MAURICE & BARRY
[2019] FamCA 346
•29 May 2019
FAMILY COURT OF AUSTRALIA
| MAURICE & BARRY | [2019] FamCA 346 |
| FAMILY LAW – CHILDREN – Where and with whom a children live – Where the applicant seeks that the children live with her and spend five nights a fortnight with the respondent – Where the respondent seeks sole parental responsibility, that she be permitted to relocate interstate with the children, and that the children spend occasional weekends and half school holidays with the applicant – Where the two eldest children have become aligned with the respondent – Where the respondent does not currently have the capacity or willingness to co-parent or promote the children’s relationship with the applicant – Where it is appropriate that the applicant have sole parental responsibility – Where it is not in the best interests of the children to relocate interstate – Where the children will live with the applicant and spend five nights a fortnight with the respondent. FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were in a same sex de facto relationship for 17 years and have 4 children – Where the initial contributions favour the applicant –Where the applicant has received significant gifts and inheritances throughout the relationship – Where the other contributions during the relationship were largely equal – Where it is just and equitable to make an order for property division – Where an adjustment of 10% in the respondent’s favour pursuant to s 90SF(3) is appropriate – Where a division of the property in the proportion of 60/40 in favour of the applicant is just and equitable in all the circumstances. FAMILY LAW – SPOUSAL MAINTENANCE – Where the respondent seeks the applicant pay to her periodic spousal maintenance for a period of three years – Where the applicant resists the application – Where it is ordered that the applicant pay to the respondent periodic spousal maintenance for a period of three months to enable the respondent to re-enter the workforce. |
| Family Law Act 1975 (Cth) |
| A & A: Relocation Approach (2000) FLC 93-035 Banks & Banks (2015) FLC 93-637. Bonnici & Bonnici (1992) FLC 92-272 C & C [1998] FamCA 143 Chorn & Hopkins (2004) FLC 93-204. M & M [1998] FamCA 42 AJO & GRO (2005) FLC 93-218; [2005] FamCA 143 |
| APPLICANT: | Ms Maurice |
| RESPONDENT: | Ms Barry |
| FILE NUMBER: | CAC | 996 | of | 2010 |
| DATE DELIVERED: | 29 May 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 1 - 3 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk QC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE RESPONDENT: | Marino Law |
Order
Parenting
Subject to this Order, the applicant, Ms Maurice, have sole parental responsibility for the children:
(a) Y born in … 2007;
(b) X born in … 2009;
(c) W born in … 2012; and
(d) Z born in … 2014
(herein referred to as “the children”).
In exercising her sole parental responsibility for the children, the applicant shall:
(a) Inform the respondent in writing of any decision (concerning a major long term issue) to be made and the applicant’s position regarding the proposed decision;
(b) Provide the respondent with 14 days within which to consider the decision to be made and provide input and feedback into the decision to be made; and
(c) Consider the respondent’s response and inform the respondent of the decision made.
The children live with the applicant.
The children spend time with the respondent, Ms Barry, as follows:
(a) In a fortnightly cycle during school term:
(i)In week one, from the conclusion of school on Thursday until the commencement of school on Monday;
(ii)In week two, from the conclusion of school on Thursday until the commencement of school on Friday;
(b) For half of all school holiday periods, subject to the following:
(i)From 4.30pm on the final day of school term until 4.30pm on the middle day of the school holiday period in years ending in an even number;
(ii)From 4.30pm on the middle day of the school holiday period until 4.30pm on the day immediately preceding the first day of the new school term in years ending in an odd number;
(iii)In the event of an uneven number of nights during any school holiday period, the children shall spend the additional night with the respondent in years ending in an even number, and the additional night with the applicant in years ending in an odd number;
(c) At such other times as may be agreed between the parties.
The children spend time with the parties on special occasions as follows, notwithstanding paragraph (4) hereof:
(a) The children spend time with the applicant during Christmas in years ending in an odd number, and with the respondent in years ending in an even number, noting such time is to occur consistent with that provided in paragraph (4)(b);
(b) On each of the children’s birthdays, the children spend time with the parent they are not ordinarily living with pursuant to paragraphs (3) and (4) hereof, for a period of two hours;
(c) On Mother’s Day, if the children are not ordinarily spending time with the respondent pursuant to paragraph (4) hereof, the children spend time with the respondent from 11.00am until 3.30pm on Mother’s Day;
(d) On Father’s Day, if the children are not ordinarily spending time with the applicant pursuant to paragraphs (3) and (4) hereof, then the children spend time with the applicant from 11.00am until 3.30pm on Father’s Day;
(e) During the June long weekend each year, if not already spending time with the applicant pursuant to paragraphs (3) and (4) hereof, the children spend time with the applicant from 4.30pm on the Friday until 4.30pm on the (public holiday) Monday and, in the event of this weekend falling during the respondent’s time with the children, then the children shall spend the following weekend with the respondent in lieu of this weekend;
(f) During other family occasions as agreed between the parties.
That the applicant hold the children’s passports at all times unless the children are travelling with the respondent pursuant to this Order.
it is further ordered by consent
In the event that changeover is to occur on a non-school day, or when the children or any of them are not otherwise attending at school, pursuant to this Order the parent with whom the children are due to spend time with shall collect the children from the residence of the other parent at the commencement of such time.
Each of the applicant and the respondent notify the other as soon as practicable in the event that the children or any of them suffers any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment, and that each party be restrained from authorising any of the children to undergo a major medical procedure or operation without the joint consent of the other party except in cases of emergency where immediate treatment is required on the advice of an appropriately qualified medical practitioner and all reasonable efforts have been made to contact the other party.
Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) each party is permitted to travel overseas with the children during any periods the children are living with that party pursuant to this Order or at such other times as the parties agree upon in writing, subject to the following:
(a) The party proposing such travel give the other party no less than 30 days’ written notice of the intention to travel and provide to the other party:
(i)The particulars of such holiday including a copy of the travel itinerary, country/ies to be visited and the periods of such proposed travel;
(ii)Copies of the confirmed return airline tickets and details of flights and accommodation.
(b) The children are not permitted to travel to any country with a current “reconsider your need to travel” or “do not travel” advisory by the Department of Foreign Affairs and Trade.
The parties do all acts and things to ensure the children hold a valid passport and do all things necessary to facilitate the issue of any required visas or any other requirement of the authorities of the destination country/ies, any fees for which shall be paid by the travelling parent.
Without admissions, each of the applicant and respondent be and are hereby restrained from denigrating the other or permitting any other person to denigrate the other in the presence of or in the hearing of the children.
Notwithstanding any other Order, each parent be at liberty to attend the following occasions at which parents are invited to attend:
(a) Parent/teacher meetings;
(b) School concerts in which the children are involved;
(c) End of year speech days;
(d) End of year dance and music concerts; and
(e) Any other school, sporting or extracurricular activity at which parents are invited to attend.
Insofar as it is possible, each party notify the other party within 48 hours, or otherwise as soon as practicable, whichever is the earlier, prior to any change to their address and/or landline telephone number and/or mobile telephone number and/or email address.
It is further ordered
Property settlement
The applicant pay the respondent within 60 days of the date of this Order the sum of $974,666 by way of adjustment of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth).
The applicant be solely entitled as between the parties to her interest in the property situated at and known as JJ Street, Suburb HH in the State of Queensland being all of the land compromised in Title Reference … (“the Suburb HH property”).
it is further ordered by consent
Within 60 days of the date of this Order the respondent shall do all such things and sign all such documents as may be necessary to:
(a) Transfer to the applicant her shares in B Pty Ltd and units in the J Unit Trust, and any debit or credit loan account, and otherwise relinquish any right, title and interest in the said trust;
(b) Transfer to the applicant her shares in G Pty Ltd, resign from her office holding as director and secretary of G Pty Ltd, and any debit or credit loan account, and otherwise relinquish any right, title and interest in the V Discretionary Trust;
(c) Transfer to the applicant any right, title and interest in the Q Trust, including but not limited to any debit or credit loan accounts;
(d) Transfer to the applicant any right, title and interest in the DD Trust, including but not limited to any debit or credit loan accounts;
(e) Transfer to the applicant any right, title and interest in the FF Trust, including but not limited to any debit or credit loan accounts;
(f) Transfer to the applicant any right, title and interest in the GG Trust, including but not limited to any debit or credit loan accounts
and the applicant shall thereafter indemnify the respondent and keep her forever indemnified in relation to any liability of the respondent arising in relation to the named entities.
Within 14 days of the date of this Order the applicant transfer to the respondent her interest in Vehicle 1, registration number …
The parties forthwith do all such things as may be necessary to cause the respondent’s entitlement in the X Superannuation Fund to be rolled over to another superannuation fund nominated by the respondent.
With respect to the contents of the Suburb HH property:
(a) The applicant shall retain the items listed at Annexure A to this Order;
(b) The respondent shall retain the items listed at Annexure B to this Order; and
(c) The balance of the parties’ household contents be divided equally between the parties, such that the applicant shall, within 7 days of the date of this Order, prepare two lists of the contents of the Suburb HH property, those lists representing, in the opinion of the applicant, equal value and shall include the items the respondent already has in her possession as identified at Annexure C to this Order and provide such lists to the respondent, and the respondent shall, within 7 days, nominate one or other of those lists as her chosen list and thereafter the respondent shall be solely entitled as between the parties to the items set out in her chosen list and the applicant shall be entitled to those items set out in the other list and each of the parties otherwise be and is hereby restrained from removing any further contents or items from the Suburb HH property, without the other party’s prior written consent, until such time as the respondent has collected her share of the items pursuant to this Order, on a date or dates to be agreed between the parties, at the respondent’s expense.
As between the applicant and respondent, and subject to the above paragraphs, the applicant and respondent shall each respectively retain all interest in and entitlement to:
(a) All personal property in her respective possession or control;
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively;
(c) All interests in life insurance policies and superannuation funds standing in her sole name respectively.
The parties otherwise be solely liable for all liabilities held in their respective names.
In the event that either party fails to execute any deed, document or instrument necessary to give effect to this Order, the Registrar of the Family Court of Australia at Brisbane be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such failure by way of affidavit.
It is further ordered
Spouse maintenance
The applicant pay spouse maintenance to the respondent in the sum of $1,000 per week for three months with the first such payment to be made within 7 days of this Order and weekly thereafter until 31 August 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maurice & Barry has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: CAC996 of 2010
| Ms Maurice |
Applicant
And
| Ms Barry |
Respondent
REASONS FOR JUDGMENT
The applicant, Ms Maurice, and the respondent, Ms Barry, were in a same sex relationship from 2001 until February 2018. They have four children, Y aged 12, X aged 10, W aged seven, and Z aged five. They are unable to agree about where and with whom the children live. They are also in dispute about how they should divide their property and whether or not the applicant should pay spouse maintenance.
For the reasons which follow, I propose to order that the applicant have sole parental responsibility for the children and that they live with her in City P and spend five nights per fortnight and holiday time with the respondent. I further propose to order that the property be divided in the proportion 60/40 in the applicant’s favour and that spouse maintenance be paid by the applicant to the respondent in the sum of $1,000 for three months.
Background
The applicant is 53 and the respondent is 43. Their relationship commenced in about 2001.
At the commencement of the relationship, the applicant had a share portfolio valued at $1,500,000 and a home in City LL which was sold in about 2002 for $331,000. The applicant used the proceeds towards the purchase of a property at Suburb CC in City P and undertook renovations using funds received by way of gift from her family.
In 2003 the applicant left her job in City LL and commenced employment as a manager of a company in City P. The respondent continued to pursue her career as a professional before retiring in about 2005. Her income from the commencement of the relationship to her retirement was modest and her living expenses were subsidised by the applicant.
In 2005 the applicant received a distribution of $4,800,000 from a family trust, although the net benefit received is uncertain.
The parties decided to have a family and, given the respondent’s younger age and the applicant’s greater income earning potential, it was agreed that the respondent would undergo in vitro fertilisation (“IVF”). The respondent gave birth to four children conceived through IVF with sperm from the same anonymous donor.
The children call the applicant ‘[NE]’ or ‘[N]’ and the respondent ‘mum’ or ‘mummy’.
The respondent did not resume employment after giving birth and assumed a primary role in the home until separation. At various times the parties received assistance from a nanny/au pair, cleaner, ironing lady, window cleaner and a person to mow the lawns.
In January 2007 the applicant purchased her own business, T Company, for $400,000 using funds gifted from her father.
In 2009 the Suburb CC home was sold for $1,100,000 and the applicant purchased another home at Suburb HH for $1,170,000 where the parties lived for the remainder of the relationship and where the children continue to live while the parties come and go depending on who is living with the children.
In 2011 the applicant received an inheritance of $729,000. Also in 2011, the applicant commenced a business, MM Company, which operated until 2015.
In August 2014 the applicant purchased additional land at Suburb HH for $50,000 from a neighbour in order to clarify the boundary line of the Suburb HH property.
In or about 2015 the T Company business ceased operation and in 2016, the applicant established H Pty Ltd with Ms R.
In or about 2016 the applicant received gifts from her father totalling $1,751,136, subject to unquantified loan obligations repaid through the receipt of dividends.
The parties separated on 12 February 2018.
On 20 February 2018 the respondent removed the children from school and travelled with them to City BB despite the applicant indicating her opposition to such a course. The applicant commenced court proceedings.
The respondent and children returned to the Suburb HH property on 27 February 2018.
On 14 March 2018 the parties reached agreement at mediation that the children would live in a shared care arrangement. This agreement was reflected in an interim order which was made by consent on 28 March 2018. It seems it was intended that the parties would live elsewhere when the children were not living with them. The respondent declined to leave the property when the children were living with the applicant. She lived in the guest house on the Suburb HH property. The respondent explained during cross-examination that the alternate properties being suggested by the applicant for her to live in when the children were not in her care were not appropriate.
On 9 April 2018 the applicant and children travelled to City U to visit the applicant’s parents and extended family during the school holidays without first notifying the respondent “as a courtesy”.[1] The applicant and children returned to Suburb HH on 16 April 2018.
[1] This is the complaint expressed by the respondent.
Unfortunately, the police were involved at about this time when a dispute arose about one of the parties refusing to leave the property. The police records (referred to by the family report writer, Dr L) note that the applicant was “level headed, calm and willing to negotiate the matter” while the respondent was “emotional, difficult to deal with and refused to move from what she wanted”.
The respondent commenced proceedings for a protection order against the applicant but withdrew her application on 26 June 2018, notwithstanding that the respondent had agreed to withdraw her application forthwith as a part of the agreement reached at mediation on 14 March 2018. As a result of the delay, the applicant incurred additional legal fees attending at a directions hearing at the Suburb E Magistrate’s Court on 24 May 2018.
On 17 April 2018 the parties, via their solicitors, negotiated to continue the shared care arrangement pending the interim hearing on 8 May 2018. An order was made by consent on 18 April 2018, and amended on 20 April 2018, reflecting the agreement reached.
On 8 May 2018 an interim parenting and financial order was made allocating equal shared parental responsibility and a continuation of a shared care arrangement with the children living with the applicant each alternate Friday to the following Thursday and the balance of time with the respondent. School holidays were to be shared equally. The order also provided by consent for a payment by the applicant of $75,000 to the respondent ‘by way of partial property settlement’ to be drawn from the mortgage facility secured on the Suburb HH home.[2] The order also restrained each parent from attending at the children’s school when the children were living with the other parent save for specified events and, in particular, the order prohibited attendance at sports training or during school hours at or about the commencement or conclusion of school. The latter provision has been an ongoing source of dispute between the parties with it being alleged that the respondent repeatedly breached the order.
[2] Ultimately it seems this sum was paid by the applicant from the FF Trust.
Since May 2018 the children have lived with the applicant for six consecutive nights and with the respondent for eight consecutive nights each fortnight and have spent up to four weeks at a time with each parent during school holidays.
Shortly after 14 June 2018 the children and respondent travelled to City BB during the school holidays. The respondent left the family dog in City BB at the end of the holidays.
Y was not returned to the applicant with the other children at the end of the holidays and remained in City BB with the respondent and members of the respondent’s extended family. The applicant commenced proceedings for a recovery order on 5 July 2018. The recovery order was not pursued as Y was returned to the applicant prior to the application being heard in the Federal Circuit Court.
The applicant and the other children attended a skiing holiday without Y.
On 15 July 2018 Y returned to the applicant.
In August 2018 the respondent obtained rental accommodation where she lives during the period the children live at Suburb HH with the applicant. The children have spent some time with the respondent at her rental accommodation when they are living with her.
On 28 November 2018 an order was made by consent requiring the applicant to pay $50,000 to the respondent with such payment to be characterised at trial.
On or about 9 April 2019 a further payment was made by the applicant to the respondent in the sum of $10,000, also to be characterised at trial.
The matter was listed for trial in the Federal Circuit Court in December 2018 but when no Judge was available it was transferred to this Court.
parenting proposals
The applicant proposes that she and the respondent have equal shared parental responsibility for the children and that they live with her and spend five nights per fortnight (four in one week and one in the other week) and equal holiday time with the respondent. If I am not persuaded that the parties can jointly make parenting decisions, the applicant proposes that she have sole parental responsibility.[3]
[3] The precise form of order is set out in exhibits … and ….
The respondent proposes that she have sole parental responsibility and that the children relocate with her to City BB and spend one weekend per term with the applicant (and further time should the applicant visit City BB) and all school holidays after terms one and three, and equal time during the remaining school holidays.
If the respondent is not permitted to relocate to City BB with the children, she proposes that she have sole parental responsibility, that the children live with her and spend four nights per fortnight (three in one week and one in the other week) and equal holiday time with the applicant.
issues
In the context of determining the parenting dispute, the parties identified the following as significant issues:
a)Should the respondent be permitted to relocate with the children to City BB, New South Wales?
b)If the children do not relocate, should they change schools?
c)Do the parties have the capacity to make joint decisions in relation to major long term issues for the children?
d)Does the applicant have the capacity to encourage and facilitate the children’s relationship with the respondent and/or her family?
e)Does the respondent have the capacity to encourage and facilitate the children’s relationship with the applicant?
f)Does the respondent have a mental health issue and if so, what impact, if any, does it have on her parenting capacity?
Applicable legal principles
In determining what parenting order is proper I must apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered.[4]
[4]Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons;
c)The communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those subsections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
There is no definition of ‘parent’ in the Act other than a provision that the term, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child (s 4).
However, s 60H of the Act provides:
(1)If:
a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent ); and
b) either:
i.the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
ii.under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
c) the child is the child of the woman and of the other intended parent; and
d) if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
An ‘intended parent’ and a person who provided genetic material is presumed to have consented unless proven to the contrary (s 60H(5)). De facto partners include same sex partners (s 4AA(5)).
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[5] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[6]
[5]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[6]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[7]
[7]Banks & Banks (2015) FLC 93-637.
I turn now to consider the application of the legal principles in the context of the significant issues raised by the parties.
Should the respondent be permitted to relocate with the children to City BB, New South Wales?
While the parties have identified this as a significant issue it should not be thought that the idea of relocation is an issue to be considered in isolation. As the Full Court held in Zahawi & Rayne[8]
“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[8] [2016] FamCAFC 90 at [48].
The issue of relocation must be considered within the legal framework set out in Part VII of the Act. While it is recognised that a parent’s right to freedom of movement should not lightly be interfered with, the rights of children to have a meaningful relationship with both parents and their best interests more generally may result in the parent’s rights being subjugated to that of the children.[9]
[9] A & A: Relocation Approach (2000) FLC 93-035 at 87,552, [108]; AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,050, [144], [193].
Fortunately for the children in this case, they have two parents who love them and continue to meet the day to day practical parenting requirements to a high standard. The children are performing well at school and present as generally happy and settled although the respondent contends that the children are becoming more unhappy and sad as time progresses. If the latter is the case, I can only wonder about the impact of the respondent insisting that the three girls sleep in her bedroom in circumstances where the respondent says Y sobs herself to sleep most nights. It seems that an unhappy disposition in the children might be thought (by the respondent) to assist her case. Such unhappiness is not observed by the applicant when the children are living with her nor when the children are at school.
The only significant allegation raised in the proceedings is by the applicant against the respondent and relates to her conduct since separation, which is said to have caused or is causing the children to be alienated from the applicant.
The children have lived all of their lives in City P and have only ever attended one school. The separation of their parents last year has been unsettling and confusing for them.
The children are familiar with City BB, where members of the respondent’s family live, because they have travelled there on numerous occasions throughout their parent’s relationship and subsequent thereto.
A move to City BB for the children would involve considerable upheaval and change in their day to day lives. A change of school would be inevitable. Not only would they leave behind their established friends but also the applicant, unless she elected to also relocate to City BB. Time with the applicant would be limited to weekend visits in City P (proposed by the respondent to be once per school term) and holidays. If the applicant travelled to City BB at other times, the respondent proposes that the children would spend time with the applicant.
The applicant did not rule out relocating to City BB if the children moved there but made it clear that she would find such a move difficult on a number of fronts. The respondent concedes that it would be difficult for the applicant to relocate to City BB. The applicant has been the sole provider for the family and it is clear that the respondent anticipates the applicant’s continued significant financial support for the children e.g. that the applicant would be solely responsible for the payment of the children’s private school fees. The applicant maintains that her business connections lie largely in South East Queensland, where she has lived permanently for the past sixteen years and that she would find it difficult to establish such connections in or around City BB. Currently she is on the board of two companies for which she is remunerated and expresses an intention to extend her role to other companies and to re-develop her business. Relocation by the applicant does not seem to be practicable.
Counsel for the respondent submits that “arguably” there is a “potential risk” if the respondent is not able to relocate. The risk is identified as the “impact on Respondent (sic) care capacity”. I was not taken to any evidence to support the submission, which may explain the concession that the risk is “unknown on the evidence”.
However, I accept that the respondent, in particular, has been hit hard by the separation (which was not of her making) and it is completely understandable that she wishes to have the support of extended family at such a time. The respondent may well feel more supported in City BB, although she seems to have a circle of friends in City P, an unsurprising situation given the time she has lived there. The respondent’s mother informed Dr L, the family report writer, that she would increase her presence at City P by making more visits should the respondent be unable to relocate. If the respondent remains in City P, she would be able to continue her practice of spending holidays in City BB and communicating regularly with members of her extended family.
Y and X have expressed a wish to relocate to City BB but are currently presenting as significantly aligned to the respondent. Their expressed wishes must be considered in that context.
Dr L is a child, adult and family psychiatrist with over twenty-five years’ experience in providing expert opinion in family law matters. In his first report he recommended against relocation to City BB and emphasised the need for stability for the children by remaining in City P. In his most recent report he was less prescriptive (due in large part to the expressed wishes of the oldest two children who support relocation to City BB) but reiterated the need for the parents to live in close proximity to enable the continuing meaningful relationship between the children and each parent and described this as the best result for the children.
If the children do not relocate, should they change schools?
It is not in dispute that the children are settled at their school and are performing well both academically and in extracurricular pursuits. The respondent suggested in her affidavit that Y was not happy at her school. Y’s comments to Dr L indicate to the contrary. The two older children (in particular) have been supported in the school environment since separation by their attendance upon the school’s clinical psychologist, Ms M. Up until November 2018 (being the last appointment) Y and X appeared to be coping reasonably well. Ms M was quite optimistic about how X and Y were managing the changes in their lives.
The situation seems to have deteriorated. When the children recently attended upon Dr L, he was concerned by the presentation of the two older children, in particular X, whom he described as “fragile” and “distressed”.
The respondent agitates for a change of school even if the children remain in City P. Her reasons for doing so are entirely self-focused. The respondent contends that the children’s school has shown an alignment to the applicant because she pays the school fees and is on one or two school activity boards. Even if there is a change of school, the respondent proposes that the applicant continue to pay the school fees so it is difficult to see how the perceptions of the respondent would change. The respondent complains that she has not been notified when the applicant has collected the children on occasion to take them to an appointment but the school notifies the applicant when the respondent removes the children from school early. The matters raised appear to be somewhat petty and do not justify the change as proposed by the respondent.
Y and X spoke positively about their school to Dr L in September 2018. It is clear that X regarded his school as somewhat of a sanctuary in the circumstances of the separation of the parties. In his first family report, Dr L considered that the maintenance of the children at their current school, where they could maintain their friendships and social environments, would “add to their ability to remain stable and cope with the changes in their lives”. I find it surprising, therefore, that the respondent pressed for a change in the children’s school if they remained in City P.
In my view the respondent’s attitude shows a lack of ability to put the children’s interests above her own.
Do the parties have the capacity to make joint decisions in relation to major long term issues for the children?
There is no doubt that prior to separation the parents worked as a team to co-parent the children, although the respondent took the primary role in many day to day decisions and activities, while the applicant worked full time and provided for the family. The respondent and the applicant deserve considerable credit for what have been described as their delightful children.
There is also no doubt that the separation was instigated by the applicant and came as a shock to the respondent. In the context of a very disappointing end to her relationship, the respondent has made some unfortunate choices that have impacted detrimentally on the children. She has repeatedly denigrated and/or undermined the applicant to or in the presence of the children (see exhibit …); she has relied far too heavily on the children, in particular Y, for her own emotional support (Dr L opined that Y was “feeling somewhat burdened by that and finding it difficult to attend school and finding it difficult to make sure that [the respondent] was well enough”); and she has involved the children in the dispute (see exhibit …) to their detriment (e.g. the two older children are burdened by the alignment with the respondent to the concern of Dr L). While there may be a number of reasons for their alignment, the most significant, in my view, relates to the respondent’s own actions, as discussed already in this paragraph, but also by treating Y preferentially e.g. retaining her during the mid-year school holidays in 2018 while the other children went skiing, and raising the children’s expectations about relocation e.g. telling them they would be attending school in City BB and leaving the family dog in City BB.
While I was prepared to consider that the respondent’s conduct may have be an aberration, I ultimately reject that for a number of reasons.
Firstly, I was struck by how reluctant the respondent was to make concessions about her conduct and the difficulties it has created for the children. If her conduct had been an aberration, I would have expected her to acknowledge her poor behaviour and express remorse. The respondent mostly denied or sought to excuse her conduct summarised in exhibit …. I reject her denials. The respondent admitted saying to the children when the applicant had taken them to City U – “[N] has stolen you. [N] has broken the law and I’m going to call the police on her tomorrow. You’ve been illegally taken interstate.” Other statements by the respondent to or in the presence of the children e.g. that the applicant is a liar and does not care about them, and exposing them to her antipathy towards the applicant e.g. Z said on 8 August 2018 “Mummy hates your sheets and she hates you, [N]” (each parent up to this point had been moving out of the main house during the time the children were in the care of the other parent) is nothing short of appalling. I find some consistency in what the respondent said to the children as reported by the applicant and what the respondent said to the children as reported by Ms O e.g. on 15 November 2018 Z said to Ms O – “I really love you [Ms O]. Mum says you tell lies.” Denigrating or undermining a significant adult in the children’s lives in such a way is harmful to the children.
Secondly, I was struck by the respondent’s lack of insight into the impact on the children of her parenting proposals. She did not demonstrate any awareness of the difficulties that would be faced by the children relocating to City BB.
Thirdly, the respondent’s conduct has not abated, which might be expected if it were an aberration e.g. on 6 April 2019 the respondent said to Y during a telephone call prior to the family report interviews – “You are a [Barry]. You remember that.” When the applicant found Y crying after the telephone call, Y said she was frightened about Wednesday (the day of the family report interviews). I find the respondent’s comments to Y were likely an attempt to influence Y to support the respondent in the family report interviews.
I am dismayed by the numerous petty and spiteful actions taken by the respondent which have added to the conflict and placed additional pressure on the children, for example:
a)The removal of the family dog, to City BB mid last year despite at least one if not all of the children’s considerable attachment to the dog. The respondent’s attempt to justify that act does her little credit;
b)Ignoring the applicant’s reasonable request to be involved in the decision about the extracurricular activities for the children at the commencement of 2019;
c)Permitting W to have her ears pierced knowing that such a decision was something the applicant strongly opposed;
d)Removing X’s iPad and scooter from the Suburb HH property when she is not there; and
e)Taking the children’s school awards without first showing the applicant.
I have no confidence that the respondent will be able to adequately recover her former high standards as a parent without therapeutic assistance over a significant period.
The applicant’s reluctance to agree to the children attending counselling was not unreasonable, in my view, for two reasons. Firstly, the older children did have assistance from the school clinical psychologist who expressed satisfaction with the children’s progress, and secondly, the impetus for counselling by the respondent seems more related to her attempt to obtain expert evidence that might assist her case.
I do not consider that the respondent has the capacity to join in the making of joint decisions with the applicant at this time. The respondent gave no indication that she would capitulate on her wish to change the children’s school. If I were to order equal shared parental responsibility, further court intervention is likely. That would not be in the children’s best interests.
Does the applicant have the capacity to encourage and facilitate the children’s relationship with the respondent and/or her family?
The applicant impressed as a parent who has maintained her focus on the children, save for the unnecessary and fraught decision to take the children to City U for a holiday without consulting the respondent in April 2018. Her conduct smacks of ‘tit for tat’ coming shortly after the respondent had removed the children to City BB just after separation. However, her focus since that time has been very much on attempting to limit the children’s exposure to conflict and to co-parent with the respondent.
The personal impact of the separation on the applicant has not been as acute as it has been on the respondent no doubt because the applicant instigated the separation. Nevertheless I consider the applicant’s attempts to manage the children’s upset and disappointment over the separation to be more child focussed than the respondent’s. The applicant has attempted to maintain stability and normality in the children’s day to day lives unlike the respondent.
The applicant has previously promoted the idea of equal time between the parties. The applicant’s proposal to reduce the children’s time with the respondent arose as the direct result of the respondent’s continuing conduct in aligning the children with her.
Does the respondent have the capacity to encourage and facilitate the children’s relationship with the applicant?
At present, and for the foreseeable future, the respondent’s capacity to encourage and facilitate the children’s relationship with the applicant is impaired by her grief and anger over the end of the parent’s relationship and her sense of entitlement in relation to the children.
According to Dr L, whose opinion I accept, “[X] and [Y] have now been placed in a position of turning their backs towards [the applicant] and are now burdened with a sense of betrayal”. Dr L agreed that if left unchecked, the likelihood is high that alignment will probably deepen and that with the passage of time, possibly in the next year or so, the two younger children will also align themselves preferentially with the respondent. He also opined that the children are likely to become more estranged from the applicant and that their relationship with the applicant is likely to be damaged possibly irreparably.
Unfortunately, the respondent’s negativity towards the applicant is echoed by her mother and sister. Neither of them could even acknowledge the extent of their criticisms of the applicant, saying during cross examination that their negative comments about the applicant were “the truth” rather than accepting them as criticisms.
Does the respondent have a mental health issue and if so, what impact if any, does it have on her parenting capacity?
While the applicant was pressed during cross-examination to admit she had her own personal concerns about the respondent having a mental health issue, there is no medical evidence to support that belief. Dr L raised the possibility of an adjustment disorder arising from the separation. However, it was not suggested that her parenting capacity was impaired as a result.
Conclusion on what parenting order is proper (s 65D(1))?
It is not in contention that the children have a strong and loving relationship with each parent (save for the development of an ‘alignment’ between the two older children and the respondent) and that the children will benefit from having a meaningful relationship with each of them.
Up until separation the children are likely to have spent more time with the respondent, who was not in employment. Since separation, the children have spent close to equal time with each party, although slightly more with the respondent. Despite the respondent’s description of herself as the primary carer, Dr L opined that the children would do well in the primary care of either parent depending upon how it was managed. I accept his opinion, but consider the applicant more likely to better manage a primary care role that would enable the children to maintain a meaningful relationship with both parents.
Dr L expressed a current concern about “mental issues” for the two older children arising from their deepening alignment with the respondent. He opined that the feeling of betraying one parent over the other “is having some significant impact on [X’s] emotional wellbeing”. Dr L described X as “fragile” when he saw him in April 2019 and recommended psychological assistance for the two older children, in particular. He said he was much more concerned about the children this year than when he saw them last year.
Dr L also stated that the impact of denigration on a child is cumulative and the process of alignment is a gradual one which can “snowball as time progresses over a number of months or years”. If left unchecked, he predicted that the alignment already evident in the two older children would deepen and also infect the two younger children. If that were to occur, the damage to the children’s relationship with the applicant may become irreparable. Dr L agreed that serious alienation was occurring at the moment and said:
… if her Honour believes that this alignment issue has taken to such an extreme extent and was likely to continue, which I am also concerned about, then change of residence to where one parent, [the applicant] in this case, has the primary role and that [the respondent] has the supplementary role may need to occur.
I have come to the conclusion that the two older children’s current alignment with the respondent and the likely ongoing impact of this on them and, in time, the younger two children, requires a change in the care arrangements so that the primary care role rests with the applicant. I consider the best arrangement for the children in the circumstances is to spend four nights in one week and one night in the alternate week with the respondent, as proposed by the applicant. This is more likely to quell the ongoing process of alignment by limiting the children’s exposure to the respondent and also ensure the children maintain a meaningful relationship with both parents. An ability to see the respondent each week is also more likely to assist in the change to the care arrangements rather than having the time spent in one block period. This arrangement will provide certainty and stability going forward because the children will spend every Thursday overnight with the respondent and alternate weekends with her. Changeovers will occur at the school during school term which will minimise the need for the parties to come into contact.
It follows that the children will remain in the City P and continue at their current school, which I find to best meet their interests.
I have no confidence that the respondent currently has the capacity or willingness to make joint decisions about the children with the applicant. The respondent’s conduct to date has left me pessimistic about an early return to her former child focussed self, e.g. the respondent continues to press for a change of school even if the children remain in City P. An order for equal shared parental responsibility would likely invite further legal proceedings.
Accordingly, I propose to order that the applicant have sole parental responsibility. An order for equal shared parental responsibility would not be in the children’s best interests and thus the presumption is rebutted (s 61DA).
I nevertheless have confidence in the applicant seeking to involve the respondent in decision making and taking on board any of her suggestions.
I propose to largely adopt the parenting order sought by the applicant save for the provisions to which both parties agree as set out in exhibit 7. The need for some of the provisions in the applicant’s proposed parenting order fall away because there will be an order for sole parental responsibility but I will include a provision, as suggested by the applicant, that she consult the respondent over major long term issues.
Property Settlement
I turn now to consider the financial issues in dispute.
Proposals
The applicant proposes that the property be divided in the proportion 70/30 in her favour and that the respondent’s application for spouse maintenance be dismissed.
The respondent proposes that the property be divided equally between the parties and that the applicant pay her spouse maintenance of $1,000 per week for three years.
Legal principles - property
The parties in this case are not married but have lived together in a genuine domestic relationship for about seventeen years. A de facto relationship includes a relationship between two people of the same sex (s 4AA).
Section 90SM(1) of the Act relevantly provides:
In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate … altering the interests of the parties to the de facto relationship in the property.
Section 90SM(3) relevantly provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 90SM(4) prescribes the matters that must be taken into account in considering what, if any, order is made under the section.
The High Court of Australia in Stanford v Stanford[10] dealt with a property settlement application involving a married couple but the propositions discussed by the High Court apply with equal measure to a de facto couple.[11]
[10] (2012) 247 CLR 108.
[11] Gao & Wang (2016) FLC 93-735 at 81,776, [19].
Those propositions are that in considering whether it is just and equitable to make an order, it is firstly necessary to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, the discretion as to whether or not to make a property settlement order, although extraordinarily wide, must nevertheless be exercised in a principled way. Thirdly, there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. The consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s 90SM(4). It is necessary to give separate consideration to s 90SM(3) and (4) and not to ‘conflate’ the two subsections.
Concessions
Concessions were made at the case management hearing and confirmed at trial as follows:
a)The applicant contends that contributions should favour her in the proportion 80/20 but concedes that there should be an adjustment in the respondent’s favour of ten percent for s 90SF(3) factors resulting in an overall division of 70/30;
a)The respondent concedes that contributions should favour the applicant but in the proportion 70/30 and contends for an adjustment of twenty percent in her favour resulting in an equal division of property.
It is further conceded by the respondent that the issue identified at the case management hearing, namely, the quantum of inheritances and gifts received by the applicant during the relationship, was no longer an issue. Perhaps curiously, when confirmation of the quantum was sought during submissions, the Court was informed that it was impossible to identify the total amount with certainty and, in particular, that the $4,800,000 sum received by the applicant in 2005 was subject to an “unquantified” tax liability. Despite the evidence from the applicant that the net funds were $4,300,000, this figure was not adopted during submissions. The impression the Court was left with was that the net figure may have been substantially less. It was nevertheless conceded by counsel for the respondent that both the initial contributions and contributions during the relationship, by way of inheritances and gifts, significantly favoured the applicant.
During cross-examination of the applicant, counsel for the respondent sought to put in issue, for the first time, the value of the initial share portfolio owned by the applicant at the commencement of the relationship. While the evidentiary onus rests on the party alleging a fact, the factual issues for trial were identified at the case management hearing and confirmed by counsel at trial. Counsel for the applicant contended that had this been identified as an issue in a timely manner, the applicant could have produced evidence to support her contention. The challenge to the share portfolio value was not pressed. I nevertheless observe that the realisation sums would be more relevant than the value attributed to the shares as at commencement of the relationship.
Asset Pool
The assets and liabilities of the parties or either of them are agreed. I have included in the table below one add back only, at item 19. The add backs contended for by each party are discussed after the table below:
| ASSETS | |||||||||||||
| Ownership | Description | Value | |||||||||||
| 1 | Applicant | JJ Street, Suburb HH, Queensland | 1,150,000 | ||||||||||
| 2 | Applicant | 10 ordinary shares in H Pty Ltd | 0 | ||||||||||
| 3 | Applicant | Loan to H Pty Ltd | 0 | ||||||||||
| 4 | Applicant | 1 ordinary share in C Pty Ltd | 2,899 | ||||||||||
| 5 | Applicant | 40 ordinary shares in D Pty Ltd | 0 | ||||||||||
| 6 | Applicant | 1 ordinary share in F Pty Ltd | 431,076 | ||||||||||
| 7 | Applicant | Loan to F Pty Ltd | 159 | ||||||||||
| 8 | J Unit Trust | 0 | |||||||||||
| 9 | Joint | Interest in V Trust | 47,459 | ||||||||||
| 10 | Joint | Interest in Q Trust | 278,983 | ||||||||||
| 11 | Joint | Interest in DD Trust | 10 | ||||||||||
| 12 | Joint | Interest in FF Trust | 701,421 | ||||||||||
| 13 \ | Joint | Interest in GG Trust | 10 | ||||||||||
| 14 | Applicant | Funds in ANZ Bank account …11 | 4,182 | ||||||||||
| 15 | Respondent | Funds in Westpac Bank eSaver account …18 and Westpac Bank Choice account …85 | 8,863 | ||||||||||
| 16 | Joint | Funds in joint ANZ Bank account | 240 | ||||||||||
| 17 | Applicant | Vehicle 1 | 22,000 | ||||||||||
| 18 | Applicant | Vehicle 2 | 60,000 | ||||||||||
| 19 | Respondent (add back) | Partial property settlement | 75,000 | ||||||||||
| Total | 2,782,302 | ||||||||||||
| LIABILITIES | |||||||||||||
| Ownership | Description | ||||||||||||
| 20 | Applicant | Mortgage secured against JJ Street, Suburb HH, Queensland | 0 | ||||||||||
| 21 | Applicant | ANZ Bank credit card number ending …26 | 10,219 | ||||||||||
| 22 | Applicant | Westpac Bank – novated lease secured against Vehicle 2 at Item 18 | 40,240 | ||||||||||
| 23 | Applicant | Loan from C Pty Ltd | 5,671 | ||||||||||
| 24 | Respondent | Loan from C Pty Ltd | 3,375 | ||||||||||
| 25 | Joint | Tax implications of realising funds to satisfy payment from [Ms Maurice] to Ms Barry by way of adjustment of property interests | |||||||||||
| 26 | Applicant | Directors’ liability on liquidation of H Pty Ltd | 150,000 | ||||||||||
| 27 | Applicant | Legal fees associated with liquidation of H Pty Ltd | |||||||||||
| Total | 209,505 | ||||||||||||
| Net assets | $2,572,797 | ||||||||||||
| SUPERANNUATION | |||||||||||||
| Member | Name of Fund | Type of Interest | |||||||||||
| 28 | Applicant | X Superannuation Fund | Self-Managed Superannuation Fund | 130,284 | |||||||||
| 29 | Respondent | X Superannuation Fund | Self-Managed Superannuation Fund | 1,173 | |||||||||
| Total | $131,457 | ||||||||||||
| TOTAL ASSETS (INCLUDING SUPERANNUATION) | $2,704,254 | ||||||||||||
The family was financially provided for by the applicant throughout the relationship and subsequent thereto. The school fees alone are a significant impost of about $52,000 per annum.
The respondent sought to convey the impression that the applicant was controlling over financial matters during the relationship. I reject that contention. It is more likely that the parties agreed either tacitly or explicitly for the applicant to manage the family’s finances and for the respondent to manage more of the day to day family arrangements.
Conclusion as to contributions
It is conceded by the respondent that the financial contributions greatly favour the applicant including her initial contributions,[26] gifts,[27] and inheritances[28] and that these contributions should be recognised in the assessment of contributions in the applicant’s favour. The agreed quantum of the applicant’s gifts and inheritances is at least $2,880,000 (not including any of the uncertain net benefits received from the gross sum of $4,800,000 received in 2005 and noting that the applicant used some of the money gifted in 2016 to pay her own legal fees). While I cannot quantify the net benefits received in 2005, I assume that there were some net benefits as the applicant deposes to the use of funds received for various purposes and she was not challenged about that. It is also agreed that the applicant contributed the proceeds of sale of her original home, a sum of $331,000, which was used to purchase the Suburb CC property and ultimately the Suburb HH property. In addition, the applicant had a large share portfolio at the commencement of the relationship.
[26] The relevance of a disparity in initial contributions is but another factor to take into account when assessing what weight should be attached to all contributions in the particular circumstances of each case. Regard must also be had to the use made by the parties of an initial contribution. Pierce & Pierce (1999) FLC 92-844 at 85,881.
[27] Gifts received by one party are generally treated as a contribution by the party in receipt. Kessey & Kessey (1994) FLC 92-495 at 81,150.
[28] “An inheritance does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.” Bonnici & Bonnici (1992) FLC 92-272 at 79,020.
It is also conceded that the applicant made contributions as homemaker and parent although it is not conceded by the respondent that the applicant’s contributions were to the same extent as the respondent’s. I find that the respondent’s contributions as homemaker and parent were significantly greater than the applicant given that the applicant worked full time.
This is a long relationship and the respondent’s contributions as a homemaker and parent require recognition “not in a token way but in a substantial way”.[29] Although the parties were assisted by paid help at times, the respondent’s homemaker and parent contribution is not thereby diminished to any great extent.
[29]Mallett v Mallett (1984) 156 CLR 605 at 609.
After separation, each party contributed largely equally in the homemaker and parent role and the applicant continued to financially support the children.
I conclude that, when assessing the respective contributions of each party, the overall contributions favour the applicant in the proportion 70/30. It is important to recognise that this assessment creates a disparity of forty percent in favour of the applicant, which I consider to be appropriate in the unique circumstances of this case.
Other matters that must be taken into account – s 90SM(4) and s 90SF(3)
Additional matters that must be taken into account are referred to in 90SM(4) which directs attention to s 90SF(3) as far as relevant. The most significant matters identified by the parties are the superior earning capacity of the applicant and her ongoing contribution to the support of the children.
The applicant is 53 and the respondent is 43. They each enjoy good health.
The parenting order I propose to make will see the children live with the applicant for nine nights per fortnight and with the respondent for five nights per fortnight.
The parties have enjoyed a comfortable standard of living throughout their relationship and it is reasonable to expect that each of them will continue to do so in the future, although there can be no expectation that the standard of living will necessarily be the same.
During their relationship, the parties agreed that the respondent would not resume employment and would be available full time to care for the children. The respondent has been out of the workforce for fourteen years. This may well have an impact on her earning capacity.
Although the parties have been separated since February 2018, the respondent has made no attempt to obtain any form of employment or undertake any training, despite her stating that she wants to be employed or undertake study. The respondent contends that she did not do so because no decision had been made about where she would be living. That is a rather unconvincing excuse because even on her own evidence there are a number of courses that she could have completed in a matter of months. I do take into account, though, that the respondent was particularly devastated by the end of the relationship and this may have impacted to some degree on her motivation to move on with her life.
A human resources consultant called by the applicant opines that, taking into account the respondent’s limited employment history, the respondent could nevertheless earn a total salary package at entry level of $42,400 (including leave loading and superannuation) in the child services sector or $48,270 (including leave loading and superannuation) in retail. Longer term it was estimated that the respondent could earn in the vicinity of $63,000.
The applicant’s taxable income in the 2018 financial year was $100,689 however the applicant stood down from her role in H Pty Ltd in about April 2018 which may have resulted in a reduction in income for that financial year. The applicant also undertakes company board roles for which she is paid. In 2018 her income from such roles was $40,000. The applicant expressed an intention to continue her directorships if not expand them and to recommence work. Her expectation is that she will be able to earn similar to what she has earned in the past while maintaining flexibility to work substantially from home. While it was submitted that the applicant’s earning capacity was likely to be in the vicinity of $60,000 per annum, I have reviewed the applicant’s affidavits and her oral evidence and have concluded that it is more likely that her income will exceed that suggested figure although her primary care role for the children may well impact on her earning capacity.
The ongoing financial burden for the children is likely to largely fall on the shoulders of the applicant.
My assessment on contributions would see the respondent receive assets to the value of $811,276.20 (including the notional add back of $75,000).
One other matter that I take into account is that from the respondent’s settlement, she will have to pay outstanding legal fees of $276,129.15 whereas the applicant’s legal fees have been paid.
Overall then, I consider a further ten percent or $270,425.40 would be an appropriate adjustment.
Conclusion on what property settlement order is appropriate – s 90SM(1)
I have determined that an appropriate division of the assets is in the proportion 60/40 in favour of the applicant, a disparity of twenty percent. This will require a cash payment to the respondent of $974,666 and she will retain her bank account balance, Vehicle 1 and superannuation. She will be required to pay her outstanding legal fees from this sum.
The parties have agreed on various machinery provisions to be included in the order.
Spouse Maintenance
After the breakdown of a de facto relationship a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship (s 90SE). The court must apply the principle that a party to a de facto relationship must maintain the other party only to the extent that the first-mentioned party is reasonably able to do so and only if the second-mentioned party is unable to support herself adequately (s 90 SF(1)).
In determining whether a party is unable to support herself adequately, whether by reason of having the care and control of children, by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason, the matters identified in s 90SF(3) are the only matters that are to be taken into account (s 90SF(2)).
Both the need for maintenance by the respondent and the capacity to pay by the applicant are in issue.
The respondent, as already noted, has made no attempt to retrain or obtain employment since separation in February 2018. The respondent contends that she intends to obtain employment but suggests that she should receive maintenance of $1,000 per week for three years. No evidence from the respondent supports the need for maintenance for three years. Any of the courses she proposes undertaking are for considerably shorter periods and the employment consultant opined that the respondent would be able to obtain employment without retraining.
The parenting order I propose to make will not interfere with the respondent’s availability for employment.
While the applicant will have a significantly greater financial burden for the children which is likely to diminish any significant capacity to pay maintenance from her income, she will have capital from which she could contribute to the respondent’s maintenance.
The weekly expenses claimed by the respondent ($937 Part N in her financial statement) were unable to withstand challenge during cross-examination and I find that some of her claimed expenses are exaggerated e.g. car maintenance, replacement of appliances etc. However, the respondent also has rent of $530 per week. Even allowing for a reduction in some of her claimed expense as being unreasonable the quantum of maintenance claimed of $1,000 is not unreasonable in the circumstances.
The respondent does have the capacity for employment despite being out of the workforce for many years. While a long time ago, I would have thought her previous employment experience might well assist her in obtaining a position in a related field. In any event, the employment consultant was confident in the respondent’s ability to obtain employment in child services or retail given the significant shortage of workers in those fields.
The respondent will need time to apply for appropriate positions. Accordingly, I consider a reasonable period for payment of maintenance is three months.
I certify that the preceding one-hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 29 May 2019.
Associate:
Date: 29 May 2019
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