Sandoz & Sandoz
[2024] FedCFamC2F 825
•2 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sandoz & Sandoz [2024] FedCFamC2F 825
File number(s): PAC 2735 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 2 July 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of child.
FAMILY LAW – PROPERTY – Resulting trust – constructive trust – express trust – trust contentions not made out – just and equitable division of property.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D, 75, 79 Cases cited: Calverley v Green (1984) 155 CLR 242
Gillespe & Ngan [2023] FedCFamC1A 27
Khalif & Khalif [2021] FamCAFC 123
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 124 Date of hearing: 3 – 6 June 2024 Place: Parramatta Counsel for the Applicant: Mr Bennett Solicitor for the Applicant: Coleman Grieg Lawyers Counsel for the First Respondent: Mr Ford Solicitor for the First Respondent: Lewarne & Goldsmith Counsel for the Second Respondent: Mr Eardley Solicitor for the Second Respondent: Hammond Nguyen Turnbull Counsel for the Independent Children's Lawyer: Mr Schroder Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 2735 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SANDOZ
Applicant
AND: MS SANDOZ
First Respondent
MS CANNING
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 JULY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Major Decision Making
2.The mother shall have sole parental responsibility for all major decision making for the child, X born in 2015 provided that the mother notifies the father fourteen (14) days prior to any major decision being made in respect of major long term issues.
Live With
3.X shall live with the mother.
Communicate & Spend Time With
4.X shall spend time and communicate with the father during the New South Wales school terms as agreed and failing agreement between the parties as follows:
(a)A facetime call on Monday between 7.30pm - 8.30pm for a duration of no more than 15 minutes with the mother to initiate the facetime call.
(b)X is to be given privacy & the mother is restrained from timing such calls.
(c)In Week 1 X spend time with the father commencing on Thursday 13 June 2024 from Thursday at 3pm or after the conclusion of school until the commencement of school the following Monday or 9am in the event that Monday is not a school day and each alternate week thereafter.
(d)In Week 2 X spend time with the father commencing on Thursday 6 June 2024 at 3:00pm or the conclusion of school until Friday morning at 9.00am or the commencement of school and each alternate week thereafter.
5.For the purposes of these Orders that all changeovers are to occur at school or in the event it is not a school day then changeover shall occur at Suburb B McDonalds, and each party be restrained from leaving their motor vehicle, save and except for the purposes of collecting X from the other parent. The parent that is due to spend time with X shall exit the vehicle to collect X whilst the other parent remains seated in the motor vehicle.
Holidays & Special Occasions
6.Unless otherwise agreed between the parties, X shall spend time with the mother and the father on a week about basis during the shorter term school holidays after the conclusion of Terms 1, 2, and 3 as follows:
(a)The first week of the school holidays with the father from the conclusion of the last day of school that X is required to attend, until 10.00am on the middle day of the school holiday period (with such holiday period to include any public holidays and staff development days for the purpose of this calculation); and
(b)The second week of the school holidays with the mother from 10.00am on the middle day of the school holiday period including any public holidays until the commencement of school on the first day of the new term at X’s school (including any staff development days).
7.At the conclusion of the school holiday period, the parties will recommence time in accordance with Order 4(c) (Week 1) as the first week following the conclusion of the school holidays.
8.For the purpose of the school holidays following Term 1, in the event that the Easter period falls within the holiday period then any time that is lost in school holidays for the other party to have time over Easter shall be made up immediately following the Easter special occasions as provided for in these orders by the other party to ensure that the school holidays are equalized between the parties including any period of time for the Easter special occasions.
9.Unless otherwise agreed and varied between the parties, X shall spend time with the mother and father during the longer Christmas School Holiday period at the conclusion of Term 4 in the following manner:
(a)The first seven (7) nights with the father commencing from the last day of school that X attends until 10.00am on the 8th day after the conclusion of school.
(b)The following fourteen (14) nights with the mother with changeover to occur at 10.00am for the purpose of this time.
(c)For the purpose of calculation of the mother's fourteen (14) nights during this period that any night X is with the father for the Christmas Eve shall not be included in the calculation of the mother’s fourteen (14) nights for holidays.
(d)The following fourteen (14) nights with the father with changeover to occur at 10.00am.
(e)The remaining school holiday period with the mother until the commencement of the first day of school that X attends.
10.At the conclusion of the school holiday period, the parties will recommence the periodical time in accordance with Order 4(c) above for the first school term.
11.Unless as otherwise agreed by the mother and the father the following shall apply:
(a)the father shall spend time with X on the following special occasions:
(i)If X is not otherwise in the father’s care from 6pm the day before Father’s Day until 9am, or the commencement of school if a school day, the Monday after Father’s Day.
(b)The mother shall spend time with X on the following special occasions:
(i)if X is not otherwise in the mother's care from 6pm the day before Mother’s Day until 9am, or the commencement of school if a school day, the Monday after Mother’s Day.
Specific Parenting Issues
12.Each party is to keep the other party informed at all times of their address, email address and mobile number, and notify the other within 48 hours of any change to any of those details.
13.Neither party shall physically chastise X.
14.The parties shall:
(a)Keep each other informed of the names and addresses of any medical or other health care practitioner who treats X.
(b)Inform each other, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by X.
(c)The parties are authorised to obtain, at his or her own expense, from any treating medical or health practitioner X's medical information and both parties are at liberty to provide a copy of these orders to any treating medical practitioner as required.
(d)The parties are authorised to obtain from any school, sporting organization or other extracurricular activity attended by X information about X's progress, and obtain copies of reports, photographs, correspondence, certificates, and awards received by X (at the requesting parent's cost).
(e)Each party is restrained from denigrating or criticizing the other, or any member of the parties' extended family, in the presence or hearing of X and from permitting X to remain in the presence or hearing of another person denigrating the other.
(f)Each parent to be restrained from attending any extracurricular activity or training session attended by X including but not limited to sporting events, swimming or other non-school related extra curricula activity if the activity does not take place during the party’s time with X pursuant to these orders.
(g)For the purposes of the preceding subparagraph, should X be participating in an end of year function for such activity or final game then both parties shall be at liberty to attend such semi or grand final or end of year celebration noting that each party must maintain an appropriate distance from each other and not engage in contact with the other party.
(h)The mother and the father shall each ensure that they have their own school uniforms, sports uniforms including any uniforms for extracurricular activities and appropriate clothing and shoes for X whilst in their care.
(i)The mother & the father shall each provide the other party with the first right of refusal for any period exceeding 1 night to care for X in the event the party is unable to care for X pursuant to these orders or is otherwise away on leave during any period X is in that parties’ care.
(j)Save and except for emergencies about X, each party is restrained emailing, messaging, phoning or contacting the other party, and for the purpose of this order, the mother & the father are to use a parenting application such as My Family Wizard in respect of parenting issues for X and each parent shall download the parenting App as directed by the Court within 7 days of such order being made.
Overseas Travel
15.The child X born in 2015, a male, be removed from the Airport Watchlist.
16.Both parties do all necessary acts and sign all necessary documents so as to cause:
(a)That X’s Australian passport which is currently held pursuant to Orders made 30 January 2023 by the Parramatta Registry of the Federal Circuit and Family Court of Australia is to be released to the mother and thereafter remain with the mother for safe keeping save and except when X is travelling overseas with the father; and
(b)An updated passport is to be obtained for X at any time a current passport expires or, is due to expire, the parties shall do all acts and things necessary to cause such passport to be re-issued with such cost to be shared equally by the parties.
17.Each of the parties are permitted to internationally travel with X save and except to any country to which there is a ‘DO NOT TRAVEL WARNING’ issued by the Commonwealth Government provided such travel is in their time as set out in these Orders on the basis that the following has occurred:
(a)That the travelling party provides to the non- travelling party with 21 days notice of their intention to take X overseas; and
(b)That the travelling party will furnish to the non-travelling party an accurate itinerary to include the following:
(i)the departure and return dates,
(ii)the country or countries the party and X will be travelling to,
(iii)the approximate dates on which the travelling party and X will arrive and depart each country; and
(iv)a telephone number and address at which the travelling party and X can be contacted in each country.
ICL Discharge
18.Within fourteen days (14) of the date of the making of these orders, the ICL shall make arrangements with a party to meet with X either in person or via an agreed electronic platform to explain the final orders & thereafter is discharged from these proceedings.
AND THE COURT NOTES THAT:
A.The father should consult with his General Practitioner (GP) and seek to obtain a mental health care plan for treatment of possible problematic alcohol consumption and thereafter engage with a psychologist recommended by the GP for such treatment.
B.The mother should consult with her GP and seek to obtain a mental health care plan for treatment of her anxiety in relation to the child spending time with the father and thereafter engage with any psychologist recommended by the GP for such treatment.
AND THE COURT FURTHER ORDERS THAT:
Property
19.The Second Respondent’s application for a declaration that the wife holds her legal interest in the property situate at C Street, Suburb D, NSW on trust for the Second Respondent is dismissed.
20.The wife and Second Respondent’s applications for a declaration pursuant to s 78 of the Family Law Act 1975 (Cth), that the wife has no beneficial interest in the property situate at C Street, Suburb D, NSW, are dismissed.
21.The totality of the sale proceeds held in the trust account of Effective Legal Solutions of $1,088,435, be forthwith dispersed between the parties as follows:
(a)Husband: 45 per cent,
(b)Wife: 55 per cent.
22.Simultaneously with the above Order, the wife shall pay to the husband the sum of $154,894.
23.Except as otherwise provided in these Orders, the husband be solely entitled, to the exclusion of the wife to the following:
(a)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;
(b)Furniture, furnishings and effects in his possession or control;
(c)All interests in life insurance policies and superannuation funds standing in his sole name;
(d)Any other item of personalty or financial resource in his possession or control.
24.Except as otherwise provided in these Orders, the wife be solely entitled, to the exclusion of the husband to the following:
(a)The wife’s interest in the property situate at and known as C Street, Suburb D, and the wife shall continue to be responsible for any indebtedness of any mortgage over the property and will keep the husband indemnified of any liability or indebtedness in relation to that property;
(b)All motor vehicles in her name;
(c)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;
(d)Furniture, furnishings and effects in her possession or control;
(e)All interests in life insurance policies and superannuation funds standing in her sole name;
(f)Any other item of personalty or financial resource in her possession or control.
25.Subject to these Orders, each of the husband and the wife release the other from all actions, proceedings, claims, demands, debts, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
26.Each party will do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing related to parenting and property matters.
There is one child of the relationship between the mother and the father, X born in 2015 (the “child”).
Under interim parenting orders of 30 January 2023, the child lives with the mother and spends time with the father, inter alia, four nights each fortnight during school terms.
Under interim parenting orders of 19 December 2023, inter alia, the child was removed from the Family Law Watchlist, the child was to spend time with the father during the 2023/2024 Christmas school holiday period for certain block periods of time including January 2024 (with the father being permitted to take the child on an international holiday in January 2024).
The mother’s father and mother were joined to the proceedings by consent on 19 December 2023 as the Second and Third Respondents.
The mother’s father, the Second Respondent, passed away in 2024 and accordingly was removed as a party to the proceedings by consent on 2 May 2024. Thereafter, each of the parties referred to the mother’s mother as the Second Respondent or the maternal grandmother. For ease of reference the Court herein refers to the mother’s mother as the maternal grandmother.
MATERIAL RELIED UPON
The Applicant father relied upon:
(a)Further Amended Initiating Application filed 26 October 2023;
(b)His affidavit filed 21 May 2024;
(c)His Financial Statement filed 21 May 2024;
(d)Defence to Points of Claim filed 12 September 2023;
(e)Single Expert Report of Ms E;
(f)Valuation Report by Mr F for C Street, Suburb D, and;
(g)Case Outline filed 30 May 2024.
The First Respondent mother relied upon:
(a)Amended Response to Initiating Application filed 5 April 2024;
(b)Her affidavit filed 21 May 2024
(c)Her Financial Statement filed 21 May 2024;
(d)The husband’s Amended Initiating Application filed 26 October 2023;
(e)The husband’s affidavit filed 21 May 2024;
(f)The husband’s Financial Statement filed 21 May 2024;
(g)Response to Initiating Application filed 19 December 2023
(h)Affidavit of Mr G filed 19 December 2023;
(i)Affidavit of Ms Canning filed 22 May 2024;
(j)Financial Statement of Ms Canning filed 22 May 2024;
(k)Single Expert Report of Ms E filed 22 September 2023
(l)Valuation Report of Mr F for C Street, Suburb D filed 17 May 2024, and;
(m)Case Outline filed 30 May 2024.
The Second Respondent (the mother’s mother) relied upon:
(a)Response to Initiating Application filed 19 December 2023;
(b)Her affidavit filed 22 May 2024;
(c)Her Financial Statement filed 22 May 2024, and;
(d)Case Outline filed 29 May 2024.
The ICL relied upon:
(a)Affidavit of Ms E sworn 15 September 2023 annexing the Expert report dated the same date;
(b)Child Impact Report of Mr H dated 27 October 2022, and;
(c)Case Outline filed 30 May 2024.
The following documents became exhibits:
(a)Exhibit A: Duplicate of the folder made by the mother for the child X;
(b)Exhibit B: Part 2 of the respondent mother’s tender bundle;
(c)Exhibit C: Email with spreadsheet dated 14 May 2018;
(d)Exhibit D: Text messages;
(e)Exhibit E: Family Report and Child Impact Report;
(f)Exhibit F: Item 1 (1-22) of husband’s tender bundle, Item 10 and Item 11, 12 (Title Search);
(g)Exhibit G: Letter of s 50 Summary and s 50 Summary;
(h)Exhibit H: Joint Balance Sheet;
(i)Exhibit I: ICL’s proposed minute;
(j)Exhibit J: Mother’s proposed minute;
(k)Exhibit K: ICL’s amended proposed minute.
PARENTING
Proposals
The father seeks orders as set out in his Case Outline, inter alia, that the parties have equal shared parental responsibility for the child, the child ultimately live with the parties on a week about basis, and that the parties communicate via Our Family Wizard in relation to all issues relating to the child.
The mother seeks orders as set out in her proposed Minute of Order handed up in court on 6 June 2024, inter alia, that the mother have sole decision making responsibility for major decisions to be made for the child, the child live with the mother, and spend time with the father for 5 nights each fortnight during school terms.
The Independent Children’s Lawyer (the “ICL”) seeks orders as set out in her Minute of Orders, inter alia, that the child live with the mother, the child spend time with the father 5 nights each fortnight, and that the mother have sole decision-making responsibility for the child.
Evidence
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 Cth (“the Act”)) (see below).
The Court found that the parties, when giving their oral evidence, usually sought to give responsive answers to questions asked of them. Their demeanour was unremarkable.
Family Report
The Family Report dated 15 September 2023 was prepared by Court Child Expert Ms E, psychologist. She conducted interviews with the family in June and July 2023 and conducted observation sessions in June 2023.
In respect of each parent’s presentation, the Court Child Expert said:
14.[Mr Sandoz] presented as articulate and personable on interview. He spoke in detail about [X] and demonstrated that he gives thought to raising [X]. At times, on interview [Mr Sandoz]'s narrative appeared to be deliberate and he would at times make comments but be unable to provide further detail. He presented as inconsistent in his capacity to prioritise [X]'s needs above his own. [Mr Sandoz] did not demonstrate a clear capacity to reflect on the impact of his behaviour or take on feedback.
…
54.[Ms Canning] presented as a highly organise and articulate person. She attended the session with extensive notes about issues related to [Mr Sandoz]. [Ms Canning] became overwhelmed at times during the interview and presented as anxious. She indicated that she was personally affronted and highly impacted by the allegations that [Mr Sandoz] has made against her. [Ms Canning] made allegations about [Mr Sandoz] but was not always able to provide a clear narrative to support her allegation. When speaking about [X], [Ms Canning] demonstrated a capacity to consider his development and acknowledge his perspective.
Under the heading “Child Protection Issues” the Court Child Expert said:
107.[Mr Sandoz] said that he reported [Ms Canning]'s alleged violence towards the children to the Police. He said that they determined that it was "lawful chastisement''. [Mr Sandoz] maintained that he thinks [Ms Canning]'s discipline was inappropriate. [Mr Sandoz]'s assertion is supported by the material produced under subpoena from NSW Police. [X] was forensically interviewed [in early] 2022 and the notes state that [X] made a disclosure of being slapped on the leg on one occasion by [Ms Canning]. However, it is noted that "the child makes no disclosures of assaults matching the reported incidents" and "there is not enough from this interview to establish anything other than legal chastisement".
108.[Mr Sandoz] said that he was advised by the Police to make a report about [Ms Canning]'s discipline of the children, to the Department of Communities and Justice. He said that he received "a couple" of follow up calls to see how he was but other than that they did not intervene.
109.[Mr Sandoz] reported that he has asked [X] to tell him if [Ms Canning] physically disciplines him and asks him questions such as "are you OK at home?", "Is there anything you want to tell me?" and "Has Mummy been angry with you?".
110.[Mr Sandoz] commented that he prays to God "every night" that [Ms Canning] is not violent to [X]. In summary, [Mr Sandoz] said he believes that [X] continues to be at risk in [Ms Canning]'s care and said he thinks be is at risk of physical harm, "constant alienation" and "trying to isolate" [X].
111.[Ms Canning] denied ever smacking the children. She said that she used to use the "naughty corner" and now confiscates devices. She said that [X] has asked her if she is going to smack him when he has misbehaved and recalled that she said to [X] that her smacking is a "story" that [Mr Sandoz] has told him and [X] said "OK". [Ms Canning] said that [K] and [L] have also told [X] that it is a "lie" that she has smacked them.
Under the heading “Family Violence” the Court Child Expert said:
117.[Mr Sandoz] spoke on numerous occasions throughout the interview of [Ms Canning]'s alleged perpetration of physical violence towards him. He alleged that the physical violence commenced around two years before the separation and entailed [Ms Canning] 'lashing out' and pushing his arm, which he said did not cause injuries, on a few occasions. [Mr Sandoz] said that the worst instance of violence occurred when [Ms Canning] was yelling and screaming and threw [objects] at him. He said that one [object] hit him on the [leg] which caused a "scratch and bruise". [Mr Sandoz] said at the time he felt "concerned and fearful" and when asked further what he was fearful of, he said "that it would escalate further". [Mr Sandoz] said that during this incident he told [Ms Canning] to calm down and leave the garage and he then started recording her to stop her behaviour. [Mr Sandoz] said that there was an occasion when [Ms Canning] threw [an object] at him, and it missed him but smashed the window behind him. He was asked about [Ms Canning]'s response to her actions and he said that he asked her to fix the window and get counselling. [Mr Sandoz] said that there was another occasion when he started recording [Ms Canning] on his mobile phone and she "backhanded" him in the chin and grabbed the phone. He commented that he still has the audio recording of the incident but had forgotten about it at the time he made family violence allegations to the Police. [Mr Sandoz] said that it would add too much conflict to provide this material to the Police now. [Mr Sandoz] said that [X] did not witness any of the alleged incidents of family violence.
…
129.Ms [Canning] said that she has felt harassed by [Mr Sandoz] following the separation. She said that he used to send her things via [X] such as a chocolate that claimed to be for ‘emotional rescue’ and a necklace. [Ms Canning] also reported that [Mr Sandoz] tried to send photo frame with a picture of him and [X] for her house. She said that she felt really scared when she thought that the stuffed [animal] was a real [animal] and [X] was upset by her reaction.
130.[Mr Sandoz] said that [Ms Canning] made a complaint about him to the Police after [X] took a stuffed [animal] home to Ms [Canning]’s in his bag. He said that the Police officers involved thought the report was a "joke" and that [Ms Canning] only made the report to get an event number. [Mr Sandoz] said that [X] was interviewed by Police and told them that he had taken the [stuffed animal] home to show his brothers. [Mr Sandoz] said that "maybe seeing a fluffy [animal]" was unsettling for [Ms Canning] and added that it was not very [life] like. It is noted in the material produced under subpoena from NSW Police that [Ms Canning] did report the matter to the Police, that [X] was not interviewed by Police as she said she did not want him to have to be involved and the Police did not appear to believe an offence had occurred. At the time of the Police speaking with [Ms Canning] about the stuffed [animal], she complained that [Mr Sandoz] had been sending her "hurtful" messages about the possibility of him taking [X] to a [sports] match and the Police viewed the messages and said that "there were no intimidating messages".
131.[Ms Canning] alleged that [Mr Sandoz] has taken possession of her folder containing important documents such as her birth certificate, degrees, passport and [Country M] identity card but has denied that he has it. She said that [Mr Sandoz] recently produced a document that contained her [Country M] Identity Card number which confirmed her belief that he has the folder.
Under the heading “Alcohol and other substance use” the Court Child Expert said:
143.… When asked why he was prescribed medication for alcohol use, [Mr Sandoz] said "I knew it was not good". [Mr Sandoz] was avoidant when explaining why his consumption was not good and he eventually said he did not want [X] to see him consuming alcohol and that his alcohol impacted his "capacity to spend time with [X] ". [Mr Sandoz] said that he attended one session of Alcoholics Anonymous and explained "I quickly realised I did not need that".
144.At the second interview, [Mr Sandoz] said that he did consume "probably too much" alcohol at the end of the relationship and said that the trigger was the marital breakdown and being unhappy. He did add that this was no excuse for his alcohol consumption.
Under the heading “Interview with [X]”, the Court Child Expert said:
168.[X] was asked to rate a variety of arrangements, with ten out of ten being the most positive end of the scale and zero out of ten being the most negative. [X] rated that current arrangement a seven out of ten and a reversal of the current arrangement a seven out of ten. [X] said that a week about arrangement would be one half out of ten because it would be too long between seeing each parent. He said that the current arrangement with one additional night with [Mr Sandoz] would be an eight and a half out of ten and when asked for his reasoning for the rating he said "my dad always whinges that I have my mum way more". [X] then added that "mum always says you are supposed to be with a mum more". [X] said that he had told 'his lawyer' that he wanted one more night with [Mr Sandoz] but said that this did not eventuate and he did not know why. [X] commented that he had felt "so nervous" when he had been to see "his lawyer" and had felt "a bit nervous" for this interview and said he was worried about being liked.
…
181.[X] said that the thing that would make him happier would be if he could spend one more day with [Mr Sandoz]. He then said he would also really want to know which of his parents initiated the separation and "went away". [X] emotively said that be really wants to know "who is the good guy and who is the bad guy" of his parents and said an emphatic "yes" when asked if it is really hard to work it out. [X] went on to explain that [Mr Sandoz] and [Ms Canning] have "different tales" and said that "one of them is lying".
Under the heading “Evaluation”, the Court Child Expert said:
189.… At the end of the observation session when [Mr Sandoz] demonstrated his need for [X] to affirm him, by asking if [X] loved him, [X] was responsive to [Mr Sandoz]'s needs. [X] appears to have a temperament that inclines him towards being eager to please others. [X]'s temperament makes him particularly vulnerable when being exposed to the parental conflict and negativity about the other parent. At times throughout his interview, [X] clearly demonstrated the impact of the ongoing parental conflict and his exposure to inappropriate information from both parents. It was very concerning that [X] (at the age of seven) felt it was so important that he know which parent left the other. This raised concern about how the parental separation has been explained to [X] and that he has been exposed to ideas that might indicate that he might be expected to hold different views or engage in different behaviour depending on who initiated the separation. Likewise, it was extremely concerning that [X] was so invested in wanting to know which of his parents is the "good guy" and which is "the bad guy". It is clear from [X]'s interview, and also the narratives provided by the parents, that [X] is being placed in a position of loyal conflict between his parents.
…
194.[Mr Sandoz] presented as somewhat emotionally reliant on [X] and it appears that at times he struggles to prioritise [X]'s needs above his own. [Mr Sandoz]'s behaviour at the time of his separation from [X] at the end the observation session, appeared to be a demonstration of him prioritising his need to be affirmed and assisted to manage his feelings about their separations above [X]'s needs. [Mr Sandoz]'s narrative about [X] did not impress as particularly developmentally sensitive or child focussed. Based on the information available at the time of writing this report, [Mr Sandoz] appeared to have a limited capacity to take on feedback or observe people's reactions to him and allow this to influence his behaviour. This is problematic in terms of his parenting skills as it is likely to be experienced by [X] as not prioritising his feelings and thoughts and teaching [X] to be compliant rather than expressive of his experience and views.
195.[Ms Canning] presented as a caring, reflective and anxious parent. Her discussion about [X] demonstrated an understanding of development and she demonstrated a capacity to acknowledge that [X] has views different to her own and experiences [Mr Sandoz] differently to how she does. It is noted that [Mr Sandoz] makes allegations of [Ms Canning] not supporting his relationship with [X], however, [X] presented as a child who has psychological permission to enjoy and cherish his time with [Mr Sandoz]. [Ms Canning] presented as unconditionally loving towards her three children.
…
205.Based on the information available at the time of writing this report, it appears that the living and spend time orders are likely to be meet [X]'s needs if they remain the same or are extended to include one additional night. The current orders appear to be sufficient to allow [X] to maintain meaningful relationships with both parents, have a variety of caregiving experiences with both parents and have experiences that reflect his cultural heritage and family culture in both households. However, the additional of one more night would provide [X] with the opportunity to spend additional time with [Mr Sandoz], without placing too much more pressure on the fragile coparenting relationship. [X] spending each Thursday night with [Mr Sandoz] would provide him with the opportunity to participate in an activity or ritual with [Mr Sandoz] each week and could provide them with a shared experience. Additionally, it would not require additional transitions between the two households for [X]. Given [X]'s age and stage of development, and his relationship with both parents it is recommended that he continue to spend time with both parents each week, as he would likely find the period of separation from [Mr Sandoz] too long if he only spends time with him each alternate week. However, it is noted that once [X] is older, if the coparenting relationship continues to be problematic, consideration could be given to blocking [X]'s time with [Mr Sandoz] in order to reduce the number of transitions that [X] is required to do between the households. If the Court finds that there is veracity to [Mr Sandoz]'s allegations that [Ms Canning] is intentionally rejecting legitimate efforts by [Mr Sandoz] to coparent [X] for her own gain and is unwilling to support [X]'s relationship with [Mr Sandoz] then [X] having the opportunity to spend the additional night with [Mr Sandoz] may be indicated. If [Ms Canning]'s allegations of [Mr Sandoz] engaging in family violence and engaging with her in a threatening and intrusive manner then it would appear to contraindicate increasing [Mr Sandoz]'s time with [X].
The Court Child Expert gave oral evidence. The Court does not propose to set out the entirety of that evidence.
Counsel for the ICL cross-examined the Court Child Expert:
COUNSEL:If I can ask you in relation to what I will term the parental responsibility issue, well, what would be the criteria that you would be looking for in relation to co-parenting between the mother and the father in this case to effectively have joint decision-making responsibilities? What would you be looking for?
WITNESS:I – I guess essentially I would be looking for the parents’ capacity to discuss and consult each other on decisions. And – and I guess falling within that is whether or not the parents have respect for each other and a capacity to listen to the other person’s views and integrate the other person’s views into their decision-making. That would be kind of, I guess, the main thing, and I would be looking at, I suppose, the history of the parents’ capacity to navigate decision-making and issues that arise day to – well, I guess that this is about major decision‑making, but the issues that arise and have arisen since the parental separation.
COUNSEL:Would you be looking for trust between the parents as to the other’s parenting capacity – that there be some trust between them?
WITNESS:Yes, the trust and respect about the other parent is an important factor, definitely, in being able to execute joint decision-making.
COUNSEL:Did – was there anything that you read or in your interviews or indeed in your observation sessions that would cause you some concerns in relation to the mother and the father being able to co-parent in such a manner?
WITNESS:Well, I guess just picking up on the issue of trust, I mean, both parents indicated they had a very low level of trust for the other parent and their parenting capacity. So, for example – I’m not sure I can find quick – in a timely manner, but – in my report, but the – the mother had said to me that she feels extreme levels of anxiety every time [X] moves into the care of the father. And the father had made some sort of comment, and someone might be better at identifying the exact spot, but the father had made some sort of comment about – think it was that he prays every day or that – that he’s significantly concerned about [X]'s physical safety in the wellbeing of the mother. So I guess there was, you know, quite direct and specific comments on interview made by both parents suggesting that there was quite a low level of trust. Obviously, there’s a history of the parents trying to engage the police in what I would consider not significant risk issues and needing to seek kind of that level of intervention to try and negotiate concerns they had about parenting. So – and then there seems to be evidence of ongoing difficulties even navigating the quite specific orders that this family already have, so I believe between the first interview I did with the parents and the second interview, there was even an issue where the parents hadn’t been able to work out how to manage – think it was a – a – a pupil-free day or some sort of staff day at the beginning of term which they hadn’t been able to manage, and, you know, again it had to involve the solicitors. So there seemed to be – there were certainly indicators throughout the interview, both from the comments made by Mum and Dad, that they would have difficulty or that they were having significant difficulty executing and co-parenting [X]. I guess I also formed the opinion that – that both parents were contributing to that problem as opposed to it just being one parent who was contributing to that.
…
COUNSEL:And [X] expressed to you, it seems, in paragraph 166, that he wished to spend some more time with his father. And I think at – it may have even been – well, certainly he wanted to spend more time with his father. When [X] was talking to you about that, did you get – give the impression that they were the genuine views of [X] or that he had been coached to say those things to you?
WITNESS:I didn’t get the impression that he had been specifically coached, but I – I definitely got the impression that he had been exposed to sort of, you know, multiple and possibly regular comments by – by Dad about the fact that he gets to spend more time with Mum and that Dad was sort of missing out on time and doesn’t get to see him much. So I – I didn’t – you know, he didn’t sort of – because there was sort of some – a little bit of ambivalence there in – with him in that he sometimes on interview said he wanted one more night, whereas at other times he kind of said he wanted it to be even, he didn’t sort of present as one of those children who came in and, you know, immediately sat down and recited what he had been told he had to recite. So he certainly didn’t present like that, but he did present as though he had very much been exposed to the father’s view that he wasn’t spending enough time with his father.
The Court questioned the Court Child Expert:
HIS HONOUR: If the court is considering the possibility of ordering five nights a fortnight – the child spending time with the father during school terms---?
WITNESS:Yes.
HIS HONOUR: ---the question of the parties’ ability to adequately communicate with each other on co-parenting matters, if the court was considering making that order – have you considered whether an increase in time from four nights a fortnight during school terms to, say, five nights a fortnight during school terms – whether the parties could still or adequately communicate on co-parenting matters relating to the child – could be achieved in that greater duration of time, namely five nights a fortnight during school terms?
WITNESS:So I think, your Honour, you’re asking me, “Would the increase in time exceed the parents’ capacity to co-parent because of increased time?”
HIS HONOUR: Yes?
WITNESS:Okay. Look, I – I mean, your Honour, you’re right. That is an important consideration. I suppose it – in weighing everything up, it was – would be – unless – I guess my caveat is depending on the – the severity – the – your findings, your Honour, on the severity of the family violence, but the – it would be my view that an additional night – and I – I had recommended in my report that it be a Thursday night for sort of consistency. It wouldn’t – it’s my view that that wouldn’t significantly increase the need to kind of communicate compared to doing the four nights. I guess I’m thinking in having the Thursday night, it would give the dad opportunity – you know, maybe [sports] can be Thursday night, and then that’s Dad’s thing, and he takes him to [sports], and there’s less kind of, you know, need to communicate about Mum’s Thursday night verse Dad’s Thursday night, if that makes sense, your Honour. So I guess I kind of think it – it actually kind of segments the time a little bit neater, which can assist with that kind of co-parenting difficulty. I also – I guess I kind of think in considering, your Honour, sole PR or – or sole decision-making to Mum, I suppose that has the potential to kind of have that, you know, one parent who is the leader in making those decisions, whilst [X] can have a little bit more time with Dad so he can kind of – you know, that’s positive for his relationship, but Mum then manages the decision‑making, which then reduces the need for Mum and Dad to try and negotiate things together. So I guess I’m kind of thinking that little bit of – Mum having that kind of leadership there can reduce some of that toxicity, which then opens the door for a little bit more time with Dad in terms of [X]'s relationship. I guess I also think a way of reducing the co-parenting conflict is the court having some orders that are really, really clear about what activities and things each parent can attend, and so in terms of increasing the time a little bit, that – I think that gives Dad – if there’s going to be really clear black-and-white orders about, you know, not attending events unless they’re very special events in the other person’s time, I think in increasing that time for [X], it gives Dad a little bit more opportunity to go to school events, for example, that happen on a Thursday. And then those other orders that would be really clear about that would then sort of scaffold how that gets arranged, if that kind of makes sense. So I guess it’s a kind of weighing up of all the factors, but that’s – those are my thoughts on – on that particular issue, your Honour.
The Court accepts the evidence of the Family Report writer subject to any contrary view expressed by the Court below, whether express or implied, in its discussion of relevant matters under s 60CC of the Act.
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, a court must consider the matters set out in subsection (2) and, if the child is an Aboriginal or Torres Strait Islander child, must also consider the matters set out in subsection (3).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The parties each make allegations of family violence against the other. Significant denials were made by each of them.
During the relationship the mother threw some objects towards the father which did not hit him. She had also thrown an object towards him which did not hit him, in another incident. These actions by the mother were not part of any pattern of behaviour and arose by reason of frustration experienced by the mother in relation to at least her concerns relating to the father’s drinking.
On the balance of probabilities, the Court does not accept that the father perpetrated coercive or controlling family violence against the mother. The Court does not accept that the father made any threats to the mother as alleged by her. The Court does not accept that the father intentionally sought to harass or intimidate the mother.
The parties’ separation was on about 29 June 2021.
The father admitted attending the funeral of the maternal grandfather despite the mother’s request to him that he not attend. This was insensitive of the father; however, the Court does not accept that the father attended the funeral to harass or intimidate the mother.
The Court does not accept that the father’s quite significant attendances at the child’s school and extracurricular activities post separation have been carried out by the father to harass or intimidate the mother. The Court finds that, as with the mother, he is genuinely interested in the child’s overall positive development and thereby wants to support the child in his various endeavours. However, the Court does find that he has been insensitive to the mother’s protestations to him that she finds his above attendances personally uncomfortable.
The Court assesses that, on balance, there is probably no significant prospect of either party perpetrating family violence against the other or towards the child.
(2)(b) any views expressed by the child;
The child expressed to the Court Child Expert the desire to spend increased time with the father. The Court gives some weight to his views but not significant weight, particularly taking into account the conversations that he has had with the father relating to spending increased time with the father.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The child is developing well in each party’s care. He appears to be a child who is meeting all his developmental milestones.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The parties have such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child will benefit from the maintenance of his present positive relationships with each of the mother and father. Should the child now spend, in particular, five nights each fortnight during school terms with the father, importantly, there is a significant prospect that the child’s positive relation with the father can be not only maintained but enhanced.
The Court is of the view that these parties would probably struggle to adequately co-parent the child in an equal time arrangement without significant conflict. Such an arrangement requires a particularly optimal co-parenting relationship which these parties do not enjoy. The parties’ co-parenting communication with each other is less than optimal and has been so post separation. The father agreed that past coparenting communications with the mother had been quite difficult. The mother agreed that the parties’ relationship had developed to be a toxic relationship as far as parenting of the child was concerned.
The parties communicate with each other via a parenting app. They do not regularly speak with each other face to face or have telephone calls with each other. In about late December 2022 the father had sent voluminous emails and text messages to the mother which continued even after the mother remonstrated with him.
There is a significant mistrust between the parties in relation to their respective parenting of the child. An example of their mistrust was their respective complaints to police post separation, in respect to matters that should have been resolved without police involvement.
The parties should be able to adequately co-parent the child without significant conflict should the child spend, in particular, five nights each fortnight during school terms with the father, and provided orders are crafted which minimise the potential for the parties to come into contact with each other in the presence of the child.
The evidence of the Court Child Expert is consistent with the above views.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The Court finds that historically the mother has been the child’s primary carer. The father assisted the mother with such care during the parties’ relationship. He has spent time with the child post separation to date.
The Court finds that the father did not intentionally seek to contravene order 10(vi) of the Court’s Orders of 30 January 2023.
The Court finds that during the parties’ relationship, and particularly from about 2019 and up to at least about mid-2022, the father probably was consuming alcohol excessively and had a dependency upon it. That consumption was probably significantly related to difficulties in the parties’ relationship being experienced by the father. Whilst the father has continued to consume alcohol since about mid-2022 the Court finds that he is probably not consuming alcohol excessively on a regular basis. His CDT test results do not clearly suggest excessive alcohol consumption, albeit that the father chose the testing date. The father briefly engaged with a support group. He disclosed his alcohol consumption to his treating medical practitioners, and received treatment for alcohol dependence. He was prescribed medication.
The Court Child Expert stated that the father was not transparent in his discussions about his alcohol history and “in his attempts to minimise the issues did not provide himself the opportunity to thoroughly demonstrated capacity to understand the possible impacts of problematic alcohol consumption on (the child)”. So as to minimise the risk of the father experiencing any relapse in respect to alcohol consumption, to which the child could be exposed, the father, as proposed by the ICL and mother, should consult with his GP and seek to obtain a mental health care plan for treatment of problematic alcohol consumption and thereafter engage with a psychologist recommended by the GP for such treatment. The Court will only make a Notation in this regard.
The mother has experienced some anxiety in relation to the child spending time with the father. She had engaged at one point some counselling assistance in relation to such anxiety. The Court accepts that the mother’s anxiety has been improving in this context, however, so as to minimise the risk of the mother experiencing any significant increase in her anxiety to which the child might be exposed, the mother, as proposed by the ICL, should consult with her GP and seek to obtain a mental health care plan for treatment of her anxiety in relation to the child spending time with the father and thereafter engage with a psychologist recommended by the GP for such treatment. The Court will only make a Notation in this regard.
The Court is of the view that there is a significant prospect that the mother will not experience significant anxiety if the ICL’s proposed orders are made, in particular those proposed orders of the ICL relating to the child spending an extra night each fortnight with the father during school term time. In this context the Court observes that the mother is coping emotionally with the child now spending some four nights each fortnight with the father during school term time. And further, she ultimately consented to the ICL’s proposed orders relating to the child spending five nights each fortnight during school terms.
The ICL proposes a Facetime call between the child and the father on Monday evenings for no more than 15 minutes, in privacy and with the mother not to time such calls. The mother had stated that she had timed the calls because, inter alia, the father had spoken for too long. The child expressed a positive view of facetime calls with the father to the Court Child Expert. This proposed order will assist in the child’s relationship with the father being maintained.
The Court finds that the father’s mental health is probably now satisfactory. He had experienced post-traumatic stress disorder following his motor vehicle accident in 2016 and had obtained treatment. The father had experienced some depression in, for example, 2021, and he had sought treatment and ingested antidepressant medication for a period.
As to the ICL and mother’s proposed restraining order, applicable to both parents, restraining them from attending any extracurricular activity or training session attended by the child, including but not limited to sporting events, swimming or other non-school-related extracurricular activity, if the activity does not take place during the parties time with the child pursuant to the Court’s orders, this will be an order in the best interests of the child. It will be so because it will restrain the parties from coming into physical contact with each other which may well result in conflict occurring in the presence of the child. This proposed final parenting order mimics a consent restraining order made between the parties on 30 January 2023. The Court finds that the father, despite this order of 30 January 2023, signed up to be the coach of the child’s sports team. This resulted in the mother reminding the father that he was not permitted by the Court to attend events when the child was in the mother’s care and thereafter the father withdrew from being the coach. The Court accepts the mother’s evidence that she feels particularly uncomfortable being in the close physical presence of the father.
Parental responsibility
The mother seeks an order for sole decision making responsibility in respect to major decisions to be made for the child, which proposed order is supported by the ICL. The father seeks an order for equal shared decision-making.
The Court refers to its discussions above relating to the nature of the parties’ coparenting relationship, in particular under the s60CC(2)(e) general consideration. The Court has a significant doubt that the parties could reach agreement in a timely fashion without conflict relating to the making of a major decisions for the child. The Court observes that the parties, for example, were unable to reach agreement on 30 January 2023 in relation to the mother’s proposed travel with the child to Country M in mid-2023 for four weeks, with the father having opposed that country of destination and the length of time of the proposed travel.
The Court is of the view that it will be in the child’s best interests that the mother have sole decision making responsibility for major decisions to be made for the child. She should be required to notify the father before making any major decision. These views are consistent with the evidence of the Court Child Expert.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting Orders:
1.All previous parenting orders be discharged.
Major Decision Making
2.The mother shall have sole parental responsibility for all major decision making for the child, X born in 2015 provided that the mother notifies the father fourteen (14) days prior to any major decision being made in respect of major long term issues.
Live With
3.X shall live with the mother.
Communicate & Spend Time With
4.X shall spend time and communicate with the father during the New South Wales school terms as agreed and failing agreement between the parties as follows:
(a)A facetime call on Monday between 7.30pm - 8.30pm for a duration of no more than 15 minutes with the mother to initiate the facetime call.
(b)X is to be given privacy & the mother is restrained from timing such calls.
(c)In Week 1 X spend time with the father commencing on Thursday 13 June 2024 from Thursday at 3pm or after the conclusion of school until the commencement of school the following Monday or 9am in the event that Monday is not a school day and each alternate week thereafter.
(d)In Week 2 X spend time with the father commencing on Thursday 6 June 2024 at 3:00pm or the conclusion of school until Friday morning at 9.00am or the commencement of school and each alternate week thereafter.
5.For the purposes of these Orders that all changeovers are to occur at school or in the event it is not a school day then changeover shall occur at Suburb B McDonalds, and each party be restrained from leaving their motor vehicle, save and except for the purposes of collecting X from the other parent. The parent that is due to spend time with X shall exit the vehicle to collect X whilst the other parent remains seated in the motor vehicle.
Holidays & Special Occasions
6.Unless otherwise agreed between the parties, X shall spend time with the mother and the father on a week about basis during the shorter term school holidays after the conclusion of Terms 1, 2, and 3 as follows:
(a)The first week of the school holidays with the father from the conclusion of the last day of school that X is required to attend, until 10.00am on the middle day of the school holiday period (with such holiday period to include any public holidays and staff development days for the purpose of this calculation); and
(b)The second week of the school holidays with the mother from 10.00am on the middle day of the school holiday period including any public holidays until the commencement of school on the first day of the new term at X’s school (including any staff development days).
7.At the conclusion of the school holiday period, the parties will recommence time in accordance with Order 4(c) (Week 1) as the first week following the conclusion of the school holidays.
8.For the purpose of the school holidays following Term 1, in the event that the Easter period falls within the holiday period then any time that is lost in school holidays for the other party to have time over Easter shall be made up immediately following the Easter special occasions as provided for in these orders by the other party to ensure that the school holidays are equalized between the parties including any period of time for the Easter special occasions.
9.Unless otherwise agreed and varied between the parties, X shall spend time with the mother and father during the longer Christmas School Holiday period at the conclusion of Term 4 in the following manner:
(a)The first seven (7) nights with the father commencing from the last day of school that X attends until 10.00am on the 8th day after the conclusion of school.
(b)The following fourteen (14) nights with the mother with changeover to occur at 10.00am for the purpose of this time.
(c)For the purpose of calculation of the mother's fourteen (14) nights during this period that any night X is with the father for the Christmas Eve shall not be included in the calculation of the mother’s fourteen (14) nights for holidays.
(d)The following fourteen (14) nights with the father with changeover to occur at 10.00am.
(e)The remaining school holiday period with the mother until the commencement of the first day of school that X attends.
10.At the conclusion of the school holiday period, the parties will recommence the periodical time in accordance with Order 4(c) above for the first school term.
11.Unless as otherwise agreed by the mother and the father the following shall apply:
(a)the father shall spend time with X on the following special occasions:
(i)If X is not otherwise in the father’s care from 6pm the day before Father’s Day until 9am, or the commencement of school if a school day, the Monday after Father’s Day.
(b)The mother shall spend time with X on the following special occasions:
(i)if X is not otherwise in the mother's care from 6pm the day before Mother’s Day until 9am, or the commencement of school if a school day, the Monday after Mother’s Day.
Specific Parenting Issues
12.Each party is to keep the other party informed at all times of their address, email address and mobile number, and notify the other within 48 hours of any change to any of those details.
13.Neither party shall physically chastise X.
14.The parties shall:
(a)Keep each other informed of the names and addresses of any medical or other health care practitioner who treats X.
(b)Inform each other, as soon as reasonably practicable, of any medical condition, significant health issue or illness suffered by X.
(c)The parties are authorised to obtain, at his or her own expense, from any treating medical or health practitioner X's medical information and both parties are at liberty to provide a copy of these orders to any treating medical practitioner as required.
(d)The parties are authorised to obtain from any school, sporting organization or other extracurricular activity attended by X information about X's progress, and obtain copies of reports, photographs, correspondence, certificates, and awards received by X (at the requesting parent's cost).
(e)Each party is restrained from denigrating or criticizing the other, or any member of the parties' extended family, in the presence or hearing of X and from permitting X to remain in the presence or hearing of another person denigrating the other.
(f)Each parent to be restrained from attending any extracurricular activity or training session attended by X including but not limited to sporting events, swimming or other non-school related extra curricula activity if the activity does not take place during the party’s time with X pursuant to these orders.
(g)For the purposes of the preceding subparagraph, should X be participating in an end of year function for such activity or final game then both parties shall be at liberty to attend such semi or grand final or end of year celebration noting that each party must maintain an appropriate distance from each other and not engage in contact with the other party.
(h)The mother and the father shall each ensure that they have their own school uniforms, sports uniforms including any uniforms for extracurricular activities and appropriate clothing and shoes for X whilst in their care.
(i)The mother & the father shall each provide the other party with the first right of refusal for any period exceeding 1 night to care for X in the event the party is unable to care for X pursuant to these orders or is otherwise away on leave during any period X is in that parties’ care.
(j)Save and except for emergencies about X, each party is restrained emailing, messaging, phoning or contacting the other party, and for the purpose of this order, the mother and the father are to use a parenting application such as My Family Wizard in respect of parenting issues for X and each parent shall download the parenting App as directed by the Court within 7 days of such order being made.
Overseas Travel
15.The child X born in 2015, a male, be removed from the Airport Watchlist.
16.Both parties do all necessary acts and sign all necessary documents so as to cause:
(a)That X’s Australian passport which is currently held pursuant to Orders made 30 January 2023 by the Parramatta Registry of the Federal Circuit and Family Court of Australia is to be released to the mother and thereafter remain with the mother for safe keeping save and except when X is travelling overseas with the father; and
(b)An updated passport is to be obtained for X at any time a current passport expires or, is due to expire, the parties shall do all acts and things necessary to cause such passport to be re-issued with such cost to be shared equally by the parties.
17.Each of the parties are permitted to internationally travel with X save and except to any country to which there is a ‘DO NOT TRAVEL WARNING’ issued by the Commonwealth Government provided such travel is in their time as set out in these Orders on the basis that the following has occurred:
(a)That the travelling party provides to the non- travelling party with 21 days notice of their intention to take X overseas; and
(b)That the travelling party will furnish to the non-travelling party an accurate itinerary to include the following:
(i)the departure and return dates,
(ii)the country or countries the party and X will be travelling to,
(iii)the approximate dates on which the travelling party and X will arrive and depart each country; and
(iv)a telephone number and address at which the travelling party and X can be contacted in each country.
ICL Discharge
18.Within fourteen days (14) of the date of the making of these orders, the ICL shall make arrangements with a party to meet with X either in person or via an agreed electronic platform to explain the final orders & thereafter is discharged from these proceedings.
AND THE COURT NOTES THAT:
A.The father should consult with his General Practitioner (GP) and seek to obtain a mental health care plan for treatment of possible problematic alcohol consumption and thereafter engage with a psychologist recommended by the GP for such treatment.
B.The mother should consult with her GP and seek to obtain a mental health care plan for treatment of her anxiety in relation to the child spending time with the father and thereafter engage with any psychologist recommended by the GP for such treatment.
PROPERTY
Proposals
The husband sought orders as per the Minute of Order annexed to his Case Outline.
The wife sought orders as set out in Annexure A to her Amended Response filed 5 April 2024.
The Second Respondent sought orders as set out in her Case Outline.
Evidence
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings, “Balance sheet”, “Contributions”, and “Section 75(2)”.
A significant issue in the property proceedings was whether or not the wife’s joint tenancy interest in a property at C Street, Suburb D, should be included in the balance sheet. By the time of trial the wife’s mother was the other joint tenant; the wife’s father who had also been a joint tenant having passed away beforehand. This property had been purchased in 2003. The Court found the wife and the maternal grandmother’s evidence in this context significantly unreliable. The wife’s affidavit evidence in particular in relation to the circumstances in which she became a joint tenant with her parents was less than clear and in certain respects incorrect. The Court has had regard to objective records relating to the purchase of the above Suburb D property, particularly where in conflict with the wife’s evidence and the evidence of the maternal grandmother.
Legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
The balance sheet of the parties is now set out:
BALANCE SHEET Ownership Description Applicant’s value Respondent’s value Assets 1 J Sale proceeds from the sale of the N Street, Suburb D property $1,088,435 $1,088,435 2 R First Respondent’s interest in C Street, Suburb D $962,500 NIL 3 A Motor Vehicle 1 $68,175 $75,000 4 A Motor Vehicle 2 $15,000 $15,000 5 A Household Contents $2,000 $2,000 6 R Household Contents $2,000 $2,000 7 A Collectibles NIL $50,000 Total $2,138,110 $1,232,435 Addbacks 8 A Interim Distribution pursuant to Orders 30 January 2023 $136,054 $136,054 9 R Interim Distribution pursuant to Orders 30 January 2023 $136,054 $136,054 10 A Collectibles disposed of since separation NIL $18,700 11 A Superannuation withdrawn during COVID NIL $20,000 12 A Sale of motor vehicle post separation NIL $44,000 Total $272,108 $354,808 Liabilities 13 R Westpac Loan Account ending #...48 (C Street Property) $145,401 $145,401 14 A Finance (held over Motor Vehicle 1) $56,356 $56,356 Total $201,757 $203,057 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 15 A Super Fund 1 Accumulation $594,772 $594,772 16 R Super Fund 2 Accumulation $318,732 $318,732 Total $913,504 $913,504 Financial Resources Ownership Description Applicant’s Value Respondent’s Value 17 $ $ Total $ $ Net Total Assets Total $3,121,965 $2,298,990 (As per original)
Item 2 relates to the wife’s contested joint tenancy interest in the property at C Street, Suburb D, $962,500 (with the Court observing that that figure is half of the value of the property; the valuer Mr F stated the current market value of the property is $1,925,000). The wife contends that her legal interest is held on trust for her mother, the maternal grandmother. The maternal grandmother in turn contends that the wife holds her joint tenancy interest on trust for herself. The trust contended for is a resulting trust or common intention constructive trust, or possibly an express trust.
In Gillespe & Ngan [2023] FedCFamC1A 27, Austin J relevantly said in respect of resulting trusts:
20.An implied (or resulting) trust arises where the legal owner of property provides only part of the purchase price and another party provides the other portion of the purchase price. A trust is presumed in favour of the other party and his beneficial interest is proportionate to the financial contribution, because it is presumed that was the intention (Bosanac v Commissioner of Taxation (2022) 405 ALR 424 at [8], [12]–[22], [51]–[53] and [64]–[67]; Calverly v Green (1984) 155 CLR 242 at 246; Black Uhlans Inc v NSW Crimes Commission [2002] NSWSC 1060 at [133]–[136]; Allen v Snyder (1977) 2 NSWLR 685 at 689–691; Russell v Scott (1936) 55 CLR 440 at 451). The trust may also be implied from later financial contributions, such as those in the nature of mortgage repayments, but that is not usually so (Black Uhlans Inc v NSW Crime Commission at [141]–[142]; West v Mead [2003] NSWSC 161 at [60]).
The elements of a common intention constructive trust were set out by the Full Court of the Family Court in Khalif & Khalif [2021] FamCAFC 123:
8.As the primary judge correctly identified, the essential elements of a common intention constructive trust are set out in Hohol v Hohol (1980) FLC 90-824 at 75,205:
… first, that the parties formed a common intention as to the ownership of the beneficial interest. This will usually be formed at the time of the transaction and may be inferred as a matter of fact from the words or conduct of the parties. Secondly, that the party claiming a beneficial interest must show that he, or she, has acted to his, or her, detriment. Thirdly, that it would be a fraud on the claimant for the other party to assert that the claimant had no beneficial interest in the property…
9. See also Gabini & Gabini [2014] FamCAFC 18 at [60].
10.Once the trust is established, the interest arising under it will be to the extent that the parties are inferred to have intended (Gissing v Gissing [1971] AC 886 at 908). As to proof of the common intention, this is a question of fact and, as the Full Court of the Federal Court said in Silvia (Trustee) v Williams [2018] FCAFC 194 at [16] “[s]uch proof may be direct by means of express agreement but it may also be implied from conduct. Matters of this kind are evidentiary and do not involve legal principles”.
11.In Rasmussen v Rasmussen [1995] 1 VR 613, Coldrey J said to similar effect at 615:
… In determining whether there is a common intention that a claimant was to have a beneficial interest in the property the court will look firstly for direct evidence of any express communications between the parties or the making of admissions by them. In addition, the common intention may be inferred from the conduct of the parties, for example, contributions to the cost of the property claimed or its maintenance. Such conduct is also of factual importance in determining whether a claimant has acted to his or her detriment. However, what is to be enforced is an actual intention inferred as a matter of fact…
12.A common intention constructive trust can be recognised independently and in advance of any court order (Parsons v McBain (2001) 192 ALR 772 (“Parsons”)). In this sense, a common intention constructive trust arises simultaneously with the conduct which gives rise to its imposition (Muschinski v Dodds (1985) 160 CLR 583 at 614 (“Muschinski v Dodds”); Parsons at [13]–[14]).
The elements of an express trust were set out by French CJ in Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62:
108.The appellants did not dispute that the trust in contention, if it existed, would be an express trust. Given the need for AET to show an intention to create such a trust, it was not in the appellants' interests to dispute its classification. Certainty of intention is one of the three certainties necessary to an express trust — the others being certainty of subject matter and certainty of object. The necessary intention is imputed when made manifest by an explicit declaration as in Byrnes v Kendle. In the case of a written text an "express trust" depends upon the construction of the written instrument. It does not arise from any inference of the law imposing a trust upon the conscience.
The Court makes the following factual findings, on the balance of probabilities, with the Court observing, again, that it found the evidence of the mother and the maternal grandmother to be significantly unreliable in relation to these contended trust issues:
(a)In about 1992 the maternal grandparents purchased a property at Suburb O for $132,000 without a mortgage.
(b)In 1997 the mother married Mr P. Separation from Mr P occurred on a final basis in 2007.
(c)In 1999 the maternal grandparents appointed the mother as their power of attorney.
(d)In 2002, the mother and Mr P purchased a property at Q Street, Suburb D. After the purchase the mother wanted the maternal grandparents to move closer to her such that, moving forward, she could assist the maternal grandmother with the care of the maternal grandfather. The mother located the property at C Street, Suburb D for her parents to live in. The maternal grandparents told the mother that this property would be suitable for them to live in.
(e)In 2003, the sale of the maternal grandparents’ Suburb O property settled in the amount of $435,000.
(f)The property at C Street was purchased for $530,000 and settled in 2003. The Transfer dated 2003 referred to the transferees as being the maternal grandparents and the mother. The Transfer refers to the Torrens Title reference for the above property at C Street as being ….
(g)The purchase price for C Street was funded through a mortgage loan advance from R Bank, in the sum of $402,226; the mother, in early 2003, had signed a Mortgage document on behalf of both herself and her parents, with the Mortgage document stating, inter alia, that the property to be the subject of the mortgage loan was the property at C Street. The Court finds that it was the mother and her parents that had contributed towards the purchase price through their joint borrowings of $402,266 from R Bank. There is no persuasive evidence as to how the balance of purchase price, about $117,774 ($520,000 less $402,226) was funded, whether from the sale proceeds of the maternal grandparents’ Suburb O property or otherwise.
(h)The mother, in paragraph 22k of her affidavit filed 21 May 2024, had incorrectly asserted that she was placed on a mortgage with Commonwealth Bank (CBA) at the time of purchase of the property at C Street in 2003. In fact, the mother had signed a mortgage with CBA later, in 2004, again with herself and her parents as mortgagors, when CBA refinanced the loan from R Bank.
(i)The mortgagors on the mortgage document with the R Bank, dated 2003, were stated to be the mother, the maternal grandmother and the maternal grandfather. The mother signed the mortgage document both for herself as one mortgagor, and on behalf of her parents, the other mortgagors, pursuant to the mother’s power of attorney. The Court observes that the front page of the mortgage document states, inter alia, that the mortgagor “mortgages to the mortgagee all the mortgagor’s estate and interest in the above land, and covenants with the mortgagee that the provisions set out in the annexure and/or memorandum specified below are incorporated in this mortgage”. The Torrens Title reference for the mortgaged property is … being the property at C Street, Suburb D.
(j)The mother asserts in her affidavit filed 21 May 2024 that up until the point that litigation was commenced with the CBA in about 2007, the mother was of the belief that she was not on title to the property at C Street, Suburb D; the mother asserts that she had thought that she “was merely on the mortgage and not the title”. The mother made a related assertion that she was of the belief that up until about 2007 (when litigation with the CBA commenced relating to an alleged fraud committed by the mother’s former husband Mr P) that she and Mr P had merely taken a line of credit in the amount of $115,000 over their house “and that’s what was meant by a mortgage”.
These assertions of the mother are not accepted by the Court. The Court finds that the mother knew, at least by the time of settlement of the purchase of C Street, in 2003, that she and her parents had purchased this property as joint tenants and had gone on title to this property as joint tenants. In this context, the Court takes into account, in particular:
(i)The clear terms of the Transfer document dated 2003 stating that the purchasers of the property at C Street, were the mother and her parents as joint tenants;
(ii)The clear terms of the Mortgage document with the R Bank, signed by the mother, as discussed above. In this context, the Court observes that as at 2003, the wife was aged 27 years and she was well educated. The mother had attended university after leaving school and completed a post-graduate studies. After leaving university the mother commenced employment as an educator, and after one year she left the profession and commenced a corporate role;
(iii)The clear terms of the Mortgage document with the CBA dated 2004, signed by the mother, as discussed above, on behalf of both herself and her parents, with again the Court observing that that Mortgage expressly stated that the land mortgaged was Folio Identifier … being the property at C Street, and that the mother and her parents as mortgagors, “for the purpose of securing to the mortgagee the payment of the amount owing mortgages to the mortgagee all the mortgagor’s estate and interest in the land described above (referred to in this mortgage as THE PROPERTY)”.
(iv)By reference to Exhibit C, being the mother’s email of mid-2018 to members of her extended maternal family, it is quite apparent that the mother was well aware that she was one of three owners of the property at C Street, because in that email she referred to one of her assets as being, “C Street (third of title)”. (The mother’s reference in this email to this property as being one of her assets is inconsistent with her contention that she holds her joint tenancy interest in the property at C Street, on trust for the maternal grandmother.)
(v)The mother’s contention that she holds her joint tenancy interest in the property at C Street, on trust for her mother, is also inconsistent with her Westpac loan application dated late 2016 in which she lists her real estate property assets as including the property at C Street.
(k)The maternal grandmother had received a letter from CBA in mid-2007 demanding payment of some $1,350,850 alleged to be owing on home loans with a security property including the property at C Street. That letter asserted that the bank had earlier, in early 2007, given notice to, inter alia, Mr P, the mother and the maternal grandparents, requiring payment of home loan account arrears. Litigation then ensued in Court in an action brought by the mother and the maternal grandparents against the bank. It was contended that Mr P had committed an alleged fraud. In about late 2009 this litigation was settled when the mother and her parents entered into a deed of settlement and release with CBA providing, inter alia, for the mother and her parents to make a payment to CBA of $166,000. To effect that payment the mother and her parents then obtained a mortgage loan advance from Westpac on about late 2009 which loan was secured over the property at C Street. Since that time the mother made the loan repayments to Westpac.
(l)The mother’s affidavit filed 21 May 2024 asserted in paragraph 22k that she “later became aware that I was a 1/3rd joint tenant on the title to the C Street property following Dad’s passing” (the mother’s father, the maternal grandfather, had passed away in 2024). This assertion is not accepted by the Court and the Court refers to its discussions above relating to, inter alia, the mother’s signing of the Mortgage to R Bank in 2003.
(m)As to the evidence of the maternal grandmother, she had sworn an affidavit and was cross-examined by the father’s counsel.
The Court found the maternal grandmother to be an unreliable witness, both in relation to her affidavit and oral evidence.
It became quite apparent to the Court during the cross-examination of the maternal grandmother, that, inter alia, legal terminology appearing in her affidavit was legal terminology that she did not understand.
For example, in paragraph 41 of her affidavit she had stated:
[Ms Sandoz] [the mother] has been my power of attorney since 1999. She is required to look out for my best interests. [Ms Sandoz] should not be beneficially entitled to the [C Street] property by virtue of her breach of fiduciary duties. [Ms Sandoz] ought to account for any “benefit” [Mr Sandoz] [the father] says she has.
The maternal grandmother was cross-examined in relation to the word “fiduciary”. She was asked what that word meant, to which she frankly stated, “I never heard about this word.” She was asked whether she understood the meaning of the phrase, “fiduciary duty” and she stated, “I’ve told you I never heard about this word.” Later, she stated, “Like, she’s doing her duty. It means she wants to keep paying the loan.” When asked again about the meaning of the word “fiduciary” she stated, “Well, I’ve told you, I never heard about it. When I read it – well, actually, I have my education in [Language S]. I learn English here by correspondence. I don’t know every word does that mean 100 per cent.”
As to the maternal grandmother’s assertion in paragraph 44 of her affidavit that “It was never my intention for [Ms Sandoz] (the mother) to hold a beneficial interest in the [C Street] property”, the Court places no significant weight upon this assertion.
The maternal grandmother adduced no persuasive evidence as to what was in fact her intention as to the holding of beneficial and/or legal interests in the property at C Street, when that property was purchased in 2003. Again, the mother and her parents became joint tenant purchasers of that property in 2003. In cross-examination, the maternal grandmother had given this opaque evidence:
COUNSEL:It's correct, isn't it, that this house is really half [Ms Sandoz]'s, in your understanding?
WITNESS:What's your last word?
COUNSEL: You understand this house is half [Ms Sandoz]'s?
WITNESS: It's not half [Ms Sandoz].
COUNSEL: I see?
WITNESS: It's only the third.
…
WITNESS:And her name is - is being put there just because, me and her husband, we were unable to - to - to leave my husband to do my financial report and my financial work.
COUNSEL: I see?
WITNESS: That's how her name been on the title.
Discussion in relation to trust contentions
As to the resulting trust contention of the mother, which, by reference to the mother’s Points of Claim filed 22 August 2023, appears to be a purchase money resulting trust (see Calverley v Green (1984) 155 CLR 252), the Court observes that the mother contends that she gifted the sum of $120,890 to the maternal grandparents to assist them with the acquisition costs with respect to the property at C Street.
However the Court does not accept, on the balance of probabilities, that such a gift was made. In particular, there was no express evidence from the mother that she made such a gift to her parents, and the maternal grandmother did not expressly refer to such a gift.
The mother and her parents were named on the Transfer document for the purchase of C Street as joint tenant purchasers. The mother entered into a formal mortgage loan (and not a line of credit as alleged by her) with the mortgagee lender R Bank at the time of purchase of C Street, naming both herself and her parents as mortgagors, with the secured property being the property at C Street. Later, the mother and her parents had entered into a formal mortgage loan with CBA with, again, the secured property being the property at C Street.
A gift not having been made by the mother to her parents, there being no persuasive evidence that the mother had made any relevant loan to her parents in respect to the purchase of C Street, and the above mortgage loan having been entered into by the mother and her parents (that is, the mortgage loan was advanced both to the mother and to her parents), it cannot be said that the mother’s parents had contributed the whole of the purchase price for C Street; the Court finds, again, that it was the mother and her parents that had contributed towards the purchase price through their joint borrowings of $402,266 from the R Bank. Again, there is no persuasive evidence as to how the balance of the purchase price was paid. The purchase money resulting trust contention fails.
As to the common intention constructive trust contention, the mother’s Points of Claim in this context pleads that a common intention was formed as part of an arrangement on about early 2003 or earlier, at the time of acquisition of the property at C Street, when the mother agreed to hold that property on trust for her parents. The mother then particularises that alleged agreement as comprising, inter alia, an agreement that the mother would give her parents the sum of $122,890 to assist them with the acquisition of the property at C Street. Again, as discussed above, the Court finds there was no such gift, and the common intention constructive trust contention fails. In any event, the requisite legal elements of the common intention constructive trust are simply not made out, whether pursuant to the pleaded common intention constructive trust in the Points of Claim, or otherwise. This can now be clarified.
Firstly, as to the first legal element, there is no persuasive evidence that the mother and her parents formed a common intention as to the ownership of the beneficial interest in the property at C Street. The second element relating to acting to one’s detriment in reliance upon that common intention falls away because there again is no persuasive evidence of any common intention.
And there is no persuasive evidence that it must be a fraud upon the maternal grandmother for the mother to remain a joint tenant with her in relation to the property at C Street. In this respect, the Court observes that the maternal grandmother remains living in the home and there is no evidence that she will not remain living there for the rest of her life.
Accordingly, the common intention constructive trust claim should fail.
The maternal grandmother also contended for a resulting trust, and common intention constructive trust. She also contended for an express trust in her favour. On the balance of probabilities, there is no persuasive evidence that any express trust in favour of the maternal grandmother was created at the time of purchase of the property at C Street, and the Court refers to its discussions above, both in relation to its findings and in relation to the contended resulting trust and common intention constructive trust.
Accordingly, item 2, referring to the mother’s interest in C Street, and the agreed loan liability for that property in item 13, shall remain in the balance sheet.
As to item 3, the father’s car, the father’s contended value shall prevail as an admission against interest, noting his Financial Statement filed 21 May 2024 states $64,350. The mother’s contended value is not supported by any persuasive evidence.
As to item 7, the father’s collectibles, the Court finds that the father only now owns about $1,000 worth of collectibles. It finds that during the relationship he sold about $18,500 worth of collectibles and spent the proceeds of sale on reasonable living expenses. The mother adduces no persuasive evidence to support her contention. $1,000 shall enter the balance sheet. The contended addback of $18,500 in item 10 shall be deleted.
As to item 11, a contended addback of $20,000 relating to an alleged superannuation withdrawal by the father during covid, the father had been made redundant from his full-time work in late 2018. After this time, the parties agreed that the father would take a career break. The father used this time to develop his business T Business. From late 2020 to early 2021 the father was employed as a professional earning about $91,000. Then the father worked as a sole trader trading as T Business. As a sole trader, according to his Financial Statement, his total average weekly income is about $1,550 before expenses of $1,683 per week. In cross‑examination, he agreed that his current income was only $14,000 after taxation and all costs as a sole trader. On the balance of probabilities, it is likely that any superannuation withdrawal by the father during Covid, bearing in mind that he experienced a significant reduction in his income, was utilised for his reasonable living expenses. Item 11 shall be deleted.
Item 12 is a contended add back relating to the father’s alleged sale of a motor vehicle post separation in the sum of $44,000. There is no persuasive evidence to support this contended add back and it shall be deleted.
The final balance sheet accordingly will be as follows:
BALANCE SHEET Ownership Description Value Assets 1 J Sale proceeds from the sale of the N Street property $1,088,435 2 R First Respondent’s interest in C Street $962,500 3 A Motor Vehicle 1 $68,175 4 A Motor Vehicle 2 $15,000 5 A Household Contents $2,000 6 R Household Contents $2,000 7 A Collectibles $1,000 Total $2,139,110 Addbacks 8 A Interim Distribution pursuant to Orders 30 January 2023 $136,054 9 R Interim Distribution pursuant to Orders 30 January 2023 $136,054 Total $272,108 Liabilities 10 R Westpac Loan Account ending #...48 (C Street Property) $145,401 11 A Finance (held over Motor Vehicle 1) $56,356 Total $201,757 Superannuation Member Name of Fund Type of Interest Value 12 A Super Fund 1 Accumulation $594,772 13 R Super Fund 2 Accumulation $318,732 Total $913,504 Net Total Assets Total $3,122,965
Accordingly, the assets are $2,139,110. The add backs are $272,108. The liabilities are $201,757. Superannuation assets are $913,504. The net assets including superannuation are $3,122,965.
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The parties cohabitation commenced in 2012 with separation occurring in about July 2021. Thus a relationship of about nine years.
At about the commencement of the parties’ cohabitation, the father had a motor vehicle worth about net $19,000 (the vehicle had finance attached), superannuation of about $164,292, savings of about $221,979 (these savings, to the extent of about $210,000, were utilised in about mid-2013 towards the purchase by the parties of a property at N Street, Suburb D).
At about the commencement of the parties’ cohabitation the mother had:
(a)A joint tenancy interest in the property at C Street, Suburb D (her parents were the other joint tenants). The property’s market value was $650,000 as at mid-2012. The mortgage loan debt to Westpac at that time was $160,130.
(b)A motor vehicle valued at about $4,000.
The wife had guaranteed a motor vehicle loan to her former husband Mr P and in 2013 she was required to pay at least about $27,653 to satisfy the guarantee.
Again, the parties purchased the above property at N Street, Suburb D in 2013 for $760,000. They had obtained a mortgage loan from Westpac in the sum of $560,000. Again, the father contributed about $210,000, and the mother contributed about $38,000 towards the purchase of this property. This property was later sold in early 2022 for net $1,350,544. After interim property distributions to the parties totalling $272,108, the proceeds of sale were paid into a trust account.
The father contributed some time and materials towards the renovation of the above N Street property however he was reimbursed most of his expenditure. He had painted the entire house there and was paid for his work.
During the parties’ relationship, the parties paid their respective incomes into a joint bank account from which they met their joint household expenses including mortgage repayments, maintenance, food and cleaning. On numerous occasions, when the funds of the parties’ joint bank account was insufficient to meet required payments, probably by reason of the mother meeting the mortgage loan repayments to Westpac relating to the mortgage loan debt in respect to C Street (see above), the father met the shortfall. The mother had met the payments for her own personal expenses including car, health insurance, with the court observing that she was the primary carer of her children from a former relationship, K and L.
The father was in a motor vehicle accident in 2016 and received net compensation of about $130,426. This sum was used to pay off credit card debt, household expenses, and the husband contributed $40,000 towards reduction of the parties’ mortgage loan.
During the parties’ relationship, on balance, the mother made a significantly greater contribution towards the care of the child in circumstances where she usually was the child’s primary carer. During the relationship the father did assist the mother with the care of the child.
During the parties’ relationship, both parties contributed towards household chores.
Post separation, the father continued to live in the property at N Street, and he met the mortgage loan repayments for that property. He paid about $9,900 for works before its sale. Post separation the mother rented separate premises and lived there with, inter alia, with the child.
Post separation to date, a period of about 3 years, the mother has been the child’s primary carer which, as with her primary care of the child during the parties’ relationship, was a significant contribution by her. Post separation the father has usually spent regular time with the child.
The superannuation evidence is sparse. As to superannuation contributions, each party probably indirectly contributed towards the other party’s increase in superannuation during their relationship through the manner in which they conducted their relationship, as discussed above. Post separation, the position is less clear by reason of the mother’s primary care of the child and the fall in the father’s income in the financial year ending 30 June 2022; on balance, post separation the mother probably indirectly contributed to the father’s increase in superannuation to a greater extent than the father’s indirect contribution to the mother’s increase in superannuation post separation.
The father contended that should the property at C Street, be included in the property pool, then his contributions should be assessed at 55 per cent to the mother’s 45 per cent.
The mother contended that should the property at C Street be included in the property pool, then the parties’ contributions should be assessed as equal.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to the parties’ net assets, including superannuation, of $3,122,965, should be assessed as equal.
Section 75(2) of the Act
The mother is aged 48 years. The father is aged 53 years.
The father currently enjoys good health. The mother’s health appears to be satisfactory albeit that, in particular, she has been experiencing chronic pain for which she had surgery in early 2024, with her doctor indicating that her pain was stress-related.
The mother will remain the child’s primary carer. The child is only 8 years of age. The father will spend time with the child, inter alia, five nights each fortnight during school terms. The Father is presently paying formal child support in the sum of only $136 per month.
The father’s Financial Statement states that his income is approximately $1,550 per week gross. The mother’s current employment income is about $2,586 after tax per week, equating to about $134,472 per annum net of tax. The mother herself describes having a good job that she has had for the last 17 years.
The Court would assess the mother’s earning capacity probably exceeds that of the father, although the father’s income earning capacity is probably greater than his present income noting his prior occupations in management.
The mother has a joint tenancy interest in the property at C Street, with her mother being the other joint tenant. The Court observes that the maternal grandmother describes herself as remaining healthy and active, despite some minor health complications. She is aged 73 years.
The father’s superannuation asset is some $594,772 as compared to the mother’s significantly lesser superannuation of $318,732.
The father contended that should the property at C Street be included in the property pool, then there should be no adjustments under s 75(2).
The mother contended that should the property at C Street be included in the property pool, then the mother should receive an adjustment under s 75(2) of 10 per cent.
Taking into account the above matters there should be an adjustment of 5 per cent in the mother’s favour.
This results in an adjusted contributions finding of 55 per cent in the mother’s favour and 45 per cent in favour of the father. This results in a disparity of $312,296 in favour of the mother.
Justice and equity
The mother wishes to purchase a home to establish a family environment for the child and her two other boys, aged 17 and 19 years. The father intends to continue living in the same area to enable him to be close to the child’s school and other activities. He currently lives in a rental property at Suburb B.
The father’s 45 per cent share of the net property pool of $3,122,965 is $1,405,334 less his already received interim property distribution of $136,054, leaving $1,269,280. The mother’s 55 per cent share is $1,717,630 less her already received interim property distribution of $136,054, leaving $1,581,576.
Should the father retain:
(a)45 per cent of the remaining sale proceeds from the sale of the N Street property, $489,795,
(b)Motor Vehicle 1, $68,175,
(c)Motor Vehicle 2, $15,000,
(d)his household contents, $2000,
(e)his collectibles, $1000,
(f)his superannuation, $594,772,
Less: Finance held over Motor Vehicle 1, $56,356,
totalling net $1,114,386
and the mother retain:
(a)55 per cent of the remaining sale proceeds from the sale of the N Street property, $598,639,
(b)her joint tenancy interest in C Street, $962,500,
(c)her household contents, $2000,
(d)her superannuation $318,732,
Less: Westpac loan account ending …48 over the C Street property, $145,401
totalling net $1,736,470,
then the mother will need to pay the father $154,894.
The Court acknowledges that each party sought a superannuation splitting order with a view to equalising the parties’ respective superannuation assets. However, the mother wishes to purchase a home and, accordingly, should she receive no superannuation splitting order in her favour, her cash funds will be maximised to potentially assist her in purchasing a home.
In light of the above matters, the mother will be left with significant cash funds and superannuation. She is in secure employment earning a not insignificant income. She may well be able to purchase a home for the child and the children from her former relationship.
In light of the above matters, the father will be left with significant cash funds and superannuation. He operates a business. He may be in a position to purchase real estate, however he is presently living in rented premises in his area of preference.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 2 July 2024
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