SANE DARAMY & GUEYE SANE
[2015] FamCA 180
•18 March 2015
FAMILY COURT OF AUSTRALIA
| SANE DARAMY & GUEYE SANE | [2015] FamCA 180 |
| FAMILY LAW - CHILDREN – Parental responsibility – Whether the parties should have joint parental responsibility in relation to education – Order that the wife have sole parental responsibility for education, obtaining passports, children’s citizenship and residence status and medical treatment – Order that the parties have joint parental responsibility for all other major long term decisions – What time the children should spend with the husband if he remains in Australia – What time the children should spend with the husband if he resides overseas – Where the husband seeks to spend individual time with each of the three younger children if he remains in Australia – Where the Independent Children’s Lawyer supports that proposition – Where the eldest child has a strained relationship with the husband – Where the eldest child has failed to engage with therapeutic counselling – Where the eldest child’s views are enmeshed with the wife’s views of the husband – Orders made for the children to spend individual time and time all together with the husband in Australia – Alternate orders made for block time spent with the husband if he resides overseas – Order made that the eldest child have a choice whether to spend time with the husband. FAMILY LAW – PROPERTY – Where neither party asserts a significant imbalance in contributions at the commencement of cohabitation – Dispute as to the respective contributions until date of separation – Consideration of the contribution of the maternal grandmother to the acquisition of the parties’ property – Consideration as to whether contributions made by the maternal grandmother can be treated as contributions made by the mother – Where the maternal grandmother gave up her career to look after the children – Where both parties were able to work full time – Where the husband submits it is a privilege for grandparents to care for their grandchildren – Where it is found that the grandmother made a direct non-financial contribution towards the acquisition of property on behalf of the wife (leading to an adjustment of 5 percent) – Where the husband has made post separation contributions to the maintenance of property – Where the wife has had the primary care of the children after separation – Where the wife will continue to have the full time care of the four children – Where the husband has been made redundant from his employment in Australia – Where the husband has a superior earning capacity to the wife – Where the wife suffers health issues – Order made that the wife receive 70 percent of the net asset pool and the husband 30 percent. FAMILY LAW – CHILD SUPPORT – Where the wife proposes departure from the Child Support Assessment by altering the annual costs of the children for the purpose of periodic assessment – Where the wife seeks that the Country L property be sold and 50 percent of proceeds be characterised as lump sum child support – Where the wife seeks to be reimbursed by the husband for costs she has paid for the children – Where grounds for departure exist – Where the wife has not established that an order varying the formulae in respect of annual cost of children would produce a just and equitable outcome if the husband was on a low income – Where the wife has not established the husband’s history of payment of child support is sufficient to justify an order for lump sum payment - Where the wife’s applications for the first two orders are dismissed – Order made that the husband reimburse the wife part of the specific costs she seeks in relation to the children. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| AB & ZB (2003) FLC 93-140 Rickaby (1995) FLC 92-642 |
| APPLICANT: | Mr Sane Daramy |
| RESPONDENT: | Ms Gueye Sane |
| INDEPENDENT CHILDREN’S LAWYER: | Mr N O'Dowd |
| FILE NUMBER: | SYC | 5171 | of | 2012 |
| DATE DELIVERED: | 18 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 4 - 5 February 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
All prior orders relating to:
B (“B”) born … 2001,
C (“C”) born … 2006,
D (“D”) born … 2008, and
E (“E”) born … 2010
(“the children”) be discharged including orders placing them upon an airport watch list.
The children live with the wife.
The wife have sole parental responsibility in relation to decisions in respect of major long term issues about:
3.1.The children's education;
3.2.Obtaining passports for the children;
3.3.Arranging for the children's citizenship or residence status; and
3.4.Health and medical treatment.
Prior to making any such decision, the wife shall email the husband and obtain his view and she shall advise the husband of the decision she makes.
The parties shall have shared parental responsibility in relation to any other major long term issue.
It is noted that the parents agree the children shall be raised in the F Church.
The children spend time with the wife for two hours on each of the children’s birthday and on the wife’s birthday by agreement, should any of the children’s birthdays or the wife’s birthday fall on a day when the children are in the care of the husband.
In the event that the husband resides in Australia, C, D and E spend time with the husband as follows:
8.1.During school term:
8.1.1.In a four weekly cycle commencing on the first week of each term:
8.1.1.1.In week one and week three, from the conclusion of school or pre-school on Friday until the commencement of school on Monday;
8.1.1.2.If E is not at preschool on Friday, the husband is to collect E at 5.30pm from the wife’s residence.
8.1.1.3.The husband is to arrange and pay fees for after school care for C and D if he is unable to pick them up at the conclusion of school.
8.1.2.In week two:
8.1.2.1.with the child C on Wednesday from the conclusion of school until the commencement of school on Thursday;
8.1.3.In week four:
8.1.3.1.With the child D on Wednesday from the conclusion of school until the commencement of school on Wednesday;
8.1.3.2.With the child E on Thursday from the conclusion of pre-school or school until the commencement of pre-school or school on Friday.
8.2.During school holidays:
8.2.1.For half of each school holiday period and failing agreement for the husband to have the second half of the school holidays.
8.3.For two hours on each of the children's birthdays and on the husband's birthday by agreement.
8.4.From 1.00pm Christmas Day to 1.00pm Boxing Day.
8.5.At such other times as may be agreed.
In the event that the husband lives in Australia, B shall spend time with the husband as follows:
9.1.On Sundays in weeks 1 and 3, on the weekends referred to in order 8.1.1.1 herein, from 9.00 am until 6.00 pm. On these occasions the wife shall deliver B to the husband's home at the commencement of her time and the wife shall pick up B from the husband’s home at the conclusion of that time; and
9.2.At such other times as may be agreed.
9.3.B can choose not to attend on any particular occasion.
The court notes that B shall be at liberty to attend for additional time with the other children in the event that she wishes to do so.
In the event that the husband resides outside Australia, the children C, D and E, and B if she chooses to do so, spend the following time with the husband:
11.1.For four weeks over the December/January Australian school holiday period, in the country of residence of the husband between dates agreed upon between the parties and failing agreement, in the first four weeks in holidays which commence in even numbered years and in the final four weeks in holidays which commence in odd numbered years;
11.2.The husband is to pay the costs of the children’s international air travel;
11.3.For two periods of two weeks in Australia, during two of the other Australian school holiday periods, with the husband to give at least two months written notice to the wife;
11.4.For up to two weeks during any school term, if the husband is in Australia, on the basis of two weeks notice to the wife, such periods to be at least three months apart and the husband is to ensure the children regularly attend school during any such periods.
In the event that the children are spending time with the husband on the weekend of Mother's Day, the children shall be returned to the wife at 6.00 pm on the Saturday of that weekend.
If the husband is in Australia, and in the event that C, D and E are in the care of the wife on the weekend of Father's Day, the husband shall collect C, D and E at 6.00 pm on the Saturday of that weekend and they shall spend time with him until the commencement of school on Monday and the wife shall deliver B to the husband’s home at 10.00 am on the Sunday.
The wife shall sign the appropriate authority at the children's schools to authorise the schools to forward to the husband copies of the children's school reports and any other correspondence or item of communication ordinarily provided to parents, and the husband shall be at liberty to consult with the school in relation to the children.
Each parent shall have the responsibility for the children's day-to-day care and development of those times that the children are in their care.
Each parent shall have telephone and electronic communication (including skype) at a reasonable frequency between the hours of 5.00pm and 7.00pm with the children whenever the children are in the care of the other parent but B can choose not to participate.
Each parent notify the other not more than 24 hours after any change of their landline and/or mobile telephone numbers and their residential address.
Each parent is hereby restrained from denigrating the other parent or any member of the other parent's family to or within the hearing of the children.
Each parent shall ensure that the children attend their reasonable extracurricular activities whilst they are in their respective care.
Each parent shall contact the other as soon as is practicable in the event of any medical or any other emergency concerning the children.
Each parent will provide to the other details of any medical practitioners who treat the children and these orders shall operate as an authority for that parent to consult with that Medical Practitioner.
Each parent is at liberty to travel internationally with the children during their time with the children.
The court notes that the Independent Children's Lawyer shall contact the school counsellor at B's school and request that B be advised of the availability of the Headspace programme offered by the National Youth Mental Health Foundation.
By consent and within 42 days, the wife pay the Independent Children's Lawyer’s costs in the sum of $4,419 and the husband pay the Independent Children's Lawyer’s costs in the sum of $2,769.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
Pursuant to s79 of the Act an order be made in accordance with paragraphs 28 to 37 below.
Within three (3) months the husband transfer to the wife his right, title and interest in the property at G Street, H Town, Country I (“the Country I property”) and the wife contemporaneously discharge any liability the husband has in relation to the mortgage on the Country I property and any outstanding rates or charges in respect of the Country I property.
Within three (3) months the husband pay to the wife the sum of $165,091 and the amount referred to in order 39, and contemporaneously with that payment, the wife transfer to the husband all her right, title and interest in the property at J Street, K Town, Country L (“the Country L property”) and the husband contemporaneously discharge any liability the wife has in relation to the mortgage on the Country L property, any outstanding rates or charges in respect of the Country L property, and discharge any property tax outstanding in respect of the Country L property.
In the event that the husband fails to pay the sum referred to in paragraph 28 within three (3) months then the parties do all acts and execute all documents necessary to sell the Country L property by private treaty at a price as agreed between the parties but failing such agreement at a price nominated by a valuer agreed between the parties but failing agreement, as ordered by the court (“the valuer”).
If the sale of the Country L property has not been completed within three (3) months of being placed on the market to be sold by private treaty, the parties do all acts and things and execute all documents necessary to place the property on the market by public auction at a reserve price as agreed between the parties but failing such agreement at a reserve price as set by the valuer or his/her nominee, such public auction to be held within five (5) months of the property being listed to be sold by private treaty.
The parties do all acts and execute all documents to cause the proceeds of the sale of the Country L property to be used as follows:
31.1.To pay the reasonable expenses of the sale including agent’s commission and legal costs and disbursements and auction expenses (in the event of an auction);
31.2.To discharge the mortgage secured on the property;
31.3.To pay rate adjustments (other than those amounts otherwise payable by one of the parties pursuant to these orders);
31.4.To pay 39.4 per cent of the sum then remaining, or the amount of $165,091 together with interest pursuant to the Family Law Rules from the due date of payment, whichever is the greater, to the wife;
31.5.If unpaid, the amount referred to in order 39 to the wife;
31.6.To pay the remainder to the husband.
The husband indemnify the wife in relation to any liability outstanding to Mr V.
Except as specifically provided for otherwise by this order, as against the husband, the wife is declared the sole owner of and the husband has no interest in:
33.1.The wife’s motor vehicle;
33.2.The wife’s furniture, furnishings and effects;
33.3.The wife’s superannuation;
33.4.The wife’s savings; and
33.5.All other assets of whatsoever nature and kind in the possession, control or ownership of the wife at the date of the making of these orders.
Except as specifically provided for otherwise by this order, as against the wife, the husband is declared the sole owner of and the wife has no interest in:
34.1.The husband’s superannuation;
34.2.The husband’s motor vehicle;
34.3.The husband’s furniture, furnishings and effects;
34.4.The husband’s savings; and
34.5.All other assets of whatsoever nature and kind in the possession, control or ownership of the husband at the date of the making of these orders.
Except as specifically provided for otherwise by this order:
35.1.The husband indemnify the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband, including the husband’s credit cards; and
35.2.The wife indemnify the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife, including the wife’s credit cards.
The parties do all things and sign all necessary documents to transfer all accounts which hold funds for a child’s education into the joint names of the husband and wife as trustees for the child for the purpose of spending it on the child’s secondary education with any balance to be paid to the child upon the child’s 18th birthday.
Each party have leave on 28 days notice to seek orders to implement these orders.
The wife’s application for an order to vary the costs of the children and for lump sum child support is dismissed.
The husband pay to the wife the sum of $9,652 by way of provision of child support otherwise than in the form of a periodic amount and that the liability to pay that amount be a charge on the Country L property.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Act to execute such documents on behalf of such party.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sane Daramy & Gueye Sane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5171 of 2012
| Mr Sane Daramy |
Applicant
And
| Ms Gueye Sane |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case involves a disagreement between Mr Sane Daramy (“the husband”) and Ms Gueye Sane (“the wife”) about parenting arrangements in respect of their four children, B (“B”), C (“C”), D (“D”) and E (“E”). The parties also seek the court’s intervention to make a property settlement order between them and the wife seeks certain orders pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
APPLICATIONS FOR PARENTING ORDERS
At the commencement of final submissions the Independent Children's Lawyer provided a short minute of orders (Exhibit 18). That minute is set out in Schedule 3 below. The Independent Children's Lawyer made some amendments to that proposal during oral submissions. The Independent Children's Lawyer proposed that the wife have sole parental responsibility in relation to education, medical treatment, passports, citizenship and residence status. The Independent Children's Lawyer was content for the parties to have shared parental responsibility in relation to any other major long term issue. It was noted that there was an agreement that the children shall be raised in the F Church.
Although it was not explicitly set out in Exhibit 18, the Independent Children's Lawyer proposed that the four children live with their mother.
The Independent Children's Lawyer proposed that the three younger children spend time with their father in different patterns depending upon whether or not the husband remained in Australia.
If the husband remained in Australia, the Independent Children's Lawyer proposed that the three younger children spend time with their father on a four weekly cycle so that they were with him from after school Friday to the commencement of Monday each alternate weekend and that in the off week, C spend overnight with his father one Wednesday evening once every four weeks, that D spend a different Wednesday evening with her father once every four weeks, and E spend Thursday evening with his father once every four weeks.
The Independent Children's Lawyer proposed that if the husband remained in Australia, the younger children would spend half of each school holidays with their father.
In relation to B, the proposal in Exhibit 18, if the husband remained in Australia, was that she would spend from 9.00am to 6.00pm Sundays with her father each alternate weekend when her siblings were with their father.
In the event that the husband moved overseas, the Independent Children's Lawyer proposed that all children spend four weeks with their father in the December/January school holiday period overseas. The Independent Children's Lawyer, after discussion, said that the husband should also have the ability to spend two weeks with all the children in Australia during two of their three term school holidays and further, if the husband was in Australia at any time during school term, then the children could be with him for up to two weeks at a time with a gap of three months (so effectively no more than once per term).
Although the Independent Children's Lawyer’s minute of orders proposed shared transport in respect of changeover, the wife indicated in her evidence that she would be prepared to do all the transportation for B.
The wife agreed with the Independent Children's Lawyer’s proposal in terms of the time the children would be spending with their father if the husband remained in Australia, with one exception:
10.1.Instead of the three younger children spending one to one time with their father overnight during school term as proposed by the Independent Children's Lawyer, the wife proposed that they all go to their father each alternate Thursday night.
Because the wife indicated that E would be attending preschool in 2015 on Wednesday, Thursday and Friday, the day nominated by the husband if he resides in Australia in 2015 would be a workable arrangement.
The husband indicated that he was a bit surprised by the testimony of the family consultant, especially regarding B, where the family consultant had said that B would be very distraught if an order was made that she live with her father, particularly if that was overseas. Having been surprised by that evidence and mindful of B’s good academic results, he said he was willing to drop his request that the children come and live with him.
The husband agreed that the wife could have sole parental responsibility in relation to obtaining passports for the children, arranging for the children’s citizenship and residence status and medical treatment. He did however oppose the wife’s application (supported by the Independent Children's Lawyer) that she have sole parental responsibility in relation to education. It was agreed between the parties that the children would continue to be raised in the F Church faith. There was no issue between the parties in relation to change in surnames and both parties agree that the children can travel with both their parents internationally, subject to certain conditions applying.
The wife sought an order that the names of the children be permanently removed from the airport watch list. I note from the court file that the parties had a Registrar of this court make consent orders to that effect on 19 November 2014 so it is no longer necessary for me to further consider that application.
In relation to parental responsibility in respect of the issue of education, the husband emphasised the importance to him that he maintain more than a consultative role in respect of education and that he wished to have a say in which school the children are going. He said that he wanted the order for shared parental responsibility so that a joint decision had to be made in relation to matters in respect of education.
Otherwise the husband was pleased with the document produced by the Independent Children's Lawyer (Exhibit 18) with the oral amendments made to that document by the Independent Children's Lawyer during submissions, with the exceptions that if he was living overseas, he wanted the children to be able to come and live with him overseas twice a year, once during the December/January period and once during another school term period. Two overseas trips a year by the children was opposed by both the wife and the Independent Children's Lawyer.
The husband opposed separate orders being made in relation to B. Whilst he conceded that B had not been spending time with him as at the date of the trial under the current order, he did not want to give up and have no order at all. The husband indicated during final submissions that he still believed that with the right encouragement B would change her attitudes towards him. The husband wanted an order made even if it was not going to be complied with. As a result of discussions during final submissions, orders were made at the conclusion of the hearing for a further attempt to involve B in therapeutic counselling. Orders were made in the following terms:
1. The mother do all things within her capacity to ensure that [B] attends an interview with [Dr M] on 18 February 2014 at 12 noon, either herself personally or by delegation to her mother, and that she ensure that [B] attends any further time that [Dr M] nominates for interviews whether they are to be interviews alone with [B] or together with either or both the parents and that both parents do everything necessary to ensure that they attend any appointment made by [Dr M] for interviews.
2. I request that [Dr M] provide the court with a report at the conclusion of the therapy that she provides [B] and the parties or three months from the date of this order, whichever is the earlier time.
3. I note it is not my intention to make a final order in relation to [B] until I have this report.
4. When I receive that report I will consider whether or not I need to hear any further submissions from the parties. If the matter otherwise resolves in relation to [B], consent orders may be made in chambers.
On 13 May 2014 the Independent Children's Lawyer forwarded by email to my associate and to the parties a copy of a report of Dr M dated 12 May 2014 (I mark those documents Exhibit 19).
That report indicated a significant failure in attempts over multiple sessions to engage B in therapy. Dr M opined that B appeared to have very black and white views about her parents and was entirely enmeshed with her mother’s views. B was extremely treatment resistant and Dr M opined that further attempts to engage her would be futile. Dr M had ongoing concerns about B’s capacity to manage interpersonal relationships, relationship conflict and she expected that these issues would continue throughout B’s adolescence, even if she does not see her father. She further opined that B was having a great deal of difficulty differentiating her own views from that of her mother and she appeared to be deeply enmeshed in adult problems and had been exposed to most of the family law dispute between her parents. Dr M concluded by saying that she thought that B had been deeply hurt by her parents’ dispute and is sad and angry about its impact upon her.
Given Dr M’s report, an issue may arise as to whether or not the wife will have the ability to ensure compliance with the orders that she is proposing in relation to B. Given that she has, however, substantially consented to the orders in relation to B, I intend to make them, but subject to the proviso that B, who is now nearly 14 years old, can choose not to attend on any particular occasion.
I am also aware as a result of communication that has been sent to my chambers that the husband may have since the end of the hearing, moved overseas.
That makes little difference in relation to the orders to be made as the possibility of that move was foreshadowed at the hearing and the proposed orders were caste in the alternative, depending upon whether or not the husband remained in Australia. I have no information as to whether or not the husband intends to return to Australia if he has moved. The area of dispute between the parties in relation to the children’s time with the husband if he remained in Australia is in very narrow compass in any event.
The outstanding parenting issues by way of summary are:
23.1.Whether an order for shared parental responsibility be made in relation to matters in respect of education;
23.2.Whether or not the three younger children have one to one time with their father during school term if their father is in Australia;
23.3.Whether or not if the husband is living overseas, the children spend time with him overseas for one or two block periods each year.
Schedules 1, 2 and 3 set out the wife’s final proposals, the husband’s final proposals (as amended by him in final submissions) and the Independent Children's Lawyer’s respectively. As indicated, the husband amended his position in final submissions.
During final submissions the Independent Children's Lawyer clarified that in respect of order 14 as sought, she sought a costs order against the wife in the sum of $4,419 and against the husband in the sum of $2,769 (he having already made an initial up-front contribution). Each party consented to these costs orders being made.
DOCUMENTS RELIED UPON
Documents relied upon by the parties are set out in Schedule 4.
SHORT HISTORY
The husband was born in Country N in 1977 and is now aged 37 years old.
The wife was born in Country N in 1979 as is now aged 36 years old.
The parties’ first child B was born in 2001 in City O, Country L, and is now aged 13 years old.
The parties commenced cohabitation in late 2001 and married in 2002 in Country N.
The parties’ second child C was born in 2006 in City Q, Country R, and is now aged 8 years old.
The parties’ third child D was born in 2008, in City P, Country I, and is now aged 6 years old.
The parties’ fourth child E was born in Sydney in 2010 and is now aged 4 years old.
The parties separated on 20 June 2012.
CREDIT
Generally in relation to issues of credit, the parties, both of whom conducted their own representation during the hearing, did it in a courteous and efficient manner and both readily made concessions that were not in their interests. I did not gain the impression that either of the parties were deliberately inventing or embellishing.
There were quite a few occasions during the hearing where one of the parties would assert a particular proposition, the other party would challenge them on it, either by producing a document or by relating their version, and the party who had first made the assertion would withdraw the assertion.
However, in all the circumstances there is no major issue in respect of which the credit of the parties is relevant.
DETAILED CHRONOLOGY
The husband was born in Country N in 1977 and is now aged 37 years old.
The wife was born in Country N in 1979 as is now aged 36 years old.
The parties met and commenced a relationship in 2000.
The parties’ first child was born in 2001 in City O, Country L, and is now aged 13 years old.
The parties commenced cohabitation in late 2001 in City S, Country L, and remained there for approximately five years.
The parties married in 2002 in Country N.
In January 2006 the husband moved to City Q, Country R, for employment.
The parties’ second child C was born in 2006 in City Q, Country R, and is now aged 8 years old.
The wife and children moved to City Q to join the husband in July 2006.
In or around March 2007 the wife and children moved to City P, Country I.
In or around May 2007 the husband joined the wife and children in City P.
The parties’ third child D was born in 2008, in City P, Country I, and is now aged 6 years old.
In 2010 the parties jointly purchased a property at G Street, H Town, Country I (“the Country I property”).
On 3 May 2010 the husband commenced employment at T Pty Ltd as a director. On 8 June 2010 the husband’s “Grant of Business (Long Stay) Sub-Class 457” Visa was approved by the Australian Department of Immigration and Citizenship, providing for the husband, wife and children to travel to remain residing in Australia until 7 June 2013. The husband arrived in Australia in mid June 2010 to obtain accommodation for the family.
The wife and the children moved to Sydney in or about August 2010 to join the husband.
The wife commenced full time employment at the U University on 23 August 2010.
The parties’ fourth child E was born in 2010 and is now aged 4 years old.
The maternal grandmother arrived in Sydney in March 2011 on a visitor’s Visa; however a condition of her Visa has been that she must leave Australia every three months.
In or about April 2012 the parties paid a deposit of $100,000 from joint savings to finalise their expression of interest in purchasing J Street, K Town, Country L (“the Country L property”).
On 9 April 2012 the purchase of the Country L property settled. The parties paid a further $267,000 from joint savings towards the purchase. The parties disbursed a further $41,882 for land transfer and conveyancing fees, of which $11,882 was from joint savings and $30,000 borrowed by the husband from his brother, Mr V. The husband says that $40,000 was borrowed from Mr V.
As set out in my reasons for judgment dated 12 December 2012 at [43] to [47], the wife deposes the husband admitted to depressed thoughts and intentions of committing suicide since the end of 2011. She contends the husband admitted to having previously attempted suicide by having the car run for thirty minutes inside the garage. The wife further contended the husband then admitted to taking more than the recommended dose of sleeping pills “hoping to sleep forever”. The husband has previously vehemently denied trying to commit suicide. The husband was not asked any questions in oral evidence about his mental status in 2011. The husband has been having unsupervised time with the children from June 2012 when the parties separated and I made orders for unsupervised block time on 12 December 2012.
An altercation between the parties occurred on 19 June 2012 outside the former matrimonial unit. The husband deposes at [61] of his affidavit filed 15 January 2014 the wife assaulted the husband by pushing him onto the concrete floor and kicking him.
The parties separated under the same roof on 20 June 2012.
On 21 June 2012 the wife and maternal grandmother travelled to Bangkok and the husband solely cared for the children for five days. The wife deposes that on this day the husband was to take the children to swimming lessons but did not because he forgot the swimming costumes and got lost. The husband asserted in oral evidence that he forgot one child’s costume, and as a result of the time it took to turn around to get it the lesson was over.
On 26 June 2012 the husband travelled to Country N for a week.
On 22 July 2012 the husband had a supervised visit with the children where he took them to the pool with the wife and maternal grandmother.
The settlement of the purchase of the Country L property took place on 9 August 2012. Although the parties had already separated they agreed to proceed with the purchase to avoid losing the deposit paid.
The children and the maternal grandmother travelled to Vanuatu on 19 September 2012.
The wife deposes that on 27 August 2012 she was informed she was no longer able to remain in Australia as a dependant on the husband’s visa. The wife’s employer sponsored her on a 458 long term visa. The wife deposes that the husband refused to give consent for the children to be listed as dependents on her visa.
On 31 August 2012 the husband commenced proceedings in this court.
On 29 October 2012 Interim Child Support Departure Orders were made in the sum of $1,400 commencing from when the Country L property was leased. The husband’s bonuses were to be paid to term 1, 2 and 3 school fees and preschool fees and the husband was to be responsible for school fees in term 4 2013.
Orders were made providing for the children to spend time with the husband every alternate weekend, with E and D to be collected by the wife for overnight periods. An order was also made that the husband and B attend joint psychotherapy with a view to attempting to repair their relationship.
On 12 November 2012 B was diagnosed by her general practitioner with anxiety and low mood and was referred to a therapist.
On 13 November 2012 the parties met with the family consultant. This again occurred on 20 November 2012.
On 6 December 2012 the wife’s employment contract was extended until February 2014.
On 12 December 2012 orders were made allowing the wife and the children to travel to Country N for the Christmas and New Year period and for further holiday time for the husband with the children.
On 17 December 2012 the wife, the maternal grandmother and the children travelled to Country N.
On 5 January 2013 the wife caused E to be baptised in Country N and the husband was not advised.
On 7 January 2013 the wife was invited to submit an application for permanent residence in Australia.
On 16 January 2013 the wife, the maternal grandmother and the children returned from Country N.
On 18 January 2013 B refused to attend the husband’s residence as per the orders.
On 26 January 2013 the husband paid $4,148 for new appliances for the Country L property with agreement of the wife that the wife repay one half to the husband. This occurred by way of deduction of child support otherwise payable to the wife.
On 8 February 2013 the parties attend their third interim hearing and Le Poer Trench J made orders providing for the children to spend time with their father, on a fortnightly cycle, on a Monday night and on each weekend from after school Friday to 6.30pm Sunday, and for any of the parties to take B to psychotherapy if he/she deemed it necessary. It was further ordered that both parties attend a post-separation parenting course.
On 13 February 2013 the wife filed an application for a permanent resident visa, subclass 189, with the children as dependants. The husband refused to provide his consent.
In or about March 2013 the wife applied for an extension of the maternal grandmother’s visitor’s visa.
On or about 15 March 2013 the husband received an updated Assessment from the Child Support Agency (“CSA”) reflecting his increased time with the children.
On 28 March 2013 the Interim Child Support Departure Orders were varied as follows:
84.1.Until 2.11.2013, Husband pay the Wife child support in the total sum of $935 per week (or $4,051.67 per month);
84.2.Husband pay the Wife the sum of $6,184.21 within 28 days to cover the costs of repairs to her motor vehicle, the characterisation of that payment to be deferred to the final hearing.
The husband complied with those orders.
On 2 April 2013 a case processing officer was assigned to the wife’s visa application.
On 15 April 2013 B did not attend the husband’s residence for the first half of the school holidays as required by the orders.
On 6 May 2013 the parties attended a child dispute conference.
On 3 July 2013 the wife and the children were granted permanent residence status in Australia.
On 2 September 2013 orders were made by consent for the Country I property to be listed for sale. At the date of the hearing no requests from prospective purchasers had been made to view the property. The wife however found a new tenant with the consent of the husband to ensure the mortgage outgoings could continue to be met.
On 3 September 2013 orders were made for the children to travel to Country N with the husband between 15-29 December 2013.
On 23 September 2013 the wife sent the husband an email asking him about therapy for B.
On 29 September 2013 B refused to spend the school holiday period with the husband.
The husband was made redundant from his position at T Pty Ltd on 30 October 2013.
On 30 December 2013 the husband and the children returned from the trip to Country N. The orders made on 3 September 2013 provided that the children would be in the husband’s care until 5 January 2014 however the wife arrived at the husband’s house on that day and left with B. The husband deposes the wife and B disappeared when he was opening the door to his house and he subsequently called the Police.
The wife was contacted by Dr M on 8 January 2014 and an appointment was made for B for 1 April 2014.
During the final hearing, the appointment for B with Dr M was brought forward to 18 February 2014, and the wife agreed to consent orders being made that she would take B to this appointment.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Family Law Act 1975 (Cth) (“ the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e )children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when 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 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests. Given the limited nature of the issues in dispute, these considerations will be dealt with briefly.
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
The children C, D and E enjoy a meaningful relationship with both their parents. On both parties proposals these three children have sufficient time with each parent to maintain a meaningful relationship with both parents, with the caveat that if the husband moves overseas his ability to maintain the relationship will be curtailed. The husband proposes that if the children live with the wife, in addition to the children being with him as a group, each child should spend individual time with him on one night a month. The aim would be for each child to enjoy a more meaningful time with the husband, particularly given their different ages, interests and developmental stages. This proposal is supported by the family consultant and the independent children’s lawyer.
B currently does not have a meaningful relationship with her father. B expressed anger towards her father during the interview with the family consultant and during her meetings with Dr M. There has been some history of conflict between B and her father, and B stopped spending time with her father on a regular basis in accordance with the orders in mid-2013. Her time with her father decreased from alternate weekend time with her siblings, to only time between 9.00am and 6.00pm on alternate Sundays. Eventually B also stopped attending her father’s residence on Sundays and did not attend the time arranged during the school holiday periods. On 15 October 2012 B sent her father an email stating “And can I just say, that because of what you did and the people you hurt I’m ashamed to call you my dad.”
The husband gave oral evidence that throughout the holiday in December 2013 where the husband and children travelled to Country N, B began to “open up” to the husband and speak to him and engage with him. As such, there is no evidence to suggest that B would not benefit from having a meaningful relationship with her father. Unfortunately the counselling with Dr M has not assisted in the relationship.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
At one time the wife had worries about the husband’s mental status. At [43] to [47] of my reasons for judgment dated 12 December 2012, I have said:
43. In her affidavit filed on 4 October 2012, the mother deposes to a conversation she had with the father on 21 May 2012. She says that the father said to her words to the effect of:
“Towards the end of 2011 I was very depressed with constant thoughts of committing suicide. At one time I stayed in the garage of our previous home [being our previous rental home at [W Street, Suburb X]], with doors locked and the car running for 30 minutes. My biggest concern was to make it look like an accident so that you and the children could still claim on my life insurance.
Several days later, she says the father said to her words to the effect of:
“A few days ago I went and bought some sleeping pills as I couldn’t relax. I took more than the prescribed recommended dose as I was hoping to sleep forever, and I have always been depressed and this seems to be heightened by stress at work but now I am so relieved I no longer have to lie so much and all the time”
[the reference to a “lie” is a reference to the father being bisexual]
44. The mother said to the father that he should go and discuss these things with his GP and apparently the father did.
45. In the father’s affidavit replying to what the mother has said which the father filed on 25 October 2012, the father says:
I vehemently deny ever trying to commit suicide
46. The lawyer for the mother indicated from the bar table that there were notes in subpoenaed documents which indicated that the father had suicidal ideation and that was conceded by counsel for the father. It seems therefore that the father concedes at least that at the end of 2011 he was very depressed with constant thoughts of committing suicide. However, it is clear that the mother left the children with the father for a period of 5 nights after the conversation which the mother says causes her concern.
47. Given what is recorded in the recent counselling memorandum, I have no real concerns about the father having extended overnight time with the children.
Neither the wife nor the Independent Children's Lawyer referred to these matters during the final hearing. Whatever concerns the wife once had about the husband’s mental status, they seem to have abated.
There was a very unfortunate incident between the parties on 19 June 2012 which was witnessed by the children. The wife followed the husband into the street as he was trying to leave the family unit. The husband says the wife assaulted him by pushing him onto the concrete and kicking him. The wife says that as she tried to engage the husband, he pushed her away, she took hold of him and they “sort of struggled”. The precise details are not material. Both parties agree the wife was the aggressor. The wife sent an email to the husband and his family on 22 June 2012 stating “I have to follow you on the street, hit you, violently scream at you, and force you to come home?” The wife in oral evidence suggested she did not actually hit the husband, but it “was the way [she] wrote it.”
The children were exposed to the wife screaming repeatedly “you ruined my life.” This led to B asking the wife about the wife’s behaviour which resulted in the wife telling B of her father’s infidelities. It is probable that much of the anxiety and sadness experienced by B has developed as a result of the psychological harm caused by those discussions.
The children have not been exposed to any family violence after this argument and there is not a need to protect the children from any harm from family violence.
The additional considerations
Children’s views (s 60CC(3)(a))
B provided insight into her views in regards to schooling, the possibility of counselling and her relationship with her parents, during her interviews with the family consultant. The family consultant reports that B “spoke positively of her experience of high school and believes that she is doing well academically.” B is also “adamant that she does not wish to see any counsellor”.
I have referred above to the result of unsuccessful attempts to have B engage in therapy with Dr M.
In regards to her parents, B said that “she perceives that her father more or less ignores her” and that “she copes with her time at her father’s home by reading and/or doing homework.”
Annexed to the wife’s affidavit sworn 5 August 2013 is a poem written by B after the separation and submitted to a school writing competition. B writes about her anxiety and sadness in relation to her parents’ separation and her father’s infidelities. Particularly of concern, she writes “sometimes I wish I could just end this awful life.”
The wife originally suggested that a source of B’s current lack of enthusiasm for her father concerned an assertion by B that she did not receive a birthday text message from her father. The husband said he sent a text message wishing her happy birthday. B said she did not get one. The wife said she asked the husband to send a copy of the text message to her so she could work out who was telling the truth. The husband said he got the request but ignored it. He only produced a copy of the text message on the last day of the hearing. The wife conceded that in all probability B had not been truthful when she told her that she had not received a birthday message from her father. That of course begs the question as to why B would have done that. It does display a level of unhappiness with her father. The husband says that that unhappiness stems from something that happened a couple of weeks before her birthday but this related to an argument around B travelling early in the morning through a park before sunrise to get to a bus to go to basketball. There was also an argument around that time about whether or not B could go to a barbeque in circumstances where the wife had agreed to swap weekends with the husband. B was with her father on the weekend of the barbeque. The husband eventually agreed for B to go to the barbeque but that was an agreement that was reached after a reasonable amount of angst.
The three younger children were not interviewed separately by the family consultant. The family consultant does not report that the younger children expressed any relevant views.
Relationships of the children with the parents and other persons (s 60CC(3)(b))
When observed with the wife, the family consultant reported that each child greeted the wife warmly.
The family consultant reported that the three younger children’s interactions with their father were marked with ‘closeness” and “warmth.” E was also reluctant to separate from his father. At the end of the observation E immediately said he wanted to see his father. B however did not greet her father and sat somewhat apart from him.
The family consultant suggested “the relationships between the [father] and the three younger children are appropriate, however if, as B suggests, he is more inclined to allow the children to entertain themselves than involve himself in activities with them, then he will need to consider (perhaps with Dr M’s assistance) what the medium to longer term outcome might be for their relationships with him, particularly if he and the children are not having regular and consistent time together.”
Information provided by each parent in the interviews with the family consultant indicates that the maternal grandmother has been a significant and, no doubt, emotionally available person, in each child’s attachment history as the family moved from Country L to Country R, Country I and more recently Australia. The maternal grandmother has always spent significant time living with the family assisting with the care of the children.
The husband conceded during the final hearing that he would be agreeable to continue attending on Dr M in order to develop more appropriate strategies to engage with B. In her report the family consultant observed the husband’s apparent ignoring of B during their observation, and she raised the question as to the husband’s ability to, without professional assistance, try to breach the estrangement in their relationship. Unfortunately the attempt to improve the relationship between B and her father with Dr M’s assistance has not been successful.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
I do not consider an order creating overnight time on a one to one basis with the three younger children once a month to be a change that would have a detrimental effect upon any of the children.
The time which the wife and the Independent Children's Lawyer proposes for the children to spend with their father overseas is also a change which is yet to be tested.
In their interviews with the family consultant, each parent raised the issue of the children’s future schooling in the context of their current financial difficulties. The husband said that he informed B’s school that he was unable to continue to pay B’s school fees. The wife said that, after the school contacted her in respect of this, she, due to B’s alleged distress about the possibility of changing schools, entered into an arrangement with the school in relation to future school fees. The wife also advised that she placed B’s name on the waiting list with a government girl’s high school and the husband was unaware of this occurring.
The family consultant asserted it was evident that the parents had not sought to explore these issues with each other.
In oral evidence, the family consultant opined that B is a very sad young person. If she was required to change schools there would be implications. She would benefit from school counselling at any new school.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
If the husband relocates to Country L there will be a significant expense of the children spending time with him on his proposal. International flights each year, for four children, would be of a significant cost. The husband proposed that he would pay for the flights using part of his superannuation accumulated whilst working in Australia (that he can access now) and also relying on his future earnings. The husband in final submissions proposed four international flights a year (two return trips) for each of the children. The Independent Children's Lawyer and the wife proposed two (one return trip) but also that the husband fly to and from Australia during the other school holiday periods, or for periods of time that he can take leave from work.
There should not be any difficulty in facilitating communication between the children and the husband should he relocate. I have accepted the wife’s proposal that each party be at liberty to contact the children by telephone at the other party’s place of residence between 5.00pm and 7.00pm each day the children are in the other party’s care. The children should also be at liberty to communicate with each party at such times as he or she wishes and the party in whose care the children are at the time should facilitate and encourage such communication by telephone or by other electronic means. Skype would undoubtedly be of great assistance in ensuring the children also have visual interaction with the each of the parties when in the other party’s care.
There would be some cost to the husband should he come to Australia to spend time with the children, whereby he would need to rent accommodation and rent a car. The husband raised concerns about these difficulties and it was suggested that he may be able to rent holiday accommodation or a beach house if the children are on school holidays. He thought that he would not be able to gain flexible leave in any new employment but considered it was an option if possible.
Concern was also raised during the final hearing as to the disruption to the children’s routine if the husband was to come to Australia during the school term. I put to the wife the possibility the husband might rent appropriate accommodation for two weeks during the school term and take the children to and from school. The wife conceded if this was the only time he could get off work than it would be alright.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f))
The husband gave oral evidence of his efforts to meet the interests of all the children. For example, while C has Karate on Friday afternoons he takes D and E to the playground.
The wife has had the care of the children since separation and has attended to their physical needs very adequately.
The family consultant reported that whilst it is evident that the parents are equally committed to providing for their children, it is the family consultants view that this commitment relates more to material issues (housing, education, extra-curricular activities) than to each child’s emotional needs.
There have been difficulties with each parent attending to B’s emotional needs.
The wife contends that the husband is unable to provide for B’s emotional needs and frequently lets her down in his promises. The wife gave examples of the husband being late to pick up B on a Sunday, being late to the wife’s residence to drive B to school, and the example that the husband did not facilitate for B to visit the maternal grandmother whilst on the holiday in Country N. The wife said in oral evidence that the husband is “consistently deceiving [B]”. The wife creates expectations in B of what might happen, but in a circumstance where the wife and husband have no communication about what’s going to happen, it is no surprise that the husband does not fulfil the expectation.
The wife has asserted she has made attempts at repairing the relationship between B and the husband by. The wife gave examples of encouraging B to spend time with her father on Father’s Day in 2013 despite B not having attended her father’s residence for several months, and then ‘striking’ a deal with her than she would make the effort to resume going again every other Sunday, and finally encouraging the husband to drive B to school four mornings a week when she had taken a three week leave of absence from work.
The wife was assessed by the family consultant as not being supportive of B attending any counselling appointments, whether with Dr M or any other professional. Orders were made on 29 October 2012 requiring B to attend therapy and the wife to facilitate that process. B was diagnosed by her general practitioner with an anxiety and low mood disorder and was referred to a therapist. B showed signed of distress when writing in a poem entered into a school competition “sometimes I wish I could just end this awful life.”
On 8 February 2013 further orders were made regarding B attendance at therapy. The wife, who is a highly intelligent woman, was not able to create a situation where that therapy took place. It was reasonably clear to me that she was not motivated for it to take place. I am not entirely sure however that the parties fully understood the purpose for which that therapy was aimed. The wife did lack certain insights into the effect on B’s future psychological health of her not having a reasonable relationship with her father.
The wife asserts an appointment was made in January 2014 for B to attend upon Dr M on 1 April 2014, but this was changed during the final hearing and the wife consented to orders that she take B to see Dr M on 18 February 2014.
I have earlier recorded the therapist’s view about B’s enmeshed relationship with her mother. Dr M concluded that therapy was of no further utility.
The wife’s strong opposition and refusal to take B to therapy despite the court orders has been detrimental to facilitating the repair of relationship between the husband and B.
The wife is not empathic with B’s emotional needs. It is probable that much of B’s distress and anger towards the husband has come about after having a conversation with the wife shortly after separation, to which I have already referred, where the wife told B of the husband’s infidelities. When the wife was asked whether it was appropriate to tell an 11 year old about the husband’s infidelities, the wife somewhat poorly, attempted to explain the circumstances in which she had done so. The wife also conceded that prior to having this talk to B the husband and B had a very close relationship and that relationship was fractured when B found out the husband was unfaithful to the wife and has not repaired since.
The family consultant opined that whilst each parent sought to present him/herself as child focused and attuned to each of the children’s individual personalities and emotional needs, neither provided other than limited insight in relation to each child’s personality, interests emotional needs and/or development.
The recent issues in relation to B’s schooling and the times at which each of the children would return to their mother’s care at the end of their holiday with their father in Country N, highlight these issues and underscore the entrenched position each parent has taken in relation to communication with the other.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
The family consultant provided the view that the husband’s proposal to spend individual time with each child is appropriate, particularly given each child’s very different developmental stage.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))
Despite their being apparent tension in the relationship between B and the husband, the husband remained adamant that he was prepared to repair the relationship. He continued to attend on Dr M in order to improve his parenting strategies. The husband agreed that he would continue to conference Dr M by Skype if he relocated to Country L, at the suggestion of the family consultant. The family consultant was of the view that continuing the relationship with Dr M would be useful.
The husband conceded he made no effort to comply with the orders made which specifically provided that the parents attend a post separation parenting course of no less than five weeks.
Other considerations
I do not consider any other s 60CC(2) or (3) consideration to be relevant.
SHOULD THERE BE SHARED PARENTAL RESPONSIBILITY IN RELATION TO EDUCATION?
As previously indicated, the husband agreed that the wife could have sole parental responsibility in relation to passports, citizenship and residence status and medical treatment. There was no dispute between the parents in respect of religion. There also did not appear to be any issue between the parties in relation change of name and both parties agreed the children can travel with both their parents internationally.
The main issue between the parties related to the wife’s contention that she should be solely responsible in relation to making decisions about major long term issues in respect of the children’s education.
The family consultant is of the view that there seems no likelihood that the parents will, in the short to medium term, be able or prepared to work towards overcoming their respective negative attitudes towards the other and any suggestion about shared parental responsibility in relation to contentious major long term issues is problematic. The children will be assisted by one parent having sole parental responsibility in relation to contentious issues for the foreseeable future.
The family consultant said she would support consultation between the parties in relation to major decisions initially, and then the final decision be with the resident parent.
In oral evidence the family consultant reiterated this view and said her concern is that the parents cannot cooperate or discuss issues. In her interview with the family consultant the wife said that she does not trust the husband and has reiterated that this view is unlikely to change.
The main uncertainty that existed at the date of the hearing related to schooling was centred around the husband’s future employment prospects.
I find that the parents, left to their own devices at this point in time, if they disagreed, would not be able to reach a joint decision in relation to matters in respect of schooling and consequently I shall make the order as sought by the Independent Children's Lawyer and the wife. That order will require her to properly consult with the husband prior to any final decision being made, but leave the final decision to her.
SHOULD THE THREE YOUNGER CHILDREN SPEND INDIVIDUAL TIME WITH THE HUSBAND?
Whilst the husband submitted that B is much older and does not share most hobbies or activities with her younger siblings, for other reasons, there is no current realistic chance of any order for one to one time between B and her father being successful.
The wife opposes individual time with the three younger children once per month.
The family consultant recommended that if possible, each child should have the opportunity of being able to spend time with his/her father. She stated individual time is important particularly in relation to developmental stages; boys and girls tend to want to do different things.
The husband asserts in his affidavit that D and E still play together and are still interested in the same activities but C is growing up fast and has developed very different centres of interests. He does not enjoy playgrounds anymore and most activities he used to like are now “for babies”.
The wife opposed this proposal because of the effect it may have on the children who do not have individual time with the husband on that day. For example, when the husband picks up D one afternoon for her individual time, E may see the husband and become anxious and upset. The wife submitted that this proposal is a significant change to the children’s current routine and that the children’s views had not been explicitly canvassed in relation to this arrangement. The wife submitted that her four children are four siblings who love each other. They play with each other; they support each other; and they really enjoy each other’s company. The wife would like their time with their father to be consistent and coherent. She submitted that it would be a dismantling of her family to send the children individually to their father. The family consultant agreed with the wife that it is certainly going to be disruptive if the husband arrives to pick up one child and he has two other children angry and distressed but suggested it would be better if the time be organised around an activity. She also asserted it is essential the parties reiterate to the children that they also have “special time with dad”. The family consultant formed the view the children will get use to the arrangement as they get older.
The husband also asserts in his affidavit that the argument the children are inseparable does not make sense as they do various extracurricular activities on their own, all go to different schools/preschool, have different friends and attend different birthday parties.
I suggested to the wife that the husband could arrange to pick up the child with whom he is spending individual time with, outside the wife’s residence and out of sight of E. This would be best done with proper communication. The parties’ poor communication is not a decisive factor in respect of this issue.
The husband said that whilst in Australia, he will arrange for the children to attend after school care if he finds employment, and he will pick the child up at 5.30pm to commence the individual time. If the husband is not working, he will pick up the child from school and if another child is at the same school he will reinforce that that child will also get to spend time with the husband individually at the next occasion. The husband will pick up E from preschool.
The family consultant noted that individual time is particularly important for E, as it will assist him and his father to develop an even stronger bond.
Notwithstanding the communication difficulties, I do not accept the wife’s position that a child spending one to one time with their father once every four weeks would be a dismantling of the family nor something that would create unmanageable disorganisation as asserted by the wife. I will accordingly make the order proposed by the Independent Children's Lawyer and supported by the husband. The order will not be applicable if the husband relocates overseas.
SHOULD THE CHILDREN GO ON ONE OR TWO OVERSEAS TRIPS EACH YEAR?
The other outstanding parenting issue is whether or not, if the husband lives overseas, the children are to spend time with him for one or two block periods each year overseas.
I find that it is in the best interests of the children, in the event that the husband lives overseas, for them to be required to spend only one period overseas each year, namely four weeks over the Australian December/January school holiday period in the country of residence of the husband. The husband has agreed to pay the costs of the children’s international air travel. B can choose whether or not to travel. This annual trip will allow the children to have experiences with their father in the environment in which he lives. There is a burden attached to overseas travel. Other than imposing this on the children once a year, the father should bear the burden of travel for face to face time with the children. The husband should have the ability to see the children for two periods of two weeks in Australia during two of the other three Australian school holiday periods, as long as the husband gives at least two months written notice to the wife of his intention to come to Australia for that purpose. In addition, for up to two weeks during any school term, the husband can come to Australia and have the children with him. He should give at least two weeks notice of the fact that he is coming and obviously during that period, he would have to ensure that the children got to school in a timely way. These two opportunities each year should be exercised at least three months apart. Again, B can choose whether or not she participates.
APPROACH IN PROPERTY PROCEEDINGS
In this matter my task is to:
167.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
167.2.Determine whether it is just and equitable to make an order altering those interests and if so;
167.2.1.Identify relevant contributions and assess them;
167.2.2.Consider relevant matters referred to in Section 79 (4)(d) – (g) of the Act;
167.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
BALANCE SHEET
The settled balance sheet is set out below. Where values are not agreed they appear in bold as determined by me. The reasons for each determination are set out under item numbers following the table.
| Assets | ||||||
| Item no. | Title | Description | Husband | Wife | Agreed/ Determined | Value |
| 1 | H&W | Country L property | $1,867,442.80 | $1,867,442.80 | Agreed | $1,867,443.00 |
| 2 | H&W | Country I property | $1,012,187 | $1,012,187 | Agreed | $1,012,187.00 |
| 3 | W | Motor Vehicle | $5,000.00 | $5,000.00 | Agreed | $5,000.00 |
| 4 | H | Motor Vehicle | $5,000.00 | $5,000.00 | Agreed | $5,000.00 |
| 5 | W | Australian Superannuation | $36,360.00 | $36,360.00 | Agreed | $36,360.00 |
| 6 | W | Country I Superannuation | $4,000.00 | $4,000.00 | Agreed | $4,000.00 |
| 7 | H | Superannuation - Aust - One Path | $44,792.00 | $44,792.00 | Agreed | $44,792.00 |
| 8 | H | Superannuation - Country L - CIBC RRSP | $7,009 | $7,009 | Agreed | $7,009.00 |
| Total assets | $2,981,791.00 | |||||
| Liabilities | ||||||
| Item no. | Title | Description | Husband | Wife | Agreed/ Determined | Value |
| 9 | H&W | Mortgage over Country L property | $1,448,642.04 | 1,448,642,04 | Agreed | $1,448,642.04 |
| 10 | H & W | Mortgage over Country I property | $577,180.31 | $577,180.31 | Agreed | $577,180.31 |
| 11 | H&W | Loan from Mr V | $44,800.00 | $10,000.00 | Determined | $10,000.00 |
| 12 | H | Tax debt FYE 2012 | $5,666.00 | $0.00 | Determined | $5,666.00 |
| 13 | H&W | Annual Property Tax on Country L property | $17,245 | $17,245 | $17,245.00 | |
| Total liabilities | $2,058,733.00 | |||||
| Total net assets | $923,058.00 | |||||
In valuing the international property, the parties agreed that the market rate as at 5 February 2014 should be used. The figures agreed by the parties were 1 CI = 1.84034 AUD and 1 CL = 1.01768 AUD.
Using those rates;
170.1.The Country I property which has an agreed value of £550,000, will be valued at AUD$1,012,187.
170.2.The mortgage on the COUNTRY I property was agreed as being CI$313,627, and is valued at AUD$577,180.31. This leaves equity in the Country I property of AUD$435,006.69.
170.3.The Country L property which has an agreed value of CL$1,835,000, is valued at AUD$1,867,442.8.
170.4.The mortgage on the Country L property was agreed as being CL$1,423,475, is valued at AUD$1,448,642.04. This leaves equity in the Country L property of AUD$418,800.76.
There are minimal amounts in bank accounts and I intend not to have regard to any of them because of the small amounts involved. The wife and husband’s motor vehicle’s both have an agreed value of $5,000.
The wife originally sought that the children’s educational savings funds be transferred to the joint names of the husband, the wife and the respective child, and the funds contributed up until the date of making these orders be reserved for the children’s post-secondary education. Ultimately the husband submitted that the accounts should be ‘locked’ and accessible to the child whose name the account is in upon attaining the age of 18.
Add backs
It is not my intention to add back amounts that have been expended by the wife. The discussion in relation to those amounts will be dealt with when I discuss post separation contributions.
Liabilities
There is agreement in relation to the amount of the mortgages over the Country I and Country L properties.
I do not intend to add to the balance sheet the wife’s MasterCard debt, outstanding legal fees, nor the personal loan owing to Mr Y.
The husband claims credit card debt. Up until recently he has had very significant income of $330,000 and in those circumstances I am not going to take into account any credit cards that existed at the date of separation because in the month after separation they were actually paid back and then the husband ran that debt up again.
Item 11
The husband claims the parties owe the husband’s brother, Mr V the sum of $44,800. The wife agreed that $30,000 was borrowed from the husband’s brother to help acquire the Country L property.
The husband now contends he owes his brother closer to $50,000. The wife asserts she believes the $30,000 had been repaid to the husband’s brother. The husband says there was a written loan agreement that was signed and he was given a schedule of repayment but was never able to meet that. The husband says his brother knew the parties were in trouble and he agreed to be repaid in a few years.
In her cross examination of the husband, the wife asked the husband why he stated in his financial statement that he had a weekly outgoing of $923 to his brother, when he now asserts there has not been any repayment of the loan. The husband answered that he expected to repay it but could not and had to borrow more funds from his brother to pay for legal fees. I asked the husband why the loan had increased since June 2013 when the parties filed a joint balance sheet. The husband says it is a combination of living expenses and legal fees; approximately $10-15,000 on legal fees and the balance on buying new things when he moved out of the matrimonial home.
The wife conceded there might still be $10,000 owing to the husband’s brother. The husband has not established to my satisfaction there has not been a repayment to his brother of some of the original amount of $30,000 borrowed in respect of the purchase of the Country L property. I am left with the wife’s concession that at least $10,000 is owing to the husband’s brother and I will assess the liability at that amount.
Item 12
The husband was not challenged in cross examination in relation to the evidence in respect of his outstanding tax debt and that amount will be included on the balance sheet.
WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE
The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. Both parties have sought I make an order for property settlement pursuant to s 79 of the Act, even though, in this case, the two major assets are held in the joint names of the parties.
I find that in all the circumstances, it is just and equitable to make an order for property settlement.
CONTRIBUTIONS
The husband asserts that the contributions until the date of separation were equal and thus should be assessed as 50/50.
The wife proposes that the contributions until the date of separation should be assessed at 60/40, in her favour. The primary consideration she relied upon is the contribution made by her parents, particularly her mother, during the course of the time the parties were together. This is discussed below.
Initial Contributions
Neither party asserts that there was a significant imbalance in the contributions each party made at the commencement of the cohabitation. The husband was a student and the wife worked as an engineer.
Financial contributions
The husband graduated from university in 2001 and commenced employment on a salary of approximately CL$70,000. The wife then returned to her studies to pursue a PhD, earning on average CL$20,000 per year.
The parties jointly purchased the properties in the Country I and Country L.
Both parties contributed their personal exertion income towards the benefit of the family throughout the cohabitation.
Non-financial contributions
The husband deposes that he had to forego pursuing a PhD which would have significantly advanced and secured his career in Country L. He claims he instead had to move to the Country R in search of better work opportunities. The husband says the wife agreed to follow him and in return he agreed to move to the Country I a few years later when the wife found a better employment opportunity.
The wife also says that she had to forego many employment opportunities offered to her over the course of the marriage, so that she could support the husband in his employment decisions.
Neither party has established that any particular weight needs to be put upon their indirect contributions to the development of the earning capacity of the other.
The contribution made by the wife’s mother and other family members
The wife relied on the contribution of the maternal grandmother when proposing that the contributions of the parties be assessed as 60/40 in her favour.
Legal principles
The issue arises as to whether or not contributions made by the maternal grandmother can be treated as contributions pursuant to s 79(4)(b) or (c) of the Act which are in the following terms:
....
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
....
I find that the wife has not established that an order varying the element in the formulae which she seeks would produce a just and equitable outcome if the husband was on a low income. I accordingly dismiss that part of the wife’s application.
In dismissing the wife’s application for variation of the costs of children, I do not preclude her from filing a change of assessment application in the future with the CSA in circumstances where she says the husband has reengaged in employment. Any future change of assessment application would be based on the husband’s then known future income or earning capacity. As I have mentioned elsewhere, the husband conceded that he had a current earning capacity of at least $150,000. He also conceded that the receipt of his redundancy in the sum of $84,000 should be treated as income for child support calculation purposes in the year in which it was received. I am unable to vary the formulae by setting the husband’s adjusted taxable income (pursuant to s 118(1)(g) of the Assessment Act) in circumstances where the wife did not frame her application in that way.
Lump sum payment
The wife asserts the husband has shown great reluctance in supporting the children financially from the moment of separation. In her most recent affidavit the wife asserts the husband owes her $3,378.54 in child support arrears but by the time of the hearing there had been a significant reduction of that amount.
On 28 March 2013 Le Poer Trench J dealt with child support and spousal support on an interim basis. The husband sought an order that he pay $4,051.67 per month and the wife was proposing a child support payment of $8,666 per month. Le Poer Trench J made orders providing for a child support payment of $4,051.67 per month, and at paragraph 27 of his reasons for judgement stated “On the husband’s case, he clearly cannot afford to pay any more than that put forward by him. There may be doubt as to his ability to maintain the payment for which he seeks.” The husband states that he has paid in addition to child support, expenses for the children including school fees, video games and entertainment, phone bills for B and health insurance.
Le Poer Trench J made orders on 18 April 2013 that the husband pay, in addition to the periodic amount of child support, the children’s school fees. The wife asserts she paid $5,451.50 in November 2013 to B’s school so that she would not be “evicted”.
The husband initially proposed during final hearing that whilst he remained unemployed he would pay the school fees for C and D in lieu of child support, and as soon as he found employment he proposed the child support be paid as estimated by the CSA.
The wife suggests a lump sum is appropriate given she may face difficulties in receiving child support if the husband relocates to Country L.
The wife has not established to my satisfaction that the husband’s history of payment of child support to the date of hearing was sufficient to justify the capitalisation of periodic child support payments so that the husband is required to pay a lump sum in child support now.
I understand the logistical concerns the wife has in enforcing child support obligations if the husband re-establishes himself overseas but there is insufficient certainty in the evidence for me to place any significant weight upon that concern. Accordingly, I dismiss the wife’s application for lump sum child support.
Reimbursement for specific non-periodic costs
This application is made pursuant to s 124 of the Assessment Act.
The wife has made a specific claim for the payment of $13,030. The wife’s calculation of this amount is set out at [68] to [72] of her affidavit filed 22 January 2014 and constitutes the following:
Asserted arrears of child support $3,378
Urgent payment of B’s outstanding tuition (in order that she not be evicted from school) $5,451
Half the costs of obtaining a permanent residence visa for the wife and the children $2,100
B’s orthodontal treatment $2,100
Total $13,030
I take into account the husband’s concession that he should be treated as having an earning capacity of $150,000. The other aspects of the parties’ financial circumstances are previously set out above, as are the other matters set out in s 117(4) of the Assessment Act. Having regard to those matters, I consider that it is just and equitable and otherwise proper that the husband should make a payment to the wife.
Given the uncertainty in relation to the evidence of child support arrears, I will not allow that amount but I will allow the balance of the claim in the sum of $9,652 ($13,030 - $3,378).
I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 March 2015.
Associate:
Date: 18.3.2015
SCHEDULE 1
The Fathers Application (as discussed, this application was amended orally by the father in final submissions)
The children primarily reside with the father.
The parties have equal shared parental responsibility.
If the father is not forced to relocate to Country L because of his expiring visa he seeks the following orders:
3.1.The children spend time with the mother on a four week basis, including;
3.1.1.In week one and week three, from after school on Friday until 6.00pm on Sunday;
3.1.2.In week two;
3.1.2.1.B individually spends time with the mother from Wednesday after to school until Thursday before school;
3.1.2.2.C individually spends time with the mother from after school Thursday until before school Friday;
3.1.3.In week three;
3.1.3.1.D individually spends time with the mother from Wednesday after to school until Thursday before school;
3.1.3.2.Matteo individually spends time with the mother from after school Thursday until before school Friday.
The children primarily reside with the mother.
The mother have sole parental responsibility in consultation with the father for making decisions regarding
5.1.Obtaining passports for the children,
5.2.Arranging for the children’s citizenship or residence status and
5.3.Medical treatment.
The children spend equal time with both parents in the school holidays, on a week about basis.
The children spend time with the mother on Mother’s Day.
The children spend time with the father on Father’s Day.
If either of the children’s birthdays falls on a day where they are residing with the father, the children spend two hours with the mother on that day.
If either of the children’s birthdays falls on a day where they are residing with the mother, the children spend two hours with the father on that day.
If the father is forced to relocate to Country L he seeks the following orders:
11.1.The children relocate to Country L with him;
11.2.The children travel to Australia to spend time with the mother in all Country L school holiday periods:
11.2.1.In April and December holidays for the full school break, and
11.2.2.In June for one half of the school break.
11.3.The father will accompany the children on three of the six flights required to facilitate this arrangement and the mother is to accompany the children on the other three of the six flights.
11.4.The father will pay for the flights relevant to and from Country L.
If father remains in Australia, the father spends time with the children:
If the father relocates to Country L, the father spends time with the children on the following basis:
13.1.The children travel to Country L to spend time with the father each Australian school holiday periods:
13.1.1.In April, July and September for the full two weeks school break;
13.1.2.In December, for one half of the full school break.
13.2.The father will accompany the children on four of the eight flights required to facilitate this arrangement and the mother is to accompany the children on the other four of the eight flights.
13.3.The father will pay for the flights relevant to and from Country L.
The father seeks the following orders in relation to the property of the parties:
14.1.The father retain the property at J Street, K Town, Country L (“the Country L property”);
14.2.The mother retain the property at G Street, H Town, Country I (“the COUNTRY I property”);
14.3.The parties retain their respective superannuation;
14.4.The mother pay to the father $27,500 AUD;
14.5.The mother pay to the father $25,000 in relation to legal fees.
The funds in the international accounts in the names of the children be reserved for the children upon them turning 18.
The father pay C and D’s school fees of $750 per month, in lieu of child support, until he finds employment, or alternatively, the court assesses the fathers child support payable by using his redundancy payout of $84,000 as his assessable annual income while he remains unemployed.
When the father regains employment the child support payments revert to the CSA estimated amounts.
SCHEDULE 2
The Mother’s Application
The children primarily reside with the mother.
The mother have sole parental responsibility in consultation with the father for making decisions regarding
2.1.The children’s education,
2.2.Obtaining passports for the children,
2.3.Arranging for the children’s citizenship or residence status and
2.4.Medical treatment.
If the father remains in Australia:
3.1.In school term time, the children shall spend time with the father on a fortnightly cycle:
3.1.1.In week one, from the conclusion of school or preschool Friday to the commencement of school or preschool Monday;
3.1.2.In week two, from the conclusion of school or preschool Thursday to the commencement of school or preschool Friday;
3.1.3.Until February 2016, the father be required to collect and/or return E to the mother’s residence at the commencement and/or conclusion of his contact time with the children;
3.1.4.At all other times as agreed between the parents in writing.
3.2.During the New South Wales school holidays, the children shall spend time with the father as follows:
3.2.1.During the first half of terms 1, 2 and 3 school holidays, in the event that the children have not been in the father’s care the weekend immediately preceding the commencement of that term’s school holidays, and the second half of the terms 1, 2 and 3 school holidays in the event the children have been in the father’s care the weekend immediately preceding the commencement of that term’s school holidays.
3.2.2.For the 2014/2015 longer school holidays at the conclusion of term 4 and each alternate year, the third, fourth and sixth weeks of those holidays. For the 2015/2016 longer school holidays at the conclusion of Term 4 and each alternate year, the first two weeks and the fifth week of those holidays.
If the father is forced to relocate to Country L the children spend time with the father as follows:
4.1.If the father travels to Australia in each of the terms 1,2,3 school holidays, for the whole of those school holidays.
4.2.The children travel to Country L for half the term 4 Christmas school holidays. The mother to accompany the children to Country L and the father to accompany the children back to Australia.
Each parent be at liberty to travel internationally with the children during their contact time.
Should a parent need to travel with the children to a non Convention country, with the exception of Country N, the travelling parent provide a notice of no less than 48 days and obtain the written consent of the other parent.
The parties do all acts and things and sign all documents necessary to facilitate the international travel of the children.
Either or both parties be at liberty to provide the court orders to the relevant authorities to have the names of the children removed from the Airport Watch List.
In the event that the children are not in the father’s care on Father’s Day, the children spend time with the father from 9:00am to 6:00pm on Father’s Day.
In the event that the children are not in the mother’s care on Mother’s Day, the children spend time with the mother from 9:00am to 6:00pm on Mother’s Day.
In the event the children are not with the father on their birthdays or on his birthday, the children spend time with the father from 5:30pm to 7:30pm if it is a school day and from 9:00am to 2:00pm if it is a non-school day.
In the event the children are not with the mother on their birthdays or on her birthday, the children spend time with the mother from 5:30pm to 7:30pm if it is a school day and from 9:00am to 2:00pm if it is a non school day.
For the purpose of facilitating changeover for the school holidays, the father collect the children from the mother’s place of residence at the commencement of spending time with the children, and the Mother collect the children from the father’s place of residence at the conclusion of his time with them.
For the purpose of facilitating changeover when it is father’s day or the father’s birthday, the father is responsible for the collection and return of the children, and when it is mother’s day or the mother’s birthday, the mother is responsible for the collection and return of the children.
For the purpose of facilitating all other changeovers the father is responsible for the collection and return of the children for changeover.
Each party be at liberty to contact the children by telephone at the other party’s place of residence between 5pm and 7pm each day the children are in the other party’s care.
The children may communicate with each party at such times as he or she wishes and the party in whose care the children are at the time shall facilitate and encourage such communication by telephone or by other electronic means including but not limited to email and/or Skype.
The parties maintain a communication book for the purposes of including and sharing details as to the children’s progress, dietary habits and needs, any relevant health or education information and the like and the said communication book is to be passed between the parties at changeover.
Each party do all acts and things necessary to ensure the attendance of B to counselling sessions as directed by practitioner Ms M, and the court notes that the first such session is scheduled to take place on the 1 April 2014 at 5PM.
Each party do all acts and things necessary to ensure each of the children’s attendance to extracurricular activities whilst they are in their respective care and the court notes that B currently participates in netball, basketball, piano, yoga, debating, C participates in karate and summer cricket, and all children will resume swimming lessons.
In the event of an emergency involving any of the children including but not limited to any serious injury or illness, the party with care of the children at the time shall make the necessary immediate arrangements for the children and notify the other party as soon as possible and in any event within 12 hours of the emergency.
Each party shall provide to the other copies of all information and documents concerning the children’s schooling, homework, school projects, appointments and any other activities (including but not limited to his or her extracurricular and sporting activities or birthday parties) as soon as reasonably practicable and not more than two days of receipt of such information or documentation.
Each party supply an authority to any such schools attended by the children authorising the other parent to consult with school personnel, obtain from the school particulars of the children’s welfare and progress at school, details about upcoming functions or activities or any other information disseminated by the school or parents of children attending the school and each party be at liberty to attend school functions to which parents are usually invited.
Each party provide to the other names, addresses and telephone numbers of all medical professionals who treat the children and authorise each of them in writing to provide to the other party copies of any test results, letters of referral, reports and letters received from other medical professionals and authorise them to discuss any aspect of the children’s health with the other party.
Neither party denigrate or speak insultingly to the other at changeovers and neither party be permitted to denigrate or speak insultingly about the other to the children or any person in the presence or hearing of the children.
Each parent notify the other not more than 24 hours after any change of their landline and/or mobile telephone numbers and their residential address.
Neither party shall communicate with any member of the other party’s family, except in emergency situations.
Each parent do all acts and things and sign all documentation necessary, upon the Mother’s request, for her to apply for Australian citizenship with the children as her dependents.
Each parent do all acts and things and sign all documentation necessary for the renewal of the children’s Country L passports before their expiry date, and the court notes that D’s Country L passport is due to expire in June 2014.
That each parent do all acts and things and sign all documentation necessary for the issue of the children’s Australian passports when their citizenship is granted and for the renewal of the children’s Australian passports before their expiry date.
By way of enforcement of Order 17 of Orders made 2 September 2013, The Husband pay the Wife the sum of $2,116.21 in child support for the month of January 2014 and continue to comply with that Order until conclusion of these proceedings by way of final judgment at first instance.
Pursuant to section 116(1) of the Child Support Assessment Act, by way of departure from the Child Support Assessment issued in respect of each of the children, the annual costs of the children for the purpose of periodic assessment by the Child Support Registrar be varied to $35,000 per child.
That the lump sum child support payment made pursuant to the above order be credited as 100 per cent against the husband’s liability under any administrative assessment of child support payable by the Applicant husband from the date of these Orders until a date to be specified by the Court. That after that date, the husband is to resume periodic child support payments according to the administrative assessment of the Registrar of the Child Support Agency.
The children’s educational savings funds be transferred to the joint names of the husband, the wife and the respective child, and the funds contributed up until the date of making these Orders be reserved for the children’s post-secondary education.
The Husband and Wife pay, directly to Metropolitan Collection Services Limited, the sum of £637.50 each, ensuring that the funds are received on or before the 15 February 2014. Immediately after making the payment, each party is to provide confirmation in writing of the same to the other party.
That the entirety of the balance of the husband’s interest in the AA Fund superannuation fund (as a base amount equivalent to 100 per cent of the available funds in the said account) is allocated as required by Section 90MT(1)(a) of the Act, to the wife:
36.1.In accordance with section 90MT(1)(a):
36.1.1.The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
36.1.2.The husband’s entitlement and the entitlement of such other person to whom a splittable payment may be made as payments out of the husband’s interest in AA Fund is correspondingly reduced.
36.2.The Trustee of the AA Fund (“the Trustee”) shall do all acts and things and sign all documents as may be necessary:
36.2.1.To calculate in accordance with the requirement of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by these Orders herein; and
36.2.2.To pay the entitlement whenever the Trustee makes a splittable payment out of the husband’s interest in the AA Fund.
36.3.After service of the payment split notice pursuant to Rule 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all acts and things and sign all documents necessary including, but not limited to, exercising her request pursuant to Rule 7A.06(1) of the Superannuation Industry(Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the AA Fund to a fund of the wife’s choosing in accordance to Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
36.4.That this Order has effect from the operative time and the operative time shall be five (5) business days after service of this Order on the Trustee.
Simultaneously and within 21 days of the date of the making of these Orders, the husband and wife do all acts and things to list the Country L property for sale at CAD1,860,000 and sell the Country L property for the best attainable price. Upon settlement of the sale, the husband and wife do all acts and things and sign all documents necessary to cause the proceeds of the sale to be applied in the following manner and priority:
37.1.the outstanding mortgage encumbering the property;
37.2.the sale costs;
37.3.any other outgoings of the property; and
37.4.the balance of the proceeds be attributed to the Wife, with 50 per cent of the sum being characterised as lump child support payment, pursuant to s116(1) of Child Support Assessment Act.
Simultaneously and within 21 days of the date of the making of these Orders, the husband and wife do all acts and things to relist the COUNTRY I property for sale at GBP 555,000 and sell the COUNTRY I property for the best attainable price. Upon settlement of the sale, the husband and wife do all acts and things and sign all documents necessary to cause the proceeds of the sale to be applied in the following manner and priority:
38.1.the outstanding mortgage encumbering the property;
38.2.the sale costs;
38.3.any other outgoings of the property; and
38.4.the balance of the proceeds be attributed to the wife.
Within 21 days of the date of the making of these Orders the parties do all acts and things and sign all documents necessary to distribute any remaining funds in the joint accounts equally between the parties and thereafter close the accounts.
Except as specifically provided for by any Order comprising this Order to the contrary, as against the Applicant husband the Respondent wife is declared the sole owner of and the Applicant husband has no interest in:-
40.1.The wife’s motor vehicle;
40.2.The wife’s furniture, furnishings and effects;
40.3.The wife’s superannuation;
40.4.The wife’s savings; and
40.5.All other assets of whatsoever nature and kind in the possession, control or ownership of the Respondent wife at the date of the making of these Orders.
Except as specifically provided for by any Order comprising this Order to the contrary, as against the Respondent wife the Applicant husband is declared the sole owner of and the Respondent wife has no interest in:-
41.1.The husband’s motor vehicle;
41.2.The husband’s furniture, furnishings and effects;
41.3.The husband’s savings; and
41.4.All other assets of whatsoever nature and kind in the possession, control or ownership of the Applicant husband at the date of the making of these Orders.
Except as specifically provided for by any Order comprising this Order to the contrary:-
42.1.The husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the husband, including the husband’s credit cards; and
42.2.The wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife, including the wife’s credit cards.
Except as specifically provided for by any Order comprising this Order to the contrary, each of the Applicant husband and the Respondent wife release the other from all debts owing from one to the other.
The Husband pay the Wife, within seven days of the making of these Orders, the sum of $13,030.04.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
SCHEDULE 3
ICL’s Application (Exhibit 18; numbered as it is in the exhibit)
That the children of the marriage, namely -
B born ...2001,
C born ...2006,
D born …2008 and
E born ...2010.
shall live with the mother
That the mother have sole parental responsibility in relation to :
(a)The children's education,
(b)Obtaining passports for the children,
(c)Arranging for the children's or citizenship or residence status and
(d)Medical treatment
Prior to making any such decision, the mother shall email the father and obtain his view and she shall advise the father of the decision she makes.
That the children C, D and E spend time with the father as follows-
A In the event that the father remains in Australia:
During school term –
a.In a four weekly cycle commencing on the first week of each term:-
(i) in week one , from the conclusion of school or pre-school on Friday until the commencement of school on Monday;
(ii) In week two :
(a)with the child C on Wednesday from the conclusion of school until the commencement of school on Thursday;
(iii) In week three from the conclusion of school or pre-school on Friday until the commencement of school on Monday;
(iv) In week four :
(i)With the child D on Wednesday from the conclusion of school until the commencement of school on Thursday;
(ii)With the child E from the conclusion of preschool or school on Thursday until the commencement of school or preschool on Friday.
During school holidays:-
(b)For half of each school holiday period.
b. For two hours on each of the children's birthdays and on the father's birthday by agreement,
c. At such other times as may be agreed.
B
d. The father shall spend time with the child B as follows:
(a)On Sundays in weeks 1 and 3 of para 3 (a) herein from 9 am until 6 pm and on these occasions the mother shall deliver B to the father's home at the commencement of her time and the father shall deliver B to the mother's home at the conclusion and
(b)At such other times as may be agreed.
The court Notes that B shall be at liberty to attend for additional time with other children in the event that she wishes to do so.
B In the event with the father lives overseas.
a.For four weeks over the December/January school holidays period;
b.For a period of two weeks during one of the other Australian school holiday periods by agreement.
c.Whenever the father is in Australia on the basis of 2 weeks notice to the mother.
In the event that the children are spending time with the father on the weekend of Mother's Day, the children shall be returned to the mother at 6pm on the Saturday of that weekend.
In the event that the children C, D and E are in the care of the mother on the weekend of Father's Day, the father shall collect them at 6pm on the Saturday of that weekend and they shall spend time with him until the commencement of school on Monday and the mother shall deliver B to his home at 10 am on the Sunday.
The father shall collect the children at the commencement of his time from their schools or pre-schools or otherwise from the mother's home and the mother shall collect the children from the father's home at the conclusion of his time.
The mother shall sign the appropriate authority at the children's schools to authorise the schools to forward to the father copies of the children's school reports and any other correspondence or item of communication ordinarily provided to parents and the father shall be at liberty to consult with the school in relation to the children.
Each parent shall have the responsibility for the children's day-to-day care and development of those times that the children are in their care.
Each parent shall have reasonable telephone and electronic communication with the children whenever the children are in the care of the other parent.
That each parent be and is hereby restrained from denigrating the other parent or any member of the other parent's family to or within the hearing of the children.
Each parent shall ensure that the children attend their reasonable extracurricular activities whilst they are in their respective care.
Each parent shall contact the other as soon as is practicable in the event of any medical or any other emergency concerning the children.
Each parent will provide to the other details of any medical practitioners who treat the children and these orders shall operate as an authority for that parent to consult with that Medical Practitioner.
That the parties contribute to the costs of the Independent Children's Lawyer herein.
The court notes that the Independent Children's Lawyer shall contact the school counsellor at B's school and request that B be advised of the availability of the Headspace programme offered by the National Youth Mental Health Foundation.
SCHEDULE 4
The applicant father relies on the following:
1.1.His affidavit sworn 15 January 2014;
1.2.His affidavit sworn 6 November 2013;
1.3.His financial statement sworn 22 March 2013;
1.4.Joint Balance Sheet filed 6 May 2013;
1.5.Family Report of Ms Keating dated 28 January 2014;
1.6.Reasons for Judgement of Justice Le Poer Trench on 28 March 2013.
The respondent mother relies on the following:
2.1.Her affidavit sworn 22 January 2014;
2.2.Her affidavit sworn 24 September 2013;
2.3.Her affidavit sworn 5 August 2013;
2.4.Her financial statement sworn 22 January 2014;
2.5.Affidavit of the maternal grandmother, Ms Z sworn 22 January 2014;
2.6.Joint Balance Sheet filed 6 May 2013;
2.7.Screenshot of Child Support Agency showing scheduled payment of $1,949.37 for the month of January 2014;
2.8.Family Report of Ms Keating dated 28 January 2014.
The Independent Children’s Lawyer relies on the following:
3.1.Minute of Orders sought by the father dated 20 May 2013 and filed 3 June 2013;
3.2.Minute of Orders sought by the mother filed 21 January 2014;
3.3.Parenting Questionnaire filed on behalf of the mother on 6 May 2013;
3.4.Parenting Questionnaire filed on behalf of the father on 6 May 2013;
3.5.Affidavit of the mother sworn 22 January 2014;
3.6.Children and Parents Issues Assessment of Family Consultant Ms Keating dated 3 December 2012;
3.7.Court Memorandum of Family Consultant Ms Keating of 20 May 2013;
3.8.Family Report of Family Consultant Ms Keating dated 28 January 2014.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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