MCGUIRE & MCGUIRE

[2019] FamCA 613

FAMILY COURT OF AUSTRALIA

MCGUIRE & MCGUIRE [2019] FamCA 613

FAMILY LAW – PARENTING – Where there are four children – Where the dispute is limited to one night a fortnight – Where the children express views for the arrangements to continue without change – Orders made for equal shared parental responsibility – Orders made for children to live with the mother and spend time with the father.

FAMILY LAW – PROPERTY – Where it is just and equitable to make a property alteration – Where parties agree their contributions should be assessed as equal at the date of trial – Where the wife seeks a 25 per cent adjustment of the proceeds of the former matrimonial home and the husband seeks only 20 per cent adjustment to the wife – Where it is just and equitable for the wife to receive a 25 per cent adjustment – Where both parties agree to a superannuation splitting order – Orders made

Family Law Act 1975 (Cth) ss60B, 60CC, 61DA, 61DAA, 72, 79

MRR v GR (2010) 240 CLR 461
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr McGuire

RESPONDENT: Ms McGuire

INDEPENDENT CHILDREN'S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4703 of 2016

DATE DELIVERED: 30 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 12-14 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: Dowson Turco Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Kerr

SOLICITOR FOR THE RESPONDENT: Bernard Kerr Solicitor

INDEPENDENT CHILDREN'S LAWYER: Ms Karagiannis

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

Orders

PARENTING ORDERS

1. All previous parenting Orders in relation to the children:

   ·B born on … 2003

   ·C born on … 2005

   ·D and E born on … 2007 ("the children")

   are discharged.

2. The parties have equal shared parental responsibility for the children.

3. The children live with the mother.

4. B and C spend time with the father as follows:

   During school terms

   4.1each alternate weekend commencing on the first Friday of each term, from the conclusion of school or 3.30 pm on Friday until school resumes or at 9.00 am on Monday

   4.2for a maximum of two additional nights in each week from the conclusion of school, if either or both children elect to spend such additional time with the father

   4.3at such other times as may be agreed

5. D and E spend time with the father as follows:

   During school terms

   5.1until D and E attain the age of 14 years:

   5.1.1each alternate weekend, coinciding with time for B and C, from the conclusion of school or 3.30 pm on Friday until school resumes or at 9.00 am on Monday

   5.1.2on the Wednesday immediately after the weekend referred to in Order 5.1.1 from the conclusion of school or 3.30 pm until school resumes or at 9.00 am on Thursday

   5.1.3for one night in the other week from the conclusion of school or at 3.30 pm until school resumes the following day, in the event that the children elect to spend such additional time with the father

   5.1.4at such other times as agreed in writing

   5.2once D and E attain the age of 14 years, they spend time with the father in accordance with the arrangements set out in Order 4 above for B and C.

6. For the purposes of facilitating the time referred to in these Orders, where changeovers do not take place at the children's school, and unless otherwise agreed between the parties, each parent or his or her agent will collect the children from the other parent's home at the commencement of his or her time with the children, and return the children to the other parent's home at the conclusion of this time.

School holidays

1. The children spend time with each parent for one-half of each of the school

   
   

   mid-term holiday periods as defined by the school attended by each child, as follows:

   7.1with the mother in the first half in all even-numbered years and the second half in all odd-numbered years

   7.2with the father in the first half in all odd-numbered years and the second half in all even-numbered years and

   7.3with changeover to take place at 12 noon on the middle Saturday of the holiday period.

2. The children spend time with each parent during the Christmas school holiday period as defined by the school attended by each child, as follows:

   8.1with the mother, to commence on the final day of school or 3.30 pm and to conclude at 12 noon on the day half way through the entire holiday period in all even-numbered years and the second half commencing 12 noon on the day half way through the entire holiday period in all

   
   

   odd-numbered years

   8.2with the father, to commence on the final day of school or 3.30 pm and to conclude at 12 noon on the day half way through the entire holiday period in all odd-numbered years and the first half to commence on the final day of school or 3.30 pm in all even-numbered years and conclude at 12 noon on the day half way through the entire holiday period

   8.3at such other times as agreed in writing.

Special Days

1. Each child spend time on their birthday with the parent with whom they are not otherwise living with as follows:

   9.1if on a school day from the conclusion of school or 3.30 pm until 7.30 pm; and

   9.2if on a non-school day (weekend day, public holiday, pupil free day or school holiday) from 10.00 am until 7.30 pm.

2. In the event that the mother's or father's birthday falls during a period that the children are living with the other parent, the children spend time with the parent celebrating the birthday as follows:

   10.1if on a school day, from the conclusion of school or 3.30 pm until 7.30 pm and

   10.2if on a non-school day (weekend day, public holiday, pupil free day or school holiday) from 10.00 am until 7.30 pm

3. In the event that Father's Day falls during a period the children are living with the mother, the mother's time is suspended and the children spend time with the father from 4.00 pm the day before until 7.30 pm on Father's Day.

4. In the event that Mother's Day falls during a period the children are living with the father, the father's time is suspended and the children spend time with the mother from 4.00 pm the day before until 7.30 pm on Mother's Day.

International travel

1. Both parties do all things necessary to ensure that the children hold a current passport at all times.

2. The mother hold the children's passports in safe custody.

3. The mother and father are at liberty to take the children out of Australia for the purposes of an overseas holiday and the passport is released to that party providing that:

   15.1a detailed itinerary of travel is provided to the other parent no less than two weeks prior to the scheduled holiday; and

   15.2emergency contact details are provided to the other parent no less than two weeks prior to the travel commencing; and

   15.3the parent travelling with the children ensures that the children telephone the other parent upon arrival at the destination and at regular intervals during the holiday period.

Costs

1. The father pay the sum of $5,060.50 to Legal Aid NSW on account of the costs of the Independent Children's Lawyer herein within 60 days.

2. The mother pay the sum of $5,060.50 to Legal Aid NSW on account of the costs of the Independent Children's Lawyer within 21 days of receipt of her entitlement to the net proceeds of sale of the former matrimonial home at F Street, Suburb M, pursuant to orders for alteration of property interests made simultaneously with these orders.

ORDERS FOR ALTERATION OF PROPERTY INTERESTS

1. Each of the parties do all things and execute all documents required to effect forthwith the sale, for the best price reasonably obtainable, of the former matrimonial home situate at and known as F Street in the State of New South Wales and to distribute the proceeds of such sale as follows:

   18.1    in discharge of the mortgage registered on the title to the property

   18.2    in payment of council and water rates

   18.3    in payment of legal costs and expenses incidental to the sale

   18.4    in payment of real estate agent's commission and expenses

   18.5in payment of an amount equal to 75 per cent of the balance then remaining to the wife

   18.6in payment of the balance to the husband.

2. From the sale proceeds which the husband receives pursuant to Order 18, he pay to the wife a sum of $26,488 on account of arrears of spouse maintenance accrued pursuant to interim orders made on 29 March 2018.

3. Orders 20.1 to 20.4 are binding on the trustees of the Superannuation Fund 1 and Superannuation Fund 2, subject to the wife serving notice of these proposed Orders on such trustees and they having liberty to apply to be heard on 14 days' notice:

   20.1a superannuation splitting Order is made in relation to the interest of the husband in the Superannuation Fund 1:

   20.1.1whenever a splittable payment in respect of the superannuation interest of the husband is payable in the superannuation fund, the wife is entitled to be paid an amount of $91,827 and there is a corresponding reduction in the entitlement of the husband

   20.2a superannuation splitting order is made in relation to the interest of the husband in the Superannuation Fund 2:

   20.2.1whenever a splittable payment in respect of the superannuation interest of the husband is payable in the superannuation fund, the wife is entitled to be paid an amount of $91,827 and there is a corresponding reduction in the entitlement of the husband

   20.3Orders 20.1 and 20.2 have effect from the operative time

   20.4the operative time for the purposes of these Orders is four business days from the expiration of a period of 21 days from service upon the trustees of the Superannuation Fund 1 and Superannuation Fund 2, provided that the trustees have not exercised the liberty to apply as provided in Order 20 hereof.

4. The husband indemnify the wife and keep her indemnified in respect of the liabilities for school fees payable to St Joseph's College.

5. The Orders of 29 March 2018 are discharged.

6. Otherwise, all outstanding Applications and Responses herein, with the exception of the Application – Contravention of the wife filed on 28 March 2019 are dismissed.

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 McGuire & McGuire 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 SYDNEY

FILE NUMBER: SYC 4703  of 2016

Mr McGuire

Applicant

And

Ms McGuire

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. The applicant, Mr McGuire, and the respondent, Ms  McGuire, are parties to litigation in relation to parenting and financial issues.  The parenting issues concern the four children of the parties:

   ·B born in 2003 (16)

   ·C born in 2005 (14)

   ·D and E born in 2007 (12).

2. The father sought parenting orders which may be summarised as follows:

   1.        the parties have equal shared parental responsibility for the children

   2.        the children live with the mother

   3.B and C spend school term time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;  from the conclusion of school each Wednesday until the commencement of school each Thursday and for a maximum of two additional nights per week in accordance with their wishes

   4.until D and E attain 14 years, they spend school term time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday; from the conclusion of school each Wednesday until the commencement of school on Thursday and for one additional night in every alternate week in accordance with their wishes

   5.when D and E attain 14 years of age, they spend time with the father in accordance with the arrangements proposed for B and C

   6.all four children spend half of the school holidays with the father, as defined by the school which they attend from time to time.

3. The father also sought orders the children spend time with each parent on special occasions and to permit them to travel overseas with each of the parties.  At the conclusion of the trial, counsel for the father indicated that he consented to orders for family therapy as proposed by the Independent Children's Lawyer ("the ICL").

4. The respondent mother sought parenting orders which may be summarised as follows:

   1.        the parties have equal shared parental responsibility for the children

   2.        the children live with the mother

   3.the children spend school term time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and on Wednesday nights in each alternate week

   4.the children spend time with each parent for half of all New South Wales gazetted school holidays

   5.the children spend time with each parent on special occasions

   6.each parent be at liberty to travel overseas with the children.

   The mother also consented to orders for family therapy as proposed by the ICL.

5. The ICL supported the making of parenting orders substantially in accordance with the proposal of the father.  As noted, the ICL sought orders that the parents and children engage in family therapy.

6. By way of property settlement, the husband proposed that the wife receive an amount equivalent to 70 per cent of the net proceeds of sale of the former matrimonial home at F Street, Suburb M.  He proposed further that there be a splitting order "to the husband's superannuation account into the wife's name so each party has an equal superannuation interest in that fund."  The husband agreed to pay to the wife, from his share of the sale proceeds, an amount equal to all arrears of spouse maintenance pursuant to interim orders made on 29 March 2018.

7. By way of property settlement, the wife sought orders to the effect that she receive an amount equivalent to 75 per cent of the net proceeds of sale of the former matrimonial home.  The wife sought that she be reimbursed, from the net sale proceeds, for half of all council and water rates which she has paid since November 2016.  She sought also that the husband pay to her an amount equal to all arrears accrued pursuant to the interim orders of 29 March 2018 together with interest at an unspecified rate.  The wife sought that "a splitting order be made to the husband's superannuation account into the wife's name so that each party has equal superannuation interests."

8. The wife sought an order that the husband pay spouse maintenance of $1,000 per week from the date of settlement of the sale of the former matrimonial home until 27 February 2036.  Initially, the wife sought an order for spouse maintenance of $1,000 per week for an indefinite period.  She sought an order that the husband pay spouse maintenance of $271 per week until settlement of the sale of the former matrimonial home.

9. The ICL sought an order that each of the parties pay an amount of $5,060.50 on account of her costs within 60 days.  The father consented to this order and the mother agreed to pay this sum from her share of the proceeds of sale of the former matrimonial home.  This proposal of the mother was accepted by the ICL.

Background

1. The mother was born in 1970 in Tunisia and moved to Country S as a baby with her family.  The father was born in 1971 in Australia.  The parties commenced cohabitation in London in January 1999 and moved to Sydney in June 2000.  They married in Australia in 2002.

2. The husband deposed that, at the commencement of the relationship, he owned a residential property in Queensland subject to a small mortgage and that he held approximately $300,000 in savings.  The wife deposed that she had savings equivalent to approximately $7,000 and shares to the value of about $6,000 not long after the commencement of the relationship.  In June 2001 the wife's parents gifted to her a one-third interest in a studio apartment in City T and she simultaneously purchased an additional one-third share in this property.

3. Both parties held paid employment in Sydney until the wife commenced maternity leave in November 2002.  The wife re-entered the paid workforce in October 2015, when she commenced part-time employment.

4. In February 2005 the parties purchased jointly the former matrimonial home at F Street, Suburb M for $772,500.  This purchase was funded by savings of approximately $320,000, a Z Bank mortgage of approximately $430,000 and a gift of $45,000 from the husband's parents.

5. All of the children attended State schools for their primary education.  In January 2015 B commenced Year 7 at School G.  C and the twins also began to attend this school at the beginning of their high school education.

6. The husband has entered into an arrangement with School G, whereby the school accepts a total amount of $95,000 per annum on account of fees for all four children.  The school fees have always been paid by the husband, with assistance from his parents.

7. In 2015 the parties increased their mortgage debt from $100,000 to $1,100,000, in order to demolish and rebuild the former matrimonial home.  The new mortgage repayments amounted to $4,000 per month, which the parties agreed to contribute equally.

8. The parties separated under one roof on 5 December 2015.  The wife had travelled to Country S to visit her family on 21 December 2015 and returned to Australia on 8 January 2016.  By the time of the wife's return to Australia, the husband had entered into a relationship with his current fiancé Ms G.

9. In June 2016 the wife commenced full-time employment, for which she received a net salary of $967 per week.  This employment was terminated in April 2017 and the wife received a net payment of $10,495.  She commenced new employment in June 2017, for a net salary of $918 per week.  On the termination of this position in October 2017, the wife received a net payment of $2,411.  She commenced her current employment in November 2017 and receives a net weekly salary of $1,046.

10. The father's fiancé Ms G lives in Brisbane.  From 2016 he has spent regular time in Brisbane, where he carried out some work tasks initially for his previous employer and now for his current employer.  He also spends weekend time in Brisbane.

11. On 16 March 2017 the father left the former matrimonial home and moved into rented accommodation.  The mother and the children remained living in the former matrimonial home in Northern Sydney.  The father lived initially at Suburb P and currently resides at Suburb Q, both of which suburbs are in close geographical proximity to the children's school.

12. The parties consented to interim parenting orders on 30 November 2017.  These orders may be summarised as follows:

    1.        the parties have equal shared parental responsibility for the children

    2.        the children live with the mother

    3.B and C spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday

    4.D and E spend school term time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and on Wednesday night in the other week

    5.the children spend time with each party for half of all New South Wales gazetted school holidays

13. Senior Registrar further ordered that B and/or C spend school term time with the father for a maximum of two additional nights per week at their election.

1. In December 2017 the husband received a bonus of $52,597 from his then employer.  He used this money to pay credit card debts and private school fees;  to repay part of monies advanced by his parents and for Christmas presents and expenses for the children during their holidays.

2. In February 2018 the husband received a payment of $35,309 from his employer, which included a termination benefit.  He resigned from Z Bank and took on employment as head of strategic acquisitions with another company known.

3. On 29 March 2018 interim orders were made after a defended hearing.  The husband was ordered to pay periodic spouse maintenance of $271 per week to the wife until the earlier of a final hearing or 113 weeks.  The husband was also ordered to pay lump sum spouse maintenance of $21,107, being accrued arrears pursuant to the mortgage on the former matrimonial home.

4. The husband stopped paying periodic spouse maintenance on 26 January 2019 and paid only $2,206 on account of the lump sum of $21,106.  The husband agreed to pay to the wife from his share of the sale proceeds of the former matrimonial home a total sum of $26,488 in discharge of these arrears.

5. Between May and September 2018 the wife received rental of $300 per week from one Mr W, who occupied a room in the former matrimonial home.  Mr W moved out of the former matrimonial home in October 2018 but returned in January 2019.  The evidence was unclear in relation to the financial arrangements between the wife and Mr W.

6. On 15 September 2018 the mother travelled to Country S with the twins for the wedding of her niece.  They returned to Australia on 6 October 2018.  During this period B and C boarded temporarily at School G, rather than spending this time with the father.

7. On 13 January 2019 the children and Ms G had a heated argument during a holiday in Queensland.  Regrettably, C recorded this altercation and sent a copy of the video to the mother.

8. In my view, this incident reflects poorly on each of the mother, the father and Ms G.  The father allowed the altercation to continue and escalate, rather than taking steps to control the situation.  Ms G saw fit to abuse the children, in obscene and insulting terms.  The mother took it upon herself to prepare a transcript of the altercation and use the incident in these proceedings.

9. To the father's credit, however, he sought professional assistance after these regrettable events.  He deposed that he has benefitted from the advice of this psychologist.

10. The father indicated that he and Ms G have deferred their marriage plans and have no intention to live together in the near future.  The father said that he intends to spend time with the children alone at Noosa during the next Christmas school holidays, presumably at the home of his parents.

Parenting Orders

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:

   “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

   “(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

   Sub-section (3) explains what is meant by the phrase “substantial and significant time.”

   9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  
   Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.

   …

   13.Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.  The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made.  A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.  It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.  If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered.  That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…

   (footnotes omitted)

6. The parenting issues in these proceedings fell within a narrow compass.  It was agreed that there be an order for equal shared parental responsibility thus I am required to consider whether it is in the children's best interests, and reasonably practicable, that they spend equal or substantial and significant time with both the mother and the father.

7. Neither party sought orders for an equal-time arrangement and no such proposal was made by the ICL.  B and C, who are aged 16 and 14, told the Family Consultant that they "would not like" a week-about arrangement.  In these circumstances, it seems to me to be unnecessary that I give any further consideration to an equal-time regime.

8. In my view, the proposals of each of the parents and the ICL would fall within the parameters of "substantial and significant time".  Accordingly, I will determine the narrow parenting issues by reference to the best interests of the children.

Primary considerations

1. These two considerations do not play a significant role in the present proceedings.  The evidence indicated no need for protection of the children for abuse or harm.  In my view, the proposals of each of the parties can be construed as mutual concessions that the children currently benefit from a meaningful relationship with each parent and will continue to do so in the future.

Additional considerations

1. I will refer only to those considerations set out in section 60CC(3) which are relevant to the present proceedings.  Clearly, some of these considerations have no application to the resolution of the narrow parenting issues.

2. B told the Family Consultant that he "is happy with the current parenting arrangement".  C expressed the same opinion to the Family Consultant during his interview.  Both B and C indicated to the Family Consultant that they spend additional time with the father when they choose to do so.  The Family Consultant reported that C "said he feels free to spend time with his father as he wishes".

3. D told the Family Consultant that he wishes to spend "the current amount of time with his father".  He added that he "does not want to spend more time with the father than the current amount".

4. When the Family Consultant asked E "about the possibility of spending more time with his father", he replied "yeah, that'd be alright".  He then added, however, that his preference would be "for the arrangement to stay as it is".

5. The Family Consultant did not support an increase in the amount of

   
   

   court-ordered time which the children spend with the father.  She opined as follows:

   92.While it is possible that Ms McGuire has behaved in a way which has placed strain on the children's relationship with their father, interviews with the children suggested it may be primarily Mr McGuire's own behaviour which has caused the relationship to be strained.  When interviewed for the Child Responsive Program and for this current assessment, the children described their father as having behaved in a quite insensitive manner towards them at various times.  As such, Mr McGuire may need to accept some responsibility for the difficulties in his relationships with the children.  It seems clear that one of the main sources of difficulties in the children's relationship with their father is in regards to his relationship with Ms G ...  If Mr McGuire can acknowledge the children's feelings and be sensitive to how they feel about Ms G, the children will, hopefully, over time come to accept the situation.  In terms of the parenting arrangements, if Mr McGuire has not been very sensitive to the children's feelings in the past, it would be unlikely to assist his relationship with the children, D in particular, for them to spend one extra night per fortnight with him.

6. For these reasons, I am not satisfied that parenting orders as proposed by the father, in relation to allocation of school term time, would be in the best interests of the children.  The reality is that these children will increasingly make their own decisions and arrangements as to the time which they spend with each of their parents.  I will make orders as proposed by the ICL in relation to the children's school term time with the father.

7. The issue of the children's school holiday time with the father essentially involves an arbitrary decision.  Ultimately, I can see no good reason why holiday time should be defined by a regime which does not apply to the school attended by the children.

8. I am unpersuaded by the mother's contention that New South Wales gazetted time should apply because the father has insufficient holidays to be with the children personally at all times.  That reality exists for many children of separated parents in Australian society.  Accordingly, I will make orders as proposed by the father and the ICL in relation to school holiday time.

Alteration of property interests

Approach to these proceedings

1. In Stanford v Stanford (2012) 247 CLR 108 the majority of the High Court of Australia held as follows at [35]:

   It will be recalled that s 79(2) provides that “[t]he court shall 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 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. Their Honours further observed as follows at [42]:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.

   That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

3. The application of section 79 of the Act will determine what orders should be made for alteration of property interests. It is first necessary to determine the assets, liabilities and financial resources of the parties. All relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4), must be identified and weighed against each other. The matters set out in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2), must be considered and a determination made as to what if any alteration should be made to the entitlements of the parties as earlier assessed on account of contribution.

4. The major asset of the parties is the matrimonial home, which they own as joint tenants.  Accordingly, there must be orders for alteration of property interests if the proceeds of sale of that property are to be distributed between the parties.  Both the husband and the wife sought orders for alteration of property interests.  For these reasons, I am satisfied and I find that it is just and equitable that there be orders for alteration of property interests.

The assets, superannuation, liabilities and financial resources of the parties

1. The parties submitted a Balance Sheet in the following terms:

Ownership		Description	Wife’s value		Husband's value
ASSETS
1	J	F Street, Suburb M NSW		$2,150,000	$2,150,000
2	H	CBA CommSec shares (4)		$329	$329
3	H	Motor vehicle 2 no. …		$12,000	$12,000
4	W	Motor vehicle 3 no. …		$34,000	$34,000
5	H	Z Bank Choice Account no. …28		$572	$572
6	W	CBA Account no. …42 BSB …		$262	$262
7	W	CBA Account …67 BSB …		$2,420	$2,420
8	W	CBA Account no. …92 BSB …		$952	$952
9          9	W	H Bank Account no. …17		$1,978	$1,978
10	H	Household contents		$5,000	$5,000
11	W	Household contents		$5,000	$5,000
Total		$2,212,513	$2,212,513

LIABILITIES
12	J	CBA Mortgage on F Street, Suburb M NSW			$1,136,550	$1,136,550
13	H	Car Finance			$12,000	$12,000
14	W	Car finance			$31,431	$31,431
15       1	H	Personal loan * see notes			$ Nil *	$135,912
16	H	CBA Credit card			$12,750	$12,750
17	H	Z Bank Credit Card			$8,520	$8,520
18	H	School G tuition fees			$47,838	$47,838
19	H	Legal fees			E$375,000	E$375,000
20	W	Legal fees			E$140,000	NK
Total		E$1,764,089	E$1,760,001
SUPERANNUATION
Member		Name of Fund	Type of Interest		Wife/de facto partner's value	Husband/de facto partner's value
21	H	Super Fund 1	Accumulation		$299,154	$299,154
22	H	Super Fund 2	Accumulation		$93,176	$93,176
23	W	Super Fund 3	Accumulation		$9,314	$9,314
24	W	Super Fund 4	Accumulation		$15,708	$15,708
Total		$417,352	$417,352
FINANCIAL RESOURCES
Ownership		Description		Wife/de facto partner's value		Husband/de facto partner's value
25	W	City T property, Country S			100,000	100,000
26	H	Financial support from parents including payment of school fees and expenses			U/K	NIL
Total		$100,000	$100,000

Notes

In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:

1. Why an item should not be on the balance sheet.

2. Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.

3. Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.

4. Any other comment a party wishes to make in relation to the disputed item.

Item No
15	W does not agree that the H has a debt to his parents

1. Accordingly, there was no dispute as to the nature and value of the parties' assets and superannuation.  It was agreed that the wife's interest in the studio apartment in Country S is a financial resource, with a value of $100,000.

2. The wife sought to include in the Balance Sheet an entry "financial support from parents including payment of school fees and expenses" as a financial resource of the husband.  I do not accept this submission for two main reasons.  Firstly, these advances are the subject of a loan agreement dated 23 April 2016 which was executed by the husband and his parents (Exhibit 5).  Secondly, these benefits can be discontinued at any time in the sole and unfettered discretion of the husband's parents.

3. It does not follow, however, that I accept that these advances should be taken into account in the calculation of the value of the net pool of assets and superannuation.  The husband candidly conceded in his affidavit that his parents are most unlikely to take legal action against him to secure repayment.  I have no reason to doubt the husband's evidence that he feels a moral obligation to repay his parents.  Given that there is no realistic prospect of enforcement, however, I will not include this sum of $135,912 as a liability in the Balance Sheet.

4. I will not include the husband's credit card debts as liabilities for the purposes of calculation of the net pool.  In my view, it is more probable than not that these liabilities are post-separation debts of the husband.  I will disregard the liabilities of each of the parties for legal fee in the calculation of the value of the net pool.

5. I will take into account the debt of $47,838 for outstanding fees payable to School G.  I am unpersuaded by the wife's contention that the children attend this private school without her concurrence.  She has taken no steps to cause the children to be removed from this school and has signed documents in relation to their enrolment.  The reality is that these fees will be paid by the husband, possibly with the assistance of his parents.

6. I find the assets, superannuation, liabilities and financial resources of the parties to be as follows:

Ownership		Description		Wife’s value		Husband's value
ASSETS
1	J	F Street, Suburb M NSW			$2,150,000	$2,150,000
2	H	CBA CommSec shares (4)			$329	$329
3	H	Motor vehicle 2 no. …			$12,000	$12,000
4	W	Motor vehicle 3 no. …			$34,000	$34,000
5	H	Z Bank Choice Account no. …28			$572	$572
6	W	CBA Account no. …42 BSB …			$262	$262
7	W	CBA Account …67 BSB …			$2,420	$2,420
8	W	CBA Account no. …92 BSB …			$952	$952
9          9	W	H Bank Account no. …17			$1,978	$1,978
10	H	Household contents			$5,000	$5,000
11	W	Household contents			$5,000	$5,000
Total		$2,212,513	$2,212,513
LIABILITIES
12	J	CBA Mortgage on F Street, Suburb M NSW			$1,136,550	$1,136,550
13	H	Car Finance			$12,000	$12,000
14	W	Car finance			$31,431	$31,431
15	H	School G tuition fees			$47,838	$47,838
Total		$1,227,819	$1,227,819
SUPERANNUATION
Member		Name of Fund	Type of Interest		Wife/de facto partner's value	Husband/de facto partner's value
16	H	Superannuation Fund 1	Accumulation		$299,154	$299,154
17	H	Superannuation Fund 2	Accumulation		$93,176	$93,176
18	W	Superannuation Fund 3	Accumulation		$9,314	$9,314
19	W	Superannuation Fund 4	Accumulation		$15,708	$15,708
Total		$417,352	$417,352

FINANCIAL RESOURCES
Ownership		Description	Wife/de facto partner's value		Husband/de facto partner's value
20	W	City T Property, Country S		100,000	100,000
Total		$100,000	$100,000

The contributions of the parties

1. The parties agreed that their contributions should be found to be equal as at the date of trial. I was unsure whether this agreement was intended to apply to both the superannuation and non-superannuation assets. I will assume that the parties' agreement covers both superannuation and non-superannuation assets. It appeared that the splitting orders proposed by each of the parties were intended to achieve an equal entitlement to the four superannuation funds. I am satisfied that this agreement properly reflects a weighing of various contributions of the parties, as defined in section 79 of the Act

2. The parties' relationship subsisted for almost 17 years and they are the parents of four children.  Largely, they adopted traditional roles of major breadwinner and primary homemaker and carer for children during most of their cohabitation.

Section 75(2) factors

1. I will refer only to those factors set out in section 75(2) which are apposite to these proceedings.  Self-evidently, some of these considerations are not relevant to the resolution of the present dispute.

2. It was common ground that there should be an adjustment in favour of the wife on account of section 75(2) factors.  The wife sought an adjustment equal to 25 per cent of the net value of the former matrimonial home and the husband conceded an amount equivalent to 20 per cent thereof.

3. The former matrimonial home has an agreed value of $2,150,000 and is subject to a mortgage of $1,136,550, leaving a net equity of $1,013,450.  20 per cent and 25 per cent thereof equal $202,690 and $253,363 respectively.  The ambit of the dispute in relation to alteration of property interests was thus a figure of $50,673.

4. The parties are of similar age and both are in good health.  They each have a capacity for gainful employment.  It is clear that this capacity of the husband exceeds that of the wife to a significant extent, as is evident from their current net weekly incomes of $3,934 and $1,046 respectively.

5. The parenting orders which I will make would result in the children spending more time with the mother than the father.  As I observed above, however, the ages of the children mean that they will increasingly determine for themselves what time they spend with each parent.

6. The husband pays child support of $600 per week and meets certain expenses for the children, including school fees and incidental educational costs.  He also meets the cost of mobile telephones and sporting activities for the children.

7. In my view, the most significant factor pursuant to section 75(2) is the disparity in the income earning capacities of the parties.  The logical consequence of this disparity is that the husband is likely to re-establish himself in a stable financial position more quickly than will be the case with the wife.  Neither party will be able to access their superannuation benefits for a considerable time into the future.  Accordingly, the amount of capital which the wife receives from the sale proceeds of the former matrimonial home will have a substantial impact on her medium-term financial position.

8. In all of these circumstances, I am persuaded that a just and equitable outcome to the proceedings would be that the wife receives a section 75(2) adjustment of an amount equal to 25 per cent of the net proceeds of sale of the former matrimonial home.  As noted above, the difference in the amount sought by the wife and the sum conceded by the husband was $50,673.

Conclusion as to alteration of property interests

1. The parties elected to conduct their litigation in relation to alteration of property interests on the basis that the issue for my determination was whether the wife should receive 70 per cent or 75 per cent of the net proceeds of sale of the former matrimonial home.  For reasons set out above, I determine that a just and equitable outcome to the proceedings would see the wife receive an amount equal to 75 per cent of the net sale proceeds.

2. The wife will thus receive approximately $760,088, plus $26,488 on account of arrears of spouse maintenance, making a total of about $786,576.  The husband will receive approximately $253,363 and pay to the wife a sum of $26,488, leaving a net amount of about $221,875.  I am satisfied that this result is just and equitable in all of the circumstances.

3. As a checking exercise, I have calculated the percentage distribution between the parties of a distribution of the net sale proceeds of Suburb M property as to 75 per cent and 25 per cent to the wife and the husband respectively by reference to my findings as to the parties' assets, superannuation, liabilities and financial resources.  I have adopted a two-pool approach for the purposes of this exercise, being superannuation, and non-superannuation assets.  I do so because of the agreement of the parties in relation to their superannuation benefits.

4. The non-superannuation assets and liabilities are as follows:

Assets	($)
1.      Net equity in the Suburb M property  (J)	1,013,450
2.      CBA CommSec shares  (H)	329
3.      Motor vehicle 2 (H)	12,000
4.      Motor vehicle 3 (W)	34,000
5.      Z Bank account  (H)	572
6.      CBA account  (W)	262
7.      CBA account  (W)	2,420
8.      CBA account  (W)	952
9.      H Bank account  (W)	1,978
10.    Household contents  (H)	5,000
11.    Household contents  (W)	5,000
$1,075,963
Liabilities
12.    Car Finance 1 (H)	12,000
13.    Car Finance 2 (W)	31,431
14.    School G Fees  (H)	47,838
$91,269
Net Non-Superannuation Assets	$984,694

1. The husband would take the following assets:

Assets	($)
1.      25 per cent of net equity in the Suburb M property	253,363
2.      CBA CommSec shares	329
3.      Motor vehicle 2	12,000
4.      Z Bank account	572
5.      Household contents	5,000
$271,264

and assume the following liabilities:

Liabilities	($)
6.      Car Finance 1	12,000
7.      School G Fees	47,838
$59,838

The husband would thus receive net non-superannuation assets to the value of $211,426, which equates to approximately 22 per cent of this pool.

1. The wife would take the following assets:

Assets	($)
1.      75 per cent of net equity in the Suburb M property	760,088
2.      Motor vehicle 3	34,000
3.      CBA account	262
4.      CBA account	2,420
5.      CBA account	952
6.      H Bank account	1,978
7.      Household contents	5,000
$804,700

The wife would retain liability for the debt to Car Finance 2, meaning that the net value of her non-superannuation assets would be $773,269.  This figure equates to approximately 78 per cent of this pool.

1. There is thus negligible difference, in terms of overall percentage distribution, in the approach adopted by the parties and the more conventional process which I have set out above.  I am satisfied that the overall result is a just and equitable outcome to the proceedings for alteration of property interests.

Spouse maintenance

1. The wife bears an onus to establish that she "is unable to support herself” adequately for the purposes of section 72 of the Act. This section provides as follows:

   (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   (2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

2. In my view section 72(1)(a) does not apply to the wife's present circumstances, given that she holds full-time paid employment. For the same reason, I consider that section 72(1)(b) does not assist the wife's case.

3. The legal representative for the wife contended that she has a need for spouse maintenance because she will receive insufficient cash, as a property settlement, to enable her to purchase a suitable home in Northern Sydney without a mortgage advance.  It was submitted that the wife could not service such a mortgage loan without spouse maintenance.

4. The reality of the wife's post-property settlement situation, however, will be that she will have a lump sum of about $787,000, existing savings of $5,612 and a net weekly income of $1,046. She has a debt for legal fees or approximately $140,000 and a liability to Car Finance 2 of $31,431. In these circumstances, I find that the wife failed to establish that she is unable to support herself adequately for the purposes of section 72 of the Act.

5. That finding is a sufficient basis for dismissal of the wife's application for spouse maintenance.  It is thus unnecessary that I consider whether the husband has capacity to pay to the wife a sum of $1,000 per week.

6. Additionally, I am reluctant to make an order for spouse maintenance of 17 years' duration.  It would be likely that the financial circumstances of one or both of the parties would change during that period and that they would be forced into further litigation.  In my view, it is undesirable that divorced parties remain tied to each other financially for such a lengthy period.

7. I will not continue the order that the husband pay spouse maintenance to the wife of $271 per week until settlement of the sale of the former matrimonial home.  I accept that the husband has experienced genuine difficulty in complying with the existing interim order and he has agreed to pay the current arrears to the wife from his share of the proceeds of sale of the property.  I will discharge the Orders of 29 March 2018.

Remaining issues

1. I will not order that the wife receive an amount equal to 50 per cent of council and water rates which she has paid since November 2016.  There was no evidentiary basis for such an order and no submission put in support thereof.

2. I did not understand what was intended by the order sought by the wife that an amount be deducted from the husband's share of the net sale proceeds of "such other amount as the court deems fit as a result of the husband's

   
   

   non-compliance with the mortgage contract."  The legal representative of the wife did not address this proposed order.

3. The legal representative of the wife sought that I provide a hearing date for the Contravention Application filed by the wife on 28 March 2019.  This Application was not listed before me and I decline to do so.  Orders made by a Registrar govern the listing of this Application.  I would note that the husband has agreed to pay to the wife the arrears of spouse maintenance which are addressed by this Application.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 30 August 2019.

Associate: 

Date:  30 August 2019