Keegan & Hart
[2007] FamCA 111
•1 March 2007
FAMILY COURT OF AUSTRALIA
| KEEGAN & HART | [2007] FamCA 111 |
| FAMILY LAW - CHILDREN – Child suffering from Cystic Fibrosis – Management of treatment regime – Father experiencing some difficulty ensuring the child’s timely arrival at school FAMILY LAW - PROPERTY – Constitution of property pool for division - Inclusion of moneys drawn at separation – Treatment of redundancy payment FAMILY LAW - PROPERTY – s 75(2) Factors – Wife’s significant earning capacity balanced with her greater responsibility for the care of the child of the marriage and the special needs of the child |
| Goode and Goode [2006] FamCA 1346 Hickey and Hickey (2003) FLC 93-143 |
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 75, 79
| APPLICANT: | Ms Keegan |
| RESPONDENT: | Mr Hart |
| FILE NUMBER: | MLF | 1035 | of | 2005 |
| DATE DELIVERED: | 1 March 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bryant CJ |
| HEARING DATE: | 26 and 27 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | Michael Maplestone Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Ramsey |
| SOLICITOR FOR THE RESPONDENT: | Pearsons Barristers & Solicitors |
ORDERS
That the parties have equal shared parental responsibility for major long-term issues concerning the child, a daughter, born in February 1999 (“the child”).
That the child live with the wife and the wife have sole responsibility for the child’s day-to-day care, welfare and development save when she is spending time with the husband.
That the child spend time with the husband as follows:
a.Each alternate weekend during school terms as follows:
i.From after school on Friday until 5.00pm on Sunday or until 5.00pm on Monday where Monday is not a school day;
ii.If the husband lives within 5 kilometres of the child’s school alternate weekend time in (i) be extended to return to school on Monday, or Tuesday where Monday is not a school day;
iii.The wife notify the husband at least 7 days prior to the recommencement of each new school term of whether the alternate weekends will recommence on the first or second weekend of term and the husband spend time with the child each alternate weekend on and after the weekend notified by the wife as the recommencing weekend, PROVIDED ALWAYS that if the husband did not spend time with the child on the last weekend of the previous term and the wife nominates the second weekend as the recommencing weekend of the new term, the husband spend time with her on another weekend of the new term nominated by the wife upon at least 28 days prior notice to the husband, being a weekend additional to the pattern of alternate weekends notified by the wife for that term;
b.Each alternate Thursday during school terms being the Thursday after an alternate weekend pursuant to (a) as follows:
i.From after school until the commencement of school on Friday provided that the child is not late to school on more than two occasions per term whilst in the Husband’s care;
ii.In the event that the child is late for school while in the husband’s care, on more than two (2) occasions in a term then the time spend by the child with the husband in Order 3(b)(ii) be suspended for the balance of the school term in which it occurs and for the following school term.
iii.During the period of suspension the child spend time with the husband each alternate Thursday from after school to 7:30pm.
c.From 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day;
d.From 3.00pm on 25 December to 5.00pm on 31 December commencing December 2007 and alternate years thereafter with a further week in the summer holidays at a time nominated by the husband and to coincide if possible with a week when Mr S does not have his children, and in default of any nomination within one month of the commencement of the holidays, the week nominated by the wife upon at least 28 days prior notice to the husband but no earlier then 27 December.
e.From 3.00pm on 24 December to 3.00pm on 25 December commencing December 2008 and alternate years thereafter with a further two separate weeks in summer holidays one to commence on 27 December and the other to be nominated by the husband and to coincide if possible with a week when Mr S does not have his children, and in default of any nomination within one month of the commencement of the holidays, the week nominated by the wife upon at least 28 days prior notice to the husband but no earlier than 27 December.
f.For one week during term 1 and 3 school holiday periods at times to be agreed, in default of agreement the week nominated by the wife upon at least 28 days prior notice to the husband; and
g.At any other times as agreed between the parties.
At least 28 days prior to the commencement of the summer holiday period, the wife nominate two weeks during the summer holidays as her exclusive time with the child during which time the provisions of Order 3 be suspended but for the balance of the Summer holidays (after taking into account the parent’s exclusive four weeks) the time spent with the husband on alternate weekends and intervening Thursdays continue.
That in the event that Mother’s Day falls on a weekend of the child spending time with the husband, the child be returned to the wife at 5.00pm on the Saturday of that weekend.
That if the child’s birthday or the husband’s birthday falls on a weekday that the child is not spending with the husband, the husband have liberty to telephone the child at 6.00pm and in the event that she is unavailable at that time the wife arrange for her to telephone the husband as soon as practicable thereafter.
That if the child’s birthday or the husband’s birthday falls on a weekend that the child is not spending with the husband, the child spend time with the husband as follows:
a.If the relevant birthday falls on a Saturday of a school term weekend – from after school on Friday until 1.00pm on Saturday; or
b.If the relevant birthday falls on a Sunday of a school term weekend – from 1.00pm until 5.00pm on that day.
That if the child’s birthday or the wife’s birthday falls on a weekend that the child is spending with the husband, such time will be suspended and the child will be with the wife:
a.If the relevant birthday falls on a Saturday – until 1.00pm on Saturday; or
b.If the relevant birthday falls on a Sunday – from 1.00pm until 5.00pm on that day.
That handovers for the purposes of these orders take place at the child’s Primary School where a period commences or concludes at school time, otherwise at McDonalds restaurant in B or such other place as the parties may agree in writing.
That the husband have liberty to communicate with the child by telephone at 6.00pm every third day when the child is living with the wife and in the event that she is unavailable at that time the wife arrange for her to telephone the husband as soon as practicable thereafter.
That the wife have liberty to telephone the child at 6.00pm every third day when the child is spending time with the husband and in the event that she is unavailable at that time the husband arrange for the child to telephone the wife as soon as practicable thereafter.
That each party forthwith inform and keep the other informed in the event that the child requires medical attention whilst in their respective care.
That the husband do all such acts and things necessary to:
a.Comply with any treatment prescribed or recommended by the child’s medical practitioners for assessment or treatment as advised by the wife to the husband; and
b.Facilitate the child’s attendance at her extra-curricular activities including but not limited to musical lessons, swimming lessons and gymnastic activities if practicable.
That the husband be at liberty to attend extra-curricular activities that fall on periods when the child is not living with him and that the wife give him 21 days written notice of any special events associated with her activities.
That the wife be at liberty to take the child for an overseas holiday during 2008 for a period of 3 to 4 weeks and the child’s time spent with the husband be suspended for such period with the time missed to be made up as far as practicable.
That the husband sign all documents and do all things necessary to facilitate the issue of a passport to the child in order to give effect to paragraph 15 herein.
That compliance with the parenting orders be supervised by a Family Consultant of the Melbourne Registry pursuant to s 65L of the Family Law Act 1975 (Cth) for a period of twelve months.
That the husband and wife attend whatever parenting course or courses as recommended by the supervising Family Consultant appointed pursuant to paragraph 17 herein to assist in improving communication between them.
PROPERTY ORDERS
That within seven days of this day each party sign an authority to engage a conveyancing solicitor, and failing agreement Mr L, to prepare a vendor’s statement (Section 32) for the sale of the jointly-owned property at E (“the real property”)
That within seven days of any request from the conveyancing solicitor, each party provide necessary documents for the preparation of the vendor’s statement (Section 32).
That each party do all things required to pay up to $4,330 from the parties’ joint Commonwealth Bank Award Saver account towards works (including but not limited to external painting, exterior cleaning and rubbish removal) in preparing the property E for sale as recommended by the selling agents.
That within seven days of the completion of the vendor’s statement (Section 32), each party sign all documents to put the jointly-owned property at E on the market for sale on terms and conditions as may be agreed and failing agreement as recommended by the selling agents with the following additional terms and conditions:
a.For sale by auction, with the auction to take place within 28 days or, if recommended by the selling agent, by private sale prior to that date;
b.The selling agent be A Pty Ltd;
c.The reserve price be as nominated by the selling agent or a reduced reserve price as agreed between the parties;
d.The terms of settlement of the sale be 60 days or as otherwise agreed; and
e.The agent’s Exclusive Authority Period be 30 days after the auction date.
That the proceeds of sale be applied:
a.Firstly in payment of all selling expenses including vendor’s statement, agent’s commission and advertising;
b.Secondly in discharge of the mortgage to Commonwealth Bank of Australia and any other encumbrance affecting the real property.
c.Thirdly, in payment to the wife of:
i.55% of the balance;
ii.The sum of $22,260;
d.Fourthly, the balance remaining thereafter to the husband.
That liberty be reserve to either party to apply with respect to the terms, conditions and execution of the sale.
That pending settlement of the sale of E property the husband provide reasonable access to the real property to tradesmen, the selling agent and prospective purchasers.
That pending settlement of the sale of E property the wife and/or her nominated parties be provided reasonable access to the real property for the purpose of preparing the property for the sale.
That pending settlement of the sale of the property, the husband have the sole right to occupy the real property and that during such right of occupation:
a.Unless otherwise agreed between the parties, the husband pay from his own bank account the following:
1.Council and water rates, home and contents insurance as they become due;
2.A garden maintenance company on at least a three-weekly basis;
3.Mortgage instalments as they fall due; and
4.A cleaning company on a weekly basis for the cleaning of all internal living areas of the house;
b.The parties hold their respective interests in the real property upon trust pursuant to these orders.
c.Neither party encumber the real property without the consent in writing of the other party.
That within 14 days of the signing of the contract of sale or by 30 April 2007 whichever comes first, the husband provides access to the wife and/or her nominated parties to E property for the purposes of dividing contents.
That within 14 days of the signing of the contract of sale or by 30 April 2007 whichever comes first, the furniture and other contents in E property be divided by the parties on a “pick by pick” basis from a list prepared by them.
That within seven days the husband provides to the wife her personal items and all furniture belonging to her parents from E property.
That the wife transfer to the husband her interest in money standing to the credit of the parties in their joint bank account.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
a.Each party be solely entitlement to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband, save as provided in paragraph 28 to 30;
b.Each party forego any claims they may have to any superannuation benefits belonging to or earning by the other;
c.Insurance policies remain the sole property of the beneficiary named therein;
d.Each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled pursuant to these orders; and
e.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That all outstanding applications otherwise be dismissed.
That pursuant to s 65A(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Chief Justice Bryant delivered this day will for all publication and reporting purposes be referred to as Keegan & Hart.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1035 of 2005
| MS KEEGAN |
Applicant
And
| MR HART |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings concern the husband and wife, both aged 42 who separated in March 2004. They have one child, a daughter who is aged 8. The child lives with the wife and suffers from cystic fibrosis. The proceedings were commenced by the wife in 2005 and are proceedings for both property settlement and parenting orders.
Applications and Orders Sought
Various interim orders have been made in the course of proceedings. The current parenting orders in place provide for the parties to have joint responsibility for the long term care, welfare and development of the child and further provide:
a)that until further order [the child] reside with the wife;
b)that until further order [the child] reside with the husband at the following times:
i)from after school on Friday until 5:00pm on Sunday (or Monday if it is a non-school day) each alternate weekend;
ii)from after school on Thursday until school commences on Friday in the week after the contact weekend;
c)As otherwise agreed from time to time.
i)The husband’s contact be suspended on the weekend including Mother’s Day from 5:00pm on Saturday, 7 May;
ii)The husband have liberty to telephone [the child] at 6:00pm each Wednesday evening or another evening as agreed;
iii)Each parent keep each other informed at all times of any matter relevant to [the child’s] medical condition, and treatment and education;
iv)Each parent have liberty to have access to any information concerning [the child’s] education and to be involved in any part of her education in which parent’s usually participate;
v)That until further order, [the child] have contact with the husband:-
(1)For five days during the first, and one week in the third, term school holidays each year as agreed, and failing agreement, the last week commencing 2006;
(2)For one week during the long summer school holidays as agreed and failing agreement commencing 27 December 2006;
(3)For Christmas in odd numbered years from 3:00pm 25 December until 3:00pm 26 December and in even numbered years from 3:00pm 24 December until 3:00pm 25 December;
(4)In term 3 2005 school holiday period from after school 3.30pm on the first and last Friday until 5pm Sunday and from 5pm Friday until 5pm Monday in the middle weekend;
(5)For the child’s birthday and the husband’s birthday by telephone if it is a school day, and if a non-school day from 9:00am to 1:00pm;
(6)Contact be suspended if the child or wife’s birthday falls during a contact Saturday or Sunday;
(7)On Father’s day weekend from 5pm Saturday with contact suspended from 5pm Saturday on the Mother’s Day weekend;
(8)From 10am Saturday until 5pm Easter Sunday each alternate year;
(9)Weekend contact be suspended during school term holidays but only upon the Husband commencing periods of one week of contact.
In summary therefore, the position at the time of hearing was that the child lived with the mother and spent time with the father during term time from after school Friday until 5:00pm Sunday on alternate weekends, and after school Thursday until the commencement of school on Friday in the other week. Holiday contact was for five days during the first and one week in the third term school holidays and one week during the Christmas holidays, with weekend contact taking place throughout the balance of the Summer holidays.
Whilst at the commencement of the case there were several issues in dispute about parenting orders, by the conclusion of the evidence there was really only one matter left in contention. That concerned the overnight contact on Thursday night in the week in which the husband’s weekend time spent with the child did not occur.
Property Issues
Similarly to the parenting issues some of the issues regarding property and in particular what items would be included in the pool of assets resolved themselves during the course of the hearing.
At the conclusion of the hearing, the matters in issue concerned some add backs to the asset pool and whether there should be a percentage adjustment in favour of the wife for s 75(2) matters. Both parties conceded that the parties had over the course of their marriage and including pre-marriage contributions, both financially and non-financially, and in their capacity as parents, contributed equally to the acquisition, conservation and improvement of the property of the parties. The husband asserted that there should be no adjustment of s 75(2) matters whilst the wife sought a 7.5% adjustment in her favour. Whilst the husband’s position at the commencement of the hearing was that he wished to retain the former matrimonial home in E, by conclusion of the evidence he conceded that the property should be sold as sought by the wife.
Having regard to the matters that were ultimately a matter of agreement between the parties it is unnecessary for me to set out in detail in these reasons the financial history of the parties and the background that is referred to in these reasons is merely that sufficient to explain the context of the relatively confined dispute between the parties.
Background
Both parties are aged 42. They commenced cohabitation in early 1991 and were married in November 1993. The husband commenced his employment history as an engineer and the wife as a structural engineer. In the early part of the marriage, she undertook a graduate diploma of management and obtained a Master of Engineering Science degree. From February 1999 to date the husband has been employed by the C Group as a civil engineer. The wife commenced employment with P Company in mid-1996. Both worked full time until just prior to the birth of the child, who was born in February 1999. Several months after her birth, the child was diagnosed with cystic fibrosis.
The wife returned to employment with P Company in October 1999 working three days a week and since that time the wife’s mother and to a lesser extent, her father, have assisted in the care of the child. That assistance continues at the present time and will continue into the future.
The parties separated in March 2004 when the wife left the former matrimonial home. The husband has continued to reside in the former matrimonial home since separation. The wife and the child lived for eight or nine months with the wife’s sister close to the former matrimonial home and then in early 2005 the wife moved with the child from the E area to M and commenced living in a de facto relationship with Mr S. In 2005 the child commenced attending the nearby primary school. The mother’s partner has three children aged 10, 8 and 7 years, who spend time with him from Wednesday to Sunday each alternate weekend. The child formed a good bond with his children and once regular arrangements were made for the child to spend time with her father these arrangements were, as far as possible, designed to enable the child to be at home with her mother when the mother’s partner’s children were with their father. It is common ground between the parties that once the wife moved to M the travelling time between E and M particularly at peak times is between 30 and 45 minutes driving time.
At the time of the hearing, the Husband continues to occupy the former matrimonial home although by the end of the hearing he had conceded that it would not be financially possible for him to retain the home, and it would have to be sold. The wife’s circumstances changed shortly before the hearing in December 2006. As a result of the pressures of organising two households and differing children’s schedules. As a result, the wife and her partner separated, although they remain friends, as do the children. The wife’s evidence, which I accept, is that she and her partner remain supportive of each other, but it was too difficult to remain living in one household. The wife lived with her family in regional Victoria for some time over Christmas but obtained independent rental accommodation in the area near the child’s school in mid January 2007.
Her financial circumstances also changed in November 2006. She accepted a redundancy package from P Company in anticipation of her position being made redundant and obtained a full time position at the end of January 2007 for a period of 12 months as a Manager with the Victorian Public Service. The practical effect is that while she was working three days a week at P Company, the wife now works full time in her present position. She has some flexibility but requires the assistance of her parents to collect the child from school on at least three days per week. Fortunately, for both the husband and wife, the wife’s parents are healthy and willing and able to assist to the extent necessary to care for the child.
Parenting issues
By the end of the hearing, the only issues in dispute between the parties was whether the child should spend alternate Thursday nights, overnight, with the husband as is the present position and sought by him, or whether alternatively, as the wife sought, Thursday night contact should simply be from after school until 7:30pm.
Applicable Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with parenting orders. Orders concerning parental responsibility, who the child is to live with and spend time and the communication the child is to have with another person or persons, are all parenting orders. Ultimately a decision must be made in the best interests of the child or children (section 60CA), but the Act provides a framework in which that decision must be made. In Goode and Goode [2006] FamCA 1346 the Full Court said at paragraph 10:-
Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
The framework in s 60CC has two levels to it, the primary considerations referred to the ss 60CC(2) and the additional considerations set out in ss 60CC(3). The primary considerations in section 60CC(2) 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.
The additional considerations are to be found in ss 60CC(3), (4) and (4A).
The objects and principles from which Part VII is to be applied are clearly set out in ss 60B(2). The principles in particular provide that except where it is contrary to a child’s best interests:-
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
These principles provide the context in which the factors in s 60CC are to be examined and ultimately weighed. At paragraph 65 of Goode (supra) the Full Court summarised the effect of the amendments to Part VII as follows:-
In summary, the amendments to Part VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.
In considering what the word “consider” meant when intending to make an Order for equal shared parental responsibility the Full Court said (paragraph 64):-
While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).
This case must be decided within the rubric of the legislation as set out by the Full Court in Goode (supra).
The Dispute
The matter that remains in dispute in relation to the child concerns whether or not the child should spend overnight on each alternate Thursday night with her father.
Despite the existence of an interim order, the wife opposed the continuation of alternate Thursday night, overnight, contact. There are two parts to her objection arising from the travelling time between the former matrimonial home and the child’s school. The first was that the child is often tired on Friday when she returns home and the second is that the child has often been late for school on Friday mornings. The wife’s assertion of the child’s tiredness is not minimal in the circumstances of the child’s illness.
The uncontroverted evidence of Professor H of the Royal Children’s Hospital, who is the child’s treating specialist, is to the effect that:
Cystic fibrosis remains a life limiting incurable condition based principally on the progressive lung destruction that occurs in this condition secondary to chronic bacterial infection of the lungs. While the lungs at birth in cystic fibrosis are felt to be normal in structure, the underlying biochemical defect inherited in this condition produces an abnormally viscus mucous which is present from birth and daily airway clearance to ensure no accumulation of this thickened mucous is an integral part of day-to-day therapy. Children who have no bacterial infection within their airways will therefore still require regular airway clearance therapy. This therapy is increased in intensity when secondary infection occurs either acutely during a short lived acute respiratory tract infection or chronically, should chronic bacterial infection of the airways occur.
Dr H’s report indicates that the child is treated in the following way:
·Creon, which is a pancreatic enzyme supplement, taken in one to two capsules per main meal;
·Regular laxative therapy;
·Regular physical therapy;
·Two inhaled products, Seretide and Pulmozyme;
·Seretide is an anti-asthma medication administered twice daily;
·Pulmozyme is a cystic fibrosis specific mucolytic agent which is administered by the nebuliser route once daily regularly.
What this means in practical terms is that each morning the child requires at least fifteen minutes physiotherapy, mostly percussion, by the relevant parent, use of PEP equipment for between 5 and 10 minutes and administration of Pulmozyme.
In the wife’s household, the child gets up at 7:00am in order to have her routine carried out, have breakfast, get ready for school and be taken to school.
As the wife is now working her Mother and Father travel to collect and take the child to school at least three days a week. The child attends gym for three hours on Tuesday, Wednesday and alternate Saturday mornings when she is not with her father.
It is obvious, and common ground, that with a drive of between 30 and 45 minutes from his home to the child’s school the husband will need to arrange to carry out the child’s regime in sufficient time to get her to school on time on alternate Friday mornings when she is with him. His evidence is that he gets the child up at 6:45am.
Although the wife has concerns about the child’s tiredness the focus of her concern was on learning about the child being late to school. The wife’s evidence was that she had had discussions with the husband in which he had told her that the child was late for school, and that he had a prior arrangement with the teacher that she could be up to 15 minutes late without the school’s normal procedures upon lateness being activated. The wife said that the husband had told her that the reasoning for the lateness was the regime associated with her cystic fibrosis. The wife’s concern was that it was the wrong message to give the child that her illness was something that entitled her to some form of special treatment and in any event it was improper to make a private arrangement with the teacher in view of the school’s own procedures for late students.
These matters were put to the husband in cross-examination. He prevaricated about the lateness when questioned by the wife’s Counsel but finally conceded that the child had been regularly late for school when she spent overnight on Thursdays with him, but generally no more than five minutes and he had apologised to her teachers. He conceded that it was not in the child’s interests to use her illness as an excuse. When specifically asked by me about what plans he had for the future to ensure that the child was not late, he suggested various options such as waking her earlier or arranging with the wife to change her medication regime, but did not offer any immediate solution that gave me any confidence that he had a plan that he would execute to ensure that she was not late in the future.
It hardly needs saying that if she was regularly five minutes late, then a five minute earlier start to the day would logically cure the problem.
Given the husband’s agreement to sell the former matrimonial home he was cross-examined by Counsel for the Wife about the possibility of him moving close to the child’s school which would enable late issues to be avoided, reduce the travel time for the child and enable him with the wife’s consent, to have her overnight on Sundays, on alternate weekends, as well. The husband resisted suggestions that he should move from the area where he was living. His reasons were that he had family located in a nearby suburb and he had friends and support in the area and with whom they engaged in social activities together when the child spent time with him.
Whilst I accept the evidence that the husband has supports and family nearby, and does not wish to move as far away as M where the child’s school is, his evidence begs the question of moving slightly closer to her school which would reduce the travel time, remove the prospect of her being late and still enable him to be close to friends and family. Again, he made no constructive proposals to resolve what he himself admitted was an unsatisfactory situation.
I do not intend to set out in full the matters in s 60CC(3) because the issue between the parties is such a limited one. There is no dispute between the parties that the child and both parents enjoy a close relationship and the child has the love and affection of both parents, and grandparents. There is no dispute that she should have a meaningful relationship with both parents or that she should spend a significant and substantial time with her father. The dispute is simply whether it is in the child’s interests for her to continue an arrangement whereby she spends overnight on Thursday night in alternate weeks with the father given his conceded difficulty in getting her to school on time and the consequent tiredness that arises from the travel involved. Indeed, if he moved closer to her school, the wife proposes that the child spend even more time with him.
I find that it can fairly be said that the father’s attitude to some fairly simple changes in arrangements to give confidence that the child will be at school on time, suggests a stubbornness on his part to make any real concession to a proposal which he sees emanating from the wife.
This may be because of the apparently increasingly difficult relationship between the husband and wife to the extent that they are virtually unable to communicate face to face, and other forms of communication are extremely limited.
It is to their credit that they have been able to cooperate to the extent necessary to deal with the child’s serious illness, but most regrettable that their relationship appears to be deteriorating rather than improving, since their separation.
Whilst these comments have some limited relevance to the discrete issue I have to determine, the complete breakdown of any relationship between them does permeate their interactions and for that reason I propose to make orders that they attend a cooperative parenting course to enable them to endeavour to repair their relationship so that for the child’s sake some form of communication is possible. In the meantime I propose to accede to the wife’s application, not opposed by the husband, that changeover be at the child’s school or at a McDonalds Restaurant so that any exchanges between them take place in a public place.
A Family Report was prepared by Ms B. At paragraph 23 of her Report, Ms B noted that:
23. [The mother], [father] and [the mother’s partner] were all similarly very pleasant, cooperative, punctual and reliable in the interviews; and in providing information. At interview they all seemed rigorously inclined to provide only commentary upon [the child]; and to refrain from criticism of each other and disclosure of emotions. The predominant impressions of their relationships other than the mutual politeness noted about, was their affection for and devotion to [the child], and an air of palpable sadness and discomfort about their dispute and its litigation.
24. Despite this, there is significant underlying antagonism between [the mother] and [the father], as this litigation indicates. Whatever mutual attractions sustained their early marriage; personality differences were highlighted after [the child’s] birth and have magnified post-marital separation. [The mother] aired frustration that [the father] is difficult to communicate with and that he is indecisive. She complained that he does not provide useful information about [the child] after visits. She has lacked confidence in [the father’s] capacity to manage [the child’s] lifestyle and treatment needs e.g.diet. [The mother] suspects that he continues to be a overly anxious and emotionally-dependent parent, which may constrain [the child’s] independence and confidence.
25. [The father] on the other hand seemed resentful that [the mother] has taken control of [the child] to this exclusion and is critical of his efforts; that she tends to emphasis career and schedules about emotional nurturing; that she has not always been transparent in her dealings with him and that she has taken a tough stance in the litigation to his disadvantage…
26. Apart from differing emotional responses to the marital separation, it was plain that [the father] and [the mother] have fundamentally different, even opposing, personal approaches to issues. Thus they are likely to struggle with misunderstandings in communication and conflicting emphases about [the child’s] needs and welfare.
Ms B’s insights were demonstratively clear in the presentation of their evidence before me.
The husband himself conceded that it is not in the child’s interests for her to be regularly late to school nor should her illness be used as an excuse. Nevertheless he did not seem inclined to offer any positive steps that might lead to an amelioration of this problem.
It is important in my view that the child have a meaningful relationship with her father and that includes an overnight period when he can take her to school the following day. Not only will the child have the benefit of her father’s involvement with her school if the arrangement continues, but she will also have the benefit of him being involved in her treatment regime and the rigor of getting her to school from his household, again a benefit for the child. It is also consistent with the provisions of ss 65DAA (3) which states that:-
(3)For the purposes of ss (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.
The provision for a child spending substantial and significant time is subject to the best interests of the child and reasonable practicality. Ss (5) provides that in considering whether it is reasonably practicable for a child to spend 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.
In my view it is in the child’s interests for her to have substantial and significant time with the husband which includes a period overnight during the school week. However, this case then becomes one of whether it is reasonably practicable for her to do so in circumstances in which the husband seems unable to ensure that she is regularly on time for school.
In my view he is able to do so and there are many simple steps he could take which would achieve that result. It would obviously be sensible for him to move closer to the child’s school when the former matrimonial home is sold. This does not necessarily require him to move a vast distance, but even a short distance closer would be of assistance. I do not intend to require him to do so, but I propose to make orders that leave it his responsibility to ensure that the child is not late for school and that if she is, then for a period of time the overnight contact on alternate Thursdays will cease. In my view it is a simple matter, and easily achieved for the husband to ensure that the child is not late for school and it is not reasonable for the continuation of a situation where she is consistently late and that lateness is attributed to her illness.
Property
Applicable Principles
The jurisdiction to make property orders derives from section 79 of the Family Law Act which confers a wide discretion and provides that a Court will not make an order unless it is just and equitable to do so (s 79(2)). After taking into account the matters referred to in s 79(4), the Full Court decisions and particularly Hickey and Hickey (2003) FLC 93-143 have established the approach to be taken by a Judge determining a property dispute.
This involves, first the Court making findings about the identity of the property, liability and financial resources of the parties at the date of the hearing. Secondly, the Court must identify and assess the contributions of the parties within the meaning of s 79(4)(a),(b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court identifying and assessing the relevant matters referred to in s 79(4)(d), (e), (f) and (g) including any matters referred to in s 75(2) so far as they are relevant to determine the adjustment (if any) that should be made to the contribution based entitlement of the parties. Finally the court should consider the effect of those findings and determinations, and resolve what order is just and equitable in all the circumstances of the case.
The parties agreed on the values of all relevant assets and on the majority of items that form the basis of the pool of assets. They also agreed that pursuant to ss 79(4)(a),(b) and (c) the contributions of the parties to the acquisition, conservation and improvement of the property of the parties, whether or not that property has ceased to exist, should be regarded as equal. The dispute between them was about whether there should be additions to the pool and whether there should be any adjustment in favour of the wife for any of the matters in ss 75(2).
There was no dispute about the value of the existing assets and the matters agreed between the parties can be set out as follows:
Assets at Date of Hearing
Value
JOINTLY OWNED
1
E property
$750,000
- $43,400
706,600
Joint Bank Account
34,330
WIFE’S ASSETS
3
1994 Mitsubishi Lancer
2,000
Telstra Shares (1,200 shares at $4.39)
5,268
HUSBAND’S ASSETS
11
2004 Nissan Pulsar
12,000
12
Employee Shares
20,000
The parties agreed that as both had continued working after separation and had continued to save from their respective incomes, that their bank accounts acquired since separation should not be added back to the pool nor should money in their respective solicitor’s trust accounts. On the same reasoning, they did not seek to add in money already paid for legal costs.
The matters in dispute in relation to the constitution of the asset pool are as follows:-
a)What amount should be added properly as being the proceeds of the joint bank account;
b)What funds should be added back for funds drawn by the husband for his use from the joint bank account;
c)What should be added back for money drawn down by the husband from the mortgage redraw;
d)Having regard (a), (b) and (c), whether the Nissan Pulsar motor vehicle purchased by the husband should be included;
e)To what extent the wife’s shares and managed funds should be included;
f)Whether the superannuation entitlements of each of the parties should be omitted all together or whether they should be included, and if so, at what date;
g)Whether the wife’s redundancy and leave payment should be added in or treated as a financial resource and if added, in what amount.
Joint Bank Account
There was really no issue about the fact of withdrawal of funds from the joint bank account from the husband. The Commonwealth Bank cash management account, which was tendered as an exhibit, shows that the wife deposited her wages shortly before separation and then withdrew them at or about the time of separation. The statement show that on 18 March 2004 there was $10,555.25 remaining in the joint account. The husband admits that following that time he had the use of the account. It was submitted on behalf of the wife that the amount which should form the starting point for consideration of what should be added back was a notation to the Orders of 29 April 2005. That notation reads as follows:-
A.The wife consents to paragraph 9 on the basis of the Husband’s acknowledgement that from the joint CBA Cash Management Call Account he has had access to approximately $12,000 of which $5,000 was used to purchase the husband’s car and which is to be added back to the pool of assets to be divided between the parties.
Counsel contends that that notation should govern the amount rather than the actual bank statement. I do not agree with that submission. The bank statement was tendered by the parties and it is clear that once the wife withdrew her last wages payment there was never $12,000 in the account. The notation talks of “approximately $12,000” and in any event is not binding in its form. I find therefore that the husband had the benefit of the funds in the joint account following the separation of the parties of $10,555.25 which I round off to $10,555.
Money drawn down from the Mortgage re-draw facility by the husband
The husband used $5,000 of the funds in the joint account to purchase his Nissan Pulsar motor vehicle and had the benefit of the balance of the sum of $10,555. In addition, with the wife’s consent, he withdrew $15,000 from the mortgage account. The mortgage was at $35,300 when the parties separated and is now $43,400. The husband has drawn down $15,000 to put towards the purchase of the Nissan Pulsar motor vehicle, but he has also occupied the former matrimonial home and paid the mortgage. The mortgage was approximately $80 per week, a modest amount. Taking into the account the money taken by the husband and that repaid to the account, the difference between the mortgage at separation and at time of hearing, is $8,100, which is the net amount of which the husband has had the benefit.
I propose to add back to the asset pool the sum of $10,555 in relation to the joint account and $8,100 in relation to the mortgage, both of which the husband has had the benefit. However, I will omit the car, purchased with the funds drawn down, which I have added back to the pool.
The wife’s shares and managed funds
It is common ground that the wife’s shares and managed funds have a value of $16,490. The wife contends that $5,490 has been the post-separation increase and should be disregarded. However, the post separation increase, it was conceded on behalf of the wife, was solely as a result of the interest paid and the increasing value of the investments over time. Counsel for the wife contended that these represented investments pre-cohabitation, but there is no evidence to support that contention. At paragraph 22 of the wife’s Affidavit sworn 2 December 2006 she states:
When the respondent and I commenced living together I had several assets including a car, some cash, some furniture and superannuation entitlements valued at $45,000. The respondent had some cash and superannuation entitlements amounting to about $65,000.
In addition to the fact that there is no assertion that the wife had any investments, shares or managed funds, the pre cohabitation contribution the wife made was offset against the husband’s pre-cohabitation contribution of some $65,000 and subsequent contributions of the parties during the marriage of both a direct and indirect nature to arrive at their concession of equality of contribution. Accordingly, I propose to take into account the wife’s shares and managed funds at their value of $16,490.
Superannuation
Both parties have superannuation and neither party seeks an order splitting the superannuation in any way. Both will retain their respective interests which are not significantly different in value. Nevertheless there is a difference. At the date of separation, the husband’s superannuation had a value of $67,500 and the wife’s $56,700.
As at 30 June 2006 which is the latest date at which there was evidence of value of each of the superannuation entitlements, the wife’s superannuation had a value of $84,000 and the husband’s had a value of $98,473. Despite the fact the superannuation would have been contributed to post-separation, having regard to the contributions of the parties during the marriage and the continuing contributions post-separation, particularly in the wife’s case as homemaker, and the imperative to generally take into account the assets at the date of the hearing (see Hickey (supra)), I propose to take into account the most current consistent figures and to add in the husband’s superannuation as at 30 June 2006 being $98,473 and the wife’s being $84,000.
The wife’s redundancy and leave payments
Upon cessation of her employment with P Company the wife received a total of $59,403. This was made up as follows:
Long-service leave entitlements $13,920.31
Annual Leave $5,130.77
(less $900.00 salary deficit)
Redundancy
a.Accrued during full time
work prior to the birth of the child $21,390.00
b. Part-time work after the child’s
birth $28,566.00
TOTAL $68,107.00
Less Tax $ 8,704.08
$59,403.08
The wife did not commence her full time employment with P Company until mid-1996 and although part of her service was prior to the child’s birth, it was all during the marriage. There was no basis in my view for discounting the redundancy part of the wife’s payment although long-service leave and annual leave should be deducted. The total of the wife’s redundancy portion is $49,956. According to exhibit “W3” which was the final payment statement from P Company the tax payable on the redundancy is $2,915 leaving a net figure to be brought into account of $47,041. In including this sum in the asset pool I note that whilst a redundancy is usually payable to offset income that otherwise would have been earned during a particular period, the wife has been fortunate in obtaining alternate full time employment in mid-January 2007.
Accordingly, I find the asset pool to be as follows:
JOINTLY OWNED
1
E Property
$750,000 less mortgage
- $43,400
706,600
2
Joint Bank account
34,330 less the expense of preparing the property for sale
- $3,400
$30,000
SUBTOTAL
736,600
WIFE’S ASSETS
3
1994 Mitsubishi Lancer
2,000
4
Shares & Managed Funds
16,490
5
Redundancy Payment
47,041
6
Telstra Shares
5,268
7
Superannuation
84,000
SUBTOTAL
154,799
HUSBAND’S ASSETS
9
Employee Shares
20,000
10
Drawn from the joint account
10,555
11
Drawn from the mortgage drawdown facility
8,100
12
Superannuation
98,473
SUBTOTAL
137,128
TOTAL
1,028,527
Section 75(2) factors
Counsel for the husband contended that the wife’s income of $110,000 plus 9 per cent superannuation contribution meant that she was in a better position than him as far as her income earning capacity was concerned. In addition, it was submitted that the husband is paying child support and the wife receives some government benefits of $49.00 per week for having the care of a disabled child. He contended that there were no other relevant matters in section 75(2) and that in circumstances there should be no adjustment by reason of any of the matters in s 75(2).
The wife’s position was that she should have an adjustment of 7.5 per cent. Counsel acknowledged that at present she has a full time job which provides for an income of more than the husband, but that when tax is taken out her income is similar to that of his. It was also contended that her capacity to earn a similar amount to that of the husband is predicated on the basis that her parents are able to assist her with the care of the child.
I make the following findings:
a)Both parties are aged 42 and the wife is in good health. The husband suffers from Crohn’s Disease which is debilitating for him at times, but does not appear to prevent him from working full time and his salary is $78,000 per annum plus superannuation.
b)Both parties have the capacity for appropriate gainful employment and subject to any adjustment will have similar income, property and financial resources.
c)The wife has the major responsibility for the care of the child. The time she spends with her father could be increased if he were to move closer to her school, but the evidence was that he does not propose to do so and accordingly the preponderance of the child’s time is spent in the care of her mother. Following the child’s birth up until November 2006 when she left P Company, the wife worked three days a week and relied upon her parents to assist in the care of the child. Her capacity then to work three days a week and her capacity now to work full time depends upon the contribution her parents make. If it were not for her parents then she would not be able to work full time and her capacity to work full time would be affected and she would have to pay for child minding. Indeed given the child’s illness even this may not be appropriate.
d)The wife’s employment contract at the moment is for twelve months. Whether she will get a full time position or find something with more flexibility is at this stage unknown, but I accept and find, that given the choice, the wife would prefer to have a position which was not full time and enabled her to provide for out of school care for the child for as much time as she can.
e)It is also the case that during the holidays the wife will be required to provide the majority of the care for the child after the father has cared for her for two weeks during the Christmas holidays.
f)In the longer term, given the evidence about the child’s illness and the propensity for periods of ill health, the wife will on the balance of probabilities be the parent who will be responsible for providing care for her during periods of illness, whether that be by arranging carers herself, whether they be family or others, or by having less than full time employment and assuming that responsibility herself. Dr H said this about the child in his report:
Chronic bacterial colonisation of the airways is an almost universal occurrence in patients with cystic fibrosis and therapy is aggressively aimed at delaying the onset of this bacterial colonisation for as long as possible.
...
I believe she will continue to have intermittent abdominal pain and require regular assessment and treatment for these symptoms. Her chest symptomology will continue and need to be aggressively treated with both physiotherapy and other forms of airway clearance in addition to antibiotics administered either orally or intravenously.
…
Cystic Fibrosis remains a day to day challenge for patients and families with cystic fibrosis. As such, ideal therapy involves day to day attention to all the described aspects of cystic fibrosis including nutrition, bowel symptoms and respiratory symptoms. This is done on a regular basis, of course, by families at home and supported by both the community based Cystic Fibrosis Care Team and the hospital based Cystic Fibrosis Care Team.
g)Whilst the child’s current health is pleasing, the longer term prognosis leads me to find that the wife will bear the major responsibility for periods when the child requires more intensive care and this will effect her longer term capacity to work full time and earn the income that she is presently earning.
h)I take account under section 75(2)(o) that the wife’s capacity to work at all is largely based upon the willingness of her parents to assist her and that a diminution in that assistance because of their age or infirmity will place a greater responsibility on the wife to provide for the child’s needs.
In the circumstances I am satisfied that these factors require an adjustment of 5 per cent in favour of the wife.
The final consideration that I am obliged to make is to consider whether the orders that I am making will provide a just and equitable outcome upon a consideration of all relevant matters. I note that the former matrimonial home will be sold and that each party will receive their proportion of the proceeds of sale. Both of them have money in the bank which is not brought to account, each of them has deposited funds to their solicitors in trust. Whilst there are some add backs in the case of the husband, the motor vehicle purchased from use of those funds has not been included in the asset pool. Both parties will retain their superannuation and will be able to add to it from their respective earnings. Both have already done so since 30 June 2006. I am satisfied therefore that the percentage division and the Orders that I propose to make are just and equitable in all the circumstances.
Omitting the value of the former matrimonial home which is to be sold, the total value of the net assets is $321,927. Of that amount the wife has $154,799. She is entitled to receive $177,060. Thus the wife should receive a further sum of $22,260 in addition to 55% of the net proceeds of sale of the former matrimonial home.
I certify that the preceding sixty-eight (68)paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant.
Associate:
Date: 1 March 2007
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