LEWINGTON & LEWINGTON
[2018] FCCA 960
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
LEWINGTON & LEWINGTON [2018] FCCA 960
Catchwords:
FAMILY LAW – Children – final parenting orders for children aged 10 and 8 years – where mother seeks sole parental responsibility– where father seeks equal parental responsibility with aspects of sole parental responsibility – where mother has been the children’s primary carer – where father seeks an order for equal time – where mother opposes that order – where parental conflict is high – where there exists no mechanism for resolving parenting disputes – order made for mother to have sole parental responsibility and children to live with the mother and spend substantial and significant time with the father – court determines orders to be in children’s best interests.PROPERTY SETTLEMENT – Final property Orders – adjustment of property interests under section 79 of the Family Law Act 1975 (Cth) – issues in relation to contributions made by wife’s family – whether third party loans exist and quantum – adjustment of interests in parties’ non-superannuation assets as to 67% in wife’s favour and 33% in the husband’s favour – each party to retain his or her interest in superannuation.
Legislation:
Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 61DAC, 65D, 65DAA(3), 65DAA(5), 75(2), 79, 79(2), 79(4)
Cases cited:
Stanford v Stanford (2012) 293 ALR 70, [2012] HCA 52, (2012) FLC 93-518
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-593
Russell v Russell (1999) FLC 92-877
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA395, (2003) FLC 93-143
Martin & Newton [2011] FamCAFC 233, (2011) FLC 93-490
Martin & Crawley [2012] FamCA 103
Dickons & Dickons (2012) 50 Fam LR 244
Norbis v Norbis (1986) 161 CLR 513
Chapman & Chapman (2014) 51 Fam LR 176Vadisanis & Vadisanis (2014) 53 Fam LR 345
Calverly v Green (1984) 155 CLR 242, 56 ALR 483, 9 Fam LR 940
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Vadisanis & Vadisanis [2015] FamCA 161
Federal Commissioner of Taxation v Radilo Enterprises Pty Ltd (1997) 142 ALR 305
Ferguson v O’Neil [1943] VLR 30
BH & PH [2006] FMCAfam167
Maddock & Anor (No 2) [2011] FMCAfam 1340
Pelly & Nolan [2011] FMCAfam 530
Af Petersens & Af Petersens (1981)7 Fam LR 402
Antmann and Antmann (1980) 6 Fam LR 560, [1980] FLC 90-908
Ascot Investments Pty Limited v Harper (1980) 6 Fam LR 591, (1981) 33 ALR 631
Prince & Prince (1984) 54 ALR 567
Albany (1980) 6 Fam LR 461, [1980] FLC 90-905
Kelly (1981) 7 Fam LR 762, [1981] FLC 91-108
Quirk (1983) (unreported)
Kimber (1981) 7 Fam LR 483, [1981] FLC 91-085
Kowaliw [1981] FLC 91-092
Pockran & Crewes [1983] FLC 91-311
Biltoft & Biltoft (1995) 19 Fam LR 82
Ascot Investments Pty Ltd v Harper & Anor (1981) 148 CLR 337
Winston & Winston (No 2) [2013] FamCAFC 147
In the Marriage of Pierce (1998) FamCA 74 (1999) FLC 92-844
Campo & Campo (1995) (unreported)
Zahra & Zahra (1996) (unreported)
Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260
Troncone v Alliperti (1994) 6 BPR 13,291
Coleman v Bone (1996) 9 BPR 16,235
Nudd v Official Trustee in bankruptcy [2002] NSWSC 399, (2002) 11 BPR 20,163
Taleb v National Australia Bank (2011) 82 NSWLR 489
James Robert Coleman v Gai Hart-Hughes [2017] NSWSC 656
Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319
Iaconis v Lazar [2007] NSWSC 1103, (2007) 13 BPR 24,937
Express Loans & Finance Pty Ltd v Hunter [2004] NSWSC 142, (2004) 11 BPR 21,451
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Rosati & Rosati (1998) 23 Fam LR 288
J & J [2006] FamCA 951
Pedace & Dettoni [2016] FamCA 643
In the Marriage of Bland (1994) 19 Fam LR 325
In the Marriage of Harrison (1996) 20 Fam LR 322
Applicant: MR LEWINGTON
Respondent: MS LEWINGTON
File Number: PAC 541 of 2015
Judgment of: Judge Tonkin
Hearing dates: 6, 7 & 8 September 2017
Date of Last Submission: 8 September 2017
Delivered at: Canberra
Delivered on: 20 April 2018 REPRESENTATION
Counsel for the Applicant: Mr Battley
Solicitors for the Applicant: Murray J Nott Solicitor
Counsel for the Respondent: Mr Johnstone
Solicitors for the Respondent: Fay Marie Nicholls & Associates ORDERS
(1)The mother shall have sole parental responsibility for the CHILDREN X born on (omitted) 2007 and Y born on (omitted) 2008 (“the children”)
(2)Notwithstanding Order 1, the mother shall advise the father in writing via email, or text, or via an application[1] of any major decisions with respect to the children concerning:
[1] The following applications are available for parents to use where communication is difficult “Our Family Wizard”, “Talking Parents” and “2 Houses” however there may be a cost attached to these applications.
(a)Any change of the children’s residential address with the mother to advise the father of any proposed change of address 7 days prior to that occurring;
(b)Any significant health issues concerning either of the children including:
(i)The current medical practitioner each child attends upon;
(ii)The current dental practitioner each child attends upon;
(iii)Details of any treatment prescribed and/or provided to either child by a medical practitioner including any prescribed medication within 2 days;
(iv)Details of any treatment prescribed and/or provided to either child by a dental practitioner within 2 days;
(v)Details of any referral to and appointments with a medical specialist for either child within 2 days and the mother shall authorise the father to speak with that medical specialist and to attend any appointment scheduled with that medical specialist;
(vi)Details of attendance by either child at a hospital immediately upon that occurring and the mother shall authorise the father to speak with any treating medical practitioner and to attend the hospital;
(vii)Details of any treatment recommended and/or provided for Y with respect to dietary and/or weight issues within 5 days.
(3)The mother shall forthwith do all things and sign all necessary documents to authorise the father to receive all relevant information from the children’s school including newsletters, invitations to attend school functions and the like.
(4)Neither party shall change the school each child currently attends without the consent in writing of the other party or order of the Court.
(5)The children shall live with the mother.
(6)The children shall spend time with the father as follows:
During school terms:
(a)Commencing 4 May 2018 from after school Friday until before school Monday each alternate weekend; and
(b)Commencing 8 May 2018 from after school on Tuesday until before school on Wednesday each week.
(7)For one half of all term school holiday periods (save for the Christmas/January school holidays) as agreed between the parties but failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number.
(8)For one half of the Christmas/January school holiday period as agreed between the parties but failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number.
(9)The school holidays are deemed to commence at 5:00 pm on the day which is gazetted[2] as the last day of the school term and will conclude at 9:00 am on the day before the child returns to school.
[2] In accordance with the NSW gazetted school holidays
(10)One half of the Christmas/January school holiday period is to be calculated by dividing by two the total number of days the child does not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in years ending in zero or an even number and not those in other years.
(11)Should the children be in the mother's care on Christmas Day, their respective birthdays, the father's birthday or on Father's day, they shall spend time with the father on such days from 4:00pm to 8:00pm.
(12)Should the children be in the father's care on Christmas Day, their respective birthdays, the mother's birthday or on Mother's day, they shall spend time with the mother on such days from 4:00pm to 8:00pm.
(13)By consent the children shall be raised in the (omitted) faith.
(14)Notwithstanding these orders the children will spend time with their mother during any (nationality omitted) or (omitted) religious days from 20 March from 6:00 pm to 9:00 am on 21 March, from 20 October at 6:00pm to 9:00am 21 October and from 21 October at 6:00pm to 9:00am on 22 October in each year.
(15)During school terms the changeovers for the children shall occur at school.
(16)During school holidays or such other times when changeover cannot occur at school, changeover for the children shall occur at a half way point agreed between the parties or failing agreement at the (omitted) shops.
(17)Each party will maintain and keep clean all the children's clothing, toys and equipment to the effect that each party has one set each of such items.
(18)By consent:
(a)In the event of a medical emergency of either child the caring parent shall notify the other parent immediately as soon as practicable following such emergency.
(b)The mother shall be permitted to remove the children from the jurisdiction of Australia for the purpose of travelling to visit overseas relatives up to twice in each year upon giving the father three months' notice of her intention to travel and providing him with a full travel itinerary including flights, accommodation, and contact details where possible; and
(c)Each party shall facilitate and encourage unfettered telephone time with the children twice weekly during the school holidays on Wednesday and Thursday from 7pm-7:30pm
Property Orders:
(19)The husband shall forthwith withdraw all caveats and/or other notifications against the titles to the wife's properties situate at Property A, Property B and Property C (“the properties”).
(20)Within 60 days of notice being received by the wife of the husband's compliance with order 19 hereof the wife shall pay to the husband the sum of $904,474 (“the Capital Sum”).
(21)Pending the wife's compliance with order 20 hereof, the wife is restrained from dealing with the properties in any manner whatsoever otherwise than for the purpose of complying with order 20.
(22)Upon payment of the Capital Sum by the wife to the husband the Court declares that otherwise each party is the sole, legal and beneficial owner of all property in his or her respective possession, custody or control including but not limited to the real property in the name of that registered proprietor and superannuation entitlements.
(23)The parties shall do all things necessary and sign all documents to permit the wife to discharge the mortgage in joint names secured against the Property C property at the wife’s expense and the wife shall refinance that mortgage in her sole name.
(24)Otherwise the wife shall indemnify the husband and keep him indemnified with respect to any mortgage in the wife’s sole name, the (omitted) Bank loan, the personal loan to Ms A, the debt of $80,000 due to the wife’s parents and debut of $28,000 due to the wife’s brother.
(25)The parties have liberty to apply with respect to the implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lewington & Lewington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTAPAC 541 of 2015
MR LEWINGTON Applicant
And
MS LEWINGTON Respondent
REASONS FOR JUDGMENT
Introduction
1.This matter involves both parenting and property applications. The husband filed an initiating application on 9 February 2015. The matter was initially listed for trial commencing 2 August 2017 but was not reached. The trial proceeded for 3 days commencing 6 September 2017. Both parties were represented by Counsel.
Documents relied on
2.The husband relied on his affidavit filed 10 June 2017, his financial statement filed 10 June 2017 and the affidavits of his partner Ms R filed on 4 July and 27 August 2017. The wife relied on her affidavit filed on 29 June 2017, her financial statement filed on 29 June 2017, the affidavit of her mother Ms F filed on 29 June 2017 and the affidavit of Mr S filed on 31 May 2017 with respect to the valuations of real property. A number of documents were tendered (see Exhibit table) including the report of the Family Consultant dated 8 February 2016.
Background
3.The wife was born on (omitted) 1970 and is now 48. The husband was born on (omitted) 1975 and is now 42. The parties married on (omitted) 2004. X was born on (omitted) 2007 and was 10 years and 9 months at the time of the trial. Y was born on (omitted) 2008 and was 8 years and 9 months at the time of the trial. The parties separated on 7 October 2014. Orders were made on 13 March 2015 by Judge Dunkley for X and Y to live with their mother and spend time with their father for five consecutive nights per fortnight.
Parenting proposals
4.The father sought orders for equal shared parental responsibility for the children save that he sought an order for sole parental responsibility in his favour in relation to the children’s health. He sought orders for a week about arrangement with changeover after school on Fridays and for the week about arrangement to continue during school holidays. He consented to Orders 10 to 12 sought by the mother in her case outline. Those orders related to notification of the other parent in the case of a medical emergency, the mother travelling with the children overseas twice a year to visit relatives and the parties facilitating communication with the children during school holidays. I intend to make those orders by Consent and consider the orders in the children’s best interests.
5.The mother sought an order for sole parental responsibility in her favour and for the children to live with the mother and spend time with their father from Friday to Monday in week 1 and in week 2 from after school Tuesday to before school on Wednesday and for half of all school holiday periods. Both parents agree that the children would be raised in the (omitted) faith. I intend to make that order by consent.
Father’s affidavit evidence
6.The husband deposed in his affidavit to being a “hands on” father. He was involved in the children’s care from birth taking leave when the children were born. He agreed that the wife was on maternity leave with X for about 8 to 12 months and then returned to work 3 days per week. She took 6 months maternity leave with Y and returned to work 2 days per week until separation in October 2015. He said the wife’s mother assisted in the care of the children. He was involved in feeding the children, reading to them and their daily care when he was not working.
7.When the children commenced school he would drop off and collect the children, wash their uniforms, drive them to (hobbies omitted) and supervise their practice. He would take Y to (hobby omitted) on Saturdays. He was X’s (hobby omitted) coach, involved in training sessions and attended X’s games on Saturday. On occasion when the mother travelled for work he would have the children in his sole care. He said this occurred about 20 times a year.
8.He cooked for the family about three times a week and was generally a very involved father. I find that the father was involved in the care of the children during the relationship.
9.The parties separated on 7 October 2014. The father said that the mother dictated to him the time he would spend with the children sending him an email which included “Parenting Orders sought by the mother.” He advised her he wanted to share the children’s care but was required to accept the mother’s proposal “or he would be given nothing.” He accepts however that at separation he did not have suitable accommodation and adequate facilities for the children to live with him for extended periods of time.
10.He said that on 19 December 2014 the mother permitted him to spend a full week with the children. The mother requested that he sign a parenting plan in January 2015 and he disagreed. She then told him “you’re not having the children at all. If you’re breaking the agreement I’m breaking it too. Take me to Court.” He said the children were present during this incident and were crying. The wife refused to allow him to spend time with the children from 31 January 2015, however, he managed to see them at (hobbies omitted) activities. Otherwise he did not spend any time with the children until orders were made by the Court on 13 March 2015.
11.The husband deposed that there was a high level of conflict between the parties. He said that he sought to swap his time to allow him to travel with the children to (omitted) Victoria for his 40th birthday but the mother refused to agree to any change.
12.According to the father he had been X’s (omitted) coach since he started playing (hobby omitted). The mother had objected to A (the son of the father’s new partner) playing in the same (omitted) team as X. The club was required to resolve the dispute around this issue.
13.The father said although he agreed to change arrangements for the children to spend time with their mother on Mother’s Day, the mother refused to accommodate the father and limited the time the children spent with him on Father’s Day.
14.On 27 October 2016 the children attended the (omitted) Schools Spectacular at the (omitted). Both parents attended separately. Y approached her father and his partner and gave them both a hug and X said hello. The children then greeted their mother who said to them “why did you do that?” in reference to approaching the father. The children advised the father about this at a later time. The following day the children did not attend school however the father attended to collect them at 3:00 pm. The children were not in uniform. Their mother gave them a kiss goodbye. Y approached her father and said “Daddy I want to talk to you but I don’t want to talk now. Later.” She looked around to see where her mother was and said “we have not been to school today.” X said “I told mum I want to go to the (omitted) shops (the non-school day change over venue) and she said I am the mum here and you have to do as I say. We have to go to school.” The children appeared to be embarrassed according to the father being at school in the afternoon when they had not attended school that day.
15.There have been issues between the parties regarding the return of the children’s clothes. There were issues according to the father where the mother required the children to change their clothes at school. Such was the level of conflict that the school Principal became involved in this issue. On 7 February 2017 according to the father his partner Ms R found X huddled behind a wall in the school yard crying and distressed. On his arrival home he told his father “Mum grabbed me by the arm and she pulled me back into the room and made me get changed…no one else gets changed at school. I told her I don’t want to get changed.”
16.The father said he raised an issue about Y being overweight with the mother in 2015, 2016 and 2017. On 3 March 2017 both parties attended an appointment with a dietician and both children were present. The father said that the mother told the dietician “unless you can tell me what is wrong with the food that I’m giving Y, I will not accept any food or diet plans for Y.” The father indicated that he was seeking an order for sole parental responsibility regarding the children’s health.
17.He said the parties were unable to communicate and suggested that the parents engage in family therapy. The mother had declined to do so. According to the father there is tension between the parties at changeover and on one occasion in December 2015 the mother chased the father down her driveway calling him a “bastard” in the presence of the children.
Father’s proposal
18.The father proposed a week about arrangement to minimise the contact he is required to have with the mother. He describes his relationship with the mother as difficult. He lives within walking distance of the children’s school and intends to purchase a premises in that area. He is concerned that the mother has instilled fear into the children regarding the paternal grandparents. X told him his mother said to be careful around “dad’s parents because they might put things in your drink.”
(omitted) faith
19.Although the husband is of the (omitted) faith he has agreed that the children be raised in the (omitted) faith. He deposed that the wife gave him an ultimatum in 2011 that the children “must be brought up in the (omitted) faith only they are not to put one foot into a church.” He said he did not wish to argue and accepted her position on this.
Ms R and A
20.The father and Ms R commenced a relationship in (omitted) 2015. They do not live together and have no plans to marry. On occasion Ms R sleeps over at the father’s home. The children have been introduced to Ms R and her son A who is 10 years old. She has two older children Ms I (now 18) and B (now 16).
Cross examination of the father with respect to parenting
21.The father said he took 1 week paternity leave for X and thereafter he worked from 9:00 am to 5:30 pm leaving home at 8:30am and arriving home at 6:30 pm. When the mother returned to work 3 days a week, he said he would leave later and arrive at work around 10.00 am and be home by 7.00 pm. He took one week paternity leave with Y and agreed that the mother cared for the child so he returned to working from 8:30 am to 6:00 pm. At the time he was employed by 2 different organisations (employer omitted) and (employer omitted). He had been with (employer omitted) since 2005.
22.He agreed he had disputed that the mother was the primary carer but said he didn’t understand how that term was defined. He disagreed that he was not as “hands on” as the mother and said “well if primary carer means being based on time he would agree she was the primary carer however if primary care was based on decision making for the children then he would not agree she was the primary carer.” He accepted he had been engaged in (hobbies omitted) during the marriage and stayed out for drinks at work. He disagreed that the mother prepared most meals. He disagreed that the mother picked up the children every afternoon to take them to activities. He said that he was involved in that as well.
23.It was put to the father that there was an argument in July 2011 (paragraph 12 of the father’s affidavit filed 11 July 2017) and X had vomited. He did not agree with that proposition. He was asked about his assertion that he reads stories to the children. It was suggested that rather than reading to the children he was working with his father at night. He accepted that and said “yes I was working with my father, but that was after the children were asleep”.
24.He confirmed that he did the evening tasks with the children, reading to them and putting them to bed and denied that the mother undertook those tasks.
25.I find that the husband was substantially involved in the children’s care during the relationship otherwise the mother was the children’s primary carer.
26.He agreed that Ms R had two older children Ms F and Ms I and those children paint Y’s nails and put make up on her. He said that was what they did, he didn’t think it was inappropriate, he didn’t know if she was allowed to wear nail polish to school and if she wasn’t allowed to wear nail polish to school then he wouldn’t allow it.
27.He agreed that the wife and his mother have a poor relationship. He agreed he told the wife that she was not allowed to go to his front door. He said there was a history behind that that the mother had called him names and became hostile and abusive towards him at his front door in front of the children at Christmas time and thereafter he refused to allow her to come to his front door.
28.With respect to the mother wanting to spend time with X on his birthday, he agreed he waited until the Friday to tell the mother that he didn’t agree to her proposal and that he would be in Melbourne on the following Saturday. He agreed he was behaving in a mean manner in doing this however he said that he offered the mother flights to Melbourne and gave her instructions as to where X’s birthday would be.
29.He disagreed that the mother spent months sleeping with X to assist him with his bed wetting issues. He said “she always slept with the children.” With respect to passports he said that the mother had denied him having access to the children’s passports however these had now expired. He said that it would be a fantastic opportunity to travel overseas with the children and that the children’s passports should be held by the court.
30.He agreed that he was present when Ms R told the children that “they wanted to get equal time that was in about 2016 that was at a time when they had been in their father’s care for 3 weeks immediately prior to the interviews.” She had said it was normal for children to have an equal time arrangement. He conceded to Counsel that “nothing was normal in Family Law proceedings.”
31.He said that his knowledge of the wife’s conduct relating to her alleged anger issues was when he was living with her and that the children would have been 4 and 6 years old on the last occasion prior to separation when they witnessed angry exchanges between their parents. He agreed that the parties had no mechanism for resolving disputes. He agreed that he was concerned Y was slightly overweight.
32.He agreed that he and Ms R had talked about both living together and marriage but “there wasn’t anything serious going on.”
33.He agreed that he withheld the children after the Christmas period because he wanted a week about arrangement and the court had subsequently ordered that he have Friday to Monday alternate weekends and every Tuesday night and that pattern has continued until today. He accepted that the mother encourages the children to call him, but said only “on occasion.” He agreed that he stopped the children contacting the mother when it was his time, he said “for a brief period on one particular holiday because they had come back to him nervous and uneasy and he thought it was best for them.” He agreed that at (hobby omitted) when the mother is present Y is reluctant to approach her mother but he encourages her to do so.
34.It was suggested that he had been pestering the mother about equal care, he denied this. He said he thought equal care was a good idea at the time that was in January 2015. He made a request of the mother verbally that the parties have equal time but she insisted that he sign an agreement and he did not want to that. He accepted that the mother told him that a three week block for the holidays for the children was not appropriate given their age, they were too young, he agreed with that.
35.He agreed that he pays $365 per fortnight in child support. He said he has paid mostly the fee for (hobby omitted) lessons other than the last term of 2017. He paid $300 in 2017 for his contribution to (hobby omitted) lessons. He has not paid for (hobby omitted). He has contributed more than $2,000 to orthodontics. He was asked questions about whether the mother has paid 90% of just about everything. He didn’t answer that so the analysis of payments was broken down for him. (Exhibit 1 was tendered containing reference to a number of payments made by the parties for the children). He did not accept that analysis.
36.Changeover is at a shopping centre when the children are not at school. The father said that was agreed upon, then the mother objected to it and then subsequently consented to it. He did not accept that the routine included in the mother’s affidavit was correct “because it repeated the fact that alternate Fridays to Mondays the children were in her care.”
37.He was asked about an argument that the parties had and it was put to him that during the argument about the (omitted) faith, the paternal grandmother was present. He agreed she was present but denied she was hostile to the (omitted) faith. He said she had positive and negative views about it. He disagreed that he attended an information session in 2012 for the (omitted) faith. He had attended a pilgrimage and enjoyed the session as “they were nice people and the gardens were very nice.”
38.He was asked about the dispute between the paternal grandmother and the wife. It was suggested that the grandmother had tried to stop the mother eating with the family, he denied that. It was suggested that his mother was hostile to the wife, he denied that also.
39.He was asked about the 100th birthday of his mother’s mother that he wanted to attend. He accepted that he had not made a formal request of the wife for the children to attend. He said in his previous dealings with the wife she had indicated to him that there was no point in him doing so. He said that the children would be returned to their mother’s care on or about the 25 or 26 January 2018 and the 100th birthday fell at a time after that date. It was put to him that when he wanted to go to Melbourne the mother said he could only go for 2–3 days but he wanted to go for a longer period of time. He agreed but added that he regarded her attitude as unreasonable.
40.He thought he would be able to live close to where the wife lived, he may not be able to afford a house but units were being set up in that area.
41.Counsel for the mother cross examined the father extensively on the family report. He took the father to the first proposition which was that in his opinion the mother “has many great qualities, she is hardworking and dedicated, she devotes her private time to the children, she is well mannered and a well - respected person”. He agreed that she loved the children. He said there were still some difficulties with respect to the capabilities of the mother as a parent even though he was seeking orders for an equal shared care arrangement. I place little weight on this assertion by the father.
42.He was asked about the children’s complaint about A, Ms R’s son. The father accepted that Y had made a statement “that A annoys her and she doesn’t like it.” He said in response “her brother X also annoys her too.” X had said “he gets on ok with A but he can be annoying.” The father maintained that A was not relevant to his proposal for shared care “as he and Ms R did not live together and were not married.” I formed the view that A was relevant and his involvement with the children and their ability to get along was an important matter.
43.The husband agreed that the children had expressed a view to the family consultant that they should not spend every Tuesday with their father. The father formed the view that the mother had coached them into saying this. He spoke to the children and told them “well if you don’t want to spend time with Ms R we won’t be spending time with her for a while now.” He had spoken to the children about them wanting to spend more time with him. He agreed he suggested to the children that he had knowledge of what they said to the family consultant whom he described as “the man.” He noted that the children had told the family consultant to keep Tuesday as it is. He accepted that the children may have been trying to appease him when they said they would keep it like it is. In my view it was not appropriate to advise the children he had knowledge of information they conveyed to the family consultant. The father showed limited insight on the father’s part in involving the children in the parenting dispute.
44.Regarding the comments the children made to the family consultant, he said the children “have a tense relationship with their mother and that they did not want to upset her.” He saw their reactions when it was time to go back to their mother. He agreed that he had no idea what goes on in their relationship with their mother. He was asked whether he accepted that the children said that they were reluctant to spend time with Ms R and if they visited her their mother would not be their mother anymore. He said that’s what the children told him. He didn’t know whether it was true or not but certainly he was just conveying to the family consultant what the children had told him.
45.The father said he currently spent time with the children for “5 nights and 2 full days which is a weekend.” He wanted an outcome that was in the best interests of the children. He agreed that the parties had engaged in 10 sessions of relationship counselling but there hadn’t been much of an improvement. I find that there has been no improvement in their ability to co-parent since separation.
46.Counsel suggested that the father was rigid in seeking equal time. He disagreed and said he wanted to “see the best outcome for the children.” He said “I’m not happy to concede that the current situation is the best outcome. I think equal time is the best outcome.”
47.He agreed with the proposition that the relationship between the parties was hostile and toxic. He said “by a large part the mother is negative.” He said there has been some progress and some improvement “but it hasn’t all been plain sailing.” He said the parties still communicate by text message or emails. He accepted he told the family consultant that the mother “is rude and blunt and carries a hatred of him.” He said in his view “there continue to be elements of that.” He said the mother’s hatred of him is evident from her conduct towards him, She continues to be rude and blunt.
48.Regarding his proposal for equal shared parental responsibility he agreed that thus far it had been very difficult for the parties to make joint decisions for the children. Counsel suggested that the parties couldn’t even agree about school clothing and they needed the school to sort this issue out. The father agreed. Counsel suggested that it was unlikely the parties could decide what high school was appropriate for the children. He said “any agreement had proven to be very difficult” He said he was optimistic they could make a joint decision. Counsel suggested to the father that “he had little more than hope” to which he agreed. He said when it came to the children his high priority was the children’s best interests. He thought the children were relaxed with him. They appeared nervous after being with their mother.
49.He conceded that the children would be raised in a faith sought by the mother which is the (omitted) faith.
50.The father was laconic in his responses to Counsel during cross examination. Overall I formed the view that he was earnest in his attempt to give the Court an accurate account of the parenting relationship and genuine in his desire to be a more involved parent.
Family violence
51.The father said he was concerned about the mother’s anger and her inability to control her emotions. She would yell at the husband and belittle him saying “you are a puppet for your mother” and “you allow people to come in and walk all over you like a door mat.” He said her anger would frighten Y. X would move away and pretend nothing was happening. He said he would reassure the children saying “don’t worry about it – it will be okay. I will sort things out and it will all be fine.” The parties attended marriage counselling in 2011.
52.He alleged in 2012 the mother called him “two faced, a backstabber, a liar, useless husband, why can’t you support me like a (nationality omitted) husband, lazy.” He said the arguments between them took place in the presence of the children and he told her “look what you’re doing to the kids.”
53.He alleged she punched him in the chest with a closed fist in 2013 and slapped him using both hands on the chest. He claimed her conduct was influencing the children such that the children made statements about “punching someone in the face and putting them out the door.”
54.According to the father in 2013 the mother became more aggressive towards him referring to him as a “useless husband…you are not the man I’d like to be with…if you are not accepting (omitted) need to reassess this marriage… why can’t you be like a real man.” He said they persisted with counselling for three months which proved unsuccessful. On 7 October 2015 the mother telephoned him and said “I’ve changed the locks to the house.” He asked her where the children were and she told him “they are safe.” The mother denied she behaved in such a manner.
55.The father said that the maternal grandmother was also angry and hostile towards him following his raising a concern with her about the impact of her daughter’s conduct on the children. According to the father the children have been exposed to hostility whilst spending time with the maternal family. He deposed that on 10 May 2015 when the children returned from their mother they told him “we all went to (omitted) (the mother’s parent’s home) and there was a big fight between the mother, the maternal grandmother and Mr K (the mother’s brother) first it was at the dinner table then they were out the back.” They saw their uncle Mr K crying.
56.The father said the mother and the maternal family have a strained relationship with his mother. The mother accused the paternal grandmother of putting poison in the food she cooked in the caravan park in (omitted) 2014. She reported this to a doctor and to police claiming that the paternal grandmother tried to poison her. The mother agreed she had a very poor relationship with the paternal grandmother however she said this was mostly in the past. She agreed that she complained to police that the paternal grandmother tried to put something in her food.
57.During cross examination the father was asked questions about the mother’s alleged anger and conduct during the relationship. Regarding the incident set out in paragraph 49 of his affidavit filed on 11 July 2017 where he alleged that the mother punched him in the chest, he said she (the mother) perceived the paternal grandmother was a problem. He said the mother was angry and he didn’t respond on that occasion in an attempt to diffuse the argument. He denied that he made the comment “you hate my family why should you want to do that” with respect to some suggestion that they travel away together. He said he didn’t say that on that occasion but he did say that at some point. He said he pushed the mother and she tripped over and fell onto the floor. He accepted that it was more than a gentle push. I find that both parties were involved in an altercation on this occasion and both behaved inappropriately. It is unclear whether the children were present.
58.He was asked about the argument deposed to at paragraph 55 of the affidavit where he said that the argument continued for 2 hours. He said “yes it did, 2 hours was a short period.” He was asked about taping the conversation. He said he did tape the conversation. He accepted he was gathering evidence.
59.He was asked about an argument that occurred that lasted 4 hours. When the Court asked him whether the children were present he said “yes unfortunately they were.” It would appear that the children were extremely distressed by the argument which continued for about 4 hours which ended up in the child Y vomiting.
60.The mother was asked about her part in the arguments that occurred in their household that lasted 2 hours or 4 hours. She agreed these arguments occurred, and “they were arguing at the same level, toe to toe, two parties arguing strenuously.” She said she wasn’t trying to argue, though she did say she was cross with the father on one occasion because his parents had come to the home and they had argued and the police were called.
61.Notwithstanding these allegations the husband was seeking orders for the parties to spend equal time with the children. He did not seek to restrict the mother’s time. I was unable to make any finding regarding the allegations of family violence raised against the wife save that on one occasion both parties were involved in an altercation. I suspect that during arguments both parties levelled verbal abuse at each other though I am unable to make any specific finding in that regard.
62.However I do find that the parties’ relationship was extremely acrimonious and volatile such that they would argue for 2 to 4 hours at a time and the children were often present on these occasions. It is of great concern to the Court that both parents willingly exposed the children to such a high level of hostility for hours on end which is likely to have had an extremely negative impact upon the children psychologically and emotionally. Such appalling conduct is hopefully a thing of the past.
Mother’s evidence
63.The mother was the primary carer for the children throughout the relationship and remains so. Regarding the father’s involvement she said that the father worked full time and played (hobby omitted) once a week on Saturdays and participated in (hobby omitted) training between March and August each Wednesday night playing (omitted) for 6 hours. She said he would go for work drinks on Friday nights. The mother worked only part time during the relationship.
64.She prepared most of the meals for the family and would visit (omitted) market and buy fresh fruit and vegetables each fortnight. She collected the children from school each day and dropped them off twice a week and took the children to all after school activities. I have found that the father was substantially involved in the children’s care during the relationship notwithstanding he participated in a number of activities outside the home.
65.The mother said the parties attended mediation and counselling and reached an agreement about parenting arrangements. By December 2014 the parties agreed that the children would spend time with the parents during school holidays on a week about arrangement. At the beginning of 2015 the father attempted to change those arrangements for the week about arrangement to continue during the school year. She opposed that arrangement and continues to oppose equal time.
66.She indicated that she has encouraged the father to call the children. They currently spend alternate weekends with the father and every Tuesday night and spend time with him for half the school holidays. The children attend Out of School Hours (“OOSH”) on Tuesday night and have advised the mother that they don’t want this arrangement “as it’s often not Dad who spends time with us it’s mostly OOSH.”
67.The mother indicated that communication between the parties is difficult with respect to homework, (hobby omitted) practice, (hobby omitted) lessons, school uniforms, Mother’s Day arrangements and birthdays. The parties currently communicate via email or SMS.
68.The husband pays $365 a fortnight in child support. According to the mother, he does not pay for (omitted) lessons or (omitted) lessons and has not contributed to orthodontic work for the children. She said she has paid 90% of most school fees, excursions, (omitted) tuition, (omitted) and orthodontics.
69.She said during school holidays the children are prevented from communicating with their mother and when the mother attends (hobby omitted), Y is not permitted to approach her mother or speak with her whereas she encourages the children to speak with the father and his girlfriend. The parties do not approach each other’s homes. Changeover occurs according to the mother at (omitted) shops half way between the homes. The mother seeks an order that during school holidays the changeover occur at the parties’ homes.
Cross examination of the mother regarding parenting
70.Counsel cross examined the mother with respect to parenting. She was asked how she assessed the father as a parent, she said he was ok, he was a lovely dad, he had an appropriate relationship with his children and “he loves them and they love him.” She agreed that the children spend 5 nights a fortnight with their father. She said she wanted to reduce that time and this was based upon what the children had told her. She would like to reduce his time to 4 nights a fortnight, that is an alternate Tuesday otherwise she was happy to keep the current arrangement. She said the reason for wanting to reduce the time is that the children are getting tired “in their father’s care they go to after school care. If he doesn’t have any capacity to care for the children then in her view she is available to care for them.” She believes the children should be in their home environment.
71.Her work hours are flexible and she doesn’t require the use of after school care. She could work from 10:00 am to 3:00 pm every day if she wanted to. She said that there was no advantage as far as she was concerned for the children to attend before or after school centres and she didn’t regard socialisation as an advantage.
72.She agreed that the parties’ communication was difficult. She was asked how she could improve on that, she said she sends the husband emails regularly, “she won’t use sms as her eyesight is poor.” She said she provides him with information through emails constantly, sometimes he doesn’t answer them. She said she doesn’t think that once the proceedings are over she would be able to communicate amicably with the father “as it has been 3 years now.”
73.She has consulted an expert on ways to improve the communication but there is extreme conflict between the families. She could speak to the father in person but he does not want to speak to her. The relationship between them is “awful, hostile and as far as she was concerned this was the father’s fault.”
74.She was asked about the comment by the family consultant that it was clear (to him) that the parties had not achieved a mechanism for resolving disputes. She said she was not able to come up with a mechanism that would enable them to resolve their disagreements. She would only communicate over email. She said occasionally she would talk to the father whilst he was the coach at (hobby omitted), but she hasn’t done so to date and she didn’t even exchange polite courtesies at the (omitted) field with him and Ms R “because she was protecting herself from constant accusations.” She said this was her solicitor’s advice. Counsel suggested there was nothing in the affidavit about that and she agreed. She said she could engage in civil discourse if there weren’t constant attacks on her. She said Ms R turns “hello” into a story. She agreed that it would be best if the parents could exchange polite conversation but she could not achieve that.
75.She said she had issues with the father’s mother. The father’s mother had threatened to take her to Court in 2012. “She wanted to take me to Court, she tried to video tape me and tried to take my properties away from me. She said I may have said that incorrectly, she said that I sometimes say things but mean something else.” When asked what the paternal grandmother wanted to take her to Court about, she said she didn’t know.
76.She agreed that she described the paternal grandmother as volatile and that she didn’t understand why the paternal grandmother had negative feelings towards her. The relationship between her and the paternal grandmother was so hostile “Every time she came over to visit there was a fight and she was minded to protect the children who were only 5 and 3 at the time.” She agreed that she blamed the paternal grandmother for the failure of the parties’ marriage and said that she had interfered with the marriage.
77.She was asked about paragraph 103 of her affidavit where the mother raised a concern about the children spending a lot of time with the father because they would be spending a lot of time with his parents. She said that was in the past. She said the paternal grandmother wanted the marriage to break apart and she wanted to take the kids to Melbourne however she wasn’t worried anymore about the children spending time with her. She no longer harboured any adverse views of the children spending time with the paternal grandparents.
78.She was asked questions about the 2015/2016 resumption of time where she withheld the children from their father for about 4 or 5 weeks because he refused to agree to a previous arrangement the parents had reached. She said there were orders in place. It appears there was a parenting plan, but no orders in place at that time. She agreed that the father did not agree with what she wanted the children to do in terms of the arrangements to spend time and because he didn’t agree she didn’t allow the children to spend any time with their father.
79.An analysis of the evidence of each of the parties indicates that communication between them is poor and ineffective and notwithstanding the time the children spend with each parent there is no co-operative, cohesive parenting arrangement. Each of the parties report that there exists a high level of hostility from the maternal family towards the father and from the paternal grandmother towards the mother. The lack of communication and hostility demonstrated in this matter militates against an equal time arrangement.
Family Report
80.The family consultant prepared a report dated 8 February 2016. Interviews and observations had taken place in early 2016. He indicated that the father was seeking orders he considered “fair” and an arrangement that would provide the children with uniform exposure to both parents. He told the family consultant that the children would benefit from time away from their mother’s rigidity and fanaticism and that this would provide them with more exposure to his love and care. He regarded his relationship with the children was a strong relationship and said the children have a tense relationship with their mother. He complained that the mother had attempted to undermine the children’s relationship with Ms R and thus the children should spend more time with him.
81.The family consultant noted that the mother opposed a shared care arrangement. She indicated that the children were quietly reluctant to leave her and spend time with their father and they were “more emotionally close to her.” She disputed the father’s level of involvement with the children prior to separation. She indicated he was still not readily available to the children, leaving others to collect the children and being more preoccupied with Ms R. She believed the children were unsettled by Ms R’s presence and are “uneasy” with her son A.
82.The family consultant observed that both children were intelligent and confident and both had a close and affectionate relationship with both parents. They also related in a positive manner to Ms R.
83.When interviewed they indicated that they value both parents and want to maintain a close relationship with them. Each regretted the separation and wanted their parents to live together but they appeared to be happy and adjusted to the current parenting arrangement “albeit with one day less per fortnight with their father.” Both children were settled at school and achieving well.
84.He indicated that the children appeared genuine in wanting to spend more time with their mother and wanting to spend time with their father without Ms R being present. They appeared “authentic” when they said A was annoying. They found security in the current arrangement and did not want that to change.
85.He said as both parents described their relationship as acrimonious and agreed they do not communicate well, “equal care was not indicated by this assessment.” The father described his relationship with the mother as “toxic” she is “rude” and “narcissistic.” He said “she will not give him information about school and health matters and has attempted to undermine the children’s relationship with Ms R.”
86.The mother reported that the father was “hostile” and “talking to him is a challenge.” She said he is uncooperative and has attempted to classify her as “an angry and aggressive woman.” She does not trust him to disclose where the children will be when with him and he will not reasonably communicate with her to facilitate some flexibility in the parenting arrangement.
87.In the family consultant’s opinion “equal care parenting requires clear and unambiguous parenting information about health, education, day to day schooling, emotional state, recreation arrangements, social activities and peer group involvement to be passed between parents. They need to be able to discuss the events and subtleties of the children’s lives freely so that their management between homes can flow with as little disruption as possible.” I agree. I find that the parties own expression that hostility exists between them and the high level of conflict between them regarding most issues concerning the children from spending time, to school uniforms, to (hobby omitted) games, to associating with Ms R and A, to health issues would indicate that an equal time arrangement is contrary to their best interests.
88.Regarding the parent with whom the children should live with primarily in the event that an equal time arrangement is not an order the Court would make, having regard to the evidence, the family consultant indicated “that it was not apparent from the assessment that the mother is incapable or neglectful and no assertions were made in that regard. The children have lived with their mother since separation and nothing emerged to indicate that they should be removed from her care.” The children indicated they wanted the present arrangement to remain except for alternate Tuesday nights.
89.The family consultant recommended that the children live with their mother and spend time with their father from after school Friday until before school Monday and spend time with their father from after school each Tuesday until before school each Wednesday with the children to spend equal time with their parents during school holidays.
Cross examination of the family consultant
90.When cross examined firstly by the father’s Counsel, the family consultant indicated that in his view the children should spend time with their father from Friday to Monday and every Tuesday and for half the school holidays. He was asked to consider “how the children were travelling vis-à-vis A.” He was unable to comment. It was suggested that the father had accepted that the children should spend time with him exclusively and that he had organised that to occur. The family consultant indicated that this was a positive response by the father.
91.It was suggested that from the mother’s viewpoint her proposed limitation on every Tuesday was based on the children’s view that they did not like spending every Tuesday with their father and one of the main reasons was that they spent time in after school care. He indicated it was the Court’s decision what orders were in the children’s best interests regarding the time they spent with each parent. The family consultant said he would not recommend equal time as the parents had no mechanism for resolving disputes between them. There was blame on both sides and he would not attribute blame to one or other parent.
92.The mother’s counsel cross examined the family consultant. It was put to him that Y said she did not want to spend every Tuesday night with her father, she wanted alternate Tuesdays only. He accepted that he did not find any independent evidence that the children had been coached. He wasn’t aware that the children did not like going to after school care. He indicated that the views of young children should be taken into account but are not determinative when determining the level of contact with a parent. In his view no great weight should be afforded to the wishes of a 10 and an 8 year old. The Court was assisted by the family consultant’s thorough report.
Ms R
93.Ms R supported the father’s application. She said she and the father commenced a relationship in (omitted) 2015. She was a (occupation omitted) for (employer omitted). She said she and the father currently live apart and keep their financial arrangements completely separate. She has developed a positive relationship with X and Y in her view and has observed that the children have a close and affectionate relationship with their father.
94.She said the children behave differently towards her in the presence of their mother. She said they have told her “we get in trouble with mummy if we talk to you and she says ‘why did you talk to her?’” The children have told Ms R some things the mother has said to them including “she is not your mother, she is a bad mother because she doesn’t let her kids see their father, Ms R get stuffed, she is disgraceful, Keep away from Ms R, Keep away from A, he’s dangerous, if you go with her I won’t be your mum anymore.”
95.In February 2016 both parents and Ms R attended the (omitted) team announcement day and X and A were put on the same team. Upon seeing that, according to Ms R, the mother pulled X aside and said something. He replied “I don’t care.” The mother then spoke to the team manager who asked X “well what does X want?” The father called out “No actually X is okay with this team.” Later that evening X said his mother had said “try not to have A and X in the same team.” X said his mother “is doing this to separate us.”
96.Counsel cross examined Ms R and suggested to her that she was highly critical of the mother. She disagreed. Counsel accused her of discussing the children’s mother with the children. She said she did not say anything negative about their mother. She said that she believed the children were distant after spending time with their mother and she thought she had done something to cause them to be upset. She does not discuss matters with the children. She denied that she told the children that they should seek a week about arrangement. She said she did talk to them about having to discuss the matter with a family consultant. She told them that she had been through that before with her own children, and that the children had to be truthful and honest.
97.She denied that she had made every effort to make derogatory remarks about the mother and she denied that she wanted to interfere with the mother’s life. I did not find Ms R to be hostile or critical of the children’s mother. She accepted that she is not the children’s mother and did not indicate any desire to usurp the mother’s role. Counsel suggested to Ms R that she could never form a proper relationship with the mother. She said she was hopeful that they could get along sometime in the future.
98.She was asked about her own son A and how she blamed A’s father for his conduct at the (omitted). She said A was distressed and he said he didn’t want to go with his father. “A gets emotional every time he has to go and see his father.” She said she mentioned that to her (omitted) friends and perhaps the mother was present. She agreed that none of her children see their father. There were issues about clothes coming back and she confirmed that her children’s father was not having any overnight time.
99.She was shown the statement from the school about clothing (Exhibit R2) and said it did not surprise her. She spoke to X about clothing because he was in tears and very distressed. She agreed that the father tells the children to go to bed by themselves. She has visited the father’s home after the children have gone to bed and on two occasions slept over. She agreed that she allowed Y to wear nail polish and make up on a weekend.
100.With respect to the father she said they had no plans at all for either living together nor did she plan on marrying him. She said she told the father she would not discuss this until the proceedings were over. Their relationship is currently going well and her children are her priority.
Legal Principles
101.Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with orders relating to children. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.” The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations. There are two primary considerations (section 60CC (2) of the Act) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
102.Subsection 60CC (2A) of the Act directs the Court in applying the primary considerations, to give greater weight to subsection 60CC (2) (b) which relates to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
103.Pursuant to section 60CC (2A) it is necessary to consider the objects of the legislation pursuant to section 60B (1) which include the following:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
104.The principles that underpin the objects are set out in section 60B (2) of the Act namely:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
105.It is apparent from the evidence and their competing proposals, that both parties agree that there is benefit to the children having a meaningful relationship with each of them. The ambit of this dispute is about the time the children should spend with each parent and parental responsibility for the children.
106.The other primary consideration pursuant to section 60CC (2) (b) of the Act is:
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
107.The father made a number of very concerning allegations against the mother that if proved would constitute family violence. During cross examination he accepted that during an argument he had pushed the mother causing her to fall. It is unclear whether the children were present during this altercation. The incident occurred prior to separation and no other incidents of that type were alleged by either party. Both parents were involved in the altercation on this occasion. I have found that both behaved inappropriately on that occasion towards the other.
108.The level of hostility and conflict between the parties both during the relationship and immediately after separation is extremely concerning particularly the arguments conducted in the presence of the children that continued for many hours and on one occasion caused Y to vomit. Quite frankly these parents should be ashamed of themselves in that regard. They either showed no insight into the impact of their conduct on those occasions or, rather, prioritised their own need to “fight” above any concern for their children. The parties do not communicate with each other face to face so fortunately the arguments have long ceased. I find that the children were exposed to family violence in the past through these arguments. I agree with the family consultant that both parents were to blame and both should accept responsibility for their conduct.
Additional considerations
109.The Court is required to consider the additional considerations under section 60CC (3) of the Act in so far as they are relevant when determining what order is in a child’s best interests.
(a) Child’s wishes
110.X is 10 and Y is 8. Both children have complained according to the mother about having to spend time on Tuesday afternoons in after school care, wanting to reduce their time with the father on Tuesdays. The family consultant addressed this issue in his report and during cross examination. He indicated that he was not aware the children did not like after school care. In his opinion the views of young children should be taken into account but are not determinative when deciding the level of contact children should have with a parent. I agree. He said no great weight should be afforded the wishes of a 10 and 8 year old child. The children also indicated that they did not want the current arrangement to change which includes spending time with their father each Tuesday. I take the children’s wishes into account but do not afford great weight to their wishes.
(b) Child’s relationship with each parent and other persons
111.I find that the mother has been the children’s primary carer throughout. I find that the father has been and continues to be an involved parent participating in the children’s day to day activities and spending time with them on week days, weekends and during school holidays. The children are close to both parents and have a loving and affectionate relationship with each of them. The mother described the father as a “lovely dad.”
112.The children related well to Ms R during interview with the family consultant and are developing a positive relationship with her. Notwithstanding the children’s comment about A being “annoying” they appear to get along reasonably well with A. Neither Ms R nor A live in the father’s home.
(c) Whether the parents have taken or failed to take the opportunity to participate in making major long term decisions in relation to the child, and/or taken the opportunity to spend time and/or to communicate with the child
113.A high level of conflict has persisted between these parties even though it has been three years since separation. The level of hostility and acrimony described by each of them is of great concern to the Court. They have both behaved contrary to the children’s best interests when the mother withheld the children from spending time with the father soon after separation and when the father withheld the children following the school holidays in an attempt to impose a week about arrangement. They have not demonstrated any ability to involve the other parent in major decisions for the children. The attendance upon the dietician for Y is an example of the level of acrimony between the parties and their lack of respect for the other parent’s point of view. They simply cannot or will not agree.
114.The most basic communication between them is fraught with the father refusing to allow the mother to attend his home. They do not engage in polite, civil pleasantries when attending (hobby omitted) to watch X play. There exists a myriad of issues where they are in conflict. Overall the lack of open lines of communication and the parties inability to co-operate suggests that an equal time arrangement in contraindicated.
(ca) The extent to which the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
115.The father pays child support for the children. In addition he has contributed to (omitted) lessons and orthodontics. The mother maintains she has been financially responsible for 90% of the children’s needs. The father disputes this. I find that both parties have fulfilled their obligations to maintain the children.
(d) The likely effect on the children of any changes in their circumstances including separation from a parent or any other child
116.The family consultant described the children as happy and well settled. The children themselves indicated that they have adapted to the routine of living with their mother and spending time with their father and do not want the arrangements to change (notwithstanding the concern raised about Tuesdays). The family consultant recommended there be no change in the children’s current arrangement of spending 5 nights a fortnight in their father’s care. In my view the current arrangement meets the children’s needs and ensures that the children maintain a meaningful relationship with both parents as much as is reasonably practicable given the dynamic between the parties.
(e) The practical difficulties and expense of the children spending time and communicating with each of their parents
117.Both parties live within proximity to the children’s school. Changeover occurs at school and at a halfway point on non-school days. That arrangement is practical and has been working well.
118.Both parties have agreed to an order that each party shall facilitate and encourage unfettered telephone time with the children twice weekly during the school holidays. Communication remains a significant issue for these parties as discussed above. The mother indicated a preparedness to communicate via email. She advised the father does not always respond. The father has prohibited the mother from attending at his home in fear of angry outbursts. Neither party trusts the other to behave in a civil and co-operative manner for the benefit of the children.
(f) The capacity for the parties to provide for the children’s emotional and educational needs
119.The father raised issues about the mother’s capacity in particular her capacity to regulate her emotions. I have found that both parents in the past behaved inappropriately in the presence of the children. I am satisfied that the mother has the capacity to provide for the children’s emotional needs. The children have lived primarily with their mother and are settled, happy, intelligent children who have good relationships with both their parents, socialise and are well adjusted. The father has demonstrated some insight into the children’s needs to spend time with him in the absence of Ms R and changed arrangements to accommodate the children’s need. I find that both parents are well able to provide for the children’s educational needs.
(i) The attitude that each parent has demonstrated to the responsibilities of parenthood
120.Both parents have demonstrated a responsibility to parenthood ensuring that the children are well cared for in their respective care notwithstanding their inability to co-operate with each other.
(j) Family violence
121.Both parents were involved in an incident where there was at least pushing and shoving and both subjected the children to horrendous arguing that continued for hours. It is likely that the parties made derogatory remarks about the other during arguments. The mother alleges that the father’s partner is highly critical of her. I do not accept that to be the case. I find that there are no ongoing concerns about the children being exposed to family violence directly given that the parties do not communicate. In particular, I accept the father’s evidence that he will ensure he does not engage in conflict with the mother as he now understands the negative impact this has on the children. I accept that the mother has also gained some level of insight into the damaging effect of parental conflict on the children. As between the parents, a deep level of mistrust exists and they are still unable to engage in civil exchanges regarding matters concerning the children. No doubt there is an ever present tension for the children when the parents are in close proximity. The orders I make should limit the children to such exposure.
Equal shared parental responsibility
122.The father is seeking an order for equal shared parental responsibility for the children, save for an order that he have sole parental responsibility for the children’s health. The mother is seeking an order for sole parental responsibility in her favour.
123.Pursuant to section 61DA(1) of Act, the Court is required to consider whether it is in the best interests for parents to have equal shared parental responsibility for a child. Under subsection 61DA(2) of the Act, the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in (a) abuse of the child; or (b) family violence. Under subsection 61DA (4) of the Act the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility.
124.Section 65DAC of the Act provides that an order for equal shared parental responsibility requires the parties to consult with one another about major long term issues and to make a genuine effort to come to a joint decision about any relevant issue. “Major long term issues” is defined in section 4 of the Act and includes issues relating to a child’s education, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.
125.Both parents described their relationship as acrimonious. There are no open lines of communication between them. The father described his relationship with the mother as “toxic.” He said “she will not give him information about school and health matters and has attempted to undermine the children’s relationship with Ms R.”
126.The mother reported the father was “hostile” and “talking to him is a challenge.” She said he is uncooperative and has attempted to classify her as “an angry and aggressive woman.” She does not trust him to disclose where the children will be when with him and he will not reasonably communicate with her to facilitate some flexibility in the parenting arrangement.
127.For years now post separation the parents have disagreed about numerous matters from uniforms, to (hobby omitted) teams, to spending time with A. These disagreements have impacted negatively on the children. Any order made will need to ensure that the children are not exposed to further conflict. An order for equal shared parental responsibility in the circumstances is unworkable given the parties’ inability to communicate or consult with the other in a civil, business – like manner. Such an order is likely to exacerbate a situation where high levels of conflict already exist. I decline to make an order for equal shared parental responsibility.
128.The father is seeking an order for equal time. In determining whether an order for equal time should be made, the Court is required to consider whether the children spending equal time with each of their parents is in their best interests and is reasonably practicable.
129.Whether an arrangement for equal time is “reasonably practicable” is to be determined by reference to matters set out in section 65DAA (5) of the Act. That section provides that in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
130.The family consultant opined “equal care parenting requires clear and unambiguous parenting information about health, education, day to day schooling, emotional state, recreation arrangements, social activities and peer group involvement to be passed between parents. They need to be able to discuss the events and subtleties of the children’s lives freely so that their management between homes can flow with as little disruption as possible.” He said plainly that these parents “have no mechanism for resolving disputes between them.”
131.Both parties live within proximity of the children’s school. The father contends that equal time would reduce the opportunity for conflict. I disagree. An equal time arrangement requires the parties to respect each other as a parent, to have similar goals and aspirations for the children and to work in a cohesive and collaborative way. The parties have not demonstrated a capacity to work in this manner over the last three years.
132.In addition an equal time arrangement requires open lines of communication between parents. The parties do not freely exchange information. The father banned the mother from coming to his home. Neither party trusts the other. Further they disagree regarding significant matters including Y’s dietary issues and whether the children should spend regular time with A. I decline to make an order for equal time.
133.The mother seeks to limit the father’s time to each alternate Tuesday. She indicated that the children expressed to her they were unhappy with the current arrangement. The father spends time with the children five nights a fortnight (each Tuesday overnight) under the current arrangement. He presently has an opportunity to be involved with the children on weekdays, weekends and school holidays.
134.When considering whether to make an order for substantial and significant time, the court must consider whether spending substantial and significant time with each of the child’s parents is reasonably practicable and in their best interests. He currently spends substantial and significant time with the children. Pursuant to section 65DAA (3) a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spend with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spend with the parent allows the parent to be involved in:
299.The wife was asked about being provided with a notice to produce. She agreed she had not produced the loan application from the (omitted) bank. She said she couldn’t produce it because the application was made online by the broker. She borrowed $60,000 from the (omitted) bank and used $48,000 of that money to support the mortgage payments. She said she sought an additional $30,000 to cover the following months until the matter was determined by the Court. She said (omitted) Bank released those funds but the funds were frozen as of 17 July 2017. She withdrew $13,000 and put that money in a separate account. She said she had not withdrawn these funds yet. She agreed that it was in a term deposit. She said the $48,000 had been applied to the mortgage. She said the $13,000 was in a (omitted) Bank account. She confirmed that she actually borrowed $61,000 with $48,000 being applied to both mortgages on the Property C and the Property A properties and the $13,000 ready to pay for the September, October and November mortgage payments.
Cross examination of wife’s mother
300.The wife’s mother gave evidence that the wife owed her $384,000. She said the wife borrowed $30,000 for Property A and $50,000 for Property B. She said “we lent her the money”. The wife’s mother’s evidence in her affidavit appeared largely to replicate the evidence contained in the wife’s affidavit though it was not suggested by Counsel that the wife’s mother had simply adopted her daughter’s evidence. She said her daughter kept all the records regarding what she owed her and what had been repaid. I found that the wife’s mother did her best to assist the Court regarding this issue however she was clearly confused when giving evidence. I formed the view that the wife’s mother had no independent knowledge regarding what (if any) monies she was owed by her daughter and what monies had been repaid.
301.She said in 2002 the parties “bought a house together in Property C and they paid $70,000.” I note that the Property C property was in the wife’s name. Her mother and/or parents were not on the title. She said “we paid the deposit and advanced the wife $97,000 in 2006 to renovate the house.” She said between 2001 and 2003 monies were transferred to the wife’s account. She bought carpets, heating and chairs and she paid $24,000 for those items. The money advanced had not been repaid.
302.It was suggested to her that the wife deposed in her affidavit to repaying her mother back some monies owed. She said that the wife had a note book and that she wrote down what had been paid and what had not been paid.
303.She asserted that the wife owed her $384,000. She agreed that this amount does not appear anywhere on any document that she relied upon. When asked how she arrived at this figure she said she had “added it up.” When cross examined on this issue the wife’s mother’s evidence was very confused. She referred to an affidavit she swore in 2015 and referred to annexure B of that affidavit. She said that showed the money she had advanced to the wife. She agreed that page 1 of that annexure had already been annexed to her current affidavit. It was a reference to $40,000 being advanced by her on 11 March 2009 and a further amount of $40,000 on 19 May 2009. She said she added up all amounts advanced and they reached $384,000. She agreed that there was no other document independently showing the total value of the money she said she advanced to the wife. She said she also had some gold and she sold that gold to give to the wife. She said there was an amount of $80,000 that she needed to live on. She said she had no more money left to provide to her daughter.
304.I found the evidence of the wife’s mother impossible to follow. It was certainly not corroborative of the existence of a debt of $384,000 owed to her by the wife. Many of the notes she relied on to prove the debt were in (language omitted). I accept that the wife’s mother made significant financial contributions on behalf of the wife before and during the relationship. She was a generous parent. These advances have been addressed above. I accept that the $80,000 was a loan and she intended those monies would be repaid. I accept the wife’s mother’s statement that she needs that money to live on and she has no further money to advance to her daughter.
Assessment
305.I have taken into account all of the above evidence in reaching my conclusion. I have adopted the asset schedule referred to in paragraph 144 of the judgment indicating that the parties have $3,721,475 in gross non superannuation assets and $334,721 in superannuation.
306.Regarding the alleged loan of $384,000, I am not satisfied that the wife proved the existence of that loan. There was no calculation within the wife’s material regarding the amounts which made up that loan, no sufficient evidence as to what amounts had been repaid and the wife’s mother’s material made no mention of that loan. Further the various other loans asserted by the wife including a loan of $300,000, a loan of $195,000 and individual loans were not proved to the requisite degree, the onus being on the wife to prove that each loan existed and required repayment. I am satisfied however from the wife’s mother’s evidence that the $80,000 advanced by the wife’s parents in 2009 constitutes a loan and that amount was intended to be repaid. I am also satisfied that the $28,000 advanced by the wife’s brother constitutes a loan.
307.Counsel for the husband submitted that at the time of the marriage the wife had an amount of $235,000 in equity. It is unclear how he arrived at this figure. The wife had equity of about $92,000 in Property A which she conceded. She owned the Property B property unencumbered which she said was worth about $175,000 at the time the parties married. She had equity in the Property C property though it is difficult to ascertain the quantum. In addition she had a motor vehicle. The wife’s mother and her parent’s had made significant financial contributions towards the purchase of the wife’s properties. The wife’s initial contributions far exceeded the husband’s initial contribution of $28,000 and other items the husband introduced into the relationship. I take that into account in deciding this matter.
308.The wife’s parents continued their generosity throughout the relationship. The lump sums advanced by the wife’s mother or her parents are discussed above and were substantial. I take those financial contributions into account as a contribution by the wife. I have determined in my analysis that most of the monies advanced to the wife by her mother and/or parents were gifts. I find that the wife contributed those lump sums and her income towards the acquisition and conservation of the parties’ properties and towards the welfare of the family.
309.I take into account that the husband’s income throughout the relationship exceeded the wife’s income. He serviced and maintained his Property D unit and applied net proceeds of sale of $197,265 to reduce the mortgage against the Property C property. He contributed 60% towards expenses and mortgage payments from May 2009 and from August 2011 to November 2014 he contributed the whole of his salary towards reduction of the mortgage on the Property C property save for retaining a moderate amount for personal use. These contributions were significant. His income was applied to the acquisition and conservation of the parties property and towards the welfare of the family
310.I find that both parties made significant non-financial contributions as discussed above with the husband undertaking improvements to properties in the wife’s name and his Property D unit. I find that the parties equally expended their energy during the marriage in different directions with the wife the primary carer for the children and the husband contributing to the care of the children. I find that throughout the relationship the parties’ efforts complemented each other.
Section 75 (2) factors
311.A schedule of the income the parties earned during the relationship was tendered (see Exhibit A2). The schedule recorded the wife’s taxable income from 2005 to 2011 varying between $40,000 and $60,000. Thereafter her income between 2012 and 2014 varied between $94,000, $85,000 and $79,000. The wife’s income recorded in her financial statement filed in June 2017 from salary was $79,716. The wife has a degree in (omitted) and has a flexible work arrangement. In her evidence she indicated she can work as little or as much as she wishes. I accept that evidence.
312.The schedule (Exhibit A2) recorded the husband’s gross income from 2005 to 2011 varying between $58,000 and $102,000. The husband’s financial statement filed in June 2017 recorded his income from salary at $137,540. I accept that the husband currently earns a greater income than the wife and take that into account however I find that the wife has a sound and reliable income earning capacity, tertiary qualifications and has the potential to increase her income into the future particularly as the children approach their teenage years.
313.The children are currently 11 and 9 respectively. In accordance with final orders the wife will continue to have the primary care of the children for about another 7 to 9 years whilst the husband will spend significant and substantial time with them. The husband pays child support of $182 per week for the two children currently and will continue to pay as assessed.
314.Both parties are in good health. The husband has re-partnered however he and Ms R do not share expenses. The wife has not re-partnered.
Conclusion
315.The parties have now been separated for about 3 years. Both desire to sever their financial relationship permanently. I am satisfied that it is just and equitable to make a property settlement order in this matter altering the parties’ respective interests in property.
316.I have taken a two pool approach in this matter. I find that the parties have non superannuation assets of $3,721,475. Against that figure I deduct $536,477 in liabilities which includes the joint mortgage on the Property C property ($259,647), the wife’s additional mortgage ($175,819), the (omitted) loan ($61,011) and the loan to the wife’s aunt ($40,000) leaving a net balance of $3,184,998. I find that the wife owes her parents $80,000 and her brother $28,000. The wife’s parents and brother were not joined in the proceedings. The wife will be required to repay those funds and indemnify the husband regarding these loans. This brings the balance to $3,076,998.
317.The parties each hold an interest in superannuation in the amounts of $162,058 in the wife’s (omitted) account and $172,663 in the husband’s (omitted) Superannuation account. Both parties are relatively young and are not currently eligible to access their superannuation. Neither party sought any superannuation splitting order. There was insufficient evidence before me to make any order regarding the parties’ respective superannuation interests therefore each party will retain his or her superannuation interest to the exclusion of the other.
318.Taking into account the whole of the evidence and each parties’ contributions over 10 years of marriage in addition to the section 75 (2) factors, I determine that the net asset pool be distributed as to 67% to the wife and 33% to the husband. This distribution would be effected as to $2,061,589 to the wife and $1,015,409 to the husband.
319.The husband will retain his contents ($3,000), (omitted) account ($1,081), (omitted) account ($922), (omitted) shares ($648), Subaru ($7,000), (omitted) motor bike ($4,790) and tools and equipment ($2,000) giving him a total of $19,441. In addition he has received $90,000. He will retain the balance of the net proceeds of sale of the two Property D units in the amount of $1,494. This brings the total of property in the husband’s possession to $110,935 requiring the wife to pay the husband a balance of $904,474. The wife will retain all other items of property including the three real properties in her sole name, be required to discharge the mortgages and the (omitted) loan and repay the debts due to her aunt, her brother and her parents. The wife will retain net assets of $2,061,589 and 67% of any sum additional to $1,494.
320.The real effect of the orders made in this matter is that the wife will retain the Property A and Property B properties both of which are investment properties with the potential to earn income. In addition she will retain the Property C property with a value of $2,530,000. The wife will be required to discharge the liabilities and refinance some or all of those properties to make the payment to the husband. Once payment is made to the husband he will be in a strong financial position to purchase property to house both himself and his children. Both parties have the income capacity to service a mortgage. In the event that one of the wife’s investment properties needs to be sold she may be liable for capital gains tax. There is insufficient evidence before me to make any determination regarding that matter.
Capital Gains Tax
321.In Rosati & Rosati (1998) 23 Fam LR 288, the Full Court (Ellis, Lindenmayer and Kay JJ) laid out the now well-accepted principles regarding the proper approach to be adopted by a court in section 79 proceedings in relation to the effect of potential Capital Gains Tax (‘CGT’) as follows:
“[6.36] It appears to us that although there is a degree of confusion, and possibly conflict, in the reported cases as to the proper approach to be adopted by a court in proceedings under s 79 of the Act in relation to the effect of potential capital gains tax, which would be payable upon the sale of an asset, the following general principles may be said to emerge from those cases:
(a) Whether the incidence of capital gains tax should be taken into account in valuing a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.
(b) If the court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.
(c) If none of the circumstances referred to in (b) applies to a particular asset, but the court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid-term, then the court, while not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s 75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.
(d) There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset. In such a case, it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.”
The court is generally hesitant to make allowance for CGT in orders in the absence of sufficient expert evidence. In J & J [2006] FamCA 951, the Full Court (Bryant CJ, Finn and Coleman JJ) said the following in relation to the dearth of information available in this respect:
“[35] Many factors mitigate against the admission of this evidence. First, is the calculation of CGT itself. In order to determine whether a capital gain has been achieved, it is necessary to determine the cost base of the CGT asset. The elements of the cost base are set out in the Australian Taxation Office's Guide to Capital Gains Tax 2006 (pages 12 to 13). They include:
· the money paid for the asset and the market value of property given to acquire the asset;
· a range of nine incidental costs of acquiring the CGT asset or of the CGT event (including remuneration of professional advisers, costs of advertising, and conveyancing, stamp duty and borrowing costs);
· the costs of owning the asset, including rates, land taxes, repairs and insurance premiums;
· capital costs to increase or preserve the value of the asset or to install or move it; and
· capital costs of preserving or defending the ownership of or rights to the asset.
[36] In addition there are three different methods of calculating CGT of which one enables increasing the cost base by applying an indexation factor and another which allows discounting of the gain.
[37] Secondly, even if the liability could be more accurately estimated (which absent the matters referred to, it cannot), the impact on the parties or either of them depends upon their own income in the year in which the capital gain occurs (including all capital gains for that year), any and all capital losses for the year, any unapplied net capital losses from previous years, and any concessions to which they might be entitled.
[38] Given the complexity of the calculation of CGT, the inadequacy of the estimates sought to be put before us can hardly be clearer.”[78]
[78] See also In the Marriage of Bland (1994) 19 Fam LR 325; In the Marriage of Harrison (1996) 20 Fam LR 322.
322.I am satisfied that it is just and equitable to make an order that the parties’ property be adjusted as to 67% in the wife’s favour and 33% in the husband’s favour. I am satisfied that it is just and equitable that the parties each retain their respective interests in superannuation. I make orders accordingly.
I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 20 April 2018
Table of Exhibits
| Exhibit Number | Description of Exhibit | Comment/Information |
| A1 | Transfer document lot (omitted) dated 14/11/2006 | Torrens Title: (omitted) DP: (omitted) Lodged by: Ms Lewington. (omitted), NSW Consideration: NIL Transferor: Ms Lewington; Mr H; Ms F Transferee: 25% of (1/3) to Mr H; 25% of (1/3) to Ms F “Tenants in common” (2.5/6) under Mr H; (3.5/6) under Ms F Tenancy: ‘Tenants in common’ i.e. Mr H (416/1000); Ms F (584/1000) to hold as to the whole. Date: 14/11/2006 |
| A2 | Ms Lewington Income and Mr Lewington Income Schedule | Page 1: Ms Lewington Taxable Income: $40,038 – 30/6/2005 50,588 – 2006 38,828 – 2007 32,895 – 2008 43,522 – 2009 36,491 – 2010 61,911 – 2011 94,307 – 2012 85,739 – 2013 79,133 – 2014 Total: $563,452 – 38.7% of combined income His is 61.3%... Parties’ combined income: $1,453,612 Page 2: Mr Lewington Income Schedule 2005 - $43,886.12 (Net income) 2006 - $56,149.62 (Net income) 2007 - $48,533.84 (Net income) 2008 - $42,443.64 (Net income) 2009 - $54,529.31 (Net income) 2010 - $69,868.91 (Net income) 2011 - $75,215.42 (Net income) 2012 - $79,446.62 (Net income) 2013 - $110,219.92 (Net income) 2014 - $70,824.25 (Net income) Total: $651,387.65 (Net income) Page 3 Addressed to Mr Lewington (omitted) Jewellery – Valuation Report 1. 9ct Two Tone Gents Wedding Ring - $330 2. 9ct Yellow Gold Pendant - $225 3. 18ct 3 Tone Pendant - $230 Total (inc GST): $785 Page 4: Continued from previous page Addressed to Mr Lewington (omitted) Jewellery – Valuation Report 4. 18ct Gold Bracelet - $1,230 5. 18ct Yellow Gold Necklace - $1,325 Total (inc GST): $2,555 |
| A3 | ATO Payment Plan for Mr Lewington dated 28 July 2016 | Addressed to Mr Lewington, (omitted) Dated: 28 July 2016 Titled: ‘Confirming Your Payment Plan” Income Tax Account: amount = $4,428.00 |
| R1 | 4 schedules of financial documents between 2009 – September 2014 | Schedule A: Schedule of financial payments made by each party between 2009 and September 2014 documents in schedule in B, C and D. Schedule B: Schedule of husband’s payments into wife’s (omitted) Bank account BSB (omitted) Account Number (omitted) totalling $319,421.49 with source documents. Schedule C: Schedule of husband’s funds transfers to wife’s (omitted) account BSB (omitted) Account number (omitted) totalling $22,996 with source documents. Schedule D: Schedule of all; Visa Card expenses totalling $400,556.41 with source documents. |
| R2 | Letter from Ms M, Principal at the (omitted) Public School dated 3 April 2017 | Dated 3 April 2017 “To Whom It May Concern, To the best of my knowledge both Y and X are always dressed in the appropriate uniform with the exception of 13th March 2017 when X wore his sports uniform as opposed to his school uniform. [signed] Ms M Principal” |
| R3 | Letter dated 7 January 2013 re: Consent/registered caveat and variation of lease witnessed by the applicant father | Dated: 7 January 2013 Land and Property Information RE: Consent/Registered Caveat No. (omitted) PTY: Property B “As Caveator of Caveat (omitted), I consent to the registration of the Lease document and Variation of Lease document between the Lessor being Ms Lewington and the Lessee being (business omitted) Pty Ltd, for the above property. I understand that the Lease documents will be lodged by Trinity Legal and this letter accompanies those documents by way of my consent [Signed] Ms F [Signed] Signature of Witness Mr Lewington Name of Witness” |
| R4 | Loan refinancing documents | From: Mr M Sent: Friday July 7, 2017 10:47AM To: (omitted) Subject: RE: FW: caceat removed [sic] “Dear Colleagues, The injunctive order has been registered. It is of course conditional. If you clients intended dealing is compliant with the order it will not cause any problem. If it is of help you can send me the full particulars of your client’s proposed dealing and I can send you confirmation of my client’s consent assuming it is compliant. You client needs to disclose her application for finance and particulars of any dealing with the property in any case pursuant to the rules hence she might as well do it now and I should then be able to provide you with my client’s consent. Mr M Solicitor” From: (omitted) Sent: Thursday 6 July 2017 4:33PM To: Mr M Subject: FW: FW: caceat removed [sic] “Mr M, Lewington & Lewington – Caveat removal – possibly incomplete? It would seem that even though the caveat has been removed from our client’s property, there appears to be some “Order of Court” notation dealing # (omitted), do you have any understanding of what this notation is or why it is there? It is creating certain problems for our client who is trying to re-finance her property and will need some clarification immediately. Please respond on an urgent basis. Yours faithfully, (omitted)” |
| R5 | Letter of 24 October 2014 from Harris Friedman Lawyers to Fay Marie Nicholls & Associates | Dated 24 October 2014 “Dear Colleagues Lewington – Family Law Proceedings We refer to your letter to our client dated 4 September 2014, and our letter to you in reply dated 2 October 2014. We are instructed that, contrary to our client’s legal rights and in ignorance of the terms of our letter to you, you client excluded our client from occupation of the former matrimonial home on or about Wednesday 8 October 2014. At this stage, notwithstanding our client’s legal right to occupy the formal matrimonial home, and to seek an order from the Family Law Courts the he do so, we are instructed that our client has arranged alternative accommodation. Please note that this is solely for the purpose of avoiding ongoing conflict with your client in the former matrimonial home in the presence of the children at this time. Your client will appreciate that our client has not moved into occupation of either of the investment properties owned by the parties, in circumstances where we are instructed that this will not be financially viable because the rental payments received from each of the properties is applied towards the mortgage repayments on them, and permits the parties to “negatively gear” both properties for taxation purposes. Your client will appreciate that if our client moved into occupation of either of the investments [sic] properties, the parties will thereby receive no rental income for that property. Our client has rather rented a separate property, at his personal cost. For the purposes of our client’s occupation of that rental property, he requires that he receives the following items immediately: [list of items with hand-written annotations]. … Yours faithfully, (omitted)”. |
| C1 | Family Report of Mr J dated 8 February 2016 | --- |
| C2 | Joint Balance Sheet | --- |
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