Owens & Pratt (No 3)
[2024] FedCFamC2F 1013
•2 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Owens & Pratt (No 3) [2024] FedCFamC2F 1013
File number: MLC 1717 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 2 August 2024 Catchwords: FAMILY LAW – PARENTING – Where an order for joint decision-making is in the best interests of the children – Live with and spend time with orders – Where the court made an order for the children’s principal residence to be maintained in a defined area
FAMILY LAW – PROPERTY – Assessment of contributions adjustment under s. 75(2)
FAMILY LAW – SPOUSAL MAINTENANCE – Whether the wife is unable adequately to support herself – Amount of maintenance – Payment of maintenance as lump sum
Legislation: Evidence Act 1995 (Cth) s. 140
Family Law Act 1975 (Cth) ss. 4, 60B, 60CC, 61C, 61CA, 61D, 61DAA, 72, 74, 75, 77A, 79, 81, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r. 10.13
Cases cited: AMS v AIF (1999) 199 CLR 160
Badir & Badir [2022] FedCFamC1A 109
Brown & Brown (2007) FLC 93-316
Candle & Falkner (2021) FLC 94-069
Clauson & Clauson (1995) FLC 92-595
Fannon & Salzer (No 2) [2024] FedCFamC2F 406
Gadhavi & Gadhavi (2023) 67 Fam LR 174; [2023] FedFamC1A 117
Garston & Yeo (No 2) [2019] FamCAFC 139
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Hickey & Hickey & Attorney-General (Cth) (2003) FLC 93-143
In the Marriage of Bevan (1995) FLC 92-600
In the Marriage of Coghlan (2005) 193 FLR 9; [2005] FamCA 429
In the Marriage of Kowaliw (1981) FLC 91-02
In the Marriage of Mitchell and Mitchell (1995) FLC 92-601
In the marriage of Murkin (1980) FLC 90-806; [1980] FamCA 13
Kensit & Kensit [2022] FedCFamC1F 633
Keymer & Keymer [2020] FamCAFC 70
Line & Line (1997) FLC 92-729
Mallet v Mallet (1984) 156 CLR 605
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
Maroney & Maroney [2009] FamCAFC 45
McCall & Clark (2009) FLC 93-405
McCrossen & McCrossen (2006) FLC 93-283
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Omacini v Omacini [2005] FamCA 195
Oswald & Karrington [2016] FamCAFC 152
Palumbo & Mandel (2019) FLC 93-929,
Petrellis & Petrellis [2023] FedCFamC1A 104
Sampson v Hartnett (No 10) (2007) 215 FLR 155; [2007] FamCA 1365
Saxena & Saxena (2006) FLC 93-268; [2006] FamCA 588
Telford & Telford [2012] FamCA 995
Tibb v Sheehan (2018) 58 Fam LR 351; [2018] FamCAFC 142
Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Waters v Jurek (1995) 126 FLR 311
Wilburn & Wilburn (2020) FLC 93-979
Division: Division 2 Family Law Number of paragraphs: 196 Date of last submissions: 18 July 2024 Date of hearing: 24–26 June 2024, 18 July 2024 Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Coulter Legal Counsel for the Respondent: Mr Turner Solicitor for the Respondent: RLG Legal & Associates
Table of Corrections 14 August 2024 Paragraphs 193–196 of the reasons for judgment were added to provide an explanation to the amendments ORDERS
MLC 1717 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OWENS
Applicant
AND: MS PRATT
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
2 AUGUST 2024
Orders amended pursuant to r. 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 August 2024
THE COURT ORDERS THAT:
Parenting
1.All previous parenting Orders be hereby discharged.
2.The parents shall have joint decision-making authority in respect of all major long-term issues as defined by s. 4(1) of the Family Law Act 1975 (Commonwealth) affecting the children X born in 2013 (X) and Y born in 2015 (Y) (collectively referred to as the children)
3.For the purpose of implementing Order 2, the form of consultation between the parents about making major long term decisions shall be:
(a)in writing;
(b)carried out in good faith;
(c)child-focused;
(d)non-derogatory; and
(e)conducted with the parents attending mediation or family dispute resolution in the event agreement cannot be reached.
Live with and spend time arrangements
4.The children live with the Mother.
5.The children spend time with the Husband while he remains a short haul transport worker as follows:
(a)during school terms in week one of a two weekly cycle:
(i)from the conclusion of school Monday on a school day or 3.30pm on a non-school day to the commencement of school Wednesday on a school day or to 9.00am on a non-school day;
(b)during school terms in week two of a two weekly cycle:
(i)from the conclusion of school Friday or 3.30pm on a non-school day to the commencement of school Monday on a school day or to 3.30 PM on a non-school day.
School term holidays
6.In default of agreement, the children spend time with the Father while he remains a short haul transport worker during school term holidays as follows:
(i)commencing immediately and until the conclusion of 2024, for five nights as may be agreed in writing and failing agreement for the first five nights from the conclusion of school on the last day of term until 4.00 PM on the fifth day;
(ii)commencing in 2025, for six nights as may be agreed in writing and failing agreement the first six nights from the conclusion of school on the last day of term until 4.00 PM on the sixth day;
(iii)commencing in 2026 and thereafter, for half of each of the school term holidays at times to be agreed between the Husband and Wife in writing and in default of agreement for the first half in 2024 and each alternate year thereafter and for the second half in 2025 and each alternate year thereafter.
Long summer holidays
7.In default of the agreement between the Mother and Father and subject to Order 19, during the long summer school holidays every second year commencing December 2024, the children spend time with the Husband:
(a)from 2.00pm on Christmas Eve until 2.00pm on Christmas Day;
(b)at times to be agreed between the Husband and Wife in writing; or,
(c)for five (5) nights in the second week and fourth weeks of the long summer holidays from 5.00pm Monday to 5.00pm Saturday and with the Husband 5.00pm Thursday to 5.00pm Saturday on the last weekend of the school holidays.
8.During the long summer school holidays every second year commencing December 2025, the children be permitted to spend a period of 14 nights from the commencement of the school holidays in Brisbane with the Mother and maternal family.
9.In the years that the children spend Christmas in Brisbane, the Father may elect and to spend time with the children on Christmas Eve and Christmas Day at times to be agreed between the parents, but in the absence of agreement:
(a)on Christmas Eve between 9am and 2pm, and on Christmas Day between 2pm and 7pm.
10.During the long summer school holidays every second year commencing December 2025, and for the purpose of Order 8, the children spend 2 periods of six (6) consecutive nights commencing in the third and fifth week of holidays on days to be agreed between the parents, but in the absence of agreement:
(a)from 9 January at 5pm to 15 January at 5pm, and from 19 January at 5pm until 25 January at 5pm.
11.For the purposes of calculating the school term holidays as provided for in Orders 7 to 10, the term school holiday periods commence from 5.00pm on the last day of school term and concludes at 5.00pm on the day prior to the commencement of the following school term.
Father commences work as a long-haul transport worker
12.That if the Husband commences employment as a long-haul transport worker, the children shall spend time with him as follows:
(a)During school terms, from the conclusion of school on the first Friday of each school term until the commencement of school the following Tuesday (or 3.30 PM if a non-school day) and each alternate week thereafter
(b)During school term holidays for five (5) consecutive nights as nominated in writing by the Husband at least 3 calendar months prior to the commencement of such school term holiday period and in default of such written nomination, the first 5 nights of such school holiday period commencing at the conclusion of school on the last day of term until 4.00 PM on the 6th day of such school holidays;
(c)During the long summer school holiday for 2 periods of five (5) nights and one (1) period of two (2) nights, at times to be agreed between the Husband and Wife in writing and in default of agreement:
(i)for five (5) nights in the second week and fourth weeks of the long summer holidays from 5.00pm Monday to 5.00pm Saturday;
(ii)and for two (2) nights on the final weekend of the long summer holidays from 5.00pm Friday to 5.00pm Sunday
(d)On the children's birthdays, if the children are not already in the Husband’s care as follows:
(i)On a school day from the conclusion of school to 7.30pm; and
(ii)On a non-school day from 10:00am to 2:00pm.
(e)From 2.00pm on Christmas Eve until 2.00pm on Christmas Day in even numbered years;
(f)From 9.00am to 2.00pm on Christmas Eve and from 2.00pm to 7.00pm on Christmas Day in odd numbered years.
13.The children shall spend such other times with the Husband as agreed between the parties in writing.
14.The Husband shall provide the Wife with two (2) month’s written notice of any change to the terms of his employment which would require him to undertake a role as a long-haul transport worker.
15.The Husband provide the Wife with a two (2) month’s written notice of any change to the terms of his employment to provide that he moves from long-haul transport worker to short haul transport worker.
Special Occasions
16.That if the children are in the care of the Mother the time be suspended and the children spend time with the Father as follows:
(a)If Father’s Day falls on a weekend when the children are spending time with the Mother, from 5:00pm on Saturday to 5:00pm on Father’s Day; and
(b)On the Father’s birthday from 3:30pm until 7:00pm; and
(c)On the Children’s birthdays from 3:30pm until 7:00pm on a school day; and
(d)On the Children’s birthdays from 10:00am until 2:00pm on a non-school day.
17.That if the children are in the care of the Father the time be suspended and the children spend time with the Mother as follows:
(a)If Mother’s Day falls on a weekend when the children are spending time with the Father, from 5:00pm on Saturday to 5:00pm on Mother’s Day; and
(b)On the Mother’s birthday from 3:30pm until 7:00pm; and
(c)On the Children’s birthdays from 3:30pm until 7:00pm on a school day; and
(d)On the Children’s birthdays from 10:00am until 2:00pm on a non-school day.
Changeovers
18.All changeovers that do not occur at school shall occur at a location as agreed between the Husband and Wife in writing and failing agreement, the Wife is to deliver the children to the Husband’s residence at the commencement of time and the Husband is to return the children to the Wife’s residence at the conclusion of time.
Travel
19.That the Husband and Wife be at liberty to take the children on a holiday of 14 nights duration as follows:
(a)With the Husband for 14 nights in odd numbered years in either one of the school term holidays or the long summer holidays on dates and times to be agreed between the Husband and Wife in writing and in default of agreement in the first term school holidays from the conclusion of school on the last day of term one (1) and for fourteen (14) nights thereafter ; and
(b)With the Wife for 14 nights in even numbered years in either one of the school term holidays or the long summer holidays on dates and times to be agreed between the Husband and Wife in writing and in default of agreement in the first term school holidays from the conclusion of school on the last day of term one (1) and for fourteen (14) nights thereafter.
Children’s Passports
20.The Mother shall retain the children's passports.
21.Upon the Father complying with Order 23 and 24
abovebelow the Mother will release the children's passport/s to the Father.22.The Father shall return the children’s passports to the Mother within 7 days of his return from travel.
23.Within 3 months from the date of these Orders, the parties will do all acts and things necessary and sign all documents necessary to apply for a new passport/s for the children. The Father shall pay the costs of applying for the passport and within 7 days of the passports issuing, the parents will do all acts and things necessary to deliver the passport/s to be held by the Mother.
24.Within eight (8) months prior to the children's passport/s expiring the parties will do all acts and things necessary and sign all documents necessary to apply for a new passport/s for the child. The Father shall pay the costs the costs of applying for the passport and within 7 days of the passports issuing, the parents will do all acts and things necessary to deliver the passport/s to be held by the Mother.
25.In the event that the father refuses to sign all necessary documents to obtain Australian passports or renewed passports for the children, pursuant to s.11 of the Australian Passports Act (Cth), the mother be hereby authorised to execute all documents necessary to obtain or renew an Australian passport for and on behalf of the children without requiring the consent of the father AND IT IS REQUESTED THAT the Department of Foreign Affairs and Trade forthwith issue an Australian passport for the children or either of them.
Overseas Travel
26.The Husband and Wife each be at liberty to travel with the children or either of them outside the Commonwealth of Australia with the prior written agreement of the other parent or without first obtaining the other parent's written consent on condition that the travelling parent must provide to the non-travelling parent the following by no later than 30 days prior to the planned travel occurring:
(a)an itinerary of intended flights;
(b)copy of a written Itinerary including but not limited to:
(i)arrival and departure dates for each stage of the travel;
(ii)names and contact details for all accommodation during the travel, if booked; and
(iii)contact details including telephone numbers and email addresses to facilitate communication (including real-time video communication) whilst travelling.
27.Unless otherwise provided for in these Orders, all and any domestic and international travel shall only occur during a period that the children are staying with the travelling party in accordance with these Orders and shall not occur during the school term, unless otherwise agreed in writing between the parties.
28.If travel is arranged to locations that require immunisation, then it is the responsibility of the traveling parent to organise these immunisations and copies of all immunisations must be supplied to the other parent.
29.That the children’s passports be retained by the Husband and provided to the Wife no less than 14 days prior to travel with the Wife to return the Passports to the Husband within seven (7) days of her return from overseas travel.
Communication
30.The Husband and Wife shall inform each other of any change of address, mobile number, or email address within 24 hours of such change.
31.That the children communicate with the Husband via telephone, FaceTime, or similar communication each Friday, Sunday and Wednesday during in school terms when they are not otherwise in his care and each Tuesday and Thursday in school holidays when they are not in his care between 6.00pm and 6.30pm with the husband to initiate the call to the children’s or the Wife’s mobile phone and the Wife to facilitate the children taking the call.
32.If the children are not able to communicate as provided for in
paragraph 16Order 31 herein due to their extracurricular or school activities, or due to the Husband’s work commitments, the communication will take place the following morning at 8.00am33.Save for in an emergency when communication is to be by telephone or text, the Husband and Wife communicate with each other in relation to the children’s care welfare and development via such parenting App as agreed in writing between them in writing and in default of agreement via AppClose and for this purpose all messages are to be responded to in a timely and respectful manner.
Restraints
34.The Husband and Wife or their agents are restrained from, in the presence of the children:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and
(b)discussing legal proceedings related to parenting or property matters.
Exchange of Information and medication
35.That the Husband and Wife keep the other informed in writing of:
(a)any significant health issues suffered by the children or either of them;
(b)any appointments with the children’s General Practitioner, Medical specialists, Dentist/s, allied health professionals or psychologists or family therapists; and
(c)any procedures or operations to be undertaken (prior to those procedures or operations being undertaken,) except in cases of emergency where the parent in whose care the child is in at the time of the emergency to inform the other parent as soon as practicable.
36.If either child is ill, the parent who has the care of the child/ren at that time shall advise the other parent as soon as practicable (but by no later than 24 hours) and supply all relevant information such as contact details of the doctor who saw the child in addition to the diagnosis and prognosis.
37.That each parent shall make available to the other parent any medications prescribed for the child/ren with the medication to be administered as directed by the prescriber when the child is living with the other parent.
Children’s medical and allied health treatment
38.That the Husband and Wife shall be at liberty to contact the children’s Medical practitioner/s, Dentist or allied health practitioners to discuss the child's treatment.
39.The Husband and Wife are hereby restrained from taking the children to any non-urgent, medical appointments or specialist appointments, dental appointments, allied health appointments (including counsellors, psychologists or other mental health professionals) or allow the child/ren to undergo any form of non-urgent specialist medical treatment without the mutual agreement of both parents in writing.
Education and school events and Extracurricular activities
40.The children are to attend such school/s as agreed between the Husband and Wife in writing.
41.The Husband and Wife are hereby restrained from ceasing the children’s enrolment at B School without agreement in writing between them both.
42.If the Husband and Wife are unable to reach agreement as to the school/s the children shall attend, they will attend at Dispute Resolution with an accredited dispute resolution Service in an effort to reach agreement as to the children’s education prior to making an Application to the Court.
43.The Husband and Wife each be at liberty to liaise directly with the children's school and sporting bodies to receive all necessary information about the children's progress, school notices, newsletters, school reports, school photographs and that each party be at liberty to contact the children's school to obtain copies of the children's artwork and school work, and the parties shall as far as practicable ensure that these are distributed between the parties as evenly as possible.
44.The Husband and Wife each be at liberty to attend all school-based events normally attended by parents and all extracurricular activities normally attended by parents.
45.The Husband and Wife are each hereby restrained from enrolling or committing the children to any activity during the other parent’s time without first obtaining the other parents written consent.
46.Both parties shall facilitate the children attending all prior agreed extra-curricular activities for the term of such enrolments, and if any classes or sessions are missed, the party with the care of the children at that time inform the other that this has occurred and provide reasons for its occurrence.
Children’s Belongings
47.At changeover, the Husband and Wife shall make available to the parent into whose care the children are moving, any clothing, shoes, toiletries, accessories, school books, iPads, laptops, sporting or musical equipment that the children may need when in the care of the other parent.
Children’s principal place of residence
48.The parents each be restrained from moving the children’s principal place of residence to a location more than 15km from C Venue while the children or either of them are attending B School.
49.In the event that neither child is attending B School, the parents each be restrained from moving the children’s principal place of residence to a location more than 25 km from D Venue while the Husband remains employed as a transport worker.
Family Dispute Resolution
50.That if the Husband and Wife are unable to reach decisions after consultation with each other about major long-term issues affecting the children, the following shall apply:
(a)The Husband and Wife shall attend Family Dispute Resolution with a private family dispute resolution practitioner at the equal shared expense of the parties to help them resolve their disputes with each other; and
(b)The Family Dispute Resolution Practitioner to be agreed upon between the parties and in the absence of agreement the parties to attend upon Ms E, Mediator or another qualified mediator from F Service.
(c)That the parties are to each participate in at least two sessions (two cross over sessions each) of the Family Dispute Resolution prior to the issuing of any Court Application relating to the issue in dispute.
Property Settlement
51.Pending settlement of the sale the of the real property situated at and known as G Street, Suburb H (Suburb H property):
(a)the Wife have the sole right to occupy the
G Street propertySuburb H property (“occupation”) and;(b)during the occupation, the Husband pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the
G Street propertySuburb H property as and when they fall due;(c)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(d)neither party encumber the
G Street propertySuburb H property without the consent in writing of the other party.
52.The proceeds of sale of the Suburb H Property be applied as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale of the Suburb H property, including to ‘J Bank’;
(b)Secondly to discharge the mortgage secured by the Suburb H property and any other encumbrance affecting the Suburb H property;
(c)Thirdly the balance of $703,127 be applied as follows:
(i)$534,984 to the Wife less the following which be paid to the Husband:
A.the sum of $3,750.00 pursuant to Order 3 of the Orders made Her Honour Judge Parker on 28 November 2023 (being costs awarded to the Husband following the Wife’s Application for Review of the decision of Senior Judicial Registrar Kourtis on 26 October 2023;
B.The sum of $4,950.00 being the Wife’s half share of the preparation of the Family report by Ms K (total cost -$9900.00);
C.The sum of $2,100.00 being the Wife’s half share of the cost of Mediator Mr L (total fee - $4200.00);
D.the sum of $600.00 being the wife’s half share of the cost of room hire for the Mediation at M Centre (total cost $1,200.00); and
(ii)the balance to the Husband.
53.Unless otherwise provided for in these Orders, the Husband retain all his right title and interest, howsoever held, in the following:
(a)Monies on deposit in bank accounts in his name solely, including but not limited to accounts ending:
(i)NAB #...70;
(ii)ANZ #...73;
(iii)ANZ #...28;
(iv)N Bank #...85; and
(v)O Bank #...81.
(b)Shareholdings in the following:
(i)P Company;
(ii)Q Company;
(iii)R Company;
(iv)S (1) Company;
(v)S (2) Company; and
(vi)S (3) Company
(c)Bitcoin and any other cryptocurrency;
(d)Motor Vehicle 1 (Registration no. …);
(e)Super Fund 1 superannuation interest, subject to Order 57 herein; and
(f)any chattels in his name and not otherwise referred to in these Orders.
54.Unless otherwise provided for in these Orders, the Wife retain all her right title and her interest, howsoever held, in the following:
(a)Monies on deposit in bank accounts in her name, including but not limited to accounts ending:
(i)O Bank #...55;
(ii)O Bank #...24;
(iii)#...05; and
(iv)O Bank #...18.
(b)Shareholding in the following:
(i)T Company;
(ii)U Company;
(iii)V Company;
(iv)W Company;
(v)Z Company;
(vi)AA Company;
(vii)S (4) Company; and
(viii)S (5) Company.
(c)Motor Vehicle 2 (Registration no. …);
(d)Super Fund 2 Superannuation interest (member no. …); and
(e)Any chattels in her name and not otherwise referred to in these Orders.
Indemnity
55.The Husband bear liability and indemnify the Wife against all liabilities in his name howsoever arising, whether now or in the future, and whether jointly or severally with any other person or entity, including but not limited to:
(a)The Division 293 debt owed by the Husband to the Australian Taxation Office in the sum of approximately $24,882); and
(b)The BB Bank credit card debt (customer number #...84) in the sum of approximately $4,841.
56.The Wife bear liability for and indemnify the Husband against all liabilities that the Respondent may have in her name howsoever arising, whether now or in the future, and whether jointly or severally with any other person or entity including but not limited to her HECS/HELP debt in the sum of approximately $29,376.
Superannuation Splitting Orders
57.That Order
5057 and its sub-clauses are binding on Super Fund 1 Limited as the Trustee (Trustee) of the Super Fund 1 Superannuation Plan (Fund):(a)The base amount allocated to the Wife out of the interest of the Husband in the Fund (Member No. …) is $270,070;
(b)Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustee of the Fund makes a splitable payment from the interest held by the Husband in the Fund, the Trustee shall pay to the Wife, or her legal representative, the entitlement which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the Husband would have had in the Fund but for these Orders;
(c)The operative time for these Orders
5057(a) and5057(b) shall be the beginning of the fourth business day after the day on which a sealed certified copy of these Orders is served on the Trustee; and(d)The Trustee, the Husband and the Wife, in accordance with the obligations set out and the Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the Wife in accordance with Order 50(b) of these Orders.
58.That until the happening of any of:
(a)The establishment of a separate account in the name of the Wife in the Fund; or
(b)The transfer or "rolling over" into another superannuation fund of the payment split which was created by Order
5057(b) of these Orders; or(c)The Wife satisfying a condition of release and is paid the payment split which was created by Order
5057(b) of these Orders; or(d)The Wife executing a waiver of rights within the meaning of Section 90XZA of the Family Law Act 1975 in relation to the payment split created by Order
5057(b) of these Orders;(e)The Husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in Super Fund 3 a "non-splitable payment" within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.
Miscellaneous
59.Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any moneys due under these or any subsequent Orders:
(a)Each party be solely entitled to, to the exclusion of the other, all other property (including choses-in-action) in the possession of such party as at this date;
(b)Moneys standing to the credit of the Husband in any bank account in his name alone are to become the property of the Husband;
(c)Moneys standing to the credit of the Wife in any bank account in her name alone are to become the property of the Wife;
(d)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(e)All insurance policies to become the sole property of the owner named therein;
(f)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(g)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Spousal maintenance
60.Contemporaneously with the application of the proceeds of sale of the Suburb H property under Order 52 above, the Husband pay to the Wife a lump sum in the amount of $62,400 (Spousal Maintenance Payment) and the Husband will make the Spousal Maintenance Payment:
(a)under s. 77A of the Family Law Act 1975 (Cth) and this order is an order to which s. 77A applies;
(b)for the purpose of making provision for the maintenance of the Wife; and
(c)all of the Spousal Maintenance Payment is attributable to the provision of maintenance for the Wife.
Costs
61.Save as to costs, all extant applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r. 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 August 2024
Judge Champion:
WHAT IS THE NECESSARY BACKGROUND?
Mr Owens (the Father/Husband) and Ms Pratt (the Mother/Wife) are in dispute as to parenting and property issues. Further, the Wife seeks an order for spousal maintenance which the Husband opposes.
In 2006 the parties commenced a relationship. In 2012 they married. On 21 August 2022 they separated on a final basis.
The Husband is a transport worker. He earned $454,000 in FY24. The Wife is a professional. She holds a postgraduate qualification. She works part-time. Her gross earnings approximated $56,000 in FY24. The Wife wishes to undertake further education in a different sphere, specifically in allied health care.
The parties have two daughters: X, born in 2013 (now 11 years old) and Y, born in 2015 (now 9 years old). X is in Grade 5 and Y in Grade 3 at B School.
The two daughters live with the Mother. They spend time with the Father on a 4:10 fortnightly cycle.
On 24 June 2024, in compliance with interim orders, the parties sold the family home in G Street, Suburb H, where the children have lived with the Mother since the Father moved out in January 2023 following the relationship breakdown. The sale will settle in late 2024.
WHAT ARE THE ISSUES?
What are the parenting issues?
The parties agreed that the children should continue to live with the Mother.
The first disputed issue is whether I should allocate sole parental decision-making authority to the Mother as to health and education because of intractable and probably enduring inter-parental conflict (the Mother’s position) or whether there ought to be joint decision-making (the Father’s position) (s. 61DAA of the Family Law Act 1975 (Cth)) (issue 1).
Second, the parties are in dispute as to the “spend time with” orders: whether it is in the children’s best interests to spend time with the Father on a 4:10 fortnightly basis (the status quo since interim orders were made on 21 September 2023 and the Mother’s contention as to the proper final parenting orders) or on a 5:9 basis (the Father’s contention). I note that the issue as to the spend time arrangements (issue 2) and the relocation issues (issue 3) are interconnected.
Third, there is a relocation dispute. Because the family home in Suburb H has now been sold the Mother needs to move by no later than late 2024. She has not yet made alternative housing arrangements. I indicated that I would issue a decision as quickly as possible because of the imminent requirement that she move. The Mother would prefer to relocate to a nearby location which would permit the children to continue to attend B School. She is concerned that relocation nearby is not realistic because of housing expense and availability in Suburb CC and surrounds. If she is not able to relocate reasonably locally so that the children can continue to attend B School, the issue is then whether the Mother ought to be permitted to move to Region DD. If she cannot relocate locally her preference is to relocate to Region DD because of family and friendship connections there. The Father’s position is that I should require that the children’s residence be maintained within 15 km of C Venue or 25 km of D Venue to facilitate the “spend time with” orders (issue 2). He says that because of his unalterable work commitment at D Venue, if the Mother relocates to Region DD the children will not be able to spend time with him on either party’s proposal during term time.
What are the property issues?
The fourth issue concerns balance sheet disputes. There is a dispute as to whether the Wife’s part property settlement should be recharacterized as interim spousal maintenance (item 10 on the balance sheet below), the Wife seeks an “add back” as to the Husband expenditure of joint funds (item 11) and there is a dispute about whether a credit card debt should be on the balance sheet (item 15).
Each party adopted a two-pool approach: the non-superannuation assets in Pool A and the superannuation assets in Pool B. Suffice to say I have found that that there are net assets (excluding superannuation) of $878,845 (rounded to the nearest dollar). It is common ground that there is superannuation of $704,229.
The fifth issue is the contributions assessment (issue 5). The sixth issue concerns any adjustment under s. 75(2) factors (issue 6). The Husband contended that I should order that the Wife should receive 70% of the net proceeds of the sale of the G Street property, which would result in the Wife receiving slightly more than 70% of the non-superannuation assets. The Wife contended there should be a 75/25% split of the non-superannuation assets in her favour.
Seventh, as to superannuation, the Husband’s position was that I should — in practical terms — permit the Husband to retain the accrued value of his superannuation as at the 2006 commencement of the relationship and equalise superannuation accrued since the relationship commenced. The Wife’s position was that I ought to split the superannuation 75%/25% in her favour and alter the parties’ interests in the superannuation pool in the same way as the non-superannuation pool (issue 7).
Should I order that the Husband pay spousal maintenance to the Wife?
Eighth, as to maintenance, the Wife submitted that I ought to order the Husband to pay spousal maintenance (issue 8). The Husband’s position was that the Wife did not satisfy the threshold requirement to be entitled to maintenance set out in s. 72 that she was unable adequately to support herself. Alternatively, if the threshold requirement was satisfied, the Husband submitted that any maintenance should be paid as a lump sum under s. 77A.
Ninth, there is a standalone issue as to costs reserved at an interlocutory hearing on 10 April 2024 (issue 9).
Tenth, there are issues as to the appropriate orders is to give effect to my reasons (issue 10).
I have ordered my reasons in accordance with these 10 issues.
A. PARENTING
Issue 1: Is joint decision-making or allocation of responsibility for decision-making for health and education in the children’s best interests?
Under s. 61C(1) each of the parents of a child who is not 18 has parental responsibility for the child. Section 61C(3) provides that s. 61C(1) has effect “subject to any order of the court”. A parenting order under s. 61D(3) may provide for the “allocation of responsibility for making decisions about major long-term issues” and “may provide for joint or sole decision-making in relation to all or specified major long-term issues”. My decision is guided by what is in the best interests of the children. As far as they are relevant, I must take into account the matters in s. 60CC(2). No presumption in favour of joint decision-making or that decision-making should be allocated to one parent applies.
The Mother’s position was that the “intractable and probably enduring” conflict between the parents meant that the parties are unable “meaningfully to cooperate” (Tibb v Sheehan (2018) 58 Fam LR 351; [2018] FamCAFC 142) in the discharge of joint decision-making in the interests of X and Y. As a result, it is necessary to allocate sole decision-making in relation to “health” and “education” (two issues in the non-exhaustive definition of major long-term issues in s. 4) to one parent or the other. Because the Mother is the primary carer, she submitted that sole decision-making responsibility ought to be allocated to her.
The Father’s case was that the Court ought to make an order under s. 61DAA for joint decision-making.
Section 60CC(2)(e) provides that there is a “benefit to the child of being able to have a relationship with the child’s parents… where it is safe to do so”. Joint decision-making is one way in which to promote the child having a relationship with both parents. The Father submitted the promotion of the children’s relationship with both parents outweighed any countervailing consideration as to the conflict between the parents. As a result, he submitted that the appropriate order was that there be joint decision-making as to all major long-term issues for X and Y.
There will be an order for joint decision-making on all issues for the following reasons.
First, Ms K, the Family Report Writer’s evidence (T310:L4-6) was as follows:
I suggest, on their presentation to you, that was consistent with them having the capability to make joint decisions, consult with each other in relation to long-term decisions for [X] and [Y]; do you agree with that?---Yes, I agree with that.
Her expert opinion was that the Father “was child focused”. I accept the Father’s submission that both parents presented in their evidence as well capable of consultation with one another in the children’s best interests.
Second, in terms of the statutory framework s. 61CA(a) provides “if it is safe to do so… the parents… [are] encouraged to consult each other about major long-term issues in relation to the child”. On both competing live with/spend time with proposals the children are to spend time in both households. It is safe that they do so. It is also safe that the parents consult as to long-term issues. The benefit to the child of being able to have a relationship with both of the child’s parents extends to the involvement of both parents in decisions as to major long-term issues where it is safe to do so (s. 60CC(2)(e)).
Finally, in terms of the statutory framework, joint decision-making better gives effect to the Convention on the Rights of the Child. Section 60B(b) sets out that one of the objects of Part VII is to “give effect to the Convention. Article 18, para. 1 of the Convention provides:
… Both parents have common responsibilities for the upbringing and development of the child
[Emphasis added]
Third, the evidence did not establish that because of past intractable disputes the parties have been unable to discharge their parental responsibility in the children’s best interests.
I do not accept the Mother’s evidence that the Father had acted unreasonably in impeding X seeing a psychologist. The evidence was that the parties communicate only in writing. The Mother asserted that the Father had made false accusations on “Appclose”. She deposed in her affidavit that on 17 December 2023:
after ongoing false accusations by [Mr Owens] on AppClose, I asked: “Can we please communicate only direct and factual messages. I hope this will help to keep us focused on the kids and on necessary co-parenting communication
[Emphasis added]
The Appclose messages between the parents in the preceding days between 13 December 2023 and 18 December 2023 were in evidence. The Father did not make any false accusations. In the context of a message where he communicated that he had transferred money and made holiday arrangements he wrote: “it would nice to see the girls time with me valued more”. That was not a false accusation.
As to health, there was some evidence that X, because she was depressed, had benefited from attending a psychologist. The Mother initiated, and the Father agreed to, X attending a psychologist, Ms FF. I do not accept the Mother’s statement that the evidence establishes that that he has “interfered with the children’s counselling”. Although there was evidence that there had been some differences of opinion as to “health” decision-making, the Father agreed with the Mother’s initiatives as to X attending on Ms FF, which duly occurred. Although the Father disputed X’s attendance on another psychologist, Ms GG, because the Father believed that the Mother was seeing a psychologist in the same clinic that single example does not establish the Mother’s proposition that he has interfered with the children’s counselling or that decision-making as to long-term issues ought to be allocated solely to her. In any event, even though the Father had concerns, X continued to see Ms GG. I accept the Father’s evidence that he would cooperate with future psychological treatment for X.
Y had speech therapy for a speech delay. Up until December 2022 she received some NDIS funding. There is no evidence that the Father interfered in appropriate treatment. The parties did not identify any pending significant health decision for Y.
As to education, there was no evidence that there had been a dispute as to the children attending B School. There is no dispute as to education per se between the parents. Depending on where the Mother moves, it is more likely than not that the children will move school. I cannot rule out that the parents will be unable to agree on any new school as a result of the Mother moving. My assessment is that the dispute between the parents is as to residence, rather than as to school. School decisions are likely to be shaped by the children’s primary residence. I had no reason to conclude from the evidence that the parents would not make pragmatic decisions as to the children’s education (current and future) and be able to discharge their joint responsibility as to those issues.
Family violence
Fourth, if either parent had engaged in family violence against the other that may be a significant factor in a decision that it was not safe for there to be consultation between the parents as to major long-term issues under s. 61CA.
The Father alleged that the Mother kicked him in the stomach in early 2023. The Wife strongly denied the allegation. Having regard to s. 140 of the Evidence Act 1995 (Cth), clear or cogent proof is necessary were so serious a matter to be found. There was CCTV footage (Ex R3). The CCTV footage was inconclusive. The Father has not proved that the Mother kicked him in early 2023.
The Wife made allegations of family violence during the relationship. I have not been persuaded that any allegations mean that it is not safe for there to be consultation under s. 61CA. I accept the Family Report Writer’s opinion at [61]–[62]:
61. It appears that the children were exposed to separation instigated violence, characterised by yelling and put downs, escalating in the months leading up to the marital separation. The children reported witnessing this conflict to the writer and [X] also provided a description of the conflict to her psychologist in 2022.
62. [Mr Owens] alleged that he was often undermined in the presence of the children in relation to his parenting and [Ms Pratt] reported that she was frequently criticised, which eroded her self-confidence. In the months leading up to the separation this verbal and psychological violence intensified, accompanied by accusations of infidelity, intimidation and financial control, allegedly perpetrated by [Mr Owens], and yelling, physical violence and threats of denigration, allegedly perpetrated by [Ms Pratt]. Both parties accepted some responsibility for their part in the family violence, such as [Ms Pratt] acknowledging that she yelled at [Mr Owens] at physical separation and [Mr Owens] acknowledging that he had accused [Ms Pratt] of having an affair. Both accepted that there was significant conflict during the relationship which would result in arguments, in the presence of the children. Although he appeared child-focused, [Mr Owens]’ decision to remain living in the family home post-separation is likely to have had a deleterious impact of the children, who are both predisposed to anxiety, by prolonging their exposure to family violence.
Fifth, the Mother concluded (I find honestly but mistakenly) that X was suffering from a major depressive illness on the basis of certain HH Centre test results in a test Ms GG administered on 24 August 2023 (Ex A11). The Mother on the basis of that mistaken belief took limited action to address that significant concern. In circumstances in which X was spending substantial time with the Father, the Mother did not consult with the Father as to her belief that X had a major depressive illness. She ought to have done so if X had the major depression she feared to ensure X accessing any treatment she needed. That failure to communicate with the Father is one reason not to allocate sole decision-making responsibility to the Mother.
Sixth, in circumstances in which (as discussed below) I propose to make orders that the children spend time on a 5:9 fortnightly cycle with the Father (that is, substantial time), it is in the children’s best interests that both parents consult as to major long-term issues. The children are to have a real involvement with the Father and the proper parenting order is that he have a part in the decision making processes as to major long-term issues.
Seventh, to the extent that there is an identifiable current long-term issue as to which decisions will need to be made on the evidence before me, it concerns whether X would be assisted by seeing a psychologist as to difficulties in her relationship with her Father. Joint decision-making as to that issue will support the Father’s involvement in any psychological treatment for X and ensured he “buys in” to any treatment which will best support the achievement of positive outcomes for X.
I will make an order substantially in the terms of the Father proposed as to joint decision-making.
I will also make an order in accordance with an order the Father proposed which restrains non-urgent specialist treatment without mutual written agreement (Order 39).
Family Therapy
The Father proposed that for a period of 8 months from the date making of these orders the parties attend confidential, non-reportable therapeutic family therapy. The Wife was adamant in her opposition to such a proposal. I am not persuaded that an order for family therapy is in the children’s best interests in circumstances of the Wife’s adamant opposition to such an order. I will not make an order for family therapy.
Issue 2: Is it in the children’s best interests to “spend time with” the Father 4:10 or 5:9 fortnightly?
The Mother has always been the children’s primary carer. The Father told the Family Report Writer that the Mother was a “dedicated loving mother”. Both parties agreed that the children should primarily live with the Mother. I find that it is in the children’s best interests that they primarily live with her.
The parties’ dispute devolved to a one night a difference over a fortnightly cycle during term time: the children spend time with the Father 4:10 (the Mother’s case) or 5:9 (the Father’s case). The Mother’s proposal configured time in Week 1 as overnight Tuesday to Wednesday and in Week 2 Friday to Monday (1 night + 3 nights). The Father’s proposal configured time in Week 1 on the basis of Monday to Wednesday and in Week 2 Friday to Monday (2 nights + 3 nights).
The spend time issue is interconnected to the issue of where the Mother lives. If the Mother lives in Region DD and the children go to school close to the Mother’s home and the Father continues to work as a transport worker out of D Venue, as a matter of practical reality, the children will not be able to spend term time 4:10 with him because of impractical commuting distances between Region DD and D Venue.
I must consider the children’s best interests and for that purpose consider the 6 factors in s 60CC(a)–(f).
It was “part and parcel” of the parents’ competing proposals (namely, the Mother’s proposal that the children spend time with the Father on a 4:10 basis during term time and spend substantial holiday time with him and the Father’s proposal that the children live with the Mother) that neither party contended that “safety” was a substantial issue in the other parent’s household (s. 60CC(2)(a)). There had been no police or DFFH involvement with this family. I am satisfied that safety was not an issue which favours one time configuration over the other (s. 60CC(2)(a)).
The Mother emphasised X’s views. X is now 11 and I give her views some weight (s. 60CC(2)(b). Both parties traversed challenges in the relationship between X and the Father. In his affidavit, the Father deposed that X would often want to return to the Mother while in the Father’s care and even reacted violently by kicking and punching the Father when she was told that she could not return to the Mother until later in the day. The Mother deposed that that X and the Father would have “rapidly escalating arguments” before and after separation and that the children describe “a lot of fighting” occurring in the Father’s house.
The Family Report Writer opined at [63] of the report that:
[X] has formed a black and white view of her parents with her father being bad and her mother being good. During the meeting with the writer, [X] was intent on presenting [Mr Owens] in a negative light, including finding minor faults such as his fake laugh, untidy home and stopping at the store to buy ingredients for dinner.
There was no suggestion that the Mother has engaged in any campaign of deliberate alienation (T306:L43-46). The Father emphasised that it was not suggested that the Mother had engaged in any such campaign and that was not the Father’s case (T391:L26-27). There was, however, some danger of alignment between X and the Mother which might have a deleterious effect on X’s relationship with the Father. The Family Report Writer agreed that it would be “impossible” for the Mother to prevent the children from noticing her negative views about the Father and her anxiety about the children spending time with him. These findings reduce, to a degree, any weight I might otherwise place on X’s reluctance to spend time with her Father. In any event, I accept the Father’s evidence that since September 2023 when X had been spending increased time with the Father under the 4:10 orders, time had progressed well.
The children’s developmental, psychological, and emotional and cultural needs (s. 60CC(2)(c)) and the capacity of each parent to provide for those needs (s. 60CC(2)(d)) do not assist in fixing on one party’s proposal rather than the other’s.
Section 60CC(2)(e) provides that I must consider “the benefit of the child being able to have a relationship with the child’s parents”, which I read as both the child’s parents. Although there is only an iterative difference between a 4:10 time configuration and a 5:9 time configuration, greater time with the Father will support X and Y’s relationship with him, without detracting from the children’s relationship with their Mother with whom they will predominantly live.
The Family Report Writer accepted the proposition that X spends more time with the Father, it would better protect her from the danger of alignment. I also accept the Family Report Writer’s evidence that it was important for the children, particularly X, to see the Father taking more responsibility for day-to-day care issues and the unpaid work associated with childcare. More time, rather than less time, would mean that X saw her Father taking responsibility as to those day-to-day issues (T311:L37–T312:L27).
In Week 1 of a fortnightly cycle, a two-night block of time in the Father’s home (rather than a single night under the Mother’s proposal) also, at least in part, addresses the issue the Family Report Writer recognised that “transition is hard for the children” (T306:L23).
In McCall & Clark (2009) FLC 93-405 at 83,476, [122], the Full Court said: “…no doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents”. These observations have not lost their force since legislative amendment. This case is one of the majority of cases. A 5:9 spend time arrangement better supports a “significant relationship with both parents” than a 4:10 spend time arrangement.
On balance, I prefer the Father’s spend time arrangements of a 5:9 arrangement during term time.
Should there be alternative “spend time with” orders if the Father resumes work as a “long haul [transport worker]”?
The Father’s orders sought alternative spend time with orders if he resumed work as a long haul transport worker. The evidence was that the Father last worked as a long-haul transport worker in 2017. The rosters for a long-haul transport worker mean that the Father might be away more often and the children would be unable to spend time with him on a 5:9 fortnightly basis if time were configured on a 2 + 3 night basis.
An order to configure time for 5 consecutive nights but not otherwise change the night count if the Father resumes work as a long-haul transport worker would not substantially undermine consistency, predictability, and stability for the children. An order in that form would not reduce the children’s time with the Mother. It would support the children’s relationship with the Father should he resume long-haul transport work. Although the orders will be effective when they are made, the practical reality is that the Father is not away for long periods. Should at some future date he resume long-haul work as the children grow older (they are currently 11 and 9) there seems no substantial detriment — in terms of their best interests — with them spending a block of 5 consecutive nights away from their Mother and primary carer. I propose to make an order substantially in the terms the Father seeks as to the spend time with arrangements should he resume work as a long-haul transport worker. Not making an order for that possibility now risks further litigation which is not in the children’s best interests.
Term and long summer holidays
The differences between the parties as to holiday time were limited. I note the orders I will make to term and long summer holidays apply only in the absence of agreement. I hope the parents will be able to achieve agreement as to holiday time. I have made orders if they cannot reach agreement.
As to term holidays, the Mother proposed the children spend 5 days with the Father. The benefit to the children of a relationship with the Father means that, in the absence of agreement, I prefer that the children spend approximately equal time with their parents during the term holidays. The orders substantially reflect the Father’s proposal. The orders which gradually increases the time the children spend with him during term holiday time from 5 to 7 consecutive nights as the children become older so as to limit changeovers and to achieve equal time at the end of that graduated process.
As to long summer holidays I have made orders for alternating years so that the children may spend time with the maternal grandparents who live in Brisbane. Under s. 60CC(2)(e), I must consider the benefit of the children being able to have a relationship with “other people who are significant to the child”. The evidence was that the children have a significant relationship with their maternal grandparents who live in Brisbane. The Mother sought an order that the children be permitted to spend 20 consecutive nights in Brisbane every second year commencing December 2025. The Father’s proposed orders made no alteration to long summer holiday time arrangements year-on-year.
Commencing in December 2024, a non-Brisbane year, in substance, in terms of night count, the Mother proposed 10 nights (in two 5-night blocks) and the Father added an additional 2 nights on the final weekend long summer holiday. The Mother’s proposal effectively reduces the time the children would spend in summer holidays with the Father relative to the time they spend during term. I have preferred the Father’s 12 days proposal but ordered that the final weekend of the long summer holidays be from Thursday to Saturday (as contrasted with Friday to Sunday) which may assist smooth logistics with return to school arrangements so that the children return to the Mother, their primary carer, a little before school resumes.
Commencing in December 2025, I will order that the children be permitted to spend 14 consecutive days in Brisbane. The Father’s time configuration will be 6 plus 6 days as the Mother proposed, loaded towards the late January end of the summer holidays to accommodate the children’s travel to Brisbane in those alternate years. I have made an order as the Mother proposed which will permit the Father to spend some Christmas time with the children in Brisbane.
Special occasion time
There were limited differences between the parties’ proposals as to special occasion time. I have preferred the orders proposed by the Mother, for both their clarity and as they allow the children a greater amount of time with the ‘special occasion’ parent around the Mother’s and Father’s Day weekends.
Issue 3: Is it in the children’s best interests for the Mother to be able to relocate to Region DD?
Although I have titled this issue “relocation”, more precisely, the issue arises because the former family home in G Street, Suburb H has been sold. The sale will settle in late 2024 and, as a result, the Mother and the children must urgently find alternative housing. The Mother had not found alternative housing at the date of trial. Her preference is to have the security of purchasing a home. The Mother’s preference would be to remain in Suburb CC or its surrounds so that the children could remain at B School. She says (and I accept) that housing in the Suburb CC area is expensive and there is very limited housing availability.
As a result, if she cannot relocate nearby, the Mother’s preference is to relocate to Region DD. She named Suburb JJ and Suburb KK as suburbs where she would prefer to live because of issues of housing “availability” and “affordability”. She says the children have close friendships in that area. She has an aunt and uncle in Town LL. She did not name the friends or expand on the nature of the children’s relationship with the aunt and uncle.
The Father lives in rented accommodation in Suburb CC. He (predominantly) works at D Venue. He has worked with R Company (predominantly) out of D Venue for more than 20 years. He says, and I accept, Region DD to D Venue commute approximates 1 hour 40 minutes, one way. The practical reality is that if the Mother moves to Region DD, the children live with her and the children go to school close to her home, it is not feasible for either the existing 4:10 “spend time with” orders or the Father’s preferred 5:9 “spend time with” orders during term time to work if the Father continues to work in line with his current arrangements. The Mother works from home.
The Mother’s proposed “spend time with” orders do not engage with this issue if she moves to Region DD.
The Father’s proposed orders are as follows:
Restraint on Parents moving
The parents each be restrained from moving the children’s principal place of residence to a location more than 15km from [C Venue] while the children or either of them are attending [B School].
In the event that neither child is attending [B School], the parents each be restrained from moving the children’s principal place of residence to a location more than 25 km from [D Venue] while the Husband remains employed as a [transport worker].
As is discussed below, the authorities place a high value on orders of this court not restricting a parent’s movements. Also, a proper order would permit the Mother as the primary carer, as far as is possible, to live where she chooses. If the Mother is forced to live in a location she does not choose, it seems there is a possibility that may adversely affect her parenting. The Father noted (accurately) that his proposed orders permit the children’s residence to be anywhere within most of metropolitan Melbourne. He proved that proposition by reference to two Google Maps (Ex. A5) which displayed two concentric circles 15 km from C Venue and 25 km from D Venue to encompass most of metropolitan Melbourne. The Mother’s evidence for wishing to move to Region DD had a limited cogency. While housing in Suburb CC is doubtless expensive, I had no evidence as to the relative cost of housing in Region DD and could not conclude that it is likely to be substantially cheaper. The Mother did not develop what role her Region DD friends would have in the children’s lives. If the Mother moved to Suburb JJ or Suburb KK, she would not live very close to the unnamed aunt and uncle in Town LL, which on at the opposite side of Region DD.
Legal principles as to the children’s residence
The court has the power to make orders as to the children’s residence under s. 114 of the Act.
In Sampson v Hartnett (No 10) (2007) 215 FLR 155; [2007] FamCA 1365 a Full Court said, “the location of the child will usually be the critical factor, leaving to the parents the choice about their roles”.
In Oswald & Karrington [2016] FamCAFC 152 (at [15]) (as in this case) there was no issue that it was in the children’s best interests that they live primarily with the Mother. The Father does not propose that if the Mother moves to Region DD, the children will live predominately with him. In Oswald at [17] the Full Court said:
there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
The main focus therefore is not on the Mother’s reason for moving but the focus is on the best interests of the children (AMS v AIF (1999) 199 CLR 160 per Hayne J at [217]–[219], and per Kirby J at [192]; cited in Wilburn & Wilburn (2020) FLC 93-979, [17]). In Wilburn, at [51] Strickland J said:
There remains a clear difference as to how a court addresses a requirement to remain in an area, as opposed to a requirement to actually pack up and move.
How should the principles be applied in the current case?
I must take into account that I ought to frame the orders so that they do not impose unnecessary or oppressive restrictions on the freedom of movement of the Mother as the primary carer. But the paramount consideration is the best interests of the children. Should the Mother not remain in the area where she currently lives, with considerable (but not unrestricted) latitude afforded by the two concentric circles 15 km from C Venue and 25 km from D Venue, her “spend time with” proposal — in the children’s best interests — that the children spend time with the Father in term time on a 4:10 fortnightly arrangement is simply not practical.
At my request, the Father proposed “fall back” orders if the Mother relocated to Region DD, which included conditionalities as to the children’s time with the Father. The conditionalities introduce an undesirable element of inconsistency, instability and unpredictability for the children.
First, the primary issue in the children’s best interest is the benefit to the children of a relationship with their Father. The Father’s orders requiring the children’s residence to remain in a prescribed area (but an area that covers most of metropolitan Melbourne) permit that to occur. The Mother’s proposed orders do not. Weighing all factors, requiring the children’s residence to be maintained in greater metropolitan Melbourne is in their best interests. It is an order that requires the Mother to remain in an area as opposed to a requirement to actually pack up and move (Wilburn, [52], above).
Secondly, because the permitted area extends to cover most of the metropolitan Melbourne area, the orders are not oppressively restrictive of the Mother’s freedom of movement. The feasibility as to where the children’s residence must be maintained addresses the mother’s legitimate concerns of housing “affordability” and “availability”.
Thirdly, although the primary focus is the best interests of the children, the Mother’s ties to Region DD are not sufficiently strong so as significantly to establish a need for her to move there in the children’s best interests or that her parenting will be adversely affected if an order requires the children’s residence to be maintained in a prescribed area. The Mother works from home. Her employment does not require her to move to Region DD.
Fourthly, the Father has a long-standing and unchangeable commitment to his employment at D Venue. The children benefit from this employment because of, at the very least, the fact that his high income enables his payment of the maximum level of child support.
I will make orders as to the children’s residence largely in accordance with the Father’s proposal.
Children’s passports
I will make orders that the Mother have custody of the children’s passports because they live primarily with her.
Notations
For the reasons set out below, I do not propose to make the notations the Father sought.
In Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66 a Full Court observed at [44] that a notation “cannot preclude a party's legitimate recourse to applicable legal principles”. A judgment is embodied only in the orders and a Notation is not an order.
The Father proposed a notation that the children attend at MM School but that he would consider any alternative school the Mother nominated “in the event the mother moves to a location that is not reasonably close to [MM School]”. Given it is unknown as to where the Mother will live, save for the order requiring the maintenance of the children’s residence in an area that encompasses most of metropolitan Melbourne, I do not propose to make such a notation lest a mistaken inference be drawn that somehow MM School is a preferred high school in circumstances in which I have no evidence on which to base such a conclusion.
I consider the orders are sufficiently clear without a notation as to the meaning of a short-haul and a long-haul transport worker.
Although the Father, as an R Company transport worker, has the benefit of discounted staff travel on short notice, I do not intend to make the notation in case it makes less clear, rather than clearer, the orders as to overseas travel.
B. PROPERTY
The parties’ competing positions
Both parties adopted a two-pool approach. The Wife submitted that there ought to be an alteration of the net assets 75%/25% in her favour (excluding superannuation). The Wife said that there should be the same alteration of the superannuation assets 75%/25% in her favour.
The Husband submitted that there should be an alteration of the non-superannuation assets 70%/30% in the Wife’s favour. The Husband submitted that the practical way of achieving that outcome was that the Wife would receive 75% of the net proceeds of the sale of the former family home (T408:L11). As to superannuation, he quarantined an amount of $122,925, the accrued value of his pre-relationship superannuation. He submitted that there should otherwise be an equalising order as to superannuation entitlements the parties had accrued since the 2006 commencement of the relationship, with the effective result that the wife would receive approximately 41% of the value the parties’ total superannuation.
Summary of alteration of property interests
For the reasons set out below, I will alter the parties’ interests in property of the parties to the marriage or either of them so that the Wife will retain ownership of 72.5% and the Husband 27.5% of the net property (excluding superannuation). In dollar terms, the Wife will retain property valued at $637,163 and the Husband property of a value of $241,682, a difference of $395,481 between them.
Issue 4: What is the property available to be divided between the parties?
The asset pool
In determining what orders are appropriate, just and equitable I have followed the four steps set out in Hickey & Hickey &Attorney-General (Cth) (2003) FLC 93-143, [39]. I have identified the relevant legal ownerships of the parties and the liabilities of the parties (rounded to the nearest dollar) in the asset pool below. As to the “value” of assets (or whether assets should be in the pool) there are only three disputed items: items 10, 11 and 15.
ITEM Owner Value ASSETS 1 G Street net sale proceeds
Sale Price: $2,166,000
Mortgages: ($1,367,890.29)
Line of Credit: ($42,662.42)
Sale costs: ($42,320.00)
J Bank: ($10,000.00)J $703,127.29 2 NAB Personal account #...70 H $9,256.00 3 Share Portfolio H $54,137.47 4 R Company Shares H $4,976.43 5 Motor Vehicle 1 H $10,561.50 6 Motor Vehicle 2 W $32,643.75 7 Share Portfolio W $27,733.92 8 Husband Legal Fees H $24,329.30 9 Wife Legal Fees W $9,484.00 10 Part property settlement W $61,694.76 11 Wife’s claimed add back of $45,000 H NIL 12 TOTAL ASSETS $937,944.42 LIABILITIES 13 Division 293 Tax Debt H $24,882.00 14 HECS Debt W $29,376.00 15 BB Bank Credit Card (Customer no.: #...24) H $4,841.00 16 TOTAL LIABILITIES $59,099.00 TOTAL NET NON-SUPERANNAUATION 17 Total $878,845.42 SUPERANNUATION 18 Super Fund 1 (Accumulation) H $4,165.19 19 Super Fund 1 (Defined Benefit) H $662,230.80 20 Super Fund 2 W $37,833.46 21 TOTAL SUPERANNUATION $704,229.45 Item 10: Part property settlement
As to item 10, under court orders made on 12 April 2023 the Wife received $61,000. The orders were consent orders. Both parties were represented. Order 28 was as follows:
28. That within 14 days, the parties do all acts and things and sign all documents necessary to redraw from the [BB Bank] mortgage account ending #[...]77 the following funds:
(a) The sum of $31,694.76 to be utilised to repay the [Motor Vehicle 2] lease; and
(b) By way of part property settlement, the sum of $30,000 to be paid to the Testart Family Lawyers trust account for and on behalf of the wife.
Even though the Father accepted that I had power to do so at a final hearing, I do not intend to recharacterise the $61,000 payment ex post facto as interim spousal maintenance. As of 12 April 2023, the Wife had no extant spousal maintenance application. Under the orders made on 12 April 2023 (and since) the Husband has had sole responsibility for mortgage payments and outgoings on the family home. I am not persuaded on the evidence at trial in June/July 2024 that the Wife has proved that she had a need under s. 72 for interim spousal maintenance as of 12 April 2023. $30,000 of the $61,694 the Wife received was paid to the Wife’s lawyers. If the payment were now recharacterised as maintenance, I accept the Husband’s submissions that I would be making a de facto costs order against him. Item 10 in the amount of $61,694.76 will remain on the balance sheet as the Wife’s part property settlement.
Item 11: Add back as to premature distribution of matrimonial assets
As to item 11, the Wife seeks an “add back” of $45,000 as to the Husband’s expenditure of joint funds. In Omacini v Omacini [2005] FamCA 195 at [30], the Full Court held that premature distribution of matrimonial assets is one of “three clear categories of cases [which] have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist”. Add backs are a matter of discretion and the exception rather than the norm. I would only add back notional property if it is in the interests of justice and equity to do so.
It was common ground I ought to add back legal fees (items 8 and 9).
The evidence was that since separation both parties have prematurely distributed marital assets to themselves. The Husband’s evidence was that any distributions he had made to himself were matched by distributions the Wife had made to herself. The Husband’s evidence that the Wife transferred $13,000 to her parents in February 2023. The Wife during cross-examination conceded a $10,000 transfer (T295:L40–T230:L6). The Husband said (and was not challenged) on evidence that the Wife spent $33,500 on online shopping after separation between August 2022 and February 2023. In circumstances that the Wife has prematurely distributed to herself approximately the same amount as the Husband, I do not propose to exercise my discretion to “add back” $45,000 because it is not in the interests of justice and equity to do so. Item 11 will be excluded from the balance sheet.
Item 15: BB Bank credit card bill
As to item 15, the Wife disputes that the Husband has a liability on a BB Bank credit card (#...24) of $4841. The Husband set out the credit card debt in his financial statement, deposed to it in his affidavit and tendered a current statement as of 5 June 2024 (Ex. A16) which had a balance owing of $4,841. The credit card debt will be included on the balance sheet as the Husband’s liability.
Conclusion as to balance sheet
With the exclusion of the claimed add back of $45,000 from the parties’ assets, there are total net assets of $878,845.
The parties agreed the value of the superannuation assets as $704,229.
Section 79(2): Is it just and equitable to make an order?
Both parties seek orders for an alteration of the property interests following their marriage breakdown to move on with their lives free of financial commitment to the other. The shared use of the matrimonial home at G Street, Suburb H is at an end. I am satisfied under s. 79(2) that it is just and equitable to make an order. Neither party contends otherwise.
Issue 5: How should contributions be assessed?
Section 79(4)(a), (b) and (c) deal with contribution factors. The Husband submitted that I ought to assess contributions 55%/45% in his favour. In her Outline of Case, the Wife submitted that contributions should be assessed 55% 45% in her favour.
I find that the Husband made an initial contribution of $91,693, an amount he held in an NN Bank Managed Fund at the relationship’s start (NN Report, “MRO-12”).
The Wife submitted (and the Husband disputed) that the Wife had some cash savings at the relationship’s start. The Wife did not produce any documents as to the cash savings and did not prove that she in fact had cash savings (T282:L29-39). I prefer the Husband’s evidence that the Wife did not have pre-relationship assets of any substance.
I give the Husband’s relatively greater initial contribution some weight in the contributions assessment.
This was a long relationship from 2006 until 2022. Throughout, the parties operated as a partnership. Each did her or his best to advance their mutual interests (Palumbo & Mandel (2019) FLC 93-929, [99]). During the relationship, the Wife fulfilled the obligations of the children’s primary caregiver. She thereby freed the Husband to earn a relatively greater income. In addition, she contributed her income from her employment during the relationship. The Wife’s contributions to home and childcare “ought to be equally equated to the efforts of the husband who is thus freed to pursue his direct outside employment” (Mallet v Mallet (1984) 156 CLR 605, 609). Since the relationship the Husband has made a relatively greater financial contribution and the Wife has made a greater contribution in terms of the childcare load. Since the start of their relationship there is nothing to differentiate their contributions.
Overall, taking into account the myriad contributions, I assess contributions 52.5%/47.5% in the Husband’s favour. The Wife’s submission that I should assess contributions 55%/45% in her favour does not give due weight to the Husband’s initial contribution which was of some significance in terms of the size of the overall asset pool. In dollar terms, the 5% differential between the parties which is represented by a 52.5%/47.5% assessment of contributions in dollar terms is $43,941.
Issue 6: What adjustment should be made under s. 75(2)?
In Petrellis & Petrellis [2023] FedCFamC1A 104 at [69] McClelland DCJ said:
The appropriate approach in considering relevant s 75(2) factors is to:
•firstly, determine what factors should be taken into account pursuant to s 75(2) [s. 90SF(3)], without any consideration at all at that stage of the amount (if any) that should be ordered;
•secondly, when all of these factors have been determined, it is then appropriate to determine what weight should be given to each of them, including the outcome of the Court’s analysis undertaken pursuant to ss 79(4)(a), (b) and (c)
The s. 75(2) exercise is done against the background of the conclusions already arrived at on contributions (Clauson& Clauson (1995) FLC 92-595, 81-911).
Each party submitted that there should be a substantial adjustment under s. 75(2) factors in the Wife’s favour. The difference between the parties as to the appropriate s. 75(2) adjustment was limited, particularly in real dollar terms. The Wife submitted that there ought to be an adjustment under the s. 75(2) factors of 20% to 25%. The Husband submitted that there ought to be a 20% adjustment in favour of the Wife under s. 75(2) factors.
Each of the parties is 45 years old. Referable to s. 79(2)(a), the wife has some significant ill health. She has had surgery in late 2023. She attends fortnightly psychologist sessions. The Wife’s average weekly out-of-pocket health expenses of $189.92 (excluding health insurance cost) provides some measure of the extent of the Wife’s ill-health.
As to the parties’ income, property, and financial resources under s. 75(2)(b), the significant disparity between the parties’ earnings and their earning capacity favours a substantial adjustment (Waters v Jurek (1995) 126 FLR 311, [85]). The Husband’s earnings in FY24 approximated $450,000; the Wife’s approximated $63,000. As a transport worker, it is likely that the Husband’s relatively superior earning capacity will continue. As the Full Court held in Clauson at 81,911, “It has long been recognised that in most cases the most valuable ‘asset’ which a party can take out of the marriage is a substantial, reliable income-earning capacity”.
In addition, the Husband has accrued and unused annual leave (33 days) and long service leave (102 days) (Ex. R4) which, given the level of his remuneration, is a significant financial resource under s. 75(2)(b).
As to the care of children as to which each of s. 75(2)(c), (d), (e), (g) and (l) are relevant, it is appropriate that due weight is given to the Wife’s assumption of a relatively greater, but not exclusive, share of the childcare burden.
An adjustment is warranted having regard to a standard of living for the Wife that is, in all the circumstances, reasonable under s. 75(2)(g).
Under s. 75(2)(j) and (k), the relationship has had an impact on the Wife’s earning capacity. She placed her own career second to that of the Husband’s to fulfil the fundamental role of primary carer for the children. As noted, her assumption of this role has freed the Husband to develop and pursue his career. The Wife forgoing of employment for some time has affected her earning capacity and, to an extent, the currency and marketability of her skills.
Under s. 75(2)(na), the Husband pays the maximum child support assessable under the administrative scheme. There is no suggestion that he will not continue to do so. Nonetheless, the Wife will continue to have the greater time caring for the children. As the Full Court observed in Clauson (at 81,911):
… It should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and restriction on an independent lifestyle which the obligation to care for children usually entails.
Neither party referred to any other matter under s. 75(2)(o).
In Petrellis, at [71] McClelland DCJ said:
In undertaking the fourth step referred to in Hickey, it has been said that “the whole is not necessarily the sum of its component parts, and at the very least one has to stand back, at the end, and look at the final result, to ensure that the cumulative process has not produced a manifestly unjust result.
The critical issue is the real impact of value of the adjustment in money terms, not its expression as a fraction or percentage of the overall assets (Candle & Falkner (2021) FLC 94-069, [102]). Further, as Wilson J said in Mallet of the objective of s. 75(2):
The objective of the section is not to equalize the financial strengths of the parties. It is to empower the court, following a dissolution of a marriage, to effect a re-distribution of the property of the parties if it be just and equitable to do so having regard, inter alia, to the respective contributions of the parties.
Weighing all of these factors, I am satisfied that an adjustment of 25% in favour of the Wife is appropriate. As a result, following the contributions assessment, an appropriate, just and equitable overall adjustment pursuant to s. 79(4) is that the Wife should receive 72.5% of the parties’ net property (excluding superannuation) and the Husband 27.5%. Such an order is appropriate having regard to the order I will make as to the parties’ superannuation. The Wife will receive $637,163 of the parties’ net assets. The Husband will receive $241,682. That is a difference of $395,481 between them.
Issue 7: How should the parties superannuation interests be adjusted?
In closing, the Wife did not pursue the issue of a flagging order. Neither party submitted that the defined benefit character of the Husband’s superannuation fund was an impediment to a splitting order. The Husband submitted that procedural fairness had been afforded to the trustee.
The Wife submitted that I allocate sufficient funds out of the Husband’s superannuation interest so that she would have an entitlement in the existing superannuation pool allocated 75%/25% in her favour. The Husband submitted that a base amount of $252,818.76 be allocated to the Wife out of the Husband’s superannuation entitlement, which would effect a result that the Husband had approximately 59% of the parties’ combined total superannuation and the Wife 41%.
The underpinning reason for the Husband’s submission was his evidence that at the start date of the relationship, his superannuation accrual was $122,925 and the Wife had no substantial superannuation. The Husband’s proposed order was derived via two steps. First, quarantine the Husband’s pre-relationship superannuation accrual ($122,925) from the total. Second, as to superannuation accrued since the relationship’s start (2006), split superannuation 50-50. The Husband’s agreed current superannuation balance in the balance sheet (Ex. JE-1) was $662,230.80, based on the expert unchallenged evidence of Ms OO set out in her affidavit made 12 July 2024 (Ex. R9). The endpoint of the Husband’s position was that a base amount be allocated to the Wife out of the Husband’s interest of $252,818.76.
I accept the Husband’s submissions that some distinctive features of superannuation (most particularly, its availability only on retirement) mean that some of the s. 75(2) factors which militate in favour of the Wife receiving a significant s. 75(2) adjustment as to the non-superannuation pool — that is, relatively greater care of the children, disparity in earning capacity — are of lesser significance as to the superannuation pool. I do not accept the Wife’s submissions that I should alter the parties’ interests in both pools in an undifferentiated way because her submissions did not engage with the fact that once the parties can access their superannuation, I expect neither party will have care of the children and, given retirement, there will be no future employment income differential or earning capacity differential.
I must take into account the Husband’s initial contributions to superannuation (In the Marriage of Coghlan (2005) 193 FLR 9; [2005] FamCA 429, [48]). It would be in error simply to carry forward mathematically the Husband’s pre-relationship superannuation interests as a proportion of total contributions. The Full Court in Gadhavi & Gadhavi (2023) 67 Fam LR 174; [2023] FedFamC1A 117 at [45] said: “it is not open to a trial judge to simply carry forward an original contribution as a mathematical proportion of that party’s total contributions”. Although the Full Court made the observation in the context of non-superannuation assets, it seems to me I ought to adopt the same approach as to superannuation assets.
The assessment of superannuation contributions remains a holistic exercise. In addition to taking into account the Husband’s initial contributions, I also should take into account the fact that the Wife has freed up the Husband to accrue his significantly relatively superior superannuation entitlement over a long marriage by assuming the primary burden of the childcare throughout the relationship. Further, from now until retirement, there will remain an economic disparity between them in terms of future earning capacity.
On balance, I will allocate a base amount to the wife out of the interest of the Husband in the fund so that superannuation is split between them 55%/45% in favour of the Husband. In dollar terms, of the agreed total superannuation of $704,229, the Husband will have superannuation of $387,325 and the Wife will have superannuation of $316,903. To achieve this outcome, an amount of $279,070 will be split from the Husband’s fund in favour of the Wife.
C. SPOUSAL MAINTENANCE
Issue 8: Is it proper for the Husband to provide spousal maintenance for the Wife?
The Wife seeks a spousal maintenance order of $1,600 weekly for 4½ years and, thereafter, $800 per week until Y reaches the age of 18, a period which approximates a further 4 years. Although she seeks an order for periodic maintenance over 9 years, I note the dimension of her claim is that the capitalised total value of the maintenance order she seeks is $561,600: $374,400 (234 weeks (4.5 years) x $1,600 weekly) plus thereafter $187,200 (4 years x $800 weekly).
The legislative spousal maintenance provisions and case law
Section 72(1) sets the gateway or threshold requirements for spousal maintenance (Hall v Hall (2016) 257 CLR 490; [2016] HCA 23). I will make a maintenance order “if and only if” the wife “is unable to support herself … adequately”. Section 72(1) is also premised on a threshold finding that the Husband is “is reasonably able” to maintain the Wife.
Pursuant to s. 74(1), if the threshold requirement is met, I have the power to make such maintenance order as I consider “proper”, which imports the concept of what is reasonable.
I must consider the spousal maintenance application only after I have first considered what alteration of property interests is appropriate, just, and equitable under s. 79 (Clauson, 81,907). The assets available to a party seeking maintenance under s. 74 may be sufficient after a s. 79 property order such that it can no longer be said that the party is "unable to support himself or herself adequately" with or without income arising from the investment or use or those assets retained under the s. 79 order. A property adjustment order under s. 79 does not disqualify a party from a maintenance order but its terms are taken into account in assessing whether to make a spousal maintenance order (In the Marriage of Mitchell and Mitchell (1995) FLC 92-601, 15). A s. 79 order also defines the other party's capacity to meet any order. This does not, however, mean that a party must deplete their entire capital before they can make a claim for maintenance (In the Marriage of Bevan (1995) FLC 92-600 at 81,980; Garston & Yeo (No 2) [2019] FamCAFC 139).
The Wife — as the applicant for maintenance — carries the onus (Hall, [3] –[8]).
In Badir & Badir [2022] FedCFamC1A 109, at [20], McClelland DCJ said the “ appropriate process to follow in considering an application for spousal maintenance is the four-step process Coleman J set out in Saxena and Saxena (2006) FLC 93-268:
(1)To what extent can the applicant support themselves adequately?
(2)What are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet those needs?
(4)If steps 1-3 favour the applicant, what order is reasonable having regard to s. 75(2)?
The question as to whether a person is unable to support themselves adequately imports a standard of living that is reasonable in the circumstances and is not determined at a subsistence level (McCrossen & McCrossen (2006) FLC 93-283 at [32] (applied in Badir at [26]). Further, in Brown & Brown (2007) FLC 93-316 at [161] (applied in Badir at [27] –[28) the Full Court said:
Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
…
Further, in Brown, at [161], the Full Court said with respect to “adequately” in s. 72 (approved by Brasch J in Kensit v Kensit [2022] FedCFamC1F at [30]):
•It is not to be determined according to any fixed or absolute standard.
•The idea that “adequate” means a subsistence level has been firmly rejected.
•Where possible, both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
•In some circumstances, it may be reasonable for the parties to live at a higher standard than previously enjoyed.
•It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he or she is unable to support him or herself adequately.
•However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
The relevant need is the Wife’s needs, not the needs of the children she is supporting. The children’s relevant needs should be met by way of a child support assessment (Keymer & Keymer [2020] FamCAFC 70, [43]; Stein & Stein (2000) FLC 93-004; [2000] FamCA 102, [44]–[57]). The needs of the spouse and the needs of the children must not be conflated (Riethmuller, Family Law, Seventh Edition, [19.90]). The Father in this case pays annual child support of at least $24,582 ($472 weekly) (CB98 [137]). There is no application for a departure order from the administrative assessment under the Child Support (Assessment) Act 1989 (Cth) before me.
Finally, in Bevan & Bevan (1995) FLC 92-600 Full Court outlined four general principles at 81-982 that an award or the consideration of an award spousal maintenance requires:
1.a threshold finding under s 72;
2.consideration of s 74 and s 75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded whether the respondent’s means permit; and
4.discretion exercised in accordance with the provisions of s 74 with “reasonableness in the circumstances” as the guiding principle.
I will follow the four-step process Coleman J set out in Saxena. I note that the Husband’s position was that the Wife had not satisfied her onus to prove that she was unable adequately to support herself so as to satisfy the threshold requirement under s. 72(1). .
To what extent can the Wife support herself adequately?
In Clauson at 92-595 the Full Court summarised the more important s. 75(2) factors. Undertaking the same exercise in this case, the Wife is:
·45 years old;
·in reasonable health;
·has a capacity to earn an income which is restricted but only to some extent by her role as the primary carer two primary school aged children;
·her standard of living will be materially affected by the separation; and
·she will receive a substantial amount in child support.
The Husband is:
·45 years old;
·in good health;
·has the capacity to generate substantial income (his R Company income for FY24 approximated $450,000);
·has to pay approximately $25,000 in child support but his disposable income was still far exceed the Wife’s; and
·his standard of living will not be materially affected by the separation.
In assessing whether the Wife is unable to support herself adequately, I must have regard to each of the matters in s. 72(1)(a)–(c).
The children live with the Mother on a 9:5 fortnightly arrangement. Those parenting arrangements of themselves do not support a conclusion that the Wife is unable to support herself adequately “by reason of having the care and control of the child of the marriage who has not attained the age of 18 years” (s. 72(1)(a)). The Wife’s care and control of the children may be relevant to an assessment as to whether she is able adequately to support herself.
The Wife is employed and has a capacity for appropriate gainful employment (s. 72(1)(b)). She is highly qualified: she has tertiary qualifications. Her age is not a barrier to gainful employment (s. 72(1)(b)). She is employed part-time as a professional at PP Company. The Mother’s gross income for FY24 approximates $55.000 for her work at 0.6 of a full-time equivalent role.
The Wife will also meet the threshold in s. 72(1) if she is unable to support herself “adequately” “for any other adequate reason” having regard to any relevant matter referred to in subsection 75(2) (see: s. 72(1)(c)).
What are the Wife’s reasonable needs
In her Financial Statement (Ex. R8), excluding child support payment receipts and the family tax benefit, the Wife said her total weekly income was her salary of $1,076.
Income
The Husband’s position is that the Wife could work more hours because the children are now 9 and 11 years old. He submitted she is under-utilising her employment capacity. The Wife’s position is that as the children’s primary carer (9:5), she is unable to work full-time. There was no available full-time work for her identified in the evidence.
Further, as to the level of her income, the Wife said she had lost skills. Her cross-examination included the following (T292:L43):
Yes, but - - -?---But my time out of the workforce, I’ve lost – they’re the most important years in your career. I’ve lost skills. I can’t remember how to do [work] that I used to do. I have lost opportunities for promotions, networking. I inquired about doing a [course] in 2020. I couldn’t do it, so I’ve lost or the career-building opportunities that I would have had otherwise.
The Wife wishes to address the issue of lost skills by undertaking studies in allied health care. She said in her affidavit:
My commitment to studying would have a short-term impact on the number of hours I can commit to paid work, but it will increase my long-term capacity and career prospects to better ensure financial security for myself and the children.
In assessing the extent to which the Wife can support herself adequately, I have calculated an income on the basis that she works 0.8 FTE, acknowledging there is some merit in both parties’ positions that she could work some more but she shoulders the burden of greater childcare. I have proceeded on the basis that in 4 years’ time when Y will have commenced secondary school and it is likely that she will have completed any further study to regain the currency of her workplace skills, it is reasonable to expect that the Wife will be able to work full-time.
As to the property settlement under s. 79, the Wife’s position was that she wishes to buy a home. Nonetheless, in an assessment of whether she can support herself adequately, it is appropriate for me to make an allowance for the income earning potential of the capital sum she will receive under the property orders because the present availability of that capital sum gives rise to a level of investment opportunities. I have made an allowance for 5% interest earnings on the capital sum of the wife will receive under s.79.
Although the Wife ought not to have to “exhaust” the capital sum, the following passage in Line & Line (1997) FLC 92-729 at [4.87] sets out that it is a question of “balance and reasonableness”:
…every case depends upon its own facts, and that whilst a spouse is certainly not obliged to exhaust his or her property entitlement in order to establish a need for maintenance, it does not follow that a spouse in all circumstances is entitled to retain his or her entire property settlement proceeds intact and call upon the other spouse to fully support him or her. Nor is a spouse who receives a lump sum of money by way of property order necessarily entitled to earmark all of those funds for the purchase of a house or some other capital expenditure, and again seek to depend entirely on the other spouse for weekly support in the form of maintenance payments. It is a question of balance and reasonableness in each case, and in many cases it is certainly appropriate, in assessing the needs of the spouse claiming maintenance, to make some allowance on the income side for potential interest earned upon all or part of the capital coming to that spouse from the property orders...
Wife’s Expenses
The Wife itemised her current total personal weekly expenditure at $3,835 comprised of:
(a)$235 income tax;
(b)$1,000 estimated mortgage/rent;
(c)$53 rates;
(d)$209 insurance premiums;
(e)$17 motor vehicle registration;
(f)$41 FEE/HELP debt; and
(g)$2,280 all other expenditure (which was divided between expenditure for her and for the children as $1,149 for her and $1131 for the children).
In the table below, I have excluded the children’s expenses. I have also excluded child support “income”. This was the approach Judge Blake adopted in Fannon & Salzer (No 2) [2024] FedCFamC2F 406, [57] and I will follow the same approach.
Excluding the children’s expenses, her expenses are $2,358 per week. I have then proceeded as follows.
I have set a reasonable housing expense at $800 weekly. There is no evidence to support $1000 as to mortgage/rent. Her evidence was that she had been the unsuccessful applicant for two tenancies in Suburb QQ and Suburb CC. In her affidavit she said: “I made rental enquiries recently to explore our options and see how competitive the rental market is. The properties I looked at were between $750 to $850 per week”.
As to the reasonableness of other expenses, there was both limited justification (and limited challenge) as to the reasonableness of her existing expenses. As noted in Brown, “where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable”. The Husband pointed out that the Wife’s current expenses were at a level (approximately $200,000 annually) the maintenance of which would require a gross income of $300,000 annually or more. On the other hand, his own expenses in his own financial statement are greater than the Wife’s. Although I am unable to find that any particular item of expenditure is unreasonable, in my assessment some level of “belt tightening” is appropriate and I have assessed the Wife’s reasonable expenses at 90% of current expenses.
Conclusions to the Wife’s reasonable needs
Taking into account those matters above as to the Wife’s current employment, an allowance for earnings on capital, housing costs and some “belt tightening” there remains a shortfall between the Wife’s current income and expenses of approximately $260 weekly calculated as follows:
Wife’s Weekly Income
Notes:
Adjusted on the basis that the Wife has capacity for gainful employment of 0.8 at current salary levels ($1076 @ 0.6; $1474 @ 0.8)
Child support receipts excluded (Fannon)$1,474 Plus: Assumed earnings on property settlement
Note:
$600,000 x 5% = $30,000/52 = $552
Assumes Capital preserved$552 Total weekly income $2026 Wife’s Weekly expenses
Notes: calculated as follows:
(1) Part N -financial statement $3835
(2) less $1131 excluded for children’s expense (Fannon, above)
(3) less housing (separately dealt with) $1000
(4) less rates $53 (not payable consequent on home sale)
(5) less 10% reduction on balance for reasonable belt tightening expenses [-$165.10]$1486
Plus Housing expense $800 Reasonable expenses $2,286 Shortfall
[Expenses $2286 less income of $2011]$260 What capacity does the Husband have to meet those needs?
I calculate that the Husband has capacity to maintain the Wife as follows:
Adjusted Weekly Income
Note:
FY 24 Annual income $454,000/52 = $8370$8,370 Expenses
Expenses drawn from Financial Statement, Part N (CB68): $1802; plus
Rent - $880 (T46: L34)$2,682 Excess $5,688 The threshold issue
I have noted that “adequately” in s. 72(1) does not import an absolute standard. Where possible both spouses should continue to live after separation at the level which they previously enjoyed but that may not be possible. In combination of the Wife’s limited earning capacity and her reasonable expenses which exceed her income (s. 75(2)(b)), her primary care for the children (s. 75(2)(d)), a standard of living that in all the circumstances is reasonable (s. 75(2)(g)), the fact that her role during the marriage has affected her earning capacity because of the loss of employment skills (s. 75(2)(k)), and a reasonable intention to undertake further study in her long term interests (s. 75(2)(o)) lead me to conclude that the Wife satisfies the threshold requirement that she is unable adequately to support herself under s. 72(1). The Husband has capacity to support her for the purposes of s. 72(1).
What order is reasonable under s. 74(1) having regard to s. 75(2)?
Liability for maintenance and its quantum are two different questions.
I expect that the Wife will be able undertake the further study she proposes by about the time Y (the younger child) reaches secondary school. Further, once the children are in secondary school their childcare needs will be reduced.
As a result, as to what order is reasonable, it is reasonable to expect that when Y commences secondary school 3½ years from now, the Wife will then have a capacity adequately to support herself. If the Wife were working full-time, that fact would erode the shortfall between her income and expenses.
In all the circumstances, I propose to make an order that the Husband pay spousal maintenance calculated for 4 years (208 weeks) at $300 weekly an amount slightly exceeding the shortfall between the Wife’s current income and expenses, equalling $62,400 in total. I consider this to be a reasonable amount of maintenance. I have allowed an amount slightly greater than any calculated shortfall because necessarily this is a predictive exercise and it cannot be calculated to the dollar.
A lump sum order: s. 77A
Although the Husband’s primary position was that the Wife had not satisfied the gateway entitlement under s. 72(1), in the alternative, if I found that maintenance should be paid, the Husband sought an order that it be paid in a lump sum under s. 77A to enable these parties to finally determine the financial relationship between them under s. 81.
As the Husband sought a lump sum order I will make an order accordingly. The Husband did not submit that there ought to be any discount applied because of the capitalisation of a periodic spousal maintenance order.
Issue 9: Should there be a costs order against the Wife as to the interlocutory hearing on 10 April 2024?
The Husband sought an order that the Wife pay his costs reserved from 10 April 2024 (see order 10 on that day), fixed in the scale amount of $5,233.33 because “that hearing was necessitated, at least in part, by the Wife’s failure to sign the engagement authority” for the sale of the G Street proposer (T432:L14-15).
In the Husband’s affidavit at [243]–[254], he details that the Wife only signed the engagement authority on 10 April 2024, “belatedly on the morning of the hearing”, as the Husband put it (T432:L27).
I am not satisfied that the Wife’s conduct warrants a departure from the usual position that each party pay their own costs under s. 117(1). First, in his application in the proceeding, the Husband sought orders that he have sole conduct of the sale of the G Street property. By consent, the court made orders which set in place a process whereby the parties had joint conduct of the sale. To that extent, the Wife’s conduct in resisting the application case was not unreasonable because the Husband consented to an order more favourable to her then the order set out in his application. Secondly, on 10 April 2024, I made additional orders under s. 102NA of the Act prohibiting personal cross-examination outside the scope of the Husband’s application which necessitated the parties’ attendance at court and the costs incurred in any event.
As a result, each party should bear their own costs under s. 117 as to the hearing on 10 April 2024.
Issue 10: What are the appropriate orders?
Although some orders are self-explanatory, I explain my orders as far as is necessary as follows.
Parenting orders
The parents will have joint decision-making authority (order 2). I favour the comprehensive orders the Father proposed as to how consultation between the parents about long-term decision-making will be conducted (Order 3). As set out earlier in the reasons, I have also included an order the Father proposed restraining the parties from taking the children to non-urgent medical appointments without mutual written agreement to support joint decision-making (Order 39).
As to the live with and spend time with arrangements, order 4 provides for the children to live with the Mother. Order 5 provides for the children to spend time with the Father on a 5:9 fortnightly cycle (2 nights in week 1 and 3 nights in week 2).
I have prefaced the orders as to school term holidays and long summer holidays that they will operate “in default of agreement between the Mother and Father”. Preferably, the parents will agree as to arrangements for holiday time between them. Further, the orders will be subject to order 19 (the travel order), that permits each parent to take the children on a holiday for 14 nights in each alternate year. Although in the Father’s suite of orders he included a proposed order permitting 21 nights for international travel, any international travel longer than 14 days is subject to the other parent’s agreement. The order providing for 21 days international travel has been omitted.
As to school term holidays, I have made orders that the children’s time with the Father will be increased from 5 nights to equal shared time on a graduated basis up until 2026 (Order 6).
As to long summer holidays, I have made different orders for odd and even years. Every second year, the children may spend 14 nights in Brisbane with the Mother and maternal family (Order 8). I have configured time so that each long summer holidays (whether or not a Brisbane year) the children will spend 12 nights with the Father. In the non-Brisbane years, time will be configured on a 5+5+2 basis. In the Brisbane years, I have adopted the Mother’s proposal that the children will spend time with the Father for 2 periods of 6 consecutive nights (Order 10).
As noted, should the Father commence work as a long haul transport worker, the 5:9 fortnightly time configuration will be in a single block of 5 consecutive nights (Order 12).
Orders 20 to 25 provide for the Mother to retain the children’s passports as the primary carer.
As to the children’s continuing attendance at B School (Orders 41–42), I have adopted the Father’s proposed orders as to the children’s school enrolment as a practical means of dealing with any dispute.
In line with my reasons above, Orders 48 and 49 provides that the children’s principal place of residence must be located no more than 15 km from C Venue whilst either of them attend B School. Alternatively, if neither child is attending B School, the children’s principal place of residence must be no more than 25km from D Venue whilst the Husband remains a transport worker.
I have made a family dispute resolution order as an order least likely to lead to the institution of further proceedings in relation to the children (Order 50).
Property orders
I have set out below a further abridged version of the table of assets and liabilities. It sets out the alteration of the parties’ interests in the net assets 72.5%/27.5% in the Wife’s favour as to non-superannuation assets. It sets outs the alteration of the parties’ superannuation interests 55% – 45% in the Husband’s favour as to superannuation assets.
ITEM Owner Value ASSETS 1 G Street net sale proceeds
Sale Price: $2,166,000
Mortgages: ($1,367,890.29)
Line of Credit: ($42,662.42)
Sale costs: ($42,320.00)
J Bank: ($10,000.00)J $703,127.29 TOTAL NET NON-SUPERANNAUATION 17 Total $878,845.42 27.5 % of division current assets to the Husband $241,682 72.5 % of division current assets to the Wife $637,163 SUPERANNUATION 18 Super Fund 1 (Accumulation) H $ 4,165.19 19 Super Fund 1 (Defined Benefit) H $ 662,230.80 20 Super Fund 2 W $ 37,833.46 21 TOTAL SUPERANNUATION $704,229.45 55% division of superannuation to the Husband $387,326 45% division of superannuation to the Wife $316,903
I next set out how the division of property will be achieved.
Husband’s Keep
It was agreed that the Husband will retain net assets of $73,537 (sum of assets at items 2,3,4,5, 8 and 12 less liabilities at items 13 and 15 below).
ITEM Owner Value ASSETS 2 NAB Personal account #...70 H $9,256.00 3 Share Portfolio H $54,137.47 4 R Company Shares H $4,976.43 5 Motor Vehicle 1 H $10,561.50 8 Husband Legal Fees H $24,329.30 HUSBAND’S TOTAL ASSETS $103,260.70 LIABILITIES 13 Division 293 Tax Debt H $24,882.00 15 BB Bank Credit Card (Customer no.: #...24)
H $4,841.00 HUSBAND’S TOTAL LIABILITIES $29,723 $29,723 Husband’s Keep - Assets minus liabilities
($103,260 less $29,723 = $73,537)$73,537 Husband’s 27.5% of total asset pool
(27.5% of $878.845 = $241,682)$241,682 1 Joint asset - G Street net sale proceeds [$703,127]
Payment from G Street net sale proceeds required to received $241,682
= ($241,682 less $73,537)$168,145 Resultant settlement $241,682 SUPERANNUATION 18 Super Fund 1 (Accumulation) H $4,165.19 19 Super Fund 1 (Defined Benefit) H $ 662,230 HUSBAND’S TOTAL SUPERANNUATION $666,395
Proposed order
[Husband 55% x $704,229.45 total superannuation = $387,322Wife 45% x $704,229= $316,903
($316,903) Amount split from the Husband’s superannuation account
($316,903 : W’s 45%entitlement less existing entitlement of $37,833 = $279,070)($279,070)
Husband’s retained Superannuation $387,325 Wife’s Keep
The Wife retained net assets of $102,178 (sum of items 6, 7, 9 and 10 less liabilities at item 14).
ITEM Owner Value ASSETS 6 Motor Vehicle 2 W $32,643.75 7 Share Portfolio W $27,733.92 9 Wife Legal Fees W $9,484.00 10 Part property settlement W $61,694.76 WIFE’S TOTAL ASSETS $131,554 LIABILITIES 14 HECS Debt W $29,376.00 WIFE’S TOTAL LIABILITIES $29,376.00 Assets minus liabilities
($131,554 - $29,376)$102,178 Wife’s 72.5% of asset pool
(72.5% of $878,845 = $637,162)$637,162 1 Joint asset - G Street net sale proceeds [$703,127]
Required payment to wife$534,984 Resultant settlement $637,162 SUPERANNUATION 20 Super Fund 2 W $37,833 Proposed orders
[Wife 45% x $704,229 = = $316,903Split from husband’s entitlement $279,070
Wife’s total entitlement $316,903
Order 51 provides for the Wife to have the sole right to occupy the G Street property until settlement anticipated in late 2024. The Husband will continue to pay the mortgage and other outgoings.
Order 52 deals with the application of the net sale proceeds agreed to be $703,127 (rounded to the nearest dollar) following the payment of costs (Order 52(a)) and the discharge of mortgage (Order 52(b)).
An amount of $534,984 should then be paid the wife. I agree that there will need to be deductions from that amount, as the Husband proposed, totalling $11,400 (as to an extant costs order, a one-half share of the preparation of the family report and the half share of the mediator’s costs and room hire (Order 52(c)(i)(A)–(D)). As to the balance to be paid to the Husband, I calculate that amount to approximate $168,145 (Order 52(c)(ii)).
Orders 53 and 54 deal respectively with the Husband’s and Wife’s keep which the parties agreed.
Superannuation
To effect a 55%/45% split of the parties’ superannuation in the Husband’s favour a base amount should be allocated to the Wife out of the Husband’s interest in the Super Fund 1 plan in the amount of $279,070 (Order 57(a)).
Spousal maintenance
Order 60 is the order for spousal maintenance that the Husband make a lump-sum spousal maintenance order in the amount of $62,400. I have noted that this order is an order to which s. 77A applies and that all of the payment is attributable to the provision of maintenance to the Wife (s. 77A(1)(c) and (d)).
Costs
I do not intend to make a costs order in the Husband’s favour as to the interlocutory hearing on 10 April 2024.
CONCLUSION
I make orders accordingly.
Amendment of orders
Following the publication of these reasons for judgment, solicitors for the Husband brought certain matters to the Court’s attention that the orders did not reflect the intention of the court as set out in the reasons, via a letter to my chambers.
The court invited the Mother to respond to the Father’s letter but no response was received.
The matters appeared uncontroversial. In these circumstances, I have varied the orders as initially pronounced on 2 August 2024 under r. 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The following amendments were made:
(a)a small self-explanatory variation to Order 21;
(b)Order 29 has been omitted. In error, it provide that the children’s passports were to be retained by the Husband while it was the judgment’s intention for the Mother to retain the passports as set out in paragraph 82 of the reasons for judgment;
(c)there is a variation to Order 51 to correct a cross-reference;
(d)Order 51 has been varied to, out of an abundance of caution, to make clear the property that the orders refer; and
(e)Order 57 has been varied to correct a cross-referencing error. Similarly, there have been a slight variations to Order 58(b), (c) and (d).
I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 2 August 2024
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