REID & MOLLOY
[2017] FamCA 760
•26 September 2017
FAMILY COURT OF AUSTRALIA
| REID & MOLLOY | [2017] FamCA 760 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where mother seeks to relocate to New Zealand with children – Where father opposes relocation and seeks children spend equal time with parties in Australia – Where mother’s emotional and financial circumstances will improve if relocation permitted – Where mother’s parenting capacity will improve if relocation permitted – Where it is not reasonably practicable for father to relocate also - Where relationship between father and children will deteriorate if relocation permitted – Where children will likely suffer short term grief and loss if relocation permitted – Findings that not permitting relocation is in children’s best interests – Relocation not permitted - Allegations of family violence – Where order for equal shared parental responsibility in children’s best interests – Where order for equal time is not in children’s best interests – Where orders made for children to live with mother and spend significant and substantial time with father. FAMILY LAW – PROPERTY SETTLEMENT – Where values of property in dispute – Agreement between parties that contribution based entitlements are equal – Where amount of adjustment in relation to s90SF factors in dispute – Where father has higher earning capacity – Where mother has primary care of children – Where there is an adjustment of 20 per cent for section 90SF factors in favour of the mother – Where 70/30 division in favour of the mother is just and equitable. FAMILY LAW – SPOUSAL MAINTENANCE – Where parties in dispute about length of time and amount of such payments – Where father does not have capacity to pay amounts sought for by mother – Where father found to have capacity and it is just and equitable to pay mother spousal maintenance of $100 per week for 12 months. FAMILY LAW – REFERRAL OF PAPERS – Whether father’s unauthorised recordings of mother’s telephone conversations with the children ought to be referred – Where decision against referral of papers - Father ought to have had recourse to s128 of the Evidence Act 1995. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 90MT, 90SF, 90SP Evidence Act 1995 (Cth) ss 128, 140 |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 Malcolm & Munro (2011) FLC 93-460 Morgan & Miles (2007) FLC 93-343 T & N [2001] FMCAFam 222 Churchill & Raske [2014] FamCA 848 |
| APPLICANT: | Mr Reid |
| RESPONDENT: | Ms Molloy |
| FILE NUMBER: | TVC | 55 | of | 2016 |
| DATE DELIVERED: | 26 September 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 6, 7, 8 and 9 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Raeburn |
| SOLICITORS FOR THE APPLICANT: | Purcell Taylor Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Fellows |
| SOLICITORS FOR THE RESPONDENT: | Ruhl Family Law Centre |
Orders
THE COURT ORDERS ON A FINAL BASIS THAT:
Parental Responsibility:
The Father and the Mother have equal shared parental responsibility for the major long term issues of the children B (born … 2008); C (born … 2009) and D (born … 2012) (“the children”), including but not limited to:
(a) The children’s education (both current and future);
(b) The children’s religious and cultural upbringing;
(c) The children’s health;
(d) The children’s name;
(e)Any other changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision, and should they fail to come to a joint decision then they will attend Family Dispute Resolution.
Notwithstanding Order 1:
(a)The Mother shall be responsible for the daily care, welfare and development of the children whilst they are living with her; and
(b)The Father shall be responsible for the daily care, welfare and development of the children whilst they are living with him.
Communication between the parents
The parents will communicate with each other in relation to the children by email, with each parent to acknowledge and respond to the other parent’s email on a weekly basis.
In the event of an emergency or illness affecting the children or issue with changeover (i.e. flat tyre) the parents will communicate with each other by text message, with the other parent to acknowledge the text message within two (2) hours, and failing acknowledgement of the SMS, then a telephone call to ensure the non-resident parent has learnt of the emergency.
Living Arrangements
During the school term:
The children live with the Mother.
The children spend time with the Father:
(a)Week 1: For the child B from after school Wednesday or Thursday (dependent upon the evening that the child has football training) until after school (or 3.00pm) the next day school.
(b)Week 2: For all children from after school / day-care Thursday until after school or day-care (3.00pm Monday).
During the holiday periods:
That during the children’s school holiday period the operation of Order 7 is suspended and the children will spend time with the Mother and Father as follows:-
End of Term 1, 2 and 3:
(a)With the Father for the first half of the End of Term 1, 2 and 3 school holiday period in even numbered years plus an additional evening for the Father from the Mother’s time and the second half in odd numbered years plus an additional night at commencement of the holiday period, from the Mother’s time, to the Father’s half, so as to make up for the time referenced in 8(c)(iv) and (v), with the following to apply:-
(i)The school holiday period commences afterschool (3.00pm) on the Friday that is or follows the last day of school until 3.00pm on Sunday before the children return to school. Changeover is to occur at 3.00pm on the middle day but in even years the father will have an additional night being the middle day so changeover will occur on the day after the middle day in even years and the day before the middle day in odd years.
(ii)If the holiday period is an even number of days, the middle day is the day that is one half of the number of days in the period. It is noted that using this time period for at least the End of Term 2 and 3 school holiday period such period will run for 18 nights in accordance with the above, meaning that each parent will spend time with the children for 8 nights, however, subject to the additional night the Father is to receive.
(iii)If the holiday period is an odd number of days, the middle day is the day that is the next whole day following the half number days in the period.
(iv)Should Order 7(b) apply at this time and the children are with the mother then they will remain in the care of the mother for the Sunday evening. If the children are with the Father and Order 7(b) applies then they will remain in the care of the Father for the Sunday evening. If Order 7(b) does not apply then the children are to be returned to the Mother.
(b)With the Mother for the first half of the End of Term 1, 2 and 3 school holiday period in odd numbered years and the second half in even numbered years.
Christmas Holiday period:
(c) During the Christmas Holiday period as follows:-
Even years:
(i)With the Father from 3.00pm on the Friday that follows or is the last day of school until 5.00pm 26 December. This is to include Christmas Day. The nights in this period are to be calculated having regard to 8(c)(iii).
(ii)With the Mother from 5.00pm from the conclusion of Order 8(c)(i) until 5.00pm 21 evenings (3 weeks) later.
(iii)With the Father from the conclusion of 8(c)(ii) until 5.00pm on the day that will ensure that in calculation with the 8(c)(i) order the Father has a total of 21 nights with the children. Thereafter Order 7 applies.
Odd years:
(iv)With the Father from 3.00pm on the Friday that is or follows the last day of school until 5.00pm 22 December.
(v)With the Mother from 5.00pm 22 December until 5.00pm on the day that is 25 nights later.
(vi)With the Father from 5.00pm at the conclusion of Order 8(c)(v) until 3.00pm (or afterschool) on the Monday that is the first day of school or the Monday of the week that school commences.
Special occasions and other:
In the event:-
(a)That a parent who would otherwise have care of the children pursuant to Orders 6 to 8 is unavailable to care for the children for a period exceeding one (1) overnight, that parent will first contact the other parent and offer that the other parent the opportunity to care for the children for the relevant period, before making alternative arrangements for the children to be cared for the a third party (including partners or family members). There is to be no make-up time with the children for the time lost.
(b)That the Mother’s immediate family (meaning the Mother’s parents, siblings, and their children) in New Zealand are seriously ill (meaning life threatening or terminal illness), or should there be a wedding or funeral for the mother’s immediate family then the Mother is permitted to take the children to New Zealand for a period of up to seven evenings.
Notwithstanding Order 7 the children will always spend time with the mother and father as follows:
With the Mother:
(a)On Mother’s Day from 9:00am until 5:00pm;
(b)Noting the child D and Mother share the same birthday on … each year the mother will spend time with the children from 3:00pm until 7:00pm if they are not in her care, but if they are in her care the Father is to have all children from 3.00pm to 5.00pm;
(c)When the children are otherwise in the care of the father, the children will spend time with the mother on each child’s birthday (with the exception of D) from 3:00pm until 7:00pm, with all three children to attend.
(d)Providing the Mother is in the same location as the children on Christmas Day in even years the children will spend time with the Mother from 2.00pm to 7.00pm.
With the Father:
(e) On Father’s Day from 9:00am until 5:00pm;
(f) On the father’s birthday, from 3:00pm until 7:00pm;
(g)When the children are otherwise in the care of the mother, they will spend time with the father on each of the child’s birthday (with the exception of D) from 3:00pm until 7:00pm, with all three children to attend, however, in relation to D’s birthday Order 10(b) applies;
(h)Providing the Father is in the same location as the children on Christmas Day in odd years the children will spend time with the Mother from 2.00pm to 7.00pm.
Communication:
Noting the time the children spend with the Father in accordance with Orders 7 and 8, the children are able to communicate with the other parent as follows:-
(a)During the term: The Father is permitted to contact the children via telephone between 6.00pm and 6.30pm each Wednesday and in week one (1) Saturday.
(b)During the holidays: Each parent is permitted to telephone the children each Wednesday and Saturday evening when they are with the other parent between 6.00pm and 6.30pm.
(c)Other periods: When the children express a wish to communicate with the other parent, the parent in whose care they are at that time is to facilitate such communication.
Changeovers
Unless otherwise agreed between the parents in writing, changeovers for the children shall occur as follows:
(a) On school days, at the children’s school;
(b) On non-school days, at McDonalds E Town.
Telephone and Skype communication (or similar):
For the telephone and/or Skype (or similar) communication as provided for in these orders the following apply:
(a)The purpose of the call is for communication between the children and the other parent, and is not an opportunity for the parents to discuss adult issues;
(b)The parent receiving the call will ensure that the children are able to speak to the other parent in a quiet environment; and
(c)If the parent receiving the call misses the call, he/she will ensure that the children telephone the other parent by return as quickly as possible.
Exchange of Information
The parents shall:
(a)Not require the children to pass on messages or information to the other parent;
(b)Keep each other informed at all times as to their residential addresses and telephone numbers;
(c)Keep each other informed as to the names and address of any treating medical practitioners, healthcare practitioners who come into any contact with the children. This Order shall be an authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the children;
(d)Inform the other parent as soon as reasonably practicable of the welfare of the children and any injury or illness affecting the children that requires any medical or hospital attention;
(e)Keep the other parent informed of and supply the other parent with dates and times of the children’s sporting and extracurricular activities.
Education
Any educational institutions attended by the children are hereby authorised and empowered to provide to both parents any information about the children’s educational progress an school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children.
Liberty to attend the children’s events & activities
Both parents are at liberty to attend the children’s sporting and extracurricular activities regardless of which parent may be caring for the children at the time of the event. Noting the Protection Order the Father is prohibited from following or approaching the mother within 10m during children’s events and activities.
The parent who has the child in their care will take and collect the children to and from appointments or extracurricular activities. For medical emergencies both parents are at liberty to attend regardless of which parent may be caring for the children at the time of the event.
Privacy, Non-Denigration
During the time the children are with each parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent or the other parent’s partner or family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other parent or the other parent’s partner or family in the hearing or presence of the children.
Passports
That the parents do all acts and sign all documents necessary to obtain and renew the children’s Australian and New Zealand passports as and when may be necessary, with the parents to pay for the costs of same in equal shares.
The children’s passports be held by the mother.
In the event that the children are not able to relocate to New Zealand with the mother, and the mother wishes to travel with the children to New Zealand to spend time with her family during holidays or in accordance with 9(b) then the mother will provide the father with a copy of the children’s return flight itineraries to New Zealand within fourteen (14) days of the date of departure, unless for the purposes of a family emergency meaning serious or life threatening illness.
That each parent is not permitted without the written consent of the other to travel with the children outside of the Commonwealth of Australia for the purposes of an overseas holiday, during the children’s holiday time with them.
Unless otherwise agreed between the parents in writing, any such international travel with the children will occur only during the children’s holiday time with that parent pursuant to these Orders.
Unless otherwise agreed between the parents in writing, and if the parents have agreed for the duration of the children’s overseas holiday to exceed their usual time with that parent, the children will, upon their return, spend such additional time with the non-travelling parent as may be necessary to make up for extra time the children were away.
That if either parent intends to travel outside the Commonwealth of Australia with the children, the travelling parent will provide the other parent with written notice regarding the proposed travel at least one (1) month prior to the proposed date of travel.
At least two (2) weeks prior to the date of the overseas travel, the travelling parent will provide the other parent with the following:
(a)An itinerary including the children’s date of departure and return;
(b)Copies of the children’s flight, rail, bus or ship itinerary and tickets (if applicable);
(c)A list of the countries intended to be travelled to;
(d)A list of the places or addresses of where the children will visit and/or stay; and
(e)Contact telephone numbers for the children whilst away.
That if either parent travels outside the Commonwealth of Australia with the children, the travelling parent will arrange and facilitate telephone or Skype contact (or similar) between the children and the non-travelling parent, at a time to be agreed between the parents, no less frequently than on one occasion each week the children are outside Australia, with the travelling parent to initiate the call.
Domestic Travel
Unless otherwise agreed between the parents in writing, domestic travel with the children will occur only during the children’s time with that parent pursuant to these Orders.
That if either parent intends to travel with the children away from their usual place of residence and stay away for longer than two nights, the travelling parent will provide the other parent, at least two (2) days prior to the date of travel with the following:
(a)An itinerary including the children’s date of departure and return;
(b)Copies of the children’s flight, rail, bus or ship itinerary and tickets (if applicable);
(c)A list of the places or addresses of where the children will visit and/or stay; and
(d)Contact telephone numbers for the children whilst away.
Prohibition on both parties
That the Mother and Father are prohibited, and an injunction hereby issue, preventing them from consuming illicit drugs within 48 hours or during a period the children are in either parents care.
Spousal Maintenance
For 12 months from the date of these Orders and on the Friday of each week, the Applicant is to pay spouse maintenance, in the sum of $100.00 each week to the Respondent direct for the Applicant’s personal bank account.
That in relation to Order 31 the operation of the spouse maintenance Order will be suspended if:-
(a)The Respondent obtains employment or earns an income (not including child support or benefits from Centrelink) of equal to or more than $500.00 per week.
Property Orders
That the real property pool be divided as to 70 per cent to the Wife and 30 per cent to the Husband and that as part of the 70 per cent the Wife is to retain and the 30 per cent the Husband is to retain:-
(a)The Wife retain the home at F Street, Suburb G and the share loan attached and the Husband transfer his interest in and to the property to the Wife; and
(b)The Husband retain:-
(i)the home at H Street Suburb G and the loans attached to the property and the Wife to transfer her interest in and to the property to the Husband;
(ii)both blocks of land at 1 and 2 J Street, Suburb K; and
(iii)the business L Pty Ltd.
That in Order to give effect to Order 33 above:-
H Street:
(a)The Respondent transfer to the Applicant at his cost within two (2) calendar months of the date of these Orders, all of her right, title and interest in the property situated at H Street, Suburb G in the State of Queensland, more particularly described as Lot … on …, Title Reference ....
(b)Contemporaneously with the transfer referred to in Order 36(a) of these Orders the Applicant obtain finance to enable him to discharge the home loan in the joint names of the parties presently secured by mortgage no. …18 in favour of M Limited over the H Street, Suburb G property, and refinance the loan in his sole name.
(c)Pending the discharge of the home loan in the joint names of the parties, the Applicant shall pay the loan repayments as and when those repayments fall due.
(d)The Applicant shall indemnify and keep indemnified the Respondent with respect to the Payment of the loan, rates, insurances and other outgoings relating to the H Street, Suburb G property.
F Street:
(e)The Applicant transfer to the Respondent at her cost within two (2) calendar months of the date of these Orders, all of his right, title and interest in the property situated at F Street, Suburb G in the State of Queensland, more particularly described as Lot … on …, Title Reference ...
(f)Contemporaneously with the transfer referred to in Order 36(e) of these Orders the Respondent obtain finance to enable her to discharge the investment loan in the joint names of the parties presently secured by mortgage no. …88 in favour of M Limited over the F Street, Suburb G property, and refinance the loan in her sole name.
(g)Pending the discharge of the investment loan in the joint names of the parties, the Respondent shall pay the loan repayments as and when those repayments fall due.
(h)The Respondent shall indemnify and keep indemnified the Applicant with respect to the payment of the loan, rates, insurances and other outgoings relating to the F Street, Suburb G property.
1 and 2 J Street:
(i)The Respondent transfer to the Applicant at his cost within two (2) calendar months of the date of these Orders, all of her right, title and interest in the properties situated at 1 and 2 J Street, Suburb K in the State of Queensland, more particularly described as Lots … and … on …, Title References … and ...
(j)Contemporaneously with the transfer referred to in Order 36(i) of these Orders, the Applicant obtain finance to enable him to discharge the loan in the joint names of the parties presently secured by mortgages no. … and … in favour of M Limited over 1 and 2 J Street, Suburb K property, and refinance the loans into his sole name.
(k)Pending the discharge of the home loans in the joint names of the parties, the Applicant shall pay the loan repayments as and when those repayments fall due.
(l)The Applicant shall indemnify and keep indemnified the Respondent with respect to the payment of the loan, rates, insurances and other outgoings relating to 1 and 2 J Street, Suburb K property.
(m)In the event that the Respondent is unable to discharge the loan in the joint names of the parties, over 1 and 2 J Street, Suburb K property, and refinance the loans into his sole name, the parties do all acts and sign all documents necessary to effect a sale by private treaty of the properties for the best price reasonably obtainable in the following manner:
(i)The parties will list the real properties for sale with real estate agents N Pty Ltd at $69,000.00 per property or such other price as the parties agree upon in writing;
(ii)The Husband pay any and all advertising costs;
(iii)In the event that the real properties fail to sell within six (6) calendar months of the date of this Order, the parties will list the real property for sale by public auction with the real estate agent;
(iv)The reserve price for the purposes of the auction will be $60,000.00 per property or such other price as recommended by the real estate agent and agreed upon between the parties in writing;
(v)In the event that the bidding at auction does not reach the reserve price, the parties must negotiate with the highest bidders or any interested person and effect a sale of the real properties at not more than 5 per cent below the reserve price; and
(vi)If the real property fails to sell at the first public auction, then the parties shall do all things necessary to procure a second, and if necessary, further public auctions for 1 and 2 J Street upon like terms as set out in the preceding sub-paragraph provided that at each subsequent action for the properties, the parties shall instruct their real estate agent and/or auctioneer to reduce the reserve price by a further 5 per cent compared with the price referred to in Order 36(m)(iv) of this Order, or such other reserve price as may be recommended by the real estate agent and agreed between the parties in writing.
(n)The parties each co-operate in every way with the real estate agent including (without limiting the generality of the foregoing):
(i)Allowing the inspection of 1 and 2 J Street at all reasonable times requested by the real estate agent;
(ii)Doing and saying nothing to hinder or prevent a sale being effected; and
(iii)Ensuring the properties are in a neat and tidy condition at the time of inspection by the real estate agent and prospective purchasers.
(o) Pending the completion of the sale of 1 and 2 J Street:
(i)The Applicant shall pay the loan repayments as and when those repayments fall due; and
(ii)The Applicant shall pay the insurance, rates, taxes and utilities as and when those repayments fall due.
(p)On the settlement of the sale of 1 and 2 J Street the proceeds of sale be paid in the following manner and priority:
(i)All costs and expenses of sale included associated legal costs and disbursements, agent commission, valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by the parties);
(ii)The amounts required to discharge the loans in favour of M Limited over 1 and 2 J Street;
(iii)The amounts required to pay any outstanding rates and taxes relating to 1 and 2 J Street;
(iv)In the event there are any remaining net proceeds of sale, the net proceeds will be retained by the Applicant to the exclusion of the Respondent; and
(v)In the event there is a short fall debt in relation to the loan in joint names of the parties for 1 and 2 J Street, Suburb K properties, the Applicant will assume sole responsibility for the shortfall debt and indemnify and keep indemnified the Respondent with respect to the repayment of the debt.
Cash Payment
That within twelve months of the date of the Orders (noting the spouse maintenance order sought) the Applicant pay to the Respondent the sum of seventy nine thousand, and sixty six dollars and forty five cents ($61,383) into the Respondents nominated bank account.,
L Pty Ltd
That within two (2) calendar months of the date of these Orders, the parties do all acts and sign all documents necessary to dissolve the Molloy & Reid partnership with ABN ...
The Applicant retain to the exclusion of the Respondent the Reid electrical services business with ABN … currently trading as “L Pty Ltd” including all tools, plant and equipment, stock in trade and vehicles related to the business.
The Applicant assumes the sole liability for the and indemnifies, and keeps indemnified, the Respondent with respect to the payment of all monies and liabilities (including equipment finance) due and owing, or which may become due and owing from time to time, relating to the Reid electrical services business with ABN … currently trading as “L Pty Ltd”.
Joint bank account
The Respondent is to retain the balance of funds in the M home loan offset account in the joint names of the parties.
Other property
The Respondent retain to the exclusion of the Applicant, the motor vehicle with registration no. ... The Applicant sign any and all such documents to transfer his interest in the vehicle to the Respondent.
Except as otherwise provided for in this Order, the Applicant, to the exclusion of the Respondent, retain and be declared the owner of:
(a)All real estate held in his name;
(b)The benefit and ownership of all policies of superannuation with the exception of that split to the Respondent (including death benefits attached thereto) and life insurance (including any shares issues or to be issued pursuant to any policy) held in his name;
(c)Redundancy payments, long service leave and all other benefits to which he is or has been entitled by virtue of any employment;
(d)All monies and accounts held by the Applicant at the date of the Order; and
(e)All motor vehicles, chattels, household furniture and contents and items of personal property presently in the possession of the Applicant.
Except as otherwise provided for in this Order, the Respondent, to the exclusion of the Applicant, retain and be declared the owner of:
(a)All real estate held in her name;
(b)The benefit and ownership of all policies of superannuation (including death benefits attached thereto) and life insurance (including any shares issued or to be issued pursuant to any policy) held in her name;
(c)Redundancy payments, long service leave and all other benefits to which she is or has been entitled by virtue of any employment;
(d)All monies and accounts in the Respondents name at the date of the Order; and
(e)All motor vehicles, chattels, household furniture and contents and items of personal property presently in the possession of the Respondent.
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.
That the parties do all acts and sign all documents necessary to give effect to this Order and should a party refuse or neglect to sign any documents or act in accordance with this Order within fourteen (14) days of a request to do so:
(a)A Registrar or Deputy Registrar of the Family Court of Australia or the Federal Circuit Court of Australia be appointed pursuant to Section 106A of the Family Law Act 1975 (as amended), to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders; and
(b)An Affidavit of the solicitor for the party seeking to give effect to this Order shall be sufficient proof of the default of the other party to do the act or sign the document necessary to give effect to the Orders.
Superannuation
That Orders 45 to 51 (inclusive) of these Orders are binding on the AMP Superannuation Saving Trust as Trustee (“the Trustee”) of the applicant’s AMP Superannuation Fund with account number … (“the AMP Superannuation Fund”).
That the court allocate pursuant to section 90MT(4) of the Family Law Act 1975 (“the Act”), a base amount of $79,400 to the Respondent out of the Applicant’s interest in the AMP Superannuation Fund.
That pursuant to 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the applicant’s interest in the AMP Superannuation Fund, the respondent shall be entitled to be paid an amount calculated in accordance with Pt6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount referred to in Order 48 and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
That Order 47 has effect from the operative time.
That the operative time for the purposes of Order 47 of these Orders is four (4) business days after the date of service of the sealed final Orders upon the Trustee.
That until such time as the superannuation split to the applicant pursuant to these Orders can be rolled over into a separate account for the applicant:
(a)The applicant provide to the respondent no less that twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the AMP Superannuation Fund.
(b)The applicant can direct and authorise the Trustee to communicate with the respondent and/or any other person authorised by her in writing:
(i)To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the AMP Superannuation Fund; and
(ii)To provide the respondent and/or her authorised representative with a copy of any notice of any application or request by the applicant which seeks release of entitlements in the AMP Superannuation Fund in so far as that release may affect the respondent’s entitlement in the AMP Superannuation Fund pursuant to these Orders.
(c)That applicant by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the respondent, her heirs, executors, administrators or nominees from receiving the benefits in the AMP Superannuation Fund to which she is entitled pursuant to these Orders.
In the event that the superannuation split for the respondent pursuant to these Orders can be rolled over into a separate account to the respondent, then each of the parties is to do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
Conclusion of proceedings
That otherwise all extant applications be dismissed and the matter removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reid & Molloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC55/2016
| Mr Reid |
Applicant
And
| Ms Molloy |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This judgment arises from the trial of parenting and financial proceedings between Mr Reid (“the father”) and Ms Molloy (“the mother”). As to the parenting dispute, by his further Amended Initiating Application filed 13 April 2017, the father sought orders for equal shared parental responsibility in relation to the major long term parenting issues for the parties three children, B (born in 2008 and hence presently 9 years of age) C (born in 2009 and hence presently 8 years of age) and D (born in 2012, and hence presently 5 years of age) (“the children”). He further proposed that the children live with the parents on an equal shared care basis, spending alternate weeks with each of them.
For her part, in her amended Response filed 15 May 2017, the mother also sought equal shared parental responsibility for the children, but proposed that the children live with her in New Zealand and spend blocks of time with the father in both Australia and New Zealand during school holidays. In the event that she were not permitted to relocate with the children to New Zealand, she proposed that the children live with her, with the younger two children spending four consecutive nights with the father each fortnight, but for B to spend an additional night with the father each fortnight.
If the mother were permitted to relocate to New Zealand, then the father sought that the children spend block holiday time with him in Australia and New Zealand. He did not positively seek orders to cover the eventuality that he also relocated to New Zealand, but during the course of submissions, the parties indicated that in the event that occurred, then the appropriate order would be that the parties attend Family Dispute Resolution counselling.
As to the parties’ property dispute, it is relatively slender. Whilst they are agreed as to the identity and value of most of the items of property in the pool, there was some slender disagreement as to the value of some items. Further, the parties are agreed that there should be a division of property, and that their contribution based entitlements are respectively 50 per cent each. However they are not in agreement as to the weight which should be given to s 90SF factors; the father contends for a 6.5 per cent weighing in the mother’s favour, reflective of his greater earning capacity; the mother contended for a 20 per cent adjustment in her favour, reflective of the same matter.
Finally the parties’ dispute in relation to spouse maintenance related to both the length of time during which spouse maintenance should be paid, and the amount of such payments. For his part the father contended that there should be no order for spouse maintenance; for the mother’s part, she argued that in the event she were permitted to relocate to New Zealand, there should be spousal maintenance for a period of three months at $1,000.00 per month; in the event that she were not permitted to relocate, then she asserted that the same amount should be paid, but for a period of 12 months.
Finally, by virtue of some evidence given by the father in his affidavit filed in response to the mother’s trial affidavit, the mother contended that I should consider whether or not to refer certain matters in that evidence to the relevant prosecutorial authority.
BACKGROUND FACTS
The father
The father was born in O Town in 1979, and hence is presently 38 years of age. Save as discussed hereafter, he has lived in O Town for most of his life. After completing grade 12 he completed an apprenticeship in 2001, and thereafter worked in that occupation until in 2003, he travelled overseas. He was 24 years of age when he first met the mother.
The mother
The mother was born in 1975 and hence is presently 41 years of age. She was born in New Zealand and her childhood was spent on the family farm at P Town in the North Island. She completed her schooling in New Zealand, and then attended university. She completed a degree and subsequently qualified in a professional occupation. She then worked for Company Q in New Zealand, but in March 2003 moved to the UK to work. She was 27 years of age when, having travelled overseas she met the father in 2003.
The relationship
The parties initially remained in contact with each other after their meeting and met up again in the UK in the latter part of 2003. They commenced living together on 1 June 2004 in the UK, but moved to Country R in October 2005. In October 2006 they returned to live in O Town. There is some dispute as to whether their intention was to remain there only for two years, and then to move to New Zealand, or whether the move to O Town was indefinite. Whatever be the case, after they moved to O Town, both parties initially obtained employment with Company S.
Within a few months of moving to O Town, the parties purchased the property at F Street, Suburb G, where, at the time of trial, the mother still resided.
The parties’ first child, B, was born in 2008. It seems as though the mother had by then ceased working, and has not resumed full-time work thereafter.
The parties’ second child, C, was born in 2009.
In 2010 the father ceased employment at Company S, and commenced work as a tradesman at various remote locations on a drive-in, drive-out basis.
In 2011 the parties commenced a called L Pty Ltd. That business has thereafter been the parties’ principal source of income, and the father continues to run the business.
The parties’ third child, D was born in 2012. I will need to discuss the circumstances surrounding her birth in a little more detail in due course.
The parties had a period of separation in July 2013. For that time, the father moved out of the F Street property, and the maternal grandmother travelled from New Zealand to O Town to assist the mother. The separation lasted for approximately 6 weeks.
During that separation the parties exchanged letters which were in evidence before me. I will consider those in a little detail later.
After the parties reconciled, they sought professional assistance from counsellors and the like to help them to improve their relationship.
On 29 April 2014 the parties purchased their property at H Street Suburb G, in which, at the time of trial, the father resided. Then on 29 May 2015 they acquired two vacant blocks of land at Suburb K in the northern suburbs of O Town.
Ultimately the parties’ recourse to counselling was unable to save their relationship, and they finally separated on 23 November 2015.
Post-separation
Initially the parties were able to negotiate the father spending some time with the children, until the mother travelled with them to New Zealand to spend a month of holidays there commencing on Christmas Day 2015. Although they continued to negotiate during that holiday period, they were unable to agree any interim arrangements for the children. The father then commenced these proceedings on 21 January 2016, and on 14 April of that year, consequent upon an interim hearing, Judge Coker of the Federal Circuit Court ordered that the children live with the mother, but spend time with the father each alternate weekend and for one overnight in the other week. Those were the orders which prevailed at the time of the trial before me.
After some initial difficulty, the parties were able to agree that the mother would occupy the F Street property, and the father would occupy the H Street property.
Current position
As at the time of the hearing before me, each of the parties remained living in O Town in their respective houses. The children are attending local schools or prep, but appear to be experiencing some behavioural problems which are said to likely arise from their exposure to parental conflict. I will discuss those in due course.
The father has not re-partnered and remains working full time in L Pty Ltd. It appears to be a profitable business, although its fortunes, no doubt, fluctuate from time to time. The mother has not returned to full-time employment, but does some book keeping work which brings in relatively modest amounts of money. She has not formally re-partnered, but in February of this year commenced a relationship with a man by the name of Mr T. That said, the mother did not believe that the relationship was likely to have a long term future.
PARENTING PROCEEDINGS
The Issues
With the assistance of the parties during the Trial Management Hearing conducted on 14 February 2017, I identified the following as the issues in this proceeding, in that their determination is likely to substantially impact upon the outcome of the parenting proceedings:
1.What is the nature of the relationship between each parent and the children.
2.What risk, if any, does each parent pose to the children, and what, if any, means are available to mitigate it.
3.Would the children benefit from a meaningful relationship with each parent, and, if so, how might it best be facilitated.
4.Is it reasonably practicable for the mother to remain living in O Town, and if so, what effect would it have upon:
(a)Her emotional and financial circumstances; and
(b)Her parenting capacity.
5.What benefits would relocating to New Zealand have for the mother, particularly in relation to:
(a)Her financial circumstances;
(b)Her family support;
(c)Her parenting capacity.
6.Is it reasonably practicable for the father to relocate to New Zealand, and if so, what effect would doing so have upon:
(a)His emotional and financial circumstances;
(b)His parenting capacity.
7.If the mother and children relocated to New Zealand, but the father did not, would the mother facilitate a meaningful relationship between the father and the children.
8.Is it reasonably practicable for the father to spend time with the children in New Zealand.
9.What is the likely effect upon the children of relocating to live in New Zealand if the father did not also do so.
10.What is the likely effect on the children if the mother relocates to New Zealand but the father and children do not.
11.Is the parties’ communication adequate to support equal shared parental responsibility.
Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residual s 60CC factors, I shall address those issues and then consider the appropriate parenting orders in this case.
Relevant statutory provisions and legal principles
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Relocation
The application of these provisions I have just canvassed in the context of relocation cases has been discussed by many authorities. In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:
79. “In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Nature of relationship between parents and the children
Ultimately it was not in dispute that each of the children have a good relationship with each of their parents and vice versa. For her part, the mother opined that prior to separation, the father’s relationship with the children was far more distant, but it is unnecessary to resolve whether that is true or not. The simple fact is that the children now enjoy spending time with each of their parents, and derive different benefits from each of them. That said, B is particularly benefiting from spending time with his father, because they share an interest in rugby league football.
Risk posed by parents and means of mitigation
Neither party contended that the other posed an unacceptable risk of harm to the children. However the Family Report writer, Ms V, was concerned that the children have been exposed to parental conflict, and neither parent seriously contended to the contrary. At paragraph 137 of the Family Report she opined:
Children adjust better to parental separation when the level of ongoing conflict between parents is kept low, competent parenting from both parents is maintained, and other important relationships with friends and family continue uninterrupted. Interparental conflict, in particular, may be the key determinant of poor child outcomes after separation. Repeated exposure to parental conflict increases children’s vulnerability to a range of psychological problems by undermining their emotional security. Children’s vulnerability to parental conflict takes many forms, including depression, anxiety, aggression, less than optimal relationships with peers, academic difficulties and sleep problems. Children manifest higher symptoms of anxiety and depression when parents speak disparagingly of the other parent in front of the children. In addition, parents regularly contradicting each other’s decisions in the child’s presence might foster loyalty conflicts and identity confusion in children. Exposure to high levels of parental conflict has been shown to increase the risk of children developing disruptive behaviour problems. When children experience parental conflict during their preschool years, they are at risk of developing Oppositional Defiant Disorder (ODD) and ADHD.
Capacity
Turning then to the father’s capacity to meet the mother’s needs, his financial statement shows he spends $389 per week more than he earns. But counsel for the mother in cross-examination established that some of the claimed expenses, for instance motor vehicle costs, were in fact paid for by the electrical business, and that another $511 of expenses related to borrowings for legal fees, including $240 in non-commercial loans. Likewise a further $57, by way of a share investment loan repayment, was no longer payable.
Counsel therefore contended that a total of $708 was claimed, but should not be in fact recognised for the purposes of spousal maintenance, with the result that in fact the father has capacity of about $320 per week.
However it seems to me that although the personal, non-commercial loans (which are only required to be repaid within 2 years) should be disregarded, it is less easy to disregard the Citibank loan, with, it seems, repayments of $271 per week. So viewed, the father’s capacity is only $50 per week, although mathematical precision is, of course, not really achievable. Ultimately I am satisfied that the father does have some capacity to pay spouse maintenance, and I assess that, using a broad brush, at $100 per week, accepting that his business’s fortunes may fluctuate from month to month.
Evaluation
It needs to be borne in mind that, under the orders which I propose to make in relation to property, there will be limited cash reserves available to the mother, and she will continue to need to have income whilst she restructures her life to take into account the effect of the parenting and property orders which I will make. I am satisfied that the adjustment period is likely to be something in the order of 12 months. On the other hand I am satisfied that the father is reasonably able to support the mother in the sum of $100 per week, and that the mother is unable to adequately support herself by reason of both caring for the parties children, and having little recent employment history, and hence some reduced employability. Weighing the matters listed in s 90SF(3), I am satisfied that it is proper to order spouse maintenance under s 90SE in the sum of $100 per week for 12 months.
REFERRAL OF PAPERS
Counsel for the mother raised whether the Court should refer the papers to the Queensland or Commonwealth Director of Public Prosecutions for consideration of whether the father ought be prosecuted for his conceded unauthorised recordings of the mother’s telephone conversations with the children. However I decline to do so, for several reasons. Firstly, the father did not at the time realise what he was doing was unlawful, or indeed, even improper. Secondly, it seems he was able to freely download the App which effected the recording. Thirdly, it does not seem that, other than in these proceedings, the father has listened to the recordings, or otherwise used them. Finally, properly advised, the father ought to have had recourse to the procedure available under s128 of the Evidence Act 1995 (Cth) before filing the affidavit in which he admitted the conduct: see, for instance Churchill & Raske [2014] FamCA 848. Weighing those matters tells against a referral of the papers in this case.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 September 2017.
Associate:
Date: 26 September 2017
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