MASON & PAVOLA
[2015] FCCA 520
•30 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MASON & PAVOLA | [2015] FCCA 520 |
| Catchwords: FAMILY LAW – Property – seven year marriage – contributions – s.75(2) adjustment – whether maternal grandparents providing care and accommodation to parties are contributions on wife’s behalf – value and divestment of shares – international pension fund – potential and real tax liability. |
| Legislation: Family Law Act 1975, ss.4, 13C, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 65Y, 75, 79, 80, 81 |
| Aleksovski v Alekovski (1996) 20 Fam LR 894; (1996) 135 FLR 131; (1996) FLC 92-705 Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220 Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143 Hurst & Weber [2009] FamCAFC 137 In the Marriage of Crapp and Crapp (No.2) (1979) 5 Fam LR 47; (1979) FLC 90-615 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MR MASON |
| Respondent: | MS PAVOLA |
| File Number: | SYC 553 of 2013 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 18, 19, 20 August 2014 |
| Date of Last Submission: | 20 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Johnston |
| Solicitors for the Respondent: | HA Miedzinski Solicitor |
ORDERS
Parenting
All previous orders with respect to X born (omitted) 2012 (“X”) are hereby discharged.
MR MASON (“the father” or “the husband”) and MS PAVOLA (“the mother” or “the wife”) have equal shared parental responsibility for X.
X live with the mother.
X spend time with the father as agreed or, failing agreement, as follows:
(a) Commencing on 2 May 2015 (until 19 June 2015):
(i) From 9:00am until 6:00pm each Saturday;
(ii) From 5:30pm until 7:30pm each Wednesday;
(b) Commencing on 20 June 2015 (until 4 September 2015):
(i) From 9.00am until 6.00pm each Saturday, extending to 9.00am Sunday every alternate weekend thereafter (and for the avoidance of doubt this means that overnight time commences on and from Saturday 27 June 2015); and
(ii) From 5:30pm until 7:30pm each Wednesday;
(c)Commencing on 5 September 2015 and until X commences school in 2018:
(i)From 9:00am Saturday until 6:00pm Sunday and each alternate weekend thereafter;
(ii) Unless time is already being spent pursuant to subparagraph (iii) herein, from 5:30pm until 7:30pm each Wednesday; and
(iii)In addition, during the NSW gazetted school holiday periods for:
(1) Two consecutive nights in September 2015 as agreed, or failing agreement from 9:00am on 23 September 2015 until 6:00pm on 25 September 2015;
(2) Two separate blocks of two consecutive nights in December 2015/January 2016 as agreed, or failing agreement from 9:00am on 23 December 2015 until 12 noon on 25 December 2015 and from 9:00am on 13 January 2016 until 6:00pm on 15 January 2016;
(3) Two consecutive nights in April 2016 as agreed, or failing agreement from 9:00am on 20 April 2016 until 6:00pm on 22 April 2016;
(4) Three consecutive nights in July 2016 as agreed, or failing agreement from 9:00am on 13 July 2016 until 6:00pm on 16 July 2016;
(5) Three consecutive nights in September/October 2016 as agreed, or failing agreement from 9:00am on 5 October 2016 until 6:00pm on 8 October 2016;
(6) Two separate blocks of four consecutive nights in December 2016/January 2017 as agreed or failing agreement from 9:00am on 21 December 2016 until 12 noon on 25 December 2016 and from 9:00am on 11 January 2017 until 6:00pm on 15 January 2017;
(7) Four consecutive nights in April 2017 as agreed, or failing agreement such consecutive four night period as nominated by the father from 9:00am on the first day until 6:00pm on the fifth day;
(8) Four consecutive nights in July 2017 as agreed, or failing agreement such consecutive four night period as nominated by the mother from 9:00am on the first day until 6:00pm on the fifth day;
(9) Five consecutive nights in September/October 2017 as agreed, or failing agreement such consecutive five night period as nominated by the father from 9:00am on the first day until 6:00pm on the sixth day;
(10) Two separate blocks of five consecutive nights in December 2017/January 2018 as agreed, or failing agreement from 12 noon on 25 December 2017 until 6:00pm on 30 December 2017 and such consecutive five night period in January 2018 as nominated by the mother from 9:00am on the first day until 6:00pm on the sixth day;
(d) Commencing on 29 January 2018 (until 28 January 2019):
(i)In the first week of each school term from after school Friday (or 3:00pm if a non-school day) until 6:00pm Sunday and each alternate weekend thereafter;
(ii)In the second week of each school term from after school Wednesday (or 3:00pm if a non-school day) until before school Thursday (or 9:00am if a non-school day) and each alternate week thereafter;
(iii)For five consecutive nights during the NSW gazetted school term holidays in April 2018 as agreed, or failing agreement for the first five nights in the first week of the holiday period and failing agreement as to times, from after school on the last day of the first term until 6:00pm on the sixth day;
(iv)For six consecutive nights during the NSW gazetted school term holidays in July 2018 as agreed, or failing agreement for the first six nights in the first week of the holiday period and failing agreement as to times, from after school on the last day of the second term until 6:00pm on the seventh day;
(v)For six consecutive nights during the NSW gazetted school term holidays in September/October 2018 as agreed, or failing agreement for the first six nights in the first week of the holiday period and failing agreement as to times, from after school on the last day of the third term until 6:00pm on the seventh day; and
(vi)For two separate blocks of seven consecutive nights during the NSW gazetted long summer holidays in December 2018/January 2019 as agreed, or failing agreement for the first seven nights in the first week of the holiday period and failing agreement as to times, from after school on the last day of the fourth term until 6:00pm on the eighth day and during January 2019 for an 8 day/7 night period as nominated by the father from 9:00am on the first day until 6:00pm on the eighth day ending no later than seven days before the commencement of school term in 2019.
(e) Commencing on 29 January 2019 and thereafter:
(i)in the first week of each school term from after school Friday (or 3:00pm if a non-school day) until before school the following Monday (or 9:00am if a non-school day) and each alternate weekend thereafter;
(ii)in the second week of each school term from after school Wednesday (or 3:00pm if a non-school day) until before school Friday (or 9:00am if a non-school day) and each alternate week thereafter;
(iii)for one half of all of NSW gazetted school holidays being the first half commencing in even numbered years and the second half commencing in odd numbered years. For the purposes of this Order, the mid point of the school holidays shall be taken to be 6:00pm on the middle day of the gazetted school holiday period. If there are two middle days, the latter shall be taken to be the mid-point for the purposes of this Order.
Notwithstanding anything else in these Orders, for the purposes of paragraph four (4) and this paragraph:
(a)X spend time with the relevant parent on Mother’s Day and Father’s Day each year as agreed or, failing agreement from 9:00am to 6:00pm that day;
(b)X’s time with the father pursuant to paragraphs 4(d)(i) and (ii) and 4(e)(i) and (ii) herein be suspended during the NSW gazetted school holidays and for the avoidance of doubt this time recommences in the first week of each NSW gazetted school term thereafter;
(c)In the event that the last day of the relevant school term is not a Friday, the relevant time shall commence at 3:00pm on the Friday immediately following the last day of the school term;
(d)Changeover occur as agreed, and failing agreement occur at X’s school when applicable, or otherwise, the wife or her nominee deliver X to the husband’s residence at the commencement of X’s time with the husband and the husband or his nominee return X to the wife’s residence at the conclusion of that time.
The parties each have and facilitate reasonable telephone communication with X when he is not in their care as agreed or, failing agreement:
(a)X communicate with the father by telephone for no longer than half an hour on each occasion between 5:30pm and 7:30pm every second night that X is in the mother’s care;
(b)X communicate with the mother by telephone for no longer than half an hour on each occasion between 5:30pm and 7:30pm every second night that X is in the father’s care.
Subject to paragraph 8 herein, both parties keep the other informed about X’s activities, health, education, development and day-to-day care including any medications administered to him during his time with a party through the use of a communication book to be exchanged between the parties each time X moves from the care of one party to the other.
For the purposes of paragraph 7 herein:
(a)such communication book be initially purchased by the mother and replaced by the party with whom the child is living or spending time with at the time when the existing communication book is filled (unless there is agreement for the parties to use digital or electronic communication in lieu of a handwritten communication book); and
(b)the parties each be restrained from writing anything in the communication book which is not related to X and from using offensive, discourteous or derogatory language in the book or from otherwise using the communication book to record personal comments or criticisms about each other, or as a means to threaten or intimidate each other.
Neither party denigrate the other, or permit any other person to do so, in X’s presence or hearing, and at all times the parties communicate with each other in a civil and courteous manner.
The parties be at liberty to attend all school and pre-school events and extra-curricular activities X is involved in, and to obtain all information from X’s school or pre-school about his progress, and to attend all parent-teacher events.
Neither party make arrangements for X to engage in any extra-curricular activity that would take place during X’s time with the other parent, without the express written consent of the other party.
If X is engaging in an extra-curricular activity as agreed between the parties, the party having care of him during the time(s) for that activity take him to that activity.
If X suffers illness or injury requiring admission to hospital, the parent having care of him at that time immediately inform the other party, and provide that party with details of the hospital, including a telephone number for the treating team.
At all times the parties keep each other advised of their residential addresses and contact telephone numbers and email address and, if a party intends moving residence, that party give the other not less than 7 days’ notice in writing of the new address prior to that move being made.
Pursuant to s.65Y(2) of the Family Law Act 1975, each party be permitted to travel with X out of the Commonwealth of Australia, provided:
(a)unless otherwise agreed between the parties, X has attained the age of 8 years;
(b)such period of proposed travel takes place during the time X is living with, or spending time with, that party;
(c)the travelling party notify the other not less than 60 days prior to the departure date of such proposed trip and including in that notification the proposed itinerary and travel period;
(d)the travelling party provide the other not less than 10 days before departure;
(i)a final itinerary including contact telephone numbers and full street addresses of where X will be staying;
(ii)copies of return airline tickets and details of flights once booked;
(iii)evidence that appropriate travel insurance has been obtained; and
(iv)if appropriate, evidence that X has received any recommended inoculations and such for the destination.
In the event that the parties are unable to reach agreement relating to X’s long-term care, welfare and development, they participate in family dispute resolution.
Pursuant to s.13C of the Family Law Act 1975 the parties:
(a)attend and complete, as soon as practicable, such parenting program (“the program”) as agreed, or failing agreement as recommended by Relationships Australia to assist in improving their communication with one another;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)if applicable, pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other party.
Property
Within 42 days, the husband pay to the wife the sum of $433,063.50 (“the Sum”);
Simultaneously with paragraph 18 herein, the wife do all acts and execute all documents necessary to transfer to the husband her entire right title and interest in the property situate at Property C, New South Wales, (“the Property C property”).
In default of payment of the Sum within 90 days from the date of these Orders, the parties forthwith do all acts and things and execute all documents necessary to sell the Property C property as agreed or, failing agreement within a further 14 days as to the sale process (including the appointment of a real estate agent and conveyancing solicitor) the parties forthwith do all acts and things to cause where applicable:
(a)the President of the Real Estate Institute of New South Wales or his or her nominee to nominate an agent who will then determine the method and terms of sale, including the sale price; and/or
(b)the President of the Law Society of NSW or his or her nominee to nominate a solicitor who will have the carriage of sale;
and the parties forthwith jointly instruct the relevant real estate agent and/or conveyancing solicitor.
At the settlement of the sale of the Property C property, the proceeds be distributed in the following order and priority:
(a)in payment of all legal costs and agents fees and commissions;
(b) in discharge of the mortgage;
(c)in payment of the Sum to the wife together with interest calculated in accordance with the rates prescribed by the Rules;
(d) in payment of the remainder to the husband.
Subject to agreement to the contrary, the parties forthwith cause the sale of the wife’s engagement ring and the parties’ wedding rings and divide the net proceeds in equal shares.
The base amount allocated to Ms Pavola the non-member spouse in these proceedings out of the interest held by Mr Mason in (employer omitted) Superannuation Scheme is $139,000.00.
Pursuant to section 90MT(1)(a) Family Law Act 1975, whenever the Trustee of the (employer omitted) Superannuation Scheme makes a splittable payment from the interest held by Mr Mason the Trustee shall pay to Ms Pavola or her legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in the above order and there shall be a corresponding reduction in the entitlement Mr Mason would have had in the (employer omitted) Superannuation Scheme but for these Orders.
Paragraphs 23 and 24 herein have effect from the operative time and the operative time shall be deemed to be 14 days from the date when an original certified copy of these Orders is served upon the Trustee.
This Order binds the Trustee of the (employer omitted) Superannuation Scheme.
The parties have the sole right title and interest in:
(a)any chattels, goods, furnishings and other property which are, at the date hereof, in their respective possession; and
(b)any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act1975 to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument.
Other
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Mason & Pavola is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 553 of 2013
| MR MASON |
Applicant
And
| MS PAVOLA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings between the Applicant, MR MASON (“the husband” or “the father”) and the Respondent, MS PAVOLA (“the wife” or “the mother”).
The parenting aspect of the proceedings concerns the child of the parties’ marriage, X born (omitted) 2012 (“X” or “the child”). The parties are in dispute in respect of a number of issues including the time the child spends with the father and whether such time should include overnight periods.
In respect of the property aspect of the proceedings, the parties are in dispute as to their respective contributions. They are also in conflict regarding the size of any further adjustment in the wife’s favour to reflect future needs as well as several other discrete issues including what property forms the assets of the marriage.
The details of the orders sought by each party are extracted later in these reasons.
At the final hearing both parties were legally represented by counsel; the wife by Mr Campton (as he then was) and the husband by Mr Johnston.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
Background
These proceedings first came before me in a duty list on 4 April 2013. On that occasion I made orders for the parties to attend the duty Child Dispute Conference (in respect of the parenting dispute) and I referred the parties to a Conciliation Conference (in respect of the property dispute). The Court also made the following interim parenting orders with the consent of the parties:
“1.That the child of the parties namely X born (omitted) 2012 live with the mother.
2.That the child spend time with the father as follows
i.Each Monday & Wednesday from 7:00pm until 8:00pm at the mothers residence
ii.Each Saturday from 1:00pm till 4:00pm at the father's residence with the mother to deliver & collect the child noting that after about the first month, provided that the time spend [sic] progresses well, the mother will leave the child with the father & return to collect him.
iii.At other times as agreed
3.That the parties attend counselling at the Relationships Space for the purposes of addressing the following
i.Obtain further information about the developmental needs of infants & toddlers.
ii.Assist the parties to work towards a cooperative mutually respectful & child focused parenting arrangement for X…”
The parties returned before me for mention on 1 August 2013 following a Conciliation Conference that was unsuccessful. I made orders for the parties to attend a further Child Dispute Conference on 22 August 2013 noting that the father sought interim orders to increase the child’s time with him and that the parties were undertaking counselling with Mr L.
On 13 September 2013 further interim orders were made by consent requiring the father to ensure that the former matrimonial home was safe for the child. The parties also agreed on various disclosure orders in respect of the property dispute. The interim parenting orders made that day were as follows:
“1.THAT the time the child, X, spends with the Applicant Husband pursuant to orders made 4 April 2013, be suspended for the period from 19 November 2013 to 26 November 2013 during which time the Respondent Wife will travel with the child to (country omitted);
2. THAT within seven (7) days, the Applicant Father sign his consent to an Application for a Passport for the child which provides the Husband as an emergency contact, as provided by the Respondent Wife, and further, will sign any additional document reasonably necessary to ensure that the child has a valid passport prior to 19 November 2013;
3.THAT seven (7) days prior to 19 November 2013, the Respondent Wife will provide to the Solicitor for the Applicant Husband a copy of the airline tickets from [sic] the child, and the details of the hotel where the child will be staying including contact details.
4.THAT the Applicant Father will have make up time with the child as follows:
a.On the Sunday immediately prior to the child’s travel to (country omitted), from 12.00pm to 2.30pm, with the Respondent Wife to deliver and collect the child to the Applicant Husband at the former matrimonial home; and
b.On the Sunday immediately following the child’s travel to (country omitted), from 12.00pm to 2.30pm, with the Respondent Wife to deliver and collect the child to the Applicant Husband at the former matrimonial home…”
The Expert Report of Dr L was released by the Court on 30 January 2014. After several administrative adjournments, the matter returned before me on 7 March 2014 and the parties entered into further interim parenting orders by consent as follows:
“1.THAT the Order 3 of the Orders made by this Honourable Court on 4 April 2013 be suspended.
2.THAT there be interim parenting orders, by consent, as follows:
i.That the child, X born (omitted) 2012, live with the Mother;
ii.That the child spend time with the Father commencing the first Wednesday after the making of these orders, and each Wednesday thereafter from 5.30pm to 7.30pm, with the Mother or her nominee to deliver the child to the Father’s residence at 5.30pm, and the Father to return the child to the Mother’s residence at 7.30pm. While the child is in the Father’s care on Wednesdays in accordance with this order, the Father is to provide a nutritious dinner for the child and return the child to the care of the Mother in his pyjamas.
iii.That the child spend time with the Father commencing on Saturday 8 March 2014 and thereafter on each Saturday from 10.00am to 2.00pm. To facilitate this order, the Father will collect the child from the Mother’s residence at 10.00am, and the Mother will collect the child from the Father’s residence at 2.00pm. While in the Father’s care on Saturdays, the Father is to provide a nutritious lunch and snacks for the child.
iv.That the child spend time with the Father on Sunday (omitted) 2014, being the Father’s birthday, from 10.00am to 1.00pm. To facilitate this order, the Father will collect the child from the Mother’s residence at 10.00am, and the Mother will collect the child from the Father’s residence at 1.00pm.
v.That the child spend time with the Father on 21 April 2014, being Easter Monday from 10.00am to 1.00pm. To facilitate this order, the Father will collect the child from the Mother’s residence at 10.00am, and the Mother will collect the child from the Father’s residence at 1.00pm.”
At a further mention of the matter on 11 April 2014, I agreed to list the matter for final hearing on 18 August 2014 for no longer than three days and made trial directions. The parties also appeared before me on 6 August 2014 to ascertain the matter’s readiness for final hearing. On this date I made a further order with respect to the filing of an affidavit by the husband’s accountant by 11 August 2014 and otherwise confirmed the hearing dates.
The Final Hearing duly took place on 18, 19 and 20 August 2014.
Relationship history
Both parties provided the Court with separate chronologies of relevant events. While it is certainly not in all respects an agreed chronology, the wife’s chronology is more comprehensive and the relevant entries are reproduced below with the competing assertions made by the husband marked, where applicable.
(omitted) 1968 Husband born (46) (omitted) 1972 Wife born (41) 2003 Parties first met (omitted) 2005 Parties marry (omitted) 2006 Husband worked in (country omitted) for 4 ½ months. Wife lived with her parents. (omitted) 2010 Parties agree to commence a family. 12-2010 Parties purchased Property C . Wife asserts that her parents loaned $30,000 to them for stamp duty and that they have been repaid $28,900. 02-2011 Wife asserts that her parents provided a loan of $27,000 to purchase wife’s VW car. (omitted) 2012 X born (omitted) 2012 Wife and child discharged from hospital and went to stay at her parents’ home 02-08-2012 Wife asserts that she formed the view that the marriage had broken down irretrievably. Wife asserts separation occurred on this date. 00-10-2012 Husband asserts a date of separation in October 2012. (omitted) 2012 X baptised. 00-03-2013 First payment of child support made by father following the mother’s application to the CSA for an assessment. 03-06-2013 Wife completes the 8 week Circle of Security Parenting course run by (omitted).
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
In addition to the parties, the single expert witness, Dr L, and the maternal grandparents, were required for cross-examination.
A number of documents were tendered by each party in support of their case which have been considered as part of this decision.
Husband
The following documents were relied upon by the husband:
·Further Amended Initiating Application filed on 4 June 2014;
·the husband’s affidavit sworn on 22 July 2014 and filed 23 July 2014;
·the husband’s Financial Statement sworn on 22 July 2014 and filed 23 July 2014; and
·Affidavit of Mr D sworn on 7 August 2014 and filed 8 August 2014.
The husband also tendered the following documents:
·Husband's (employer omitted) Statement dated 23 July 2014 (“AH1”);
·Letter from wife’s solicitors to husband’s solicitors dated 27 February 2013 and email dated 5 March 2013 (“AH2”);
·Attendance certificate of husband as 2x2 Hours Parenting Workshops for 3 and 17 May 2014 (“AH3”);
·Bundle of documents regarding a superannuation splitting order to (omitted) as proposed by the husband (“AH4”);
·Parties’ income table (“AH5”); and
·Bundle of documents regarding disclosure (“AH6”).
Overall, the husband presented as a softly-spoken, controlled and articulate witness who, despite rigorous cross-examination, was able to make concessions to reasonable propositions. Although the husband was inclined to provide further explanation and detail to his answers, there were some issues that he could have been more precise about. These included his knowledge of his ‘(country omitted) pension fund’ and the bonuses he received. Although the husband’s cross-examination continued into a second day, he was able to demonstrate a controlled response despite obvious frustration. At times, however, he came across as a little ungrateful for the assistance given by the maternal grandparents to his child.
Mr D, who gave evidence in his capacity as an accountant about the husband’s potential income tax and capital gains tax liabilities, was not required by the wife for cross-examination.
Wife
The wife relied upon the following:
·Amended Response filed on 19 November 2013;
·the wife’s affidavit sworn and filed on 4 August 2014;
·the wife’s Financial Statement sworn and filed on 4 August 2014;
·Affidavit of Ms D sworn and filed on 27 June 2014; and
·Affidavit of Mr G sworn and filed 27 June 2014.
The wife also tendered the following documents:
·Husband's (employer omitted) Account statement ending 30 November 2012 (“RW1”);
·Husband’s PAYG payment summary for year ending 30 June 2014 (“RW2”);
·Husband's (country omitted) Pension Fund statement dated 31 December 2012 (“RW3”);
·Letter from husband’s solicitors to the wife’s solicitors dated 12 March 2013 (“RW4”);
·Husband’s Tax return for year ending 30 June 2013 (“RW5”); and
·Correspondence between parties’ lawyers dated 8 and 9 May 2014 (“RW6”).
The wife also presented as a quietly spoken and articulate witness who was also capable of making some concessions to reasonable propositions. That said, she was not willing to change her broader position and there were some inconsistencies in her evidence. It is noteworthy that during her evidence, the wife’s explanation of her parenting proposals did not always come across as child-focussed and, in particular, seemed to fit around her proposed work changes. The wife also presented as someone who seems to have based her views on the literature she had read. Indeed, I would agree with Dr L’s observation of the wife as “intelligent but emotionally flat… limited reflections on her own functioning and behaviour”.[1] While she was ultimately able to admit that the maternal grandfather is a “father figure” to X, the fact that X was spending more time with his grandparents and others, than he was with his own father, appeared to escape the mother’s logic. I also found the wife’s evidence about her likely move to a new/her own residence unconvincing.
[1] Expert Report, paragraph 16.
As stated, the maternal grandparents were both cross-examined. The maternal grandfather, Mr G, who was interposed as a witness so he could care for X, was clearly supportive of his daughter and her proposals. Interestingly, Mr G admitted that he had knowledge that the wife had separated from the husband before he travelled to (country omitted) in early (omitted) 2012 (i.e. about 6 weeks after X’s birth). Mr G also confirmed that the wife shares a bedroom with X.
The maternal grandmother, Ms D, was also well-spoken and clearly supportive of her daughter and her proposals. She came across as an organised person who is likely to have strong views. She was a candid witness who was prone to be somewhat dismissive of the father and his views.
Single expert witness
Dr L, a Child and Adult Psychoanalyst and Consultant Social Worker, prepared a single expert family report in this matter that was released on 30 January 2014 (“the Expert Report”).[2]
[2] The Report was tendered into evidence by consent and marked as Exhibit “1”.
The interviews for the Expert Report were conducted on 15 November 2013 and 4, 13 and 17 December 2013 and 16 January 2014.
Dr L outlines the relevant background and issues in paragraphs 2 and 3. She then goes on to outline her assessment with X in paragraphs 4 to 15, her interview with the mother in paragraphs 16 to 31, her interview with the father in paragraphs 32 to 44, her interview with the parties together at paragraph 45, her interview with the maternal grandfather at paragraphs 46 to 52 and her interview with the maternal grandmother in paragraphs 53 to 60.
Dr L thereafter provides her evaluation and recommendations in paragraphs 61 to 71. In summary she states that:
·X is functioning in an age appropriate manner with good social, language and cognitive development;[3]
·X’s sleep difficulties are most likely associated with maternal anxiety about separation and parental conflict rather than separation anxiety or the quality of care the child receives in his father’s home;[4]
·the parties presented as insecure and vulnerable in different ways and they appear to have different personality styles; “the mother’s style appears to rely on interpersonal relatedness to manage her emotions and the father’s style focussed more on self-definition and self-sufficiency”;[5]
·the clinical assessment may suggest that the maternal grandmother may be the child’s primary attachment figure, “‘or, at least a very significant one”; [6]
·there are reasons to suggest, including “general agreement amongst the parties that [the father’s] visits to the maternal grandparents’ home is stressful for all concerned”, that all contact between the child and the father now needs to occur in the father’s home;[7] and
·there were no indication that the father is out of touch with the child’s needs or interests.
[3] Expert Report, paragraph 61.
[4] Ibid.
[5] Ibid, paragraph 63.
[6] Ibid, paragraph 64.
[7] Ibid, paragraph 65.
As to specific recommendations, Dr L states the following at paragraph 66 to 71:
“66. On interview, I found no indications that Mr Mason is out of touch with X’s needs or interests. For example, when I met Mr Mason on the first occasion, I thought that I heard X to say ‘daddy’. When I put this to Mr Mason, he said ‘to be honest I think he is saying teddy’. By the second occasion, X was clearly able to say ‘daddy’ (see par.11 this Report). This suggests that Mr Mason is careful in his judgement of X’s relationship to him and appears not to err on overstating X’s relational capacities. Mr Mason reported that he believes that X is not ready to spend overnight time with him but importantly is seeking recognition that he is X’s father and as such has an important role in decisions about X’s care. I do not suggest, as Ms Pavola proposes (in her Amended Response to the Initiating Application as well she confirmed her proposal in the joint interview) that the way to resolve the parental conflict is to give her sole parental responsibility as it would not be in X’s interests to have his father sidelined – and, in particular, it is in his interests as he grows older to have a potent and proud father with whom to identify. This is important for the development of X’s sense of masculinity and self-esteem. There is a possibility that his maternal grandfather can/does provide this important identificatory figure for X – but his grandfather is in his seventies.
67. I suggest that Mr Mason may benefit from a parenting course as it may help him develop his confidence as X’s father and to find his individual and independent style of parenting X, especially as X’s development needs change with age. Mr Mason reported that he has struggled lifelong to find a sense of belonging and any programme that supports his identity as X’s father would be beneficial to both him and his son.
68. I suggest following discussion with Mr Mason and Ms Pavola that X live with his mother and spend time with his father: on Wednesdays from 5:30pm to 7:30pm and that the mother or maternal grandparents take X to his father’s home and the father return X to his mother’s home; and on Saturdays from 12noon to 4 pm with the mother or maternal grandparents taking X to his father’s home and the father returning him.
69. I suggest that the Saturday arrangement be stepped up so that by the end of the year X is spending from 10 am to 4 pm with his father.
70. I suggest that at some stage prior to X’s third birthday a review occur to assess his readiness to spend overnight with his father.
71. I suggest that agreements or Orders need to be made to cover birthdays and other special days as well there needs to be some planning and discussion regarding the holidays that the mother might take with X.”
Dr L’s oral evidence
As stated, Dr L was required for cross-examination. Dr L gave evidence on the third and final day of the Final Hearing. Dr L had read all the updated affidavit material and was aware of the changes made by each party to their proposals.
Dr L did not change her recommendation for the parties to have equal shared parental responsibility. She stated that, in her personal opinion, ‘sole parental responsibility is much more extreme situations of abuse, violence, mental illness, criminality.’[8]
[8] Transcript, 20 August 2014, page 247.
Dr L was asked several questions about X’s sleeping habits as the mother had reported (to Dr L) that the child’s paediatrician, Dr G, made a diagnosis of night terrors. While acknowledging that she is not a paediatrician nor an expert (on this particular issue), Dr L provided the following helpful comments:
“Night terrors are common, seem to be, in young children, something like five to 15 per cent. They seem to be relatively benign and that children grow out of them, and they run in families. There’s also advice on the sites about how they’re managed, and night terrors - children don’t actually wake up. They’re in this - you know, they’re thrashing around and - and distressed, but they’re actually in a sleep-like state, and they happen early - this is according to the fact sheet at the children’s hospital - early in the night. So some of the more disrupted sleeping thing I think is something different”[9]
[9] Ibid, page 251.
During her oral evidence, Dr L noted that “there is a lot of anxiety in the mother about X going to his father’s home”[10] and that the mother expressed her concern for X several times, in particular in relation to X’s references to his father as ‘the man’ and his home as ‘(omitted). Mr Campton asked Dr L for her comments on these references, and she made the following comment:
“Because the little boy I observed in December, who was just approximating 18 months, had a very clear representation of his father as daddy. And over the subsequent – this year, he has had consistent, reliable, but reasonably modest and limited time with his dad. He has not had long separations. I think the longest time has been four months. And one would have expected a little child’s relationship to have developed with – with his dad and for dad to be daddy and to him to be enjoying his time. For a two year old to be spending a few hours away from their primary carer is – is not a big deal. So when I read this, my concern was and my worry was that it may be – and I guess this is what the court needs to test really – be indicative of some – the effect of some alienating behaviours on the part of the mother.”[11]
[10] Ibid, page 237.
[11] Ibid, page 236.
Dr L also agreed with Mr Campton that there has been an “absence of correction” on behalf of the mother when X says these things such as that he doesn’t want to go to spend time with his father or refers to his father as ‘the man’. In relation to the evidence that the child has referred to the father’s home as ‘(omitted), Dr L stated:
“It’s a very sophisticated concept, isn’t it, you know, rather than daddy’s home. But I suppose people have their idiosyncratic ways of – of speaking. But it’s speaking about it in a way that really doesn’t personalise it as daddy’s home, isn’t it?”[12]
A little later in her evidence Dr L stated:
“I am concerned about those signs that X is calling his dad “man” and apparently expressing reluctance to go with his dad for a few hours and that that might, most likely, be coming from the maternal anxiety rather than a two year old’s experience of actually being in the care of his dad for - for four hours.”[13]
[12] Ibid, page 238.
[13] Ibid, page 255.
Dr L observed that X was forming a very secure attachment with his “dad”[14] and stated:
“I think for X’s future and future development, I think his relationship with his dad does need to be strengthened.” [15]
[14] Ibid, page 239.
[15] Ibid.
As to the mother’s proposal to attend mediation when the child turns four and before any overnight time with the father commenced, Dr L gave the following evidence:
“I suspect, you know, a decision needs to be made when overnights commence, and presumably the evidence is suggesting that can be before children are four. Yes?‑‑‑I think they will be back in court – I mean, unless arrangements are made. If it goes back to mediation, I think it will end up back in court, won’t it?”[16]
Dr L also stated:
“‘I think it would need - it would need a court framework around it. I don’t think a mediator or someone - I mean, I think there would likely to be conflict between the parents.”[17]
[16] Ibid, page 241.
[17] Ibid, page 251.
I also note that Dr L described the relationship between the Mother and her parents as ‘closely interdependent’.[18]
[18] Ibid, page 242.
Dr L was cross-examined by both counsel as to the specifics of her recommendation for X to spend increasing time with the father.[19] Essentially, Dr L saw benefit in the child spending longer day time periods with the father with the view to implementing overnight time between March and June 2015. The overnight periods should be initially no longer than 24 hours. Dr L also suggested that the overnight periods be extended from one to two nights following a further period of six to twelve months. Dr L reiterated that her recommendations to introduce and progress overnight time are very conservative.
[19] Ibid, page 242 to 246 by Mr Campton; and page 248 to 253 by Mr Johnston.
Dr L also indicated that by the time X starts school, his time could be extended so that the father collects X from school on Friday and returns him back to school on the following Monday. Such an arrangement would have the added benefit of minimising contact between the parties, as it “might help not to transition the changeovers to occur from parent to parent”.[20]
[20] Ibid, page 243.
As to special days and holidays, Dr L indicated that once overnight time was established, she supported the father’s proposal of each holiday period starting with a few nights as “a reasonable way to go so - particularly as, you know, X gets towards, you know, three and a half, four, that he will be at preschool”.[21]
[21] Ibid, page 245.
Dr L also recommended that the father complete a parenting course (if he had not already done so) focussing particularly on improving communication with the wife and understanding when to compromise (or not) in the best interests of X. Dr L also agreed to the suggestion put to her by Mr Campton that the mother would benefit from undertaking some form of therapy and/or assistance to obtain an understanding as to the child’s needs with the view to developing a more secure attachment. [22]
[22] Ibid, page 244.
In summary, Dr L did not change her recommendations and reiterated that her evidence in relation to time progression is very conservative. [23] On the graduated arrangement Dr L stated orders would be needed that would essentially “…set out a framework for the child to be spending time with his father in a - in a step-up sort of arrangement, looking towards when he starts school.”[24]
[23] Ibid, page 247.
[24] Ibid, page 253.
At this point of my reasons I note and take into account the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713. In this case, the Full Court provided an authoritative statement about how family reports should be treated in proceedings such as this case.[25]
[25] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Overall, given that Dr L is an independent party and a joint single expert witness in these proceedings, the Expert Report and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court.
Proposals
In relation to parenting matters, the parties each provided the Court with a Minute of Proposed Orders that each revised following Dr L’s evidence. The wife provided a further amended Minute during final submissions.
In relation to property matters, the husband sought the orders set out in his further Amended Application filed 4 June 2014. The wife provided the Court with a Minute of Proposed Orders in her case outline document and a further amended Minute during final submissions.
Husband’s proposal
In relation to parenting, the husband seeks an order for the parties to have equal shared parental responsibility for X and that X live with him for specified and increasing periods and with the mother at all other times. The precise ‘live with’ parenting orders sought by the husband are as follows:
“4.From the date of these orders until 1 March 2015 X live with the husband as follows:
4.1Each Wednesday from 5:30pm until 7:30pm.
4.2Each Saturday from 9:00am until 6:00pm.
4.3from 9.00am until 6.00pm on every fourth Sunday.
4.4From 5.00pm Christmas Eve 2014 until noon Christmas Day 2014.
4.5From 9:00am until 6:00pm on 1 January 2015.
4.6From 9:00am until 6:00pm on Easter Friday 2015.
4.7from 9.00am until 6.00pm on Father’s Day.
5. From 2 March 2015 until 1 June 2016:
5.1Each Wednesday from 5:30pm until 7:30pm.
5.2Each alternate weekend from 9:00am Saturday until 9:00am Sunday for a period of two (2) months and then the Sunday time to be extended until 6.00pm.
5.3For 3 blocks of 3 days and 2 nights during December 2015 and January 2016 and one of those blocks to be from 5.00pm Christmas Day 2015 until 6.00pm on the 27th of December 2015.
5.4From 9:00am Easter Friday until 7:00pm on Easter Sunday 2016.
5.5from 9.00am until 6.00pm on Father’s Day.
6. From 2 June 2016 until X commences school in 2018:
6.1Each Wednesday from 5:30pm until 7:30pm.
6.2Each alternate weekend from 9:00am Saturday until 6:00pm Sunday.
6.3From 9.00am until 6.00pm on every fourth Sunday.
6.4For 3 blocks of 3 nights and 4 days during the year with the father to give to them other 2 months notice of the days when he intends to exercise this time.
6.5For 3 blocks of 4 days and 3 nights during December 2016 and January 2017 and one of those blocks to be from 5.00pm on the 22nd December 2016 until noon on Christmas Day 2016.
6.6From 9:00am Easter Friday until 7:00pm on Easter Sunday 2016.
6.7From 9.00am until 6.00pm on Father’s Day.
7. From when X starts school:
7.1Each alternate weekend from after school Friday until before school Monday.
7.2Each other week from after school Wednesday until before school Friday.
7.3For half of all of the school holidays being the first half in even numbered years and the second half in odd numbered years.
7.4From 5.00pm Christmas Day until 5:00pm Boxing Day in each odd numbered year.
7.5Should Father’s Day fall on a weekend when the child would otherwise be with the mother from 9:00am Father’s Day until before school the following day.
7.6The Father’s time with the child be suspended in even numbered years from 5:00pm Christmas day until 5:00pm Boxing Day.
7.7The Father’s time with the child be suspended at 9:00am on Mother’s Day should Mother’s Day fall on a weekend when the child is otherwise with the father.”
As to changeovers that do not occur at school, the husband proposes that the wife or her nominee deliver the child to him at the commencement of the ‘live with’ time and that he or his nominee return the child to the wife at the conclusion of the relevant time.
In relation to property, the husband seeks a division of property whereby he receives 57.5% of the non-superannuation matrimonial property and 60% of the superannuation matrimonial property. Both outcomes are inclusive of a 5% adjustment in the wife’s favour for s.75(2) and related factors. The precise property orders sought by the husband are as follows:[26]
[26] See Further Amended Initiating Application filed 4 June 2014 as amended by the husband’s case outline document, page 2.
“6.That the wife do all acts and sign all documents necessary to transfer to the husband her entire right title and interest in the parties jointly owned former matrimonial home at Property C, New South Wales, (omitted).
7.That the husband pay to the wife an amount of $349,417.00.
8.That the base amount allocated to Ms Pavola the non-member spouse in these proceedings out of the interest held by Mr Mason in (employer omitted) Superannuation Scheme is $15,480.00.
9.That pursuant to paragraph 90MT (1)(a) Family Law Act 1975, whenever the Trustee of the (employer omitted) Superannuation Scheme makes a splittable payment from the interest held by Mr Mason the Trustee shall pay to Ms Pavola or her legal personal representative the entitlement calculated in accordance with Part 6 of the Family law (Superannuation) Regulations 2001 using the base amount specified in Orders 8 above and there shall be a corresponding reduction in the entitlement Mr Mason would have had in the (employer omitted) Superannuation Scheme but for these Orders.
10.That Order 9 have effect from the operative time and the operative time shall be deemed to be 14 days from the date when an original copy of these Orders is served upon the Trustee.
11.That this Orders binds the Trustee of (employer omitted) Superannuation Scheme.
12. That the husband and wife have the sole right title and interest in:
(a)Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
(b)Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
13.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.”
Wife’s proposal
In relation to the parenting dispute, the mother seeks orders for sole parental responsibility and for the child to live with her. She proposes that X spend time with the father for four hours once a week increasing to five hours a week from June 2015. From June 2016, I note that the wife now proposes an interim order for the parties to attend upon “a registered child psychologist to review the parenting arrangements for the child in mediation with liberty to apply on 14 days notice to seek further orders should the mediation be unsuccessful”.[27] She also seeks other orders including that she be permitted to take X on a holiday overseas twice yearly for up to 14 days on each occasion with ‘make-up’ time for the child with the father.
[27] Wife’s summary of submissions, page 9 and 14.
The precise parenting orders sought by the wife are as follows:
“1.That the mother have the sole parental responsibility for the child of the marriage, namely, X born (omitted) 2012 (“the child”).
2.That the child live with the mother.
3.That the child spend time with the father as follows:
3.1 From the date of these orders until June 2015:-
a. For four hours each Saturday from 9.30am to 1.30pm for the first three Saturdays of the month with the mother delivering the child to the father at 9.30am and collecting the child from him at 1.30pm;
b. For four hours on the Wednesday of the fourth week from 9.30am to 1.30pm with the mother delivering the child to the father at 9.30am and collecting the child from him at 1.30pm;
3.2 From June 2015 to June 2016:-
a. For five hours each Saturday from 9.30am to 2.30pm for the first three Saturdays of the month with the mother delivering the child to the father at 9.30am and collecting the child from him at 2.30pm;
b. For five hours on the Wednesday of the fourth week from 9.30am to 2.30pm with the mother delivering the child to the father at 9.30am and collecting the child from him at 2.30pm;
3.3 From June 2016:-
3.4 From the child’s 4th birthday, the parties are to attend upon a registered child psychologist for the purpose of reviewing the parenting arrangements for the child in mediation with liberty to apply on 14 days notice to seek further orders should mediation be unsuccessful.
4.The child shall spend time with the father at the following additional times:-
4.1 On 24 December each year from 3.00pm to 5.00pm with the mother delivering the child to the father at 3.00pm and collecting the child from him at 5.00pm;
4.2 On Easter Saturday each year from 9.30am to 12.30pm unless such day falls on the fourth Saturday of the month with the mother delivering the child to the father at 9.30am and collecting the child from him at 12.30pm;
4.4 On the child’s birthday each year from 9.30am to 11.30am except in 2015 with the mother delivering the child to the father at 9.30am and collecting the child from him at 11.30am;
4.5 On Father’s day in each year with such day being substituted for the Saturday.
5.That the parties use an electronic communication book and record, for the information of the other, issues that are limited to X’s care, including but not limited to recording what he has eaten and how much, whether he soiled a nappy, and how long he has slept.
6.The Mother is permitted to take X on a holiday within Australia or overseas on two occasions per year for periods of up to 14 days provided that she gives the father at least one month’s notice of her intention to travel and providing him with a full itinerary including flights, accommodation and contact numbers during which times the husband’s time with the child de [sic] suspended but made up immediately after such periods.
7.That the father use his best endeavours to ensure that X attends his scheduled extracurricular activities when he is in his father’s care.
8.That each party advise the other promptly of any medical emergency or significant illness suffered by X whilst in their respective care including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided.”
In relation to the property dispute, the wife argues that the contributions of the parties should be assessed as equal and that there should be a further adjustment of 15% in her favour for ‘s.75(2) and related factors’. Consequently, the wife seeks orders requiring the husband to pay her the sum of $776,400.00 (which she refers to in her proposal as “the capital sum”). In return, she would transfer all her interest in the former matrimonial home to the husband. In default of payment, the wife proposes that the former matrimonial home be sold and that the capital sum be paid from the net proceeds with the husband to retain the balance. In addition, the wife is seeking a superannuation splitting order in relation to the husband’s (omitted) superannuation in the amount of $172,865.00.
The wife also proposes a ‘two lists approach’ in respect of the balance of the contents of the former matrimonial home with the exception of a large number of specified personal property items that the husband would be required to make available for collection by her. I note that this was not the subject of any submissions during the course of the final hearing and that the parties agreed to a figure of $5,000.00 each in respect of the contents for balance sheet purposes.
The precise property orders sought by the wife are as follows (noting the numbering is incorrect but have been reproduced as per the wife’s final proposal):
“9.That within 30 days of the date of this order the husband pay to the wife the sum of Seven Hundred and Seventy Six Thousand four Hundred Dollars ($776,400.00) (“the Capital Sum”).
10.That simultaneously with the payment of the Capital Sum by the husband to the wife that the wife do all acts and things and execute all documents necessary to transfer to the husband the whole of her right title and interest in the former matrimonial home situate at Property C (Folio Identifier ……..).
11.That in default of payment of the capital sum by the husband to the wife that the parties forthwith upon default do all acts and things and execute all documents necessary to sell the home on such terms and with an agent agreed upon by the parties within 14 days of the date of this order and failing agreement then with such agent as the President of the Real Estate Institute of New South Wales shall nominate and such agent shall determine the method and terms of sale including sale price.
12.That the proceeds of sale of the home pursuant to order 4 [sic] shall be distributed in the following order and priority:
i. In payment of all legal costs and agents fees and commissions;
ii. In discharge of the mortgage;
iii. In payment of the capital sum to the wife together with interest calculated in accordance with the rates prescribed by the Rules from default to payment;
iv. In payment of the remainder to the husband.
9.That pursuant to s90MT(4) the amount equal to $172,865.00 (One Hundred and Seventy Two Thousand Eight Hundred and Sixty Five Dollars) of the husband’s superannuation interest in the (employer omitted) Superannuation Scheme (“the fund”) be allocated to the wife (“the base amount”) by way of a splitting order in the form of Exhibit AH4.
10.That within 14 days of the date of this order the husband make available for collection by the wife her pre marriage personal property and wedding gifts from her family as follows:
·Queen bedding (sheets, blankets, quilt cover)
·Sheridan Towels and face washers
·Cookware including Italian saucepan set, Raco roasting pan, Lacreuset French Oven
·Hand painted bedside lamps
·(omitted) Jumpers and blanket
·Samsonite luggage
·Electronic can and bottle opener
·Japanese tea set and dinner set
·Hand painted tea and flour canisters
·Swarovski miniature giraffe and present figurines
·Trinkets
·Cook Books and DVD’s
·Unframed print and tapestry
·Queen bed doona
·Silver Photo frame
·Crockery and glassware
·Serving Platter
·Coffee set and cups
·Cutlery set
·Tea set including tea cups and matching Tea pot
·Bar mixer and attachments
·Mundial Knife set
·Bodem Wok
·Tupperware
·Kitchen scales
·Corning Ware
·Krosno Vases
·Salad bowl
·Champagne flutes
·Table settings - placements and table cloth
·Nigella Lawson serving platters
·(omitted) painting and figurine
·Lettuce spinner
11.That as to the remaining contents of the former matrimonial home the wife shall within 7 days of the making of this order prepare two lists of all of the contents of the home and serve them upon the husband and he shall within 7 days then nominate the items in one of the lists to be his sole property and the items in the remaining list shall be the sole property of the wife.
12.That otherwise declare that otherwise each party is the sole and beneficial owner of all other items of property in their respective possession custody or control including but not limited to superannuation entitlements.
13.That in the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.
14.That the parties have liberty to apply on 7 day’s notice in respect of the implementation of these orders.”
The wife also seeks a costs order against the husband. I note that the husband does not seek a costs order against the wife.
Issues
In relation to parenting, the following issues are raised in this case:
·parental responsibility noting that the father is seeking equal shared parental responsibility and the mother is seeking sole parental responsibility;
·the frequency and circumstances of the ‘live with’ or ‘spend time with’ arrangements, including if and when the child should commence spending overnight time with the father; and
·the ‘spend time with’ arrangements on special days.
In relation to property, the following issues require determination:
·what property should be included in the balance sheet;
·whether there should be a ‘two pools approach’ (in relation to the non-superannuation assets and the superannuation assets);
·the relative strength of the contributions of the parties made before, during and following the end of the marriage; and
·the size of the further adjustment to be made in favour of the wife for ‘s.75(2) and related factors’.
I will now consider the parenting dispute in light of the statutory pathway and applicable evidence before going on to separately consider the property dispute.
Part One: Parenting Dispute
Legislative requirements and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in s.60CC of the Act. These will be considered in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[28] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[28] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years.”[29]
[29] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
In this case the husband seeks an order for equal shared parental responsibility. In contrast, the wife seeks an order for sole parental responsibility.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, I am satisfied that such an outcome would not be in the best interests of X.
It is possible for the Court to order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects either subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[30]
[30] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
The Court will consider this issue further following its discussion and analysis of the matters relevant under s.60CC of the Act.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[31] or alternatively substantial and significant time,[32] with each parent.
[31] Section 65DAA(1) of the Act.
[32] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
I note that neither party in this case is seeking an equal time parenting arrangement. The parties disagree as to the frequency and circumstances of the spend time arrangements[33] between X and the father.
[33] I note that the husband is only seeking ‘live with’ orders.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Best interests of the children
As stated, the Court is under an obligation to make parenting orders that it determines are in the child’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC of the Act in the context of this case.
Primary considerations: s.60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence that, despite their entrenched and on-going difficulties in communicating with one another, both parties accept the need for X to have a meaningful relationship with the other party. That said, the parties differ on how this can best be achieved.
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[34] In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in X’s best interests) how and what orders can be framed in order to ensure that X has a meaningful relationship with both his parents.
[34] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
I note that at paragraph 63 of the Expert Report, Dr L opined that the parties:
“… presented as genuinely concerned for X’s best interests. They both, however, presented as insecure and vulnerable in different ways, appearing to become anxious if their somewhat rigid style of managing their world is disrupted”.
Dr L goes on to state that this has generated conflict between the parties in relation to relatively trivial matters.[35]
[35] Expert Report, paragraph 63.
Despite their different approaches, Dr L does not agree with the mother’s proposal that the way to resolve the parental conflict is to give her sole parental responsibility. Indeed, Dr L later states that it would not be in X’s interest:
“… to have his father sidelined – and, in particular, it is in his interest as he grows older to have a potent and proud father with whom to identify. This is important for the development of X’s sense of masculinity and self-esteem. There is a possibility that his maternal grandfather can/does provide this important identificatory figure for X – but his grandfather is in his seventies.”[36]
[36] Ibid, paragraph 66.
X would benefit from having a meaningful relationship with both parties. I agree with the father’s submission that Dr L is concerned about, and supports, the father’s view that he is being marginalised in X’s life.[37] While I note the mother’s submission that she “has made very considerable efforts since the child’s birth”[38] to enable the child to spend time with the father, the evidence would suggest otherwise.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[37] Husband’s case outline document, paragraph 5.2.
[38] Wife’s summary of submissions, page 6.
At this stage I note that the Court is required to give greater weight to s.60CC(2)(b) as against s.60CC(2)(a). However, in this case, no allegations are made or raised by either party regarding any violence or abuse being directed towards X. The mother does raise issues of family violence which are considered later in these reasons.
I do note, however, that the mother submits that the father has failed to care, or care adequately, for X’s physical needs whilst in his care.[39] The evidence does not support this allegation.
[39] Ibid, page 7.
I further note that the mother submits that the father’s behaviour during the visits that occurred in the maternal grandparents’ home (and his attitude to the mother and the maternal grandparents) may have exposed the child to psychological harm.[40] While the Court acknowledges the possibility, the context needs to be put in focus. The evidence does not support there being on-going benefits for the child in a continuation of the child spending time with the father in the home of the maternal grandparents. Indeed, despite their clear assistance to the parties, and in particular, the mother, in facilitating X’s care, it is time for the maternal grandparents to now take a step back and allow the parents to take on the full responsibility of parenthood.
[40] Ibid.
The issue of the child’s alleged ‘night terrors’ appears to be one reason for the mother’s substantial rejection of Dr L’s recommendations. I note that during cross-examination, Dr L remained of the view that X’s sleep difficulties “are most likely to be associated with maternal anxiety about separation and parental conflict, rather than separation anxiety, per se, or the quality of care X receives in his father’s home”.[41]
[41] Expert Report, paragraph 61.
I note that Dr L was also asked during cross-examination about X’s reference to the father as “the man” as set out in the mother’s affidavit. Her response was as follows:
“Well, firstly, when I read that, I felt both sad for X and concerned, and let me tell you why I was concerned …
Because the little boy I observed in December [2013], who was just approximating 18 months, had a very clear representation of his father as daddy. And over the subsequent – this year, he has had consistent, reliable, but reasonably modest and limited time with his dad. He has not had long separations. I think the longest time has been four months. And one would have expected a little child’s relationship to have developed with – with his dad and for dad to be daddy and to him to be enjoying his time. For a two year old to be spending a few hours away from their primary carer is – is not a big deal. So when I read this, my concern was and my worry was that it may be – and I guess this is what the court needs to test really – be indicative of some – the effect of some alienating behaviours on the part of the mother.”[42]
Dr L went on to agree that the child’s reference to the father as “the man”, and the mother’s failure or inability to ‘correct’ the child, was also concerning.[43]
[42] Transcript, 20 August 2014, page 236.
[43] Ibid, page 238.
Dr L also agreed that the child’s use of the word “(omitted)” to describe the father’s home was concerning.[44] Dr L stated:
“It’s a very sophisticated concept, isn’t it, you know, rather than daddy’s home. But I suppose people have their idiosyncratic ways of – of speaking. But it’s speaking about it in a way that really doesn’t personalise it as daddy’s home, isn’t it?”
[44] Ibid.
The Court shares Dr L’s concerns. If the mother has been using these terms in the child’s presence, then that would raise the possibility that she has, consciously or unconsciously, attempted to alienate the child against the father. There is insufficient evidence, however, for the Court to make such a finding. That said, the fact that the mother did not correct the child, or did little to encourage the child to use the appropriate terms, raises concerns about her ability to foster a close and continuing relationship between X and his father.
I also note that during her oral evidence, Dr L made the following comment:
“I think it’s concerning … that the mother doesn’t appear then to – supportive of the developing relationship between X and his father, and that as X grows older, that relationship is to be strengthened”. [45]
Dr L then went on to agree that defined parenting orders were needed in this matter.[46]
[45] Ibid, page 239.
[46] Ibid.
Additional considerations: section 60CC(3) of the Act
Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
Given his young age, it was neither possible, nor appropriate, for Dr L to interview X as part of her preparation of the Expert Report. That said, as stated, Dr L provides her observations of the child with each of the parties and the maternal grandparents in paragraphs 4 to 15 of the Expert Report:
·X displayed his capacity for age-appropriate social interaction;
·For the first interview, X was not able to leave his mother’s care and showed a clear preference to keep close to his mother however X was later able to transition to his father’s care so the mother could be interviewed individually;
·For the second interview, X arrived with the father, was clearly saying ‘daddy’ and explored the room, used words and interacted with the father and Dr L in an age-appropriate and secure way. In trying to interview the father alone, X was left in the care of some friends, X called out for ‘daddy’ and they were reunited. Dr L notes that in this situation X was placed under stress in separating from an attachment figure and responded ‘securely by calling for his father and was able to tolerate his father’s absence for a couple of minutes without obvious signs of distress such as crying’;
·For the third interview, X arrived with the mother and grandmother and was somewhat unsettled and distracted wanting to see his grandmother, however the mother indicated he was yet to have lunch.
In her evaluation, Dr L is of the opinion that “X, notwithstanding his early feeding problems and adverse family situation, is functioning at an age-appropriate manner with good social language and cognitive development”.[47]
[47] Expert Report, paragraph 61.
I have previously commented on what inferences the Court might draw from X’s use of the terms “the man” (to describe the father) and “(omitted)” (to describe the father’s home).
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons
I note that Dr L raised the possibility that X may have formed a primary attachment, or at least a significant attachment, to the maternal grandmother.[48] This, in turn, raises the possibility that the child has developed an insecure attachment to the mother.[49] I further note that while Dr L held the view that X was developing a secure attachment to the father,[50] at the current time, the maternal grandfather is the ‘father-figure’ in the child’s life.[51] While developing strong and positive relations between a child and his or her grandparents is to be encouraged, that should not be at the expense of the nurturing and development of a parent-child relationship unless there are exceptional circumstances. This case does not fall within such a category.
[48] Ibid, paragraph 64.
[49] Transcript, 20 August 2014, page 238.
[50] Ibid, page 239.
[51] Ibid; also see Expert Report, paragraph 50.
While a question mark has been raised in relation to the strength of the child’s attachment to the mother, she has been the child’s primary carer since birth. I note the mother’s submission that X “has little or no attachment to the father”.[52] Given Dr L’s evidence, it is difficult for the Court to accept this submission. The submission is also, somewhat disingenuous given the circumstances of separation. I am satisfied that there is nothing in the evidence to suggest the child does not have a developing and positive relationship with the father.
[52] Wife’s summary of submissions, page 7.
Section 60CC(3)(c): the extent to which each of the parents provide an opportunity to participate
This is also a live issue in this matter.
I note that both parties make criticisms of the other. The father, who submits that he has taken every opportunity to spend time with X and participate in decisions regarding the child’s development, asserts that “the wife has frustrated this process at every avenue”.[53]
[53] Husband’s case outline document, paragraph 6.1.
Given the above mentioned case law, I will take this contribution aspect claimed by the wife into account for the purposes of s.75(2)(o) of the Act, and not s.79(4)(c). That said, I find that the wife’s contributions pursuant to s.79(4)(c) marginally exceed those of the husband.
Global or asset-by-asset assessment of contributions
Given the circumstances of this case, I am satisfied that the ‘global’ approach to the assessment of contributions is the most appropriate and I find accordingly.
I note that the husband asked the Court to make findings with respect to the contributions to the assets and to the parties’ superannuation entitlements. In other words, the husband was inviting the Court to adopt what is commonly referred to as a ‘two pools’ approach. The husband submitted that such an approach was warranted because both parties proposed a superannuation splitting order.[117] The wife was silent on this issue.
[117] Transcript, 20 August 2014, page 287; also see Husband’s case outline document, page 9.
There are a number of Full Court authorities relevant to the issue of how the Court should approach superannuation following the changes introduced in 2001, regardless of whether a superannuation splitting order is sought. In C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220 the Full Court stated:[118]
“65. … the trial judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a) value the superannuation interest (according to the regulations if an order under Pt VIIIB is sought or according to the regulations or otherwise if no order is sought);
(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d) ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Pt VIIIB in relation to superannuation interests are just and equitable.”
[118] C & C [2005] FamCA 429 at [65] (per Bryant CJ, Finn and Coleman JJ; Warnick J and O’Ryan J agreeing in the result, but disagreeing in part as to the reasoning).
In this case, I am satisfied that the circumstances do not warrant the separation of the superannuation assets into a separate pool for assessment purposes.
Contributions analysis
Given the available evidence, the Court is satisfied that the husband’s contributions exceed those made by the wife especially in view of his superior financial contributions.
In percentage terms, I find that the final assessment of contribution is 62.5% in favour of the husband and 37.5% in favour of the wife.
Section 75(2) (and related) factors
As stated, the Court must have regard to the relevant factors under s.79(4)(d) to (g) of the Act in light of the evidence.
Section 79(4)(d): effect of any proposed order upon the earning capacity of either party to the marriage
Neither party submitted that there were circumstances that required one party to retain possession of a particular piece of marital property in order to continue their employment.
Section 79(4)(e): matters referred to in sub-section 75(2) so far as they are relevant
(a)The age and state of health of each of the parties
The husband is aged 46 years and the wife is aged 41 years. Both parties are in apparent good health.
(b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Both parties are currently employed and have good prospects of working into the years ahead.
The wife is currently working 2.5 days per week and it is likely that she will increase her hours once X commences school. While the wife earns a very good income from her employment, it is clear that the husband, who works as a (occupation omitted) with the (employer omitted), has the superior earning capacity.
As previously discussed, the husband has a financial resource available to him in the form of the restricted (omitted) shares.
(d)Commitments of each of the parties that are necessary to enable the parties to support:
(i)himself or herself;
(ii)a child or another person that the party has a duty to maintain
Both parties provide details of their self-support financial commitments.
Both parties have a legal duty to support X.
(e)The responsibilities of either party to support any other person
I refer to the above comments.
(f)The eligibility of either party for a pension, allowance or benefits…
The wife discloses that she presently receives a family tax benefit of approximately $84.00 per week.
As previously discussed, the husband has the benefit of the (country omitted) pension fund.
(g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable
I am satisfied that the orders to be made in this matter will provide a reasonable standard of living for the parties having regard to their assets and liabilities and the circumstances existing at the present time.
(h)Extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
This consideration is not relevant to the present dispute.
(ha)The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
Unlike many couples that appear before this Court, these parties are not burdened with significant debt. I am satisfied that on the evidence presented, there are sufficient assets to satisfy the claims of any creditors.
(j)Extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
This is not a relevant consideration in the present case. That said, there was no evidence before the Court that either party actively assisted the other in their respective careers.
(k)Duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
This is not a relevant consideration in the present case. That said, there is no evidence that the duration of the marriage has impacted upon either party earning capacity. The wife is currently working a reduced working week. Despite this reducing her income, she has been able to salary sacrifice a percentage of her pre-tax income into superannuation.
(l)Need to protect a party who wishes to continue that party's role as a parent
The wife will continue as X’s primary carer.
(m)If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
As stated, I am not aware that either party has re-partnered.
(n)Terms of any order made or proposed to be made under section 79
As neither party is seeking spousal maintenance this consideration is not relevant.
(naa)Terms of any order or declaration made, or proposed to be made, under Part VIIIAB
This consideration is not relevant to the present dispute.
(na)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The husband pays child support for X as assessed. In her Financial Statement filed 4 August 2014, the wife discloses receipt of child support in the sum of approximately $308.00 per week.
(o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
As previously discussed, the husband has had the benefit of exclusive occupation of the former matrimonial home since separation.
I refer to previous comments in respect of the assistance to the parties provided by the maternal grandparents. There is clear evidence that the parties enjoyed consideration assistance from the maternal grandparents in respect of additional care for the child, and their provision of domestic duties for the parties in the extended household.
Otherwise, there are no other factors which the justice of the case requires to be taken into account that have not been discussed previously in this decision.
(p)The terms of any financial agreement that is binding on the parties to the marriage
This consideration is not relevant to the present dispute.
(q)The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
This consideration is not relevant to the present dispute.
Further adjustment analysis
As stated, the wife argues that there should be a further adjustment in her favour pursuant to s.75(2) and related factors. This is conceded by the husband however the parties disagree on the size of the adjustment. I note that in percentage terms, the wife seeks an adjustment of 10-15% in her favour and the husband proposes an adjustment of 5%.
Having considered the strength of the evidence, the size of the property pool and the parties’ financial resources, I am persuaded that there should be a further 12.5% adjustment in the wife’s favour for s.75(2) and related factors. The Court finds accordingly.
Conclusion
After considering the structured discretion contained in the Act in light of the evidence and submissions presented, the Court finds as follows.
Parenting
The Court is satisfied that the presumption in favour of equal shared parental responsibility is not be rebutted and accordingly there will be an order for the parties to have equal shared parental responsibility for X. Consequently, s.65DAA of the Act is triggered.
There will be Orders for X to live with the mother and spend substantial and significant time with the father. As stated earlier in this decision, I am satisfied that X should spend increasing time with his father transitioning to fortnightly overnight time commencing in late June 2015, and thereafter increasing incrementally.
Regrettably, I agree with the husband’s submission[119] that, absent specific and detailed orders as to the time to be spent between the child and the father, the mother may be unlikely to facilitate and encourage that relationship. Consequently, I am satisfied that it is in X’s best interests, absent agreement to the contrary, that there be specific and default parenting orders. In light of this, mechanisms for agreement will be built into the Orders as well as default arrangements which will minimise the contact the parties will have with each other. The Court acknowledges the level of complexity (and length) involved in such orders, and especially those which increase time gradually, however, the alternative is to allow vague orders to be put in place which may be likely to lead to conflict and potential contraventions by the parties.
[119] Husband’s case outline document, page 7, paragraph 6.5.1
The Orders will provide for X to spend time with the father as follows:
· Commencing in May 2015, each Saturday and Wednesday, with the addition of overnight time each fortnight commencing in June 2015;
· Additional time in the NSW gazetted school holiday periods until 2018, including two consecutive nights in September 2015, two separate blocks of two consecutive nights in December 2015/January 2016, two consecutive nights in April 2016, incrementally increasing to three, four and then five consecutive nights in the relevant school holiday periods.
· Commencing in the first week of the school term in January 2018, in a fortnightly cycle during school terms being from after school Friday until Sunday in week one, and from after school Wednesday to before school Thursday in week two;
· For five consecutive nights in the NSW gazetted school holidays in April 2018, increasing to six consecutive nights in the July and September/October 2018 holiday periods, further increasing to two separate blocks of seven consecutive nights in the long summer school holidays in December/January 2018; and
· Commencing in the first week of school term in 2019, and continuing thereafter, in a fortnightly cycle during school terms being from after school Friday until before school Monday in week one, and from after school Wednesday to before school Friday in week two, and for one half of all NSW gazetted school holidays.
The intention of these Orders is to provide a ‘framework’ (as suggested by Dr L) for the progression of X’s time with the father.
While the Orders will provide default arrangements with respect to Mother’s Day/Father’s Day, they will not specifically provide for Christmas, Easter and/or relevant birthdays as the Court is concerned that such will add a further layer of complication. The orders will, of course, allow the parties to make any appropriate arrangements as agreed. That said, the orders for the child to spend time with each parent during the NSW gazetted school holidays will, generally speaking, provide for a sharing of Christmas and Easter periods, at least in alternate years.
As to changeover, I am satisfied there should be an Order as proposed by the husband; namely that in relation to changeovers that do not occur at school, the wife or her nominee deliver the child to the husband at the commencement of the husband’s time and that the husband or his nominee return the child to the wife at the conclusion of the relevant time.
Though not the subject of any proposal or submissions by the parties, the Court sees merit in an order for each party to have and facilitate reasonable telephone communication with the child. The orders will provide a default outcome should agreement on this issue not be achievable.
I note that the wife proposed orders for the use of an ‘electronic communication book,’ for the husband to ensure that he takes X to his extracurricular activities and for each party to advise the other in the event that X suffers a medical emergency.
In relation to the potential use of a communication book, it was not specifically clear to the Court what the wife meant by an electronic communication book. Presumably, it would require the parties to enter the relevant data by computer or similar device. While the Court generally sees merit in the appropriate use of a communication book, it would be difficult for the Court to make the orders sought by the mother in the absence of particulars and agreement between the parties as to how an electronic communication book would work in practice.
The improper use of a communication book may cause issues in dispute to arise. I note that during cross examination the mother, in answer to a question from Mr Campton, indicated that she saw the communication book being used to record how much the child has eaten and agreed that if the child “has eaten baked beans” she wanted to know “how many baked beans” the child ate. However later in her evidence the mother contradicted her earlier statement and indicated that it was not her intention that the communication book would be used to record how much the child has eaten and what he has eaten for each meal.[120]
[120] Transcript, 19 August 2014, page 186.
Overall, I am satisfied that, with some modification, Orders that broadly deal with these issues, together with typical Orders made by this Court to reduce future conflict, should be made. Consequently, there will be Orders for:
·using a communication book (although the use of such should not be burdensome or unduly detailed);
·mutual non-denigration;
·not enrolling the child in any extra-curricular activity that would impact upon the time that the child is in the other party’s care (unless there is agreement in advance);
·advising the other party as to any medical emergencies suffered by X; and
·keeping each other advised as to any changes to a party’s residential address and contact details (including telephone numbers and email addresses).
As previously considered, the Court finds that both parties would benefit from obtaining a referral from a suitable organisation for each to engage in and complete a further parenting program to improve their communication in the co-parenting of X.
I also find it appropriate in this case for there to be an order that the parties attend upon a family dispute resolution practitioner to resolve any future parenting issues that arise prior to commencing any further parenting proceedings.
I note that the wife sought a specific Order that would permit her (only)[121] to travel overseas with X. That said, I further note that during cross-examination the wife indicated that she has no immediate plans to travel.[122] The father’s minute was silent on the issue of overseas travel by either parent.
[121] This proposal needs to be read in the context that the mother was only seeking that the child spend limited time with the father that did not include overnight time.
[122] Transcript, 19 August 2014, page 171-172.
As a general rule, there are advantages to a child having the benefit of overseas travel with either parent. That said, and subject to agreement to the contrary, common sense would suggest that such travel time should occur during those periods that the child is otherwise in the travelling parent’s care. Regardless, an overseas travel outcome should be subject to certain conditions including notice. I elaborate upon this further below. Given the circumstances of this case, and in particular the Court’s finding that the child’s time with the father should incrementally increase over the following months and years, I am also satisfied that the child’s best interests would be served by postponing any overseas travel by the child with either parent until he has attained the age of 8 years in 2020. This delay will enable X to cope with the transition to primary school and the increasing periods of time that he will spend with his father. The relevant Order of course will be subject to any agreement by the parties to the contrary.
In addition to providing sufficient notice, any overseas travel will also be conditional upon the travelling parent providing a complete itinerary (as to travel, accommodation, contact details and confirmation of travel insurance) and, if applicable, confirmation that the child has seen or will see a doctor for relevant flight clearance and inoculations if required.
The Court is satisfied and finds that the above outcomes are in the best interests of X.
Property
Overall, the Court is satisfied that the parties should receive, in net terms, matrimonial property to the value of 50% to the husband and 50% to the wife.
Based on the above findings, including a finding that the net asset pool (in monetary terms) amounts to $1,997,761.00, each party should receive a one half adjustment being $998,880.50. The division of net assets may be summarised as follows:
Husband’s Net Asset Distribution
Property C
$860,000.00
(omitted) Bank Account (omitted)
$119,497.00
(omitted) Bank Account (omitted)
$718.00
(omitted) Bank Account (omitted)
$484.00
(omitted) Bank Account (omitted)
$4,252.00
(omitted) Bank Account (omitted)
$185,225.00
(omitted) Bank Account (omitted)
$5,220.00
(omitted) Bank Account (omitted)
$20,635.00
(country omitted) Bank Account
$7,246.00
(omitted) Shares
$83,031.00
(omitted) Hyundai Motor Vehicle
$9,000.00
Household Contents
$5,000.00
(omitted) Superannuation
$23,800.00
(employer omitted) Superannuation $278,000.00
Less super split to wife $139,000.00
$139,000.00
Less Tax liability on (omitted) shares
$31,164.00
Less payment to wife
$433,063.50
Total Net Assets
$998,880.50
Wife’s Net Asset Distribution
Payment from husband
$433,063.50
(employer omitted) Superannuation super split from husband
$139,000.00
(omitted) Super
$177,920.00
(omitted) Bank Account (retain joint account - husband to transfer interest)
$6.00
(omitted) Bank Account (omitted)
$208,435.00
(omitted) Bank Account
$20.00
(omitted) Bank Account (omitted)
$2,708.00
(omitted) Bank Account
$733.00
(omitted) Bank Account no such account
$-
(omitted) Shares
$7,066.00
(omitted) Shares
$944.00
(omitted) Shares
$2,985.00
(omitted) VW Motor Vehicle
$20,000.00
Jewellery
$1,000.00
Household Contents
$5,000.00
Total Net Assets
$998,880.50
The Court is satisfied that the above outcome would be just and equitable.
The Minute of Orders sought by the husband will form the basis of the specific final property Orders, with some amendment to reflect the above determination. Consequently, there will be Orders to the following effect:
·within 42 days, the husband pay to the wife an amount of $433,063.50;
·contemporaneously with the above payment, the wife transfer to the husband her interest in the former matrimonial home at Property C, New South Wales, (omitted);
·if the husband does not, or cannot, pay the wife within 90 days, then the house will need to be sold with the sum of $433,063.50 to be paid to the wife out of the proceeds (plus any accrued interest); and
·upon noting that procedural fairness has been provided to the relevant superannuation trustee (see Exhibit “AH4”), a superannuation splitting order to the wife in the amount of $139,000.00.
Subject to agreement to the contrary, the parties will need to cause the sale of the wife’s engagement ring and the parties’ wedding rings and divide the net proceeds in equal shares.
There will be a further order that the parties each retain all property including personal property, savings in bank accounts and such held in their sole names or in their respective possessions. In the absence of agreement, I am not persuaded that there should be an order as sought by the wife for the return of specific items of contents and for there to be a ‘two list’ division of the balance of the contents. My reasoning is three-fold: firstly, such an outcome would not produce an equal division of the relevant property; secondly, the balance sheet attributing contents to the value of $5,000.00 to each party; and thirdly, there being no submissions made to underpin why such a result was necessary.
There will be an order, pursuant to s.106A of the Act, to take effect in the event of default in signing any required documentation.
I note again that the wife sought an order for costs in the Minute of Orders sought that was attached to her final written submissions. The husband’s Further Amended Initiating Application did not seek any costs order. In the event that either party now seeks a costs order in light of this decision, then an Application in a Case and relevant supporting affidavit should be filed and the Court can consider these issues separately.
There will be Orders and Notations of the Court to reflect these reasons.
I certify that the preceding two-hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 30 April 2015
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Property Law
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