Neville and Neville
[2013] FamCA 925
•29 November 2013
FAMILY COURT OF AUSTRALIA
| NEVILLE & NEVILLE | [2013] FamCA 925 |
| FAMILY LAW – CHILDREN – final orders – with whom a child should live – with whom a child should spend time – where the mother seeks to relocate herself and the children to Country A – best interests – no orders made concerning the relocation of the mother with the children to Country A – orders made for the children to live with the parties on a week about basis. FAMILY LAW – PROPERTY SETTLEMENT – final orders – adjustment of property interests – consideration of assets and liabilities of the parties – consideration of s 79(4) of the Family Law Act 1975 (Cth) – consideration of s 75(2) of the Family Law Act 1975 (Cth) – orders made. |
| Family Law Act 1975 (Cth) s 60CA; 60CC; 61DA; 65DAA; 75; 79; 80; 81 |
| Morgan & Miles (2007) FLC 93-343 Malcolm & Monroe (2011) FLC 93-460 Starr & Duggan [2009] FamCAFC 115 MRR v GR (2010) 240 CLR 461 Bevan & Bevan [2013] FamCAFC 116 Heaton & Heaton [2012] FamCAFC 139 Sayer & Radcliffe & Anor [2012] FamCAFC 209 Stanford & Stanford [2012] HCA 52 |
| APPLICANT: | Ms Neville |
| RESPONDENT: | Mr Neville |
| FILE NUMBER: | DNC | 254 | of | 2011 |
| DATE DELIVERED: | 29 November 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 12 April 2013; 15 - 19 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Farmer |
| SOLICITOR FOR THE APPLICANT: | Withnalls Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Truman (with Mr Barry) |
| SOLICITOR FOR THE RESPONDENT: | Cecil Black Family Lawyers |
Orders
The parents have equal shared parental responsibility for K born … 2002 and B born … 2004 (“the children”).
During school terms, except as otherwise provided in these orders, the children shall live with the parties on a week about basis with the exchange of the children occurring on the Monday at the conclusion of school, except as otherwise provided for in these orders.
During the one week term 1 school holidays:
(a)the children in even numbered years live with the father for the one week holiday;
(b)the children in odd numbered years live with the mother for the one week holiday;
(c)for the purposes of these orders or unless agreed to in writing between the parties the week commences when school finishes on the last day of term 1 and concludes at drop off on the day that term 2 commences.
During the two week term 3 school holidays:
(a)the children shall live with the father for the first week and the mother for the second week;
(b)for the purposes of these orders or unless agreed to in writing between the parties the first week commences when school finishes on the last day of term 3, the second week commences at 5.00 pm on the following Sunday and the second week concludes at drop off on the day that term 4 commences.
During the mid-year school holidays the children shall live with each of the parties as follows:
(a)in odd numbered years with the father for the first half of the school holidays and with the mother for the second half of the school holidays;
(b)in even numbered years with the mother for the entirety of the school holidays;
(c)unless otherwise agreed the first half of the mid-year school holiday period commences when school finishes on the last day of term 2 and the second half commences at 5.00 pm on a Sunday concluding at 8.00 am on the first day of term 3.
During the Christmas school holidays the children shall live with each of the parties as follows:
(a)in odd numbered years with the mother for the entirety of the Christmas school holidays;
(b)in even numbered years with the father for the first half and with the mother for the second half of the Christmas school holidays;
(c)unless otherwise agreed the first half of the Christmas school holiday period commences when school finishes on the last day of term 4 and the second half commences at 5.00 pm on a Sunday concluding at 8.00 am on the first day of term 1 in the following year;
(d)in the event both parties are present in Darwin on Christmas the parent who is not otherwise scheduled to spend time with the children shall spend time from 2.00 pm Christmas Day to 2.00 pm Boxing Day.
In the event that the children are to travel to Country A, the father shall purchase per year:
(a)for 4 years from the date of these orders a return plane ticket from Darwin to City C for both of the children; and
(b)thereafter until the child B turns 16 years of age a return plane ticket from Darwin to City C for one of the children.
The father and the mother may spend additional time with the children as agreed in writing between the parties.
On non-school days and on “special days” the parties shall exchange the children at their respective place of residence or a mutually agreed location to be confirmed in writing.
On occasions of special significance (“special days”) the children shall spend time with the parties as may be agreed in writing between the parties and in default of agreement as follows:
(a)on the children’s and the relevant parent’s birthday, each parent shall spend time with the children as follows:
(i)on the parent’s birthday from 2.30 pm or when school finishes (if applicable) the day before the parent’s birthday to 8.00 am the day after the parent’s birthday;
(ii)on the children’s birthdays in even years the mother shall spend time with the children from 2.30 pm the day before the children’s birthdays to 1.00 pm on the child’s birthday, and on odd years from 1.00 pm on the child’s birthday to 8.00 am the next day;
(iii)on the children’s birthdays in even years the father shall spend time with the children from 2.30 pm the day before the children’s birthdays to 1.00 pm on the child’s birthday and in even years from 1.00 pm on the child’s birthday to 8.00 am the next day;
(b)the children will spend Father’s Day with the father from 8.00 am until before school the following day;
(c)the children will spend Mother’s Day with the mother from 8.00 am until before school the following day.
During the Easter period, the children shall spend time with the parents as follows:
(a)in even years, the children shall spend time the Easter holiday period with the father;
(b)in odd years, the children shall spend the Easter holiday period with the mother;
(c)for the purposes of these orders or unless agreed in writing between the parties the Easter holiday period commences at 8.00 am on Good Friday and ceases at 5.00 pm on Easter Monday.
Either party may take the children interstate or overseas whilst the children are in the party’s respective care as provided for in these orders on the condition that at least fourteen [14] days prior to departure or unless otherwise agreed in writing the travelling parent shall provide to the other parent full particulars of the travel arrangements, destination and accommodation proposed for the children during the period of travel UPON NOTING should one party be interstate or overseas when a “special day” falls, the other party’s time with the children is suspended for the duration of the “special day”.
The children shall be at liberty to speak with either parent on the telephone at all reasonable times and each parent shall once per day facilitate the children to speak to the other parent.
The parties to keep each other promptly informed as to any emergency, illness or medical concerns in relation to the children in a timely manner and if there are any matters of an urgent nature, the parent who has the care of the children will notify the other parent immediately.
The parents will both be entitled to attend any of the children’s school or extra curricula activities to which parents are ordinarily invited to attend.
Each parent shall be entitled to obtain copies of the children’s health care records and to discuss matters with the children’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.
Neither parent will denigrate the other to or in the hearing of the children and shall refrain from discussing all matters pertaining to disputes of any nature with or in the hearing of the children.
Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and e-mail address at all times and shall notify the other of any changes to their contact details within three [3] days of any change.
Each parent carry out all necessary actions and sing all necessary documents to obtain/renew both Country A and Australian passports for the children, and for the purposes of these orders or unless otherwise agreed to in writing:
(a) the Australian passports will remain in the father’s possession;
(b) Country A passports to be held by the mother;
(c)should either party fail to sign all necessary documentation, a Registrar of the Court upon proof by affidavit of such failure is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute any such documents on behalf of the mother and father to give force and effect to this order.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
In full and final settlement of any claim which either party may have for settlement of property, alteration of interest in property:
The father shall retain to the exclusion of the mother, the camping trailer and other personal property items currently in his possession.
The mother shall retain to the exclusion of the father her motor vehicle and save as hereafter set out the other personal property items currently in her possession.
Within fourteen [14] days the mother shall deliver up to the father who shall thereafter retain the same to the exclusion of the mother the following items:
(a) copies of all photographs of the children;
(b)copies of all photographs upon / or the original of one black tri-fold photo board of the children;
(c)all of the father’s personal possessions and other items which are currently in the power, possession or control of the mother including but not limited to:
(i)work tools held in storeroom;
(ii)any personal clothes and personal effects belonging to the father;
(iii)blue storage container;
(iv)leather lounge and side tables;
(v)nice mirror;
(vi)pool chairs;
(vii)half the outdoor pots;
(viii)wheel barrow;
(ix)garden tools;
(x)compressor;
(xi)bread maker;
(xii)didgeridoo;
(xiii)Aboriginal art work;
(xiv)any personal papers held in filing cabinet;
(xv)large buffet with glass doors;
(xvi)three piece coffee/end table set;
(xvii)half of the shelving units.
Should the father be able to obtain the necessary finance and to complete the transactions within ninety [90] days of the date of these orders:
(a)the mother do all acts and things and sign all documents to the effect a transfer to the father of all her right title and interest in D Street, E Town in the Northern Territory (“the former matrimonial home”) with the father to do all acts and sign all documents to refinance and discharge mortgages … and … in favour of the ANZ Banking Group Limited;
(b)the mother do all acts and things and sign all documents necessary to facilitate the discharge of mortgages … and … in favour of the ANZ Banking Group Limited;
(c)the father pay to the mother the sum of TWO HUNDRED AND FOURTEEN THOCOUNTRY AND SEVEN HUNDRED AND SIXTY TWO DOLLARS [$214,762.00] by way of bank cheque;
The father shall indemnify and keep indemnified the mother in relation to the outstanding loan in the sum of TWENTY-FIVE THOCOUNTRY AND DOLLARS [$25,000] to Mr F and Ms G Neville.
Should the father be unable to comply with Order (25) above
(a)the property shall be sold at auction at a price and upon such terms as McGees recommend, with the proceeds of sale to be applied as follows:
(i)payment of all costs and expenses of sale including disbursements, payments or rates and any other charges due on the property (excepting electricity and phone charges), agents commission, valuers fees and advertising expenses;
(ii)the amounts required to discharge the mortage(s) registered on the said property title;
(iii)pay out in full the ANZ supplementary loan in the husband’s name.
In payment of the sum of TWO HUNDRED AND FOURTEEN THOCOUNTRY AND SEVEN HUNDRED AND SIXTY TWO DOLLARS [$214,762.00] to the mother and the balance if any to the father PROVIDED THAT if the proceeds of sale after compliance with paragraph (27) hereof amount to less than the sum of TWO HUNDRED AND FOURTEEN THOCOUNTRY AND SEVEN HUNDRED AND SIXTY TWO DOLLARS [$214,762.00] the balance shall be the amount to be paid to the wife.
The children’s funds being held in trust for the children continue to be held in trust for the children together with the children’s quads and 70 cc motorbike and bicycles.
Unless otherwise provided for these Orders and save for the purposes of enforcing any monies due under these orders or any subsequent Family Law Act 1975 (Cth) orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) which is in their possession at the time of these Orders;
(b)each party be solely entitled to the exclusion of the other, to any monies, shares, debentures, investments and superannuation entitlements which stand in their sole name or to their credit;
(c)each party forego any claim they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the owner named thereon;
(e)each party is solely liable for and indemnifies the other against the any liability encumbering any item of property to which that party is entitled pursuant to these orders and any taxation liabilities associated with the property subject to these orders;
(f)each party is solely liable for and indemnifies the other against any debt of any kind whatsoever that is in their sole name;
(g)any joint tenancy of the parties is hereby severed immediately;
(h)the parties remain individually liable for any taxation liability that may accrue or has accrued up to and including the date of these Orders and shall continue to remain individually liable for any such liability accrued thereafter and shall indemnify the other regarding same.
The parties acknowledge that the terms of these Orders are intended to end their financial relationship as far as possible in relation to property settlement pursuant to the provisions of section 81 of the Family Law Act 1975 (Cth).
In the event of a failure by either party to sign all documents and carry out all acts necessary to give full force and effect to these orders within fourteen [14] days of a written request to do so, a Registrar of the Family Court of Australia is hereby appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute any necessary documents and carry out any necessary acts to give force and effect to these orders at the expense of the defaulting party.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Neville & Neville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNC 254 of 2011
| Ms Neville |
Applicant
And
| Mr Neville |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings between the applicant Ms Neville (“the mother”) and the respondent Mr Neville (“the father”) involve issues concerning the children of the parties’ marriage, K born in 2002 and B born in 2004 (“the children”) and final property settlement.
The Hearing
The hearing commenced before me on Friday 12 April 2013 and concluded on Friday 19 April 2013.
The father was represented by Ms Truman of Counsel and the mother by Ms Farmer of counsel.
Main Issues
The main issue in relation to the children’s proceedings was whether the mother should have permission to relocate with the children to live permanently with the children in Country A. This proposal by the mother was opposed by the father. The father proposed that the children continue to reside in Darwin in the Northern Territory and live with the parties on a week about basis.
Both parties made detailed and specific proposals concerning arrangements for the children to spend time with each of them during school holidays and special occasions. Many of the proposals of both parties in relation to special occasions and travel arrangements were similar, and in some cases, the same.
The mother proposed that if the children were not permitted to relocate to Country A with her, that they live with her primarily and during school terms live with the father from after school every second Thursday to the following Tuesday.
At the conclusion of the hearing the main property settlement orders which the mother sought provided for her to retain her savings, motor vehicle, private possessions and superannuation on the basis that if the father wished to retain the E Town property (“the former matrimonial home”), she would transfer the same to him on payment of the sum of $200,000. She also sought a superannuation splitting payment of a base amount of $60,000.
The significant orders sought by the father included that he be given an opportunity to obtain finance to enable the former matrimonial home to be transferred to him upon him paying to the mother the sum of $135,733, together with a superannuation splitting order to the mother of $69, 029.
The issues in relation to the children’s proceedings centred around various factors dealing with their possible relocation, the history of alleged violence in the family, the mother’s psychological and mental health, the relationship between the children and each of the parents and other persons and the history of the family living in Australia and Country A.
Documents relied upon and witnesses who gave evidence
The mother relied upon the Initiating Application filed on 20 July 2011, interim Consent Orders which were made on 15 November 2011 and her reply of 8 December 2011. It was also noted that a spouse maintenance order was made on 17 February 2012.
At the final hearing the mother relied on the affidavit of herself filed on 27 February 2013, the affidavit of Ms H (Counsellor now living in City I, Country A), the affidavit of Ms J (the mother’s mother) filed on 27 February 2013, the affidavit of Ms L (friend) filed on 28 February 2013, the affidavit of Dr M (Consultant Psychiatrist) filed on 5 March 2013 and the affidavit of Ms N (former girlfriend of father) filed on 5 April 2013.
All of those witnesses were required to give oral evidence and to be cross-examined. Witnesses Ms H and Ms J were arranged to give evidence by IPVC (internet video connection) from Country A.
The father relied upon his amended response filed on 1 March 2013, his affidavit filed on the 8 March 2013 with annexures and his Financial Statement filed on 1 March 2013, together with the affidavits of Ms G Neville (father’s mother), Ms O (friend who lives in Country A), Ms P (work colleague from Country A), Ms Q (father’s sister) and Ms R (father’s current partner) all filed on 1 March 2013.
All of those witnesses were required to give oral evidence and be cross-examined with some evidence being by IPVC (internet video connection) from Country A.
The Court received the report of the Family Consultant, Mr S, dated 15 February 2013. Mr S also gave oral evidence.
Summary of relevant background
The mother was born in 1969 in Country A. She is now aged 44. The father was born in 1971 in Hobart, Tasmania and is now aged 42.
The father purchased a property at T Street, Suburb U in June 1995 with his then wife, Ms V.
In about 1996/1997 the father was employed at the school in City C, Country A, where the mother also worked.
The parties commenced living together in Darwin in April 1998, when the mother travelled to Australia.
In late 1998 the father and mother purchased a property at W Street, Suburb X for $194,500.
The parties married in Darwin in 2000.
In or about August 2001 the mother and father moved from Darwin to City C in Country A.
Subsequently K was born in 2002 City Y, Country A. B was born in 2004 at City X, Country A.
For some of the time when the parties were in Country A, the mother was teaching part-time, the father was also employed at various schools. He became an Assistant Principal of a school in City C in mid-2003.
In January 2005 the mother, father and the two children moved back to Darwin, Australia. In early January 2005 they purchased D Street, E Town (“the E Town property”). The father asserts that $25,000 was provided by his parents to assist him in the purchase.
In January 2005 the father commenced employment at Z School in Darwin. Subsequently, the mother found employment at the Z School.
There were various changes in the mother’s and father’s employment over the time they resided in Darwin.
The mother became an Australian Citizen in May 2009.
Whilst the parties were residing together, the mother travelled to Country A. In December 2007 / January 2008 the mother and children spent the entire school holidays in Country A. The father visited for a short time, returning to Australia due to work commitments.
It is alleged in October 2008 that the mother took the children to Country A without the father’s consent.
The parties and the children again visited Country A at Christmas 2010, with the father only staying in Country A for part of the holiday.
The parties separated in June 2011.
The mother commenced property settlement proceedings on 20 July 2011.
In October 2011 the father filed his response seeking orders in relation to the children. Amendments have since been made to the orders sought.
Since the parties’ separation, the father has formed a relationship with Ms R.
The father commenced employment at the AA School in January 2013.
The Law
Children’s Issues
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the matters which the Court is required to take into account when deciding children’s issues. The most relevant of these provisions in this matter are sections 60B, 60CA, 60CC, 61DA and 65DAA.
Section 60B
Object 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.
Section 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 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.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child;
and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1) (a) to (c) or (if applicable) the matters referred to in paragraphs (2) (c) to (e).
(6) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
The High Court decision of MRR v GR (2010) 240 CLR 461 dealt with the significant provisions of Part VII of the Act. The Full Court decision of Heaton & Heaton [2012] FamCAFC 139 dealt with the application of the legislation in relation to relocation cases. Paragraphs 36, 37 and 38 the Full Court judgment state:
36. Their Honours continued:
His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances…
37.We regretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable. He did not do this.
38.These errors are such that the appeal must succeed. As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.
In the decision of Sayer & Radcliffe & Anor [2012] FamCAFC 209 the Full Court set out the relevant principles at paragraphs 46, 47 and 48.
46.While it is apparent that the mother’s primary complaint in the appeal is the Federal Magistrate’s denial of permission to relocate to Maryborough, it is important to recall that the application before her Honour was that of the father for parenting orders. The consideration of relocation arose later, in the mother’s response to the father’s application, as an order sought by her, and then more urgently when the mother had in fact moved to Maryborough with the children.
47.It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
In paragraph 49 of the judgment the Full Court Judges set out the relevant sections of the Act as set out above. The Full Court then quoted the High Court in MRR v GR (Supra) and in particular emphasised paragraph 15:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
The Full Court then quoted at length from the Full Court decisions of Starr & Duggan [2009] FamCAFC 115 and Heaton & Heaton (Supra).
The joint judgment of Faulks DCJ and Crisford J in Malcolm & Monroe (2011) FLC 93-460 approves the methodology for relocation cases proposed by Boland J in Morgan & Miles (2007) FLC 93-343. That approach is outlined at paragraphs [79]–[80] of Her Honour’s judgment in Morgan & Miles (Supra):
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80.It follows from my exposition of the legislation, that earlier core principles:
i.that the child’s best interests remain the paramount but not sole consideration;
ii.that a parent wishing to move does not need to demonstrate “compelling” reasons;
iii.that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
iv.the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81.What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Property Settlement
The main sections in financial proceedings are:
Section 75
Matters to be taken into consideration in relation to spousal maintenance
(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4) In this section:
party means a party to the marriage concerned.
Section 79
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to a marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including
(c) an order for a settlement of property in substitution for any interest in the property, and
(d) an order requiring:(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(1A) An order made under subsection (1) in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(1B) The court may adjourn property settlement, except where the parties to the marriage are:(a) parties to concurrent, pending or completed divorce or validity of marriage proceedings; or
(ba) parties to a marriage who have divorced under the law of an overseas country, where that divorce is recognised as valid in Australia under section 104; or
(bb) parties to a marriage that has been annulled under the law of an overseas country, where that annulment is recognised as valid in Australia under section 104; or
(c) parties to a marriage who have been granted a legal separation under the law of an overseas country, where that legal separation is recognized as valid in Australia under section 104;
on such terms and conditions as it considers appropriate, for such period as it considers necessary to enable the parties to the marriage to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage, but nothing in this subsection shall be taken to limit any other power of the court to adjourn such proceedings.
(1C) Where the period for which a court has adjourned property settlement proceedings
as provided by subsection (1B) has not expired and:(a) divorce or validity of marriage proceedings are instituted by one or both of the parties to the marriage; or
(ba) the parties to the marriage have divorced under the law of an overseas country and the divorce is recognised as valid in Australia under section 104; or(bb) the marriage is annulled under the law of an overseas country and the annulment is recognised as valid in Australia under section 104; or
(c) the parties to the marriage are granted a legal separation under the law of an overseas country and the legal separation is recognized as valid in Australia under section 104;
a party to the first-mentioned proceedings may apply to the court for the hearing of those proceedings to be continued.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
(5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in property settlement proceedings, a court is of the opinion:
(a) that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and
(b) that an order that the court could make with respect to:(i) the property of the parties to the marriage or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the marriage;
if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to
(iii) the property of the parties to the marriage or either of them; or
(iv) the vested bankruptcy property in relation to a bankrupt party to the marriage;
the court may, if so requested by either party to the marriage or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the marriage or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances.
(6) Where a court proposes to adjourn proceedings as provided by subsection (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to
(a) any property of the parties to the marriage or of either of them; or(b) any of the vested bankruptcy property in relation to a bankrupt party to the marriage.
(7) The court may, in forming an opinion for the purposes of subsection (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the marriage, have regard to any change in the financial circumstances of a party to the marriage that may occur by reason that the party to the marriage:
(a) is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or
(b) may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property;
but nothing in this subsection shall be taken to limit the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the marriage.
(8) Where, before property settlement proceedings are completed, a party to the marriage dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii) any property of the parties to the marriage or either of them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(9) The Family Court, or a Family Court of a State, shall not make an order under this section in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless:
(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be;
(b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).
Section 80
General powers of court
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2) The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
(3) The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
(4) If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
(5) If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
(6) Subsections (4) and (5) do not limit paragraph (1)(d).
Section 81
Duty of court to end financial relations
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
When considering matters under s 79 of the Act it is necessary to give consideration to the High Court decision of Stanford & Stanford [2012] HCA 52 and the discussion of that case in the Full Court of the Family Court of Australia decision of Bevan & Bevan [2013] FamCAFC 116.
Discussion of evidence
Evidence of the mother
The mother relied upon her affidavits and was cross-examined at length. At times the mother became upset. She was at times particularly tearful when matters were put to her that indicated she had not been entirely truthful.
The mother’s evidence included allegations of violent behaviour by the father. (The father vehemently denied these allegations, save on one occasion that he admitted, and regretted, slapping the mother).
The mother’s case contained considerable evidence about allegations of the father’s infidelity during his relationship with the mother and the concern of the mother and her family about the alleged infidelity.
The evidence indicates that there was at times a very difficult relationship between the father and the mother.
Some of the mother’s evidence related to the emotional difficulties she has faced and would face if she were required to continue to live in Darwin.
There were inconsistencies in her evidence, particularly about her interpretation of the arrangements made for the family to reside permanently in Darwin (which she denied) and her inability to accept the effects of the anger which she had shown towards the father.
The mother’s claim to have been subservient to the father is contradicted by her messages sent to the father and other people.
The mother’s witnesses were generally supportive of the mother’s desire to move with the children to Country A. They supported the mother’s negative view of the father.
Much of the evidence of the witnesses who supported the mother, related to their criticism of the father because of his alleged relationships with other women and the part this had played in the breakdown of the parties’ relationship.
There was limited evidence from these witnesses concerning the father’s relationship with the children.
Evidence of the father
The father’s credibility was at times called into question in relation to his attitude towards the mother and the acrimony in their relationship. He was not seriously challenged on his evidence concerning his relationship with the children and their relationship with his current partner.
His witnesses were generally supportive of the father and his proposals for the care of the children in Australia.
Evidence of the Family Consultant
Mr S, the Family Consultant, prepared a report dated 15 February 2013. His detailed report included consideration of various issues raised by the parties and interviews with the father and separate interviews with the mother in January 2013. He also interviewed the paternal grandmother and the father’s current partner, Ms R in January 2013. In January 2013 the Family Consultant also conducted interviews with the children and undertook “unstructured observations” of the children with each parent and on one of those occasions with Ms R as well.
The Family Consultant also took into account a large amount of material provided by the parties and on the Court file. The experienced Family Consultant came to a conclusion in the detailed report commencing under the heading “Evaluation” at page 15 and continuing to the “Recommendations” at page 18. In particular he dealt with the possible attempts by the parties to influence the children and to align the children with their cause.
In the report the evaluation section commences with paragraph 90:
Both children are physically safe in the care of each parent. Both children describe each parent in very positive emotional terms. There is a question for me about whether each parent could have set out to influence the children, perhaps unwittingly, regarding the choice of relocating or not relocating. It would appear from the children’s account (bearing in mind [B’s] admission of having lied initially about what the mother had said) that the mother has spent much more time attempting to influence the children, or at least [B].
His recommendations set out in paragraph 106 were:
I recommend to the court and the parents that the mother’s application for relocation with the children not be viewed favourably. The children would continue living in Darwin under the present arrangement, with consideration being given by the court and parents to a week about arrangement.
I consider now the evidence in the context of the consideration required pursuant to Part VII of the Act.
The presumption of equal shared parental responsibility set out in section 61DA must be considered. Both parties sought orders which provided that they have equal shared parental responsibility for both children, whether or not the children lived in Country A or Australia.
The parties maintained this position at the conclusion of the trial.
Notwithstanding the past difficulties in the parties’ relationship and communication, this presumption is not rebutted by any evidence before the Court.
Section 65DAA therefore requires the Court to consider whether spending equal time with each parent is in the best interests of the children and whether it is reasonably practicable.
The evidence before the Court is that the mother would consider remaining in Darwin area if she was not permitted to take the children with her to Country A. The father’s evidence raised serious questions about the reasonable practicality of him spending equal time with the children if they were to relocate to Country A.
I am satisfied that it would not be reasonably practicable for the children to spend equal time with each of the parents if they resided in Country A with the mother. This is based upon the considerable doubt concerning the father’s ability to reside permanently in Country A and obtain employment in an area which would allow him to spend equal time with the children.
The same considerations apply to the provisions of s 65DAA (2) which applies to the children spending substantial and significant time with each of their parents.
In contrast however it is clear from the evidence received and the final submissions of both parties, that if the children remain residing in Darwin, then it would be reasonably practical for the children to spend equal time or substantial or significant time with each of the parents.
It remains therefore to be considered whether the relocation to Country A would be in the best interests of the children and whether equal time with each parent or substantial or significant time with each parent is in the children’s best interests.
This therefore requires the Court to consider the evidence applying the provisions of s 60CC to determine what is in the children’s best interests.
Mr S was cross-examined at length, but even with the further material put to him, maintained his recommendation.
When considering the reasonable practicability of the children spending equal time or substantial and significant time with each parent, the Court needs to take into account the factors in section 65DAA(5) which include the parents capacity to communicate with each other and resolve difficulties and how far apart the parents live. This has to be considered in this case taking into account that both parties are asking the Court to make an order for equal shared parental responsibility.
If the children live in Country A, then the parents’ capacity to communicate and implement an arrangement may be made possible by modern technology. If the parents and children reside in the Darwin area then such communication will also be possible using technology and occasional face to face discussions.
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The submissions on behalf of the parties and their evidence indicated that both parents supported the children maintaining a meaningful relationship with the other parent, however, the father maintained that the mother, had not and would not, continue to foster a relationship between the children and the father if she were permitted to relocate to Country A with the children.
The evidence indicates that the mother has expressed strong, critical emotions when referring to the father.
The evidence also indicates that the mother made arrangements to take the children to Country A without consulting the father before she made those arrangements.
The evidence of the parties and their witnesses, in particular the evidence of the mother’s attitude to the father and her actions taking the children to Country A, establishes that the meaningful relationship with both of the children’s parents is much more likely to be maintained if the children continue to reside in Darwin and spend equal or substantial and significant time with each of the parents.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence;
The mother alleged that the father had on three occasions been physically violent towards her. The father vehemently denied the allegations, but admitted that on one occasion in 2005 he had slapped the mother with an open hand. He said that this occurred in 2005 when the mother had thrown a jar at him and had come towards him with her fists drawn.
In his affidavit he admitted this incident and expressed remorse.
I was asked to accept the evidence of the father rather than the mother on the basis that the mother had not reported this specific incident to her family or friends, except to a limited extent. This is not a factor which would necessarily require me to reject the mother’s evidence.
However I prefer the evidence of the father in relation to the allegations of domestic violence.
Both parties admitted that the relationship had in the past involved verbal arguments and that some of these were heated arguments.
In the Family Report, Mr S the Family Consultant, concluded after the interviews with the parties and the observations of the children with the parties, that there was no fear exhibited by either child about the father and concluded that the children “did not reveal any scintilla of apprehension or diffidence about interaction with either parent” (paragraph 89 of Mr S’s report).
I am satisfied that since the separation the parties have an awareness of the children’s needs and both parties will attempt to behave in a way which reduces any risk of psychological harm for the children.
The evidence before the Court is not sufficient to establish on the balance of probabilities, taking into account the seriousness of the allegations that the behaviour of the parties in the past brings about a need to protect the children from being subject to, or exposed to, any abuse.
This will continue to apply whether the children remain in Darwin or travel to Country A.
Additional considerations (which apply to these children’s proceedings commenced in October 2011).
(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;
In this matter the ages of the children and the difficulties which arise when considering any influence the parents have exerted on the children expressing their wishes are relevant.
The Family Consultant took into account their age, the possible influence of the parents and the various changes in their living arrangements when he concluded in paragraph 103 that the children:
…have yet to reach the age and maturity of reflective decision-making, most especially in this very weighty and complicated separated family dispute, where their views could be deemed as reasonably determinative. In essence, [B] is not exactly jumping out of her skin to relocate, but seems to be empathetic of her mother’s powerful desire to do so, while [K] is much more nuanced in his thinking, being keenly aware that leaving his father would be a very significant step, one he might not wish to pursue. In general he appears understandably confused and torn between his parents. I gauge that neither of them are in the appropriate emotional and developmental space at this point of their lives to be relocating.
The Family Consultant also concluded that the mother may have done more in attempting to influence the children, particularly B, than the father. Taking these factors into account the expressed wishes of the children should not be given significant weight in this matter. It is clear however, that the children would readily adapt to remaining in Darwin, and would have the support of the mother and their family if they were to relocate to Country A.
(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);
I accept the evidence of both parties that the children have a close, strong relationship with each of the parents.
I accept the evidence of the father and Ms R that the children have a close relationship with Ms R and enjoy their time with her.
The children also have had ongoing relationships with the mother’s extended family in Country A, however in this matter the nature of the relationship and the importance of the relationship between the children, the mother, the father and Ms R are the significant factors.
(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;
Both parents gave evidence about being willing to facilitate a close relationship between the other parent and the children. However, it is significant that both parents will have a much greater ability to facilitate a close relationship with the other parent if the children and the parents remain in Darwin.
(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;
This is a significant factor if the mother relocates with the children to Country A. The children’s relationship with their father would be significantly impacted. The existing strong relationship would be put at risk because of the difficulties involved in communication and travel. The Family Consultant reported upon the current, positive relationships with each parent and the risks that the children would face in maintaining the strong relationship if there were difficulties in arranging regular face to face time with the father and the children. I accept and rely upon this evidence.
I am satisfied that the mother’s past behaviour and her attitude towards the father establishes a sound basis for the father’s concerns that the mother would resist and make it difficult for the father to spend regular time with the children if she were permitted to take the children to live in Country A.
This view is supported by the Family Consultant whose evidence included his concerns about the negative influence the mother had exerted upon the children.
(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;
This factor is a significant factor and connected to the likely effect of any changes in the children’s circumstances as set out above.
I accept the father’s evidence that he has and will have significant practical difficulty in obtaining permission to live and work in Country A. No emphasis should be placed on the fact that this has been brought about because the parties are now divorced. It would be inappropriate for the marriage to be maintained as a “sham” in order to increase the father’s chances of obtaining permission to live and work in Country A.
(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;
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
These factors are considered together. Both parents have established a capacity to provide for the children’s day to day practical, educational and intellectual needs. The question remains whether each party has the capacity to provide for the emotional needs of the children.
The Family Consultant’s evidence raised the issue of the mother’s inappropriate influence upon the children. This concern was also raised by the father’s evidence concerning the mother’s behaviour when dealing with him and her failure to involve the father in significant decisions about taking the children away from Australia.
I accept that the father’s evidence that he would have a greater capacity to provide for the children’s practical needs if the children remained in Australia, where he has full time employment. I also accept the mother’s evidence that currently her capacity to provide for the children’s needs would be greater in Country A where she is more likely to have the employment opportunities and the support of her extended family.
(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;
The mother provided evidence concerning her family background and lifestyle in Country A which the children have enjoyed from time to time. The children have also enjoyed the lifestyle and background of living in Darwin. These factors therefore do not carry particular weight in this matter.
(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;
and
(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;
These factors are not relevant in this matter.
(j)any family violence involving the child or a member of the child's family;
I previously dealt with the issue of family violence under section 60CC(b).
(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;
It is usually preferable for the orders to be made which make it least likely for the family to be exposed to further proceedings.
Both parties have provided detailed orders in relation to the various options, setting out particular orders permitting the children to travel to ensure that they have the benefit of time with extended family, including overseas travel.
(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.
The parents’ obligations to fulfil their obligations to maintain the children are not significant matters in this case. The father has attempted to participate in decisions, even when the children have been residing in Country A. He has taken steps to spend time with and communicate with them taking into account the difficulties and distance involved.
I am satisfied that both parties have taken steps to fulfil their obligations to maintain the children, notwithstanding the mother’s complaints about the father’s payment of child support.
Both parties have taken opportunities to spend time with the children.
The mother did not facilitate the father participating in the decision she made to make arrangements for the children’s proposed travel to Country A.
Conclusion
When considering all of the required factors, the most significant factors in determining in what is in the best interests of the children are the likely impact upon the children of the change in their circumstances, the need to ensure that the children continue to have the benefit of a meaningful relationship with each of the parents and the practical difficulty and expense which would result from the mother and children living in Country A.
The Court has taken into account the mother’s emotional and psychological concerns if she is not permitted to return to Country A and the assistance provided to her there by her extended family, however, the best interests of the children require that the arrangements ensure that the children have an ongoing meaningful relationship with each of their parents.
This requires that the children remain in Darwin, Australia where they can spend equal time with each of their parents.
In considering whether the Court should make an order that the parents have equal time or substantial or significant time, I have taken into account the proposals of the mother that the children live with her, save and except that they would live after school every second Thursday to the following Tuesday with the father and that the father have significant holiday time with the children.
The mother’s proposal is that the children spend five nights a fortnight with the father during school term. The father proposes that it be week about or seven nights a fortnight.
The factors which have been considered do not indicate that there would be any greater benefit to the children in having the fortnight split 9 / 5, rather than 7 / 7. The Court has taken into account the proposals of each of the parties. The evidence indicates however, that it would be in the children’s best interests for them to spend equal time with each parent.
This proposal would have the benefit of continuing to maintain the strong relationship with each parent and reduce the risk of any need for further proceedings.
The parties also sought orders in relation to the children spending time with the parties on special occasions. Although the wording of each proposal was different, it is clearly in the best interests of the children that appropriate orders be made to provide for special occasions, together with arrangements made for children’s passports and ancillary orders.
Property Settlement – Orders Sought
At the conclusion of the trial submissions were put by counsel for the mother that if the children were not permitted to relocate to Country A, she sought orders which provided for the property at D Street, E Town, Northern Territory (“the former matrimonial home”) to be transferred to the father, if he so elected, on the basis that the mortgages would be discharged and the mother was paid $200,000 by the father.
The mother also sought an order that the father indemnify her in relation to the loan provided by the father’s parents in the sum of $25,000, she sought to retain for her own use her bank accounts, the motor vehicle, her personal possessions and superannuation, together with monies standing to the credit of the mother in the One Path Trust Account.
The mother proposed that the father retain his bank accounts, the motor vehicles, quad bikes and his superannuation, save and except, that the mother thought a splittable payment providing her with a base amount of $60,000.
In final submissions counsel for the father indicated that if the children were not to relocate to Country A, the father sought final property settlement orders which provided for the mother to retain her camping trailer, motor vehicle and other items in her possession, save and except, that he thought copies of photographs of the children and other items which he claimed were his personal possessions retained by the mother and a black tri-fold photo board of the children. He also sought orders that if he were able to obtain finance, he retain the former matrimonial home, discharge the mortgages and pay the mother the sum of $135,733. He also sought an order by way of superannuation splitting, providing the mother with $69,029 by way of base amount.
Further in the orders sought he proposed that he indemnify the mother in relation to the claim outstanding loan to his parents in the sum of $25,000, if he retained the property. If he was unable to raise finance to buy out the mother’s share, he sought that the property be sold, the mortgages discharged, $25,000 paid to his parents, the supplementary ANZ loan in the father’s name be paid out and the balance divided as to 60 per cent to the mother and 40 per cent to the father.
Those proposed orders also included the splitting of the superannuation fund providing for $69,029 to be allocated as a base amount for the mother.
The only other order of significance was that the father proposed that the children’s funds in the One Path trust account continue to be held in trust for the children and the children’s quad bikes valued at $900 and $1,000, the 2006 children’s motorbike valued at $1,200 and other items be “excluded from the property pool”. Annexed to the proposed orders was a list of items which the father sought be delivered up to the father.
At the commencement of the trial each of the parties relied upon a balance sheet. The mother relied upon the balance sheet filed on 4 April 2013 and the father relied upon a balance sheet filed on 16 April 2013. There was substantial agreement concerning many of the assets and liabilities.
Those matters which were agreed are as follows:
Assets
1. Jointly owned former matrimonial home at
D Street E Town, NT $700,000.00
2.Jointly owned household contents which are in dispute $10,000.00
3.Father’s Box Trailer $600.00
4.Father’s Camper Trailer $6,500.00
5.Father’s Long Service Leave Act s.10(2) $35,500.00
Liabilities
6.D Street, E Town, NT ANZ Loan $392,470.00
7.D Street, E Town, NT ANZ Supplementary Loan $48,136.00
8.Owing to father’s parents F & G Neville
as part deposit for home $25,000.00
The parties were agreed on the superannuation to be brought into account; the mother’s superannuation NTGPASS/NTSSS - $25,881 and Agest/Australian Super - $16,693 and the father’s Ipac superannuation - $143,431, making total superannuation of $186,005.
The parties were not in agreement in relation to what were described as “add backs”. The mother sought to bring into account the sum of $20,000 representing what she argued was “wastage” of rent by the father since 18 January 2012.
The mother also sought to bring into account as an “add back” the $1,000 funds removed by the father from the joint account and paid to the mother pursuant to Child Support obligations in February 2012. The father did not concede this as an add back.
In the balance sheets provided by the parties, the mother sought to add back to the assets the legal fees paid by her in the sum of $10,278 (as at 26 July 2011) and the legal fees paid by the father as at 26 March 2013 in the sum of $74,591.
The father included in his balance sheet the add back for the mother’s legal fees ($10,278) but did not agree to adding back the $74,591 paid by him as at 26 March 2013.
The difference in the approach to payment of legal fees is related to the time of payment. On behalf of the father it is submitted that the legal fees paid by the mother as at 26 July 2011 were paid at the time close to the separation of the parties and therefore it is a reasonable exercise of the Court’s discretion to include this as an “add back to the pool”.
Findings
The first item which is in dispute in the balance sheet is the value of the mother’s motor vehicle. The mother brings the vehicle in at a value of $12,500. The father seeks to bring the value in at $14,000. The mother is now relying on what she describes as the “Redbook Value”. The father is relying upon the figure that the mother included in her Financial Statement.
The Financial Statement of the mother sworn by her and filed on the 27 February 2013 included the item at a value of $14,000. I accept the submissions of the father’s counsel that the father was entitled to rely upon this figure provided by the mother. The “Redbook” value figure now relied upon by the mother is not evidence that the Court is required to accept when challenged. The value of the motor vehicle will be included as an asset at $14,000.
The mother sought to include the father’s Long Service Leave entitlement at a value of $35,500. In final submissions it was conceded that this is not yet an asset. It is however a factor which can be taken into account in the overall assessment of what is just and equitable in all of the circumstances. This figure will not be included as an asset.
The mother also sought to include $4,000 bond paid by the father on the property at BB Street, Suburb CC. This matter was not pursued by either party during the final submissions.
What was agreed was that the father accepted that $5,500 had been withdrawn, and that the father’s evidence was not clear as to the use of these funds and therefore it would be a reasonable exercise to include this as an “add back”. As this is conceded by the father, this amount will be included as an asset of the father to be brought into account.
The mother sought that the sum of $1,000 removed from the joint account and used by the father to pay child support obligations should be added back. The father admitted that he had withdrawn the sum from the joint account and paid it to the Child Support Agency.
The father admitted that he had withdrawn the funds and used the monies to pay Child Support. The father opposed this amount being added back on the basis that it should also be taken into account that the mother had withdrawn $4,000 from that account without the consent of the father, which had resulted in the father being unable to use the funds to make other payments which thereafter reduced his capacity.
Taking into account the overall evidence concerning the use of funds generally, I am not satisfied that it is appropriate to add back the $1,000 used by the father.
The assets and liabilities and superannuation to be brought into account are therefore as follows:
1. D Street, E Town, NT $700,000.00
2. Household contents $10,000.00
3. Mother’s motor vehicle $14,000.00
4. Box Trailer $600.00
5. Camper Trailer $6,500.00
6. Unaccounted funds removed by father $5,500.00
7. Mother’s legal fees paid shortly after separation $10,278.00
8. Agreed adjustment of monies used to pay rent by father $2,080.00
Total: $748,958.00
It was agreed that the following liabilities should be brought into account:
1. D Street, E Town, NT $392,470.00
2. ANZ supplementary loan on D Street, E Town, NT $48,136.00
3. Joint loan owing to F & G Neville $25,000.00
Total: $465,606.00
Leaving net assets of $283,352.00
As previously indicated the superannuation of the parties was agreed at the following figures:
1. Mother NGTPASS/NTSSS $25,881.00
2. Mother Agest/Australian Superannuation $16,693.00
3. Father Ipac $143,431.00
Total: $186,005.00
If the superannuation is brought into account in the overall pool this would make it a total of $469,357 net available for distribution.
As previously indicated the Long Service Leave for which the father may become entitled is neither an asset nor is it appropriate to assess it as a financial resource. It is a factor to be taken into account.
Both parties are seeking orders by way of property settlement. The substantial asset of the parties (the former matrimonial home at E Town) is held in joint names. It is therefore clear that it is just and equitable to make property settlement orders in these proceedings. It remains to be determined which orders should be made taking into account all of the factors in sections 79 and 75(2).
Contributions
On behalf of the father it was submitted that the contributions of the parties should be considered equal at the commencement of the relationship. It was agreed by counsel in final submissions that contributions of the parties during the relationship should be considered equal. It was further submitted by counsel for the father that the contributions should be considered equal up to the time of the hearing, with the father submitting that the mother should receive an additional 10 per cent because of her future needs and s 75(2) factors.
Counsel for the mother maintained in final submissions that the parties were agreed that during the relationship the contributions should be considered equal, however, emphasis was placed upon the mother’s initial contribution of the equivalent of US$25,000. The mother sought immediate payment of $200,000 on the basis that the father could afford to raise these funds and on the basis that each of the parties retain their respective superannuation.
In the alternative if the father did not borrow the funds and the former matrimonial home was required to be sold, the submissions were that the mother receive 85 per cent of the proceeds.
Discussion and findings
Section 79 (4)
(a)The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
I rely upon the evidence (which was not reliably challenged) that the mother provided US$25,000 initially. That contribution should be brought into account.
The parties acknowledge that the contributions, financial and otherwise, made during the relationship should be considered equal. This is appropriate taking into account the evidence in relation to their financial contributions and contributions to the welfare of their family.
Since the separation of the parties there has been ongoing substantial financial contribution by the father. The mother’s actions in removing the children and travelling to Country A caused the father to incur extra cost.
Taking into account all of the factors in relation to contributions, both financial and to the welfare of the family, I am satisfied that the overall the contributions of the parties should be considered equal.
(d)The effect of any proposed order upon the earning capacity of either party to the marriage;
The orders of the Court by way of property settlement will not have any direct effect on the earning capacity of either of the parties. The future of the employment of both parties is a factor which will be taken into account under section 75(2) factors.
(e)the matters referred to in subsection 75(2) so far as they are relevant;
Section 75(2)
(a)The age and state of health of each of the parties;
The parties are of similar age. The father is in good health. The health of the mother has not prevented her from continuing in employment. It is conceded however that she had certain mental health issues. This is a factor to be brought into account particularly as she will be living in Australia.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The father has a greater income earning capacity than the mother. The financial resources of the parties are similar. Both parties have had the support of family members. Both parties have the physical and mental capacity for appropriate gainful employment.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The orders will provide for each of the parties to have the care and control of the children on a week about basis.
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
Both parties will have similar commitments necessary for them to support themselves and the children.
(e)the responsibilities of either party to support any other person;
Apart from the children, the father has a notional responsibility to continue to support his partner. She is however earning sufficient income to support herself and provide assistance to the father.
Sub-section (f) not relevant.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
The mother’s claim includes a claim for spouse maintenance if she is required to remain in Darwin. In the circumstances, however, she has not provided sufficient evidence to the Court to indicate that she is incapable of supporting herself to the extent that it would be necessary or appropriate to make an order for spousal maintenance. The difference in the income earning capacity of the parties will however be a significant factor to be brought into account in this matter. The reasonable standard of living of the mother is also a consideration.
Sub-sections (h) and (ha) are not relevant. There is no evidence that the father’s parents’ loan would be at risk.
Sub-section (j) is not relevant save to the extent already considered.
Sub-section (k) is not significant in this matter.
(l) the need to protect a party who wishes to continue that party’s role as a parent;
Both parties wish to continue their roles as parents and therefore this is not a significant determining factor in this matter.
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation;
The financial circumstances of the father’s current partner are taken into account. As previously indicated she is employed and is earning sufficient income to enable her to provide assistance, if necessary, to the father.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
Section 79(4)(g) is in the same terms as s 75(2) (na).
In this case it is likely that in future the father will become liable to pay child support to the mother, even though they are sharing the children on a week about basis, because of the father’s greater income earning capacity.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The parties both propose orders which would provide for the capacity to travel with the children. One of the factors which needs to be taken into account in this matter is that the mother will incur greater cost than the father in order to maintain the children’s ongoing relationship with members of her extended family.
Another factor to be considered is the significant proportion which the superannuation interests of the parties form. The father’s accumulated superannuation entitlement is $143,431 compared to the mother’s total of $42,574.
The Court takes into account the father’s earning capacity and his capacity to borrow funds. It is just and equitable that an adjustment be made which includes the superannuation entitlements as part of an overall asset base rather than splitting the superannuation and entitlements.
Taking all of the factors into account it is just and equitable that a further adjustment of 10 per cent in the mother’s favour be made.
The mother will receive 60 per cent of the total net assets and current superannuation values.
Sixty per cent of the total net asset pool, including the superannuation, is $281,614. The mother will retain her motor vehicle, $14,000, the notionally added back legal fees, $10,278 and her superannuation, $25,881 and $16,693, (a total of $66,852) which would leave $214,762 payable by the father to the mother.
Taking into account the financial circumstances of each of the parties, together with the history of contributions and other relevant factors, I am satisfied that the payment of such a sum (on the basis that the father retains the former matrimonial home and discharges the joint debts) is just and equitable.
If the father is unable or unwilling to raise the funds to pay the mother that sum within a reasonable time, then the default order should provide for the mother to receive that amount from the net proceeds of sale of the former matrimonial home. If the net proceeds after payment of the ANZ mortgage, supplementary loan and costs of sale are less than that amount then no further sum should be paid by the father to the mother.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 November 2013.
Associate:
Date: 29 November 2013
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