wife;
4.The return of items located in the Property A property, as set out in paragraph 14 of the proposed orders in the wife’s Case Outline;
5.Each party retain the following:
a. Subject to a $50,000 split from the husband’s superannuation to her, their superannuation entitlements;
b.Motor vehicles registered in their respective names;
c.All funds held in any bank accounts;
d.Subject to the return of items located in the Property A property, each party retain household furniture and contents in their respective possession.
The wife’s proposal equated to a division of the assets so that each party should receive a 50% division of the superannuation and non-superannuation assets. It was her proposal any split of the husband’s superannuation should be limited to $50,000, and that she should receive the balance of her entitlements, by way of a cash payment.
The husband’s proposal
Parenting
The orders which the husband seeks from the court are set out in his Outline of Case document.
The husband’s proposals, in summary, are as follows:
1.The parents have equal shared parental responsibility for X;
2.X live with the husband;
3.X spend time with the wife as follows:
a.during school term, from after school Friday to commencement of school Monday, each alternate week;
b.from 3.30 pm to 7.30 pm on Monday in the alternate week;
c.for one half of all school term holidays, and for two weeks in the summer school holidays;
4.X spend special occasions, with each parent;
5.Each parent is restrained from the overseas travel with X.
He initially sought an order that the child be placed on the airport watchlist, however, during final submissions I was advised by his counsel that no such order was required, and that the husband was content to adopt the wife’s proposals in relation to overseas travel.
Property
The orders which the husband seeks in relation to property are also set out in his Outline of Case. The exact amount which the husband submitted he should pay to the wife was clarified during final submissions.
The husband proposed the following:
1. that the husband pay to the wife $ 273,851;
2. the wife transfer to the husband her interest in the Property A property;
3. the husband discharge the mortgage secured against the Property A property and arrange any further borrowings secured against the property, in his sole name;
4. the return of some items located in the Property A property, as set out in paragraph 13.6 of the proposed orders in his Outline of Case;
5. each party retain the following:
a.motor vehicles registered in their respective names;
b.all funds held in any bank accounts;
c.subject to the return of items located in the Property A property, each party retain household furniture and contents in their respective possession;
6. there be a split of the husband’s superannuation interests, so that an amount of $50,000 be paid into the wife’s superannuation fund.
The husband’s proposal equated to a division of the assets so that the wife should receive 30% of the superannuation and non-superannuation assets, and that the husband should receive 70%.
I was advised by both counsel, during final submissions, that the parties had agreed on a division of the chattels and personal property located in the former matrimonial home, in terms of order 13.6 of the husband proposed orders, in his case outline, and that such an order would be by consent.
Documents relied upon by the parties
Wife
The wife relied upon the following documents:
a)further amended initiating application filed 7 April 2017;
b)affidavit of the wife filed 7 April 2017;
c)financial statement filed 7 April 2017;
d)report of Dr B dated 16 February 2016.
Husband
The husband relied upon the following documents:
a)Response to amended initiating application filed 5 October 2016;
b)Affidavit of husband filed 11 April 2017;
c)The husband’s financial statement filed 11 April 2017;
d)Report of Dr B dated 16 February 2016.
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Counsel for both parties prepared lists of written objections to the evidence of the other party, the majority of which were resolved by consent. It was agreed that those objections not agreed would be argued and determined prior to the hearing. This is what occurred.
Both the husband and the wife gave evidence and were cross examined. I therefore had the benefit of observing both the husband and wife in the witness box for nearly a day each. Dr B was also cross examined.
The wife
The wife gave evidence and was cross examined. She gave evidence in a candid and truthful manner. There was no reason to doubt the reliability of her evidence.
She was able to provide a plausible explanation as to why she had changed her position that the husband posed a risk to X. She was considered and thoughtful and at all times appeared to have her son’s best interests in mind. She readily made concessions where appropriate and demonstrated considerable insight into X’s development and needs.
The husband
The husband was a far less impressive witness than the wife. He attempted to answer questions in a verbose, evasive and repetitive manner, which he perceived would advance his case. He was not particularly responsive to questions put to him in cross examination.
He did not readily make concessions which were contrary to his own interests. He had a myopic view of relevant events and did not demonstrate any degree of insight. Counsel for the Independent Children’s Lawyer commented that the husband was demeaning and patronising towards the wife and her parenting skills, throughout the course of his evidence in the witness box. I agree with that observation.
Where there is a factual dispute between the parties, I prefer the evidence of the wife to that of the husband.
Dr B
Dr B is an experienced professional witness. He interviewed the parties and child in January 2016 for the purposes of a family report and conducted further telephone interviews in February 2016.
He gave evidence in a competent manner. I did not agree with his assessment of the demeanour of the parties.
He opined that the wife:
‘Seemed very assertive and clear in her views. She tended to present things in somewhat black and white and rather vivid terms.
Ms Jasentu tends to present things in quite categorical and dramatic terms and to be quite aggrieved, whereas Mr Suwandaratne seems a more cautious person who expresses himself in more nuanced and understated terms, although this does not preclude him having been more doctrinaire in the privacy of his home.’
His view was that the husband “Presented as rather mild mannered and quietly spoken. He seemed to be a shy, but straightforward person.”
I had the benefit of observing both of the parties in the witness box being cross examined the best part of a day and them both sitting in court for four days.
My observations of the mother are that she was the more mild-mannered and quietly spoken of the two parties, and was ready to make appropriate concessions. She demonstrated a significant degree of insight and did not view matters in a black and white perspective.
The husband, in contrast, was patronising and clearly contemptuous of the wife’s capabilities as a parent and struck me as being convinced his ideas about parenting were unquestionably superior to those of the wife.
PARENTING
I will firstly address the parenting dispute between the parties.
The Applicable Law
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The existing parenting orders which were made by Hannam J on 25 September 2015 provide that X has a meaningful relationship with both parents.
The proposals of both parents provide for X to continue to have a meaningful relationship with his mother and father. However, the husband’s proposal is for the child to live with him, and spend three nights each fortnight with his mother, and a meal on each Monday.
This was no issue during the trial that X should not have a meaningful relationship with both his parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In her trial affidavit, the wife made historical allegations about her concerns for X in the husband’s care. These allegations included the following:
a.X being exposed to verbal arguments and conflict between the parents;
b.The husband showering the child for extended periods of time, with some sort of inappropriate connotation;
c.The incident on 14 June 2015, when the mother heard of the child in the bathroom calling out in pain and she saw the father leaning over the child in a manner which she perceived may have been inappropriate;
d.Sleeping in the same bed as X;
e.Attempts to alienate X from his mother;
f.Denigration of the mother by the father and the paternal grandmother;
g.The child’s iron deficiency arising from his lack of consumption of red meat whilst in the father’s household;
h.The paternal grandmother, possibly giving the child a drink from a container which had been used for paint.
During cross examination by both counsel for the father and counsel for the Independent Children’s Lawyer, her evidence was that she no longer held the majority of these concerns. Her evidence about these concerns was as follows:
1.Post separation the verbal conflict between the parents had abated and X was no longer exposed to heated parental arguments.
2.She would prefer if X attended to his own showering, with minimal assistance from his father and that he was put to sleep in his own bed each night.
3.The care arrangements which were in place between February 2015 and June 2015, which purportedly delineated each parent’s time with the child were no longer in place.
4.Since the orders of September 2015, X appeared to be coping with the current arrangements, and had not reported any further problems to her. She was also comforted after attending Dr B.
5.The child’s iron blood deficiency had been addressed.
6.She was still unable to comprehend why the paternal grandmother had pretended to drink water from a paint pot whilst the child was present.
The mother’s concerns were comprehensively addressed by Hannam J, in her judgment and orders of 25 September 2015.
The wife is a highly intelligent and educated (occupation omitted). I accept the wife’s evidence that the concerns she expressed in September 2015 have abated and that she is satisfied that the father no longer poses an unacceptable risk to the child. Indeed the wife’s case at trial did not assert that the husband posed an unacceptable risk to the child.
The additional considerations are set out in s.60CC (3) of the act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
There was much cross examination by counsel about the child’s comments to each parent about his alleged desire to live and/or spend more time with that parent.
At the time of the family report X was 4 1/2 years old. He is now six years and nine months old.
At page 22 of the family report Dr B comments:
“In my view , X is too young to express mature views in relation to his overall welfare and where he should live. He also seems to have a strong attachment to both his parents, which should be considered ”.
Both parties in their respective Case Outline documents concur that the child’s views should not be accorded any significant weight.
The father’s case outline goes so far as to include the above quote from Dr B, with the additional statement :
“That is non-contentious from the father’s perspective”
The husband’s evidence, under cross examination was in stark contrast to his Case Outline. He repeatedly stated that X had expressed a preference to live with his father and was continually upset about the prospect of getting out of bed on each alternate Tuesday morning when he was due to be returned to his mother’s care later that afternoon.
There was a continual theme in the husband’s oral evidence, that he wanted what he perceived to be in X’s best interests, and that involved acceding to what X wanted and expressed to his father about his proposed living arrangements.
As X is not yet seven years old, I do not propose to attribute any significant weight to his views.
Section the60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The husband and the wife appropriately conceded that their son has a strong attachment to both his parents.
Dr B opined that X’s primary attachment is to his mother. He states at page 22, paragraph (b) of the Family Report as follows:
“I formed the view that X’s primary attachment, was to his mother, and that his father was a significantly more peripheral figure in his life, particularly in his first three years. For that reason. his attachment to his mother remains his strongest attachment, but his (sic) also has quite a strong attachment to his father now .Both attachments are tinged by anxiety due to the parental conflict of the past two years.”
At paragraph i, page 24 of the family report Dr B states:
“While I think that X’s relationship with his father has been significantly stronger and more attempts since late 2014 when an open tug-of-war developed between the parents, it is still my view his primary attachment is to his mother. For that reason I think he would probably be quite unsettled if there were to be a change of residence.
Dr B was cross examined by counsel for the father about his opinions about X’s primary attachment. He did not resile from his earlier opinion.
In relation to the nature of X’s relationship with his paternal grandmother, the wife’s evidence was that prior to separation, she was not particularly involved in the child’s care. The mother also asserts that the paternal grandmother was involved and instrumental in the husband’s attempts to alienate and/or distance the child from his mother, particularly in the months immediately prior to separation.
The husband’s evidence is that X has an excellent relationship with his paternal grandmother.
Dr B comments in his report as follows:
“Finally, it is likely that although his attachment to his paternal grandmother was also within a normal range for this type of relationship, it too was contaminated by the parent’s conflict and the grandmother’s own behaviour may have contributed as well.”
The paternal grandmother did not participate in the family report interviews, nor did she swear an affidavit in the proceedings. It would have been most helpful if she had sworn an affidavit and made herself available for cross examination, as she is an adult who lives in the husband’s household.
At the commencement of the trial, counsel for the husband tendered a letter, exhibit H1 purportedly from the paternal grandmother’s cardiologist. That letter stated that the paternal grandmother has a heart condition and would not be able to cope with the stress of the court proceedings. The letter was no doubt tendered, to address any Jones v Dunkel submissions.
I am unable to make any definitive findings about X’s relationship with his paternal grandmother, given the absence of relevant evidence.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
The wife seeks orders that she have sole parental responsibility for X, whereas the husband seeks orders that both parties have equal shared parental responsibility.
Upon questioning by me, the husband’s position in relation to parental responsibility shifted, so that he considered it appropriate that if orders were made for X to live with him, he should have sole parental responsibility. If orders were made for X to live with his mother, there should be an order for equal shared parental responsibility. These comments summarise the husband’s attitude towards the wife.
The orders made by Justice Hannam on 25 September 2015, do not include orders pertaining to parental responsibility.
The husband is a vegetarian and the wife is not. X maintains a vegetarian diet in his father’s household and consumes meat in his mother’s household. There was a recent concern about his blood iron levels.
There is no current dispute about the child’s religion and medical treatment. Both parents are (religion omitted) and the dispute about the child’s iron blood levels has been temporarily resolved. Given the level of conflict and toxicity between the parents, it is quite remarkable that medical issue has been resolved.
There has been intense conflict about the child’s eyesight and whether or not he should consult an ophthalmologist. Each parent had a different view as to the required treatment and had taken steps to address this problem, quite independently of the other parent.
The child currently attends a state primary school, (omitted) primary school, which is located in (omitted) near the wife’s home. The husband alleges that the child was enrolled at school without his participation and that prior to separation, the parties had agreed that the child would attend a Property A primary school. The former matrimonial home is in the catchment zone for Property A primary school. The husband has taken steps to prepare for the child’s enrolment in Property A primary school.
At Paragraph 138 of his affidavit the husband deposes that he plans to change X’s school to Property A primary school at an unspecified time in the future. His oral evidence was that he had consulted the school principal in late April 2017 about the prospect of X attending the school. He had not advised the mother of any plans for a change of school. Quite ironically, the husband’s actions are identical to those of the wife of which he is critical.
There is intense conflict about the child’s enrolment in extra-curricular activities. The husband alleges that he has not been consulted by the wife and that she unilaterally arranges many and varied extra-curricular activities for X and then advises him that she has done so.
What is apparent is that each parent has sought to be involved in major decisions about the child’s welfare. What is also apparent is that they have not been able to reach agreement about many such issues, and each parent has acted independently of the other. There has been virtually no joint decision making. I further referred to this issue under the heading equal shared parental responsibility.
Opportunity to spend time with and communicate with the children
Both parents are seeking that X live with them and spend time with the other parent.
X primarily lives with his mother and there were no allegations that she had failed to spend time or communicate with him.
The child currently spends four nights per fortnight with his father, together with holiday time. The husband has consistently sought to spend as much time as possible with the child, including telephone time.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The husband pays child support to the wife in accordance with an administrative assessment of child support. He currently pays child support of $90.50 per week and in addition, has paid two terms of school fees of $250 each, expenses incurred when he has taken the child to medical appointments and has purchased some items for the child.
It was agreed that the husband had not filed a tax return since 30 June 2011. Counsel for the wife submitted that the income on which the child support assessment was based, did not reflect his current income earning capacity.
Counsel for the Independent Children’s Lawyer was highly critical of the manner in which the husband had discharged his obligations to contribute to the financial support of the child. He submitted that it was either just a failure to come to comprehend obligations or that it might be a punitive or controlling exercise, although there was no such evidence to enable the court to reach that conclusion.
During final submissions, counsel for the husband submitted that the earning capacity of the parties was equal. The husband agreed that he was working three days per week, and that in the last nine month period he had earned gross income of $171,000. Counsel for the mother extrapolated the husband’s earning capacity to a five-day working week, which would result in the husband having the capacity to earn $380,000 gross per annum. If both parents work on a full time basis, then the husband has a superior income earing capacity than the wife.
I am of the view that the actual child support paid by the husband to the wife, is a negligible amount when considering the husband’s income earning capacity.
I find that the wife has fulfilled her financial obligations to maintain the child, however, the husband has not fulfilled his financial obligations to the extent he should.
I agree with the submissions of counsel for the Independent Children’s Lawyer, that the husband’s attempts to justify and explain his lack of financial support for X are entirely unsatisfactory.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The wife proposes that the child remain living with her in the (omitted) area and that he continue to attend (omitted) primary school, his current government primary school. She also proposes that the husband spend time with the child in accordance with the existing arrangements of four nights a fortnight in a block, together with holiday time and reduced telephone time.
The husband proposes that the child live with him and spend time with his mother in a three night block from Friday to Monday each alternate weekend, each Monday afternoon and shared holidays and special occasions.
The wife’s proposal would not result in any significant change for the child, other than some reduction in telephone time.
The husband’s proposal would result in the child being removed from his mother, whom Dr B considers, is his primary attachment.
Dr B was cross examined by counsel for the husband, about the capacity for the child to cope with a change of primary residence. Dr B was of the opinion that because the child’s relationship with his father was sufficiently robust and of a sufficiently good quality, there would be a certain amount of adjustment, however it wouldn’t go on to very long, and he would ultimately adjust satisfactorily.
Despite the evidence of Dr B referred to in the preceding paragraph, in his family report Dr B was of the opinion that the child would “probably be quite unsettled if there were to be a change of residence.”
Both parents agreed that the wife had taken maternity leave for almost 3 years after the birth and had been the child’s primary carer during that time. There is a dispute about who was his primary carer after the wife returned to work. Dr B was of the opinion that the wife’s intuitive knowledge about her son and his needs supported the proposition that she had been his primary carer. He also concluded that she was his primary attachment.
I do not accept Dr B’s oral evidence that a change in living arrangements would not have significant impact on the child. In my view it does not take into account the many and varied changes this little boy would experience if he were removed from his mother’s primary care. His evidence in this regard is unconvincing and is not properly considered.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The wife and child currently live in (omitted) and the husband continues to live in the former family home in Property A.
The respective homes are a manageable driving distance from each other. The only complaint about a practical difficulty was that the husband sought to change the collection time to 3.30 pm so as to avoid peak hour traffic. The wife agreed to this proposal.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
It was apparent from the evidence of both parents that they love and are clearly devoted to their son. Each parent has a close and loving relationship with him. X is most fortunate in this regard.
What is also apparent is that each parent has vastly different parenting styles.
The wife presented as highly child focused, with an in-depth knowledge and appreciation of her son’s needs. She was, however, in my view overly focused on the benefit of him participating in extra-curricular activities. She is clearly a competent and committed parent whose care of the child has been loving and appropriate.
She has also demonstrated a willingness to comply with court orders, and to facilitate a relationship between the child and his father, despite orders which were made in September 2015, being significantly contrary to her then proposals for the husband’s time.
The husband also presented as a competent parent, except for his condescending attitude towards the wife and her parenting abilities. I was left with the impression that he considered the wife’s parenting could best be described as adequate. He presented a litany of complaints about the wife, but was unable to provide evidence about any serious deficiency in the wife’s primary care of the child.
He has a firmly entrenched view that he has a superior capacity to provide for the child’s emotional and intellectual needs. He is of the view that a male child over the age of seven years would benefit substantially from living with a male parent. He was prepared to concede that it was appropriate for a male child to live with his mother until the age of seven. The basis of this view is ostensibly research conducted by unnamed psychologists. He seems to have zealously adopted the theory wholeheartedly and uncritically.
There was no attempt to put any such research into evidence, although Dr B was asked about it in cross examination. Dr B was polite in the manner in which he responded to relevant questions, but his opinion was that the issue of living arrangements depended on a whole range of circumstances and not solely the gender of a child.
I do not accept the husband’s theory in in relation to the benefit of a male child over the age of seven, living with a male parent. His unquestioned belief in that theory is demonstrative of his single minded opinions.
If the child were placed primarily in his care, I am concerned about the husband’s capacity to encourage and promote a relationship between X and his mother. The husband was strident in his view that the child wanted to live with him and that significant weight should be attributed to his views. That belief of the father was very apparent from his evidence, but was in contrast to the remarks in his case outline document, in relation to the child’s views.
As submitted by counsel for the Independent Children’s Lawyer, the manner in which the father gave his evidence demonstrates a lack of insight and almost an attitude of “I’m really the only parent who can make the proper decisions in relation to the child, and unfortunately, the mother hasn’t in the past.” His attitude to the mother was almost patronising and counsel for the Independent Children’s Lawyer was rightly concerned that the dominance and forthrightness of his personality would be likely to present problems in the future, in the event the child lived with him.
The husband was cross examined by counsel for the wife about his attitude to compliance with orders for X to spend time with his mother, in the event his application for residency was successful. After hearing the husband’s answers I have no confidence that he would happily and willingly facilitate the child’s relationship with his mother, if X were to live with him.
Counsel for the husband in his final submissions was critical of the manner in which the wife conducted her case and in particular the contents of her trial affidavit, in so far as it referred to historical matters.
He submitted, that on the evidence, the wife’s actions and accusations were all either coloured or driven by her obsession and belief that the father had been unfaithful.
He was justifiably critical of the manner in which the wife conducted her case, specifically, including historical allegations of risk in her trial affidavit, which were abandoned by her when she gave evidence.
That is a most regrettable manner in which to conduct the proceedings and it would have been preferable for all concerned if the husband had been advised of the wife’s position at an earlier date. I observed that the trial had not been conducted on the basis that the father presented an unacceptable risk to the child. Counsel for both parties agreed with that proposition.
Counsel for the husband sought to extrapolate the wife’s conduct of the trial, to suggest that the wife is “unable in reality to see the benefit of the child’s relationship with the father, and she’s the one who has sought to prevent and limit it, and if X moved he would have a much healthier life with each of his parents. He would be living with the one who is better able to provide a balanced life and a meaningful relationship with both parents.”
I do not agree with that submission and refer to my observations in relation to the father and his evidence and demeanour.
I was invited by Counsel for the Independent Children’s Lawyer to make findings about the demeanour and attitude of each of the parents.
In relation to the wife, I was invited to find the wife has been quite rigid to the exclusion of the husband in her approach to extra-curricular activities, which has generated a great deal of heat between the parties. I agree with that submission and intended to make an order, as proposed by the Independent Children’s Lawyer, providing that neither parent shall cause the child to be enrolled in any extracurricular or sporting activities during the time the child spends with the other parent, without the other parent’s express consent in writing.
In relation to the husband, I was invited to find that the husband presented in a patronising and demeaning fashion towards the wife in relation to her parenting ability. I agree with that submission.
As referred to previously in these reasons my observation of both of the parties during the four days of hearing was in stark contrast with those of Dr B.
I did not observe the wife to be “quite a tenacious person” nor one who seemed to “harbor grievances pretty well”, nor overly concerned with or vindictive about the husband’s alleged infidelity. My observations of her are referred to in preceding paragraphs.
I cannot reconcile the presentation of the husband in the witness box and his evidence, with the observations of Dr B that he was mild mannered and quietly spoken and that he seemed a shy but straightforward person. I agree with the submissions of counsel for the mother that Dr B “did not pick up on the father’s character. He didn’t impress as mild mannered and shy in the witness box and his account of things was not nuanced. In fact, he presented as rigid, at times belligerent and even arrogant. There was some evidence that he wouldn’t back down and tended to become overbearing…. He also couldn’t see that’s how he might come across to the mother.”
An example of his lack of insight into his own behaviour is his characterisation of the care arrangements for X between February and June 2015. According to the husband, he suggested that the parties implement a shared care arrangement for the child, in an endeavour to minimise conflict. This involved a delineation of the days and times the child would spend with each parent. From the wife’s perspective, this arrangement was imposed on her and she had no other viable alternative than to acquiescence. The husband’s evidence was that this so-called shared care arrangement actually diminished the conflict between husband and wife. He did not seem to appreciate the detrimental effect on the child of two parents living in the same household drawing demarcation lines as to who would spend time with the child. It is inconceivable that such an arrangement could be in the best interests of X, nor that it reduced parental conflict at all.
Dr B was of the view this arrangement was not shared care, but rather essentially a power struggle and territorial dispute between the parties. I agree with that assessment.
Dr B did concede that the court would have the opportunity to observe the positions, and hear the respective evidence from the parties and be in a superior position to make an assessment about the respective parents. I agree with that statement.
Dr B’s time with the parties was limited to the interviews which occurred in January 2016 and a further telephone conversation, which occurred in February 2016. I had the benefit of the attendance of the parties in court over a four-day trial and observing each of them in the witness box for the best part of a day.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
In August 2016 X was referred to Mr J, the school counsellor, who is a registered psychologist. His report was tendered by consent and is exhibit H 4.
Mr J’s report identifies that X has a number of learning/comprehension and processing problems. Both parents are aware of these problems and the mother enrolled X in a literacy program at the school, (omitted), to assist his development.
I anticipate that in the future, both parents will take appropriate steps to assist the child and implement Mr J’s recommendations.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties are loving, caring and generally responsible parents. However, the extreme levels of conflict between them have adversely affected the capacity to cooperate regarding X’s needs.
Both parents have sought significant involvement in their son’s life and to maximise the time they could spend with him.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
In her trial affidavit, the wife refers to historic family violence allegations. These included denigration of her by the husband and the husband’s mother, a number of occasions of alleged physical assaults. She also referred to an allegation by the husband that she had committed family violence against him. She does concede that on one occasion, following a heated argument she pushed the husband out of frustration.
The wife historically alleged that the husband had behaved inappropriately towards X. Her concerns about the husband’s alleged sexualised behaviour towards the child are referred to in the report of Dr B.
In his trial affidavit the husband addresses the wife’s allegations.
Neither party sought to raise these matters as relevant issues during the trial.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There are no family violence orders.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Both parties acknowledge that resolution of the current dispute is highly desirable.
X requires stability in his living and spend time arrangements. A reduction of the highly toxic parental conflict will be to his immense benefit.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
All relevant facts and circumstances have been referred to in these reasons.
Equal shared parental responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
The wife seeks an order that she have sole parental responsibility for the child. The Independent Children’s Lawyer agrees that it would be appropriate for the wife to have sole parental responsibility. The husband seeks an order that both parents have equal shared parental responsibility.
Both the wife and the Independent Children’s Lawyer propose that if the wife has sole parental responsibility, she should be required to notify the husband of any proposed decision relating to the long term care and welfare of the child. In particular, the wife should provide the husband with written notification not less than 28 days before a final decision is made, except in the case of emergency. She should take into consideration any views expressed by the father in respect of any proposed decisions.
The main reason supporting the respective proposals for sole parental responsibility to be vested in one parent is that the conflictual nature of the parental relationship precludes any joint decision-making. The parties appear to be able to communicate with each other via email or text message about issues pertaining to X’s welfare. However, they are unable to reach any agreement or consensus. As I commented during the trial, they operate along parallel lines, when it comes to the matter of making joint decisions for the child’s welfare.
There are a number of examples of their inability to reach a joint decision, which include which extra-curricular activities the child should attend and when, what treatment is appropriate for the child’s eye problems and general medical treatment for the child.
X’s attendance at extracurricular activities, including a literacy program, have caused enormous conflict and discord between the parents. Regrettably, this has impacted on the child.
The wife seeks that the child attends many and various extra-curricular activities, both during the week and on weekends. These activities invariably impinge on the husband’s time with the child, as they occur on both Saturdays and Sundays.
According to the wife, the child’s current program of extra-curricular activities includes (hobbies omitted).
The husband is of the view that the wife has arranged too many extra-curricular activities for the child, including enrolling him in activities for which he has no aptitude, and in some cases does not enjoy. From the husband’s perspective, the wife unilaterally enrolled the child in extracurricular activities without consulting him, advised him of the activities and expected him to ensure the child’s attendance. He is of the view that the child should be able to determine which extra-curricular activities he wishes to pursue and which ones he does not.
Both parties were able to agree that the child had problems with his vision. This became apparent after the child was assessed by the school counsellor, who is a registered psychologist. The wife arranged for him to see an optometrist, who prescribed eye exercises and spectacles for reading. The husband was not content with this diagnosis and arranged for the child to see a paediatric ophthalmic surgeon, who prescribed eye exercises, but did not consider that the child required spectacles. X is now in the unfortunate position of one parent being of the view that he requires spectacles, and the other parent, being of the view that he does not.
There was also a divergence of medical opinion about the child on one occasion when he had symptoms of a sore throat/flu. The wife was of the view that the child did not require any medical intervention, however, the husband arranged for him to be examined by a doctor, who apparently diagnosed the early stages of pneumonia.
It is clear to me, from my observations of the husband in the witness box, that it would be highly unlikely that the husband would be able to refrain from expressing his opinions to the child, and involving him in the dispute. Equally, the wife has a much focused and somewhat myopic view of the benefits of his participation in extracurricular activities. She considers X’s attendance at extracurricular activities as an integral aspect of his education.
The husband’s evidence about parental responsibility is indicative of his general attitude towards the wife’s parenting capabilities. When questioned by me, as to what he considered would be appropriate orders for parental responsibility, his evidence was that if X lived primarily with him, he should have sole parental responsibility, and if X live primarily with the wife, then there should be an order for equal shared parental responsibility.
Dr B was cross examined about his views of parental responsibility. He identified that the parties had real problems communicating with each other.
Whilst both parties expressed the view that they want communication to improve, neither had any idea on a practical level, how to improve communication. Both were withdrawn from each other in terms of communication. I asked both parents for their views as to what they could do to overcome their inability and unwillingness to communicate. Neither had any practical or positive proposals, despite both of them having completed post separation parenting courses.
Dr B distinguished two potential problems :
a)An inability to make joint decisions
b)A delay in reaching decision making
It was his view where decision-making was so impaired, that things just simply did not happen, an order for sole parental responsibility would be appropriate. In a situation where the parties struggled to reach consensus but eventually were able to reach agreement, then an order for equal shared parental responsibility was probably preferable.
What has occurred to date is that each party has made and implemented unilateral decisions about a number of issues, without any consensus being reached.
When cross examined by counsel for the husband, Dr B was asked about the downside of making an order for sole parental responsibility. His evidence was that firstly, children pick up when one parent has no say in the life which can impact on children, secondly, it may result in one parent feeling aggrieved at the exclusion, and thus creating further conflict and thirdly, it may preclude the possibility of parents being able to reach joint decisions in the future.
Counsel for the wife submitted that the wife already feels disenfranchised with equal shared parental responsibility. He submitted that she was disenfranchised because the husband would not budge or bend and agreement cannot be reached unless it is on the husband’s terms.
The orders proposed by the Independent Children’s Lawyer include the husband in the decision-making process. The wife is required to advise him of her proposed decision-making and he has an opportunity to advise the wife of his views.
Counsel for the Independent Children’s Lawyer, in his final address, submitted that both parties had been invited to provide concrete proposals to improve their joint decision-making. Both parents were aware of the need to do so, however, neither party could offer a practical manner in which they could reach joint decisions. The wife had attended a number of courses and the husband expressed the correct sentiments and hoped that in the fullness of time each could learn to communicate better. Unfortunately, his evidence was that he believed decisions he had made were rational, which was in contrast with the wife’s decisions which he considered were not rational.
Counsel for the Independent Children’s Lawyer submitted that despite Dr B’s evidence about what sole decision making might show to a child, the court could have no confidence that the parties could reach meaningful decisions or have meaningful discussions about their son’s welfare. That inability to reach joint decisions could result in future minefields which may lead one or either of the parties returning to court. I agree with the submissions of counsel for the Independent Children’s Lawyer.
I have no doubt that if an order were made for equal shared parental responsibility, the current situation of parallel decision-making would continue and these parties would never be able to reach a joint decision about the welfare of their son. This would result in continuing high levels of conflict and the impact on the child is obvious.
I am cognisant that the husband will feel excluded and disenfranchised. He may also seek to undermine decisions made by the wife. I am required to make decisions in the child’s best interest, and I am of the view that to allow the current conflictual decision-making process to continue will have an adverse impact on the child and embroil him in more conflict. He should not be placed in the situation where the decision of his primary care giver is continually undermined, as has been the situation to date.
The wife contributed to the household food and groceries and paid her personal expenses from her income between the commencement of cohabitation and (omitted) 2010. In (omitted) 2010 she started maternity leave in anticipation of the birth of X in (omitted) 2010.
In (omitted) 2011 the parties commenced looking for a new home. The wife’s evidence was that she was primarily responsible for house hunting and eventually located a property situated at Property A, which the parties purchased in (omitted) 2011.
In (omitted) 2011 the wife purchased a (omitted) motor vehicle for the sum of $74,500. The purchase price of $74,500 was paid by the wife from her savings which existed at the date of cohabitation, together with additional monies she had saved.
On (omitted) 2011 the parties settled the purchase of the Property A property. The purchase price was $1,295,000, together with stamp duty of $53,000.
The purchase price of the Property A property was funded as follow:
a)A mortgage from the (omitted) Bank of $1,036,000;
b)Cash contributions by the husband of $64,750 to pay the 5% deposit;
c)Cash contributions by the husband of $250,339.
In (omitted) 2011 the wife deposited $63,505 from her personal savings in to the mortgage offset account.
The renovations to the Property A property were carried out between (omitted) 2011 and (omitted) 2012, and were to the value of $142,609, which was paid from the proceeds of sale of the husband share portfolio.
In (omitted) 2012 the husband sold the Property B property and the nett proceeds of sale of $144,591 were transferred into the Property A home loan offset account.
In (omitted) 2013 the wife obtained employment and between (omitted) 2013 and (omitted) 2015 the wife deposited some of her income into the offset account.
In (omitted) 2013 the wife traded in the (omitted) motor vehicle for $35,000, and purchased a (omitted) motor vehicle for $95,000. The differential was funded by the wife’s (omitted) credit card and finance of $30,000.
The husband was employed throughout the relationship as a (occupation omitted), save for the period between August 2014 and November 2014, when he was not in paid employment. He contributed his income to the benefit of the family.
The wife was employed throughout the relationship as a (occupation omitted), save for her maternity leave between (omitted) 2010 and (omitted) 2013. She contributed some of her income to the benefit of the family, paid for her personal expenses, and otherwise saved her income, which was applied towards the purchase of motor vehicles and into the Property A mortgage offset account.
Contributions post separation
Subsequent to separation the husband remained living in the Property A property and the wife rented an apartment in (omitted). The husband paid the mortgage and outgoings on the Property A property, together with his personal living expenses and those of X during times the child has been in his care.
The wife has paid the rent and other associated expenses for her apartment, together with her living expenses and those of X, during times he has been in her care.
Section 79(4)(b) Non-Financial Contributions
Both the husband and the wife claimed they made non-financial contributions during the course of cohabitation. The extent and nature of those contributions was disputed.
The wife’s evidence was that she was primarily responsible for the domestic duties in the home, prior to the birth of the child. She conceded that she and the husband would often do the grocery shopping together and the husband would attend to his own laundry needs.
The husband’s evidence was that his domestic contributions were at least equal to, if not superior to those of the wife. His evidence was the parties would do the grocery shopping together, he would attend to his own laundry and would otherwise contribute to the running of the household.
In (omitted) 2010, the wife ceased work and went on maternity leave in anticipation of the birth of their son. She did not return to work until approximately (omitted) 2013. Her evidence was that during this time she was almost principally responsible for domestic duties, which included care of their child and gardening and other outside work. The husband attempted to minimalize her domestic contributions.
Upon her returning to work, it was the wife’s evidence that she still was the primary carer for X and that she carried out the bulk of domestic chores. She did however concede that the husband was not in paid employment between August 2014 and November 2014. The husband’s evidence was that on the date he did not work, he shared the child’s care with the wife. On the days that he did work, he alleges that the child was handed to him when he arrived home and that he was thereafter responsible for feeding, bathing and putting him to bed.
The husband’s evidence was that he was primarily responsible for the care of X during this period of unemployment and that he attended to the majority of domestic chores.
Having heard the evidence of both parties, and observed the attitude of the husband towards the wife and her domestic and parenting skills, whilst giving his evidence, I prefer the evidence of the wife in this regard.
The section79 (4)(d),(e),(f) and (g) and the section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which I propose to make will have limited affect upon the earning capacity of the husband. Insofar as the wife’s concerned, she will need to arrange her work commitments so that she is able to care for X. This will of necessity limit her capacity to work shift or extended after hours whilst X is in her care. She has managed to juggle her employment commitments to care for her son since separation, and I have every confidence that she will continue to do so.
Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant
Section 75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties
The wife is aged 44 and is employed as a (occupation omitted). She earns gross income of approximately $223,000 per annum. She has been employed as a (occupation omitted) for many years and intends to continue for the foreseeable future. She enjoys good health.
The husband is aged 53 and is also employed as a (occupation omitted). He currently works three days per week and earns gross income of approximately $228,000 per annum. During final submissions, counsel for the mother extrapolated the husband earning capacity as $380,000 per annum, if he were to work a five-day week. He also has been employed as a (occupation omitted) for many years and intends to continue for the foreseeable future. He also enjoys good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The property and financial resources of the parties are referred to in these reasons. There was no dispute that both parties have the physical and mental capacity to continue with their current employment.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
The orders which I intend to make will provide that the child X lives with the wife and will spend substantial and significant time with the husband. The wife’s care of X impacts upon her capacity to work shift hours, and to work on weekends when he is in her care.
The husband’s care of X on alternate weekends would also impact on his capacity to work on those weekends when he is in his care.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
The commitments of each of the parties that are necessary to support himself /herself are set out in their respective financial statements.
Neither party was cross examined about the expenses claimed in the financial statements. The husband was, however cross examined about his income and earning capacity.
(e) the responsibilities of either party to support any other person; and
Each party has a responsibility to contribute towards the support of the child. The wife is responsible for the expenses associated with X, whilst he is in her care and the husband is responsible for X’s expenses, while the child is in his care.
Additionally, the husband has been assessed to pay child support of $90.50 per week. There was some dispute about the basis of the husband’s income for the purposes of assessment, as he has not lodged tax returns and since 2011. The Independent Children’s Lawyer was highly critical of the husband, about the quantum of child-support and lack of other financial assistance for the child.
Apart from X, there was no evidence that either party had responsibilities to support any other person.
Section 79(4)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
Neither party is currently eligible for a pension, allowance or benefit. There was no evidence that either party would be eligible in the future.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The orders which I intend to make will result in the husband either retaining the Property A property, or receiving a lump sum payment, in the event the property is sold. The wife will receive a lump sum payment from the husband, or in default of the payment, from the proceeds of sale of the Property A property. Both parties will be able to adequately rehouse themselves, either by purchasing another property or renting. The wife will continue with her present employment and her income is sufficient to enable her to adequately support herself. The husband will also continue with his present employment and his income is sufficient to enable him to adequately support himself. Both parties will be sufficiently financially secure to enable them to enjoy an attractive standard of living.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
This is not a relevant consideration.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and your current the just
This is not a relevant consideration.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
This is not a relevant consideration.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The parties were married for just over seven years, and neither earning capacity has been altered by the duration of the marriage.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
The wife will be able to continue in her role as a parent and will obtain employment to enable her to meet her parental obligations as she has done to date.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
This is not a relevant consideration.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
I am satisfied that the orders I intend to make under s.79 enable both parties to adequately maintain themselves.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration.
(na) any child support under the Child Support (Assessment) Act 1989that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
As previously referred to, the husband has been administratively assessed to pay child support to the wife of $90.50 per week.
The husband has not filed a tax return since 2011, and I am unsure as to the basis of the husband’s earnings or earning capacity, upon which the assessment was based.
The husband is responsible for the financial support of X whilst in his care, and his evidence was that he additionally buys items for the child. He does not, however, contribute towards the costs of any additional extra-curricular activities. He has paid a couple of terms of school fees at X’s government primary school.
In any event, given the standard of living enjoyed by the parties, this amount of child support is clearly inadequate and inequitable. I agree with the view of the Independent Children’s Lawyer in this regard.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
All relevant considerations have been referred to in these reasons.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not a relevant consideration.
Conclusion as to contribution
Counsel for the husband in his final submissions, urged me to determine that the husband’s contributions were 70% of the asset pool and that the wife’s contributions were 30% of the asset pool.
His submissions were that the husband’s uncontroversial initial contribution of the following assets:
1. Equity in Property B property;
2. Share portfolio;
3. Cash at bank;
4. Substantial superannuation entitlements;
Were not only significant contributions, which equate to approximately 50% of the realisable current assets, but should also be regarded as the springboard to the financial security the parties enjoyed during the relationship. I was referred to at paragraph [30] of Pierce & Pierce [1998] FamCA 74which states as follows:
[30] There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have had regard to the use made by the parties of the husband's greater initial contribution.
It was submitted that the parties simply would not have been able to purchase the Property A property without the contribution of the husband at the commencement of the relationship, and consequentially enjoy the capital appreciation of that property.
Counsel for the wife submitted that although the husband’s initial contributions were not contested by the wife, at the time the Property B property was sold and netted approximately $145,000, the parties had been living together for approximately 4 years. The wife had made direct and indirect financial contributions during the intervening four year period, including saving her income and applying $59,000 towards the purchase of the (omitted) motor vehicle and $70,000 towards the Property A property. She had also made a myriad of non-financial contributions since cohabitation, and the husband’s initial financial contribution should be considered in that context.
The submissions for the wife reflect the statements of the Full Court in Pierce (supra), at paragraph [28] :
[28] In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. 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. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: see also Campo and Campo (Full Court, Sydney, 19 May 1995, unreported) at pp 21–2 of the joint judgment of Ellis, Lindenmayer and Finn JJ and Zahra and Zahra (Full Court, Sydney, 3 October 1996, unreported) per Ellis J at p 10.
It was also submitted that the wife’s contributions post separation, in relation to support of the child exceeded those of the husband. The husband had paid child support approximately $90.50 per week since separation, which both parties concede was in accordance with a child support assessment. However that should be viewed in the context of the following:
1. The real costs of supporting the child;
2. The fact that the husband had not lodged a tax return since 2011 and the child-support assessment did not accurately reflect his income/income earning capacity;
3. The husband had made a conscious decision to work three days per week and not to exercise his income, earning capacity to its full extent.
Counsel for the wife submitted that the wife’s contribution should be assessed between 40 to 45%.
The Full Court has recently considered initial contributions in Wallis & Manning [2017] FamCAFC 14. However, the majority of comparative cases considered by the court in that matter, involved marriages of 20 years plus, whereas the relationship in this matter was of a significantly shorter duration.
Having considered the matters referred to in these reasons, and the submissions of both counsel, I determine that the wife’s contributions should be assessed at 35% and the husband’s at 65%.
Conclusion as to future needs
Taking into consideration the above matters, including:
i)the wife’s principal care of the child and its impact on the wife’s capacity to earn income; and
ii)the disparity in income earning capacity of the parties
I am satisfied that there should be a small adjustment in favour of the wife of 5% pursuant to s.75(2) factors.
Adjustment of interests
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties, so that the husband is entitled to 60% of the asset pool and the wife should receive 40% of the asset pool.
In his final address, counsel for the husband submitted that the husband’s preferred position in relation to a superannuation split, was a payment of $50,000 to the wife. The balance of the wife’s entitlement should be by way of a cash payment. This submission was on the basis of an overall division of 30% of the combined asset pool to the wife.
There was no evidence or submissions about the extent of the husband’s capacity to borrow funds to enable him to retain the Property A property, if I determined that the wife was entitled to a greater percentage division of the assets than proposed by the husband.
Counsel for the wife, in his final address, submitted that the wife would be content with a superannuation split of $50,000, and that she preferred to maximise the cash payment to her.
If the respective superannuation entitlements were equally divided, the wife would receive an additional $32,234 of the husband’s superannuation .The division of superannuation in accordance with the husband’s proposal in final submissions, results in a cash payment to the wife of $32,234, rather than a superannuation split of that amount.
I was advised by both counsel that the parties have reached agreement as to the division of chattels and furniture, and I have therefore excluded from the asset pool, the agreed amount of $30,000 attributable to furniture and furnishings.
On the basis of the agreed property pool, and the submissions of counsel referred to in the preceding paragraphs, the division of assets, I have determined is summarised as follows:
Wife’s Assets
Payment from husband $449,517 Motor Vehicle $60,000 Cash at bank $22,649 Wife’s superannuation $78,718 Share of husband’s superannuation $50,000 Sub total $660,884 Less Liabilities (vehicle omitted) hire purchase $19,220 Nett Assets $641,664 Husband’s Assets
Property A $2,200,000 Cash at bank $11,323 Motor vehicle $13,000 Superannuation $ 243,187 Sub total $2,467,510 Less liabilities Mortgage on Property A $1,005,496 Superannuation split to wife $50,000 Sub Total $1,412,014 Less Cash payment to wife $449,517 Nett Assets $962,497
Conclusion
The division of assets referred to in the preceding paragraph will be achieved by the husband either borrowing sufficient funds to enable him to pay the wife, and retain the Property A property, or alternatively a sale of the Property A property. In the event the Property A property is sold, the husband will receive a substantial cash payment, which would enable him to rehouse himself, either by purchasing another property or renting.
Subject to the split of $50,000 to the wife’s superannuation entitlements, the husband will otherwise retain his superannuation, his motor vehicle, cash and the agreed contents of the Property A property.
In addition to superannuation split the wife will receive a cash payment of $449,517 which will be sufficient to enable her to rehouse herself or rent a property.
The wife will retain her existing superannuation entitlements, together with a $50,000 split from the husband’s superannuation fund, her motor vehicle, cash and agreed contents of the Property A property.
I am satisfied the division of property is just and equitable.
I certify that the preceding three hundred and fifteen (315) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 18 October 2017
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Family Law
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Equity & Trusts
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Jurisdiction
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Procedural Fairness
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