Rayhill & Rayhill

Case [2021] FamCA 459

FAMILY COURT OF AUSTRALIA

Rayhill & Rayhill [2021] FamCA 459

File number(s): LNC 687 of 2019
Judgment of: MCGUIRE J
Date of judgment: 6 July 2021
Catchwords:

FAMILY LAW – CHILDREN – Application by husband seeking orders to formalise an existing arrangement whereby he spends time with children week about – Application opposed by the wife – Where the wife alleges that the children were subjected or exposed to a risk of harm by reason of family violence in the care of the husband – Where the children have a meaningful relationship with both parents – Orders that children live with the wife and spend substantial time with the husband

FAMILY LAW – PROPERTY – Application by husband seeking orders that he receive 60 per cent of the parties’ net tangible assets and an equalisation of their superannuation entitlements – Application opposed by the wife – Where wife seeks a 50/50 per cent division of the tangible property pool – Where wife proposes a splitting order from her superannuation entitlements to the husband which would give her a greater than 50 per cent of the current joint superannuation entitlements of the parties and based on her superannuation post separation contributions in circumstances where she has continued in employment whereas the husband has not – Add-Backs – Orders made in circumstances where the court is satisfied it is just and equitable to do so whereas the husband receive 55 per cent of the net property and wife receive 45 per cent – Orders that husband receive 48.5 per cent of the parties total superannuation entitlements

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC(2) and (3)
Cases cited:

R & R Children’s Wishes (2000) FLC 93-000

H v W (1995) FLC 92-598

Galea v Galea (1990) 19 NSWLR 263

Jones v Dunkel (1959) 101 CLR 298

Aleksovski & Alekovski (1996) FLC 92-705

Stanford v Stanford (2012) 247 CLR 108

Phillips & Phillips (2002) FLC 93-104

Dickons & Dickons [2012] FamCAFC 154

Williams & Williams [2007] FamCA 313

Pierce & Pierce (1999) FLC 92-844

Jabour & Jabour (2019) FLC 93-898
Number of paragraphs: 130
Date of hearing: 13 & 16 April 2021
Place: Hobart
Counsel for the Applicant: Mr Kitto
Solicitor for the Applicant: James C Kitto
Counsel for the Respondent: Ms Trezise
Solicitor for the Respondent:  Andrea Trezise
Counsel for the Independent Children’s Lawyer: Mr Murray
Solicitor for the Independent Children’s Lawyer: Murray & Associates

ORDERS

LNC 687 of 2019
BETWEEN:

MR RAYHILL

Applicant
AND:

MS RAYHILL

Respondent

ORDER MADE BY:

MCGUIRE J 

DATE OF ORDER:

5 JULY 2021

THE COURT ORDERS THAT:

PARENTING

1.The parents have equal shared parental responsibility for the children X born … 2007, Y born … 2009 and Z born … 2012 (‘the children’) provided that the wife have sole parental responsibility for all medical or psychological issues in respect of the children or any of them, provided that prior to making any appointment for the children or any of them with any medical practitioners or…

Continue reading Rayhill & Rayhill

Sign in free to access the full text

Details
AGLC
Rayhill & Rayhill [2021] FamCA 459
Case
[2021] FamCA 459
Decision Date

CaseChat Overview and Summary

In the matter of *Rayhill & Rayhill*, McGuire J of the Family Court of Australia considered applications by both the husband and wife concerning parenting arrangements for their three children and the division of their property and superannuation entitlements. The husband sought orders to formalise an existing week-about arrangement for spending time with the children, while the wife opposed this, alleging the children were exposed to a risk of harm due to family violence in the husband's care. The wife also sought a 50/50 division of tangible property, proposing a superannuation splitting order that would result in her receiving more than 50 per cent of the parties' combined superannuation.

The court was required to determine the best interests of the children, specifically whether the existing week-about parenting arrangement should continue or be altered, and to address allegations of family violence. In relation to property, the court needed to decide on the appropriate division of the parties' net tangible assets and superannuation entitlements, considering the wife's post-separation contributions and the husband's period of unemployment. The court also had to consider the impact of the children's ages, their expressed wishes, and the findings of the Family Consultant and Independent Children's Lawyer.

McGuire J found that while the week-about arrangement had worked satisfactorily in many ways, there were significant concerns regarding the husband's parenting, including his response to the children's medical needs and a history of alleged coercive behaviour. The court noted that the wife was in a superior financial position and appeared more engaged with the children's long-term needs. Ultimately, the court ordered that the children live with the wife and spend substantial time with the husband, with specific provisions for communication and time during school terms and holidays. In property division, the court ordered that the husband receive 55 per cent of the net property and the wife 45 per cent, and that the husband receive 48.5 per cent of the parties' total superannuation entitlements, reflecting a just and equitable outcome.

Orders

Orders of the court

LNC 687 of 2019

BETWEEN:

MR RAYHILL

Applicant

AND:

MS RAYHILL

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

5 JULY 2021

THE COURT ORDERS THAT:

PARENTING

1. The parents have equal shared parental responsibility for the children X born … 2007, Y born … 2009 and Z born … 2012 (‘the children’) provided that the wife have sole parental responsibility for all medical or psychological issues in respect of the children or any of them, provided that prior to making any appointment for the children or any of them with any medical practitioners or other health professionals, that the wife first advise the husband and consult with him as to the need for such appointment and then to prudently provide the husband with the names and addresses of such professionals and appropriate authorisation for the husband to meet with those professionals.

2. The children live with the wife.

3. The children spend time and communicate with the husband as follows:-

(i) During school terms fortnightly on Thursday from the conclusion of school (or 4.00pm if not a school day) until Monday at the commencement of school (or 5.00pm if a public holiday or a student free day), such to commence the second Thursday from the date of these orders;

(ii) For one half of each term school holiday being the first half of such holiday from the conclusion of school on the first Friday until 12.00 noon on the second Saturday;

(iii) On a week about basis during the summer school holidays with changeovers to take place on Fridays at 5.00pm and to commence on the first Friday of such holidays in 2021 and in each alternate year thereafter and commence on the second Friday 2022 and each alternate year thereafter;

(iv) At such other times including special days and variations of the above as agreed between the parties from time to time;

(v) The time between the children and the father fortnightly from Thursdays until Mondays be suspended during any period of school holidays;

(vi) By reasonable telephone or other media communication provided that the children have reasonable telephone or other media communication with the wife during their time with the husband; and

(vii) Changeovers for the children between the parents which do not occur at the children’s schools then take place outside the T Store or such other venue as agreed between the parties from time to time in writing.

4. Each of the parents be and are hereby restrained by themselves or their servants or agents from inflicting physical discipline/corporal punishment on the children or any of them.

5. Each of the parents be and are hereby restrained by themselves or their servants or agents from discussing the issues canvassed in these Court proceedings and/or providing the children with access to any of the documents filed in these proceedings, save and except for explaining the fact of the orders herein to the children and for these purposes IT IS REQUESTED that the Independent Children’s Lawyer meet with the children as soon as practicable after the handing down of these Reasons so as to explain the orders to the children.

6. The wife be given leave to provide a copy of the Family Report dated 22 March 2021 to any psychologist, therapist/counsellor engaged in respect of the children or any of them, provided that the contents of such report not be further disseminated.

7. That should the wife determine that the children or any of them require psychological counselling/therapy or similar intervention by any behavioural scientist, and conditional upon the wife’s compliance with these orders set out above, the parties be equally responsible for the costs of such consultations/therapy.

8. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY

9. Within twenty eight (28) days of the date of these orders the husband shall:-

(i) pay to the wife a lump sum of $319,651.65;

(ii) transfer and/or vest his right, title and interest to the following to the wife absolutely:-

(a) the property situate at B Street, C Town in Tasmania;

(b) the wife’s Company D shareholdings;

(c) the wife’s motor vehicle 1;

(d) the balances of all bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders;

(e) all personalty and chattels in the possession or under the control of the wife as of the date of these orders;

(f) the wife’s superannuation policy and entitlement with Super Fund 1 but subject to these orders.

(g) the motor vehicle 2 currently in the possession of the wife but registered in the name of the husband.

(iii) Be solely responsible for and indemnify the wife in respect of the following:-

(a) Any and all liabilities attaching to any of the assets retained by the husband pursuant to these orders including but not limited to CBA mortgage secured by the properties at 2 E Street, F Town and B Street, C Town both in Tasmania and for these purposes within twenty eight (28) days of the date of these orders the husband obtain a release for the wife from any liability under the said mortgage;

(b) Any and all liabilities incurred by the husband since separation in either joint names or in his name alone.

10. That contemporaneously with the payment referred to in order 8(i) hereof, the wife shall:

(i) Transfer and/or vest all her right, title and interest in the following to the husband absolutely:-

(a) the property situate at 4 E Street, F Town in Tasmania;

(b) the property situate at 2 E Street, F Town in Tasmania;

(c) the balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders including any joint savings account held with the wife;

(d) the husband’s motor vehicle 2;

(e) all plant and equipment valued by G Valuers for the purposes of these orders;

(f) any and all livestock in the possession or control of the husband as at the date of these orders;

(g) all personalty and chattels in the possession of or under the control of the husband as at the date of these orders; and

(h) the husband’s superannuation policy and entitlement with Super Fund 1.

(ii) Be solely responsible for and indemnify the husband in respect of the following:-

(a) any and all liabilities attaching to any of the assets retained by the wife pursuant to these orders;

(b) any and all liabilities incurred by the wife since separation in either joint names or the wife’s sole name.

11. That within twenty eight days (28) days of the Capital Gains Tax (“GST”) liability being struck in respect of the sale of the property at H Street, J Town, New South Wales the husband shall:

(a) Pay the CGT liability; and

(b) Provide the wife with documentary evidence as to the CGT liability and payment of that liability.

12. That within a further twenty one (21) days the husband and wife shall reconcile the payment of the CGT liability referred to in these Orders and in accordance with the percentage distribution of the tangible property pool.

13. That paragraphs 12 to 17 (inclusive) of this Order are binding on the Trustee of Super Fund 1, member number 711861428 (‘the Fund’) and it is declared that this Orders is made in accordance with s 90XT (1)(a) of the Family Law Act 1975 (Cth).

14. That pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) the base amount allocated to the husband Mr Rayhill (‘the husband’) out of the interest of the wife Ms Rayhill (‘the wife’) in the fund is $160,451.85 (‘the base amount’).

15. That in accordance with s 90XT (1)(a) of the Family Law Act 1975 (Cth) whenever the Trustee of the Fund makes a splittable payment from the interest of the wife in the fund the husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (‘the Regulations’) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

16. That this Order have effect from the operative time and the operative time is the fourth (4th) business day after the day on which the final sealed Orders are served upon the Trustee.

17. That until the Trustee of the Fund have effected the splittable payment in favour of the husband pursuant to Order 14 herein the Trustee of the said Fund, the wife, her personal representatives or any other persons acting on her or their behalf be and are hereby restrained from disposing of all or any amount payable to the wife and/or her personal representatives received by or held in trust for the benefit of her or them.

18. That a sealed copy of these Orders be served by the solicitors for the husband upon the Trustees of the fund within fourteen (14) days of the date of this order.

19. That pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The wife, herself, initially sought a 60 per cent distribution of the property pool in her favour. She now argues a 50/50 per cent division of the tangible property pool. Her case summary document proposes a splitting order from her superannuation entitlements to the husband of $150,000 which would give her greater than 50 per cent of the current joint superannuation entitlements of the parties and based on her superior post separation contributions where she has continued in employment whereas the husband has not.BACKGROUND The husband is 52 years of age and the wife is 44 years. The parties commenced a relationship in November 1998 and commenced cohabitation in June 1999. They married in 2006 and separated on 13 June 2019. At separation the wife removed herself and the children from the parties’ home in Tasmania and went for a week or so to family in New South Wales. She then retained possession of the children, but permitted upon her return for the children to spend time with the husband for a couple of hours one day per weekend conditional upon the wife supervising such time. The husband brought an initiating application in September 2019 and an interim hearing conducted in December 2019 resulted in consent orders for the children to live in an equal time arrangement between the parents. The husband is tradesman, but has not worked in his trade substantially since approximately 2009. The evidence is that the husband lost his employment due to circumstances arising from the global financial crisis. The parties then agreed that the wife would continue in the workforce in her profession and that the husband would assume a ‘house husband’ role. This continued until the parties’ separation in June 2019. In December 2004 the parties relocated from New South Wales to live in Tasmania. In September 2015 the wife moved with her employment to S Town, in the Northern Territory. The family also moved within a couple of months. In February 2016 the Northern Territory Child Protection Authorities intervened with this family alleging that the husband had assaulted the children, X and Y. The children were removed and placed in foster care for approximately three months. Criminal charges were brought against the husband. The matters eventually resolved with the children being returned to the parties and both the criminal and Child Protection applications were eventually resolved on Undertakings. The family returned from the Northern Territory to Tasmania in November 2018. The parties separated in June 2019 and a divorce order was granted on the wife’s application in July 2020. An order was made for a family report with interviews taking place on 24 February 2021. The report was released on 22 March 2021. The wife now lives in rented accommodation at K Town in Tasmania. She has had possession of the parties’ property at C Town in Tasmania, but has commenced and not yet finished renovations to that property which has remained vacant effectively since separation. The husband remains resident in and has possession of the parties’ other two properties at F Town in Tasmania.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst both the ICL and the Family Consultant recommend a continuation of the current status quo of the week-about arrangements, they both appear to do so with reservations. All of the evidence is highly indicative of these three children suffering various forms of emotional impact from their parents’ separation and from the divergent parenting styles both before and after separation. The Family Consultant recommends therapeutic intervention for each of the three children. The Family Consultant also suggests that the children may not have been totally forthright in expressing their views and preferences. The behaviour of the youngest child, Z towards the Family Consultant is particularly concerning and notably was repeated when he was introduced to the ICL. As such the status quo itself brings current and potential difficulties which may lead to further litigation as these become manifested in the parents’ behaviour and the children’s responses. To the contrary, the status quo of an equal time in a week-about arrangements appears to have worked satisfactorily in many ways for these children. The parties live in relatively close proximity and the children, X and Y, seem settled and are achieving well in their schooling, although the husband’s own evidence raises concerns as to some isolation and social difficulties for X.FINDINGS AND CONCLUSIONS This is a complex parenting matter with issues of credit, parenting style and family violence to the fore. I note that both the Family Consultant and the ICL recommend a continuation of the status quo from December 2019 of a week-about arrangement. Each, though, make those recommendations with some equivocacy. The Family Consultant’s comment at [110] that the husband’s potential negative responses to any orders other than those sought by him is of concern and seem to have had some influence on the Family Consultant’s recommendations, but should not in any way be determinative of my consideration. I should also be mindful of the impact on the children of making any orders that are contrary to their own preferences. These are not young children. X and Y are able to formulate and express their own views and while their relationships with each of their parents is in many ways delicate then I should be mindful of the impact on them and those relationships of any orders contrary to those preferences.[5][5] R & R Children’s Wishes (2000) FLC 93-000 and H v W (1995) FLC 92-598. Any consideration of the children’s views and preferences must take into account whether they are actually and emotionally voluntary statements and are properly informed, and are mature and/or rational. In this respect, the parenting styles, personalities and attitudes of each of the parents can be and are relevant. I repeat however, the concerns expressed by the Family Consultant at [102] where she observed the children as not being comfortable in openly sharing their feelings. In contested litigation such as this and where issues of credit between the parties assume considerable importance in the making of necessary findings, the Court has the distinct advantage of being able to see and hear each of the parties and their witnesses give evidence. In Galea v Galea[6] Kirby ACJ considered the advantages available to trial judges including the following:a)Hearing the evidence in its entirety;b)Hearing and seeing all evidence in context, chronologically and logically advanced;c)Having time during adjournment and during the running of the case to reflect upon the evidence and to weigh against all other evidence whilst fresh;d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony; ande)Observing body language, sometimes important for interpreting communication.[6] (1990) 19 NSWLR 263.

Ratio Decidendi

Legal Principle Established

On the evidence before me the wife appears to have been far more engaged in matters of the children’s long term needs including X’s diagnosis of ADHD.Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children from any separation from either of their parents; Superficially the indications are that the children are settled in and content with the week-about arrangements between their parents. The Family Consultant has concerns in respect of the husband’s response should the children be moved to live primarily with the wife. She says that the husband may struggle to ‘tolerate’ any arrangement which places the wife in the position of primary carer given his self-identification with this role and that ‘possible responses to such a situation to rebalance a change to power dynamic would likely undermine the benefits of any increased time with Ms Rayhill.[4] Whilst in the witness box the husband showed something of a detached attitude to the proceedings generally and an almost resignation as to any result, the Court is mindful of the concerns of the Family Consultant in respect of the husband’s alleged history of coercive and controlling behaviour and hence any reactions to orders that do not accommodate his ambitions.[4] Paragraph [110] the family report 23 March 2021. On another level, the changes in the children’s circumstances contemplated by the wife’s application would be minimal. The children would still spend frequent and substantial time with their father. They would still go to school at times from their father’s home. However, the change contemplated by the wife’s application would be more than a subtle one for these children where it would provide them with an understanding of a home base and a primary parent in circumstances where they currently live equally between their parents, but where those parents are significantly different in attitude, personality and parenting style together with being almost functionally non-communicative and non-coperative.Section 60CC(3)(e) the practical difficulty and expense of the children spending time and communicating with a parent; This consideration is not relevant here.Section 60CC(3)(f) the capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs; Both parents provide adequately for the physical needs of the children, although I note that the wife is in a superior financial position having employment as a professional whereas the husband has not and does not seem to be pursuing employment in his trade as an electrician. On the face of it, it would seem that the wife is able to provide in a superior way to the children’s financial needs than is the husband. I maintain some concerns, after the taking of evidence, in respect to the husband’s commitment and insight into some important factors for these children and specifically their medical needs. X suffers a diagnosis of ADHD. He is prescribed Ritalin. The husband says that he effectively delegates the administration of the medication to X himself which may or may not be reasonable for a 13 year old. Of equal concern, is the husband’s attitude and lack of willingness to communicate with the wife in respect of medical matters. I repeat that the wife sent the husband a message stating that she was enclosing the medication box and hence of the dosage of the medication to be administered to X. The husband said he did not receive the box. Significantly, having received the message he did not pursue this with the wife. This has resulted, at least for a period, in X taking different dosages of his medication in the husband’s home than he does in the wife’s home. Whilst there does not appear to have been any detriment on this occasion to X, such issues could be of considerable impact. Again, the husband’s demeanour and attitude in the witness box when confronted with such a potentially dangerous situation for his son was one of the abject disinterest.