Nelson and Nelson
[2008] FMCAfam 93
•13 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NELSON & NELSON | [2008] FMCAfam 93 |
| FAMILY LAW – Children – parenting orders – mother with history of depression and drug use – father assuming care of children at separation at mother's request due to her inability to care for children – competing applications as to which parent children should live with. FAMILY LAW – Property settlement – only significant asset husband's military superannuation – splitting order. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65DAB, 65D, 75(2), 79 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 Hickey & Hickey; A-G for Commonwealth (Intervener), [2003] FamCA 395, (2003) FLC 93-143, (2003) 30 Fam LR 355 Coghlan & Coghlan, [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220 |
| Applicant: | MR NELSON |
| Respondent: | MS NELSON |
| File number: | PAM575 of 2006 |
| Judgment of: | Halligan FM |
| Hearing dates: | 4 & 5 July 2007, 11 December 2007 |
| Date of last submission: | 11 December 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 13 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Coleman and Greig Solicitors |
| Counsel for the Respondent: | Mr Gersbach |
| Solicitors for the Respondent: | Rachel Stubbs and Associates |
| Counsel for the ICL: | Ms Gillies |
| Solicitors for the ICL: | Legal Aid Commission of New South Wales |
ORDERS
The applicant and first respondent shall have equal shared parental responsibility for the children K born in March 1992, S born in September 1993, A born in December 1998 and I born in July 2002.
The applicant and the first respondent shall use their best endeavours to encourage and facilitate of positive relationship between each of them and each of the children K and S.
The children A and I (hereafter referred to as “the children”) shall live with the applicant.
The children shall spend time with the first respondent-
(a)during school terms, each alternate week from after school Thursday until 3.30 pm Sunday;
(b)during school terms, in each other week from after school Wednesday until the commencement of school Friday;
(c)for half of all school holidays as agreed between the applicant and first respondent, and failing agreement, for the second half in school holidays commencing in 2008 and each alternate year thereafter, and otherwise in the first half;
(d)on Mother’s Day weekend, from 10.00 am Saturday to 4.00 pm Sunday;
(e)if the children are not otherwise spending time with the second respondent on their birthdays, for a period of two hours on each of their birthdays as agreed, and failing agreement from 5.00 pm to 7.00 pm;
(f)at other times as agreed between the applicant and first respondent.
The first occasion of the first respondent’s time with the children under Order (4)(a) shall commence on the first Thursday after the making of these orders, and shall resume on the first Thursday of each school term.
The first respondent’s time with the children is suspended on the Father's Day weekend from 7.00 pm Saturday until the commencement of school Monday.
The first respondent shall collect the children from school or the applicant’s home at the commencement of her time with the children, and shall return the children to school when her time with the children ends at the commencement of school.
When the first respondent’s time with the children does not end at the commencement of school, the applicant shall collect the children from the first respondent’s home at the end of her time with the children.
For the purposes of these orders school holidays commence at 9.00 am on the day after the last day of a gazetted school term and end at
9.00 amon the first day of the next gazetted school term, whether or not it is a pupil free day.
The applicant and the first respondent:
(a)shall keep each other informed in writing of any medical practitioner or treatment provider that the children may see from time to time and shall provide any necessary authorization for that medical practitioner or treatment provider to speak with the other party;
(b)shall keep each other advised in writing of any change in their landline or mobile telephone numbers or residential address at least 72 hours before any proposed change;
(c)shall advise the other in writing of any proposed change to the children's schools at least 28 days before the proposed change;
(d)shall ensure that the children attend extra curricular activities they have agreed to enrol the children in when the children are in their respective care;
(e)shall authorise any school the children attend to supply to the other, at the other party’s expense, all information, documents and photographs that parents may receive from the school;
(f)shall be entitled to attend all the children's school functions, sporting and extracurricular activities to which parents are invited regardless of which of them has the care of the children at the time
(g)are restrained from denigrating the other or any person related to or in a relationship with the other to or in the presence or hearing of the children and shall immediately remove the children from the presence of any other person who does so.
If the applicant becomes aware of a proposed change in relation to his employment that may result in a change residence, he shall give the first respondent written notice as soon as possible.
The first respondent is restrained from using cannabis or any other illegal drug while the children are in her care and for a period of 24 hours before the children are due to come into her care under these orders.
Where written notice is to be given under these orders, notice by SMS message shall be sufficient.
In relation to the applicant’s interest in the Military Superannuation and Benefits Scheme (“the interest”)-
(a)Pursuant to s.90MT(4), Family Law Act 1975, a base amount of $59,500 is allocated to the first respondent.
(b)Pursuant to s.90MT(1)(a), whenever a splittable payment becomes payable in respect of the interest, the first respondent shall be entitled to be paid the amount (if any) calculated in accordance with the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
The operative date for Order (14) is on the expiration of 4 business days after service on the trustee of the Military Superannuation and Benefits Scheme of a sealed copy of these orders.
Order (14) shall bind the trustee of the Military Superannuation and Benefits Scheme.
Otherwise each party shall be entitled to the exclusion of the other to any personal property in his or her respective possession or control.
Otherwise all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Nelson & Nelson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM575 OF 2006
| MR NELSON |
Applicant
And
| MS NELSON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested parenting and property settlement proceedings under the Family Law Act 1975. I will refer to the applicant as the husband and to the first respondent as the wife
There are four children subject to the parenting controversy. The eldest two are children of the wife and the second respondent, who although on notice of the proceedings, took no part in them. The youngest two children are children of the husband and the wife.
The husband seeks parenting orders that the husband and wife have equal shared parental responsibility for the two eldest children, that the two youngest children live with him and that he have responsibility for decisions about their education, residence within Australia and sporting and extra-curricular activities. Ultimately he indicated through his counsel that he agreed with the Independent Children's Lawyer’s proposals as to the time the two youngest children should spend with the wife.
By way of property settlement, the husband seeks a splitting order in relation to his superannuation with a base amount of $35,000, and that the wife indemnify him in relation to a credit union loan for a motor vehicle.
The wife seeks parenting orders to the effect that the husband and wife have equal shared parental responsibility for the four children, and that the youngest two children live with her and spend time with the husband each alternate weekend from after school Friday to before school Monday, each other week from after school Thursday to 9.00 am Saturday, and half of all school holidays.
By way of property settlement, the wife seeks a splitting order in relation to the husband's superannuation interest on a base amount equal to 45% of the value of the husband's interest in the fund, and that the furniture and contents, including the children's furniture and clothing, be divided equally between them.
The Independent Children's Lawyer proposed parenting orders to the effect that the husband and wife have equal shared parental responsibility for all four children, that the two youngest children live with the father and spend time with the mother each alternate week from the conclusion of school on Thursday to 3.30 pm the following Sunday, in each other week from the conclusion of school on Wednesday to the commencement of school on the following Friday, for half of school holidays, on Mother's Day weekend, for 2 hours on the children's birthdays, and otherwise as agreed. The Independent Children's Lawyer also sought orders in relation to communication between the husband and wife of specific matters in relation to the children’s health and welfare, a mutual non-denigration order and an order that the wife not use cannabis when the children are with her or for 24 hours before.
The wife indicated through her counsel that if the Court decided that the two youngest children should live with the husband, she agreed with the Independent Children's Lawyer’s proposals as to the time she spend with them.
Background
The husband and the wife are both aged 36. They commenced cohabitation in October 1997, married in May 2000, and finally separated in late 2004 or early 2005.
There are two children of the marriage of the husband and wife, A born in December 1998 and I born in July 2002, aged 9 and 5 respectively. The wife has two children of her prior relationship with the second respondent, K born in March 1992 aged 15 and S born in September 1993, aged 14. Neither of the two eldest children have had any contact with their father for about 10 years, and were members of the household of the husband and wife during their cohabitation, the husband treating them as his own children.
After the wife failed to return the three youngest children to the husband in early 2006, the husband commenced these proceedings. On 17 February 2006, an order was made that the wife return S to the husband's care. The two youngest children were returned to the husband's care at about this time, apparently without an order being made to do so.
Interim orders were made on 23 March 2006, with the consent of the husband and wife that all four children live with the husband and have contact with the wife. The three youngest children were to have contact with the wife in a three week cycle, in week one from after school Tuesday until the commencement of school Wednesday, in week two from after school to 7.00 pm Tuesday and from 10.00 am Saturday to 3.00 pm Sunday, and in week three from after school Tuesday to before school Wednesday and from 10.00 am to 5.00 pm Saturday. These orders also provided for the wife to have contact with the three youngest children for half of school holidays, on Mother's Day and for two hours on the children's birthdays. In addition, the wife was to have contact with I from 6.30 am to 5.30 pm each Monday and from 6.30 am each Tuesday until the conclusion of the time she was otherwise to have with the children commencing each Tuesday. The wife was to have contact with K from 10.00 am to 5.00 pm on the Saturday of week three in the three week cycle for the other children, and at other times as agreed particularly at times the wife was having contact with the other children.
On 5 March 2007, further interim orders were made with the consent of the husband and the wife discharging the prior contact orders in relation to the three week cycle for the three youngest children, but not the other contact provisions, and providing in lieu that the wife have contact with the three youngest children each alternate weekend from 3.00 pm Friday to 3.15 pm Sunday, from 3.15 pm Tuesday to 9.00 am Wednesday, and with I from 3.00 pm Monday to 9.00 am Tuesday. The orders also provided that the wife ensure I attend school on school days she was with the wife, other than on a pupil free day.
The Evidence
At the commencement of cohabitation the parties owned no property of significance. However, the husband, who was employed by the Army, had an interest in the Military Superannuation and Benefits Scheme, which he joined on 24 September 1992. This is a defined benefits scheme, and the husband's interest in the fund continues, and is in the growth phase. It is valued in accordance with the Family Law (Superannuation) Regulations and the scheme specific factors and methods determined for that scheme at $198,619.86 as at 4 August 2006.
The wife's two children to the second respondent were members of the household of the husband and wife from the commencement of their cohabitation. The husband treated K and S as his own children. Their father, the second respondent, paid no child support for them, the wife having been exempted from seeking child support because of a history of family violence by the second respondent.
The husband was significantly involved in the care of K and S, and of the other two children from their respective births. However, it is clear from the evidence that the wife was the primary carer of the children until separation. When not away on military duty, the husband assisted with child care, and also with household chores, including cooking. In the course of the husband's Army service, he was posted overseas for
6 months, and was absent for shorter periods on occasions in the course of his employment. During these periods the wife was solely responsible for child care and management of the household. I am satisfied that the wife was primarily responsible for the homemaker and parent responsibilities during the parties’ cohabitation, except for the 6 months the husband was on long service leave, and during the wife's acute depressive episodes.
The husband was the primary breadwinner during the parties’ cohabitation, although the wife did have periods of casual employment. She performed secretarial work before the parties commenced cohabitation and thereafter concentrated on her child care role. However she worked conducting her “nail” business, which seems to have generated insufficient income to be declared for tax, and in 1997 she sold Nutrimetics. She later worked in retail sales for 6 months full time 6 days a week. This was during a period of 6 months’ long service leave the husband took when he was available to assist more with the children and the household chores. On occasions the husband was away after I was born, the wife worked about 2 days a week doing tarot card readings.
I am satisfied both parties contributed their respective earnings to the household, albeit the wife earned very modest sums, and subject to the money expended by the wife on her marijuana use.
During the parties’ cohabitation, the husband's father lent about $6,000 to assist the parties, which has been repaid.
The wife has a history of depression from at least her mid teens. When depressed, the wife would physically attack the husband on very little provocation. The husband did not retaliate. She has been medicated to treat her depression, but has not always been compliant with medical advice. Specifically, she discontinued prescribed medication because she thought she no longer needed it without seeking medical advice, she discontinued counselling when she obtained work in 2005, and despite medical advice that she should not use marijuana, both because of her depression and because of the medication she is prescribed, she has continued to do so.
During the latter stages of the husband and wife's cohabitation, the wife declined to attend a bulk billing medical practitioner who treated depression that the husband's father found, and declined his offer to pay the approximately $2,000 cost of inpatient treatment for her depression at Hospital S.
The wife's evidence in chief about the history of her depression is difficult to follow. It seems she was prescribed an anti-depressant some time before I’s birth, used it for about 2 years, ceased using it without medical advice, then resumed using it again after she fell pregnant with I. It is unclear whether the resumption of use was initially with medical advice, but the dosage was adjusted on medical advice after she resumed using it. The wife referred to having counselling as she came off the anti-depressant, and it seems this was after I’s birth.
In 2002, the wife could not cope with the children. She rang the husband at work to tell him she was leaving and he needed to come and assume care of the children. She left the children before the husband could return from work to assume their care. The husband, with the assistance of his parents and the forbearance of his employer, made alternative care arrangements for the children. The wife travelled to the Central Coast. The husband travelled there with some mutual friends and brought the wife back to Sydney where she received medical treatment from the family doctor and had counselling.
In 2004, the husband accepted a posting to W but the wife and children remained in Sydney. The husband returned to Sydney every two to three weeks for the weekend, and was present for birthdays and important events. He telephoned the wife and children most days, and the wife and children went to W for a week mid year. The husband returned to Sydney in December 2004, and very shortly thereafter the parties separated.
It was against this background that in late 2004 the wife had another severe depressive episode, being admitted to L Hospital for 1 week on 13 December 2004. It was at this time that the wife again could not cope with the care of the children, and when the husband was due to return to W in early 2005, she asked him to take the children with him until she was able to resume care of them and had appropriate accommodation for them.
The wife consulted her doctor who managed her medication, and had counselling from January 2005 until July 2005, when the wife discontinued counselling due to her work commitments, having commenced bar attendant work, working 52 hours a week. In about June 2005, the wife was admitted to hospital for a condition unrelated to her depression.
The wife continues to see her General Practitioner when she thinks she needs to and takes medication as prescribed to manage her depression.
The wife used marijuana regularly during cohabitation. She said in her evidence in chief that she would usually smoke a cone once or twice a week. However, when she was having what she referred to as a “melt down”, that is, an acute depressive episode, her marijuana use increased, and she smoked up to 10 cones a day when acutely depressed. She is noted in hospital records as having said in 2004 that her use had been one cone per day for the past 17 years, and had been using 10 cones a day for the past six months. She denied saying she used a cone a day for 17 years, and said that the reference to 10 cones a day for the past six months was out of context.
The wife said she had been given medical advice that she should not use marijuana, and she said she has noticed a link between her marijuana use and the onset of acute depression. Yet, despite being given a referral by her doctor in March 2006 to rehabilitation, she did not act on it, preferring to manage her marijuana use herself.
The wife said in her evidence in chief that she continued to use marijuana until she “got back on her feet” in about June 2005, and now only smokes marijuana “occasionally”. The fact of a referral to drug rehabilitation by the doctor she said she consults to manage her depression in March 2006 raises doubts about the wife's self-assessment that she “got back on her feet” by June 2005. Her drug use clearly remained a medical concern at March 2006, by which time the wife suggested her use was infrequent and minimal. In fact, her evidence in cross-examination was that she stopped daily marijuana use in February 2006, but this too is called into question by the referral to rehabilitation a month later.
What ever the frequency of her use since early 2006, her evidence shows that she continues to use marijuana both socially and when stressed, having used marijuana shortly before the hearing of this matter to deal with the stress of the litigation.
Despite the husband raising the wife's marijuana use and history of incapacitating episodes of depression as significant factors against her suitability to now be the children's primary carer, the fact is that until 2004 he had no concerns at leaving the children in her care. It is also significant that the reasons for not agreeing to return the children to the wife's care in late 2005/early 2006 that he gave to the expert who prepared the Family Report did not include any concerns about drug use or depression.
As mentioned, when the husband returned to W in March 2005, at the wife's request the children accompanied him and the wife remained in Sydney. While in W, the husband offered to fly the wife down or pay her petrol costs of visiting the children whenever she wanted, but she only visited the husband and children in W for about a week in mid 2005 and a little less than a week in December 2005. She rang to speak to the children two or three times a week initially, but that decreased after about a month to once or twice a month. In July 2005, the husband brought the children to Sydney and they spent about 4 days with her.
By agreement between the husband and wife, the four children were to spend time with the wife in Sydney from 19 to 28 December 2005, but a few days before Christmas Day the wife told the husband she did not want K to remain, and he went to stay with the husband's parents until all four children returned to the husband's care in late December.
The husband and the children returned to live in Sydney on
8 January 2006. Having consulted the wife and she raising no objection, he enrolled the eldest two children in the high school K had attended previously, S commencing Year 7 in 2006. He enrolled A in the local primary school, and I in daycare.
The wife was continuing to work as a bar attendant, and the parties negotiated time the three youngest children would spend with the wife. When the three youngest children went to spend time with the wife from 29 January to 1 February 2006, the wife refused to return them to the husband. Despite S being due to commence high school with K, the wife did not take her to school until the second week of term, having enrolled her in a different school. She did not take I to daycare as arranged by the husband. She overlooked A’s orientation day at the beginning of Term 1.
The husband secured the return of A by collecting him from school, but the wife attended the home of friends when the husband and A were there and asked A who he wished to live with. Not wishing to involve the child further in the parental conflict, the husband did not intervene to prevent the wife taking A with her.
The husband then commenced these proceedings. An order was made for S’s return to the husband on the first court date in February 2006. The two youngest children were returned to the husband's care. S resented the husband having taken court action to have her returned to him as she wished to remain with her mother.
Since then, the care arrangements for the children have generally been as indicated in the interim orders of March 2006 and March 2007.
The husband decided that I should commence kindergarten in 2007, when she would be four and a half. The wife did not agree, preferring her to commence in 2008. However, the husband proceeded to enrol the child at the local primary school.
There were two orientation days for I at the school in late 2006, and the husband took I to one and the wife at his invitation took her to the other. I was with the husband at the start of the 2007 school year, and commenced on the first day of Term 1. She appeared to enjoy the experience. However, on the days the wife had the child under the interim orders subsequently, she refused to take the child to school, even though the child was dressed for school and with her school bag packed on the school days the wife collected her from the husband. She preferred that the child spend the time with her rather than attend school.
This is an example of the parental conflict adversely affecting the children. While there may be validity in both parents’ views about whether it was appropriate for I to start school in 2007 bearing in mind her age, once she commenced school there was no suggestion by the wife that the child seemed distressed or unhappy or that there were any other signs she was not coping. In those circumstances, to have the child not attending on the days the child was with the wife suggests the wife was placing her wish to have time with the child ahead of what was best for the child. She conceded that with the benefit of hindsight her actions were inappropriate.
The wife knew there was a final hearing listed for 8 January 2007, she disagreed with the husband having enrolled the child to commence Kindergarten at the end of January 2007, and hence there was a perfect opportunity to have the issue resolved in a way that did not place the child in the middle of a battle of wills between the parents. However the wife did not file any affidavit evidence prior to the hearing, and it had to be aborted. She made no application to the court about I’s schooling on 8 January 2007 when the issue could have been addressed.
Thus, for the first month of I’s school life, the child attended school on the days she was with the husband but not on the days she was with the wife, until the matter was returned to Court by the husband and the wife agreed to take the child to school. I seems now to have settled well into school and the wife concedes she enjoys it and is doing well.
A suffers from eczema and asthma, and there have been issues between the parents about management of these conditions, especially about adherence to A’s asthma plan. The wife has lost the plan provided to her by the husband at least once, and has not been assiduous in monitoring the child’s condition and medication. This is indicative of the wife's disorganised nature. However, despite saying A has always taken his puffer with him where ever he goes from a very early age, and expressing concern that A always have his asthma medication available, the husband failed on occasions to send the boy’s medication with him when going to spend time with the wife. His expectation that the wife secure her own supply of A’s medication was inappropriate, as it resulted in A being treated by two separate doctors for a short period. There was a further problem with this course, as a special approval is needed for some of A’s medication, and only one script can issue at a time. However, since these problems arose, the parties have been able to make workable arrangements for the management of A’s asthma and agree no specific orders are now required to ensure no repetition of these problems.
The contrast between the wife's disorganised nature and the fact the husband is well organised and needs to be in control of situations has exacerbated this and other issues between the parents. The wife is habitually late in collecting or returning the children, something she herself admits, and this has caused the husband particular problems when he has been due to report for duty by a certain hour in the morning and the wife has been late to collect the children.
The husband has also complained of the wife failing to comply with aspects of the March 2006 orders, including that she provide him with the children's birth certificates within a specified time. She provided them late, consistent with her disorganisation.
Since assuming the care of the children shortly after separation, the husband has met all expenses in relation to the children. The wife commenced paying child support in 2006 at $5 per week, and later was assessed at $40 per week. By mid 2007 she was about $1,600 in arrears.
The husband and wife bought a Holden Commodore motor vehicle during cohabitation, and took out a credit union loan for this purpose. At separation they owned this vehicle and a Honda Accord. They also owned a Tarago motor vehicle that was stolen at around the time of separation. The husband applied the $3,000 insurance payment on this vehicle to pay for repairs to the Holden.
After separation, the husband retained the Honda and the wife retained the Holden, but the husband continued to meet the loan repayments, paying $12,429 between March 2005 and December 2006. He also paid registration in 2005 and met all other expenses for the Holden vehicle including insurance, but did not pay petrol costs. In 2006, registration of the Holden vehicle was transferred to the wife, who, being in receipt of a social security benefit, was entitled to a discounted registration fee, and she paid the registration in 2006.
Since separation, the husband purchased a Toyota Corona after the Honda became uneconomical to repair.
The Holden vehicle was repossessed in March 2007, and on its sale by the credit union there remained a joint debt of about $10,000. The husband arranged for his father to repay $5,684 to the credit union on his behalf, and contended that on that basis he has no further liability to the credit union for this loan. The husband sought an order that the wife indemnify him in respect of this loan in his application.
Since repossession of the Holden, the wife has purchased a car for $1300. A friend lent her funds to assist with the purchase.
In 2005, the husband received a $27,000 retention benefit from the Army. This was payable after 15 years service on undertaking to serve a further 5 years, that is until 2010. The benefit is repayable if he leaves the Army or is discharged from the Army for disciplinary reasons before then. The husband applied these funds to repay his father $6,500 lent to purchase a motor vehicle, $1,500 was paid to the wife to use as a bond for rental accommodation, $15,000 has been spent on legal costs of these proceedings, $2,500 was spent on the husband's motor vehicle, and $3,500 was spent on living expenses for himself and the children.
Shortly after separation, the husband said he gave the wife specified items from the home, and he retained the balance, which he also specified. In January 2006 he said he gave the wife a double bed and fridge he had previously retained. He was not challenged on this evidence and I accept it.
The wife has recorded conversations at changeovers of the children. The children, or at least some of them, including K, have become aware of this. This was inappropriate behaviour by the wife, clearly letting the parental conflict intrude and impact on the children.
The wife's relationship with K has been strained since at least Christmas 2005. He lived with the husband from separation until August 2007, when he reacted against the husband's proposal to discipline him for infraction of a rule about being out after dark without the husband's permission. K was staying at a friend’s home at the time, and refused to return to the husband's home, and has been living with the friend’s family since. K has declined to accept offers from both the husband and the wife to live with them. The husband took steps to ensure K secured his School Certificate despite the boy’s intention not to continue his schooling. The wife acknowledged that the husband kept her informed about what was happening at this time.
S lived with the husband until by mutual agreement of the husband and wife, and consistent with S’s wish, she moved to live with the wife at the end of the July 2007 school holidays. She changed schools to be closer to the wife's residence after Week 1 of Term 3, giving her an opportunity to farewell her friends at her old school.
Husband's current financial circumstances
The husband's income from the Army is $1163 per week. He receives Family Tax Benefit A and B totalling about $150 per week. He was receiving $25 per week in child support. The husband's income is therefore $1,313 per week. His commitments for tax, rent, superannuation contributions, car, contents and health insurance, car registration and credit card repayments total $549 per week. He has $500 in a credit union account, a motor vehicle worth $1,500, and household contents of nominal value. He has a $300 credit union debt, and outstanding legal fees and loans from his parents for legal fees in relation to these proceedings.
The wife's current financial circumstances
The wife's current income level is somewhat unclear, as she has only recently commenced a new job paying commission only and reduced her bar attendant work.
She said that in her first two weeks in her new job she earned $1,090 in commissions, although it was unclear whether that had been paid to her and if not when it would be paid. She received about $50 per week from her nail business, and she continued working one shift a week as a bar attendant for an undisclosed income. She also received Family Tax Benefit A and B, in the sum of $70.50 per week at a time when she was earning $400 per week from bar attendant work. It is unclear whether the FTB will change with the wife's current income. It seems that, assuming her commission earnings are typical - and there is no basis on which it can be determined whether they will be or not – and assuming her FTB payments remain the same - which is doubtful - she has an income in excess of $665.50 per week.
The wife's commitments for tax, rent, motor vehicle registration, car loan repayments and GE Finance repayments are about $360 to $370 per week.
Before commencing her new job recently, the wife had difficulty managing on her income, being in arrears on her rent, child support, and electricity in July 2007. She also was driving her vehicle unregistered for a short time, on occasions with the children as passengers, because she could not afford the registration.
The wife owns a nominal amount in a credit union account, a motor vehicle worth $1300, and household contents worth $500. She has a superannuation interest in Host Plus worth $896. She owes $3,800 on a GE line of credit account, $600 in medical expenses, and a loan for her motor vehicle owed to a friend in an undisclosed amount.
She acknowledged that the husband has paid half of the credit union debt for the Holden motor vehicle remaining after its repossession and sale, but did not acknowledge any liability for this debt in her financial statement.
The husband's proposals for the children
The husband lives with the two youngest children in a four bedroom rented home in a suburb near the Army base, where he works. The children appear well settled, well cared for, and are progressing satisfactorily at school.
The husband usually leaves for work at 6.45 am and finishes work at 4.00 pm. The children attend before and after school care.
The husband is required to act as overnight duty officer once every four to eight weeks. He can nominate the nights he performs this duty, to most conveniently fit with his child care responsibilities. When he is duty officer, he performs his normal shift on one day from 7.30 am until 4.00 pm, then acts as duty officer from 4.00 pm until 9.30 am the next day, and performs his normal shift that day until 4.00 pm. There is an opportunity to get some sleep while acting as duty officer.
The husband has acted as duty officer in 2006 and 2007. He has usually performed that duty when only K has been in his care. On the rare occasion he had the care of all the children, his parents cared for them.
The husband was required by the Army to undertake training from 5 to 26 May 2006. During that time the paternal grandparents cared for the children when not with the wife under the interim orders. The husband is unlikely to have any further promotional courses to attend until 2009 or 2010. He can decline promotional courses, but has never done so in the past. If the husband was required to attend training in the future, he proposed the same arrangements for the care of the children. He has the support of his parents in caring for the children.
The husband was required to go on military exercises for between 2 and 6 weeks a year during cohabitation.
The husband's current posting will last until 2010. After that, if he remains in the Army, he may be posted away from Sydney. However, he could seek retention in the Sydney area for up to a further 3 years after his current posting ends. The husband intends staying in the Sydney area as long as possible.
The husband not only ensures the two youngest children spend time with the paternal grandparents, but also with the maternal grandmother and her partner. The wife is estranged from both her parents, not having spoken to her father since he struck her when she was pregnant with S, and being estranged from her mother for the last few years.
As mentioned, the husband supports the time the Independent Children's Lawyer proposes the children spend with the wife in lieu of the orders he originally sought. The husband and wife agree that change overs should occur at their homes or at school.
If the two youngest children are to live predominantly with the wife, the husband would like to spend time with the children each weekend and mid-week after school, from about 5.00 or 5.30 pm until 8.00 pm. He would be unable to have the children overnight mid-week as he could not deliver them to school near the wife’s residence before commencing work.
The wife's proposals for the children
The wife lives in a three bedroom rented home with a sunroom that the wife uses as a fourth bedroom. She lives about a half hour’s drive from the husband's residence, although that travel time can be rather longer in peak hour.
The wife cohabited with Mr O from about August or September 2006 until January 2007. In an affidavit sworn about a week before the wife and Mr O ceased cohabiting, she described her relationship with Mr O as a “long term” one. However, the wife said in cross-examination that while Mr O was buying his own home, he moved out before completing the purchase because their relationship was “in trouble”, and that his departure had been “on the cards” for some time.
Mr O seems to have related well to the children. When the wife worked when having the children during her cohabitation with Mr O, he cared for the children in her absence.
Mr O was not seen by the expert for the preparation of the Family Report, as the nature of the wife's relationship with him was not disclosed by the wife before those interviews.
The wife described her relationship with Mr O currently as an ongoing one, that it had not failed, and that she continues to “see” him. In explaining the current state of this relationship in her affidavit sworn on 29 June 2007, she said she “would prefer to be on my own with the children”, but in cross-examination on 5 July 2007 she said she had a lot of things to work out and had the court case to finalise before being able to focus on a new relationship. She said Mr O had asked her to move into his home, and while she had not yet made a decision, it may happen, although she had no intention to live with Mr O in the immediate future. She said Mr O’ property was a 2 bedroom home and she needed to wait and see whether the children would be living with her. In the context of being asked about her proposed arrangements for the children if they were living with her, she said that if she and Mr O reconciled, she would not move to his house but would remain in her current area.
At the time the wife filed the primary affidavits in her case, she and Mr O were still cohabiting. The primary affidavits filed on behalf of the wife included one by Mr O. And Mr O accompanied the wife to court for the hearing, albeit that was after they had ceased to cohabit. However, the wife did not rely on Mr O’ affidavit and did not call him as a witness, giving no explanation for not doing so.
As at January 2007, the wife proposed changing her work hours to accommodate the children's school hours and spend as much time at home with I as possible, if the children were to live with her. She said she would not need to rely on before or after school care. She said she was in the process of setting up a “shop” in the front of her home from which to conduct a “nail” business, for which she was building up a clientele and attempting to save $500 for operating costs and supplies, despite saying she was having difficulty meeting her expenses from her income. She proposed continuing with “a couple” of shifts as a bar attendant when the children were spending time with the husband. How she would manage financially if the children lived with her and she significantly reduced her work as a bar attendant was not explained.
As at June 2007, the wife said she was working three to five shifts a week as a bar attendant. She had purchased equipment for her “nail” business, and still intended operating it from “the shop at the front of my house”. She intended reducing her work as a bar attendant and increasing her work conducting her “nail” business, giving her flexible working hours if the children came to live with her. She said she would be available on weekends. No mention was made of assistance from Mr O, who the wife said by then had bought his own home in a nearby suburb.
On 26 November 2007, the wife commenced work selling educational software on a commission-only basis. This work involves in-home consultations with prospective customers, in the afternoon after school hours and in the evening. The wife continues to work a Sunday shift as a bar attendant from 4.00 pm until about 10.45 pm. She also operates her “nail” business, for which she has four regular clients and some casual ones, and from which she earns $100 per fortnight.
The wife is estranged from her family, and has limited support. She has two female friends, both work colleagues, and Mr O, upon whom she could call if she needed assistance or support. One of the female friends and Mr O had both minded the children for her in the past. She did not know the address of one of the female friends. When asked what she would do if she became unable to care for the children due to a recurrence of severe depression, she said she would call on the husband to care for the children.
If the two youngest children live with the wife, she proposes enrolling them in the local primary school, which is within walking distance of her home. She acknowledged that they were doing well at their current school.
The time commitments the wife has assumed with her new job raise unanswered questions about her care arrangements for the children if they were to live with her. So far, she has relied on the husband to assist her when she had an appointment that clashed with her time with the children, but the husband has asked the wife by early 2008 to ensure predictability and certainty in her work commitments. This of course has been in the context of the children primarily living with the husband, not with the wife as she seeks. There is no indication how the wife's new job will develop, what her out of school hours commitments to it will be, and hence whether she will be available to care for the children when with her under her proposals and not at school.
If the two youngest children were not to live with her, the wife seeks to spend as much time as possible with them, including having both children, not just I, on Monday nights. However, when cross-examined about getting S to her high school near the wife's home and the two youngest children to their school near the husband’s home, it seemed the wife had not considered the practicalities of this exercise. On reflection, she said S could catch a bus to school, but did not know whether she was entitled to a free bus pass for travel to and from school.
Expert’s Report
The Family Report was prepared in late 2006. There have been a number of changes since the report was prepared, but none of these changes when put to the expert who prepared the Family Report in cross-examination caused him to alter any opinions he expressed in his Report. Nor did any apparent inconsistencies between information either party provided to the expert and any other evidence in the proceedings, when put to the expert in cross-examination, cause him to change any opinion expressed in his report.
In relation to the eldest two children, the expert was of the opinion that their views should be respected and they should not be constrained by court orders.
In relation to the youngest two children, he said:
“47. The optimal living arrangement for A and I is not obvious. On the assumption that Ms Nelson is no longer deeply depressed nor heavily using marijuana, both appear capable of adequately caring for these young children. One disadvantage of returning them to their mother's care is that it will involve another upheaval in their lives and, for A, another change of school.”
I interpose that since the report was written, I has commenced school, and returning them to their mother's care will involve a change of school for her, too. The expert continues-
“Yet, with their mother, they are probably going to have their need for nurturing, important for children of their ages, better met.
48. The distance between the parents’ homes restricts the amount of substantial and significant time that A and I can spend with the parent with whom they do not live.”
In cross-examination, the expert said there were no signs that the children were being deprived of affection or nurturing in the husband's care. He said the husband has the ability to nurture the children, although he considered that the wife's ability to do so is probably better. Nor, he said, did he see para. [47] of his report, quoted above, as the nub of his report.
In addition to recommending that the eldest two children not be included in any parenting orders, the expert recommended-
“That regardless of the parent with whom A and I live, they have the opportunity of spending substantial time with the other parent.
That both Mr and Ms Nelson share in the transporting of the children from one home to the other.”
The expert interviewed A but not I, because of her young age. He observed all siblings with each parent.
He described A as highly intelligent and articulate. The boy clearly stated a view that he wished to see more of his mother by spending an extra day with her. He spoke well of both parents but referred to his mother yelling sometimes, and his father yelling “a lot”. The expert did not explore further the incidence of yelling by either parent with A.
A said being ordered to live with the husband would make him feel “sort of good, sort of bad”. He referred to enjoying playing with computer games at his father's but not liking his father yelling and sometimes getting cranky. He said that being ordered to live with his mother would make him feel “good”, because he could do enjoyable things with her and Mr O, like going to the park and playing baseball. Mr O has since ceased to be a member of the wife household, although she still sees him.
The expert concluded from I’s interaction with her family members that she is a mature, confident young girl, who was observed to have had difficulty getting her mother's attention at times.
In the expert’s opinion, both A and I appeared to have a close and loving relationship with all members of their family.
It was beyond the scope of the expert’s task to determine the wife's current level of depression. The expert observed that the impact on the wife's emotional state of again assuming full-time responsibility for the children was uncertain.
Other opinions of the expert expressed in cross-examination were that-
·If the children were living with the wife and she again became depressed and was not medicated, it may mean a move to the husband and that may be a disadvantage to the children.
·If the wife again came under stress, while he could not say whether it would be probable she would become depressed again, it was a risk.
·While the separation of the siblings is a major issue in his opinion, and A and I appeared closely attached to S, he could not say how closely attached to S they were, although there was not in his opinion necessarily a very close attachment due to the age difference between the three children. He said he made no assessment of the impact on the youngest two children of separation from S.
The applicable law – parenting issues
To the extent the proceedings involve competing applications as to the parent the children should live with and the time the children should spend with the other parent, they relate to parenting orders (s.64B), and fall for determination under Part VII of the Family Law Act 1975.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
S.60B sets out the objects and principles of Part VII in the following terms:
“60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the children's best interests. It is as follows:
“60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, decided after the 2006 Shared Parental Responsibility amendments, as follows:
“Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
When making a parenting order, the Court must apply a rebuttable presumption that it is in children's best interests for the children’s parents to have equal shared parental responsibility for them (s.61DA(1)). The presumption does not apply if there are reasonable grounds to believe that a parent of the children or a person who lives with a parent has abused one of the children or another child who was a member of their household, or has engaged in family violence (s.60CC(2)), and is rebutted if the court is satisfied such an order would not be in the children's best interests (s.60CC(4)).
If there is, or is to be, an order for equal shared parental responsibility, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b) and (2)(d)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).
Where s.65DAA applies and neither party seeks an equal time or substantial and significant time order, the court must nonetheless consider these options, but must ensure in doing so that the parties are afforded procedural fairness by having their attention drawn to the section and its consequences, and by being afforded the opportunity to adduce evidence relevant to the options the section raises and to address the court on them. (As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340).
Determination of the parenting issues
The primary considerations (section 60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no issue that the two youngest children have a meaningful relationship with both parents, and since that has arisen and continued under the past parenting arrangements, including those put in place by both sets of interim orders, it would seem any of the proposed options would enable the youngest two children to continue to benefit from a meaningful relationship with both parents.
The relationship of K with his father is non-existent and with his mother is troubled, as it now is with his step-father. Because of his age and his views, I accept the views of the expert who prepared the Family Report and the proposals of the Independent Children's Lawyer that the best way of facilitating a hopeful improvement in his relationship with his mother and step-father is to make no orders in relation to him, other than an order that the husband and wife have equal shared parental responsibility for him. It was common ground between the husband, wife and Independent Children's Lawyer that such an order should be made, and I accept it is in K’s best interests.
S’s relationship with her father is also non-existent. She has a meaningful relationship with her mother. Her relationship with her step-father is strained, and, as with K and for similar reasons, I accept the opinion of the expert who prepared the Family Report and the proposals of the Independent Children's Lawyer that no orders should be made in relation to her, other than an order that the husband and wife have equal shared parental responsibility for her. As with K, it was common ground between the husband, wife and Independent Children's Lawyer that such an order should be made, and I accept it is in S’s best interests.
When considering the appropriate parenting orders hereafter, when I refer to the children I am in fact only referring to A and I, unless otherwise indicated.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no evidence that the mother's marijuana use or the manifestations of her depression have resulted in any abuse or neglect of the children. On one occasion when the wife was suffering an acute depressive episode she left the children before the husband had arrived to assume there care, after having phoned home to come and do so. However, while it was unwise and inappropriate for the wife to do so, the husband was nearby and, in the circumstances of the wife's depressive illness, and her otherwise consistently ensuring the care of the children by the husband when she was not able to care for them, I am not satisfied this incident involved neglect, nor am I satisfied there is a risk of abuse or neglect in the future.
Nor am I satisfied the children have been exposed to family violence. There is a medical report of the wife saying that when depressed she would physically attack the husband on very little provocation, and the husband referred to the wife being physically aggressive towards him. However, there is no evidence that the wife's behaviour caused the husband or any other member of their household reasonably to fear for, or reasonably to be apprehensive about, their personal wellbeing or safety (see definition of “family violence”, s.4, Family Law Act 1975).
The other considerations (section 60CC(3)
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
A expressed no clear view about the parent with whom he would prefer to live. While his statement that he wanted to spend an extra day with his mother suggested he otherwise preferred to remain with his father, his reactions to the prospect of being ordered to live with his mother or his father as recorded in the Family Report may be interpreted as indicating a preference to live with the wife.
I was not interviewed for the Family Report, and there is no evidence of any views expressed by her to which any weight could be attached.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Both A and I have close and loving relationships with both their parents, each other and their half-siblings.
While the expert who prepared the Family Report said the two youngest children had a close relationship with S, he could not say how close it was, although he did not agree it was a very close relationship because of the age difference between S and her younger siblings.
It seems likely that the children have significant relationships with the paternal grandparents and the maternal grandmother.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this matter, subsections 60CC(4) and (4A), set out above, are relevant.
Submissions on behalf of the wife sought to suggest the husband has limited the wife’s involvement with the children and had excluded her from decision making about them since separation.
On the contrary, when the husband assumed full time care of the children and moved to W in 2005, he offered to meet all travel costs for the wife to visit the children whenever she wanted, and the wife in fact visited only twice between March and December 2005.
I am satisfied on the evidence that the husband at all times sought to encourage and foster all four children's relationships with their mother, including K’s relationship with his mother when the two became estranged, and to consult with the wife and involve her in decision making about the children. The husband's enrolment of I in Kindergarten despite the wife's view she should wait another year before commencing school was taken after consultation with the wife. The wife taking I to one of her two orientation days at the husband's invitation could be interpreted as acquiescence in the husband's decision. He kept the wife informed about relevant matters concerning all four children, including A’s asthma treatment and K’s refusing to return home to the husband in 2007 and the husband's subsequent action to ensure K received his School Certificate.
The husband also sought to consult with the wife about the children's extra-curricular activities after separation, and where he could not secure the wife's agreement to such an activity for A that clashed with the wife's time with the children, he did not proceed with A’s enrolment in the activity. The wife ultimately agreed to A’s participation in the activity, by which time enrolments had closed.
The wife acted unilaterally in refusing to return the children to the husband in early 2006.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Increasing the time A spends with his mother, as proposed by the Independent Children's Lawyer and the husband, will give him the extra day he told the expert who prepared the Family Report he wanted.
If the children were to live primarily with the wife, as she seeks, the children will need to change schools, and the time the husband spends with the children during the school week will be limited to exclude overnights because of his work commitments preventing him getting the children to school.
The permanence of a move to live with the wife is questionable. In my view there is a clear risk if the children were to live primarily with the wife of a recurrence of an incapacitating depressive episode and the need for the husband to resume primary care of the children, with the disruption attendant on a further change of residence and schools. I base this view on the following facts-
·the wife’s inability in the past to continue to care for the children when suffering an acute depressive episode;
·the medical advice to the wife to cease marijuana use;
·the wife's admission of a link between her marijuana use and acute depressive episodes and that her continued use of marijuana increases the risk of a relapse in her depression;
·the wife's failure to follow up on referrals to drug rehabilitation;
·the wife's continued use of marijuana;
·the wife's cessation of treatment for her depression in the past without medical advice;
·the occurrence of a severe depressive episode after the wife unilaterally ceased medication in the past;
·the wife's failure to call any medical evidence to support her contention that her depression is now well managed; and
·the fact that the wife is not consistently consulting her GP in the management of her depression, only doing so when she feels the need to and at times obtaining anti-depressant prescriptions from another doctor.
A change of the primary care of the children from the husband to the wife, or to an equal time arrangement, raises unanswered question about the care arrangements for the children while the wife is working in her new job of an afternoon after school and in the evening. While she gave evidence of her new work commitments, she failed to articulate her proposals for the care of the children when she was working and the children were not at school. It seemed from her evidence and the cross-examination of the husband that she may be expecting the husband to be available to assume the care of the children whenever she had to work and the children were otherwise to be with her, but the husband not unreasonably seeks predictability and certainty when he will need to care for the children.
There is also a risk that a significant increase in the children’s time in the wife’s may inhibit the husband's ability to maintain the children’s relationships with the paternal grandparents and, perhaps more particularly, the maternal grandmother.
An increase of the children’s time with the wife resulting from an equal time arrangement or from the wife's proposal will result in the children spending more time with S, with whom they have a close relationship.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
While the distance between the homes of the husband and wife is not great, it is sufficient to make mid week overnight time with the husband problematic if the children are primarily living with the wife. It also means that an equal time arrangement or a substantial and significant time arrangement will be similarly problematic unless the children remain at their current schools.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The expert who prepared the Family Report was of the opinion that, subject to two conditions, both parents are capable of adequately caring for the children, although he opined that the wife may be a more nurturing parent than the husband. The conditions to his opinion about the parents’ capacity to adequately care for the children both related to the wife, and were that she is no longer deeply depressed nor heavily using marijuana. While there is no evidence the wife is presently either deeply depressed or heavily using marijuana, I have found there is a risk of the wife relapsing into a severe depressive episode. This on past behaviour would be likely to be accompanied by heavy marijuana use. There must therefore be a risk that the wife's capacity to adequately care for the children may not continue in the future. The wife's unexplained failure to adduce any medical evidence of her present condition or prognosis has deprived the court of an opportunity to make a proper assessment of the extent of that risk, and in the circumstances I proceed on the basis that such evidence would not have assisted the wife's case.
The husband has done a good job of meeting the children’s needs since separation, despite at times trying circumstances and a significant level of parental conflict. Despite that conflict he has fostered all four children's relationships with their mother, and has ensured the continuation of their relationships with their maternal grandmother after the wife became estranged from her. He has shown an appreciation of the need to protect the children from the parental conflict.
The husband is well organised and appears to provide structured, stable routines for the children, and to have rules and standards of behaviour for the children that are consistently enforced. This provides stability and predictability for the children. The possible disadvantage of the husband’s parenting style may be a degree of inflexibility, although he negotiated with S for her to take time off from school to attend a popular music concert, among other things because of the possibility her relationships with her peers, many of whom were apparently attending the concert, could be adversely affected if she too did not attend.
The husband also has his parents to support him in the care of the children. They have done so in the past. He also apparently has the support of the maternal grandmother, who minded the children on at least one of the days this matter was heard.
The wife on occasions has shown a lack of a proper appreciation of the children's need to be shielded from the parental conflict. She more than once directly questioned A in front of the husband about which parent he wanted to live with at times of contention between the parents, she recorded contact changeovers, and she discussed parts of the evidence in the proceedings with S. She also withheld I from Kindergarten on the days she was with her for a month at the beginning of the school year, despite the child being dressed ready to attend school on the weekdays she collected her from the husband, and despite there being no signs of distress or inability to cope with school. This was done after the wife had an opportunity to have the issue resolved in court on 8 January 2007, and she made no effort to do so. When the husband did not immediately agree to S attending the popular music concert, instead seeking further information about who she was attending with and the other arrangements for the excursion, the wife told S to miss school and attend the concert and to lie to the husband about it.
The wife admits to being habitually late collecting and returning the children, and at times getting the children to school on time when in her care. She appears to be a rather disorganised, sometimes perhaps impetuous, person. This may mean less certainty and predictability in the children's routines in her care, and could cause them some anxiety, for example at being late for school or extra curricular activities.
The expert who prepared the Family Report expressed the view that the husband and wife approach their parenting with very different temperaments and characteristics and in his opinion are probably towards opposite extremes of the organisational scale. He was of the opinion that each had significant though different things to offer the children that would be of benefit to them.
Despite the expert who prepared the Family Report expressing the opinion that the wife may be more nurturing than the husband, I find on the evidence that overall, the husband has demonstrated more child-focussed, consistent and stable parenting than the wife, has shown a superior ability to placed the children's interests and needs ahead of his own wants, and is better able to meet the totality of the children's needs than the wife.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
It was submitted on behalf of the wife that I’s gender was a relevant consideration in deciding with which parent the children should live. In my view it is a very minor consideration in the circumstances of this case, the husband having had the primary care of S at the wife's request from separation, when she was 11, until she was nearly 14, with no complaint by the wife of his parenting of her.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Subsections 60CC(4) and (4A), set out above, are relevant to this consideration.
What has been said in relation to the consideration under s.60CC(3)(c), and the comment in relation to the consideration under s.60CC(3)(f) about the wife's exposing the children to the parental conflict, are relevant to this consideration.
The wife's exposure of the children to her marijuana use during cohabitation reflects poorly on the wife. Similarly, her continued use of marijuana despite medical advice, the incapacitating effect of her severe depressive episodes and the changes in the care arrangements for the children they have caused, and the acknowledged link between her marijuana use and the onset of her acute depressive episodes questions the wife's ability to put the children's long term needs ahead of her own desire to use marijuana.
The husband's child-focussed care of the children reflects a commendable attitude to the children and his responsibilities as a parent.
(j) Any family violence involving the child or a member of the child’s family
I have dealt with this under the second primary consideration.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There are no relevant family violence orders in existence.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The matter that would seem most likely to result in further litigation between the children's parents is the husband being posted away from Sydney. If this occurred, a return to court absent parental agreement on new parenting arrangements would result from any of the options under consideration.
Assessment of competing proposals against relevant considerations
I have previously indicated that the only order I consider appropriate for K and S is that the husband and wife have equal shared parental responsibility for them.
Neither the husband, the wife nor the Independent Children's Lawyer sought an equal time order for the youngest two children. However, if an equal shared parental responsibility order is made in relation to them, as sought by the wife and the Independent Children's Lawyer, the court must consider that option.
The husband sought an order that he have responsibility for decisions about the two youngest children's schooling, place of residence in Australia and extra-curricular activities. However, in cross-examination he said it was not his wish to exclude the wife from involvement in making decisions about these matters, and seemed to resile from such an order.
Decisions about the children's schooling, place of residence and extra-curricular activities may all impact on the operation of any parenting orders the court makes. If they did so, and the parents could not agree on new arrangements, the matter would need to return to court. Similarly, if the parties reached an impasse in relation to schooling, place of residence or extra-curricular activities and there was an equal shared parental responsibility order, the parties may need to return to court.
As the husband proposes consulting with the wife in any event on these matters, there thus seems little or no benefit to him in the order he seeks. More importantly, I can see no benefit to the children in the order he seeks, and hence I am not satisfied an equal shared parental responsibility order is not in the children's best interests. I will therefore make an equal shared parental responsibility order.
Thus, I must consider not only the proposals of the husband, the wife and the Independent Children's Lawyer, which include proposals for substantial and significant time, but also the option of an equal time order.
The most significant considerations in assessing the competing proposals appear to be the respective capacities of the husband and wife to meet the children's needs and the effect of change on the children.
In relation to an equal time arrangement, as mentioned neither party seeks it. It immediately raises the issue of which school the children should attend. It would be preferable if they did not change school, although a change would not necessarily be a major detriment to them. If they remained at their current school, a week about arrangement would seem not to be impractical, as the husband would be able to continue his current arrangements for before and after school care for the children. The wife would seem to be able to facilitate the children’s travel to and from their current schools by having S catch a bus to school.
An equal time arrangement would provide the two youngest children with more time with S. While the expert who wrote the Family Report considered the relationships A and I have with S are close, he referred to the difference in their ages as relevant in assessing how close those relationships are. The evidence shows S enjoys spending more time with her friends, as is to be expected of a person her age. The wife's care arrangements for the children are now unclear, and it is uncertain for how much of her half of the children’s time she would be available to care for them. The risk of the wife having a further severe depressive episode and becoming unable to care for the children means there is a risk of impermanence in any arrangement significantly different to the current arrangements. And an equal time arrangement will reduce the children's time with the parent I have found is better capable of meeting their needs.
The wife's proposal that the children live primarily with her would provide the two youngest children with more time with S, but as with an equal time arrangement, S’s increasing independence and pursuit of her own interests reduces the significance of this in practical terms to the maintenance of the relationships between her and her younger siblings. S has lived separate from A and I for 5 months before the conclusion of the hearing, and despite there being evidence about this change, there was no evidence to suggest it had impacted adversely on the relationships between her and her younger siblings. And as with an equal time arrangement, the wife's care arrangements for the children are uncertain. Further, moving to the primary care of the wife would entail a change of school for the children, the husband would be unable to spend overnight time midweek with the children, and there is the risk of impermanence in the arrangement, with the attendant risk of further upheaval for the children in the future. It would also remove the children from the primary care of the parent I have found is better capable of meeting their needs.
The proposal of the Independent Children's Lawyer and the husband have the advantage that it will increase A’s time with the mother by the extra day he specifically said he wanted, it will provide the two youngest children an appropriate opportunity to continue their relationship with both the wife and S, and will continue the children in the primary care of the parent better able to meet their needs. If the wife relapsed into severe depression and could not care for the children, there would be minimal disruption to the children's care. It would also ensure a continuance of the children’s important relationships with the paternal grandparents and maternal grandmother.
Decision in relation to parenting issues
It is therefore in the children’s best interests that the parents have equal shared parental responsibility for them, that they live with the husband and that they spend time with the wife as proposed by the Independent Children's Lawyer and the husband.
The parents agree that changeovers should occur at the parents’ homes when not occurring at school, that the parent to receive the children should undertake the travel, and that no specific orders are needed in relation to facilitating the management of A’s asthma, all of which the Independent Children's Lawyer accepts are appropriate.
The Independent Children's Lawyer sought an order, which the husband opposed, that he give the wife at least six months’ notice of any change of residence as a consequence of his Army service. The husband said that while he usually would receive at least six months’ notice of a posting, this was not always the case. In those circumstances, the order should require the husband to notify the wife as soon as he is notified of a posting that may entail a change of residence.
Otherwise, the orders proposed by the Independent Children's Lawyer are in my view appropriate.
Determination of property issues
The applicable law – property settlement
In determining what property settlement order should be made, the Court must apply the provisions of s.79, which incorporates by reference s.75(2). In Hickey & Hickey; A-G for Commonwealth (Intervener), [2003] FamCA 395; (2003) FLC 93-143; (2003) 30 Fam LR 355, the Full Court of the Family Court of Australia explained the preferred approach in determining property settlement proceedings under s 79, as follows (FamCA at [39]; FLC at 78,386; Fam LR at 370):
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
Where a party seeks a superannuation splitting order, the preferable approach is explained by the majority of the Full Court in the following passage from Coghlan & Coghlan, [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220:
“61. Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
62. The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis. It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements (having regard of course to any division proposed on the basis of their contributions), with consideration then being given to the overall justice and equity of any proposed award or order (including any proposed splitting order). Indeed, this is the approach which the Full court has used on its re-exercise of the trial Judge’s discretion in Ilett and Ilett (which will be delivered contemporaneously with the decision in this case).
63. However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
64. Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered.
65. In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a) value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
(b) consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c) consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d) ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
66. In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.
67. If this approach is adopted, whereby superannuation interests are dealt with separately from property as defined in s 4(1), but are subject to the considerations in s 79(4), then not only will any contributions, both direct and indirect, by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account, both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
68. When we refer to “the real nature” of the relevant superannuation interest, we are referring to the fact that notwithstanding that its value according to the Regulations may well be calculated to be a very significant amount, that superannuation interest may be no more than a present or future periodic sum, or perhaps a future lump sum, the value of which at date of receipt is unknown.”
I note that the second respondent has no interest in the property settlement aspect of these proceedings. When I hereafter refer to the parties, I am referring to the parties to the property controversy, namely the applicant and first respondent.
The pool of divisible assets
The only significant asset or resource of the parties is the husband's superannuation, valued as at 4 August 2006 at $198,619.86. There is no more recent value available. The wife has a modest superannuation interest worth $896.
Otherwise, the parties each have a motor vehicle of modest value acquired after separation, modest sums in credit union accounts and some debts. The husband's legal fees and the debt to his parents in relation to legal fees relate to post separation matters that ought not now be brought to account against the wife.
The personalty owned by the parties at separation has been divided between them, and what each party may now retain is of nominal value.
There remains a credit union debt relating to the Holden motor vehicle that originally was incurred during cohabitation of the husband and wife. Neither party gave evidence as to its current balance, but on the basis the husband paid $5,684 in satisfaction of half of the liability after March 2007, I infer the current balance is no less than that amount.
It was submitted on behalf of the wife that there should be a single pool of assets, liabilities and resources, due to the very modest nature of the non-superannuation items.
In fact, I propose to deal specifically with only two items, namely the credit union debt in relation to the Holden motor vehicle and the husband's superannuation, as the remaining items are of only nominal value.
Assessment of contributions
It was submitted on behalf of the husband that the parties’ contributions should be assessed in the proportions 85/15, favouring the husband. It was submitted on behalf of the wife that the contributions should be assessed as 65/35 favouring the husband.
The husband has been a member of his superannuation fund for a little over 15 years. The husband contributed to his superannuation for about five years before the parties commenced cohabitation and for about 18 months after they separated up to the date of valuation of his superannuation interest. While the husband's superannuation contributions in mid 2007 were $58 per week, there is no other evidence as to the level of his contributions before, during or after cohabitation. Nor is there any evidence of the value of his superannuation interest at any date other than 4 August 2006.
Neither of the parties had any assets of note at the commencement of cohabitation, other than the husband's superannuation interest.
The husband was the primary bread-winner during the parties’ cohabitation, and gave the wife significant assistance with child care and household chores, when not absent on military service or training. The wife was primarily responsible for the homemaker and parent role, and earned a very modest amount from casual work from time to time.
After separation, the husband for the first nine months was responsible for the care and support of the children with virtually no contribution from the wife. Since early 2006, the wife has been seeing the children, and has contributed a very modest amount towards their support, although she was in arrears of her assessed child support payments.
The contributions to the husband's superannuation are made more difficult to appropriately assess by the absence of relevant evidence, referred to earlier. It is not valid to apportion the present value of the superannuation interest pro rata to the period before cohabitation and treat that figure as the husband's contribution at the commencement of cohabitation, in the absence of evidence that would justify such an approach. However, especially in the absence of better evidence, the period of contribution service that preceded cohabitation must be taken into account.
The parties’ contributions as financial providers for the family during cohabitation, a period of a little over seven years, accrue almost exclusively to the husband, while as home makers and parents they strongly favour the wife. As at the date of separation, I assess their contributions, other than the husband's contributions before cohabitation to his superannuation, as favouring the husband.
In the period since separation, about 3 years, the husband has continued to be the almost exclusive provider of financial support for the children, and he has made a far greater contribution as homemaker and parent. He has met the outgoings on the Holden motor vehicle until early 2007, despite the fact the wife had the exclusive of this vehicle. In my view, the contributions, financial and non-financial, since separation very strongly favour the husband.
I assess the parties’ respective contributions overall, apart from the husband’s pre-cohabitation contributions to his superannuation, as favouring the husband in the proportions 65/35. Doing the best I can on the limited evidence, taking into account that the husband had his superannuation interest at the commencement of cohabitation, I assess contributions to the superannuation interest as 70/30 favouring the husband.
Assessment of non-contribution considerations
The parties are of the same age, and both are in good general health. The husband has a greater income earning capacity than the wife, although the wife's earning capacity is difficult to accurately assess as she had not sought full time work after the parties’ separation, and she has only just commenced work in her present primary employment, and the long term level of commission she may earn is unknown.
Based on the parenting orders I have foreshadowed, the husband will have the primary care of the parties’ two children. The wife will have the care of S. Based on the experience of the three years since separation, it must be doubtful whether the husband will receive any significant child support from the wife.
Of relevance under s.75(2)(o) is that the husband's contributions, both financial and as homemaker and parent, and both during cohabitation and after separation, have included contributions to the wife's two children of her prior relationship. She received no child support from the father of the eldest two children.
The husband's greater contribution-based entitlement to the superannuation, and the likelihood that his income earning capacity is and will be greater than the wife's, favour an adjustment of the contribution based entitlement in the wife's favour. However, in my view these matters are counterbalanced by the husband's ongoing primary care of the two youngest children, the likelihood he will receive little financial support for them from the wife and his contributions to the wife's two eldest children.
Accordingly, I am not satisfied any further adjustment is warranted to the parties’ contribution based entitlement.
Just and equitable orders for property settlement
In relation to the non-superannuation items, as mentioned all but the credit union debt for the Holden are of nominal value and ought to be left undisturbed.
In relation to the credit union debt, the assessment of contributions as favouring the husband 65/35 would apply to both assets and liabilities. He has paid half the debt, and it is uncertain on the evidence what attitude the credit union takes to the remaining liability. Ultimately, no specific submissions were made on behalf of the husband as to his application that the wife indemnify him in relation to this debt. In the circumstances, I do not propose to make any order in relation to this debt.
A splitting order should be made in relation to the husband's superannuation interest specifying a base amount approximating a 30% share of its value, which I will round to $59,500.
I am satisfied the trustee of the husband's superannuation fund has been given notice of the proceedings and that a splitting order is being sought on the basis of a base amount. I am thus satisfied the trustee has been afforded procedural fairness and the splitting order will bind the trustee.
I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Halligan FM.
Associate: Deanne Bush
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