SALWAY & FEGLEY
[2017] FamCA 410
•9 June 2017
FAMILY COURT OF AUSTRALIA
| SALWAY & FEGLEY | [2017] FamCA 410 |
| FAMILY LAW – CHILDREN – Where Orders made for the eldest son to live with the father and the youngest child to live with the mother – Where Orders made for the parties to have sole parental responsibility for the child who lives with them – Where Orders made for the eldest son to spend time with the mother in accordance with the child’s wishes – Where the Court finds that there is a lack of evidence to the contentions made by both the mother and the father against the other that the children are at risk of physical harm –Where the Court finds that the children are at risk of ongoing psychological harm due to the ongoing conflict between the mother and father – Where current parenting arrangements are varied to reduce the interaction between the parties. FAMILY LAW – PROPERTY – Where the parties were married for approximately eighteen years and have three children – Where the Court finds that in the context of a long marriage the parties’ financial contributions are equal – Where the Court finds that non-financial contributions by the wife favour an adjustment to her of 5 per cent –Where the Court finds that section 75(2) factors justify an additional adjustment of 10 per cent in favour of the wife – Where no superannuation splitting order made. |
| Evidence Act 1995 (Cth) s 140 Bevan & Bevan (2013) FLC 93-545 |
| APPLICANT: | Ms Salway |
| RESPONDENT: | Mr Fegley |
| INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
| FILE NUMBER: | SYC | 6044 | of | 2013 |
| DATE DELIVERED: | 9 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 27 & 28 February 2017 and 1, 2, 3 and 6 March 2017. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fowler |
| SOLICITOR FOR THE APPLICANT: | Crawford Ryan Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | H. A. Miedzinski Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rebehy Adams & Partners Lawyers |
Orders
Parenting
All previous Orders in relation to the children, C born … 2002 (“C”) and D born … 2008 (“D”), are discharged.
The father is to have sole parental responsibility for the child C.
The mother is to have sole parental responsibility for the child D.
Prior to either parent exercising sole parental responsibility in relation to Order 2 or Order 3 above:
(a)The other parent shall be notified of the decision to be made for the child at least 14 days before making the decision, unless in the case of emergency when notification shall be provided as soon as practicable.
(b)The parent exercising the sole parental responsibility shall consider any views expressed by the other parent before making the decision.
The child C is to live with the father.
The child D is to live with the mother.
The child C is to spend time with the mother in accordance with his wishes.
The father is to encourage the child C to spend time with the mother as follows:
(a)On each alternate weekend from 10am until 6pm Sunday on the weekend that D is living with the mother.
(b)At all other times as requested by the child C.
The child D is to spend time with the father as follows:
(a)During school terms:
(a) Each alternate weekend from after school Thursday until before school Tuesday. This time shall recommence on the first Thursday after each school holiday period.
(b)For the NSW school holidays at the end of Term 1, Term 2 and Term 3 as agreed between the parties and failing agreement:
(a) In 2017, and each alternate year thereafter, from after school on the last day of school until 5.00pm on the middle Saturday.
(b) In 2018, and each alternate year thereafter, from 5.00pm on the middle Saturday until before school on the first day of the next school term.
(c)For the NSW Christmas school holidays, as agreed between the parties and failing agreement:
(a) In 2017/18, and each alternate year thereafter:
1.From 12 noon Christmas Eve until 12 noon Christmas Day; and
2.From 9.00am on 5 January until 5.00pm on 26 January
(b) In 2018/19, and each alternate year thereafter:
1.From 12 noon Christmas Day until 12 noon Boxing Day; and,
2.From 9.00am on 5 January until 5.00pm 26 January
(d)On the Father’s Day weekend from 9.00am on Father’s Day until before school Monday.
(e)At all other times as agreed between the parties.
Notwithstanding Order 9 above, D is to remain living with the mother as follows:
(a)On the Mother’s Day weekend from 9.00am on Mother’s Day until before school Monday.
(b)From 12 noon Christmas Day until 12 noon Boxing Day in 2017 and each alternate year thereafter.
(c)From 12 noon Christmas Eve until 12 noon Christmas Day in 2018 and each alternate year thereafter.
(d)At all other times as agreed between the parties.
For the purpose of changeover on non-school days, the parties shall meet at the McDonalds Family Restaurant at Suburb P.
The father is to notify the mother at least 14 days prior of any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
The mother is to notify the father at least 14 days prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
Each parent is to keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
Each parent is to make arrangements at the school that the child in their respective care attends to ensure that both parents can obtain the following information and documents at their own cost:
(a)A copy of all school reports for the children.
(b)Notification for school activities that they may decide to attend.
(c)Notification of parent/teacher nights and the school is informed that it is both parents’ desire to attend such events.
(d)In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
In the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable.
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
Each party is restrained from changing the children’s current schools without the written consent of the other party, save for D’s attendance at High School from Year 7.
Each party is restrained from:
(a) Making critical or derogatory remarks in relation to the other parent, or in relation to a member of the other parent’s family or household, in the presence or hearing of a child and that each party is to do all things necessary to ensure that no third party does so.
(b) Discussing any Court proceedings between the parties, or any allegations made by a party about the other party or a member of the other party’s family, in the presence or hearing of the children, or either of them, and that each party do all things necessary to ensure that no third party does so.
Property
Within seven (7) days of the date of these Orders the parties do all things and sign all documents necessary to cause payment to the wife of a sum of $34,876.80 and payment to the husband of a sum of $35,606.20 from the controlled monies account held by Solicitor, Peter Williams.
Within twenty-eight (28) days of the date of these Orders the husband is to do all things and sign all documents necessary to cause the NIB shares to be sold.
The husband is to appoint a qualified stock broker to assist in the sale of the NIB shares and is to do all things necessary, as directed and recommended by the stock broker, to facilitate the sale of the NIB shares, including considering any advice given by the said broker.
Upon compliance with Order 20 above, the net proceeds of sale of the NIB shares is to be distributed 65 per cent to the wife and 35 per cent to the husband.
Unless it has already occurred, within seven (7) days of the date of these Orders, the wife is to cause the sporting memorabilia to be returned to the husband.
Upon the husband’s production of the receipt for payment of the Origin Energy invoice in the sum of $2,746, the wife cause payment to be made to the husband in the sum of $961.10.
Other than as provided for in these Orders, each party be declared to be the sole owner to the exclusion of the other to the whole of their right, title and interest in all items of property of whatsoever nature and wherever situated held by them including superannuation, bank accounts, real property, money at bank, shares and the like.
ICL Costs
The costs of the Independent Children’s Lawyer are to be paid equally by the husband and wife.
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 Salway & Fegley 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 SYDNEY |
FILE NUMBER: SYC 6044 OF 2013
| Ms Salway |
Applicant
And
| Mr Fegley |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns competing applications for parenting and property orders between the applicant Ms Salway, (“the mother”), and the respondent, Mr Fegley (“the father”), arising from the breakdown of the parties’ marriage of approximately 19 years. During the course of the marriage the parties had three children. The eldest child, who is the parties’ only daughter, is now over the age of 18 and these proceedings do not directly concern her. The parties have each proposed competing orders in respect to the parenting arrangements for their two sons; C who was born in 2002 and is now 14 years of age, and D who was born in 2008 and is now eight years of age.
Unfortunately, the circumstances of the breakdown of the parties’ relationship and the conduct of the parties immediately prior to and subsequent to their separation in September 2013 has resulted in a situation of high conflict between them. Regrettably, the parties’ children have been caught in the middle of that conflict. One consequence is that the parties’ oldest son, C, has become estranged from his mother.
Since 2015 the oldest son C has lived with his father and has only in the last 12 months commenced spending limited time with his mother. Both parties are in agreement that, given his age and the nature of his relationship with his mother, C should not be forced to spend time with the mother. Accordingly, the primary focus of the parenting proceedings concerned the parenting arrangements for the youngest son D.
As result of the evidence of the family consultant and helpful submissions of the Independent Children’s Lawyer (“ICL”), the parties largely reached agreement that D should live with his mother and spend time with his father in one block period each fortnight. The primary issue became whether that block period should be four days or five days.
The parties have not been well served by this litigation. The father’s cost disclosure (exhibit H4) indicates that he has incurred legal costs in the order of $273,490. The mother’s cost disclosure notice (exhibit W4) indicates that she has incurred legal costs in the order of $178,117. This is in the context where, as noted, the issues in respect to parenting are relatively narrow and the dispute in respect to property concerns a total pool of $419,152 of which $332,638 is made up by Superannuation. In other words, the parties have incurred legal fees totalling $451,607 which exceeds the net assets available for distribution. The parties and their legal advisors might reflect upon this outcome.
Competing applications
Initial Orders proposed by the mother
The Minute of Order proposed by the Mother was as follows:
Parenting
1. That all previous parenting order be discharged.
2. That the mother have sole parental responsibility for the child, [D] born … 2008.
3. That the father have sole parental responsibility for the child, [C], born … 2002.
4. That the child [D] live with the mother.
5. That the child [C] live with the father.
6. That the child [D] spend time with the father during school term, each alternate weekend from after school Friday to before school Monday with the weekends to continue in accordance with the established pattern and to be calculated as if uninterrupted by school holiday periods or other interruptions of time.
7. That the child [D] spend time with the father as follows:
7.1for one half of the NSW school holiday periods being for the first half of the holidays in each year ending with an even number and for the second half in each year ending with an odd number.
7.2On the father’s birthday, in the event that they are not already spending time with the father:-
7.2.1from after school until before school the next morning, if it is a school day;
7.2.2from after school until 10.00am the next day if the next day is a non-school day; and
7.2.3from 5.00pm to 8.00pm if it is a non-school day.
7.3From 12.00 noon on Christmas Eve until 11.00am on Christmas Day in each year ending in an odd number and from 11.00am on Christmas Day until 12.00 noon on 26 December in each year ending in an even year.
7.4On father’s day, in the event that they are not already doing so, from 9.00am to 5.00pm.
7.5 From the conclusion of school on [D’s] birthday until the commencement of school the following morning where [D’s] birthday falls on a school day and for a period of three hours from 5.00pm until 8.00pm if the birthday falls on a day that is not a school day and should [D’s] birthday fall within the school holidays the time provided within this Order shall be suspended.
8. That, subject to order 9, the child [C] spend time with the mother as follows:-
8.1During school terms on each alternate weekend from the conclusion of school Friday until the recommencement of school on Monday on the weekend that [D] is living with his mother.
8.2For one half of each of the NSW school holiday periods being for the first half of the holidays in each year ending with an odd number and for the second half in each year ending with an even number.
8.3On the mother’s birthday, in the event that they are not already spending time with the mother:-
8.3.1from after school until before school the next morning, if it is a school day;
8.3.2from after school until 10.00am the next day of the next day is a non-school day; and
8.3.3from 5.00pm to 8.00pm if it is a non-school day.
8.4From 12.00 noon on Christmas Eve until 11.00am on Christmas Day in each year ending in an even number and from 11.00am on Christmas Day until 12.00 noon on 26 December in each year ending in an odd number.
8.5On mother’s day, in the event that the children are not already doing so, from 9.00am to 5.00pm.
8.6From the conclusion of school on [C’s] birthday until the commencement of school the following morning where [C’s] birthday falls on a school day and for a period of three hours from 5.00pm until 8.00pm if the birthday falls on a day that is not a school day and should [C’s] birthday fall within the school holidays the time provided within this Order shall be suspended.
9. That the time [C] spends with the mother be subject to [C’s] wishes provided that the father uses his best endeavours to encourage and facilitate [C] spending the time with the mother.
10. For the purpose of these Orders and unless the children are attending school the mother is to collect the child or children with whom she is to commencing [sic] spending time with from the father at the McDonalds Family Restaurant at [Suburb P] and the father is to collect the child or children with whom he is to commencing [sic] spending time with from the mother at the McDonalds Family Restaurant at [Suburb K].
11. For the purposes of Order 9.1 and 9.2 above:-
11.1the school holidays are deemed to commence at 9.00am on the date immediately after the last day that students are required to attend school and are deemed to conclude at 5.00pm on the day immediately before the children are required to attend school at the commencement of the next school term;
11.2the mid-point of the school holidays is deemed to be 1.00pm on the second Saturday of the school holidays.
12. In the event that either the mother’s or father’s weekend falls on a long weekend including a Monday then time shall be extended to before school Tuesday. Alternatively, in the event that either the mother’s or father’s weekend falls on a long weekend including a Friday then time shall commence after school on Thursday.
13. That each parent is to ensure that at the conclusion of time with the other parent that all clothing which was provided with the child at the commencement of time is returned with the child.
14. The parents will both be entitled to attend all events involving the children including
14.1Sporting fixtures
14.2Extra curricula activities that allow for parental attendance
14.3School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.
15. That the mother be restrained from enrolling the child [C] in any sporting or extra curricular activity without the permission of the father in writing.
16. That the father be restrained from enrolling the child [D] [in] sporting or extra curricular activity without the permission of the mother in writing.
17. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comment about the other party in the presence or hearing of the child.
18. That within 14 days of these orders and within 14 days of [C’s] subsequent enrolment at any school the father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the [child] [C] may attend from time to time, that school forward directly to the mother copies of all of [C’s] school reports and merit cards, any written material pertaining to [C’s] academic and extra curricular activities.
19. That within 14 days of these orders and within 14 days of [D’s] subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school [D] may attend from time to time, that school forward directly to the father copies of all of [D’s] school reports and merit cards, any written material pertaining to [D’s] academic and extra-curricular activities.
20. That the father is hereby restrained without admission from:
20.1Assaulting, molesting, harassing, threatening or otherwise interfering with the mother;
20.2Engaging in any other conduct that intimidates the wife;
20.3Stalking the wife;
20.4Entering the premises the wife may from time to time reside or work.
21. Each parent is [restrained] from using any form of physical discipline upon the children or using offensive language in their presence and nor shall they permit or allow any third party to do so.
22. The father and mother shall do all things to authorise the schools that the children may attend from time to time to provide information and copies of documents including school reports, newsletters, notices and school photo order forms to the other parent and to enable the other parent to speak to the school concerning the academic and sporting progress of the children.
23. That the parents shall do all such things to ensure that the children attend school punctually at all times that the school is open for the child’s instruction save and except for medical emergencies or illness of the child.
24. That the parents shall do all such things to ensure that each child completes their homework requirements as directed by the school they are currently enrolled in.
25. That the mother and father shall ensure that the other is kept informed of:
25.1Any medical problems or illnesses suffered by the children whilst in their respective care;
25.2Any medication that has been prescribed for the children;
25.3Any social, school or religious function which the children are to attend.
26. That the mother and father shall administer the children any medication that has been prescribed for them by a medical practitioner for any medical problems or illnesses.
27. The for the purposes of communicating information between the parties, the mother and father shall:
27.1Communicate by text messages matters of an urgent nature and otherwise;
27.2Communicate by email about the day to day matters including arrangements for each party to spend time with the children;
and the parties shall reply in a timely manner to such messages.
28. That both the mother and father shall notify the other of:
28.1Any appointments with any treating Doctor or Specialist Medical Consultant relating to the children; and
28.2Authorise the other parent to discuss with such treating Doctor or Specialist Medical Consultant.
29. That the mother and father shall ensure that the other is notified as soon as practicable if while in their respective care:
29.1A child or children are admitted to hospital;
29.2A child or children are involved in a medical emergency;
29.3A child or children will be required to take medication when they return to the other parent’s care in which case each parent shall advise the other of the details of the medication required to be taken and shall provide the other with sufficient medication to cover the first 48 hours that the child is to spend with the other parent.
30. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child or children and that each party do all things necessary to ensure that no party makes critical comments about the other party in the presence or hearing of the children.
31. That each party refrain from discussing the Court proceedings or any allegations in relation to the other parent in the presence or hearing of the child or children and that each party do all things necessary to ensure that no third party discussing the Court proceedings or any allegations about the other party in the presence or hearing of the child or children.
32. That each parent be restrained and remain restrained from permitting the child or children from providing to the children DVD’s, videos, electronic games or other by means of other electronic device as may be classified MA15 or R18 as specified in the Classification (Publications Films and Computer Games) Act 1995 or any subsequent Legislation which amends or replaces such Legislation from time to time.
33. That each parent advise the other parent and keep the other parent advised of their current residential address, contact telephone numbers (including both landline and mobile phone number, if applicable) and email address and advise the other parent of any changes to these details within forty eight (48) hours of such change occurring.
34. Both parties (on a without admissions basis) are injuncted and restrained from consuming or being under the influence of any illegal drugs whilst the children are in their respective care.
Property
35. That within seven (7) days of the making of this Order the Husband and Wife authorise in writing, Peter Williams, Solicitor to pay those monies held on their behalf by way of trust or controlled monies to be paid to the Wife.
36. That other than as provided for in these Orders that each party be declared to be the sole beneficial owner of all items of property in their respective possession as at the date of the making of these Orders, including but not limited to all money standing to the credit of any account conducted with a financial institution, shareholdings, motor vehicles, benefit as a consequence of the membership of a superannuation fund and any present or future expectation under a trust or estate and each party shall indemnify and keep indemnified the other with respect to any liability arising of whatsoever nature and kind as a consequence of making this Order.
37. In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A 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, upon the Registrar being satisfied of such failure or neglect or default by either of the parties by way of Affidavit evidence only and the party in default shall be liable to pay the other parties’ costs and disbursements on an indemnity basis.
Initial Orders proposed by the father
The orders sought by the father were set out in the father’s Case Outline Document dated 24 February 2017 as follows:
Parenting
1. That the Respondent Father have sole parental responsibility for [C] born … 2002 (“[C]”).
2. That the parties have equal shared parental responsibility for [D] born … 2008 (“[D]”) for all parenting issues save and except:
2.1The Respondent Father shall have sole parental responsibility, to the exclusion of the Applicant Mother, to make decisions affecting the sporting interests of [D];
2.2The Applicant Mother shall have responsibility, to the exclusion of the Respondent Father, to make decisions affecting the religious interests of [D];
2.3Decisions affecting school and medical issues shall be the subject of mediation between the parties and failing agreement the Respondent Father shall have responsibility to make such decisions to the exclusion of the Applicant Mother.
3. That [C] and [D] (“the children”) live with the Respondent Father.
4. That during school terms [D] spend time with the Applicant Mother as follows:
4.1Each alternate week from after school or 3.00pm on Friday to before school or 9.00am on Wednesday; and
4.2On Mother’s Day, if not otherwise in her care, from 4.30pm on the Saturday preceding until 6.00pm on Mother’s Day;
4.3That in the event [D] is spending time with the Mother on the weekend of Father’s Day in any year, then the Mother’s time with [D] is suspended from 4.30pm on the Saturday preceding until 6.00pm on Father’s Day;
4.4On [D’s] birthday as agreed between the parties, and
4.4.1if no agreement is reached and if a birthday falls on a weekend or holiday, then from 2.00pm until 6.00pm and;
4.4.2if the birthday falls on a school day then from 3.00pm to 6.00pm.
5. For the purposes of calculating when the weekend time during school terms is to commence, the parent who spends time with [D] during the first half of any school holiday period, shall spend time with [D] on the first weekend after school resumes and every alternate weekend thereafter.
6. That during each of the New South Wales school holiday periods, [D] spend time with the Applicant Mother from 10.00am on the first day of the holidays until 10.00am on the middle day of the holidays:
6.1For the purposes of calculating each holiday period, the first non-school day is deemed to be the first day of the holidays that [D’s] attendance is not required and the last non-school day is deemed to the last day of the holidays that [D’s] attendance is not required.
7. That notwithstanding any other Order, [D] live with the Respondent Father from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day in years ending in an odd number and from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day in years ending in an even number.
8. In order to facilitate the time the Mother spends with the children on all non-school days:
8.1The Father or his nominee shall deliver the children to a location in the [R area] agreed with the Mother 48 hours in advance at the commencement of the time whereupon the Mother or her nominee shall collect the children from the agreed location; and
8.2At the conclusion of the Mother’s time with the children, the Mother or her nominee will return the children to the location from which they were collected whereupon they will be collected by the Father or his nominee;
8.3If the Father and Mother are unable to agree a location 48 hours in advance, delivery and collection of the children will occur at the McDonalds Family Restaurant at [J Town].
9. That both parents be and are hereby restrained from administering corporal punishment and/or physical discipline of any kind on or towards the children.
10. That the Mother and the father be restrained from denigrating the other party or members of the other party’s family, including any partner of the other party in the presence and/or hearing of the children.
11. That the Mother shall do all things to ensure that:
11.1her father, [Z Salway], the maternal grandfather, does not spend time with the child [D] without the Mother present; and
11.2[Z Salway] does not share a bed with the child [D]; and
11.3At least until the age of 12, [D] not enter the premises of the company [Y] Pty Ltd located in [Suburb V].
12. That the mother or her nominee ensure [D], while [D] is spending time with the Mother pursuant to the spend time Orders as set out above, is delivered to and returned from such of the sporting and extra-curricular activities in which he is involved including all training and practice sessions and on the event the Mother is unable to deliver [D] to the said sporting activities the she, not less than twenty four hours prior to such activity, notify the father of her inability and the father shall be at liberty to transport [D] to and from each activity.
13. That each party shall be entitled to communicate with the children on a reasonable basis by telephone communication whilst the children is in the care of each other party and each party shall ensure that:
13.1The children are available to receive such calls;
13.2The children are afforded privacy during such calls;
13.3That they do not interfere in such calls.
14. That each party do all acts and things and execute all documents necessary to authorise any school at which the children attend or any medical practitioner upon which the children attend to provide all requests for information in respect to the children to the other party and to discuss all issues relating to the wellbeing of the children with the other party.
15. That the Father shall retain in his possession for safe keeping all and any of the children’s passports other than for the purpose of the children’s travel pursuant to these Orders.
16. That the parties shall each maintain and keep maintained at all times an email address and/or other electronic communication address for the purpose of these Orders and that communication between the parties, save for emergencies, be conducted by email.
17. That each party notify the other as soon as possible and in any event within twelve hours of any medical emergency, urgent medical treatment, serious injury or illness suffered by the children whilst in the care of that party.
18. That each party shall, whilst so ever the children are in their care, notify the other parent and keep the other parent notified of a mobile telephone number, landline and email address where he/she may be contacted in the event of an emergency involving any one of the children.
19. That each party shall notify the other by email transmission not less than seven days before changing that parties home address, email address, mobile and landline telephone number.
20. That each party shall be entitled to attend all school events to which parents are invited to attend such a parent teacher interviews, school concerts, assemblies, prize givings and the like.
21. That by way of a notation, the Respondent Father encourage the child [C] to spend time with the Mother at times and at places agreed between the parties and evidenced in writing and if not agreed that Father shall encourage and facilitate if possible [C] spending time with the Mother each alternate weekend from 10.00am to 4.00pm on whichever day [C] is not engaged in his sporting activities and commencing from the first weekend hereafter when [D] is spending time with the Mother.
Property
22. That the Husband and Wife do all acts necessary and sign all documents necessary to authorise Peter Williams Solicitor to pay to the Husband the monies held on the parties behalf by way of trust or controlled moneys.
23. That the Husband and Wife do all acts necessary and sign all documents necessary to authorise L J Hooker Pty Limited to pay to the Husband the monies held on the parties behalf by way of trust or controlled moneys.
24. That the Wife pay to the Husband an amount equivalent to that which she has received, if any, from the net proceeds of sale of the property located at [Suburb A] in New South Wales within twenty-eight (28) days of the making of these Orders.
25. That there be a declaration pursuant to section 78 of the Family Law Act that the following are matrimonial debts:
(a)Commonwealth Bank of Australia loan account no. …68;
(b)Commonwealth Bank of Australia credit account no. …56;
(c)St George Bank Visa credit account no. …15;
(d)National Australia Bank Visa credit account no. …26;
(e)Bankwest credit account no. …54;
(f)HSBC credit account no. …01;
(g)ANZ Bank overdraft account no. …34;
(h)GE Finance account no. ..08;
(i)Esanda/Motor vehicle;
(j)American Express/David Jones store card no. …09;
(k)Origin Electricity;
(l)Energy Australia;
(m) That the Husband shall be solely responsible for payment of the debts as aforementioned in Order 25 above.
27. That the Wife forthwith return to the Husband all sporting memorabilia currently in her possession, custody or control.
Superannuation Splitting Orders
28. That a base amount of $120,000.00 from the First State Super account is allocated, as required by section 90MT(4) of the Family Law Act 1975, to the Husband out of the Wife’s interest in the First State Super account.
29. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:
(a)the Husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001; and
(b)the Wife’s entitlement to payments out of her interest in the First State Super account, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this Order.
30. That the Trustee of First State Super (“the Trustee”) do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Husband by paragraph 29 of these Orders; and
(b)pay the entitlements whenever the Trustee makes a splittable payment out of the Wife’s interest in First State Super.
31. That these Orders Have effect from the operative time and the operative time for this Order is 28 days from the date Orders are made.
32. That this Order binds the Trustee of First State Super.
Declaratory orders
33. That except as specifically provided for by any paragraph comprising these Orders to the contrary as between the Husband and Wife, the Husband be declared solely entitled at law and in equity to the following:
a.all his right title and interest in any motor vehicle in his possession;
b.all debts presently in his name;
c.all accounts standing in his sole name;
d.all superannuation entitlements held in his name;
e.any chattels, furniture and furnishings in his possession at the time of the making of these Orders;
f.any present or future expectation of the Husband under any trust or estate;
g.all other personal property (including choses in action) of whatsoever kind in the possession, custody or control of the Husband at the date of the making of these Orders.
34. That except as specifically provided for by any paragraph comprising these Orders to the contrary as between the Husband and Wife, the Wife be declared solely entitled at law and in equity to the following:
a.all her right title and interest in any motor vehicle in his possession;
b.all debts presently in her name;
c.all accounts standing in her sole name;
d.any chattels, furniture and furnishings in her possession at the time of the making of these Orders;
e.any present or future expectation of the Wife under any trust or estate;
f.all other personal property (including choses in action) in the possession, custody or control of the Wife at the date of the making of these Orders.
Implementation orders
35. That each party do all acts and things and sign all documents necessary to give effect to these Orders.
36. That in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to these Orders, the Registrar of the Court is appointed pursuant to section 106A of the Family Law Act, 1975 to execute such Deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity to the operation of the Deed or instrument.
Orders proposed by the ICL
The orders proposed by the ICL were set out in exhibit ICL8 and provided as follows:
1. That all previous Orders in relation to the Children [C] born … 2002 (“[C]”) and [D] born … 2008 (“[D]”) shall be discharged.
2. That the father shall have sole parental responsibility for the child [C].
3. That the mother shall have sole parental responsibility for the child [D].
4. That prior to either parent exercising sole parental responsibility in relation to Order 2 or Order 3 above:
a.The other parent shall be notified of the decision to be made for the child at least 14 days before making the decision, unless in the case of emergency when notification shall be provided as soon as practicable.
b.The parent exercising the sole parental responsibility shall consider any views expressed by the other parent before making the decision.
5. That the child [C] shall live with the father.
6. That the child [D] shall live with the mother.
7. That the child [C] shall spend time with the mother in accordance with his wishes.
8. That the father shall encourage the child [C] to spend time with the mother as follows:
a.On each alternate weekend from 10am until 6pm Sunday on the weekend that [D] is living with the mother.
b.At all other times as requested by [C].
9. That the child [D] shall spend time with the father as follows:
a.During school terms:
i.Each alternate weekend from after school Thursday until before school Tuesday. This time shall recommence on the first Thursday after each school holiday period.
b.For the NSW school holidays at the end of Term 1, Term 2 and Term 3 as agreed between the parties and failing agreement:
i.In 2017 each alternate year thereafter, from after school on the last day of school until 5.00pm on the middle Saturday.
ii.In 2018 and each alternate year thereafter, from 5.00pm on the middle Saturday until before school on the first day of the next school term.
c.For the NSW Christmas school holidays as agreed between the parties and failing agreement:
i.In 2017/18 and each alternate year thereafter:
1. From 12 noon Christmas Eve until 12 noon Christmas Day
2. From 9.00am on 5 January until 5.00pm on 26 January
ii.In 2018/19 and each alternate year thereafter:
3. From 12 noon Christmas Day until 12 noon Boxing Day
4. From 9.00am on 5 January until 5.00pm 26 January
d.On the Father’ Day weekend from 9.00am on Father’s Day until before school Monday.
e.At all other times as agreed between the parties.
10. That notwithstanding Order 9 above, the child [D] shall remain living with the mother as follows:
a.On the Mother’s Day weekend from 9.00am on Mother’s Day until before school Monday.
b.From 12 noon Christmas Day until 12 noon Boxing Day in 2017 and each alternate year thereafter.
c.From 12 noon Christmas Eve until 12 noon Christmas Day in 2018 and each alternate year thereafter.
d.At all other times as agreed between the parties.
11. That for the purpose of changeover on non-school days, the parties shall meet at the McDonalds Family Restaurant in [Suburb P].
12. That the father shall ensure that [C] continues to attend at all appointments with [Ms L] when required by [Ms L] until he is directed by [Ms L] for the appointments to cease.
13. The mother shall use her best endeavours to make the next available appointment with [Ms L] for the purpose of the Family Therapy to assist in improving the relationship between the mother and [C].
14. That the father shall notify the mother at least 14 days prior of any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
15. That the mother shall notify the father at least 14 days prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
16. That each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
17. That each parent shall make arrangements at the school that the child in their respective care attends to ensure that both parents can obtain the following information and documents at their own cost:
a.A copy of all school reports for the children.
b.Notification for school activities that they may decide to attend.
c.Notification of parent/teacher nights and the school is informed that it is both [parents’] desire to attend such events.
d.In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
18. That in the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:
a.The other parent is to be notified as soon as practicable.
b.That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
19. That each party is restrained from changing the children’s current schools without the written consent of the other party, save for [D’s] attendance at High School from Year 7.
20. That each party shall contact Unifam Sydney (9373 5500) within seven (7) days to enrol in the Anchor Program to assist [D] with protective strategies to reduce the impact of parental conflict on him and facilitate all attendees for themselves and the children as required.
Amended orders proposed by the parties in light of the ICL’s proposed order 8
On the final day of hearing, in the context of the orders proposed by the ICL, the parties significantly modified their proposals, in respect to parenting, as follows.
Mothers amended proposal
The mother’s proposed orders in respect to parenting in light of those proposed by the ICL, were as follows:
1. That all previous Orders in relation to the Children [C] born … 2002 (“[C]”) and [D] born … 2008 (“[D]”) shall be discharged.
2. That the father shall have sole parental responsibility for the child [C].
3. That the mother shall have sole parental responsibility for the child [D].
4. That prior to either parent exercising sole parental responsibility in relation to Order 2 or Order 3 above:
a.The other parent shall be notified of the decision to be made for the child at least 14 days before making the decision, unless in the case of emergency when notification shall be provided as soon as practicable.
b.The parent exercising the sole parental responsibility shall consider any views expressed by the other parent before making the decision.
5. That the child [C] shall live with the father.
6. That the child [D] shall live with the mother.
7. That the child [C] shall spend time with the mother in accordance with his wishes.
8. That the father encourage and facilitate [C] to spending [sic] time with the mother as follows:
a.each alternate weekend, during school terms and school holidays, from after school (or 4pm if it is a non-school day) Friday until 4pm Saturday, coinciding with the weekend that [D] is living with the mother.
8.2On Mother’s Day from 9am (or if [C] is playing [football] that day from the conclusion of his game) until before school Monday.
8.3On the mother’s birthday:
8.3.1from after school to 6.00pm if it falls on a day when [C] is at school; or
8.3.2from 2.00pm to 6.00pm if it falls on a day when [C] is not at school.
8.4At such other times as requested by [C].
9. That [D] spend time with the father as follows:
9.1During school terms, on each alternate weekend from after school Thursday to before school Monday. This time shall recommence on the second Thursday after each school holiday period.
9.2 During [D’s] school holidays as follows:-
9.2.1For one half of the school holidays at the end of term 1, term 2 and term 3:
(a)In 2017 and each alternate year thereafter, from 5pm on the middle Saturday of the holidays until before school on the first day of the next school term; and
(b)In 2018 and each alternate year thereafter, from after school on the last day of school term until 5pm on the middle Saturday.
9.2.2 In the Christmas school holidays:
(a) In 2017/18 and each alternate year thereafter;
(i) From 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii) The conclusion of the last day of school term until 5.00pm 10 January until before school on the first day of the next school term.
(b) In 2018/19 and each alternate year thereafter;
(i) From 12 noon Christmas Day until 12 noon Boxing Day; and
(ii) From 5.00pm 10 January until before school on the first day of the next school term.
9.2.3 On Father’s Day:
(a) On the Father’ Day weekend from 9.00am on Father’s Day until before school Monday.
9.2.4At all other times as agreed between the parties.
10 That notwithstanding Order 9 above, the child [D] shall remain living with the mother as follows:
a.On the Mother’s Day weekend from 9.00am on Mother’s Day until before school Monday.
b.From 12 noon Christmas Day until 12 noon Boxing Day in 2017 and each alternate year thereafter.
c.From 12 noon Christmas Eve until 12 noon Christmas Day in 2018 and each alternate year thereafter.
d.At all other times as agreed between the parties.
e.On the mother’s birthday:
(i)From after school to 6.00pm if it falls on a day when [D] is at school; or
(ii)From 2.00pm to 6.00pm if it falls on a day when [D] is not at school.
11 That for the purpose of changeover on non-school days, the parties shall meet at the McDonalds Family Restaurant on (sic) [Suburb P].
12 That the father shall ensure that [C] continues to attend at all appointments with [Ms L] when required by [Ms L] until he is directed by [Ms L] for the appointments to cease.
13 The mother shall use her best endeavours to make the next available appointment with [Ms L] for the purpose of the Family Therapy to assist in improving the relationship between the mother and [C].
14 That the father shall notify the mother at least 14 days prior of any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
15 That the mother shall notify the father at least 14 days prior of any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
16 That each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
17 That each parent shall make arrangements at the school that the child in their respective care attends to ensure that both parents can obtain the following information and documents at their own cost:
a.A copy of all school reports for the children.
b.Notification for school activities that they may decide to attend.
c.Notification of parent/teacher nights and the school is informed that it is both [parents’] desire to attend such events.
d.In the event of either child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
18 That in the event of either child suffering a medical emergency requiring medical attention whilst in the care of either parent:
a.The other parent is to be notified as soon as practicable.
b.That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
19 That each party is restrained from changing the children’s current schools without the written consent of the other party, save for [D’s] attendance at High School from Year 7.
20 That each party shall contact Unifam Sydney (9373 5500) within seven (7) days to enrol in the Anchor Program to assist [D] with protective strategies to reduce the impact of parental conflict on him and facilitate all attendees for themselves and the children as required.
21 That each parent ensure that at the conclusion of a child’s time with the other parent that all clothing which was provided with the child at the commencement of time is returned with the child to the parent who provided it.
22 The each parent be entitled to attend all events involving the children including:
22.1 Sporting fixtures
22.2 Extra curricula activities that allow for parental attendance
22.3School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.
23 That each parent is restrained from enrolling a child for whom the other parent has sole parental responsibility, in any sporting or extra-curricular activity without the permission of the other parent in writing.
24 That each party is restrained from:
24.1 Making critical or derogatory remarks in relation to the other parent, or in relation to a member of the other parent’s family of household, in the presence or hearing of a child and that each party do all things necessary to ensure that no third party does so.
24.2Discussing any Court proceedings between the parties, or any allegations made by a party about the other parent or a member of the other parent’s family, in the presence or hearing of the children, or either of them, and that each party do all things necessary to ensure that no third party does so.
25 That each parent ensure that a child who is with that parent at the time attends the child’s school punctually at the time required by the school, subject to any intervening event beyond the control of that parent which prevents the child’s punctual attendance.
26 That for the purposes of communicating information between the parties, the mother and father shall:
26.1communicate by text messages matters of an urgent nature; and otherwise
26.2communicate by email about the day to day matters relating to the care and welfare of the children;
and the parties shall reply to such communication from the other party, if a reply is required, in a timely manner.
Father’s amended proposal
The father agreed with the orders proposed by the ICL.
Background facts
The mother was born in 1967 and is currently 48 years of age. The father was born in 1968 and is currently 49 years of age.
The parties commenced living together in 1993 according to the father, and May 1994 according to the mother. The parties were married in 1994 and separated on 14 February 2013, although they continued to live under the same roof until 8 September 2013.
As noted there are three children of the marriage B who was born in 1998, C who was born in 2002 and D who was born in 2008.
In 1993 the father purchased vacant land at Suburb W (“Suburb W property”) for $115,000. That Property was encumbered by a mortgage to the Commonwealth Bank for $103,500.
The father contends that he paid the deposit in respect to the property from his earnings. The mother asserts that the deposit included an amount of $12,000 which was borrowed from a work colleague, Ms Y and that ultimately, she repaid that money to Ms Y by way of a personal loan from the Commonwealth Bank.
In 1995 the parties moved into a home constructed on the Suburb W property.
In September 1998 the mother received a redundancy payment of $25,000.
In 2000 the father developed an investment property at Suburb AB. The father asserts that he made a profit from the development of approximately $80,000.
In 2000 the father purchased a boat for $130,000.
In 2001 the parties separated for a period of approximately six months with the father leaving the matrimonial home during that period.
Between 2004 and 2008, the father unsuccessfully defended proceedings commenced in the District Court of New South Wales involving the sale of the boat and was ordered to pay damages of $17,500 plus costs.
In 2006 the father purchased a unit at Suburb AC (“the Suburb AC Unit”). The father asserts that his father provided him with $65,000 to assist with the purchase.
In 2006 the father established a company YA Pty Ltd. Between 2008 and May 2014 the father held various positions of full-time employment and positions as an independent contractor through YA Pty Ltd.
In 2009 the Suburb W property was sold for $880,788.[1]
[1] Annexure KES48 of the Wife’s Affidavit sworn 20.02.2017.
Between July 2009 and December 2012, the parties lived at the home of the mother’s father at Suburb E.
In July 2010 the parties purchased a property at Suburb BA (“the Suburb BA property”). That property was tenanted until the parties moved into the property in December 2012.
In the period from 2010 through to 2012 the parties undertook various renovations and improvements to the Suburb BA property.
In mid-2010 the Suburb AC Unit was sold and the father utilised the net proceeds of the sale to purchase an RB boat.
In August 2010 the mother received a further redundancy payment of $65,000.
In 2013 YA Pty Ltd was liquidated with a debt, as the father contends, of approximately $9,000.
In February 2013 the parties separated but continued to live under the same roof.
On 11 July 2013 the mother complained to police, informing them that she became fearful after the father arrived at her father’s place at Suburb E and had sought entry to the property. The father stated that he had sought entry only to collect a barbeque which had not been left on the front lawn with other items he was to collect. Arrangements were made for the mother and her father to take the BBQ out to the front lawn with the other items to be collected. The police notes record that both parties were warned “not to commence any arguments or police would be forced to intervene and court orders sought.”
On 26 July 2013 the father sent an email (which became exhibit W21 in the proceedings) to the mother which included the following paragraphs:
…You have also chosen to completely remove yourself from helping when things have gone financially wrong e.g. the boat law suit. You are quite happy to enjoy the benefits of the boat but when we got sued you abandoned me and any of the financial commitments that were put on us as a family.
After 4 years of legal proceedings the only interest you ever showed was the final day in court when the decision was being handed down so that you could see how much money I would have left…
On 3 September 2013 the father made a complaint to police that the mother had damaged his car while it was parked outside the former matrimonial home. The mother was charged in respect to that matter. The police charge information recorded the mother’s height as 162 cm and her weight as 55 kg. The mother was also made the subject of an interim Apprehended Domestic Violence Order (“ADVO”) which was made on an ex parte basis.[2]
[2] Annexure C of the Father’s Affidavit.
On 4 September 2013 the child C was assessed by Dr MN. Dr MN’s report to the referring doctor following that assessment stated:
Like his sister [B] [C’s] mother is concerned as to how he may be coping with the separation between her and her husband. [C’s] parents are currently going through divorce proceedings; however the family still reside together temporarily.
From my assessment so far [C] appears to be a well-balanced young boy who has good social supports, is settled at school and is emotionally stable and generally happy. He achieves well in his sports and his overall functioning and cognitions are good. [C] presented in the session as happy, friendly, talkative and well spoken. I do not have any concerns for his emotional health, nor are there any risk behaviours apparent.
On 6 September 2013 the mother attended a Police Station to complain in respect to a text message sent to her by the father and inquired whether it amounted to a breach of an AVO against the father. No action was taken. The police report records:
It appears that both the vic [victim] and poi [person of interest] are ‘baiting’ each other into committing an offence…[3]
[3] Exhibit KL4 – COPS events.
On 7 September 2013 the mother was charged with assaulting the father and breaching the interim ADVO after the father made a complaint that the mother had pushed him over in the bedroom of the family home. The mother was detained at the police station overnight.
On 8 September 2013 the mother left the former matrimonial home with the parties’ youngest child, D, and moved in with her father at his Suburb E property.
On 11 September 2013 an interim ADVO was made against the mother (Annexure D to the father’s affidavit).
On 25 September, 2013 the father made a further complaint to police that the mother had engaged in stalking himself and his current partner. The father was advised by police “that the police do not believe [there] is sufficient evidence to proceed against the POI [person of interest].”[4]
[4] Exhibit KL4 – COPS events.
On 28 September 2013 the father made a complaint to police regarding events that occurred at the former matrimonial home when the parties were engaged in cleaning the house in preparation for its sale. The three children were present on that occasion. The police notes relevantly record:
…The VIC [victim] called police as he believed whilst cleaning the house the POI [person of interest] had moved and hidden some of his belongings. Police attended and quickly established that the POI had not hidden any belongings and no assault or any other offence had taken place. No pushing, shoving or physical contact was made between any of the parties. The AVO [Apprehended Violence Order] between the VIC and the POI was not breached…[5]
[5] Exhibit KL4 – COPS events.
On 8 October, 2013 the solicitors for the mother wrote to the solicitors for the father expressing concern regarding the father’s relationship with Ms F who they asserted “is the wife of a suspected drug dealer.” During the hearing, the mother gave oral evidence that she had questioned Mr F in respect of the allegations and was satisfied that they were unfounded.
On 8 October 2013 the father complained to police that the mother was in breach of an ADVO that had been taken out against her by the father. The father alleged that this had occurred as a result of the mother attending the former matrimonial home with removalists in order to remove items from the former matrimonial home. The police report notes that the mother did not enter the home and no action was taken.
On 11 October 2013 orders were made at the Local Court for B and C to live with the mother.
On 19 November 2013 the charges against the mother arising from the events in September 2013 were dismissed at the Local Court. In dismissing the charges the Magistrate found “that on 7 September, 2013 [Mr Fegley] behaved provocatively towards Ms [Salway]”, and that the video the father was relying upon to establish that he had been assaulted showed that the mother “was not within arm’s length of him”.
On 6 December 2013 the parties’ Suburb BA property was sold for the amount of $860,000.
On 11 December 2013 an interim ADVO was made at the Local Court against the father for the mother’s protection.
On 31 January 2014 the father was charged with breaching the interim ADVO in respect to a text message that the mother alleged he sent to her on 29 January 2014. The father alleged that the mother had arranged for his phone to be remotely accessed in order to create and send the message.
In January 2014 the RB boat was sold.
In January 2014 the two older children commenced attending at the R School.
On 22 February 2014 the mother made a complaint to police that the father had breached the interim ADVO made on 11 December 2013 in respect to events that occurred at a local sporting ground where C was due to play cricket.
On 28 February 2014 the father complained to police that D and C were unable to enter their maternal grandfather’s house where they were staying with the mother. The police attended and took the boys to the Police Station where they were subsequently collected by their mother. The police report records the concerns of the police regarding the length of time that the boys had been left unsupervised.
On 2 March 2014 the Principal of R School inquired of C whether he wanted to go home that afternoon with his mother. In the course of the conversation C indicated that he did not want to go home with his mother because “I don’t like it. She’s going to start yelling at me.” When asked whether he felt safe with his mother C said “No. No. I definitely don’t feel safe. I want to get my brother and go to my dad’s house.”
On 17 March 2014 the mother filed an Amended Initiating Application in the Federal Circuit Court seeking property in addition to parenting orders.
On 2 April 2014 the father filed a Response to the mother’s Amended Initiating Application.
On 2 April 2014 interim orders were made by Judge Scarlett. On 11 April 2014 at 6:05 PM the father attended the Police Station with C and D. He was followed into the police station by the mother. The police report of that event relevantly reads as follows:
…Police took … [the father] into a side room with his children. He advised that his children were afraid of his wife and her excessive corporal chastisement. Though he stated that there had been no physical injuries from the discipline however, the children were in fear... From the foyer, [the mother] shouted for police to attend her so police came back out of the room and advised her to wait for just 5 minutes and then police would speak to her next.. Police then spoke to the children alone who expressed no fears and had no injuries. [C] did state he was only afraid when he did something wrong and got into trouble.. Police then walked out into the foyer to find that [the mother] had left…[6]
[6] Exhibit KL4 – COPS events.
On 18 April 2014 the child C declined to accompany his mother with his siblings at changeover which was to take place at the Police Station in accordance with the then parenting arrangements. The notes of the event record that the father reported previous allegations of excessive chastisement. The child C left with his father. No further police action was taken. The police report also notes that the father attended the Local Area Command about an hour later to make a similar complaint.
On 23 May 2014 the solicitors for the mother wrote to the solicitors for the father stating that C had removed documents from the mother’s house relating to the court proceedings and that the child C “has demonstrated an improper alignment with his father...”[7]
[7] Annexure KES 16 of the Mother’s Affidavit sworn 20 February 2017.
On 30 May 2014 the father asserts that C complained to him that the mother had grabbed his head and forced him underwater when he was in the bath as well as taking his mobile phone.[8]
[8] Paragraph 94 of the Father’s Affidavit sworn 20 February 2017.
On 2 June 2014 the father took C to the Police Station to report that C alleged at about 7.30 am on the morning of 30 May 2014, when he was taking a bath in the course of getting ready for school, the mother had put her hands on his head and forced his head under the bath water. The police report notes the delay between the alleged event and the date of report and recorded:
Police have serious doubts as to the validity of the victim’s claims. He did not seem overly upset by the incident and his main issue seemed to be that his mother took his phone.[9]
[9] Exhibit ICL 7 – COPS events.
On 11 June 2014 further interim orders were made by Judge Scarlett.
On 27 October 2014 the matter was transferred to the Family Court of Australia.
On 11 November 2014 the ICL wrote to the parties requesting that, as a result of the matter being raised as an issue of concern in the Family Report, they provide mutual undertakings that, other in the case of an emergency, they would not contact the children by phone, email or SMS during school hours.[10]
[10] Annexure KES 21 of the Mother’s Affidavit sworn 20 February 2017.
By letter dated 27 February 2015 the solicitors for the father indicated that the father was prepared to provide such an undertaking subject to the father being able to respond to any communication received from the children.[11]
[11] Annexure KES 22 of the Mother’s Affidavit sworn 20 February 2017.
On 29 December 2014 C sent a text message to his father stating:
[D] was jumping on me and the. I purple nerpled him and I got my phone taken [off] me.[12]
[12] Annexure KES 19 of the Mother’s Affidavit sworn 20 February 2017.
In January 2015 D commenced to attend the R School.
On 3 February 2015 C sent a text message to his father stating “Mum said I’m not going to training.” The father replied “Catch the train to my place after school.”
After school, on 3 February 2015, C went to his father’s home and has remained living with the father ever since.
On 4 February 2015 at approximately 11 am the father took C to the Police Station to complain about events that occurred on the previous morning when the mother was getting C ready for school, placed him in the car and took him to the Suburb E Railway Station. These matters were subsequently the subject of a contravention application commenced by the father in which he alleged that the mother’s conduct constituted excessive chastisement of C. The police notes record:
Police do not think that the mother will harm the child if he is returned and believe that the father is encouraging the child to report the mother to police. Police believe that it was lawful chastisement… Police believe that the [mother] did not mean for the child to hit his head on the door [of the car] and that it was an accident which occurred when the child was attempting to run away.[13]
[13] Exhibit ICL 7 – COPS events.
In terms of views held by C, the police notes record C’s concern “that his mum may get him into trouble if he goes home”. [14]
[14] Exhibit ICL 7 – COPS events.
The police notes report that the Local Area Command undertook a review of the incident reported to the police on 4 February 2015 and noted that the images of the alleged injury sustained by C on 3 February 2015 “revealed no red marks at all to the neck and shoulders” however he did have “a very minor scratch to his left middle knuckle measuring 4 – 5 mm in length.” The police notes further recorded:
…Police on review of the evidence [provided] find no offence and no requirement for any further investigation into this reported domestic incident. There is an ongoing tit for tat domestic related reported offences in charges between the parents. The Yp [young person] was looking for any content which would get his mother into trouble including reporting that she he parked in a mail zone – no component of the assault reported exceeds lawful chastisement…[15]
[15] Exhibit ICL 7 – COPS events.
On Wednesday 4 February 2015 C attended Dr RA at the WR Medical Centre. Dr RA’s clinical notes relevantly record C as saying:
Period of separation very difficult but now feels much better…
Reports he is a happy child…
No concerns expressed currently…
Smiling throughout consultation…
…appears to have very good insight into difficulties experienced during separation
No risk issues
Reports very good relationship with both parents and siblings.
On 12 February 2015 the father collected both boys from school and travelled to Town I in order for C to participate in a football tournament. During this time the father introduced the boys to their maternal grandmother.
On 2 March 2015 the solicitors for father wrote to the solicitors for the mother noting that C had been with the father from 2 February 2015 and D had been with the father from 12 February 2015 and that:
[D] has expressed no wish at all to return to the [Suburb E] home your client shares with her father.[16]
[16] Annexure KES 33 of the mother’s affidavit sworn 20 February 2017.
On 2 March 2015 the mother collected D from school but C declined to accompany her.
In the period from February 2015 until 15 April 2016, C did not spend time with his mother other than for a period on Christmas Day 2015.
On 6 February 2015 the mother was charged with making a false representation to police after she reported that the father had sent her a threatening text message and which was denied by the father.
On 12 February 2015 a Contravention Application was filed by the father.
On 18 August, 2015 C attended Dr TH at the WR Medical Centre in respect to headaches that he was suffering after striking the back of his head during the course of a football match on the previous weekend. The clinical notes report that the doctor had a long discussion with C and his father regarding concussion. [17]
[17] Exhibit ICL 5.
On 27 August 2015 C attended Dr TH at the WR Medical Centre. The clinical notes made by Dr TH relevantly record:
I explained to him that his mum has been concerned about his health would like to know about his health.
[C] tells me he is NOT happy for his mum to know about his health.
he tells me “she can ring me and ask me if she wants to know”.
when I asked him why he does not want his mother to know about this he tells me “she has been mean to me”
“she hit me many times with hand and a plastic spoon, that’s why I left her house”.[18]
[18] Exhibit ICL 5.
On 28 August 2015 the mother sent an email to the BA Football Club, with whom the child C plays football, expressing concern regarding C suffering concussion following an incident in a match that occurred on 15 August 2015 and requesting that the Club ensure the relevant football league concussion procedure be applied in respect to C. In the email the mother acknowledged that her inquiry may be interpreted as an indication that she did not want C to play in the Grand Final but stated that “I am just a concerned mum who wants him to play this weekend on the condition that he is medically fit.”
On Friday 28 August 2015 the child C sent a text message to his mother which read:
I hear that you complained about me having minor headaches and now I can’t play the grand final. It was my leg that was sore on Wednesday not my head and you know that. You are doing this to hurt me and my footy team, I hate you and never want to talk to you ever again. [19]
[19] Annexure KES 38 of the mother’s affidavit sworn 20 February 2017.
The mother replied to C indicating that she was “happy to talk about it.” [20]
[20] Annexure KES 38 of the mother’s affidavit sworn 20 February 2017.
On 29 August, 2015 Dr DG provided a report noting a normal CT Scan of C’s Brain.[21] A certificate was provided clearing C to play football on the following day.
[21] Exhibit W 11.
On 27 October 2015 a Contravention Application was filed by the mother.
On 14 December 2015 Watts J gave judgment in respect to the father’s Contravention Application filed 12 February 2015 dismissing that application in so far as the father alleged:
...that on 3 February 2015 at approximately 8.00am at [Suburb E], the mother administered physical discipline to the parties’ child, [C] , in contravention of order 5(a) made 2 April 2014 which is in the following terms:
5. Each of the parties is restrained by injunction from:
(a) administering any form of physical discipline or chastisement to any of the children.[22]
[22] Fegley & Salway [2015] FamCA 1117 at [4].
In dismissing that application his Honour said at paragraphs [11] and [12]:
The father’s clear attitude was that C was entitled to choose to go to football training and his mother was not entitled to say that he could not, notwithstanding the mother having clear parental responsibility to make that decision, given that C was at that time with her pursuant to existing orders (s 65DAE of the Family Law Act 1975 (Cth) (“the Act”). The father resorted to saying that it was his belief that there was a specific order requiring C to go to football training. The father, when confronted with the orders, had to concede that there was no such order. The father was disingenuous in not accepting a proposition that he had an interest in C playing football because of his interest in that sport, in circumstances where the father then conceded that he had been a member of a first grade team. Nor did I accept the father’s denial that he was motivated to ensure C attended a football tournament in I Town later in the [month].
The father was also disingenuous in not immediately agreeing that the boys had attended a football tournament in I Town in February 2015 partly during a time when they were supposed to be back with their mother. He apparently drew a distinction between football codes. The father’s evidence relating to the boys’ attendance at this tournament was unconvincing. The father agreed he took C and D to I Town for the tournament partly during the period of time when they should have been with their mother. Whatever problems might have existed with C, the father did not return D to the mother during the time he was in I Town, when he was actually due to commence time with the mother. The highest the father’s evidence can be taken in relation to him informing the mother that he intended to retain C and D outside the existing orders (for the purposes of the football tournament) was him indicating that it was his belief that he had told the mother via text message that he was doing it (it was clear he did not seek her consent). It did the father no credit when he asserted that he gave the mother the right to have D dropped back to her by either the mother travelling to I Town to pick him up or having another parent at the tournament return D to her. The father also agreed that he did not involve the mother in the process of seeking the school’s exemption for C and D to be away from school for the purposes of going to I Town for the football tournament.
His Honour found, however, that in not arranging for D to spend time with the father on 5 February 2015 that the mother breached Order 4(b) of the orders made on 12 June 2014.
By further decision dated 17 March 2016 Watts J held that the mother had established a reasonable excuse for the contravention and ordered the father to pay the costs of the mother in respect to the contravention proceedings.[23]
[23] Fegley & Salway [2016] FamCA 168.
In March 2015 the father commenced employment with TC Company as the “National Strategic Sales Manager”.
On 28 June 2015 the police were called to the Coles car park at Suburb S by a friend of the mother’s who complained that the father had taken items that she was selling from a stall that she had established with the mother. The father asserted that the items he took were his and those of the children. The police notes record that there was a discussion with the father regarding issues of legal title in circumstances where family law proceedings were ongoing. The police notes record the father as using a loud tone whilst talking with the informant and police and further record that the father:
…continued to argue with police for a period of time. Police then issued the [father] with a direction to move on from the [location]. The [father] left the [location] and did not return. Police remained within the vicinity for an hour to ensure no re occurrence or the return of the [father].[24]
[24] Exhibit ICL 7 - COPS events.
On 8 September 2015 the police charges against the mother in respect to the allegations that she made a false representation were withdrawn.
On 15 April 2016 orders were made by Le Poer Trench J as follows:
1. The orders made 12 June 2014 which provide for [C] to live with and spend time with each of the parents are discharged.
2. The child [C] born in 2002 … is to live with the father.
3. The father is to encourage [C] to spend time with the mother at times and places agreed to between the parents and evidenced in writing (email or text message will suffice provided a copy of such is retained by each parent). To this end the father is to encourage and facilitate if possible [C] spending time with the mother as follows:
(i)Commencing from the first weekend hereafter when [D] is with the mother, and thereafter during NSW school terms, every alternate weekend from 10.00 a.m. to 4.00 p.m. on whichever day [C] is not engaged in his sporting activities.
(ii)That all non-school day changeovers occur at the McDonalds family restaurant at [J Town] (unless it also involves the changeover of [D] or [B] in which case order (4) hereof applies) OR if the changeover time coincided with one of the children’s sporting fixtures then changeover shall occur at the location of the child’s sporting fixture.
4. On occasions when the children are not attending school or otherwise provided for in these orders changeovers shall take place at the McDonalds Family Restaurant at [Suburb K] when the children are in the care of the mother (and being delivered to the father) and at the McDonalds Family Restaurant at [J Town] when the children are in the care of the father (and being delivered to the mother).
5. That the parties are to do all such acts and things and make such appointments as soon as practicable upon the making of these orders to attend upon [Ms L]. For the purposes of implementation of this order the parties shall:
Ensure their respective attendance on each and every appointment as scheduled by [Ms L];
Ensure that if the children, and in particular the child [C], are in their respective care at the time that appointments are made by [Ms L] for the children to attend such appointments with [Ms L].
The parties are to equally and promptly pay the costs of the therapy/counselling session scheduled by [Ms L] for the children’s attendance and the parties shall each be responsible for the payment of their own personal costs of attendance on [Ms L].
6. The parties are each to inform the Independent Children’s Lawyer when they have made an appointment to meet with [Ms L] and thereafter the Independent Children's Lawyer is to provide Ms [L] with a copy of the Family Report released to the parties in this matter and also the Child Responsive Memorandum when it is made available to the parties.
7. The Independent Children’s Lawyer is to ask Ms [L] to advise the Independent Children’s Lawyer should either of the parents fails to attend upon any session of therapy or counselling scheduled for the parents or the children.
8. That the children [B] and [D] spend time with the mother from immediately after school on the mother’s birthday until the commencement of school the following day in the event that the children are not otherwise spending time with the mother on a school day. If the birthday falls on a non-school day then for a period of two hours between 1 pm and 3 pm.
9. For the purposes of calculating when the weekend time during school terms is to commence after a school holiday period, the parent who spends time with the children during the first half of any school holiday period, shall spend time with the children on the first weekend after school resumes and every alternate weekend thereafter.
10. During any time that [C] is spending time with the mother she is to not remove his mobile phone from him and she is to permit him to text message his father should he wish to do so. The father is permitted to respond to any text message received from [C] during that period however, he is not to initiate any such text message exchange unless it is absolutely necessary.
In April 2016 the child C commenced seeing his mother for one day every alternate weekend although that did not occur during school holidays and on certain other days.
On 5 May 2016 the father sent a text message to the mother informing her that C will be available for collection at 10.00 am on Saturday 7 May. There was a dispute between the parties however, as to whether the mother was to collect C from the playing field where he was playing football or from McDonald’s at J Town.
On 18 June 2016 the father sent a text message to the mother expressing his concern that the mother had arranged for C to phone her to ask if he could spend extra time at his friend’s place in circumstances where he phoned his father to make that request at 3:55 PM when the father said “he is supposed to be at [J Town] at 4.”
On 5 July 2016 the mother sent an email to Ms L, clinical director and principal psychologist of L and Associates, to whom the parties had been referred for family therapy in which the mother stated that:
There is an ongoing pattern with [the father] manipulating the children. Until such time as you can give me guarantees this has been addressed, I am not prepared to participate in any further counselling.
I appreciate further feedback on your future discussions with [the father] and [C].
On 15 July 2016 the mother sent a text message to the father in respect to arrangements to collect C in order for him to spend time with her and the father responded “no you won’t. It’s school holidays. He won’t be there.”
On 3 December 2016 the mother sent a text message to the father advising him that C wanted to stay longer until he was in a position to ascertain how his friend NK was. NK had been taken to hospital after falling ill at an amusement centre that the two boys had attended earlier that day. The father responded:
Sorry to hear that [NK] is unwell. What has that got to do with [C]? You were supposed to have him home at 4 pm. You do this every time [C] is with you with a different excuse each time?
In December 2016 the mother invited the former husband of the father’s partner to attend their daughter’s high school graduation ceremony and formal.
In December 2016 the father moved into a rented three-bedroom unit located at Suburb BA.
In January 2017 the mother unilaterally enrolled D into NC School at Suburb AY where he is in year three.
Also in January 2017 the father unilaterally enrolled C at SR High School where he is currently in year nine.
Evidence and witnesses
The mother relied upon the following documents:
·Affidavit of Ms Salway filed 20 February 2017;
·Financial Statement of Ms Salway filed 20 February 2017;
·Affidavit of Mr Z Salway filed 20 February 2017;
·Affidavit of Ms YN filed 20 February 2017;
·Affidavit of Ms SE filed 17 February 2017;
·Affidavit of Mr M filed 29 February 2016; and
·Affidavit of Ms N filed 29 February 2016.
In addition, the mother called oral evidence from Mr NR. Mr Z Salway and Ms SE were required for cross examination.
The father relied upon the following documents:
·Financial Statement of Mr Fegley filed 20 February 2017;
·Affidavit of Mr Fegley filed 20 February 2017;
·Affidavit of Mr R Fegley filed 20 February 2017;
·Affidavit of Mr H filed 20 February 2017;
·Affidavit of Ms N Salway filed 20 February 2017; and
·Affidavit of Ms EN filed 20 February 2017.
The ICL relied upon the following documents;
a)Family Report of Family Consultant Ms AP dated 10 February 2017 (exhibit ICL1).
b)Family Consultant Memorandum of Ms AP dated 28 July 2016 (exhibit ICL2).
c)Family Report of Ms BX dated 30 October 2014.
d)Ms AP gave evidence on 3 March 2017.
Parenting matters
The Law - Concepts and Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These 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.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[25] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[25] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).
The presumption of equal shared parental responsibility
Section 61DA(1) 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”. Relevantly for these proceedings, s 61DA(4) provides that the presumption that “may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child of the child’s parents to have equal shared parental responsibility for the child.”
In this matter the parties agree that orders should be made for the child C to live with the father and for the child D to live with the mother. The parties accept the recommendation of Ms AP that the parent with whom the child lives should have parental responsibility in respect to that child. That is, that the father should have parental responsibility in respect to C and the mother should have parental responsibility in respect to D. I agree that is appropriate.
I note, however, that the mother has submitted that parental responsibility should be qualified by certain obligations to consult the other parent. I will subsequently address that submission.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein. Those arrangements may include equal time or substantial and significant time.[26]
[26] Goode & Goode (2006) FLC 93-286 at 80,899.
As I have previously noted, after consideration of the evidence including the evidence of Ms AP, and the submissions by the ICL, the dispute between the parties, concerning parenting, was narrowed. The point of difference between the parties primarily related to whether D should spend a block of four nights or five nights with his father. In addition, while both parties were of the view that C should not be compelled to spend time with his mother there was a dispute as to the extent to which any orders made in respect to C should be prescriptive in specifying an optimal amount of time and, in particular, whether there should be an aspirational order for C to spend overnight time with his mother.
Paramount consideration in making parenting orders
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the parties acknowledged that the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Additional Considerations
Section 60CC(3), sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant;
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The wife submits that she jointly purchased the property with the husband and made an initial contribution of $12,000 as result of having to repay a friend who had loaned the husband that amount in order to purchase the property.
The husband, however, denies that to be the case and asserts that he provided the totality of the non-borrowed funds to purchase the property.
I am not in a position to resolve the factual controversy as to whether the wife contributed the $12,000 towards the purchase of the Suburb W property however, for the purpose of this analysis, I will assume that the husband contributed the entirety of the non-borrowed funds towards the purchase of the property.
I therefore find that the husband’s initial financial contribution was $12,000. The contribution, however, needs to be seen in the context of the parties’ 20 year relationship and a marriage of over 18 years. Nevertheless, I accept the argument of counsel for the husband that the initial contributions marginally favour the husband.
Financial Contributions during the course of the parties’ relationship
Apart from taking six months on maternity leave after the birth of the parties’ children the wife was gainfully employed throughout the course of the parties’ marriage.[70] I am satisfied that the wife contributed her income to support the family.
[70] Affidavit of the wife filed 20 February 2017 at [281].
In September 1998 the wife received a redundancy payment of $25,000 which was based on seven years employment that she had had with her employer at that time.[71] I am satisfied that the wife also applied those monies to the payment of the mortgage and the family’s living expenses.[72]
[71] Affidavit of the wife filed 20 February 2017 at [281].
[72] Affidavit of the wife filed 20 February 2017 at [281].
In August 2010 the wife received a further redundancy payment of $65,000 which, I am satisfied she also applied towards the family’s living expenses.[73]
[73] Affidavit of the wife filed 20 February 2017 at [287].
The husband asserted that in 2006 he obtained $65,000 from his father to assist with the purchase of the unit in Suburb AC. The husband was not challenged on that assertion and I accept that contribution was made.
I am satisfied that, during the course of the parties’ marriage, the husband also contributed earnings towards the payment of the parties’ mortgage and the family’s living expenses.
I note that the wife has provided evidence that some of the business ventures which the husband engaged in were unprofitable and unsuccessful.[74] Nevertheless, I am satisfied that, in the context of a long marriage, the parties’ direct contributions to the marital property should be treated equally.
[74] Affidavit of the wife filed 20 February 2017 at [282]-[283].
Indirect Contributions
In terms of indirect contributions, there is a dispute between the parties as to which of them was the primary carer of the parties’ children. It is unnecessary to resolve that factual controversy. I accept that, other than in the latter years of their relationship which was affected by their intense disputation, both parties did their best in terms of assisting with the physical care of the children and providing them with emotional support. In that context, I am satisfied that the wife primarily focused upon assisting the children with their education and the husband primarily focused upon developing the children’s interest in sport. Again, in the context of the parties’ long relationship, I find that each of the parties made an equal contribution to caring for the children and providing for their physical needs.
I also accept that, during the parties’ relationship, the wife was primarily responsible for the upkeep of the house. This included attending to the majority of the household chores.[75] I also accept that the husband was primarily responsible for outdoor maintenance of the parties’ properties including maintaining the yard. Accordingly, I also regard the parties as having made an equal contribution in that respect.
[75] Affidavit of the wife filed 20 February 2017 at [320].
I am of the view that the wife is entitled to additional recognition of her contribution as a result of the fact that the parties and the children lived with the wife’s father between May 1994 to April 1995 and again from July 2009 until December 2011. I accept that the wife’s father did not charge the parties rent or board for this accommodation.
The second area where I am of the view the wife is entitled to additional recognition is that from the date of physical separation, being 8 September 2013 until 3 February 2015, the three children were primarily in her care. Since 3 February 2015 the parties’ youngest son D has been in the primary care of the wife and the oldest son C has been in the primary care of the husband. On balance, however, I am satisfied that the wife has made a greater post separation contribution than the husband in terms of providing care to the children.
Based on those two areas, where the wife is entitled to additional recognition for her contribution, I am of the opinion that there should be an adjustment on account of contributions to the matrimonial property of five per cent in favour of the wife.
Section 75(2) Factors
Section 79(4)(e) requires me to have regard to those matters set out in s 75(2) insofar as they are relevant. I regard the following matters as being of relevance to my consideration of these proceedings.
In terms of s 75(2)(a), the parties are of a similar age, the wife being 48 years of age and the husband being 49. There was no suggestion that either party is suffering from ill health.
In terms of s 75(2)(b), both parties are in gainful employment. The wife is employed in the public sector and I accept that her gross annual income is approximately $87,256 per annum.[76] The husband’s evidence regarding his income was unsatisfactory and, ultimately, resulted in him providing payslips during the course of the trial. According to those payslips, which were summarised in an aide memoire, the husband’s gross income for the financial year ended 30 June 2016 was $157,089.75 and for the seven and a half month period from 1 July 2016 until 15 February 2017 was $103,274.[77] I am therefore satisfied that the husband has a significantly greater earning capacity than the wife. This is a material consideration in terms of s 75 (2).
[76] The wife’s Financial Statement filed 20 February 2017.
[77] Respondent Husband’s Written Submissions Re Property Matter filed 13 March 2017.
Also, in terms of s 75(2)(b) I note that the husband has had access to a significant financial resource in the form of the wife’s mother who has funded his legal proceedings. In that context I note, at paragraph 259 of his Affidavit, the husband refers to a third party who has helped pay his legal costs and who has:
…also guaranteed funding for the final Hearing; without such guarantee, I would be left without legal representation after near enough to 3 ½ years of being involved in these proceedings…
The husband’s oral evidence that he is responsible for repaying monies provided to him by the wife’s mother in the sum of approximately $120,000 as well as being personally responsible paying for the balance of his legal fees, being approximately $150,000 is implausible. In that respect the husband gave evidence that he expected to be in a position to repay both amounts from bonuses and commissions that he anticipates earning during the next five years. The husband did not, however, provide any fee agreement from his lawyers to confirm the arrangement that he asserts exists in respect to payment of their fees being deferred for a period of five years. Further the husband’s evidence in respect to the terms of a verbal loan agreement between himself and the wife’s mother was particularly weak. As noted the wife’s mother was not called to give evidence.
In Bircher & Bircher and Anor [2016] FamCAFC 123 the Full Court judgment confirmed, unremarkably, that a party seeking to assert the existence of a loan is required to present credible evidence of the loan’s existence. Similarly, it is necessary for a trial judge to make findings as “to what the evidence revealed as to the terms of any loan agreement.” [78]
[78] Bircher & Bircher and Anor [2016] FamCAFC 123 at [61].
The husband asserted that the loan agreement with the wife’s mother was on the basis that monies lent to him would be repaid interest-free. The husband has not, however, provided evidence of the usual indicia of an intention to enter into legal relations including any of following:
333.1.When the agreement was made; or
333.2.What were the terms of the loan including:
333.2.1.Duration of the loan;
333.2.2.The required repayments.
There is a similar absence of such information in respect to the financial arrangement that the husband alleges he has entered into with his current solicitors.
In those circumstances, I find that the assertions contained in paragraph 259 of the husband’s Affidavit as being more likely to be true. Specifically, I find that the wife’s mother has provided approximately $120,000 to the husband to fund his legal proceedings to date and that she is the likely source of funding to satisfy his outstanding legal fees in the sum of approximately $150,000. It is, in my view, unlikely that the husband will repay any of those monies to the wife’s mother or that she will pursue him for the alleged debt.
On the other hand, I am satisfied that the wife is responsible for repaying a loan that has been taken out in her father’s name. As at the date of the wife’s trial Affidavit, that loan was for the sum of $146,284. The wife will also be responsible for paying the balance of outstanding legal fees which, when combined with the amount that has been borrowed will total the sum of approximately $178,000.[79]
[79] Exhibit W4.
In the context of the modest matrimonial property pool the funding provided by the wife’s mother to the husband represents a significant financial resource. This is a matter of significance in terms of my consideration of s 75 (2) factors.
In terms of s 75(2)(c) the husband will have primary care of C who is aged 14 and the wife will have primary carer of the D who is aged eight. Accordingly, the wife will have primary care of a child for a period of six years longer than the husband will.
In terms of s 75(2)(e) I have noted that the husband will primarily be responsible for the care of C and the wife will primarily be responsible for the care of D. The parties’ daughter B is a university student and it can be expected that both parties will assist her during the course of her studies, however, no specific evidence was provided in that respect. Accordingly, this consideration is not addressed by either party and is not a determinative factor in my consideration of s 75(2).
In terms of s 75(2)(f) I note that each of the parties has the benefit of superannuation. As I will separately consider the issue of superannuation it will not be addressed as a factor to be considered in respect to s 75 (2).
In terms of s 75(2)(g) I note that the wife currently lives with her father and the husband resides in rental accommodation. After almost 18 years of marriage, regrettably, the parties will be left with little in the way of assets. This will clearly impact upon their ability to obtain secure accommodation, provide for their retirement and enjoy a comfortable standard of living in the future. As noted, the wife’s challenge will be greater than that of the husband as a result of the wife having a lower earning capacity and having the obligation to meet her legal fees. As I have already had regard to those matters I will not consider them a second time.
In terms of ss 75(2)(k) and (l), I note that the duration of the parties’ relationship was approximately 20 years. The wife has been able to balance family responsibilities with her commitment to her career and her family responsibilities do not appear to have affected her career progression. I note that the wife also provided financial services to assist her husband’s businesses however there is insufficient evidence to enable me to conclude that such assistance made a material contribution to those businesses and, hence, the husband’s earnings.
In terms of s 75(2)(na), I note that C will live with his father and D will predominantly live with his mother. I am not in a position to determine the potential impact of the orders that I make in respect of parenting on the parties respective obligations and entitlements under the Child Support (Assessment) Act 1989.
In terms of s 75(2)(o) I have concluded that it is likely that a significant portion of the $33,000 paid by the husband to Mr EN was repayment of monies paid on behalf of Mr EN in respect to the husband’s legal fees. In the context of the relatively small asset pool that amount is not insubstantial and, accordingly, I have regard to the fact that the father obtained that personal benefit from the sale of a boat that had been acquired during the course of the parties’ relationship.
During the course of the trial there was considerable focus as to what consideration, if any, the Court should give to the fact that the father was unsuccessful in litigation arising from the sale of an RG boat. By way of summary the Court proceedings dealing with that matter found that the father was in breach of a contract to an initial purchaser and, as a result, as I understand the facts, the father was ordered to pay approximately $17,500 by way of damages. More relevantly, however, the evidence suggests that the father incurred legal fees in respect to the litigation of approximately $70,000 and was required to pay costs of the plaintiff of a further $70,000.
Counsel for the wife argued that the husband’s conduct in respect to the sale of the boat and the manner in which he conducted the litigation should be taken into consideration under s 75 (2)(o) of the Act.
That submission was based on Kowaliw & Kowaliw (1981) FLC 91-092, where Baker J said at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of the marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in paragraphs (a) and (b) above, having economic consequences is clearly, in my view, relevant under section 75(2)(o) to applications for settlement of property instituted under the provisions of section 79.
(emphasis added)
There was no suggestion that the husband engaged in the litigation for the purpose of deliberately reducing or minimising the effective value or worth of matrimonial assets. I have little doubt that, in retrospect, the father would regret his conduct and the manner in which the litigation was conducted. However there is no evidence before the Court that the husband acted contrary to advice or otherwise conducted himself in a manner that could be regarded as constituting conduct that was reckless, negligent or wanton.
Accordingly, I do not propose to have regard to the matters concerning the sale of the RG boat and subsequent litigation in determining whether there should be a further adjustment of the matrimonial property pursuant to those matters set out in section 75(2).
Evaluation of section 75(2) considerations
I have had regard to all of those s75(2) considerations, to which I have referred, in determining whether there should be a further adjustment of the distribution of the parties property.
The most relevant considerations are that;
351.1.the husband has a significantly greater earning capacity than the wife;
351.2.the husband has had access to a significant financial resource in so far as his legal fees have been met by the wife’s mother;
351.3.the husband has utilised matrimonial property to meet his own legal expenses;
351.4.the mother will have primary responsibility for caring for D for a period of six years longer than the father will have that responsibility in respect to C.
Having regard to those considerations including, most significantly, that the husband has a substantially greater earning capacity than the wife, I determine that a further adjustment of 10 per cent in favour of the wife is appropriate.
Superannuation
Counsel for the husband submitted that the Court should assess the parties’ respective superannuation entitlements globally in the context of the parties’ long marriage and in circumstances where neither party started the relationship with any greater superannuation. It was also submitted by the husband that there was no evidence of any significant post separation contributions relating to superannuation entitlements.
Further, the husband argued that “the danger of separating superannuation from the non-superannuation net property is that it is contrary to the accepted approach in relation contributions to matrimonial property that non-financial contributions such as homemaker and parent contributions are to be afforded the same weight as financial contributions.”
Counsel for the wife, on the other hand, argued that the wife should be given credit for the post separation contributions to the increase in her superannuation value. In that respect it was noted that as at 18 September 2014, which was about 19 months after the parties’ separation, that the balance of the wife’s superannuation account was $186,526.68 (Exhibit W13). The current balance of the wife’s superannuation account with First State Super it was agreed, is $234,232. It was submitted that the increase in the wife’s superannuation has occurred as result of contributions made by her employer post separation.
Coghlan & Coghlan [2005] FamCA 429(“Coghlan”) is authority for the proposition that while superannuation can be treated differently from the non-superannuation property pool, the points of difference relate to the particular characteristics of superannuation. Most relevantly, with superannuation, there is usually lack of access to the funds until the identified retirement or withdrawal date. In this case that is when the parties reach fifty-eight years of age. That lack of access, it was submitted, applies equally to both parties.
In Drewett & Drewett [2012] FamCA 320, Cronin J at [184] referred to Coghlan as providing a preferred approach to the treatment of superannuation wherein the majority of the Full Court said:
We consider the preferred approach to the determination of property settlement cases must be to prepare, in addition to the list of items of property which would clearly fall within the definition of that term in s 4(1), a separate list containing any superannuation, interest or interests valued according to the regulations if a splitting order is sought in any application before the court or if no such order is sought that either according to the regulations or otherwise.
In further discussing Coghlan, Cronin J said at [185] – [188]:
185. Their Honours said that whether or not a splitting order was sought on either party's application, their contributions to both the property as defined in s 4(1) and also the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. The s 75(2) factors would then be considered.
186. Similarly, the parties' future superannuation prospects, be they in capital or income form, would also need to be considered. The overall justice and equity of the ultimate award, including any proposed splitting order or the need for such an order, would then be considered. The Full Court then went on to set out how that pathway was to be followed. Their Honours then said:
In the context of the consideration of the matters referred to in subparagraphs (b) and (c) of a preceding paragraph in which they referred to the pathway the following matters may be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.
187. Their Honours then said:
If this approach is adopted whereby superannuation interests are dealt with separately from properties defined in s 4, but are subject to the considerations in s 79(4) then not only will any contributions both direct and indirect by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
In this case I was not addressed by the parties in respect to those matters referred to by the Full Court in Coghlan. That is, no evidence was presented and no submission were made in respect to:
359.1.the relationship between years of fund membership and cohabitation;
359.2.actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing;
359.3.preserved and non-preserved resignation entitlements at those times; and
359.4.any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.
I do accept, however, that the wife’s superannuation entitlement has increased by about 21 per cent since the parties separated.
I further note that the wife’s superannuation entitlement represents approximately 70.4 per cent of the parties combined superannuation entitlement.
In the circumstances I do not propose to treat the parties’ superannuation entitlements separately from the parties’ non-superannuation assets. This is because:
362.1.I have not been provided with information that would enable me to make the sort of assessment contemplated by the Full Court in Coghlan; and
362.2.There is not a great disparity between the adjustment percentage of 65 per cent, that I intend to apply in this case, as against the wife’s superannuation entitlement, which represents 70.4 per cent of the parties’ combined superannuation pool.
As the parties’ property can be adjusted in accordance with the percentage split which I propose to make in this matter without disturbing their existing superannuation entitlements I do not propose to make a superannuation splitting order.
Overview
I have therefore found that the net pool assets should be divided 65 per cent to the wife and 35 per cent to the husband. The net pool of assets as found by the Court (including superannuation) is $419,152 of which 65 per cent and 35 per cent equates to $272,448.80 and $146,703.20 respectively. This is excluding the NIB shares and the Origin Energy invoice where I propose to make separate orders which I will discuss below.
The wife currently holds the following assets and liabilities:
Table 1.
Description Value Half share in the monies held in controlled monies account Peter Williams Solicitor $35,241.50 Ford motor vehicle $6,000 Savings Commonwealth Bank $91 First State Super $234,232 $275,564.50 Less Half share XYZ Pty Ltd -$540 GE Credit Line card -$2,211 -$2,751 TOTAL $272,813.50
Accordingly, the wife holds net assets to the sum of $272,813.50, which exceeds her entitlement by $364.70.
As identified by the Court, the husband currently holds the following assets and liabilities:
Table 2.
Description Value Half share in the monies held in controlled monies account Peter Williams Solicitor $35,241.50 IAG Shares $2,775 Sporting Memorabilia $7,000 Box trailer $200 Savings – Westpac Banking Corporation $5,000 AMP Super - superannuation $73,178 Unknown – superannuation $200 MLC superannuation $25,028 $148,622.50 Less Half share XYZ Pty Ltd -$540 Electricity Fees -$1,744 -$2,284 TOTAL $146,338.50
Accordingly the husband holds net assets in the sum of $146,338.50, which leaves him with a shortfall of $364.70.
The orders will provide for each party to retain the assets and liabilities as set out Table 1. and Table 2. above, save insofar as the wife will be required to pay to the husband the sum of $364.70. I propose to make this adjustment from the sums that each party is to receive from the net proceeds of sale held in the controlled monies account of Peter Williamson, Solicitor. The wife will therefore receive the sum of $34,876.80 from the controlled monies account and the husband will receive the sum of $35,606.20.
The Orders will provide for the parties to retain their existing superannuation entitlements. I will also make an order that, in so far as he is not already in possession of the items, the wife is to return the sporting memorabilia to the husband within seven days of the date of the orders.
In addition to the above, the orders will provide for the wife, upon production of a receipt from the husband, to reimburse the husband for 35 per cent of the Origin Energy Invoice which is set out at item 23 in the sum of $2,746. Further, the orders will provide for the NIB shares to be sold with the proceeds of sale to be distributed 65 per cent to the wife and 35 per cent to the husband.
In taking a holistic overview to the consideration of these orders I am satisfied that the orders are appropriate, just and equitable for the following reasons:
372.1.Both of the parties have made direct and indirect, financial and non-financial contributions to the matrimonial property.
372.2.The wife has significantly less earning capacity than the husband.
372.3.It is likely that both parties will remain in the work force and continue to receive a reasonable income to meet their expenses and contribute to their future superannuation entitlements.
372.4.The wife aspires to obtain her own residence and, while she will receive a modest sum of money as result of the adjustment of this property her greatest benefit from the finalisation of these proceedings is that it will turn off what has been a substantial drain on her financial resources.
372.5.The amount distributed to the husband will be substantially less than the amount required to discharge his indebtedness however, having regard to his substantial earnings, with appropriate planning he will have the capacity to discharge his responsibility in respect to those debts.
Costs of the ICL
The wife submitted that the costs of the ICL should be met by the husband as a result of his superior financial resources and the manner in which he has conducted the litigation, including unsuccessfully pursuing contravention proceedings.
The husband argued that any order in respect to the payment of the ICL’s costs should not be determined until after the judgment is delivered.
I noted in these Reasons my observation that the parties have not been well served by this litigation. The litigation has also absorbed considerable public resources, including in respect to the costs of the ICL.
The conduct of the ICL and counsel instructed by the ICL has been exemplary throughout the proceedings. The Court has substantially adopted the recommendations of the ICL.
Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. However, this has no application to the ICL, who is not a party in the proceedings.
Subject to the statutory provisions set out below, s 117 empowers the Court to make orders for or against the ICL and such order as to costs of the ICL in such proportions as the Court considers just.[80]
[80] De Roma & De Roma [2013] FamCA 566
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
In this matter neither party has a grant of legal aid. I note that each party will obtain a lump sum as a result of the final property orders that I propose to make. While the husband has a number of debts he gave evidence in the proceedings that he expects to be the recipient of substantial bonus payments and commissions through his employment. I am not satisfied that either party would suffer financial hardship as a result of an order that they equally share in the costs of the ICL.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The matters relevant to determining what order, if any, should be made for costs are set out in s 117(2A). They are:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Accordingly, the ICL should be presumed to be unfunded and, in those circumstances, the Court is generally inclined to order the parties’ to contribute to the Independent Children's Lawyer’s costs.[81]
[81] Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566
Nevertheless, the considerations set out in s 117(2A) must be taken into account in deciding whether or not to order a party to pay the costs of another.[82] However, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made.[83]
[82] See In the marriage of I & I (No. 2) (1995) FLC 92-625.
[83] Fitzgerald(aschild representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at 130.
In this matter I have had regard to the considerations set out in s 117(2A). Those considerations that I regard as being of greatest relevance are set out in ss 117(2A)(c) and 117(2A)(g). In terms of s 117(2A)(g), I am satisfied that the approach of the ICL was consistently considered and balanced. This was particularly important in this matter where, in terms of s 117(2A)(c), the mother and father generally adopted a confrontational and uncompromising approach to the proceedings, including making serious allegations against the other a number of which I have found to be without substance..
There is no valid reason why the parties should not share equally in meeting the costs of the ICL.
I certify that the preceding three hundred and eighty-eight (388) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 9 June 2017.
Associate:
Date: 9 June 2017.
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