Marcet & Marcet
[2024] FedCFamC2F 774
•18 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marcet & Marcet [2024] FedCFamC2F 774
File number(s): PAC 4865 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 18 June 2024 Catchwords: FAMILY LAW – PARENTING – Orders made in best interests of child.
FAMILY LAW – PROPERTY – Just and equitable orders made.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 137 Date of hearing: 27 – 29 May 2024 Place: Parramatta Counsel for the Applicant: Mr Fantin Solicitor for the Applicant: Pannu Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Respondent: NSW Family Law Specialists ORDERS
PAC 4865 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARCET
Applicant
AND: MS MARCET
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parenting
1.The mother have sole decision making responsibility for the child X born in 2016 (hereinafter “the child”) in respect of medical issues, and otherwise the parties have joint decision making responsibility for the child.
2.The mother shall keep the father informed of all medical appointments with the child’s specialists within a reasonable time prior to the appointment and shall otherwise consult with the father in respect of any significant medical issue relating to the child.
3.The child shall live with the mother.
4.The father shall spend time with the child as follows:
(a)From the date of these orders for a period of four months:
(i)In the first week of a fortnight, from the conclusion of school on Friday or 3.00 pm on a non-school day to before school or 9.00 am on Monday;
(ii)In the second week of a fortnight, from the conclusion of school on Tuesday or 3.00 pm on a non-school day until 7.00 pm;
(b)Thereafter:
(i)During school terms, each alternate weekend from after school or 3.00 pm on Friday to before school or 9.00 am on Tuesday;
(ii)During Autumn, Winter, and Spring school holidays:
A.In even numbered years, from 3.00 pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3.00 pm on the Friday immediately following;
B.In odd numbered years, from 3.00 pm on the middle Friday of the holiday period to the commencement of school;
(iii)During Summer school holidays:
A.In even numbered years, from the conclusion of the last day of the school term until 3.00 pm on the Friday falling within the middle period of the school holiday block.
B.In odd numbered years, from 3.00 pm on the Friday falling within the middle period of the school holiday block until the commencement of the first day of the school term.
5.The child shall spend special occasion time with each parent as agreed between the parties in writing and failing agreement as follows:
(a)In the event the child is not already in the father’s care on Father’s Day, the child shall spend time with the father commencing from the conclusion of school before Father’s Day to the commencement of school on Monday.
(b)In the event the child is not already in the mother’s care on Mother’s Day, the child shall spend time with the mother commencing from the conclusion of school before Mother’s Day to the commencement of school on Monday.
(c)In the event the child is not already in the father’s care on the father’s birthday, the child shall spend time with the father from 10.00 am until 7.00 pm on the father’s birthday and in the event the father’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(d)In the event the child is not already in the mother’s care on the mother’s birthday, the child shall spend time with the mother from 10.00 am until 7.00 pm on the mother’s birthday and in the event the mother’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(e)In the event the child is not already in the father’s care on the child’s birthday, the child shall spend time with the father from 10.00 am until 2.00 pm on the child’s birthday and in the event the child’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(f)In the event the child is not already in the mother’s care on the child’s birthday, the child shall spend time with the mother from 10.00 am until 2.00 pm on the child’s birthday and in the event the child’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(g)In the event the child is not already in the father’s care on Diwali, the child shall spend time with the father on Diwali from the conclusion of school until 7.00 pm and in the event Diwali falls on a non-school day when the child is not already in the father’s care, the child shall spend time with the father from 10.00 am until 7.00 pm.
(h)In the event the child is not already in the mother’s care on Diwali, the child shall spend time with the mother from the conclusion of school until 7.00 pm, and in the event Diwali falls on a non-school day when the child is not already in the mother’s care, the child shall spend time with the mother from 10.00 am until 7.00pm.
(i)In the event the child is not already in the father’s care on a holy day, the Child shall spend time with the father on a holy day from the conclusion of school until 7.00 pm and on a non-school day from 10.00 am until 7.00 pm.
6.Changeovers are to occur as agreed between the parties in writing or failing agreement:
(a)In the event that the party’s time with the child commences or concludes at a time coinciding with the commencement or conclusion of the child’s school day, the changeover shall occur at the child’s school, or;
(b)At all other times, at the carpark of the B Store located at C Street, Suburb D.
7.The child have videocall communication with the parent with whom she is not residing every Thursday between 7.00 pm and 7.30 pm and the parent with whom the child is residing with shall do all things necessary to facilitate videocall communication between the child and the other parent.
8.Each party is to keep the other informed of their residential addresses, current telephone numbers and emails, and advise the other of any changes within seven days of such change.
9.In the event of the child suffering illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child has attended as soon as practicable;
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information in relation to the child is to be shared with the other parent upon request.
10.In regard to travel the following apply:
(a)Each party shall be permitted to take the child on overseas holidays as agreed between the parties in writing, and in default of agreement, as follows:
(i)The proposed holidays must coincide with the child’s normal school holidays and the child’s holiday time with the relevant parent;
(ii)The travelling parent, no later than thirty days prior to the commencement of any overseas holiday, furnish to the non-travelling parent:
A.Written notice of his or her intention to travel overseas with the child;
B.An accurate itinerary including the country/countries that the travelling parent and the child will be travelling to, and the approximate dates on which the travelling parent and child will arrive and depart in each country/state, and;
C.Contact telephone numbers and addresses at which the travelling parent and the child will be staying during such travel.
(iii)Whilst the child is out of the country, the non-travelling parent shall be at liberty to communicate with the child via any audio-visual communication mediums (including but not limited to telephone, FaceTime, WhatsApp, Skype or email) during such period, and;
(iv)The non-travelling parent will not seek an order for the immediate return of the child in the event that their return to Australia has been held up for a reasonable period by unforeseen circumstances such as airline strikes, delay in flights or adverse weather conditions beyond the travelling parent’s control.
(v)Neither parent shall unreasonably withhold their consent for the child to travel unless the following applies:A.There has been a Department of Foreign Affairs and Trade travel warning from the Australian Government to that destination of level 3 or above, save as to travel to Country E.
11.The child’s Australian passport be held by the Court and only released with signed consent of the parties or order of the Court or when the child attains the age of eighteen years and shall be returned to the Court within fourteen days of returning from any travel with the child.
12.The parties shall ensure that the child holds a valid Australian passport at all times and for that purpose, at least six months prior to the expiration of the child’s passport, the parties shall do all acts ad things and sign all necessary documents to submit a passport renewal application to the Australian Passport Office and shall bear the costs of the renewal equally.
13.If either party refuses to sign the necessary documents to renew the child’s passport in accordance with the above Order, then the other party may apply for the renewal of the passport without that party’s consent.
14.The party with whom the child is living or spending time is to be responsible for day-to-day decisions concerning the care, welfare, and development of the child.
15.The mother and father are entitled to communicate with the child’s school including being listed as emergency contacts at the child’s school.
16.Each party is hereby authorised to:
(a)Obtain from the child’s school all notices, letters, newsletters, school reports, invitations, bulletins, photographs, orders, forms, or otherwise any other document pertaining to the child’s school and education;
(b)Liaise directly with the child’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress and attendance;
(c)Attend all of the child’s medical appointments, school functions and events that allow for parental attendance including but not limited to parent/teacher interviews, concerts, school assemblies, sports days, canteen duties and social functions;
(d)Obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service;
(e)These orders are authority for the child’s school, extracurricular organisations, sporting bodies and/or other organisations to release such information and/or documents as requested by the other party to the extent permitted by law;
(f)The parties be at liberty to attend any extra-curricular activities or sporting activities which the child is enrolled in, and;
(g)The parties are permitted to provide a copy of these orders to the child’s school, out of school care facilities, extracurricular organisations, sporting bodies, medical and healthcare practitioners and any other government authority or organisation as may be necessary.
Property
17.The wife shall within 60 days of the date of these Orders:
(a)Pay to the husband the sum of $116,539;
(b)Transfer to the husband her right title and interest in the property situate at and known as F Street, Suburb G (“the Suburb G property”);
(c)Cause the discharge of the mortgage secured upon the property situate at and known as H Street, Suburb J (“the Suburb J property”).
18.The husband shall forthwith upon the wife’s compliance with the above order:
(a)Cause the discharge of the mortgage secured upon the Suburb G property;
(b)Transfer to the wife his right title and interest in the Suburb J property;
(c)Transfer to the wife his right title and interest in Motor Vehicle 1.
19.In the event the wife fails or neglects to pay to the husband the sum of $116,539 in accordance with Order 14 herein, the parties shall do all acts and things necessary to sell the property situate at and known as H Street, Suburb J and in respect of such sale the following shall apply:
(a)The parties shall place the property in the hands of a licenced auctioneer to sell the property by public auction within 60 days at a reserve price agreed to by the parties;
(b)In the event that the parties cannot agree as to a reserve price at auction, then the parties or either of them shall appoint the President for the time being of the Real Estate Institute (NSW Division) and his or her nominee to assess the reserve price at auction and each party shall be bound by such assessment and equally bear the costs;
(c)The parties shall sell the property by public auction at or above the reserve price and sell the property subsequently to the auction at any offer made at or above the reserve price as agreed or assessed pursuant to these Orders;
(d)Upon sale the proceeds of sale shall be paid as follows:
(i)In payment of agent’s commission and legal fees occasioned by the sale;
(ii)In discharge of the mortgage secured on the property;
(iii)In payment to the husband of $116,539;
(iv)In payment of the balance to the wife.
20.Except as otherwise provided in these Orders, the parties are each declared the sole owners in equity and at law, to the exclusion of each other, to all items of property and financial resources, including furniture, jewellery, household items, choses-in-action, motor vehicles, money in bank accounts and superannuation entitlements held in their respective names as at the date of these Orders.
21.Except as otherwise provided in these Orders, the parties are each to remain solely liable to the exclusion of each other to any debt or liability held in their respective names as at the date of these Orders.
22.Subject to these orders, and except to the extent required to enforce these Orders, the husband hereby releases the wife to the fullest extent permitted by law from any debts, liabilities, demands, or claims whatsoever which the husband has or would have had against the wife but for these Orders and this release.
23.Subject to these orders, and except to the extent required to enforce these Orders, the wife hereby releases the husband to the fullest extent permitted by law from any debts, liabilities, demands, or claims whatsoever which the wife has or would have had against the husband but for these Orders and this release.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These reasons relate to the final parenting and property hearing held on 27 to 29 May 2024.
There is one child of the relationship, X born in 2016, aged 8. The child presently lives with the mother and spends time with the father, in accordance with interim orders made by consent on 16 February 2023, from after school Friday until 5.00 pm Sunday on alternate weekends, and from after school to 7.00 pm each Thursday in the off week.
MATERIAL RELIED UPON (BOTH PARENTING AND PROPERTY)
The father relied upon:
(a)Initiating Application filed 5 September 2022;
(b)His Affidavit filed 6 May 2024;
(c)His Financial Statement filed 1 May 2024;
(d)Affidavit of Mr K filed 3 May 2024;
(e)Notice of Child Abuse, Family Violence, or Risk filed 4 September 2022;
(f)Family Report of Ms L dated 28 November 2023.
The mother relied upon:
(a)Amended Response filed 30 November 2023;
(b)Her affidavit filed 19 April 2024;
(c)Her Financial Statement filed 19 April 2024;
(d)Family Report of Ms L dated 28 November 2023;
(e)Her Case Outline filed 24 May 2024.
The following documents became exhibits:
(a)Exhibit A: Email correspondence dated early 2024;
(b)Exhibit B: Email re co-parenting arrangement and extracurricular activities dated early 2024;
(c)Exhibit C: Email chain between the parties to early 2024;
(d)Exhibit D: 88 page tender bundle of the father;
(e)Exhibit E: USB containing 2 x videos, E1 – CCTV videos and E2 – Mr K videos;
(f)Exhibit F: Motor Vehicle 2 receipt;
(g)Exhibit G: Supplementary tender bundle of the father;
(h)Exhibit H: Pages 31 to 105 of the mother’s tender bundle;
(i)Exhibit I: Pages 5 to 16, 20, 22 of the mother’s tender bundle;
(j)Exhibit J: Email correspondence to mid-2024;
(k)Exhibit K: Emails dated late 2013, and MFI1 (transfer from Country M).
PARENTING
Proposals
The father sought parenting orders as set out in his Minute of Order handed up at the hearing. In brief he sought orders that:
·The parties have joint decision making;
·The child live with the mother;
·The child spend time with the father in a graduated regime:
·For three months, on a fortnightly cycle, in Week 1 from the conclusion of school or 3.00 pm Friday to the commencement of school or 9.00 am Monday, and in Week 2 from the conclusion of school or 3.00 pm Tuesday to the commencement of school or 9.00 am Wednesday;
·Thereafter, on a fortnightly cycle, in Week 1 from the conclusion of school or 3.00 pm Friday to the commencement of school or 9.00 am Wednesday, and in Week 2 from the conclusion of school or 3.00 pm Tuesday to the commencement of school or 9.00 am Wednesday;
·For half of each school holiday period.
The mother sought parenting orders as set out in her Minute of Order handed up at the hearing. In brief she sought orders, inter alia, that:
·She have sole decision making for medical issues, and otherwise the parents have joint decision making;
·The child live with her;
·The child spend time with the father in a graduated scheme:
·Until Term 1 2025, each alternate weekend from after school (or 8.30 am on a non-school day) on Friday to before school (or 9.00 am on a non-school day) on Monday, and from after school (or 8.30 am on a non-school day) to 7.00 pm each Tuesday;
·Thereafter, each alternate weekend from after school (or 8.30 am on a non-school day) on Friday to 7.00 pm on Tuesday, and from after school (or 8.30 am on a non-school day) until 7.00 pm each Tuesday in the off week;
·Specified time during school holidays graduating to half of all school holidays by December 2026.
Evidence
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Evidence of the father
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father was born in Country E. He is aged 43 years. He arrived in Australia in 2009. He went back to Country E in late 2009. He returned to Australia in about early 2011. He was granted citizenship in Australia in 2020.
The parties married in 2012 in Country E. After the marriage, the father returned to his home in Australia and the mother returned to her home in Country M. In 2012 the parties travelled to Country E for about one month and they had a wedding ceremony hosted by the mother’s family. In 2012 the father sponsored and applied for the mother’s spousal visa. In about early 2013 the mother commenced living with the father in Australia.
The child X was born in 2016. She is now aged 8 years. She is in Year 3 at a public school in Suburb D.
The parties temporarily separated in about February 2021 when the father moved out and lived in his brother’s home for a few weeks. The parties separated in early September 2021 on a final basis.
After the child’s birth, the father assisted the mother in the care of the child. The child started attending childcare in about 2018 when she was about 12 months old on a full-time basis five days per week.
The child from birth until about 2019 slept in the same bed as the parties.
The paternal grandfather passed away in 2020 and the mother travelled to Country E for about ten days, during this period the father cared solely for the child without any issues. The father facilitated video calls between the child and the mother on an almost daily basis.
In about early 2021 the father began to experience issues with the mother in their relationship including arguments on an almost daily basis.
In about October 2021 the mother told the father that she wanted him to continue living with her but back in the family home.
The mother would facilitate WhatsApp video calls between the child and the father on an ad hoc basis.
In early June 2022 the father attended the child’s school because the mother was not facilitating time or communication between the child and himself. In about mid-June 2022 the mother emailed the father to spend time with the child under her supervision the next day for two hours at a park. A few hours before the scheduled visit the mother cancelled the visit.
Mediation did not occur in August 2022 and the father commenced proceedings in September 2022. At this time the mother was not facilitating time between the child and the father.
The mother did not permit the child to attend the funeral of the paternal grandfather in 2022.
On 2 November 2022 interim consent orders on a without admissions basis were made relating to the child spending time with the father every Thursday in the afternoon for two hours but supervised.
In mid-February 2023 further interim consent orders were entered into providing, ultimately, and from 4 August 2023, for the child to spend time with the father in week one from after school Friday until 6.00 pm on Sunday, and from after school Thursday to 7.00 pm, and in week two, from after-school Thursday to 7.00 pm.
The mother did not facilitate time between the child and the father on the weekend commencing 31 August 2023. On Father’s Day 2023 the mother did not make the child available to spend time with the father.
The father took the child to certain extracurricular classes that fell during the child’s time with him, including sports competitions.
In January 2024 the parties agreed to swap the fortnightly cycle to accommodate an activity that the mother sought to involve the child with.
On Friday, 5 April 2024 the father collected the child from school at 3.00 pm. The child was in his care until he dropped her off to school on Monday, 8 April 2024. The father saw that the child enjoyed spending the extra time with him and easily adjusted to spending an additional night in his care.
The child has a positive relationship with the father’s brother, his wife and their three daughters.
In mid-2022 the paternal grandmother arrived in Australia. She has been staying in the same residence of the father. The child and the paternal grandmother had a very close and loving relationship.
The parties both discussed placing the child in childcare full-time when the mother commenced working. They also discussed the school that the child would be attending for kindergarten. In relation to the child’s medical condition the parties discussed the medical specialist’s recommendations and agreed that the child should do medical treatment.
In late 2022 the father completed a parenting after separation course.
The father lives about a 10-minute drive away from the mother’s residence.
The father, in his current employment, is allowed to work from home during the week. He currently works 8.00 am until 5.00 pm Monday to Friday. His office is in Suburb N and he is presently required to attend the office in person every Thursday.
The father denies any physical family violence perpetrated against the mother. He denies verbally abusing her.
The parties agreed to maintain a joint bank account throughout the marriage. The father denies being financially controlling of the mother.
In late 2021 the mother called the father because she and the child were locked out of the house and she needed the father to let them in. The mother verbally demanded that the father reside in the former matrimonial home. The mother was raising her voice and yelling at the father in front of the child.
Evidence of the mother
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother is aged 39 years.
At about the time of the parties’ marriage, the mother transferred about $10,000 from her Country M savings to purchase household contents.
The mother works full-time from home and goes into the office generally twice a week.
The child lives with the mother very close to her school. The child socialises with her school friends and neighbours.
The mother alleges that since the interim parenting orders were made the child returns from her time with the father hungry, dirty, unbathed and unfed.
In about late 2023 the mother emailed the father to propose that he take the child from Thursday to Sunday to test a gradual increase of their time together.
The mother regularly reminds the father to help the child with her homework. She is concerned that if the child is in the father’s care for long periods she will not attend to her homework and her grades will drop.
The father has declined to take the child to birthday parties on about six occasions since early 2023.
The mother asserts that she pays for the child’s school fees and extracurricular activities. The child attends a public school. The father pays the mother about $583 per month in child support.
The mother has attended a parenting after separation course.
The father’s brother’s children are aged six years and twins aged four years. They are female children. The mother ensures that the child enjoys her cousins’ company and she often speaks of them.
In about late 2021 the mother told the father that she could not send the child for overnight stays at the father’s brother’s home until the father found separate accommodation. In about late 2021 the mother told the father that she would facilitate time with the child on the condition that there was not any overnight time if the father continued to reside with his brother as the mother had concerns for her safety. The mother asserts the father did not respond and did not have contact with the child from about late 2021 until mid-2022.
In mid-2023 the child told the mother that when she was in the father’s care she slept in the father’s brother’s bed on the weekend. The mother felt extremely disturbed because it seemed to trouble the child quite a lot. The mother thereby worried for the child’s safety. She immediately ceased the child’s time with the father since the father was continuing to live at his brother’s home.
Family Report
The Family Report was prepared by Regulation 7 Family Consultant Ms L.
The Court does not propose to set out the entirety of the Family Report.
With respect to each of the parents, the Family Report writer said:
16.[Mr Marcet], aged 42, presented as earnest, focused and articulate. Initially in the interview, it was difficult for him to answer the report writer’s questions because he was eager to give his account.
17.The father presented with a mistrusting view of the mother based on his belief [Ms Marcet] was undermining his parenting of [X] by criticising him, preventing him from engaging in activities with [X], making negative comments about him in front of [X], and encouraging [X] to find fault with aspects of his care. He described [Ms Marcet] as “not friendly”, “highly emotional” and “hard to collaborate with”. The father acknowledged [X] and her mother have a close relationship describing [Ms Marcet] as “good as a mum” but says she dominates the relationship, making threats of consequences when trying to get [X] to do what she wants and “only thinks about her child” and does not think of other children that may be present.
18.[Ms Marcet], aged 39, presented as warm, organised and child focused. In interview, she appeared anxious to put her views forward and as was the case with the father, it was initially difficult to re-direct her to the questions as she was keen to present her views.
19.[Ms Marcet] presented with a negative view of [Mr Marcet] particularly in relation to his parenting capability, his reported lack of involvement with [X] during the relationship, her perception that he fails to prioritise [X] and his alleged treatment of her during the relationship. She said it is hard to have a discussion and cooperate with [Mr Marcet] and when upset, he gets angry then gives her “the silent treatment”. [Ms Marcet] does not feel [X] has a well-established relationship with her father saying they are “still figuring it out” and, after returning from her father’s home, saying [X] reports things she has done with her cousins, but hardly mentions her father's name, although she does tell her that her father loves her cousins more than her. The mother denies she is domineering with [X] stating, for example, that she obtains [X]’s input into house rules and her preference on activities and classes.
Under the heading “Risk of Family Violence”, the Family Report writer said:
20.According to [Ms Marcet]’s account, [Mr Marcet] was physically, emotionally and verbally abusive towards her during the relationship. His reported behaviours included [assault], shouting and calling her names. Around [early] 2021, [Ms Marcet] alleged [Mr Marcet] grabbed her around her neck hard for a couple of seconds, "threatening me, not trying to kill me” and calling her a “[…]” (whore in [native language]). [Ms Marcet] also alleged he was financially controlling and emotionally manipulative, for example, fabricating her having an affair, including buying gifts, then discussing this in front of friends and family over three months. This behaviour would be expected to have impacted [Ms Marcet]’s mental health and wellbeing. [Ms Marcet] is considered vulnerable because, apart from her cousin, the rest of her family is overseas.
21.According to [Ms Marcet]’s account, [Ms Marcet] demonstrated controlling behaviour in terms of restricting his relationship with his daughter. She also preventing him from leaving the house on one occasion during a disagreement in front of [X]. Police were called and according to police records, [Ms Marcet] stood in front of [Mr Marcet] and held on to his shirt in an attempt to stop him leaving. [Mr Marcet] described an acrimonious, high conflict environment, with arguments between the parents, instigated by [Ms Marcet], resulting in him sometimes acquiescing to prevent an argument in front of [X].
Under the heading “Parental understandings of the child/ren’s needs”, the Family Report writer said:
29.There appears to be some differences in the parent’s assessment of [X]’s needs. [Mr Marcet] is focused on helping [X] build friendships, prioritising [X]’s attendance at playdates and parties. She felt [Mr Marcet] was not doing the same, however [Mr Marcet] responded that, given his limited time with [X], he wanted to spend time with her, rather than take her to a party. While [Mr Marcet] advocated children [X]’s age being able to “clearly express their thoughts”, he reportedly discouraged [X] from discussing what occurred at his house, likely due to his concerns about [Ms Marcet]’s feedback on his parenting. [Ms Marcet] felt [X] needs to be able to openly share her feelings and concerns with her parents or a psychologist. [Mr Marcet]’s parenting style appeared to be more permissive with him believing children should be disciplined “in a friendly manner”, whereas [Mr Marcet]’s parenting style appears to be more authoritative. [Mr Marcet]’s appears to enjoy including [X] in activities with her cousins, whereas [Ms Marcet] advocated for [X] to spend some individual time with each parent.
Under the heading “Evaluation”, the Family Report writer said:
56.The advantage of [Mr Marcet]’s 's proposal of a 'week about' parenting arrangement, or even spending substantial time in his care, is that this will enable [X] to have the opportunity to experience him as being actively involved in all domains of her life, and to be both a fun father and responsible parent. If her experience of him is positive, this will allow her to develop a robust and meaningful relationship with him. Her sense of identity, self-esteem, belonging and connection with their father and extended paternal family would be expected to have positive outcomes. If [Mr Marcet] is deemed to be a positive influence on [X], he can be a role model and offer her a different perspective of the world, that would ideally compliment the mother’s role.
57.The disadvantages of [Mr Marcet]’s proposal of a ‘week about’ parenting arrangement is that [X] may experience increased anxiety and loyalty binds, particularly if her mother does not support [X]’s relationship with her father. It may be difficult for [X] to spend substantial time away from her mother as her primary caregiver, particularly if changes to her known parenting experience are introduced abruptly. The parent’s problematic co-parenting relationship may make it difficult for a shared parenting or substantial and significant care arrangement to be put in place.
58.The advantage of [Ms Marcet]’s proposal is that [X]’s parenting experience remains similar. It also aligns with her wishes that the current arrangements continue. It is important for [X]’s development and emotional security, that her relationship with her mother, as her primary caregiver, is supported as may protect her from increased anxiety, and possible adverse impacts on her learning, social development and relationship with both parents.
59.The disadvantage of [Ms Marcet]’s proposal is that it could impact her development of a meaningful relationship with her father and her paternal extended family and may increase the risk of [X]’s alienation of her father, particularly if her mother does not support [X]’s relationship with her father.
60.[X] clearly articulated she wanted the current parenting arrangement to remain as they are. Given her age and developmental stage, and the possibility her views may reflect some of her mother’s thoughts and anxiety, [X]’s views should be given consideration but with some caution.
61.Considering the above, it is recommended [X] live with her mother and spend time with her father. Some of the factors that need to be considered when determining which arrangement for [X] to spend time with her father is in her best interest include her safety and wellbeing, parental capability, maintaining positive relationship with both parents, the co-parenting approach adopted, [X]’s wishes and her capacity to cope with changes to her parenting experience.
62.Children [X]’s age generally benefit from both parents being actively involved in their lives. Active involvement in a child’s life does not however necessarily mean equal time with each parent, and time with each parent, if that time is distributed well, can be in a child’s best interest. It is believed to be in [X]’s best interest to spend blocks of time with her father to ensure the continuity and growth of his relationship with [X] while reducing the possible adverse impacts on [X] being away from her primary caregiver. Because [X] appear to be experiencing some anxiety or stress around changeover to her father’s home, observed by both parents, her parents should make supporting her smooth transition at changeovers a priority, and it may be in [X]’s best interest to have fewer, rather than more frequent, changeovers.
63.Considering the above, it is recommended [X] spend gradually increasing blocks of time during the school term and school holidays with her father, provided she copes well with these changes. This will help her strengthen her relationship with her father and develop a sense that his home is her home. A gradual increase is likely to be tolerable to [Ms Marcet], be protective of her mental health and her relationship with [X] and allow her to work on supporting [X]’s relationship with her father. It should also allow [Mr Marcet] time to invest further in his relationship with [X] by doing special things with her individually and working on his co-parenting relationship with [Ms Marcet].
64.Shared parental responsibility works best in situations where there is little conflict in the co-parenting relationship, children have strong attachments to both parents and there is good communication between the parents. This is not the case with [X]’s family. Having [Ms Marcet] responsible for [X]’s medical decisions, is sensible at this stage so that decisions about [X]’s health can be made effectively particularly in an area that may evoke high emotions and result in conflict between the parents. Given the parent’s poor communication, mistrustful view of each other and little evidence the parents made decisions about [X] together, if shared parenting is considered unworkable, it may be best to revert to sole parenting responsibility for [Ms Marcet]. If [Ms Marcet] is given sole parental responsibility, before making any major decisions for [X], she should consult with [Mr Marcet], consider his opinion, and inform him when final decisions have been made. [Mr Marcet] should be able to access information from [X]’s school and medical providers as this will increase his understanding of [X]’s needs and reduce the need for [Ms Marcet] to communicate with [Mr Marcet].
Under the heading “Recommendations”, the Family Report writer said:
67.In accordance with their wishes, the parents to have shared parental responsibility for all significant decisions regarding [X] however the mother to have sole parental responsibility for [X]’s medical needs and treatment. If shared parental responsibility is believed to be unworkable, the mother to retain sole parental responsibility but before making major decisions for [X], she must consult with the father, consider his opinion and advise him of the decision that has been made.
68.[X] to live with her mother but spend increasing blocks of time with her father culminating in her spending five days per week with her father and nine days per week with her mother. For example, in three months, she could start spending from Thursday 3pm to Sunday 6pm with her father each alternate week. This could progress, after a further six months, to her staying with her father from Wednesday 3pm to Sunday 6pm, every alternate week. In the school holidays, [X] could spend from Wednesday 9am to Sunday 6pm each alternate week, however if [X] is coping well, she may be able to spend equal time in the holidays with her father and mother.
69.[X] to have a weekly video call, of up to half an hour duration, with her absent parent, at an agreed time, during her time with the other parent, and more frequently by agreement.
70.[X] to attend individual counselling.
71.[X]’s parents to attend family therapy and a parenting course such as the Circle of Security, the Triple P or Parenting After Separation course.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that oral evidence.
Counsel for the father cross-examined the Family Report writer:
COUNSEL:Okay. Now, so returning back to the mother’s proposed orders then, where she says at 4.1 that the time is to be three nights from the date when the court makes the orders up until term 1, so term 1 would be February 2025, so that would be nine months roughly from – if you use today as a yardstick. That is quite a long time, isn’t it?
WITNESS:That is a long – quite a long time. I do think it is sensible to gradually increase time with the father, but I think there’s also a balance between, you know, providing the father with enough time to have a meaningful relationship with [X], so I think that’s an important consideration as well. And probably the three nights may not be adequate for the father to develop the meaningful relationship with her and for her to feel a sense of belonging at the father’s house.
COUNSEL:Okay. So then, are you suggesting, if I return back to the father’s proposed orders, that the three nights can run for three months, but after that it would gradually increase to four nights. Is that what you’re suggesting, and then from ‑ ‑ ‑?
WITNESS: I think that’s sensible.
…
COUNSEL:And so, what’s your opinion about the delay in spending half the school holidays, on the mother’s proposal?
WITNESS:Look, I – yes, I mean, in some ways, I support moving more slowly maybe for now, but I think that waiting till next year is probably too long, because I think that, yes, [X] enjoys – she enjoyed spending time with her cousins in the school holidays. It gives, you know, the father good opportunities to spend, you know, a big block of time with [X]. Yes, I think that probably there’s a middle ground, maybe just, yes, having an opportunity for [X], to, you know, get used to the idea, is sensible, but probably this could be something that would be – could be adopted, you know, like maybe next school – the school holidays following the orders potentially, not, you know, maybe delay her holidays or whatever, just give her an opportunity to digest that, potentially, but I think that waiting till 2025 is probably too long.
The Court asked questions of the Family Report writer:
HIS HONOUR: Well, can I ask you this, [Ms L], whether it’s four nights a fortnight, as proposed by the mother in her ultimate time with the father in proposed order 4.1, whether it’s ultimately four nights a fortnight as the mother proposes, or let’s look at five nights a fortnight, either amount of time would enable the child to develop or further develop a positive relationship with the father, wouldn’t it?
WITNESS:It would, it would, particularly if there’s a balance between some weekend time and also time that he’s responsible for her when she’s at school, yes.
HIS HONOUR: Yes. And can I ask you a general question. Bearing in mind your comments in your report about the parties’ level of communication and co-parenting relationship, the general question is, the more time that the non-lived with parent spends with the child compared to – so, let’s say that’s five or six nights a fortnight – compared to a lesser amount of time, such as two or three nights a fortnight, say, does the greater – and this is, again, just a general question – does the greater amount of time that the non-lived with parent is spending with a child likely lead to a greater need for each of the parties to have to communicate about the child?
WITNESS:Yes, probably it does. But I think also mum’s anxiety might mean that if there’s a bit more of a balance with dad taking care of [X], and mum, it might – she might be encouraged just to allow dad to make decisions at his house and not, you know, not sort of seek for [X] to give her feedback. So, it might actually – it could improve, you know, mum’s confidence, potentially, if things are going okay with dad and [X] is reporting – you know, not reporting back negative stuff that’s happening at dad’s home. Yes.
The Court accepts the evidence of the Family Report writer subject to any contrary view expressed by the Court below, whether express or implied, in its discussion of relevant matters under s 60CC of the Act.
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
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: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, a court must consider the matters set out in subsection (2).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child, the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The mother makes allegations against the father of family violence including coercive and controlling family violence. The father denies these allegations. On the balance of probabilities the court does not accept these allegations. The Court observes, inter alia, that there were no family violence orders between the parties and, particularly in respect to the mother’s more serious allegations of choking, no report was made to the police or others, and no mark was left on the mother’s neck despite alleging that the father had strangled her neck “so hard”.
The Court finds that the parties’ relationship was marred by verbal arguments, with the Court observing, inter alia, that the mother’s parenting style was considerably more authoritative compared to the father’s more permissive style.
The mother became emotionally distraught at the former matrimonial home in late 2021. The father and child were present. The father was present at the home as the mother was locked out of the home and she had requested his assistance to open the door. The mother was running late for a medical appointment. The mother told the father that she wanted him to stay at that home and care for the child, and had physically sought to prevent him from leaving. She had exhibited anger towards him. The mother frankly conceded this incident in oral evidence, being an incident shortly after separation, stating she had lost control. She was not happy with herself for her behaviour that day. The Court would assess that the mother is unlikely to act in this adverse manner again.
The Court does not accept, on the balance of probabilities, that the father’s brother was intoxicated in late 2018 at the time when the child fell over, nor does it accept that the father’s brother’s friend pushed the child, and nor does it accept that the father’s brother fell on top of the child. It does not accept that he has offered the child alcohol.
(2)(b) any views expressed by the child;
The child, when aged about 7.5 years, told the Family Report writer at interview on 4 October 2023 that she wanted no more or less time with the father. That view is given some weight but not significant weight noting the child’s young age.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The child is progressing well in both parties’ care with the Court observing that the mother has been the child’s primary carer since birth to date.
The parties have a Country E background and both parties seek to involve the child in Country E cultural activities.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
Both parties have such capacities. Both parents love the child and seek to parent her in a positive manner.
There was at least one occasion after the parties’ brief initial separation in April 2021 when the mother sought to restrict the child’s time with the father until he paid child support; this was not child focussed behaviour by the mother.
Post final separation in early September 2021, the mother had sought to restrict the child’s time with the father despite the father’s wish to spend time with the child. The Court finds that in doing so the mother was conscientiously seeking to act protectively towards the child. For example, the mother had concerns in respect to the child’s sleeping and bathing arrangements at the father’s brother’s home and had concerns in respect to the father’s brother’s alcohol consumption in the presence of the child.
Post separation the father had declined on occasion to take the child to her peer’s birthday parties despite the requests of the mother that he do so. The father was concerned that his time with the child might be adversely affected. This was not child focussed behaviour by the father.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child has a positive relationship with each parent. The child’s primary attachment is to the mother.
Post separation the child has spent time with the father and, in particular, the Court refers to the facilitation of time between the child and the father pursuant to the Court’s interim parenting Orders of 2 November 2022 and 16 February 2023. Under those latter orders, since about early August 2023, the child has been spending, inter alia, two nights each fortnight with the father together with daytime time in the off week.
Should the child spend time with the father, on a graduating basis, culminating in spending four nights each fortnight during school terms, together with block time during school holidays and on special occasions, there is a significant prospect that the child’s positive relationship with the father can be not only maintained but, importantly, enhanced.
The Court is of the view that the mother’s proposed orders, relating to the mechanism for the child’s time with the father progressing, are too slow, and will not assist in the child’s relationship with the father being enhanced in a timely fashion. Her proposed orders in relation to the extent of block time the child spends with the father during school holidays is too restrictive, and again will not assist in the child’s relationship with the father being enhanced in a timely fashion.
The father proposed that the child spend time with him, inter alia, during school terms, ultimately, for six nights each fortnight. The father proposed that these six nights each fortnight would commence after three months from the date of the Court’s orders. The Court is of the view that there is a significant prospect that these parties would not be able to adequately communicate and co-parent the child without conflict if the child was spending more than four nights each fortnight during school term times with the father.
The Court is of this view because, firstly, the nature and extent of the parties’ parenting communications post separation to date has been far from optimal, with the parties often being unable to cooperate, if not compromise, and reach agreements in a timely fashion.
For example, the Court refers to:
(a)An email chain at pages 60 and 59 of the mother’s affidavit filed 19 April 2024 regarding the mother’s request to the father to take the child to a party;
(b)The father’s email to the mother in early 2024 at 1.52 pm; the father refers to the mother’s “absurd emails” and “If you want to interfere and ask X all the things…”;
(c)The father’s email to the mother in late 2023 at 2.53 pm: “this absurd email from you”;
(d)The mother’s email to the father in late 2023 at 8.57 pm at page 43 of 183 of the mother’s affidavit: the mother refers to the father’s “false allegations”;
(e)At page 59 of 183 of the mother’s affidavit regarding the father’s email to the mother in early 2024 at 11.42 am: “don’t bother asking me again”;
(f)At page 85 of 183 of the mother’s affidavit: “That’s exactly what you are doing all the time commenting and finding faults”.
The parties do not discuss parenting issues face to face. They do not discuss such matters over the telephone. Rather, they message each other by email and often email exchanges are lengthy and protracted.
Secondly, there is mutual mistrust between the parties; for example, the mother harbours concerns in relation to the father’s parenting capacity, and the father believes the mother unreasonably seeks to limit the nature and extent of the child’s relationship with the father.
And thirdly, it is apparent that the mother, because she is a particularly conscientious mother in relation to the child’s care and development, has, both during the relationship and post separation, often sought to communicate with the father in relation to day-to-day matters affecting the child. This has often led to conflict. It is likely that the mother, prospectively, will continue to seek to communicate with the father in relation to such matters if she believes that the father will need to be appraised of such matters when he is caring for the child.
The Court observes that the above suboptimal communications of the parties have occurred within the context of the child spending fairly modest time with the father. It is likely that should the child begin to now spend significantly increased time with the father the parties will need to communicate to a greater extent in relation to day-to-day matters affecting the child. Again, the Court has a significant doubt that these parties would be able to adequately communicate and coparent the child without conflict if the child was spending five or six nights each fortnight during school term times with the father, with the court observing that such times would be approaching an equal time arrangement.
(2)(f) anything else that is relevant to the particular circumstances of the child.
Not applicable.
Parental responsibility
The mother seeks an order that she have sole decision-making responsibility for the child in respect to medical issues, and otherwise the parties have joint decision making responsibility for other major long-term issues affecting the child . This is opposed by the father who seeks an order that the parties have joint decision making responsibility for all major long-term issues affecting the child.
This child was born with a medical condition and has undergone treatment for this condition, and there is a significant prospect that she will need to undergo future treatment for it. She also has been diagnosed with food allergies. It is likely that the parties will need to communicate effectively with each other and in a timely manner in relation to these health issues in the future.
The parties’ coparenting relationship is far from satisfactory, and there exists significant mistrust between them. They probably lack the ability to effectively communicate with each other and reach agreement in relation to major medical issues affecting the child in a timely fashion and without conflict.
It will be in the best interests of the child for the mother to have sole decision-making responsibility for the child in respect to medical issues and otherwise the parties have joint decision making responsibility for other major long-term issues affecting the child. It will be in the best interests of the child that the mother be required to keep the father informed of all medical appointments with the child’s specialists within a reasonable time prior to the appointment, and that she should otherwise consult with the father in respect of any significant medical issue relating to the child.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting Orders:
1.The mother have sole decision making responsibility for the child X born in 2016 (hereinafter “the child”) in respect of medical issues, and otherwise the parties have joint decision making responsibility for the child.
2.The mother shall keep the father informed of all medical appointments with the child’s specialists within a reasonable time prior to the appointment and shall otherwise consult with the father in respect of any significant medical issue relating to the child.
3.The child shall live with the mother.
4.The father shall spend time with the child as follows:
(a)From the date of these orders for a period of four months:
(i)In the first week of a fortnight, from the conclusion of school on Friday or 3.00 pm on a non-school day to before school or 9.00 am on Monday;
(ii)In the second week of a fortnight, from the conclusion of school on Tuesday or 3.00 pm on a non-school day until 7.00 pm;
(b)Thereafter:
(i)During school terms, each alternate weekend from after school or 3.00 pm on Friday to before school or 9.00 am on Tuesday;
(ii)During Autumn, Winter, and Spring school holidays:
A.In even numbered years, from 3.00 pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3.00 pm on the Friday immediately following;
B.In odd numbered years, from 3.00 pm on the middle Friday of the holiday period to the commencement of school;
(iii)During Summer school holidays:
A.In even numbered years, from the conclusion of the last day of the school term until 3.00 pm on the Friday falling within the middle period of the school holiday block.
B.In odd numbered years, from 3.00 pm on the Friday falling within the middle period of the school holiday block until the commencement of the first day of the school term.
5.The child shall spend special occasion time with each parent as agreed between the parties in writing and failing agreement as follows:
(a)In the event the child is not already in the father’s care on Father’s Day, the child shall spend time with the father commencing from the conclusion of school before Father’s Day to the commencement of school on Monday.
(b)In the event the child is not already in the mother’s care on Mother’s Day, the child shall spend time with the mother commencing from the conclusion of school before Mother’s Day to the commencement of school on Monday.
(c)In the event the child is not already in the father’s care on the father’s birthday, the child shall spend time with the father from 10.00 am until 7.00 pm on the father’s birthday and in the event the father’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(d)In the event the child is not already in the mother’s care on the mother’s birthday, the child shall spend time with the mother from 10.00 am until 7.00 pm on the mother’s birthday and in the event the mother’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(e)In the event the child is not already in the father’s care on the child’s birthday, the child shall spend time with the father from 10.00 am until 2.00 pm on the child’s birthday and in the event the child’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(f)In the event the child is not already in the mother’s care on the child’s birthday, the child shall spend time with the mother from 10.00 am until 2.00 pm on the child’s birthday and in the event the child’s birthday falls on a school day, from the conclusion of school until 7.00 pm.
(g)In the event the child is not already in the father’s care on Diwali, the child shall spend time with the father on Diwali from the conclusion of school until 7.00 pm and in the event Diwali falls on a non-school day when the child is not already in the father’s care, the child shall spend time with the father from 10.00 am until 7.00 pm.
(h)In the event the child is not already in the mother’s care on Diwali, the child shall spend time with the mother from the conclusion of school until 7.00 pm, and in the event Diwali falls on a non-school day when the child is not already in the mother’s care, the child shall spend time with the mother from 10.00 am until 7.00pm.
(i)In the event the child is not already in the father’s care on a holy day, the Child shall spend time with the father on a holy day from the conclusion of school until 7.00 pm and on a non-school day from 10.00 am until 7.00 pm.
6.Changeovers are to occur as agreed between the parties in writing or failing agreement:
(a)In the event that the party’s time with the child commences or concludes at a time coinciding with the commencement or conclusion of the child’s school day, the changeover shall occur at the child’s school, or;
(b)At all other times, at the carpark of the B Store located at C Street, Town D.
7.The child have videocall communication with the parent with whom she is not residing every Thursday between 7.00 pm and 7.30 pm and the parent with whom the child is residing with shall do all things necessary to facilitate videocall communication between the child and the other parent.
8.Each party is to keep the other informed of their residential addresses, current telephone numbers and emails, and advise the other of any changes within seven days of such change.
9.In the event of the child suffering illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child has attended as soon as practicable;
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and that information in relation to the child is to be shared with the other parent upon request.
10.In regard to travel the following apply:
(a)Each party shall be permitted to take the child on overseas holidays as agreed between the parties in writing, and in default of agreement, as follows:
(i)The proposed holidays must coincide with the child’s normal school holidays and the child’s holiday time with the relevant parent;
(ii)The travelling parent, no later than thirty days prior to the commencement of any overseas holiday, furnish to the non-travelling parent:
A.Written notice of his or her intention to travel overseas with the child;
B.An accurate itinerary including the country/countries that the travelling parent and the child will be travelling to, and the approximate dates on which the travelling parent and child will arrive and depart in each country/state, and;
C.Contact telephone numbers and addresses at which the travelling parent and the child will be staying during such travel.
(iii)Whilst the child is out of the country, the non-travelling parent shall be at liberty to communicate with the child via any audio-visual communication mediums (including but not limited to telephone, FaceTime, WhatsApp, Skype or email) during such period, and;
(iv)The non-travelling parent will not seek an order for the immediate return of the child in the event that their return to Australia has been held up for a reasonable period by unforeseen circumstances such as airline strikes, delay in flights or adverse weather conditions beyond the travelling parent’s control.
(v)Neither parent shall unreasonably withhold their consent for the child to travel unless the following applies:A.There has been a Department of Foreign Affairs and Trade travel warning from the Australian Government to that destination of level 3 or above, save as to travel to Country E.
11.The child’s Australian passport be held by the Court and only released with signed consent of the parties or order of the Court or when the child attains the age of eighteen years and shall be returned to the Court within fourteen days of returning from any travel with the child.
12.The parties shall ensure that the child holds a valid Australian passport at all times and for that purpose, at least six months prior to the expiration of the child’s passport, the parties shall do all acts ad things and sign all necessary documents to submit a passport renewal application to the Australian Passport Office and shall bear the costs of the renewal equally.
13.If either party refuses to sign the necessary documents to renew the child’s passport in accordance with the above Order, then the other party may apply for the renewal of the passport without that party’s consent.
14.The party with whom the child is living or spending time is to be responsible for day-to-day decisions concerning the care, welfare, and development of the child.
15.The mother and father are entitled to communicate with the child’s school including being listed as emergency contacts at the child’s school.
16.Each party is hereby authorised to:
(a)Obtain from the child’s school all notices, letters, newsletters, school reports, invitations, bulletins, photographs, orders, forms, or otherwise any other document pertaining to the child’s school and education;
(b)Liaise directly with the child’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress and attendance;
(c)Attend all of the child’s medical appointments, school functions and events that allow for parental attendance including but not limited to parent/teacher interviews, concerts, school assemblies, sports days, canteen duties and social functions;
(d)Obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service;
(e)These orders are authority for the child’s school, extracurricular organisations, sporting bodies and/or other organisations to release such information and/or documents as requested by the other party to the extent permitted by law;
(f)The parties be at liberty to attend any extra-curricular activities or sporting activities which the child is enrolled in, and;
(g)The parties are permitted to provide a copy of these orders to the child’s school, out of school care facilities, extracurricular organisations, sporting bodies, medical and healthcare practitioners and any other government authority or organisation as may be necessary.
PROPERTY
Proposals
The husband sought final property orders, inter alia, to the effect that the Suburb G property is held by the husband, that the Suburb J property is held by the wife, that simultaneously with the transfer of the Suburb J property to the wife, the wife pay to the husband some to give effect to the husband receiving an overall division of 55 per cent of the total net asset pool. The court refers to the husband’s proposed Minute of Orders.
The wife sought final property orders, inter alia, to the effect that the Suburb G property is held by the husband, that the Suburb J property is held by the wife, and that the wife pay to the husband the sum of $75,362. The Court refers to the wife’s proposed Minute of Orders.
Evidence
The Court has considered the documentary material relied upon by the parties discussed previously in these reasons, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out under the headings, “Balance sheet”, “Contributions”, “Section 75(2)”, and “Justice and equity”.
Legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
The balance sheet of the parties, amended by consent during submissions, is now set out:
BALANCE SHEET Ownership Description Applicant’s value Respondent’s value Assets 1 J H Street, Suburb J $1,325,000 $1,325,000 2 J F Street, Suburb G $670,000 $670,000 3 W Westpac Account (ending …44) $115,634 E $115,634 4 W Westpac Account (ending …42) $1,080 E $1,080 5 H Motor Vehicle 1 $7,000 E $7,000 6 H Motor Vehicle 2 $30,000 E $30,000 7 H O Bank Account (ending …39) $86,338 E $86,338 8 H O Bank Account (ending …90) $987 E $987 9 H NAB Bank Account (ending …05) $3,289 E $3,289 10 H NAB Bank Account (ending 43) $0 E $0 11 H NAB Bank Account (ending …35) $65,800 E $65,800 12 J Jewellery in the Wife possession [sic] $30,000 Nil 13 J Household contents in Wife possession [sic] $4,000 E $4,000 Total $2,339,128 E $2,309,128 Liabilities 15 J Mortgage on Suburb J property $430,609 E $430,609 16 J Mortgage on Suburb G property $243,885 E $243,885 Total $674,494 E $674,494 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 17 W Super Fund 1 Accumulation $179,732 E $179,732 18 H Super Fund 2 Accumulation $190,895 E $190,895 19 W Pension fund in Country M NK E $10,500 + NK $10,500 Total E $381,127 E $381,127 Financial Resources Ownership Description Applicant’s Value Respondent’s Value 14 W Name of Pension fund in Country M NK E $10,500 Total NK E $10,500 Total net assets $1,664,634 $1,634,634 Total net assets including superannuation $2,045,761 $2,015,761
Item 12 in the balance sheet, joint “Jewellery in the wife possession [sic]”, $30,000, was disputed by the wife. It was submitted by the wife, both expressly and inferentially, that there was no expert evidence before the Court relating to any valuation of the jewellery and that the husband’s market value estimate for the jewellery should be given no weight. However, in oral evidence the wife conceded that in her Financial Statement filed 27 October 2022 she had listed as an item of property jewellery estimated to be worth $28,600. She had stated in oral evidence that the jewellery is in Country E but agreed to the proposition that it was still “your [the wife’s] jewellery”.
The Court observes that such jewellery does not appear as an item of property in the wife’s Financial Statement filed 19 April 2024, however the wife has failed to explain why this is the case having regard to her earlier Financial Statement. The Court infers that the wife likely has this jewellery in her possession, custody or control. Item 12 shall remain in the balance sheet in the sum of $28,600.
The final balance sheet, accordingly, will be as follows:
BALANCE SHEET Ownership Description Value Assets 1 J H Street, Suburb J $1,325,000 2 J F Street, Suburb G $670,000 3 W Westpac Account (ending …44) $115,634 4 W Westpac Account (ending …42) $1,080 5 H Motor Vehicle 1 $7,000 6 H Motor Vehicle 2 $30,000 7 H O Bank Account (ending …39) $86,338 8 H O Bank Account (ending …90) $987 9 H NAB Bank Account (ending …05) $3,289 10 H NAB Bank Account (ending …43) $0 11 H NAB Bank Account (ending …35) $65,800 12 J Jewellery $28,600 13 J Household contents in the wife’s possession $4,000 Total $2,337,728 Liabilities 15 J Mortgage on Suburb J property $430,609 16 J Mortgage on Suburb G property $243,885 Total $674,494 Superannuation Member Name of Fund Type of Interest Value 17 W Super Fund 1 Accumulation $179,732 18 H Super Fund 2 Accumulation $190,895 19 W Pension fund in Country M NK $10,500 Total $381,127 Net Total Assets Total $2,044,361
Accordingly, the parties’ assets total $2,337,728. The liabilities total $674,494. Their superannuation assets total $381,127. The net total assets including superannuation total $2,044,361.
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
At marriage, the paternal grandparents gifted the parties some jewellery. The parties were given cash of about $8,000.
At marriage, the wife had $10,000 in savings. She was living in Country P prior to coming to Australia in 2013. In mid-2013 the wife transferred her savings of about $9,000 into the parties’ joint account to purchase household contents.
At the time of commencement of cohabitation in 2013, the husband had bank savings of about $50,750, and superannuation of about $16,498. (The husband purchased Motor Vehicle 1 in early 2013 for $17,000 with these savings).
After cohabitation commenced in 2013, he gave about $9,600 to his brother and sister-in-law.
The parties purchased in late 2013 an investment property at Suburb G for $395,000. The 10 per cent deposit was paid from the parties’ savings held in their joint account. They borrowed $310,000. They paid about $80,000 from their joint account to settle the purchase.
The parties’ respective incomes were deposited into their joint bank accounts and applied towards the mortgage and living expenses. They operated an offset account to facilitate mortgage loan repayments.
In early 2019 the parties purchased the former matrimonial home at Suburb J for $840,000. The parties utilised savings in their joint account of about $166,000. They secured finance with Q Bank.
In late 2020 the parties purchased a car for $46,000 including initial expenses using funds from their joint savings bank account.
From mid-2021 onwards, the wife has been paying the expenses for Motor Vehicle 1 and she uses that car.
The wife has been the child’s primary carer since birth, with the husband assisting the wife with her care during the parties’ relationship. The wife, after the child’s birth, had taken a year off of work to focus on caring for the child. Then, in 2017, she returned to work on a full-time basis, and enrolled the child in childcare. In early 2021 the wife enrolled the child in after-school care.
The Court finds that the wife contribution towards household tasks was probably superior to the husband’s assistance in that regard but not significantly so. Both parties were usually working full time and the wife had primary care of the child.
Post separation each party withdrew significant cash amounts from their joint offset account. (Further, it was common ground that in late 2022 the husband took half of the rents received from the Suburb G property totalling about $3,694). However, the Court finds that it is likely that such cash amounts had been predominantly transferred to the parties’ respective personal bank accounts and are significantly reflected in the parties’ respective personal bank accounts in the balance sheet, with the parties likely having spent a modest part of such cash on their reasonable living expenses including the child’s reasonable living expenses. These parties, on the evidence, did not lead extravagant lifestyles, both during their relationship and post separation, but rather, to the contrary, they led relatively frugal lifestyles being particularly conscious of their spending and being prudent savers. Neither party contended that the other party was hiding assets, including cash assets, or had made extravagant purchases post separation. In this context, the Court further observes that the wife, after separation in September 2021 and up to about August 2022, had the primary care of the child and was not receiving formal child support from the husband.
On the balance of probabilities, the Court is not persuaded that the wife committed relevant wastage by having sought and being given hardship provisions by Q Bank resulting in her not transferring her salary income into the relevant offset account to enable mortgage repayments to be made. (The husband had contended that thereby greater bank interest had been imposed by the bank for a period of about a year (from about early 2022 to early 2023) during such hardship provision). The Court accepts the wife’s evidence that she had taken this course of action because the parties had no agreement post separation as to how the two mortgage loans were to be repaid and she did not want the mortgage loans to be paid from her savings; the Court would not regard such conduct as unreasonable and/or constituting relevant wastage pursuant to the principles in Kowaliw & Kowaliw (1981) FLC 91-092. It is likely that the monies that would otherwise have been paid by the wife for the mortgage repayments predominantly found their way into her personal bank account, being now significantly reflected in the balance sheet, with the wife likely having spent a modest part of such cash on her reasonable living expenses including the child’s reasonable living expenses. Again, the wife, after separation in September 2021 and up to about August 2022, had the primary care of the child and was not receiving formal child support from the husband.
Post separation the husband has lived at his brother’s home. He paid his brother about $15,000 in total for the brother’s renovations on account of the rent and utilities that the husband owed him. In mid-2023 the husband began to pay his brother $200 rent per week and $200 to his mother’s account.
Post separation to date the wife has continued to be the child’s primary carer. The husband’s formal child support only commenced in about August 2022, almost one year post separation. He has spent time with the child post separation, but it has been fairly modest time and for a period post separation he spent no time with the child.
The wife has continued to reside in the former matrimonial home. She has paid the outgoings and mortgage loan for that home, albeit she did not meet those payments for about 12 months (see above).
Post separation, between early 2023 and early 2024, the wife has paid about $15,500 from her own salary income for improvements and restorations to the Suburb J property.
The husband contended that his contributions should be assessed at 55 per cent and the wife’s at 45 per cent. The wife contended that her contributions should be assessed at 52.5 per cent to the father’s 47.5 per cent.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to the parties’ assets of $2,044,361 should be assessed as equal.
Section 75(2) of the Act
The husband is aged 43 years. The wife is aged 39 years. Both parties appear to be in reasonable health.
The child is only aged 8 years. The wife will continue to be the child’s primary carer, with the husband to spend time with the child as discussed in the Court’s within parenting final determination. The husband pays formal child support.
Both parties work in full-time employment and their respective income earning capacities are probably about equal.
The husband presently wishes to remain living in his brother’s home.
The parties’ superannuation assets are roughly equal.
The wife contended that there should be an adjustment in her favour of 5 per cent. The husband ultimately contended that there should be no adjustment to the wife.
Taking into account the above matters there should be an adjustment of 5 per cent in favour of the wife.
This results in an adjusted contributions finding of 55 per cent in the wife’s favour and 45 per cent in favour of the husband. This results in a disparity of $204,436 in favour of the wife.
Justice and equity
The husband’s 45 per cent share of the net property pool of $2,044,361 is $919,962. The wife’s 55 per cent share is $1,124,398.
Should the husband retain:
(a)The Suburb G property: $670,000;
(b)Motor Vehicle 2: $30,000;
(c)Bank accounts in his name: $156,414;
(d)His superannuation: $190,895;
Less:
(e)Mortgage liability on Suburb G: $243,885;
totalling net $803,424,
and the wife retain:
(a)Motor Vehicle 1: $7,000;
(b)Suburb J property: $1,325,000;
(c)Her bank accounts: $116,714;
(d)Jewellery: $28,600;
(e)Household contents: $4,000;
(f)Her superannuation: $190,232;
Less:
(g)Mortgage liability on Suburb J: $430,609;
totalling net $1,240,937,
then the wife will need to pay the husband $116,539.
The wife may find it difficult to service a loan of $430,609 plus $116,539 (to be paid to the father) but less her cash of $116,714, leaving a net loan of about $430,434. Still, she should be given the chance to obtain such a loan. If she cannot do so, the Suburb J property will need to be sold. She works full time earning a significant salary. She has some superannuation.
The husband will retain the Suburb G property, with related mortgage loan, cash, car and superannuation. He wants to remain living with his brother’s family.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes orders accordingly.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 June 2024
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