Randall and Adams
[2011] FMCAfam 209
•9 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANDALL & ADAMS | [2011] FMCAfam 209 |
| FAMILY LAW – Parenting – interstate relocation sought by the mother – father seeks to spend time with children in accordance with [omitted] work roster – property – de facto relationship – small property pool – agreed amount of spouse maintenance – sale of property – superannuation splitting order. |
| Family Law Act 1975, ss.4. 4AA, 44, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 68B, 68C, 72, 75, 79, 90SB, 90SE, 90SF, 90SM, 90UA-90UN Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 |
| Baker & Landon [2010] FMCAfam 280 Re NHC & RCH (2004) 32 Fam LR 518; (2004) FLC 93-204; [2004] FamCA 633 Collu & Rinaldo [2010] FamCAFC 53 Dakin & Sansbury [2010] FMCAfam 628 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143 In the Marriage of Pierce (1998) 24 Fam LR 377 Lindell v Ranteri [2010] FamCA 52 Morgan v Miles (2007) 38 Fam LR 275; [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461 [2010] HCA 4 |
| Applicant: | MR RANDALL |
| Respondent: | MS ADAMS |
| File Number: | SYC 6475 of 2009 |
| Judgment of: | Monahan FM |
| Hearing dates: | 23, 24, 27 August 2010 |
| Date of Last Submission: | 27 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Ms Winfield |
| Solicitors for the Respondent: | Katie Smith, Solicitor |
ORDERS
THE COURT ORDERS THAT:
All current parenting orders be discharged.
The parties have equal shared parental responsibility for the children of the relationship, namely [X] born [in] 2006 and [Y] born [in] 2006 (together, “the twins”), and [Z] born [in] 2009 (“[Z]”) (collectively, “the children”).
The children live with the Respondent (“the Mother”).
The Mother be restrained from relocating the residence of the children from the Central Coast area in the State of New South Wales unless:
(a)the Mother relocates with the children to the Greater Sydney Metropolitan Region; or
(b)the Applicant consents to such relocation in writing; or
(c)the Court orders that the Mother may relocate with the children.
Subject to paragraphs 6 and 7 herein, the Applicant (“the Father”) spend time with the children on such dates and times as agreed, or failing agreement as follows:
(a)In respect of the twins:
(i)Commencing immediately, until 30 August 2011, for up to 10 days in a 28 day cycle with such time to consist of not more than two (2) nights in a row;
(ii)
From 31 August 2011 until 20 December 2011, for up to
10 days in a 28 day cycle with such time to consist of not more than four (4) nights in a row;
(iii)
From 21 December 2011 until 26 January 2012 for up to
16 days in this period with such time to consist of no more than seven (7) nights in a row on such dates and times as agreed, or failing agreement as to those dates and times:
1.
from 9:30am on 26 December 2011 until 4:00pm on
2 January 2012; and
2.
from 9:30am on 14 January 2012 until 4:00pm on
21 January 2012;
(iv)From 27 January 2012 and during all NSW Gazetted School Terms thereafter, for up to 10 days in a 28 day cycle with such time to consist of not more than four (4) nights in a row;
(v)From 5 April 2012 and during all NSW Gazetted School Term Holidays (“school term holidays”) thereafter, for one (1) week with such week to be as agreed or, failing agreement:
1. for the first week of each school term holiday period in 2012 and each alternate year thereafter, commencing at 9:30am on the first Saturday and concluding at 4:00pm on the next Saturday; and
2. for the second week of each school term holiday period in 2013 and each alternate year thereafter, commencing at 9:30am on the second Saturday and concluding at 4:00pm on the next Saturday;
(vi)From 22 December 2012 and during all NSW Gazetted Long Summer School Holidays (“the long summer school holiday period”) for one half of each long summer school holiday period as agreed, or failing agreement:
1. for the first half of the long summer school holiday period commencing in December 2012 and in each alternate year thereafter, to commence at 9:30am on the first Saturday and conclude at 4:00pm on the last Saturday nearest to the midpoint of the long summer school holiday period; and
2. for the second half of the long summer school holiday period commencing in December 2013 and in each alternate year thereafter, to commence at 9:30am on the Saturday nearest the midpoint of the long summer school holiday period and conclude at 4:00pm on the last Saturday before Term one resumes.
(b)In respect of [Z]:
(i)
Commencing immediately, until 17 June 2011, for up to
10 days in a 28 day cycle from 9:30am to 4:00pm each day with such days to coincide with paragraph 5(a)(i) herein;
(ii)
From 18 June 2011 until 20 December 2011, for up to
10 days in a 28 day cycle with all such days to consist of no more than single overnights on four (4) separate occasions (that is, not in a row) with all such days to commence at 9:30am and conclude at 4:00pm that day, or at 4:00pm the next day, as applicable, with such days to coincide with paragraph 5(a)(i) and 5(a)(ii);
(iii)
From 21 December 2011 until 26 January 2012 for up to
16 days in this period with all such days to consist of no more than two (2) nights in a row on such dates and times as agreed, or failing agreement as to those dates and times:
1.
from 9:30am on 26 December 2011 until 4:00pm on
28 December 2011;
2.
from 9:30am on 31 December 2012 until 4:00pm on
2 January 2012;
3. from 9:30am 14 January 2012 until 4:00pm 16 January 2012; and
4. from 9:30am 19 January 2012 until 4:00pm 21 January 2012;
with such dates and times coinciding with the first and last two (2) nights the twins would spend with the Father by default in the event of no agreement between the parties as to dates and times pursuant to paragraph 5(a)(iii) herein;
(iv)From 27 January 2012 until 5 April 2012, for up to 10 days in a 28 day cycle with such days to consist of no more than two (2) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day, or at 4:00pm on the third day as applicable, and with such times to coincide with paragraph 5(a)(iv) herein, as applicable;
(v)From 5 April 2012 until 22 April 2012, for up to seven (7) days in this period consisting of not more than three (3) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day, or at 4:00pm on the fourth day as applicable, and with such days to coincide with paragraph 5(a)(v) herein, as applicable;
(vi)From 23 April 2012 until 29 June 2012 for up to 10 days in a 28 day cycle consisting of not more than two (2) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day or at 4:00pm on the third day, as applicable, and with such times to coincide with paragraph 5(a)(iv) herein, as applicable;
(vii)From 30 June 2012 until 15 July 2012 for up to seven (7) days in this period with such days to consist of no more than four (4) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day or at 4:00pm on the fifth day, as applicable, and with such times to coincide with paragraph 5(a)(v) herein, as applicable;
(viii)
From 16 July 2012 until 21 September 2012 for up to
10 days in a 28 day cycle consisting of not more than three (3) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day, or at 4:00pm on the fourth day, as applicable, and with such times to coincide with paragraph 5(a)(iv) herein, as applicable;
(ix)From 22 September 2012 until 7 October 2012 for up to seven (7) days in this period with such days to consist of no more than five (5) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day or at 4:00pm on the sixth day, as applicable, and with such times to coincide with paragraph 5(a)(v) herein, as applicable;
(x)
From 8 October 2012 until 21 December 2012 for up to
10 days in a 28 day cycle consisting of not more than three (3) nights in a row with all such days to commence at 9:30am and conclude at 4:00pm that day, or at 4:00pm on the fourth day, as applicable, and with such times to coincide with paragraph 5(a)(iv) herein, as applicable;
(xi)
From 22 December 2012 until 28 January 2013, for up to
16 days in this period with such days to consist of no more than seven (7) nights in a row on such dates and times as agreed, or failing agreement as to those dates and time:
1.
from 9:30am on 22 December 2012 until 4:00pm on
29 December 2012; and
2.
from 9:30am on 5 January 2013 until 4:00pm on
12 January 2013;
(xii)From 29 January 2013 and during all NSW Gazetted School Terms thereafter, paragraph 5(a)(iv) apply;
(xiii)From 13 April 2013 and during all school term holiday periods thereafter, paragraph 5(a)(v) apply; and
(xiv)From 20 December 2013 and during all long summer school holiday periods thereafter, paragraph 5(a)(vi) apply.
In respect of paragraph 5 herein, changeover occur as agreed, or failing agreement at McDonalds Family Restaurant, [B] subject to the following:
(a)on days that any or all of the children are at pre-school, then at the relevant pre-school; and
(b)on days that any or all of the children are at school, then at the relevant school.
For the purposes of compliance with paragraphs 5 and 6 herein, within 24 hours of the Father receiving his work roster, the Father email the Mother, at an email address provided to the Father, the following:
(a)a copy of his work roster for the upcoming 28 day cycle; and
(b)the periods that he proposes to spend with the children pursuant to these Orders; and
(c)confirm the proposed venue for changeover(s).
AND FURTHER that the Father notify the Mother of any change to his work roster made after having complied with paragraphs 7(a), (b) and (c) herein within 12 hours of him receiving notice of such change.
Each party keep the other informed at all times as to his or her residential address, landline and mobile telephone numbers, and email addresses and notify the other party within 24 hours of any change to such details.
Each party be at liberty to do the following:
(a)attend any pre-school, child care or school attended by the children;
(b)receive all notes, reports, newsletters and the like from the children’s pre-schools, child care or schools and participate in any meetings or events to which parents are invited to attend;
(c)liaise directly with the children’s pre-school, child care, school or any sporting bodies to obtain any necessary information about the children’s progress;
(d)attend the children’s pre-schooling, schooling, sporting and extracurricular activities and each party ensure that the children attend all sporting and extracurricular activities in which they may be enrolled from time to time
AND FURTHER each party is to provide to such organisations all necessary authorities to facilitate this.
Within seven (7) days of the date of these Orders, the Mother do all things and sign all documents necessary to cause the Father to be listed as an emergency contact on all school, preschool and child care records relating to the children AND FURTHER at the time of enrolment cause the Father to be so listed on the records of any future school or other like facility which the children may attend.
Each party notify the other party as soon as practicable of any serious illness, injury or medical emergency in respect of the children AND FURTHER in the event that the children are seriously ill and, as a consequence, not able to spend time with the Father in accordance with these Orders, the Mother:
(a)notify the Father of the children’s illness as soon as practicable, and not less than 24 hours prior to the projected commencement of the Father’s time with the children; and
(b)provide to the Father within 72 hours of such notification, a medical certificate indicating the following:
(i)the dates on which the children were seen by a medical practitioner; and
(ii)the diagnosis and treatment or medication provided and/or prescribed.
The children, [X], born [in] 2006, female, [Y], born [in] 2006, female, and [Z], born [in] 2009, male, be removed from the Airport Watch List and the parties be permitted to take the children out of New South Wales and/or Australia on holidays (or the Father [omitted] in the course of his employment) during their respective times with the children, provided that party gives to the other party, by not later than 28 days prior to the date of the proposed departure, written details of the holiday including:
(a)dates of departure from and return to Australia;
(b)a copy of itinerary/roster;
(c)a copy of return airline ticket/s;
(d)a list of the places it is intended that the party and the children will visit whilst away from NSW or Australia; and
(e)details of how the children can be contacted including contact telephone numbers and addresses (if known).
In the event that the parties are in dispute as to which party should retain the children’s passports when such passports are not being used for travel, the passports be held as follows:
(a)the Father retain possession of [X]’ passport;
(b)the Mother retain possession of [Y]’s passport; and
(c)the parties alternate the possession of [Z]’s passport, with such passport to be in the possession of the Mother in odd-numbered years and in the Father’s possession in even-numbered years.
Such passports should be released by the relevant party upon any reasonable request made by the other (such as to obtain a visa and/or to facilitate travel) and be returned to the relevant party within seven (7) days of returning from any overseas trip.
The children communicate with both parties by telephone, or internet equivalent, (“telephone time”) at any reasonable time as agreed or, failing agreement:
(a)when the children are otherwise living with or spending time with the Mother, the Father may nominate a half hour period between the hours of 5:00pm and 7:00pm three (3) evenings per week for telephone time, with the Mother to facilitate such time;
(b)when the children are otherwise living with or spending time with the Father, the Mother may nominate a half hour period between the hours of 5:00pm and 7:00pm two (2) evenings per week during school terms and three evenings per week during school holidays for telephone time, with the Father to facilitate such time; and
(c)each party provide the other with their telephone time nominated periods in writing within 48 hours of the date of these Orders and thereafter if either party wishes to change their nominated periods they shall provide the other party with at least seven (7) days written notice prior to any such change.
Both parties keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children move from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled.
Each party be restrained from denigrating, or permitting any third party to denigrate:
(a)the other party;
(b)any partner of the other party; or
(c)any family member of the other party
in the presence or hearing of the children.
In the event that the parties are unable to reach agreement relating to the children’s long term care, welfare and development the parties participate in family dispute resolution.
Pursuant to s.13C of the Family Law Act 1975, the Mother undertake a program assessment at Unifam and complete any recommendations arising from that assessment.
Within 14 days of the date of these Orders, the Father do all things and sign all documents necessary to cause the property known as and situate at Property F, [F], NSW (“the [F] property”), to be sold.
Until settlement of the sale of the [F] property, the Mother have the sole right to occupy that property, provided that at all times she does the following:
(a)keeps the property in good order and repair, including but not limited to:
(i)undertaking or arranging for all necessary maintenance and repairs to be carried out;
(ii)undertaking or arranging regular maintenance of the garden, including mowing of the lawns;
(iii)undertaking or arranging regular pool cleaning and maintenance; and
(iv)ensuring that the property is kept in a clean and tidy state;
(b)co-operates in all reasonable ways with requests by real estate agents and/or prospective purchasers including but not limited to doing the following:
(i)within seven (7) days of the date of these Orders, providing a full set of keys to McGrath real estate, Central Coast, or such other real estate agent as may be nominated by the Father in writing within 48 hours of the date of these Orders, for the agent to obtain access to the property;
(ii)doing all things necessary to facilitate access to the property at all times as requested by the agent and facilitating access for all inspections as nominated by the agent, without interference;
(iii)maintaining the property in a clean, tidy and presentable condition so as to facilitate the sale including but not limited to presenting the property in a neat and tidy condition at all times when the property is subject to inspection; and
(iv)doing all things necessary to facilitate a sale at the earliest possible time and the Mother shall refrain from doing or saying anything which has the effect of hindering, preventing or discouraging an inspection or a sale of the property being effected.
(c)pays all utility, usage and repair charges relating to her occupation of the property.
Until settlement of the sale of the [F] property the Father pay all mortgage payments, statutory rates, charges and insurances in relation to the property incurred prior to the date of the sale, and make all such payments as and when they fall due.
Upon settlement of the sale of the [F] property, the proceeds of the sale be thereafter disbursed in the following priority:
(a)payment of agents commission and advertising expenses and legal expenses of the sale;
(b)discharge all mortgages secured on the title;
(c)as regards the net balance:
(i) 55% to the Father; and
(ii) 45% to the Mother.
The Mother retain for her own use and benefit:
(a)the household contents at the [F] property;
(b)the Toyota Camry vehicle currently registered in her name and possession; and
(c)the monies held in the St George Bank Account in her name.
The Father retain for his own use and benefit:
(a)the Subaru vehicle currently the subject of a leasing finance in his name and possession;
(b)his household contents;
(c)the monies held in the [Q] Credit Union Account; and
(d)the [Q] shares.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion to the other to all property in his or her respective possession, including money standing to his or her credit in any bank or financial institution or due and payable by any third party;
(b)insurance policies remain the sole property of the owner named thereon; and
(c)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.
Paragraphs 27 to 31 (inclusive) of these Orders are binding on the Trustee of the [Q] Superannuation Plan (“the Superannuation Plan”).
The base amount to be allocated to the Mother out of the interest of the Father in the Superannuation Plan is valued at $38,140.55.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the Father in the Superannuation Plan the Mother or her administrators, executors, beneficiaries, heirs, or assigns shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount in paragraph 27 of these Orders and there be a corresponding reduction in the entitlement the Father would have had but for these orders.
Within 14 days of becoming entitled to receive a superannuation benefit from the Superannuation Fund, the Father provide as required all forms as be necessary to enable a determination of the nature and quantum of the superannuation entitlement and any other related information the Trustee of the Superannuation Plan may reasonably require.
Until such time as the superannuation split to the Mother pursuant to these Orders can be rolled into a separate account for the Mother:
(a)the Father shall provide to the Mother no less than 28 days notice before such time as he elects to retire from and/or to take voluntary retirement and/or for any reason become entitled to access in whole or in part his entitlement in the Superannuation Plan;
(b)the Father shall direct and authorise the Trustee of the Superannuation Plan to communicate with the Mother and/or any person authorised by her in writing:
(i)to answer any reasonable queries as may be made by her or on her behalf from time to time in relation to her entitlement in the Superannuation Plan; and
(ii)to provide to the Mother and/or her authorised representative a copy of any notice or any application or request by the Father which seeks release of entitlements in the Superannuation Plan made by the Mother or on her behalf to the Superannuation Plan from time to time, in writing, in relation to her entitlements in the Superannuation Plan insofar as that Release may affect her entitlement in the said Fund pursuant to these orders; and
(c)the Father by himself, his servants and agents be and are hereby restrained from doing any act or thing to prevent the Mother from receiving her entitlements in the Superannuation Plan pursuant to these orders.
In the event the superannuation split to the Mother pursuant to these orders can be rolled into a separate account for the Mother, each of the parties shall do all acts and things and sign all necessary documents to facilitate and implement that rollover and it is agreed that the base amount to be transferred to the Mother will be paid in cash to a superannuation fund as nominated by the Mother.
Paragraphs 27 to 31 herein be stayed pending the following:
(a)within seven (7) days of these Orders the Father cause a sealed copy of these Orders be served on the Superannuation Plan;
(b)within 28 days of these Orders the Father cause an affidavit to be made, served and filed confirming compliance with paragraph 32(a) herein regarding service upon the Superannuation Plan and attaching any response received from the Superannuation Plan;
(c)on receipt the Court will consider the affidavit filed pursuant to paragraph 32(b) herein in Chambers and, if satisfied that procedural fairness has been afforded to the Superannuation Plan then the Court may lift the stay, or alternatively make further directions including listing the matter for mention hearing in relation to this discrete issue only;
(d)the Father is ordered to serve on the Trustee of the Superannuation Plan a sealed copy of the Orders lifting the stay, together with a completed Regulation 72 Notice, within seven (7) days of the making of those Orders;
(e)paragraph 27 of these Orders has effect from the operative time; and
(f)the operative time for the purpose of these Orders is the seventh business day after the Father has complied with paragraph 32(d) herein.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A of the Act to execute such deed or instrument in the name of such party and do all acts necessary to give validity to the operation to the deed or instrument.
There be no order as to costs.
The application for costs regarding the Contravention Application filed 26 March 2010 heard before Walker FM on 4 June 2010 be adjourned to a date to be fixed before Walker FM.
Subject to paragraphs 32 and 35 herein, all extant applications be otherwise dismissed.
AND THE COURT ORDERS, BY CONSENT, THAT;
Commencing seven (7) days after settlement of the sale of the [F] property pursuant to paragraph 19 herein, the Father pay to the Mother, by way of spousal maintenance, the sum of $200.00 per week.
AND THE COURT NOTES THAT:
(A)For the purposes of paragraphs 5, 6 and 7 herein the 28 day cycle that the children will spend time with the Father is intended to reflect the Father’s 28 day work roster and the Court further notes that the Father receives each roster one week in advance of the commencement of each 28 day cycle.
(B)The program assessment referred to in paragraph 18 herein will need to consider whether the Mother should be referred to the “Brighter Futures” program offered by various agencies (including [omitted]) in conjunction with the New South Wales Department of Community Services.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Randall & Adams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6475 of 2009
| MR RANDALL |
Applicant
And
| MS ADAMS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves an application by MR RANDALL (“the Father”) for various parenting and property orders arising out of a three and a half year de facto relationship.[1]
[1] The Father filed his Initiating Application on 8 October 2009 which he amended and further amended by his Applications filed on 19 November 2009, 26 March 2010 and 4 August 2010 respectively.
The Father’s application is opposed by MS ADAMS (“the Mother”) who seeks different parenting and property orders in her Response.[2]
[2] The Mother filed her Response on 11 February 2010 and an Amended Response on 11 June 2010.
In respect of parenting matters the parties agree that they should have equal shared parental responsibility for [X] and [Y] born [in] 2006 (“[X]” and “[Y]”, together “the twins”), and for [Z] born [in] 2009 (“[Z]”) (or collectively “the children”), and that the children should live with the Mother and spend time with the Father.
In respect of the parties’ parenting dispute, there is disagreement as to the frequency at which the children should spend time with the Father and whether the Mother should be permitted to relocate with the children to Cairns in North Queensland.
The Father is seeking to restrain the Mother relocating with the children “more than 20km from her current address”, unless this occurs within the “Greater Sydney Metropolitan Area”.[3] The Father is also seeking to spend time with the children for up to 10 days in a 28 day cycle to coincide with his work schedule as an [omitted].[4]
[3] Father’s Amended Initiating Application filed 4 August 2010, paragraph 20 of final orders sought.
[4] Father’s Amended Initiating Application filed 4 August 2010, paragraph 3 of final orders sought
In respect of the parties’ property dispute, there is disagreement as to the parties respective property and family contributions made during the relationship and following separation. The parties are also in conflict as to their respective needs and future income-earning capacity.
The Father commenced these proceedings by an Initiating Application filed in [omitted] Local Court on 8 October 2009 in which he sought, inter alia, to restrain the Mother from relocating with the children. On that same day the presiding magistrate made orders on an ex parte basis in accordance with paragraphs 4, 5 and 6 as sought by the Father in that Initiating Application, which:
·restrained the Mother from relocating with the children to an area outside the [omitted] City Local Government area or the Sydney Metropolitan area;
·placed the children’s names on an airport watch list; and
·made a recovery order in respect of the children in the event that the Mother refused to return with the children.
When the matter returned to the [omitted] Local Court on 23 October 2009, the parties entered into interim orders by consent, including orders to the effect that:
·the parties have equal shared parental responsibility for the children;
·the children live with the Mother;
·the children spend time with the Father during various defined periods;
·changeovers occur as defined, including at the Mother’s residence or McDonald’s restaurant at [suburb omitted], or as agreed between the parties;
·the injunctive orders made on 8 October 2009 continue; and
·the matter be transferred to the Federal Magistrates Court at Sydney.
The matter came to the Federal Magistrates Court in Sydney before Walker FM on 15 December 2009. On that occasion her Honour made various orders, including directions for the parties to attend an initial post-separation parenting assessment with Relationships Australia as to their suitability for a parenting program and a Conciliation Conference on 15 February 2010 in respect of their property dispute. Her Honour also made various parenting orders by consent that further defined the time the children would spend with the Father.
Consequently, the parties appeared before Registrar Tran for a Conciliation Conference on 15 February 2010, however the matter did not settle. On that occasion the Registrar noted that the primary issue in dispute was “the assessment of contribution and s.75(2)” and further noted “that the pool is very small”.[5]
[5] Tran R, Coram Sheet, 15 February 2010.
The matter returned before Walker FM on 24 February 2010 and on that occasion her Honour set the matter down for final hearing before me.
The Father filed a Contravention application on 26 March 2010 (“the Contravention Application”) which came before her Honour on
14 April 2010. On that occasion her Honour adjourned the Contravention Application for further directions on 21 May 2010 and made further parenting orders, by consent, relating to the defined time that the children would spend with the Father.
On 21 May 2010 her Honour made orders adjourning the Father’s Contravention Application for hearing on 4 June 2010 (“the Contravention hearing”). The Contravention hearing proceeded on that day and her Honour found that the Mother had “contravened Order 2 of Orders made 15 December 2009 without reasonable excuse”.[6] As a consequence, her Honour made defined orders for “compensatory time” and reserved the Father’s costs of the Contravention Application.[7]
[6] Orders of Walker FM made on 4 June 2010.
[7] Ibid.
The Father filed a Further Contravention Application on 16 May 2010 (“Further Contravention”) which was amended again by an Amended Further Contravention Application filed on 1 June 2010 (“the Amended Further Contravention”). It does not appear that these applications were considered by Walker FM on 4 June 2010. Consequently, these applications came before this Court at the commencement of the Final Hearing on 23 August 2010, although the Father was unaware of this.[8] Following discussions with the respective Counsel, the Court agreed to the Father’s request for the Further Contravention and the Further Amended Contravention to be withdrawn and dismissed, as reflected in the Orders made by this Court on 23 August 2010.[9] An order was also made, unopposed, that the Father would “not file any further contravention applications regarding the period prior to and including 20 May 2010”.[10] The Court allowed the Father to rely on his affidavit material in relation to his assertions that the Mother had not complied with the relevant parenting orders on various occasions.[11] An order was also made that the Father’s costs of the Contravention Application be reserved to a date convenient to Walker FM for hearing.[12]
[8] Transcript, 23 August 2010, page 4-7.
[9] Ibid, page 6; see also Orders made 23 August 2010.
[10] Orders made 23 August 2010.
[11] Transcript, 23 August 2010, page 5.
[12] Ibid, page 7; see also Orders made 23 August 2010.
The Final Hearing was conducted over three days, being 23, 24 and 27 August 2010 (“the Final Hearing”). At the Final Hearing the Father was represented by Mr Sansom of Counsel and the Mother by
Ms Winfield, also of Counsel.
Background
The Father was born [in] 1974 and was aged 35 years at the time of the Final Hearing. The Mother was born [in] 1973 and was aged 36 years at the time of the Final Hearing.
The parties met in 2005 and commenced cohabitation in February 2006. They did not marry. As stated, there are three children of the relationship, namely the twins, [Y] and [X], who turned 4 in 2010, and [Z], who turned one year old in 2010. The parties separated in July 2009.
Following separation, the children have lived with the Mother and spent time with the Father as previously outlined.
Both parties are in good health. Neither party has re-partnered.
As to their occupations, the Father is currently an [occupation omitted] in the employ of [Q] and the Mother is a full-time parent and in receipt of Centrelink benefits.
Chronology
The Father provided the Court with a detailed chronology listing significant events in the parties’ relationship. The parties were not in dispute, or not in any significant dispute, in relation to the following:
·1996: [W] born [in] 1996, son of the Mother and Mr C;
·2005: Parties meet; Father takes up employment with [omitted] (operated by [Q]) and is based in Cairns, Queensland;
·2006: Parties commence cohabitation in Cairns; by June 2006 Father has accumulated benefits totalling $63,957.00 in his superannuation account with [Q]; twins [Y] and [X] born;
·2007: Father ceases employment with [omitted] in August; Father commences employment with [Q] based in Sydney and the Mother and twins remain in Cairns; Father purchases house at Property F, [F] (the “[F] property”) for $550,000.00 financed by borrowed funds of $455,000.00 and the balance from the Father’s savings;
·2008: Parties and children move into the [F] property; parties renovate the [F] property including bathroom and laundry; Father purchases Toyota Camry for $11,000.00 for use by Mother;
·2009: [Z] born [in] 2009; parties separate; Father commences parenting proceedings in [omitted] Local Court and obtains interim injunction to restrain Mother relocating with the children to Cairns; parenting proceedings transferred to the Federal Magistrates Court; property proceedings also commenced; and
·2010: Contravention hearing held and Mother found to have breached parenting orders; Father unsuccessfully seeks child support assessment change because he is paying the mortgage for the [F] property; final hearing of parenting and property proceedings.
Proposals
The Father’s proposal is contained in his Amended Application filed on 4 August 2010. The Mother’s proposal is contained in a minute of final orders sought that was handed up to the Court on 27 August 2010, being the last day of the Final Hearing.
Parenting proposals
In respect of parenting, it would be fair to say that the length and complexity of the Father’s proposals reflect the young ages of the children and his 28 day work roster with [Q]. That said, the Orders he is seeking are very complex. In summary, the Father seeks orders to achieve the following outcome:
·the parties have equal shared parental responsibility for the children;
·the children live with the Mother;
·the children spend time with the Father “for up to 10 days in a 28 day cycle (the 28 day cycle to coincide with the father’s 28 day roster), with such dates and times to be as agreed between the parties” and failing agreement specified defined periods are set out which increase over time as the children develop;
·in addition, the children ultimately spend one half (1/2) of all school holiday periods with the Father;
·all changeovers take place at McDonalds, [suburb omitted];
·the children communicate with the Father by telephone “on not less than three occasions each week”;
·the children be removed from the airport watch list to facilitate a party travelling overseas with the children provided certain preconditions are met; and
·the Mother be restrained from relocating the residence of the children more than 20km from her current address unless she moves with the children to the Greater Sydney Metropolitan Area, or the Father consents, or a Court authorises such a relocation.
In respect of parenting, the Mother seeks orders to achieve the following outcome:
·the parties have equal shared parental responsibility for the children;
·the children live with the Mother;
·the Mother be granted permission to relocate with the children to the Cairns area of Far North Queensland being described as an area not exceeding a radial distance not greater than 50km from the Cairns post office;
·the Father provide the Mother with his roster no later than 24 hours after receipt and that he notify the Mother of any change of roster within 12 hours of receiving notice of such change;
·upon the Mother relocating with the children, the Father spend time with them for certain defined periods during his rostered days off;
·changeover occur at the Mother’s residence;
·the airport watchlist order made on 8 October 2009 continue; and
·the Mother be restrained from further relocating the children without the written consent of the Father or further order of the Court.
Property proposals
In respect of property, the Father seeks orders to achieve the following outcome:
·the Father cause the sale of the [F] property and the net proceeds be divided equally between parties;
·from the Mother’s share of the net proceeds of the sale of the [F] property, “an amount of $10,000 shall be expressed as being received for the purpose of making provision for the Respondent’s maintenance pursuant to section 90SH of the Family Law Act 1975”;
·the Mother have the right to occupy the [F] property pending settlement of its sale provided she keeps it “in good order and repair” and “co-operate[s] in all reasonable way[s] with request[s] by the real estate agents and/or prospective purchasers”; and
·the parties divide the furniture, furnishings and effects presently situated at the [F] property by agreement and otherwise “each party keep all property including any superannuation they have currently in their possession free from any interest of the other party and shall indemnify the other party against any and all debts and liabilities attached thereto”.
In respect of property, the Mother seeks orders to achieve the following outcome:
·the Father cause the sale of the [F] property and that the net proceeds be paid to the Mother;
·the Mother be permitted to remove certain listed items from the [F] property;
·otherwise, each party “retain to the exclusion of the other all items of personalty, superannuation, real estate, motor vehicles currently in his or her name, control and possession as at the date hereof”; and
·the Father pay the Mother spousal maintenance in the sum of $200.00 per week.
Before the conclusion of the Final Hearing, the Father confirmed through his Counsel that he would consent to an order being made for him to pay the Mother $200.00 a week by way of spousal maintenance upon the completion of the sale of the [F] property.[13]
[13] Transcript, 27 August 2010, page 157.
The Mother also confirmed through her Counsel that she was not seeking any superannuation splitting order in respect of the Father’s superannuation policy.[14]
[14] Ibid, pages 157-158.
Issues
The following issues were in dispute at the Final Hearing:
·whether the Mother should be able to relocate to Cairns with the children;
·the amount of time the children should spend with the Father in the event that the relocation is either permitted or refused;
·the parties’ contributions made during their relationship;
·the parties’ contributions made following the breakdown of their relationship in 2009; and
·the parties’ respective future needs and obligations.
By the conclusion of the Final Hearing the parties were in agreement in respect of the following matters:
·that each party have equal shared parental responsibility for the children;
·that the children live with the Mother in Cairns (if relocation is permitted) or on the Central Coast (if relocation is refused);
·that the Father cause the [F] property to be sold and that the Mother may continue to occupy that property pending settlement of the sale;
·that, subject to proper accounting as between the parties, the Father retain his superannuation entitlements; and
·that the Father pay spousal maintenance to the Mother in the sum of $200.00 per week though the Father seeks that this commence following settlement of the sale [F] property due to his current mortgage obligations in respect of that property.
Family report
A Family Report was prepared in this matter by Dr V, a Regulation 7 Family Consultant, on 20 August 2010 and was released to the parties on that day (“the Report”). Dr V interviewed the parties on 27 July 2010, as outlined in paragraphs 13 to 31 of the Report. Dr V’s observations of the children and their relationships with the parties are outlined in paragraphs 32 to 37 of the Report.
At paragraph 12 of the Report, Dr V states:
“12. The following issues are in dispute in this matter
· How much time the children should spend with each parent considering their ages
· The breakdown in communication between the parties and their capacity to relate in a child focused way
· The level of violence that may have been present in the relationship and the acrimony that exists between the parties
· Ms Adams’ capacity to manage her anger
· The children’s attachment relationships
· Ms Adams’ proposal to relocate to Queensland”
Dr V provides her evaluation of her interviews and observations in paragraphs 38 to 59 of the Report, as follows:
“38. The parties appear to have a troubled and conflicted relationship certainly since the birth of the twins. From the accounts of both, the tension between them arose from differences in their expectations, personalities and lifestyles. They parties have become embroiled in a bitter dispute that seems to have escalated since the separation and has involved the police being called on several occasions and proceedings for contravention of Orders. They appear to have had difficulties securing a clear separation from each other and some of the arrangements they have put in place for example Mr Randall spending time with the children at the family home, while theoretically sound, have only served to exacerbate the conflict. Both have become over-involved in defending their own positions and are currently caught in a spiral of allegation and counter allegation in order to obtain power and control and ascendency in their dispute in which the children have unfortunately become caught as pawns. Consequently, whilst both attest to the parenting abilities of the other, at present by virtue of the dispute, neither seems able to truly place their children’s needs at the forefront and they both show limitations in their ability to facilitate the children’s relationship with the other parent.
39. It is unfortunate that neither party, but especially Ms Adams, is in tune with how their emotional neediness, which is possibly borne out of her own experiences in the family of origin, may be contributing to their difficulties. Unfortunately such in family circumstances there is a risk of parents becoming so involved in the dispute that their emotional availability for the children is compromised and their children’s needs are consequently inadvertently overlooked. Research suggests that especially Mothers in situations characterized by intense relationship conflict are more likely to be rejecting, cold and to discipline more punitively and erratically than Mothers in low conflict situations.
40. Ms Adams appeared riddled with ambivalence. She referred for example to Mr Randall as having perpetrated some violence and of not being sufficiently committed to the relationship yet she still seems very unseparated from him. She acknowledged the important role he played in [W]’s life and to him being a good Father to the children. Yet there seems to have been extended periods since the separation when she has been unable to facilitate contact between the children and Mr Randall and unfortunately takes almost no responsibility for the role she may have played in their difficulties. She stated that she wants the children to spend more time with their Father and bemoans that he does not have a greater involvement yet she is at the same time hoping to relocate and last year allegedly made plans to move to Cairns with the children without consulting
Mr Randall. If this is the case, it raises serious questions about her capacity to place her own needs before those of her children especially in respect of them fostering a relationship with their Father especially given their young ages.
41. In a nutshell, Ms Adams’ behavior since the separation attests to her limited ability to appreciate the importance of the children’s relationship with their Father. She displays poor insight into the importance of her children maintaining a relationship with Mr Randall given that several months transpired without any contact especially for a child as young as [Z]. Indeed, the covert reason for the difficulties in establishing the children spending time with their Father may well be Ms Adams’ need to punish Mr Randall for abandoning her and leaving the relationship. Such a motivation is hardly child focused.
42. This therefore makes Ms Adams proposal to relocate highly problematic as it is further testimony to her inability to place her children’s needs first. As many authors highlight relocation matters are always amongst the most difficult in family law proceedings as they often raise the tension of parents meeting their own needs juxtaposed against the needs of their children. Whilst such a move would perhaps have advantages for Ms Adams who claims she would be able to receive support from a friend in Cairns and it is not cognizant of the effect on the children of being deprived the security and comfort Mr Randall can offer them. This option remains largely untested calls for more rigorous scrutiny by the Court. It does indeed appear tenuous given Mr Randall’s as well as Ms Adams’ accounts of the support she has previously received in Cairns and of her lack of specificity in this regard.
43. Research on relocation suggests that the idealism with which parents choose to relocate is not necessarily fulfilled in reality Ms Adams seems to have given little thought to how the cost and practicalities of the children spending time with their Father or even communicating with him will be met. The feasibility of Mr Randall being able to spend time the children in Cairns as she suggests seems poor even if he is an [occupation omitted]. Similarly it does not seem an option that he would also move to Cairns should she relocate. It is difficult to envisage how relocation in this matter will not dilute the strength of the relationship the children currently have with their Father especially if it is complemented by any undermining of the children’s relationship with their Father by their Mother. Unfortunately, there are some indicators that this has happened with [W] who has been left bereft of the Father figure he knew in Mr Randall and it is concerning that the twins are already making adverse comments about their relationship with their Father.
44. Situations of this kind are never one sided and indeed
Mr Randall’s decisions and choices after the separation would have been affronting to Ms Adams. The nature of his work and the geographical distance that separates the parties make it difficult for him to spend time more regularly with his children. Whilst it is understandable that he would want to draw some boundaries around his living arrangements to secure a physical separation from
Ms Adams given the history since their separation, this does have the disadvantage of him accessing the children. Hopefully this may be redressed in the future when the property is settled and Ms Adams moves to alternate accommodation. It is perturbing that, apart from moving to Cairns, she has no other proposal for herself and the children.
45. One of the concerning issues in this case is the likelihood of conflict erupting between the parties when they come into contact with each other. The changeovers at the [B] McDonalds are potentially fraught given the history of the matter. Ms Adams denies the level of violence Mr Randall has alleged she has perpetrated and she disputes that the children have been exposed to conflict. However, the affidavit material suggests that it is highly that they have witnessed some of their parents’ hostility even if covertly. The parties for example displayed limited capacity to even acknowledge each other on the day of the appointment. Research suggests that children exposed to family conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are not uncommonly seen in such children. There are also studies that suggest that such children sometimes manifest disorganization of planning and organizing functions using ‘working memory’, hypervigilance and inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike A.D.H.D.
46. It seems therefore imperative in this matter that there be no reason for the parties to have reason argue when they meet and a neutral venue be used to facilitate the changeovers. On the longer term it their conflict persists, it is essential that the preschool becomes the preferred changeover point.
47. If indeed the management of anger is a problem especially for Ms Adams, as Mr Randall has alleged it would be beneficial for her additionally to avail herself of psychotherapy to help her deal with the anger and the rejection she continues to feel. Otherwise it may impact on her relationship with her children especially as they become older and their relationships with her become more testing. There may also be benefits in this matter for the status of
Ms Adams’ depression to be further investigated and whether there is substance to the threats Mr Randall alleges she has made towards him and the children. If she remains in New South Wales, and given the indicators that she lacks support and has no plans should relocation not eventuate, referral to a program such as Brighter Futures may be highly beneficial to her. The parties could also benefit from a Parenting After Separation course such as that offered by UNIFAM to help them develop an appreciation of the impact of their dispute on the children.
48. This situation is rendered more difficult by the young ages of the children. The parties separated when [X] and [Y] were three years and [Z] one month old respectively. Although they give different accounts of their involvement in the children’s care during the relationship, Ms Adams has been their primary full time care giver and it would be expected that their primary attachment is to her. Ms Adams describes herself as having assumed and continuing to assume the parenting role almost unilaterally and minimized the role Mr Randall has played in the children’s life even though she acknowledged that he loves the children. Mr Randall portrayed a very different picture of his role with the children. He referred to having played an active role in care of the twins before the separation and to having taken on the care of [W] as if he was his own child. He appreciates that his capacity to form a relationship with [Z] has been rendered difficult by the separation occurring when [Z] was so young.
49. Whatever the role each of the parents and their families played prior to the separation, the opportunities the children had to consolidate their relationship with their Father were truncated between July 2009 and April 2010 at which time Orders were made for them to recommence spending time with him. The reasons for the children not spending time with their Father during this period seem to have had little child focus. Rather it was a period that was shrouded by considerable tension between Mr Randall, Ms Adams.
50. This interruption in the children’s opportunity to further their relationship with their Father had the potential to adversely effect their development. The girls would have that stage been moving towards the period of their lives when taking initiative was of the essence. At this age, children use their play to make plans and carry out tasks. Parents reinforce initiative by giving children freedom to play, ask questions, use imagination and choose activities. Feelings of guilt arise if parents criticise severely, prevent play or discourage a child’s questions.
51. As for [Z], denial of contact with his Father was during the stage where attachment relationships form. Literature supports the notion that significant attachments consolidate as the child internalises mental representations of their caregivers from the age of nine months to three years old and that many infants can form multiple attachments. The separations from his Father occurred for [Z] in the first year of his life, a critical period for attachment formation. In the observations for this assessment, [Z] moved readily between his parents and he did not display signs of separation anxiety from either of them. It may well be that [Z]’s attachments are very much in the formative stage.
52. The attachment process is two way and the security of a young child’s attachments is very much dependant on regular interaction with a parent. Younger children have a very primitive concept of time compared to older children and they need frequent contact with a parent preferably for short periods at least on a weekly basis in the first two years of their lives so that secure attachments form. Beyond that time, whilst children can begin to draw on internalized images of their parents and can communicate meaningfully more effectively because of stronger cognitive and language skills, prolonged separations from care givers are still to be discouraged. The Orders which have been in place allowing [Z] to spend time on a weekly basis with his Father during the day before moving onto overnight is consistent with [Z]’s developmental needs
53. In the case of very young children such as [Z], it is always problematic when there is such a hostile climate between the parents as this does not create a climate wherein the child’s relationship with both parents can be forged. Both Mr Randall and Ms Adams need to heed the fact that the onus falls on each of them to place the adult issues to the side and work co-operatively in the interests of their children if realistically the children, especially [Z], are to strengthen their attachments with their Father.
54. There was some indentified tension in the children’s capacity to move between their parents when they were in the play room together. There may be several reasons for this hesitation. It may be related to the unfamiliarity of the environment. It may also highlight that the children are aware of the inter-parental tension and difficulties and that they are already sensing that it is not safe to display affectionate feelings for one in front of the other parent. It is not uncommon for children to identify with the anxieties manifest by their parents and to internalize them as their own and therefore to behave consistent with their perception of what that parent expects. Given the high level of anxiety and emotional neediness evident in Ms Adams, it is possible that the twins already feel under considerable pressure which is reflected in their behaivour [sic] for example saying that they don’t want to see their Father.
55. Notwithstanding the difficulties the parties have experienced there seemed to be indications of a positive relationship between the children and both their parents. Any observed tensions thawed once the children were alone with each parent and there seemed to be little difference in their interaction with each parent. The children’s interaction with their Father was relaxed and child focused. Mr Randall was attentive to them and a warm interaction was evident. The children’s interaction with Ms Adams was also positive.
56. There are indicators that the children have a significant relationship with their Father and, it would be a significant loss for them if this not nurtured. Research suggests that, on the long term, the denial of a relationship with significant male figures for boys may serve to impact on their own sense of being male and girls who do not have a relationship with their Father can become overly submissive and compliant and feel under confident about their femininity Whatever the gender, children in families where they are denied a relationship with their Father run a high risk of suffering from anxiety, depression, and self destructive acting out behavior [sic] and poor educational achievement. This raises further questions about the impact of Ms Adams proposal to relocate on the children’s relationship with their Father should she be successful and the children remain in her care.
57. As for the future all needs to be put in place for the children to be assured of safety and security. Ms Adams has been their primary care giver and the question of where the children live is not being contested. This may well be a case that the parents need to assume a parallel parenting role where each respectively makes decisions for the children when they are in their care.
58. It is difficult to make a case that relocation to Queensland, which will inevitably result in the children spending substantially less time with their Father and their extended families and in a context that may be fraught, given the very poor communication that exists the parties, will be in the best interests of the children. Research argues that, in cases of relocation, children need the relocating parent to encourage communication, refresh and retain the memory of the absent parent and facilitate transport arrangements. There are indicators thus far that some of these expectations may be difficult for Ms Adams given her attitude towards
Mr Randall. In many cases some writers suggest, the most likely outcome of relocation is a reduction in the intensity and meaningfulness of the relationship. There are strong indicators this may be the case in this family.
59. By the same token, it is imperative that Mr Randall maintain a strong presence in the children’s lives by regularly spending substantial time with them. It is recommended that this be reflected in a steady increase in the number of evenings the children spend with their Father as they move towards school age. Clearly there are some difficulties due to the nature of his work and changes to his work conditions which might arise in the future that make a regular and firm commitment to long term Court Orders. The efficacy of any orders will require some co-operation on the part of the parties especially considering that they may change for month to month. Clearly one of the important issues in this case is overnight visits for [Z], there is disagreement in the literature as to what is the ideal time for a child to spend overnight with the parent with whom they do not reside. Some authors advocate that children spend overnight with both parents from an early age and that the activities involved in bedtime and waking rituals are in fact instrumental in the formation of attachments, whilst others advocate that spending time overnight be delayed until a child is older i.e. at least after the age of three or older. Given the history of this matter to date and the fact that the twins already spend overnight with their Father, it would be suggested that [Z] begin spending time overnight with his Father at the end of the year. Of course the ease with which he will move between his two parents, is very much determined by the parental relationship, level of conflict and the capacity. Similarly consideration might be given to progressively increasing the number of consecutive evenings the twins spend with their Father over a period of time rather than moving from one as is currently the case to four which is suggested in Mr Randall’s amended application.”
Finally, Dr V provides her recommendations in paragraphs 60 to 66 of the Report:
“60. Unless further evidence comes before the Court, it is recommended that the children continue to live with their Mother in New South Wales.
61. It is recommended that the children spend significant time with their Father at the very least 10 days per month as he has proposed. It is recommended that there be an incremental increase in the number of evenings the children spend with their Father.
62. It is recommended that changeovers occur in a neutral venue preferably at the preschool.
63. It is recommended that both parties refrain from involving the children in any inappropriate and not child focused conversations with the children about the dispute or the other parent.
64. It is recommended that the parties participate in a parenting after separation program or equivalent such as that offered by UNIFAM.
65. It is recommended that Ms Adams seek counselling [sic] to assist her to deal wit[h] issues relating to the separation.
66. It is recommended that the current status of Ms Adams’ mental health be ascertained.”
Evidence
Both parties provided the Court with affidavit and oral evidence. In addition, the paternal grandmother, Mrs R, (“the paternal grandmother”), gave evidence.
With leave of the Court, Dr V, the family consultant, gave oral evidence and was cross-examined by way of telephone.
Dr V’s evidence
Dr V was cross-examined by Mr Sansom and, at some length, by
Ms Winfield. It is noteworthy that Dr V did not change her recommendations following her reading of the parties’ affidavits filed after her interviews or otherwise during her cross-examination.
Mr Sansom asked Dr V whether she had concerns or was surprised that the Mother had no alternate proposal should the Court refuse her request to relocate. Dr V responded as follows:
“‑‑‑Well, I guess that that did, and that, I guess, makes me a little bit uneasy about the state of her emotional wellbeing at the moment –that – that, with – with four children, three under five, it – it is concerning that she has no fallback position, considering the difficulties inherent in relocation – in securing a positive outcome in seeking relocation.”[15]
Mr Sansom then asked Dr V:
“Did you ask her what – did you ask her point blank, ‘What are you going to do if the Court doesn’t permit this relocation that you’ve asked for?’
‑‑‑I can’t remember if that was the question I asked her. But she did say she has no – in my notes I have a note that she has no – I asked her a question to that effect, and she said she has no plans – that she has made no plans.
[15] Transcript, 23 August 2010, page 25.
“Did you take that any further with her by way of a reality checking or otherwise?
‑‑‑Well, only insofar as she said that she was – that she believes that she has a case to move, particularly considering the flexibility with Mr Randall’s [work] schedules and possibility of staying over in Cairns.
“I see. But she acknowledged to you, I gather from the earlier parts of your report, that the family moved back to New South Wales because of the closure of the [Q] base in Cairns, didn’t she?
‑‑‑Yes, yes.”[16]
[16] Ibid.
Dr V then went on to state that the Mother’s proposal to relocate could impact upon the children’s ongoing relationship with their Father, given:
·the children’s ages;
·the distances involved;
·“the timeframes that [the Mother] was proposing for the children to be slotted into”; and
·that the parties “have had substantial difficulties managing arrangements here in Sydney”.[17]
[17] Ibid.
Dr V was later asked by Mr Sansom about the appropriateness of the Father’s proposal to which she replied as follows:
“…I think the 10 days a month that he’s proposing is imminently [sic] appropriate. I guess I was somewhat concerned about the speed of the way in which that might be introduced for the girls. That what we usually find with children is that phasing in changes is probably - with some opportunity for, you know, a step by step introduction of spending more time with a parent is preferable to quantum leaps in time.”[18]
[18] Ibid, page 29.
Ms Winfield asked Dr V whether it is better for the Mother to be happy in the location in which she is living to which Dr V replied:
“‑‑‑Well, in terms of the Mother’s needs it is. I’m not sure that it is – that then that flows on – on to the children because the children need the counterbalance of the opportunity for frequent contact with both parents.
“So if the contact is arranged, though, it really doesn’t matter too much where the parties live, does it?
‑‑‑Well, I – the point that I made earlier that children benefit best in terms of having an experience of their parents if they can spend time in the parent’s household. And I guess, a Father who comes in, spends an overnight, and then flies out doesn’t give the children a very solid grounding of life with their Father … It’s certainly … better than no relationship but, ideally, children – children spend time grounded in both parents’ households.”[19]
[19] Ibid, page 47.
In response to some questions from the Court regarding her recommendation made at paragraph 66 of the Report, Dr V confirmed that she had not made any notifications about any of the children being at risk in the care of the Mother.[20] Dr V also confirmed that the contravention finding made by Walker FM against the Mother had not had any significant impact on her recommendations.[21]
[20] Ibid.
[21] Ibid, page 48.
The Court also asked Dr V about the Mother’s desire not to live in Sydney and her relationship with her own family. Dr V stated:
“‑‑‑The mother was adamant that she didn’t want to come back to Sydney and really had no other proposal except Cairns in mind. She told me that she is estranged from her sister, who I believe Mr Randall has contact with, and she told me that she has some contact with her mother but not regular, although she did mention that her mother has been supportive of her in the past. But she did say she doesn’t get to Sydney - she and the children don’t get to Sydney much to see her mother, and her mother is working.
“Did you get a sense whether the mother - the maternal grandmother gets to the central coast?
‑‑‑No, I didn’t get a sense of that. In fact, I got a stronger sense that the father has more contact with the maternal grandmother than possibly the mother.”[22]
[22] Ibid.
The Court asked Dr V whether, given the problems that had arisen between the parties at changeover, there might be benefits in having changeovers occur, where possible, at the children’s day-care centre (and school, when they are old enough). Dr V agreed with this proposition.[23]
[23] Ibid, page 49.
The Court also asked Dr V to expand upon her earlier comment, in relation to a question from Mr Sansom, that the Mother may benefit from participation in the “Brighter Futures” program. This is a program that some agencies run in cooperation with the Department of Community Services in New South Wales:
“‑‑‑Well, it’s a worker who works alongside, I think visiting maybe once a fortnight. And it certainly just kind of taps in to a Mother’s need as they arise. But certainly, you know, in terms of helping with social connectedness in terms of helping with support in terms of helping, for example, if there are accommodation issues. It’s really, you know, a kind of support worker who’s consistent in a parent’s life. And yes, run - DoCS are the referral agency, you know, the agency to approach. And then they contract out private organisations.[24]
[24] Ibid.
Lastly, as stated, Dr V confirmed that she did not wish to change any of her recommendations.[25]
[25] Ibid, page 50.
The decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 contains an authoritative statement about how family reports such as the Report of Dr V should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the Court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; (1976) 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris (1977) 3 Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the Court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the Court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in Court under examination and cross-examination, and make findings of fact based on evidence before the Court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in Court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral. While the Court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the Court well and assist the Court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the Court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the Court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i)(i) Finally, and most importantly, and as a matter of public policy, no party should leave the Court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[26]
[26] In the Marriage ofHall (1979) 5 Fam LR 609 at 614-615; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Dr V’s evidence was tested and not found to be wanting in relation to her recommendations. Given her expertise and independence, the Court must give the Report and Dr V’s oral evidence considerable weight.
Father’s evidence
The following documents were relied upon by the Father at the Final Hearing:
·Amended Initiating Application filed on 4 August 2010;
·Affidavit of the Father sworn on 27 July 2010 and filed on 2 August 2010;
·Financial Statement of the Father sworn and filed on 4 August 2010;
·Affidavit of the paternal grandmother sworn on 27 July 2010 and filed on 2 August 2010;
·Affidavit of Mr D sworn on 3 August 2010 and e-filed on 6 August 2010; and
·Father’s Outline of Case document dated 20 August 2010.
Generally speaking, the Father presented as a polite witness who appeared genuinely concerned for the children’s welfare. However, the Father was, at times, a little evasive about his past behaviour.
The paternal grandmother presented well and is clearly a positive influence on both the Father and the children.
Mother’s evidence
The following documents were relied upon by the Mother at the Final Hearing:
·Amended Response filed on 11 June 2010;
·Affidavit of the Mother affirmed on 9 August 2010 and filed on 10 August 2010;
·Affidavit of the Mother affirmed on 12 April 2010 and filed in Court with leave on 24 August 2010;
·Financial Statement of the Mother affirmed on 9 August 2010 and filed on 10 August 2010;
·Mother’s Outline of Case document (undated); and
·
Mother’s minute of final orders sought handed up in Court on
27 August 2010.
The Mother presented as a capable parent who demonstrated her clear love and affection for the children. That said, she had difficulty in acknowledging or accepting that the Father should play any major role in the children’s lives and not all of her responses were child-focused. While the Mother was able to remember some matters in considerable detail, she was also unable to recall a number of events that were put to her in cross-examination.
The Court will now consider the relevant law in light of the evidence and submissions. It will consider and determine the parties’ dispute in two parts, firstly the parties’ parenting dispute and then secondly, the parties’ property dispute.
Part One: Parenting Dispute
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, or the children in this case, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions. That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in s.60CC of the Act. These will be considered in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about “major long-term issues” in relation to a child. In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, as stated by Cronin J in the recent case of Lindell v Ranteri [2010] FamCA 52 at paragraph 31, “the general direction in life that is so important for children in teenage years”.
Section 4 of the Act sets out the relevant definition of “major long-term issues” and what the law expects of parents:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of the children for their parents to have equal shared parental responsibility (“the presumption”).
Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. A child’s best interests are determined by reference to the considerations in s.60CC of the Act in light of the evidence. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of a child, again taking into account the considerations in s.60CC of the Act in light of the evidence.
Although Dr V made no specific recommendation, there is no dispute between the parties that each should have equal shared parental responsibility for the children.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA of the Act to consider whether a child’s best interests would be served by making an order that they spend equal time or, alternatively, substantial and significant time, with each parent[27]. Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
[27] Section 65DAA of the Act.
This consideration is a major issue in this case because the Mother is seeking an order that would significantly limit the children’s time with the Father compared to that currently provided for in the interim orders that have been in place in various forms since October 2009.
As previously stated, the Mother ultimately proposes that the children spend time with the Father during his rostered days off from 10:00am on the first day until 4:00pm on the third day.[28] This would presumably occur in the Cairns area. Regardless, once the children commence school, again, presumably in the Cairns area, then the Father would have to ensure that they attend school during any period that they are spending time with him. The Mother’s proposal makes no provision for the children spending time with the Father neither during school holidays nor for any other special days such as birthdays or Father’s day.
[28] See paragraph 4(a) Mother’s Minute of final orders sought. This would apply immediately in respect of the twins. There would be an incremental increase in time over a 9 month period in relation to [Z] before the times for all three children would be the same.
It is noteworthy that s.65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
Meaning of “de facto relationship”
The first threshold issue is whether there has been a de fact relationship between the parties. The meaning of “de facto relationship” is defined in s.4AA of the Act which states:
“Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
This definition should be interpreted in the context of the operation of the Act. In Baker & Landon [2010] FMCAfam 280, Riethmuller FM stated, at paragraph 27:
“27.The matters referred to in s.4AA should be considered, along with any other facts or circumstances in the particular case or relationship ‘as may seem appropriate in the circumstances of the case’: see s.4AA(4). Care must be exercised before relying upon either the authorities, or developed norms, with respect to the definition of the term ‘de facto’ under other legislative provisions.”
In other words, whether the parties have been living in a de facto relationship must be determined by reference to the definition as set out in the Act. It cannot be determined by reference to the definition of “de facto relationship” as contained in other legislation nor by reference to judicial decisions interpreting such other legislation. It was further stated by Bender FM, in Dakin & Sansbury [2010] FMCAfam 628 at paragraph 13, that:
“13. … the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.”
Minimum length of the relationship
The second threshold question to determine is whether the relationship complies with the requirements set out in s.90SB of the Act which states:
“A Court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the Court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Commencing proceedings within two years of relationship breakdown
Section 44(5) of the Act requires that proceedings for financial orders be commenced within two years of the breakdown of the de facto relationship.
It is interesting to note that as the constitutional reference of powers by the referring States was only in relation to the “breakdown” of de facto relationships, a de facto partner is not able to apply for maintenance during a de facto relationship, in contrast to a married partner who can.[44]
[44] See s.90SE(1).
Consideration of the threshold issues
Consequently, in order for the Court to determine whether the parties were “a couple living together on a genuine domestic basis” for a period of two or more years, or alternatively, where there has been a child of the relationship or substantial contributions to the relationship, it will be necessary to have regard to all the circumstances of their relationship in the context of the matters set out under s.4AA of the Act. It will also be necessary to establish that the relevant financial proceedings were commenced within two years of the breakdown of the de facto relationship.
There is no issue between the parties regarding their relationship breaking down within the required statutory definition. It is also clear from their evidence that they were “a couple living together on a genuine domestic basis” for a period of two or more years, that is from 2006 to 2009. There are also three children of from their relationship. Lastly, the relevant proceedings were commenced by the Father in the same year that the relationship ended.
Spousal maintenance
In relation to a claim for spousal maintenance, once the Court is satisfied that it has jurisdiction, under s.90SF(1) of the Act the Court must apply the principle that:
“… a party to a de facto relationship must maintain the other party to the de facto relationship:
(a)only to the extent that the first-mentioned party is reasonably able to do so; and
(b)only if the second-mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.”
If the Court is satisfied that the relevant principle applies, then s.90SE(1) of the Act empowers the Court to make “such order as it considers proper for the maintenance of one of the parties to the de facto relationship”. As with the mirror provisions applicable to married couples in the Act[45] the Court must take into account only the list of factors set out in the relevant provision of the Act, which in the case of de facto couples, are those in s.90SF(3).[46]
[45] That is ss.72(1) and 75(2) of the Act
[46] See s.90SF(2).
As with the applicable law for married couples, the inter-relationship between spousal maintenance and property division is emphasized by s.90SF(3)(p), which provides that in determining a maintenance application, the Court must have regard to the terms of any property order made or proposed to be made under s.90SM of the Act. Moreover, s.90SF(3)(t) of the Act requires the Court to consider the terms of any binding financial agreement made pursuant to Part VIIIAB of the Act, particularly ss.90UA to 90UN, however, this is not relevant in this matter.
Not surprisingly, there is also a new provision, namely s.90SF(4) of the Act, mirroring s.75(3) of the Act, that requires the Court “to disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit”.
In this matter, the Mother has sought an order for the Father to pay her the sum of $200.00 per week pursuant to s.90SE of the Act. Given that the Father subsequently consented to the making of such an order, following settlement of the proposed sale of the [F] property, there is no need for the Court to further consider this particular aspect in this matter.
Property division
Section 90SM of the Act confers a wide discretion on the Court to make such order adjusting property rights as is “just and equitable”. That said, this discretion is not unlimited and the Act sets out mandatory considerations governing its exercise by the Court which must be taken into account.
The financial settlement regime under Pt VIIIAB of the Act mirrors the one available to married couples under Pt VIII. Section 90SM(1) of the Act mirrors the powers set out in s.79(1), but only applies following the “breakdown” of the de facto relationship. Under s.90SM(3) of the Act, the Court can only make a property adjustment order upon being satisfied that “in all the circumstances, it is just and equitable to make the order”. This corresponds to the principle found in s.79(2) of the Act. In order to make a “just and equitable” order, the Court must consider the seven factors set out in s.90SM(4) of the Act, which, not surprisingly, reflects s.79(4) of the Act:
“(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or\
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.”
The preferred approach to the exercise of the discretion, albeit in the context of s.79 of the Act, has been outlined in numerous decisions of the Full Court. As example of such would be the relatively recent case of In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143. The preferred approach involves four interrelated steps:[47]
·Step 1: identify and value the parties’ property, liabilities and financial resources as at the date of the hearing;
·Step 2: identify and assess the parties’ ‘contributions’ within the meaning of s.79(4)(a), (b) and (c) (i.e. s.90SM(4)(a), (b) and (c)) and determine the parties’ contribution-based entitlements expressed as a percentage of the net value of the parties’ property;
·Step 3: identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g) (“the s.75(2) and related factors”) (i.e. s.90SM(4)(d), (e), (f) and (g)) including, because of 79(4)(e) (i.e. s90SM(4)(e)), the matters referred to in s.75(2) (i.e. s.90SF(3)), so far as they are relevant, and determine the adjustment (if any) that should be made to the contribution-based entitlements of the parties established at Step 2; and
·Step 4: consider the effects of those findings and resolve what Order is just and equitable in all of the circumstances of the case.
[47] L Young & G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Australia, 2009, pp.614-615.
Given the absence of any Full Court authority to the contrary, the Court is satisfied that it is appropriate for the four step process to be applied in the context of proceedings pursuant to s.90SM of the Act.
Step one: the asset pool
The asset pool in this matter is quite modest. Based on submissions by each party and further questioning of the parties from the Bench, the following table represents the agreed assets and liabilities of the parties (including superannuation entitlements):
Assets
Valuation
Property F, [F] (F)
$525,000.00
Household contents (M)
$8,500.00[48]
Household contents (F)
$600.00
2002 Toyota Camry (M)
$2,000.00
2006 Subaru (F)
Not Applicable[49]
St George Bank Account (M)
$56.00
[Q] Credit Union Account (F)
$440.00
[Q] shares (F)
$463.00
Subtotal/Assets
$537,059.00
Liabilities
Combined home mortgage (F)
$448,573.00
Commonwealth Visa (F)
$4,000.00
Subtotal/Liabilities
$452,573.00
Superannuation
[Q] Superannuation Plan (F)
$100,158.00
Subtotal/Superannuation
$100,158.00
[48] The Mother asserts that the value of household contents if $7,000.00 whereas the Father asserts the value at $10,000.00. For the reasons expressed in paragraph 164, the Court has adopted a value of $8,500.00.
[49] The Father has possession of 2006 Subaru which is subject to lease with [omitted] with a final payment due by him of $12,497.00.
By the commencement of the Final Hearing, there was no disagreement between the parties that the [F] property had to be sold and there was agreement that it was valued in the vicinity of $525,000.00.
The Father also conceded that, given authorities such as Re NHC & RCH (2004) 32 Fam LR 518; (2004) FLC 93-204; [2004] FamCA 633, the debt due to the paternal grandmother in the sum of $48,300.00 for the Father’s legal costs of these proceedings, was not a relevant matrimonial liability.[50] The Mother indicated that she had not paid any legal fees as at the date of the Final Hearing but had been given an estimate “around the $15,000 mark”.[51] That said, these liabilities would be relevant for “s.75(2) purposes”, that is, relevant in respect of s.90SF(3) of the Act as discussed further below.
[50] Transcript, 23 August 2010, page 13.
[51] Transcript, 27 August 2010, page 202.
The parties remained in dispute, however, in respect of the household contents held at [F] property both as to its value, and whether it should remain with the Mother, as sought by her, or be subject to equal division, as sought by the Father. For simplicity, and in the absence of any independent valuation evidence, the Court will simply adopt a value of $8,500.00 for the purpose of these proceedings.
There were no submissions made in respect of any other personal property apart from that identified in the above table.
The Court therefore finds that the value of the non-superannuation net asset pool of the parties is $84,486.00.
In relation to superannuation, the only relevant policy is the Father’s [Q] Superannuation Plan. As stated in the table above, both parties have agreed that it be valued at $100,158.00 for the purpose of these proceedings.
Step two: contributions
It is clear from the evidence that the parties have, throughout their three and a half year relationship, specialised their respective roles into that of significant ‘breadwinner’ and significant ‘homemaker and parent’. This is quite a normal and a sensible division of labour in our society that usually advances both the financial prosperity, and the welfare, of a couple and their children.
While there is no presumption that such specialised roles equalise for contribution assessment purposes,[52] an outcome favouring equality is not unusual in cases involving long relationships following an analysis of the evidence relevant to ss.90SM(4)(a) to (c) of the Act.[53] Of course, such an outcome may alter following consideration of the other s.90SM factors, in particular s.90SM(4)(e) of the Act.[54]
[52] In the Marriage ofMallet (1984) 156 CLR 605, In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335, In the Marriage of McLay (1996) 20 Fam LR 239; (1996) FLC 92-667.
[53] In the Marriage of McLay (1996) 20 Fam LR 239 at 248-250 (per Nicholson CJ, Fogarty and Dessau JJ).
[54] Ibid, at 250.
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship,[55] during their relationship, and following separation.[56]
[55] In the Marriage of Olliver (1978) 4 Fam LR 360; (1978) FLC 90-499.
[56] In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-657.
Financial and non-financial contributions
It is clear that both parties have made financial and non-financial contributions to the acquisition, conservation and improvement of the [F] property. This is particularly so given their mutual investment of their earnings into the property pool and their labours associated with the conservation of the [F] property.
It is also clear from the evidence that the Father, through the parties’ decision to specialise their respective roles, has been able to significantly contribute more of his income and energy into making financial and non-financial contributions to the acquisition and improvement of the [F] property than the Mother.
It is also clear from the evidence that the Father has made a significant financial contribution to the acquisition of the [F] property by contributing savings of approximately $100,000.00 to its purchase. Furthermore, since separation the Father has made relevant financial and non-financial contributions to the renovation of the [F] property and has continued to meet the mortgage payments.
The Mother, understandably, asks the Court to consider her own contributions, other than those which went toward the conservation and improvement of the [F] property and the parties’ living expenses. The Mother asserts that her own competing family contributions act to erode the significance of the Father’s on-going financial and non-financial contributions.
Family contributions as homemaker and parent
As has been previously noted, in addition to the Mother’s contributions made pursuant to s.90SM(4)(a) and (b) of the Act, the Court is satisfied that the Mother was the primary homemaker for the parties and the primary carer for the children. Consequently, the Court finds that she has made a significant contribution to the family pursuant to s.90SM(4)(c) of the Act.
The family contribution by the Mother as the primary carer of the children has continued post-separation. That said, the Father clearly spends significant time with the children and, despite their recent dispute in relation to child support, has been paying child support to the Mother.
Global or asset-by-asset assessment of contributions?
Despite the brevity of the de facto relationship, neither party suggested to the Court that it adopt an ‘asset-by-asset’ analysis in lieu of a ‘global’ approach in relation to contributions. Regardless, the ‘global’ approach is probably the most convenient and appropriate to the parties’ circumstances.
Step three: “section 75(2) and related factors” (i.e. s.90SM(4)(d)-(g))
The parties are relatively young and both are currently in good health. Neither has re-partnered.
As previously stated, at the time of the Final Hearing the Mother was engaged in home duties, including the care of the children. It can be expected that the Mother will seek suitable employment in the near future, particularly when [Z] commences school.
In light of these circumstances, the Court agrees with the Mother that there should be an adjustment in her favour pursuant to “s.75(2) and related factors”.
That said, as to the relevant percentage, the Court does not consider that the evidence merits an adjustment totalling 30% as sought by the Mother.[57] The Court finds that an adjustment of 15%, being at the top end of the range as proposed by the Father,[58] is appropriate given all the circumstances, including the modest size of the net property pool and the reality that the Mother will be assisted by spouse maintenance in the sum of $200.00 per week.
[57] Transcript, 27 August 2010, page 212.
[58] Ibid, page 216.
Step four: justice and equity
Section 90SM(3) of the Act provides that:
“The Court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.”
This matter involves a relatively short de facto relationship where the children will be primarily parented in the foreseeable future by the Mother and where the assets available for distribution are relatively modest.
It also involves considerable pre-relationship contributions made by the Father that have not been significantly eroded by the competing contributions of the Mother. As the Full Court stated in the case of In the Marriage of Pierce (1998) 24 Fam LR 377:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution…”[59]
[59] In the Marriage of Pierce (1998) 24 Fam LR 377 at page 386-387 per Ellis, Baker and O’Ryan JJ.
Overall, the Court is satisfied that, on a contributions analysis, the matrimonial property should divided 70% in favour of the Father and 30% in favour of the Mother.
In addition, as indicated above, the Court is satisfied that a further adjustment of 15% in the Mother’s favour to reflect “s.75(2) and related factors” is warranted.
Consequently, the Court is satisfied that the net property pool should be divided 55% in favour of the Father and 45% in favour of the Mother. The Court is further satisfied that such an overall adjustment is just and equitable in all the circumstances.
Conclusion
Based on the agreed valuations and determinations made by the Court, the sum of the asset pool, excluding superannuation entitlements, is $84,486.00. Calculating a 55:45 division from this notionally represents an amount of $46,467.30 in favour of the Father and $38,018.70 in favour of the Mother.
The principal asset for division between the parties is, of course, the proceeds of the [F] property. The final amounts to be received will depend upon the amount realized from the sale of the property.
In the absence of agreement to the contrary, and subject to accounting between the parties as will be discussed shortly, the Mother should retain the following:
·the household contents at the [F] property;
·the Toyota Camry vehicle; and
·the monies held in the St George Bank Account.
The Father should retain the following:
·the Subaru vehicle (which is, of course, subject to leasing finance);
·his household contents;
·the monies held in the [Q] Credit Union Account; and
·the [Q] shares.
In relation to superannuation, it is noteworthy that despite the modest net property pool, neither party is seeking a splitting order in respect of the Father’s [Q] Superannuation Plan. During his final submissions for the Father, Mr Sansom stated:
“As I have indicated to your Honour also, at the end of the day, we organised for a splitting order if one ever became absolutely necessary. We’re not seeking it, nor is the Mother, but just so that your Honour knows that there are some prospects of that should you find that our respective submissions don’t fulfil your Honour’s obligations.”[60]
[60] Transcript, 27 August 2010, pages 216-217.
In relation to superannuation, the Court sees no reason why a different overall percentage figure should apply following an analysis of s.90SM(4) of the Act. In other words, the Mother’s notional interest in the Father’s superannuation is $45,071.00, being 45% of the agreed value.
The Court understands the reasons why the Mother might prefer an outcome whereby she foregoes any interest in the Father’s superannuation in return for an outcome that may generate more funds and property being available to her now. Similarly, the Court understands the reasons why the Father might prefer an outcome whereby 100% of his superannuation entitlements are retained by him. However, it is clear that both parties will need access to funds now in order to re-establish themselves, given the reality that the [F] property will be sold.
If both the [F] property and the combined home mortgages are excluded from the calculations for a moment, then the available net asset pool, excluding superannuation, is just $8,059.00.
Based upon this outcome, the Father’s 55% share would be $4,432.45 and the Mother’s 45% share would be $3,625.55. If the Mother retains the household contents at the [F] property valued at $8,500.00, the Toyota Camry vehicle $2,000.00 and the monies held in the St George Bank Account $56.00, she would need to account to the Father in the sum of $6,930.45.
Given the uncertainty surrounding exactly what the proceeds of sale of the [F] property might be, and given the Father’s current financial circumstances and on-going obligations with respect to the [F] property, the Court is satisfied that there should be a superannuation splitting order of the Father’s [Q] Superannuation Plan in the Mother’s favour valuing the base amount interest at $38,140.55. This base amount reflects the Mother’s notional interest in the Father’s superannuation less the shortfall adjustment needed in respect of the other personal property she will retain.
As there is no evidence before the Court that the trustee of the relevant fund has been given procedural fairness, the superannuation splitting order will be stayed until the Court is satisfied that procedural fairness has been afforded and will, inter alia, require the Father to serve a copy of the Orders on the trustee of the relevant fund within seven days of date of this judgment. Additional procedural orders will also made in this respect.
There will also be orders that each party retain all other property currently in their respective possessions, free of any claim from the other.
Each party will be required to indemnify the other with respect to any debts and liabilities standing in that party’s sole name.
As already stated, there will also be orders causing the Father to sell the [F] property and also to pay the Mother $200.00 per week by way of spousal maintenance.
There will be final orders and notations of the Court to reflect this decision.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 13 May 2011
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