KML & RAE

[2006] FMCAfam 528

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KML & RAE [2006] FMCAfam 528

FAMILY LAW – Children – shared parental responsibility amendments and applicability of case law under former Part VII.

FAMILY LAW – Children – requirements for “substantial and significant time” – whether parenting proposal involves “substantial and significant time” – issue of fact – evidence relevant to determining whether parenting proposal involves “substantial and significant time”.

FAMILY LAW – Property settlement – assessment of contributions – separate assessment for superannuation and non-superannuation assets – assessment of other factors.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 75(2) and 79

B & B: Family Law Reform Act 1995, (1997) 21 Fam LR 676, (1997) FLC 92-755
U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112
Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224
M & M, (1988) 166 CLR 69, 12 Fam LR 606, (1988) FLC 91-979
Brown & Pederson, (1991) 15 Fam LR 173, (1992) FLC 92-271
Hickey & Hickey; A-G for Commonwealth (Intervener), [2003] FamCA 395; (2003) FLC 93-143; (2003) 30 Fam LR 355
Coghlan & Coghlan, [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220

Applicant: KML

Respondent: RAE

File Number: PAM 3036 of 2005

Judgment of: Halligan FM

Hearing dates:	12, 13, 14 September 2006
Date of Last Submission:	14 September 2006

Delivered at: Parramatta

Delivered on: 20 October 2006

REPRESENTATION

Counsel for the Applicant: Mr Dura

Solicitors for the Applicant: Margiotta Solicitors

Counsel for the Respondent: Ms Judge

Solicitors for the Respondent: Dettmann Longworth Solicitors

ORDERS

1. RAE (the husband) and KML (the wife) shall have equal shared parental responsibility for RH-OE born 11 July 1992 and JLE born

   
   

   26 August 1993 (the children).

2. The children shall live with the wife.  This order shall take effect on the parties ceasing to live at the same address.

3. The children shall spend time with the husband:

   (a)during school terms, from after school Friday to before school Monday each fortnight commencing the first Friday after the parties cease living at the same address, and recommencing on the first Friday of each school term thereafter;

   (b)during school terms, from after school Wednesday to before school Thursday each week, commencing on the first Wednesday after the parties cease living at the same address;

   (c)commencing in the first school holidays after the parties cease living at the same address, for half of all school holidays as agreed between the parties or failing agreement, for the second half of school holidays commencing in 2006 and each alternate year thereafter and for the first half of school holidays commencing in 2007 and each alternate year thereafter.

4. Commencing when the parties cease living at the same address, despite order (3), the children shall spend time with:

   (a)the husband on Father’s Day from 9am to 6pm;

   (b)the wife on Mother's Day from 9am to 6pm;

   (c)the husband on the husband's birthday, from 9am to 12 noon if falling on a non-school day when the children are not otherwise to be spending time with the husband under these orders, or from 5.30pm to 7.30pm if falling on a school day when the children are not otherwise to be spending time with the husband under these orders;

   (d)the wife on the wife's birthday, from 9am to 12 noon if falling on a non-school day when the children are not otherwise to be living with the wife under these orders, or from 5.30pm to 7.30pm if falling on a school day when the children are not otherwise to be living with the wife under these orders;

   (e)with the husband for 3 hours as agreed on each of the children's birthdays if not otherwise spending time with the children under these orders; and

   (f)with the wife for 3 hours as agreed on each of the children's birthdays if the children are not otherwise living with her under these orders.

5. By consent, unless the husband's time with the children under these orders starts or ends before or after school, the husband shall collect the children from the wife's residence at the commencement of his time with the children, and the wife shall collect the children from the husband's residence at the conclusion of his time with the children.

6. Where the children's time with the husband under these orders starts or ends before or after school, the husband shall collect the children from or return the children to their respective schools.

7. By consent, the husband and the wife each shall not denigrate the other or the partner of the other in the presence or hearing of the children.

8. By consent, the parties may provide a copy of these orders to the children's schools.

9. By consent, each party shall be at liberty to attend the children's school (regardless of whether the children are present at the time), and it is noted that such attendance in not “contact time” nor a breach of these parenting orders.

10. By consent, both parents shall:

    (a)provide to the other parent as they are received copies of school reports and school newsletters;

    (b)advise the other parent of parent/teacher meetings and school functions such as open days and awards functions;

    (c)consult with the other parent in relation to the selection of schooling of the children;

    (d)consult with the other parent in relation to the religious education of the children;

    (e)advise of the residential or contact address and phone number(s) of the children and of any changes to that address;

    (f)advise the other parent of any emergency and urgent message contact number to contact and of any changes to that number;

    (g)when either parent wishes to take the child away on holidays that parent give to the other notice of the intended holiday specifying the intended destination, travel dates and contact numbers.

11. Within 3 months the wife shall cause the parties’ joint debt secured on the property at Chester Hill (“the former matrimonial home”) to be discharged and shall pay to the husband the sum of $139,905.

12. On the wife complying with order (11), the husband shall vacate the former matrimonial home and thereafter shall have no interest in the former matrimonial home.

13. If the wife does not comply with order (11), then within a further 3 months, the husband shall cause the parties’ joint debt secured on the former matrimonial home to be discharged and shall pay to the wife the sum of $187,820.

14. On the husband complying with order (13), the wife shall do all things and sign all documents necessary to transfer her interest in the former matrimonial home to the husband and shall vacate the former matrimonial home.

15. If the husband does not comply with order (13), both parties shall forthwith do all things and sign all documents necessary to cause the former matrimonial home to be sold and the proceeds of sale, after payment of the parties’ joint debt secured on the home and agents commission, legal fees and reasonable costs of sale, to be divided as to 57.3% to the wife and 42.7% to the husband.

16. Otherwise, each party is entitled to the exclusion of the other to any cash, personal property and superannuation interests in his or her respective possession or control.

17. Pursuant to s.106A, if either party fails or refuses to sign a document required to be signed by the party by these orders, a Registrar of this court may sign the document on behalf of the party.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Parramatta

PAM 3036 of 2005

KML

Applicant

And

RAE

Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. These are contested property settlement and parenting proceedings under the Family Law Act 1975.

The orders sought

1. In relation to parenting issues, in summary the wife seeks orders that the parties’ children live with her and spend time with the husband on alternate weekends and for half of school holidays.  Through her Counsel, she indicated she would not oppose the children spending one over night per week with the father, provided it was not Thursday night, and suggested that it might be from after school Wednesday to before school Thursday each week.  Counsel also indicated the wife agreed with certain parenting proposals by the husband concerning the children spending significant days with each of the parents.

2. In relation to parenting, in summary the husband seeks orders that the children spend equal time with the parents on a week about basis, subject to the arrangements that I have already alluded to of the children spending part of significant days with each of the parents.  He also seeks orders to facilitate each of the parents holidaying with the children, both in Australia and overseas.  He seeks a range of other orders in relation to the children to which the wife consents.

3. The parties are still residing under the one roof, and agree any parenting orders should not commence until that situation comes to an end, which it will on the property settlement orders being carried into effect.

4. By way of property settlement, in summary the wife seeks to retain the parties’ former matrimonial home, to assume sole responsibility for the mortgage secured on it, and otherwise proposes each party retain the property they currently possess.  The effect of the property settlement orders the husband seeks is that he retain the former matrimonial home in return for a payment of a sum to the wife sufficient to achieve an overall division of the parties’ assets in the proportions 57.5% to him and 42.5% to the wife.  However, during cross examination the husband conceded that the wife should have first option to retain the former matrimonial home, and if she could not do so then he should have second option to retain the home, and that if neither could retain the home it should be sold.

The evidence

1. The husband was born on 8 January 1960 and is aged 46.  The wife was born on 2 January 1968 and is aged 38.  The parties married on

   
   

   22 February 1992.  It is agreed that it is irrelevant to the cases each of the parties seeks to make whether the parties cohabited before marriage.  It is agreed that the parties separated in about the middle of 1998, residing under the one roof ever since.

2. There are two children of the parties’ marriage, RH-OE born

   
   

   11 July 1992 who is now 14, and JLE born 26 August 1993 who is now 13.

3. At the time of the parties’ marriage, the Husband owned a home at Lambton near Newcastle subject to a mortgage, a motor vehicle and he had some superannuation.  He had bought the Lambton property in April 1991 for $105,000 with a $75,000 secured loan.  Thus his equity at purchase was about $30,000.  He worked for the Electricity Commission.

4. The wife had no assets at marriage but had a debt for overpaid student allowance.  She was a full time university student.  The husband repaid between $1965 and $2500 to discharge the wife’s student allowance debt at or shortly after marriage.

5. At marriage the wife was expecting the parties’ first child and she discontinued her university degree which was about two thirds complete.  Some months after RH-OE’s birth in mid 1992, the wife commenced an accounting diploma course at TAFE.

6. After JLE was born in August 1993, it was discovered that he had problems controlling his bowels and even now on occasions soils himself, although the problem has improved over the last few years.  The parties agree that there is a diagnosed medical condition connected with this, which the husband says the wife calls “encopresis”, but they disagree on the significance of the medical condition to the soiling.  There is no medical evidence about it.

7. The husband clearly believes the soiling problem was primarily caused by the wife’s ineffectual toilet training of the child.  The wife clearly believes that this is a medical issue.  In the absence of expert medical evidence, I cannot definitively resolve this controversy, but I do note that the husband's evidence is that the boy suffers a bowel condition for which he has seen a general practitioner and a specialist, both of whom have advised that it is a problem the boy will “grow out of”.  I infer from this evidence that the husband has been advised that the boy’s condition is a medical one, and is not simply a function of the boy’s laziness or disobedience, which is how the husband has treated it.

8. There is an issue about the extent of the husband’s involvement in the care of the children during cohabitation.  The wife says the husband’s involvement was almost non existent.  The husband says he assisted the wife when he was home from work but concedes that the wife was the primary homemaker and parent.

9. While the precise extent of the husband’s involvement with the children can not be determined on the evidence, I am satisfied that it was more than the wife sought to assert.  Her evidence was in parts internally inconsistent on this issue, and on the issue of the husband’s financial support of her and the children.  For example, at one point in her evidence she said the husband was “never” home before 10pm when both the children would be asleep and she would heat up his dinner.  But elsewhere she says he shared the evening meal with her and the children.

10. On the evidence I am satisfied the husband was involved in the day to day care of the children but to a much lesser extent than the wife.

11. In 1995 the wife finished her diploma in accounting.  Also in 1995, in anticipation of taking redundancy, the husband took three months long service leave.  He painted the family home and researched jobs in Sydney.

12. In early 1996, the husband came to Sydney to take up a job.  He rented premises at Dulwich Hill.  The wife and children remained in the family home, the wife facilitating its sale.  The husband paid the mortgage, the car insurance and a weekly amount to the wife’s bank account for her living expenses and for her to pay the rates and utilities.

13. The husband took redundancy and received $75,000.00.  He discharged the mortgage on the family home.  He had worked with the Electricity Commission since 1984, up to his redundancy in 1996.  Thus, he worked for the Electricity Commission for 12 years, of which 4, or one third of the total, were during cohabitation.

14. In about April 1996, the home at Lambton was sold, netting about $115,000.00.  The wife and children joined the husband in the rented Dulwich Hill premises.

15. In October 1996, the husband and wife bought the former matrimonial home at Chester Hill in the wife’s sole name to shield the family home from possible business creditors of the husband.  The home cost $168,000.00.  The parties obtained a joint loan of $67,000.00 secured by mortgage on the home.  The balance to complete the purchase came from the proceeds of sale of the Lambton property.

16. From 1997 until the second half of 1998, the wife worked 11 days per fortnight.  The children were in day care 2 days per week and her mother cared for the children at other times both parents were working.

17. Between 1997 and 1998, the wife says that the weekly payments by the husband to her bank account ceased.  Elsewhere in her evidence she said these payments continued from 1996.  Because of this inconsistency I am not satisfied the husband did not contribute to the support of the family in 1997 to 1998.

18. In early 1998, the husband moved into a shed at the rear of the matrimonial home, converting it into his living quarters, although he continued to use the cooking, bathroom and laundry facilities of the home.

19. In about June 1998, the wife claimed Centrelink benefits on the basis of being separated, and child support.  I am satisfied this was about the time of separation based on the parties’ agreement that separation occurred in 1998.

20. The following month, in July 1998, the husband was hurt at work.  In about 2002 he received a $25,000.00 compensation payment which he used for his own purposes.

21. Since separation the wife has had occasional employment.  She worked as a shop assistant 2 days per week for six months in about 1998 or 1999; for three months in 2000; two nights per week 5pm to 8.30pm at $30 per night in 2001; for three months in 2002; part time in a takeaway food shop in 2003; in her sisters photo shop in 2004; performing office work in early 2005; and for one month in early 2006, with her working hours on occasion extending until 9pm, doing accounting work for which she earned $6139 gross.

22. In February 2001, the husband withdrew $8000 on the redraw facility on the joint loan secured on the former matrimonial home.  He applied these funds towards the purchase of a boat which cost approximately $22,000.00.  In January 2005, he sold the boat for $16,500.00 and has had the use of those funds.

23. The husband’s evidence is that over the 2 years after he bought the boat, he “paid back into the home loan account approximately $10,000 to cover the $8000 I had used to buy the boat”.  His evidence further is that before withdrawing these funds he asked the wife’s concurrence in him doing so, promising to repay the amount in full with interest.  The husband was not challenged in relation to this evidence.  Although it may be possible of more than one construction, on balance I am satisfied that this evidence, which I accept, means that the husband made additional repayments towards the loan over and above the normal repayments he was already paying to repay the $8000 he had withdrawn.

24. In April 2004, the wife paid $5697 to take the two children to the National Band Competition in Tasmania.  Both children were members of a participating band.  She did this without contribution from the husband.  The husband’s father had promised to pay the cost of this trip but unfortunately he died in December 2003 before doing so.  The husband’s mother later gave the wife $2000 in accordance with the husband’s father’s wishes.  The wife used these funds to buy new beds for the children.

25. At Easter in 2005, the wife paid for RH-OE to attend the National Band Competition, this time in Adelaide.  JLE did not attend as he had ceased to be a member of the band at this time.  Instead he spent this time with the husband.

26. The husband left JLE alone over night and went and stayed with his then girlfriend during this period.  The husband thought that as RH-OE was away JLE might feel that he was being given responsibility that he might enjoy by being left alone.  The husband says, and he was not challenged, that when he raised this prospect with JLE, JLE seemed happy and keen to do it.  However, on the evening he was left alone, JLE rang the wife a number of times, expressing fear of having been left alone.  He told the husband about this the following morning.  This incident calls into question the husband’s judgment, and calls into question his sensitivity to JLE’s needs, JLE being described as a very sensitive boy.  It also calls into question the nature of the relationship between JLE and the husband in that JLE apparently either preferred to look to the mother for comfort or felt he could not approach the father for it.

27. The wife in her evidence claimed to have made lump sum payments off the mortgage.  She says the total of these payments was $15,500.00.  She originally gave evidence that the total was $19,500.00.  She said that the $15,500.00 came from “my savings during periods when I have been in receipt of an income”.  In cross examination about one payment of $5000 made in 1997, the wife said that monies deposited to the account from which she withdrew the lump sum came from family payment, periodic payments from the husband direct to her account, and any income she earned.

28. Her evidence about her employment suggests that prior to the payment of this lump sum in early 1997, there had not been any period of regular employment by the wife.  There is no evidence from the wife as to when any of the payments other than the one payment of $5000.00 in 1997, that is before separation, were made.  There is no evidence any were made after separation.

1. In these circumstance, where I am taking into account as financial contributions by each of the parties, funds that they received either as income or otherwise from external sources, to treat these lump sum payments as an additional contribution by the wife would in my view amount to double counting.

2. In 2005, the husband’s grandmother died.  He has an interest in her estate which he believes to be worth about $12,000.00.  However, his interest he believes will not vest in him until the death of his two uncles.

3. The wife on entering the witness box at the commencement of her case, gave evidence for the first time of having shares in her name.  They were not disclosed earlier, despite the wife having sworn an affidavit and the financial statement on which she relied less than two weeks before the commencement of the trial.

4. Her evidence was that on the 17 August 1999, 3000 OneTel shares were bought in her name for $3655.40.  Further, on the 25 June 2001, 4000 Air NZ shares were bought in her name for $5736.90.  Later through a capital restructure of Air NZ these 4000 shares were converted to 800 shares.

5. The wife says the money for these purchases came from her sister,

   
   

   K-ML.  The wife said that these shares, although in her name, belonged to her sister.  She said they were bought in her name because she had a share trading account with Commonwealth Securities and her sister did not have a share trading account.  There was no explanation as to why her sister could not have opened a share trading account.  The wife’s sister was not called as a witness.  The wife produced bank statements in relation to an account in the name of her sister, showing a cheque withdrawal on 28 June 2001, for $5736.92.

6. In cross examination, the wife said that she had also purchased TAB shares through her Commonwealth Securities share trading account in her name.  She says they were bought at the time of the TAB float.  She says she bought 257 shares at the original issue price which she thinks might have been at about $2, using monies from her savings.  She said she sold these shares about 3 years ago, and while she could not remember the amount for which she sold them, she thought that she received about $3 per share.  She says she used these funds for living expenses.  She said she had no other shares.

7. She denied buying the shares in this particular way to prevent the husband or anyone else knowing what was happening.  She denied having given her sister money to hold on her behalf.

8. The husband seeks to have these shares in particular, and a general allowance in relation to the non disclosure by the wife of her true financial position, brought to account in the pool of divisible assets by writing back the actual purchase price of the Air NZ shares, namely $5736.90.

9. It was submitted on behalf of the husband that the wife did not make a proper disclosure of her financial circumstances.  That is clearly correct.  The wife has a TAFE diploma in accounting and has only one subject left to complete a Bachelor in Business degree majoring in Accountancy.  It is hard to imagine that the wife would not have understood that these were assets or property when she was completing her financial statement.

10. However, the question remains whether or not I should disbelieve the wife and in effect find that she has perjured herself in the evidence concerning these shares.  Certainly aspects of the wife’s evidence were unsatisfactory.  I have already referred to aspects of her evidence which were internally inconsistent.  But in my view, the wife has not been shown to be such a generally unreliable witness that I should treat all her evidence with caution.

11. So far as her evidence in relation to the shares is concerned, whilst she did not discharge her duty of full and frank financial disclosure, she did concede in cross examination that there was a purchase and subsequent sale of shares which were hers.  She was not maintaining therefore that all share transactions through her share trading account were on behalf of her sister.  Rather, she maintained that position in relation to two of three series of transactions she referred to.  True it is that the wife’s failure to call her sister, where she conceded that her sister was available, results in an inference that the sister’s evidence would not have assisted the wife.  But the inference from the failure to call the sister is not that the sister’s evidence would have contradicted the wife.

12. Otherwise, as I understand the case conducted by the husband, it was sought to be suggested, and the evidence would seem to indicate in any event, that the wife was reliant upon funds from Social Security and the husband and only relatively minor amounts of income to meet the living expenses of herself and the parties’ two children, with the exception of some education expenses, and the other outgoings on the matrimonial home with the exception of the mortgage.  The evidence in relation to the income that the wife received is not suggestive of the wife having significant funds at her disposal.  Quite the contrary.  While the wife asserts she made capital payments towards the mortgage totalling $15,500 from what she described as her savings during the parties’ relationship, there is evidence of only one such transaction, of $5000 in 1997, that is, before separation.

13. The wife’s failure to discharge her duty of full and frank disclosure denied the husband the opportunity to himself investigate the dealings on the wife’s share trading account.  The wife herself failed to produce any documents in relation to transactions on her share trading account.  But to suggest that the wife has lied in her evidence, as was put on behalf of the husband, in my view is one step too far on the evidence.  A finding as urged by the husband in my view must amount to a finding that the wife has deliberately lied on her oath, that is, that she had perjured herself.  Considering the evidence overall and having observed the wife give her evidence, I am not satisfied she did.  I accept her evidence about the shares, and find that she is not beneficially entitled to the Air NZ shares or the OneTel shares, the latter of which in any event are now worthless.

14. By way of non financial contribution, the wife’s unchallenged evidence is that she cleaned, sanded and painted some of the rooms and part of the exterior of the former matrimonial home.

15. In relation to the children, both the parties propose that the children should from next year both attend a local high school.  RH-OE currently attends that school while JLE is attending a private school.  This has been paid for by the paternal grandmother.  It is agreed that this should not continue next year due to JLE’s indifferent academic record.  Both parties propose that whoever has to leave the matrimonial home will remain in close proximity to the matrimonial home.  The husband proposes renting premises close to the school.  The wife proposes that if she has to leave the home she would go to live with her parents in a neighbouring suburb.  It is still within reasonably close proximity to the school.

16. As indicated the wife has one subject of her Bachelor of Business in accountancy degree to complete, and is due to complete that subject by the end of this year.  She will then seek employment relying on that qualification.  It is unclear whether she will be seeking full time or part time work.

17. The husband leaves home from work at 7.30am and is home about 4.30pm to 5pm if he is not working overtime.  However, he fairly regularly does work overtime.  There is no evidence as to what his hours then are.  His evidence is that despite his application being for equal time shared care on a week about basis, he has made no arrangements, and proposed no arrangements, for before or after school care of the children if they are with him on that basis.  While the children are both teenagers, at 14 and 13 there must remain some concern at the husband not proposing any arrangements for their before and after school care when he is at work.  This is particularly so in light of the incident at Easter last year when the husband left JLE overnight on his own and JLE became frightened and did not contact the husband about his fears.

18. The only witness in the proceedings other than the husband and wife was the author of the family report in the proceedings.  The author of the report, Dr Vardanega, made fairly clear recommendations in the following terms: 

    “It is therefore recommended that Ms L have sole parental responsibility for the children.  Given the ages of the children, their views and the history of this matter it is also recommended that RH-OE and JLE see their father at least on alternate weekends preferably from Friday evening to Monday morning.  In addition, it is recommended that the children visit with their father one evening during the week if not overnight then for a meal.  Finally, it is also suggested that the children have telephone contact with their father on a regular basis at their discretion.” 

19. Dr Vardanega interviewed both the parents and each of the children and observed the children with each of the parents.  She indicates that Ms L was quite critical on a number of respects about the father and his parenting capacity.  The father too made certain criticisms of the mother’s parenting.

20. So far as the children are concerned, Dr Vardanega says that “RH-OE (aged fourteen years and one month) presented as a poised and self assured girl.”  A little further on in her report, Dr Vardanega writes: 

    “19.  RH-OE spoke openly about her relationship with her parents.  She indicated that her strongest attachment is to her mother followed by her cousin J, JLE, her maternal aunts and then her father.  She said her mother is the person she would choose to speak to if she needed help.  When her parents separate she would prefer to spend ‘most of the time basically living with mum’ and see her father on alternate weekends.  She said that she thought that it would be ‘too disorganised’ to see her father during the week as well.

    20.  When I asked RH-OE about the time she spends with each parent she said she enjoys it when her father takes her to the swimming pool, for bike rides and to eat out.  The activities she enjoys while with her mother includes ‘going to out (sic) cousin’s house’, going on bike rides and on picnics”.

21. In relation to JLE, Dr Vardanega expressed the view that he presented as a reserved, immature and sensitive child, who seemed quite uneasy in the interview situation and found it difficult to make eye contact.  The boy seemed to be none too keen about school.  Dr Vardanega writes:  

    “22.  When asked about the significant people in his life, JLE indicated that his strongest attachment is to his mother followed by RH-OE and then his father.  He described his mother as ‘nice and forgiving’.  When I enquired further about his mother he said that she ‘talks to us about kids stuff’, ‘plays games with us’ and forgave him for ‘breaking a China plate’.  JLE said his sister RH-OE is also ‘kind’ to him.

    23.  In respect of his father, JLE said that he is ‘uncomfortable’ with his father who ‘talks about anything, even if we don’t understand.  Like how a power point works’.  JLE also said his father is ‘mean’ and use to ‘hit me a lot because of my medical problem’.  He acknowledged that his father ‘has stopped hitting me so much ever since the divorce’ but said his father now ‘yells at me instead of hitting me’.  JLE said that when his parents are living separately he would like to ‘spend more time with mum’ and ‘make it so dad does not see me as much’.  It was JLE’s opinion that the alternate weekend visits he has with his father ‘are enough’.”  

22. In the observation of the children with the father, Dr Vardanega did not observe anything consistent with JLE being fearful of his father.  The children appeared to be spontaneous and natural in their interaction with the mother.

23. By way of evaluation, Dr Vardanega writes: 

    “26.  This family situation is rendered more complex by the unclear separation of the parties.  While they have continued to live separate under the same roof, Ms L seems to have assumed the bulk of the child care responsibilities and has made major decisions concerning the children such as their education, medical needs and recreational pursuits largely in isolation of Mr E.  They perceive the reasons for this rather differently.  Mr E sees it as a form of control on Ms L’s part while Ms L considers Mr E to have been rejecting of the children and disinterested in their welfare.  Given this history and the ongoing paucity of communication that currently exists between the parties it is improbable unless there are major changes that any court orders will reverse the ability these parents have to communicate in a meaningful way, to make decisions that are child focused and therefore to assume joint shared parental responsibility for the children.

    27.  The children appeared to be managing satisfactorily.  RH-OE impressed as a self assured child that seems to be achieving well academically and socially.  JLE presented as more vulnerable and lacking in self confidence and displayed some elements of being at risk.  It would seem important that his care throughout his adolescence be sensitively managed given his insecurities that arise from his medical condition and the uncertainties that surround his forthcoming change of school.

    28.  This assessment suggests that the children unambiguously identify with their mother as the primary source of their emotional nurturance and the parent who bests understands their needs.  Although their interaction with their father appeared relaxed and comfortable, JLE in particular appears to have a negative reaction to his father’s treatment of him in the past and still seems to harbour some fear of reprisals from him.  Mr E concedes that he has perhaps acted inappropriately at times.  Nonetheless he seems to have limited insight into JLE’s needs and attributes JLE’s difficulties to poor toilet training.  Both children state they want to spend time with their father on weekends but not on a week about basis as is proposed by Mr E.  Given the children’s ages, their views need to be given considerable weight.” 

24. The evidence establishes on occasions the husband has resorted to a form of physical discipline of JLE when he has soiled himself.  That physical discipline has involved squeezing or twisting the child’s ear and squeezing the child’s hand.  Before the parties moved from the Lambton house, according to the husband the wife also on occasions would squeeze the children’s ear or twist it as a means of discipline, but the husband conceded that the wife did not use forms of physical discipline in relation to JLE’s incontinence difficulties.

25. This provides some of the back ground of the comments of Dr Vardanega in relation to JLE, described as a very sensitive and somewhat immature boy, reacting against some aspects of the father’s treatment of him in connection with a condition which the evidence clearly shows the boy finds quite embarrassing and distressing, and which has been the source of some bullying that he has experienced at school.

26. Dr Vardanega was cross examined and the husband’s position as I understand it is to seek to at least qualify the views that are expressed by Dr Vardanega.  I am not satisfied that the reporter approached her task with a predisposition as to the outcome.  I am not satisfied that the views of the children have been overborne or overtly influenced by the wife.  I am satisfied that the views the children expressed are their own.  Dr Vardanega indicated that was her view and gave as an illustration the fact that the children used age appropriate language and were not using adult terms or phrases which might indicate that they were parroting things told to them or that they had heard from adults.

27. I take account of Dr Vardanega’s assessment as to the level of maturity of each of the children and their level of confidence.  There is a marked difference between the children in relation to their maturity, self-assuredness and confidence, which is greater than the simple chronological difference in the two children’s ages.  Nonetheless, having regard to the children’s chronological age and Dr Vardanega’s assessment of the children, I am satisfied that the wishes of these children should be given considerable weight, as Dr Vardanega suggests.

28. I will now turn to determine the competing parenting claims before considering the competing property applications.

The parenting issues

The applicable legal principles

1. The court’s power to make parenting orders arises under s.65D, Family Law Act 1975.

2. Section 65D(1) provides:

   a)“In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.”

3. The qualifications in section 61DA are significant, and I will deal with ss.61DA and 65DAB shortly. I will also deal with s.65DAA, made relevant through section 61DA.

4. Section 60B sets out the objects of Part VII and the principles underlying that Part.  The section provides as follows: 

“60B – Objects of Part and principles underlying it:

a)The objects of this Part are to ensure that the best interests of children are met by:

i)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

ii)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

iii)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

iv)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

b)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

i)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

ii)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

iii)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

iv)parents should agree about the future parenting of their children; and

v)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

c)For the purposes of subparagraph (b)(v), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

i)to maintain a connection with that culture; and

ii)to have the support, opportunity and encouragement necessary:

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture.” 

1. In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s.60CA). In determining what is in a child’s best interests, the court must consider the matters set out in s.60CC(2) and (3) (s.60CC(1)).

2. These provisions were inserted into the Family Law Act 1975, or were amended, by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the SPR Act), with effect from 1 July 2006. Before that date, there were provisions with a similar purpose to ss.60B, 60CA and 60CC. Although amended by the SPR Act, section 60B before 1 July 2006 dealt with the objects and principles of Part VII. Before 1 July 2006, section 65E provided that the child’s best interests were the paramount consideration. And before 1 July 2006, section 68F(2) set out the considerations relevant to a determination of the child’s best interests.

1. The decision making process under these provisions as in force before 1 July 2006 was explained by the Full Court of the Family Court in

   
   B & B: Family Law Reform Act 1995

   , (1997) 21 Fam LR 676, (1997) FLC 92-755 in the following terms (Fam LR at 734, FLC at 84,220-1):

   “9.56The court is required to determine what is in the best interests of the particular children (s.65E).  It will direct attention to both of the other sections (that is, ss.60B and 68F(2)), but the weight to be attached to individual components of those sections may vary significantly from case to case.

   9.57This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions of the Family Law Act; see for example the decision of the High Court in Mallet & Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91-507 and ZP & PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600; FLC 92-480. …

   9.58As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s.65E as the paramount consideration, and then identify and go through each of the paragraphs in s.68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s.60B which appear relevant or which may guide that exercise.  The trial judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests.

   9.59In this approach no question of a presumption or onus arises.  …  The Act contemplates individual justice.  Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children.  …

   9.60In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children.  Where there are no countervailing factors, the court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable.  However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.” 

2. While the provisions referred to in B & B have been amended, and there are additional provisions under the SPR Act amendments which impinge on the decision making process, I consider the guidance provided by the above quoted passage to remain relevant.

3. Consistent with this guidance, section 60CA provides that the child’s best interests are paramount. In deciding the competing parenting applications, the court must identify and go through each of the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3) which appear to be relevant, and discuss their significance and weight, and perform the same task in relation to the matters in s.60B which appear relevant or which may guide that exercise. The court must then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests.

4. In deciding how best to promote the child’s interests when determining parenting proceedings, the court is not limited to the proposals of the parties (U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002)

   
   

   29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224). However, if contemplating making orders materially different to those sought by either party, the court must afford both parties procedural fairness by clearly flagging what is in contemplation and affording both parties the opportunity to address the court on them (Bolitho & Cohen, above).

   
   

   This in my view is particularly relevant in considering the qualifications placed on the court’s discretion under section 65D(1) to make such parenting order as it thinks fit.

5. Section 65D(1) is subject to sections 61DA and 65DAB. Section 61DA establishes a rebuttable presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. Section 65DAA then provides that 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 consider the option of the child spending equal time with each parent. If the court does not make such an order, it must then consider the option of the child spending substantial and significant time with each parent. But in each case, the court must consider whether the child spending equal time, or substantial and significant time, with each parent would be in the child’s best interests, and then the court must consider whether such an arrangement is reasonably practicable. It is only if either option is in the child’s best interests and practicable that the court must then consider making such an order.

6. The effect of sections 61DA and 65DAA in my view is that in every parenting case, the court must consider making an equal shared parental responsibility order, whether sought by a party or not. And if such an order exists or is to be made, the court must consider the options of equal time or substantial and significant time, whether either party seeks such orders or not. Consistent with U & U and Bolitho & Cohen, above, in considering these options where they form no part of the proposals of any party or the Independent Children's Lawyer, the court must ensure the attention of the parties and the Independent Children's Lawyer are drawn to these options, and that they are given the opportunity to adduce evidence relevant to them and address the court on them.

7. Neither party in this case initially sought an order for equal shared parental responsibility. However, when I raised the effect of 61DA, counsel for the husband indicated the husband did seek such an order. The wife opposed such an order. I will turn to the provisions of sections 61DA and 65DAA in more detail as relevant later in these reasons.

8. The further qualification on the courts power to make such parenting order as it thinks fit imposed by section 65D is section 65DAB, which requires the court to have regard to the terms of the most recent parenting plan (if any) the child’s parents may have entered into, to the extent the plan relates to the child, if doing so would be in the child’s best interests. The parties have not entered into a parenting plan in this case.

9. The issues therefore that arise for determination in the parenting aspect of this case are firstly, whether or not the presumption that equal shared parental responsibility is in the children’s best interests has been rebutted and if so what if any different order should be made as to parental responsibility; and secondly, what time arrangements for the children with each of the parents would best promote the children’s interests, the options being equal time as sought by the husband, some regime of substantial and significant time if an equal shared parenting order is to be made and an equal time order is not made, the wife's proposals, or some alternative arrangement.  There also arises an issue whether the wife's proposals meet the requirements of the Act for substantial and significant time.

The primary considerations

Section 60CC(2)(a) – benefit of a meaningful relationship with both parents

1. Both children will benefit from a meaningful relationship with both parents.  How this might best be achieved is the issue.  This requires a consideration of the additional considerations relevant to the children's best interests, in particular the children's views, the present relationship of the children with each parent, the preparedness of the parents to foster a relationship between the children and the other parent, the attitude of the parents to the children and the responsibilities of parenthood, and the parents’ respective capacity to provide for the children's needs.  It also requires consideration of the objects of Part VII and the principles underlying them as outlined in s.60B.

Section 60CC(2)(b) – protection from harm

1. There is no need in this case to protect the children from harm from being subjected or exposed to abuse, neglect or family violence.  The parents’ physical chastisement of the children has ceased, including the husband's physical chastisement of JLE in connection with the manifestations of his medical problem.  I am not satisfied the husband's reported yelling at JLE for his medical problem amounts to abuse, neglect or family violence.  It is however relevant to some of the additional considerations, to which I will now turn.

The additional considerations

Section 60CC(3)(a) – children’s views

1. The children's views as expressed to the author of the family report are set out earlier, together with the reporter’s opinion on the weight that should be attached to them.  I accept this evidence.  The reporter was cross-examined, and was not shaken in her evidence.

2. RH-OE is 14 and expressing clear views, with no evidence to suggest the views are not her own.  While JLE is a year younger, and presented as reserved and immature, he too is expressing clear views with no evidence to suggest the views are not his own.  In JLE’s case, there is the added issue of his sensitivity, including to the manifestations of his medical condition and his perception of the husband’s insensitive treatment of him in managing those symptoms, by the use formerly of physical chastisement, and since that ceased, by “yelling” at him.  I am satisfied that the children's views should be given significant weight for these reasons.

3. RH-OE wants to spend most of her time with her mother, and see her father on alternate weekends.  She is opposed to mid week time with the father, because it is too disruptive.  JLE too wants to spend most of his time with his mother and see his father on alternate weekends.

Section 60CC(3)(b) – children's relationships with parents

1. The relationship of both children with both the parents is good, although that of both children with the mother seems stronger.  Each of the children has said as much to the author of the family report.  JLE’s relationship with the husband is coloured by the boy’s perception of his father as being unduly harsh and insensitive to him in the husband's disciplining of him physically and now verbally for his incontinence.

Section 60CC(3)(c) and (i) – parents’ willingness and ability to facilitate and encourage parental relationships, and attitude to the children and the responsibilities of parenthood

1. In considering these related matters, the court is required by s.60CC(4) to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her responsibilities as a parent. In particular, the court must consider the extent to which each of the parents has taken or failed to take the opportunity, and has facilitated or failed to facilitate the other parent having the opportunity, to participate in making decisions about major long-term issues about the children, to spend time with the children, and to communicate with the children, and the extent to which each has fulfilled or failed to fulfil the parent’s obligation to maintain the children. In applying s.60CC(4), the court is required by s.60CC(4A) to have regard in particular to events that have happened and circumstances that have existed since separation.

2. Before separation, the evidence suggests the wife has taken the leading role in child care and nurturing, supported by the husband.  This is indicated by the wife having left the full time workforce after the birth of the children, and the husband becoming the breadwinner for the family.  Each has fulfilled their roles as parents in accordance with the organisation of their roles within the family.

3. Since the parties separated, the husband believes the wife has on occasions excluded him from decision making about the children, and has sought to hinder his relationship with the children.  The wife appears to believe that the husband has been disinterested in the children.  There is conflict on aspects of the parties’ evidence going to this issue which I am unable to resolve, being unable to prefer one party’s evidence over the other on the points of difference.

4. The parties have lived separated under the one roof for a significant period, with no allegations of threats or violence, and apparently no serious disputes which have impinged adversely on the children.  Nonetheless, the living arrangements have clearly been stressful to the parties.  The husband said he sought to avoid disputation with the wife, and tended to retreat rather than challenge the wife on matters.  It is entirely possible, and I accept it is more likely than not on the evidence, that what the husband saw as withdrawing to preserve the peace rather than challenging a view expressed by the wife, the wife saw as disinterest by the husband in the issues at hand.  I am not satisfied that the husband was disinterested in the children or in discharging his responsibilities to them.  Nor am I satisfied that the wife sought to exclude the husband from the children's lives or from involvement in decision making about them.

5. Both parties I am satisfied have diligently fulfilled their responsibilities to maintain their children.

6. These matters in my view are neutral, with one exception, namely the husband's attitude to JLE in relation to his treatment of JLE concerning his medical problem.  This has already been referred to, and will be discussed further when considering the husband's capacity to provide for the children's needs.

Section 60CC(3)(d) – likely effect on children of change

1. There will be a significant change for the children on implementation of the property settlement orders.  They will cease to have both parents living at the same premises.  While the husband complains of the wife restricting his time with the children over the past 12 to 18 months, the fact both parents lived at the same premises meant there were frequent opportunities for interaction between the children and each parent.  While that will change, the parents intend to remain living in reasonably close proximity to each other.

2. Taking both children's views into account, and the weight I am satisfied should be placed on those views, any change significantly contrary to those views may adversely affect the children and potentially their relationship with the husband.

Section 60CC(3)(f) – capacity to provide for the children’s needs

1. Both parents can meet the children's needs, although the husband's ability to do so must be assessed as inferior to the wife's.  This is because of the husband's apparent insensitivity to JLE’s distress at the husband's treatment of him in relation to his medical condition, and leaving JLE alone overnight when RH-OE was interstate at the band competition without appreciating that JLE was not mature enough to be left alone overnight.

Section 60CC(3)(g) – maturity, sex, lifestyle and background of children and parents

1. The age and level of maturity of both children has already been referred to, and supports significant weight being given to their views.

Section 60CC(3)(l) – the order least likely to lead to further parenting proceedings

1. It is not apparent that any of the alternative parenting arrangements under consideration would be less likely to lead to further parenting proceedings.

2. The remaining considerations under s.60CC(3) are not relevant in this case.

Exercise of parental responsibility

1. As the decision whether to make an equal shared parental responsibility order will impact on the options for the children spending time with each parent that I must consider, I will decide that issue first.

2. The presumption under s.61DA that equal shared parental responsibility is in the children's best interests does not apply if there are reasonable grounds to believe that a parent has engaged in certain child abuse or family violence (s.61DA(2)). The presumption is rebuttable by evidence that satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s.61DA(4)).

3. It is not part of the wife's case that the s.61DA presumption does not apply in this case (s.61DA(2)).

4. It was submitted on behalf of the wife that the s.61DA presumption has been rebutted because the husband had abrogated his parental responsibility. It was submitted this was proved by the husband's evidence of the wife taking control of decision making about the children and of him not interfering. It was submitted that the wife's position was supported by the author of the family report, who did not see the husband's explanation that he was simply trying to keep the peace as a sufficient reason for the husband's lack of involvement, and who recommended that the wife have sole parental responsibility for the children, noting an ongoing paucity of communication between the parents.

5. It was submitted on behalf of the husband that the presumption had not been rebutted.  It was submitted that there had been no overt conflict between the parents, and that until 18 months or 2 years ago, the wife admitted that the husband had been involved in decision making about the children.

6. It is pertinent to note that the objects of Part VII as set out in s.60B include ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the children's best interests, and ensuring that parents fulfil their duties and meet their responsibilities for their children.  Under s.60B, the principles underlying these objects include that parents jointly share duties and responsibilities concerning the care, welfare and development of their children, and should agree about the future parenting of their children.  This in my view is directly relevant to considering whether the presumption of equal shared parental responsibility has been rebutted.

7. In recommending that sole parental responsibility be given to the wife, the author of the family report expresses the opinion that it is unlikely the parties’ ability to communicate in a meaningful way to make child focussed decisions will be reversed by a court order.  However, the fact the husband has not participated in decision making about the children during the latter stages of separation under the one roof does not necessarily dictate the pattern for the future, when the parties are living in separate accommodation.

8. While the author of the family report says the parents’ communication will not improve without major changes, there will be a major change when these parties establish independent and separate households.  The extent of the change that may in fact be wrought by this alteration in the dynamics between the parties cannot be predicted.  However, the fact it may bring change relevant to the viability of the parents exercising equal shared parental responsibility means in my view that it would not be in the children's best interests for the court to now effectively freeze the husband out of any decision making role for the major decisions about the children for the future.  On the contrary, in my view the court making an equal shared parental responsibility order may be more likely to motivate the parties to the change alluded to by the family report writer than not making such an order, which would be more likely to leave the current situation in place.

9. I therefore am not satisfied the evidence shows that an equal shared parental responsibility order would not be in the children's best interests. The s.61DA presumption is therefore not rebutted, and I will make an order for equal shared parental responsibility.

The options for the children to spend time with each parent

1. There are in effect four options for the children to spend time with each parent.

2. First, the husband seeks an equal time order, on a week about basis, subject to the children spending special days with each parent. Since I will make an equal shared parental responsibility order, s.65DAA requires that I consider making an equal time order in any event.

3. Second, if the court does not make an equal time order, the husband seeks a substantial and significant time order in his favour providing for the children to spend significant time with the husband mid-week, for example by the children spending time with the husband from after school each alternate Wednesday until before school the following Monday, and from after school Tuesday until before school Thursday each other week.  In addition, the children would spend time with the parents for half school holidays and on special days.  As I will make an equal shared parental responsibility order, I note that if I do not make an equal time order, I must consider making a substantial and significant time order (s.65DAA(2)).

4. Third, the wife proposes that the children live with her and spend time with the husband each alternate weekend from after school Friday to before school Monday, for half of all school holidays, one overnight mid-week each week on any night other than Thursday night, and that the children spend time with each parent on special days as proposed by the husband.  The wife's concession about mid week time came during the hearing.

5. The fourth option, considering the views expressed by the children, is the children living with the mother and spending time with the father on alternate weekends and special days and during school holidays, but not spending any mid week time with him.

6. The fourth option in my view can be disposed of shortly.  The children have expressed clear views to the author of the family report against spending mid week time with the husband, and the author of the family report has expressed the opinion that the children's views should be given considerable weight.  However, both parties and the author of the family report propose that the children spend time with the husband mid week.  Consistent with the primary objective of the benefit to the children of having a meaningful relationship with the husband, and the objects and principles underlying Part VII, the court in my view should consider all options for mid week time before closing off that opportunity for the husband and the children to be involved in each other’s lives.  For reasons I will shortly give, I am satisfied that there is an option for mid week time with the husband that would be in the children's best interests, and so I will not consider this option further.

Do the wife's proposals amount to substantial and significant time

1. Before assessing the remaining options, I will dispose of the issue raised by the husband whether the wife's proposals entail the children spending substantial and significant time with the husband.

2. For a parenting arrangement to involve a child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at the least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. In addition, the time it provides must allow the parent to be involved in the child’s daily routine and in occasions and events that are of particular significance to the child, and the time must allow the child to be involved in occasions and events that are of special significance to the parent.

3. These dual minimum requirements of when the time is to occur and what the time is to achieve by way of mutual involvement of parent and child in each other’s lives relate to the dual aspects of the time being both substantial and significant respectively.  A parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency, and occurring at times, that enable the parent to be involved in the child’s daily routine.

4. What time arrangement is necessary to achieve this is a matter of fact to be determined in each individual case.  But for a parenting arrangement to involve substantial and significant time, one would normally expect to see the amount of mid week time, when taken with weekend, holiday and special occasion time, providing an opportunity for the child to be assisted by the parent with homework, to have the parent take the child to and from sports training and games in which the child is involved, to have the parent take the child to practice for, and to attend performances relating to, the child’s other extra curricular activities such as scouts or guides, music and dance, and to experience life as a member of the parent’s household with all the mundane reality that entails, including the parent cooking, washing and cleaning for the child, and the child, as may be age appropriate and in accordance with the reasonable wishes of the parent, assuming some household responsibilities in that parent’s household.

5. That is not to suggest that a parenting arrangement in favour of a parent will not amount to substantial and significant time unless that parent has an opportunity to be involved in every facet of the child’s life, or to be so involved on a weekly basis.  What is required is an opportunity for an involvement in the child’s daily routine which is significant, through spending time with the child that falls on weekends, mid week and during holidays.  What is required is a common sense approach based on the facts of the particular case, and not a formulaic, one size fits all, approach.

6. Where the court will need to consider the option of making a substantial and significant time order, the court will be greatly assisted if the parties provide the court with sufficient evidence about the child’s interests and activities, as to what they are, when they occur, and what the child’s participation involves, to enable the court to make a proper assessment of the suitability of the alternatives.  This evidence should include sufficient detail for the court to both decide whether any particular proposal entails substantial and significant time, and if such an order is to be made, to be able to frame it to best achieve the purpose of such an order.

7. In this case, the parties have provided little useful evidence to assist the court in assessing both the wife's proposals against the yardstick of substantial and significant time, and any alternative parenting arrangement to achieve substantial and significant time for the children with the husband.  While an issue about the completion of the children's homework is raised by the evidence, there is no mention of the pattern and nature of the homework, for example whether it is set nightly to be submitted the following day, or set for the week to be submitted progressively during the week or at the end of the week, and whether it includes projects or assignments requiring more time and greater research and preparation, and if so how often and with what period for completion.  It does not indicate whether the children use the internet or other resources at home to research homework and projects, and if so, whether each parent will have those resources available when they cease living under the same roof.  I must deem the absence of such evidence as an indication that it is not relevant to an assessment of the competing applications.

8. While there is reference in the evidence to both children having been members of a band and having participated as members of that band in national band competitions, and there is evidence that JLE left the band when he commenced attending a private school located some distance from his home, there is no evidence whether JLE may be rejoining the band on commencing at the local State high school next year.  Nor is there any evidence of when band practice occurs, or what instruments each child plays, or whether either child has music lessons apart from attending band practice and if so when, or when the band performs.  While the particular instruments the children play may be irrelevant to determining the competing applications, evidence on the other matters would greatly assist in framing an appropriate substantial and significant time order.

9. Nor is there evidence about whether the children participate in any sporting or other extra curricular activities, and if so, what that participation entails.  I proceed on the basis that the absence of that evidence indicates this is not relevant in this case.

10. The paucity of evidence of the matters referred to in the preceding paragraphs means it is equivocal whether any particular arrangement that includes weekend, holiday, weekday and special days time with the husband, short of an equal time arrangement, would meet the requirements of substantial and significant time.

11. Parenting proceedings should not be viewed as adversary proceedings in the ordinary sense, but as an enquiry into the best interests of the child (M & M, (1988) 166 CLR 69 at 76, 12 Fam LR 606 at 610, (1988) FLC 91-979 at 77,080; Brown & Pederson, (1991) 15 Fam LR 173 at 184, (1992) FLC 92-271 at 79,011). However, a party asserting a fact must prove it. For the wife to assert that her proposals involve substantial and significant time, this being a matter of fact, she must be able to point to evidence to prove the fact. The absence of the evidence I have referred to in my view means the wife cannot establish her factual assertion that her proposals involve substantial and significant time.

12. But for the same reasons, it is difficult to assess the husband's proposals against the yardstick for substantial and significant time, other than to observe that as they involve the children spending such a substantial amount of time with the husband, I am satisfied they must meet the requirements for significance.

13. In my view, it may be strongly argued that the husband's alternative proposals in fact are an alternative equal time arrangement.  They involve the children spending 7 nights per fortnight with each parent, 1 weekend per fortnight with each parent, 3 full weekdays per fortnight with each parent, and 2 mornings before school and 2 afternoons after school per fortnight with each parent.  However, as both parties conducted their cases on the basis that the husband's alternative proposals involved substantial and significant time, I will deal with them as such.

Assessment of parties’ proposals

1. The task in this case in my opinion is to frame orders which best achieve the relevant primary objective, by best fostering a meaningful relationship between the children and both parents, and best maximising the benefit to the children of such a relationship.  In that task, the court is assisted by some of the additional considerations, the most significant in this case in my view being the children’s views, the relationships between the children and each parent, the parents’ respective capacities to meet the children’s needs, and the parents’ attitudes to the children and the responsibilities parenthood.

2. As already mentioned, all three of the parties’ proposals, and the recommendations of the family report writer, go against the children's expressed views, which the family report writer said should be given “considerable weight”.  RH-OE was quite specific in expressing a preference not to spend time with her father mid week because it would be “too disorganised”.  JLE’s position about mid week time with the husband arises more by inference from his expression of the view that alternate weekends with his father are enough, rather than from any specific complaint against mid week time.

3. Counsel for the husband submitted that the children's views are not determinative of the outcome of the parenting matter, and that in any event the wife's own proposals and the family report writer’s recommendations entail departing from those views.  She submitted that in those circumstances, and to achieve truly significant time with the husband, the court should order considerably more mid week time than the wife proposed.

4. While the children's views are not determinative, they nonetheless are a significant factor in this case, for the reasons I have already given. 

   
   

   I note the evidence that RH-OE is doing well academically and seems well motivated in relation to her school work.  The same cannot be said for JLE.  It would seem that RH-OE might manage her school work, including homework, better if moving between the parents’ homes midweek than JLE, yet it is RH-OE who specifically objects to midweek time because it would be “too disorganised”.

5. My assessment of the relationship between the husband and the children, the husband’s ability to meet the children’s needs, and the husband's attitude to the children and to the responsibilities of parenthood because of the issue of the husband's at times inappropriate treatment of JLE for his medical condition, and the impact that has had on JLE, are factors in my view which argue against totally disregarding the children's views, and which otherwise impinge on the assessment of how best to promote a meaningful relationship between these children and their father.

6. In my view, to significantly disregard the children’s views about the time they wish to spend with the husband may in fact jeopardise the relationship between each of the children and the husband.  It may engender resentment in the children towards the husband.  As the children grow older, they may react be withdrawing from spending time with him.

7. For these reasons, where children of this age are so clearly expressing a view, I am satisfied it would not be in the children's best interests to make an equal time order, or to order that they spend substantial and significant time with the husband.  On the other hand, while the wife's proposal also entails disregarding the children's views, it is for only

   
   

   one overnight per week.  The wife's proposal provides some time which may enable the husband to have some minimal involvement in the children's daily lives, other than on weekends, holidays and special days.  For the reasons I have given I am satisfied that any more significant mid week time with the husband may jeopardise the children’s relationship with the husband.  I am satisfied that the wife's proposal is the one that will promote the children's best interests.

Decision on parenting issues

1. I therefore conclude that the parenting arrangements which will promote the best interests of these children is one where the parents have equal shared parental responsibility for the children, the children live with the wife, and the children spend time with the husband on alternate weekends during school terms from after school Friday to before school Monday, each week during school terms from after school Wednesday to before school Thursday, for half of school holidays, and on special days as the parties have agreed.

2. The parties agree that the parenting orders should commence only after the parties cease to reside under the one roof.  However, that literally will apply to the equal shared parental responsibility order and some other orders in relation to the parties’ discharge of their parental responsibility which are agreed should be made.  While I am satisfied it is appropriate for the live with and spend time with orders not to commence until the parties cease living at the same address, I am firmly of the view that the evidence as to difficulties in the parents each having input into decisions about the children means that, consistent with my reasons for making an equal shared parental responsibility order, all but the live with and spend time with orders should commence on the orders being made.

3. There are some additional orders sought by the husband, to all but two of which the wife consents.  The orders to which the wife does not consent provide that if either party wishes to take the children out of Australia, that parent must give the other parent at least 8 weeks’ notice, including an itinerary and other information, and that within 7 days of being given such notice, the parent receiving the notice must sign all documents necessary to cause the children's passports to be delivered or made available to the parent intending to travel.

4. No evidence was adduced about overseas travel, either on any specific occasion or for any specific purpose, or generally.  I am therefore not satisfied such an order should be made.  If one parent in the future seeks to take the children overseas and the other will not consent, it will be necessary to make an appropriate application at that time.

Property issues

Applicable legal principles

1. Property settlement proceedings under the Family Law Act are principally governed by s.79(1), (2) and (4), and, under s 79(4)(e), by s.75(2).

2. In Hickey & Hickey; A-G for Commonwealth (Intervener), [2003] FamCA 395; (2003) FLC 93-143; (2003) 30 Fam LR 355, the Full Court of the Family Court explained the preferred approach in determining property settlement proceedings under s.79, as follows (FamCA at [39]; FLC at 78,386; Fam LR at 370):

   “The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79.  That approach involves four inter-related steps.  Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.  Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.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 should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two.  Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”

3. Where superannuation interests are involved, as in this case, the majority of the Full Court in Coghlan & Coghlan, [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220, has explained the correct approach as follows (FamCA at [58], [61] – [68], Fam LR at 428 – 430, FLC at 79,645 – 79,646):

   “58.Thus, we consider that because of the obligation under s 79(2) to make a just and equitable order, then in order to ensure such a result the court should wherever there is a superannuation interest apply the provisions of s 79(4)(a) to (g) (which will include the matters contained in s 75(2)) to that superannuation interest whether or not a splitting order is sought.

   …

   61.Nothing we have said in this judgment would prevent a court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings.  This approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.

   62.The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis.  It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order).  Indeed, this is the approach which the Full court has used on its re-exercise of the trial Judge’s discretion in Ilett and Ilett (which will be delivered contemporaneously with the decision in this case).

   63.However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the court, or if no such order is sought, valued either according to the Regulations or otherwise).  This of course is the approach which the trial Judge adopted in this case.

   64.Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed.  The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered.  Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered.  Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered.  The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.

   65.In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case.  If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:

   (a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);

   (b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;

   (c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and

   (d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.

   66.In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.

   67.If this approach is adopted, whereby superannuation interests are dealt with separately from property as defined in s 4(1), but are subject to the considerations in s 79(4), then not only will any contributions, both direct and indirect, by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account, both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.

   68.When we refer to “the real nature” of the relevant superannuation interest, we are referring to the fact that notwithstanding that its value according to the Regulations may well be calculated to be a very significant amount, that superannuation interest may be no more than a present or future periodic sum, or perhaps a future lump sum, the value of which at date of receipt is unknown.”

Assets and liabilities

1. It is agreed that in this case the court should identify two separate pools of the property and resources of the parties in accordance with the Full Court decision in Coghlan, above, that is, one pool to comprise the property strictly so called and the liabilities of the parties, and the other to comprise the superannuation interests of the parties.

2. In identifying the property of the parties there are but two issues to be determined.  The first is whether or not any part of the proceeds of the sale of the boat that the husband acquired in part with funds redrawn on the debt secured over the home should be written back as a notional asset.  The second is whether an amount should be written back as an asset of the wife’s in relation to the shares in her name in Air NZ.

3. For the reasons I have already given in relation to the boat, I am satisfied that the husband has already repaid off the mortgage account the amount that he borrowed.  In those circumstances I am not satisfied that any particular additional amount should be written into the pool of asset on account of the sale proceeds.  In any event it is not entirely clear that the husband expended the whole of those proceeds and it seems likely that at least some of them might be represented in cash funds which are otherwise brought to account by consent in the pool of assets.  In my view no further entry needs to be made in the pool of assets on account of the sale of proceeds of the boat.

4. For the reasons I have already given, I am not satisfied that the wife is beneficially entitled to the shares in Air NZ and hence they should not be brought to account as an asset of hers.

5. The wife has a HECS debt in relation to her university course of $16,842, which she will have to commence paying once her income reaches a certain level.  It is agreed this debt arose after separation and should not be included in the pool of divisible assets.  However, it is a matter relevant to the wife's financial position.

6. I therefore find that the non-superannuation assets and liabilities of the parties are as follows:

7. I find that the superannuation interests of the parties are as follows.

8. In relation to the husband’s various superannuation interests, it is agreed that as at 1996, the husband had a preserved benefit of $7,098.52 in First State Superannuation Fund, being preserved from his employment with the Electricity Commission.  It is further agreed that the current balance in the First State Superannuation Fund of $16,462.00 represents this rolled over amount together with accrued interest since then, and that there have been no other contributions to it.

9. In relation to the husband’s Superannuation Trust of Australia Fund interest, it was agreed that he became a member on 3 August 1998, but that his membership in that fund includes an amount of about $10,000 rolled into that fund from prior employment from about mid 1996 up to about mid 1998, that is, during the last two years of cohabitation.

10. In relation to the remaining two superannuation funds in which the husband has an interest, NESS Super and Retirement Fund of Australia, and in relation to the wife’s Asset Superannuation Fund, it is agreed between the parties that all entitlements arose after separation and the current balances are wholly referable to post separation employment.

11. There is no evidence as to the level of the husband’s superannuation entitlements accrued in relation to his Electricity Commission employment as at the date of the parties’ marriage.  There is no evidence in relation to the benefits that either of the parties may expect to receive on maturity of any of their superannuation interests.

Assessment of contributions

1. In relation to the non superannuation assets, from the time of the parties’ marriage and the birth of the children, the wife was the primary home maker and parent and the husband was the bread winner in this family.  While the wife was in employment on occasions, these occasions were brief and infrequent, and she earned only modest amounts of income.  I am satisfied both parties contributed whatever income they earned up to separation.  Since separation both parties have continued making financial contributions.  The husband has been contributing both toward the mortgage, and by his assessed Child Support payments and other amounts from time to time in relation to tutoring and other educational expenses for the children.  The wife has been meeting the balance of the cost of supporting the children.

2. I am also satisfied that the husband, although to a much lessor extent than the wife, has contributed in the role of home maker and parent.

3. At marriage, the husband introduced a home subject to a mortgage with an equity at purchase ten months earlier of $30,000.00.  In 1996 he contributed $75,000.00 from a redundancy payment attributable to

   
   

   12 years employment, the last four of which coincided with cohabitation.  Clearly some part of this redundancy payment, and pro rata it may be argued two thirds of it, was attributable to the husband’s employment pre marriage.  Thus, in the equity in the home and in part of the husband’s redundancy payment, the husband introduced into this marriage significant capital to which the wife made no contribution.

4. The husband's compensation payment for his work related injury was received after separation, and spent by him for his own purposes.  Thus, it was not contributed in any relevant sense to the parties’ property, or for the benefit of the family.

5. As I have said, since separation both parties have lived in the former matrimonial home.  The wife has continued as the primary home maker and parent, she has earned some modest income from spasmodic usually casual part time work, and the husband has continued to make the financial contributions I have already referred to.

6. It was submitted on behalf of the wife that the parties’ respective contributions to the non superannuation pool of assets ought to be assessed as equal.  In relation to the superannuation, the wife submitted her contributions ought to be assessed at 10%.  On behalf of the husband, it was submitted that contributions to the non superannuation assets strongly favoured him because of his capital introduced early in the marriage.  It was submitted for the husband that contributions to the non superannuation assets overall should be assessed at 65/35 favouring him.  The husband’s position was that he would not wish to be heard against the wife’s position that her contributions overall to the total superannuation tins should be assessed at 10%, leaving a 90% contribution by him.  Having regard to the evidence as to the accrual of those interests, such as it is, I am satisfied that such an assessment is appropriate.

7. In relation to contributions to the non superannuation pool of divisible assets, while the husband’s capital injections at the commencement of the marriage are significant in themselves, they must be considered with the other extensive contributions over the 14 and half years since marriage made by both parties, including their non financial contributions.  I take the view that when contributions of all kinds are considered, with the wife’s very much greater non financial contributions as a parent and home maker and the husband’s very much greater financial contribution from wages, from his equity in the Lambton property and from the aspect of his redundancy payment attributable to pre marriage employment, I find that the contributions overall favour the husband in the proportions of 52.5% to the husband and 47.5% to the wife.

Non-contribution considerations

1. On behalf of the wife, it was submitted that an adjustment should be made in her favour in relation to the non-superannuation pool of divisible assets of 20%, being 15% for s.75(2) matters apart from superannuation, and 5% for the wife's 10% contribution based superannuation entitlement and the overall imbalance in the parties’ superannuation interests. On behalf of the husband, it was submitted that there should be no adjustment to the contribution based entitlements of the parties, or in the alternative, if an adjustment was found to be warranted, it should not exceed 5%.

2. In relation to the submission for the wife that a 5% adjustment should be made in her favour in relation to the superannuation interests, I note that the total of the parties’ superannuation interests is $63,011, that the wife's superannuation interest is worth $450, and the net assets are worth $381,669.  Thus, the adjustment to the wife to achieve a 10% share of the superannuation interests is $5851, and 5% of the net asset pool is worth $18,083.45.

3. Both parties are in employment.  The wife works sporadically on a casual basis.  She last worked in April 2006 for a month, earning $6139 gross. She intends seeking professional employment when she completes her degree, which she expects to do at the end of this year.  There is no evidence of the income she may expect to earn, although the income earned in April 2006, before gaining her degree, must provide some broad indication of an income level she might achieve.  When her earnings reach the requisite level, she will have to commence repaying her HECS debt.  There is no evidence as to the impact that may have on her net earnings.  She has the ongoing care of the 2 children, aged 14 and 13, who will live with her once the parties cease living at the same address.

4. The husband works as an electrician earning $890 gross per week as his base pay.  The husband regularly works overtime, but failed to disclose information about his overtime earnings, or his average earnings after overtime is included.  His net pay for the 2 weeks to

   
   

   15 August 2006 was $3009, and for the following fortnight was $2200 net.  I am satisfied his actual earnings are greater than he disclosed in his financial statement.

5. In the circumstances, I am not satisfied there will be any significant difference in the parties’ income earning capacities once the wife secures professional employment next year, when she should have completed her degree.

6. The only matters which I am satisfied enliven any active consideration under s.75(2) in this case are the wife's significantly inferior income earning capacity until she gains professional employment next year, the wife's ongoing care of the children, the wife's contribution based interest in the superannuation, the disparity in the superannuation interests of the parties, and the husband's interest in his grandmother’s estate worth $12,000 subject to a life interest.

7. Having regard to the net value of the pool of divisible assets, and acknowledging that any adjustment against the pool of divisible assets in relation to the superannuation interests gives her a present benefit for the superannuation interests of the husband which will not vest in him for some time, I am satisfied an adjustment is warranted in the wife's favour of 5%.

Just and equitable orders

1. The result is that the pool of divisible assets should be divided 52.5% to the wife and 47.5% to the husband.  The wife should receive $191,714 of the net assets of $365,169, and the husband $173,455.  The wife has in her sole name assets worth $3894, excluding the former matrimonial home, and the husband has assets in his sole name worth $33,550.

2. It is agreed by the husband that the wife should have first option to retain the former matrimonial home.  For this to occur, the wife would need to discharge the joint debt secured on the former matrimonial home and pay the husband the sum of $139,905.  If she cannot make these payments, it is appropriate that the husband have the option of purchasing the wife's interest in the home before resorting to its sale.  To do so he would need to discharge the joint debt secured by mortgage on the home and pay the wife $187,820.  If he cannot meet these payments, the home would need to be sold, and after repayment of costs of sale and discharge of the mortgage debt, the proceeds would need to be distributed 57.3% to the wife and 42.7% to the husband to achieve an overall division of 52.5% to the wife and 47.5% to the husband.

3. I am satisfied orders to this effect are just and equitable, having regard to the whole of the evidence in this case.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate:  Deanne Bush

Date:  20 October 2006

CORRECTIONS

In Order (3)(a) after the word Monday, insert the words “each fortnight”.