SAYER & CABELLO
[2020] FCCA 104
•24 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAYER & CABELLO | [2020] FCCA 104 |
| Catchwords: FAMILY LAW – PROPERTY – The Mother seeks a 70/30% division of the parties’ realisable assets and superannuation entitlements and that the Father be personally responsible for the credit card and personal loans taken out in his sole name during the relationship as well as his outstanding taxation liabilities for the 2014/2015 and 2015/2016 financial years – the Father argues that the credit cards/personal loans and taxation liabilities are joint liabilities of the parties and should be paid prior to the equal division of the parties’ assets. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79. |
| Cases cited: Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 Bevan & Bevan (No 2) (2014) FLC 93-572 |
| Applicant: | MR SAYER |
| Respondent: | MS CABELLO |
| File Number: | MLC 12541 of 2017 |
| Judgment of: | Judge Bender |
| Hearing date: | 19 September 2019 |
| Date of Last Submission: | 20 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Not applicable |
| Counsel for the Independent Children's Lawyer: | Ms Weiner |
| Solicitors for the Independent Children's Lawyer: | Perry Weston Lawyers |
ORDERS
Property matters be adjourned to 17 March 2020 at 9:30am for mention to enable the superannuation splitting order to be made and the property matters finalised.
Parenting
All previous parenting orders with respect to the child [X] born … 2015 (“[X]”) be discharged.
The Mother have sole parental responsibility for [X].
The Mother shall advise the Father in writing of all long term parenting decisions made by her in relation to [X] by email or text message within seven days of making the decision.
[X] live with the Mother.
[X] spend time with the Father each Saturday from 10.00am until 4.00pm, with such time to be supervised by one of the supervisors who have been approved by the Independent Children’s Lawyer pursuant to order (7) herein.
In relation to the selection of the approved supervisors by the Independent Children’s Lawyer as referred to in order (6) herein:
(a)the Father submit to the Independent Children’s Lawyer for approval the names and contact details of proposed supervisors and the Independent Children’s Lawyer can approve up to six supervisors; and
(b)upon approval of the supervisors, the Independent Children’s Lawyer is to inform the parties of the names of the approved supervisors.
Changeover for [X]’s time with the Father take place inside Town A Police Station or such other location as agreed between the parties in writing and the Mother’s brother or sister-in-law is permitted to attend changeover in the Mother’s stead and the supervisor is permitted to attend changeover in the Father’s stead.
The Mother is permitted to travel overseas with [X] for no more than four weeks in any two year period upon complying with the following orders:
(a)the Mother is to give the Father 60 days’ written notice of her intention to travel with [X]; and
(b)the Mother is to provide all travel details to the Father including:
(i)proposed dates of travel;
(ii)a full itinerary; and
(iii)proof of purchase of return airfares.
The Mother shall provide the Father with the names and contact details of all [X]’s treaters and therapists as well as details of all appointments made by her for [X] to attend on his paediatrician or any other specialist medical practitioner or therapist.
The Mother is to authorise [X]’s practitioners/treaters to speak to the Father and the Father be permitted to make any appointments to see such practitioners/treaters independently of the Mother.
Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The parties be permitted to attend all kindergarten/school events relating to [X] normally attended by parents and receive at their expense all kindergarten/school reports, kindergarten/school photograph order forms and newsletters.
The parties are to keep each other advised of their current contact phone number, residential address and email address.
IT IS REQUESTED that the Independent Children’s Lawyer remain in place for a further twelve months until 24 January 2021.
The Independent Children’s Lawyer has leave to seek an urgent listing of this matter before Judge Bender in the event either party is in breach of the orders of the Court.
Property
By 31 January 2020 the parties do all things necessary to redraw the total amount of the special repayment facility currently available to the parties in the Commonwealth Bank of Australia (“CBA”) home loan account ending 1903, with such sum to be paid to the Father.
By 31 January 2020 the parties do all things necessary to authorise Cathleen Corridon & Associates to pay to the Father all monies held on trust by them on behalf of the parties.
By 24 March 2020 (“the date”):
(a)the Father transfer to the Mother at the Mother’s expense all of his right, title and interest in the property situate at and known as Property B; (“the former matrimonial home”);
(b)the Mother indemnify the Father against all payments and liabilities pursuant to the mortgages, rates, taxes and outgoings of or with respect to the former matrimonial home of whatsoever nature and kind;
(c)the Mother do all things necessary to refinance the mortgages on the former matrimonial home so as to discharge the Father’s liability therein;
(d)the Mother transfer to the Father at the Father’s expense all of her right, title and interest in the property situate at and known as Property C (“Property C”);
(e)the Father indemnify the Mother against all payments and liabilities pursuant to the mortgages, rates, taxes and outgoings of or with respect to Property C of whatsoever nature and kind; and
(f)the Father do all things necessary to refinance the mortgage on Property C so as to discharge the Mother’s liability therein.
In the event the Mother fails to refinance the mortgages on the former matrimonial home by the date, the former matrimonial home be placed on the market for sale and sold (“the sale of the former matrimonial home”) and the proceeds of sale be distributed as follows:
(a)firstly, to the payment of all costs, commission and expenses of the sale of the former matrimonial home;
(b)secondly, to discharge the mortgages on the former matrimonial home; and
(c)thirdly, the balance to the Mother.
In the event the Father fails to refinance the mortgages on Property C by the date, Property C be placed on the market for sale and sold (“the sale of Property C”) and the proceeds of sale be distributed as follows:
(a)firstly, to the payment of all costs, commission and expenses of the sale of Property C;
(b)secondly, to discharge the mortgages on Property C; and
(c)thirdly, the balance to the Father.
Pending the refinance of the former matrimonial home or the sale of the former matrimonial home:
(a)the Mother have the sole right to occupy the former matrimonial home and during such right of occupation the Mother pay all instalments pursuant to all the mortgages and all rates and taxes and like apportionable outgoings on the former matrimonial home as they fall due;
(b)the parties hold their respective interests in the former matrimonial home upon trust pursuant to these orders; and
(c)neither party shall encumber or further encumber the former matrimonial home without the consent in writing of the other party.
Pending the refinance of Property C or the sale of Property C:
(a)the Father have the sole right to occupy Property C and during such right of occupation the Father pay all instalments pursuant to the mortgages and all rates and taxes and like apportionable outgoings on Property C as they fall due;
(b)the parties hold their respective interests in Property C upon trust pursuant to these orders; and
(c)neither party shall encumber or further encumber Property C without the consent in writing of the other party.
The Father be responsible for the payment of and indemnify the Mother in relation to the following debts:
(a)ANZ credit card account ending ..62;
(b)Westpac Platinum Visa card account ending ..13;
(c)National Australia Bank Premium credit card account ending ..65;
(d)D Pty Ltd personal loan account ending …04;
(e)CBA credit card account ending ..40;
(f)CBA personal loan account ending …81;
(g)Australian Taxation Office (“ATO”) liability for the financial year 2014/2015;
(h)ATO liability for the financial year 2015/2016; and
(i)any other liabilities in his sole name.
On or before 24 March 2020, the Father transfer to the Mother at the Mother’s expense all of his right, title and interest in Vehicle E (registration: …) if he has not already done so.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)save for the parties superannuation entitlements, each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Sayer & Cabello is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12541 of 2017
| MR SAYER |
Applicant
And
| MS CABELLO |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the Court relates to both parenting and property matters following the breakdown of the parties’ 10 year relationship.
Both parties were born in Country F, have English as their second language and are self-represented. This made the matter more difficult, particularly the property aspect of the case as neither party filed affidavit material or gave vive voce evidence that enabled a clear understanding of the parties’ financial history and current financial circumstances.
The parties’ four year old son [X] born … 2015 (“[X]”) is a child with special needs. He has been diagnosed with Autism Spectrum Disorder (“ASD”), global developmental delay, sensory processing issues and severe language disorder. [X] is currently non-verbal.
Pursuant to the interim orders made 10 May 2019 and 14 August 2019, [X] currently lives with the Mother and spends supervised time with the Father each Saturday between 10:00am and 4:00pm.
In relation to parenting matters, the Father is seeking orders the parties have equal shared parental responsibility for [X], that [X] live with the Mother and spend time with him in week one from Friday morning until Sunday morning and in week two from Wednesday morning until Friday morning. The Father is also seeking holiday time and orders that will allow him to take [X] to Country F. The Father seeks changeover occur in such a way that he does not come into contact with the Mother or her family members.
The Mother is seeking orders she have sole parental responsibility for [X], that [X] live with her and that [X] spends no time with the Father. If the Court orders any time between [X] and the Father, the Mother seeks that it be supervised.
The Independent Children’s Lawyer is proposing the Court make orders for the Mother to have sole parental responsibility for [X], that [X] live with the Mother and spend supervised time with the Father each Saturday from 10:00am until 4:00pm.
In relation to financial matters, the Father seeks orders be made for the parties’ property to be divided equally after payment of the parties’ credit cards, personal loans and Australian Taxation Office (“ATO”) debts which total $79,233.67.
When determining the parties’ assets for division the Father also seeks that the loans to the Mother’s family totalling $50,000 and the Wife’s jewellery which he values at $25,000 be included.
The Father did not indicate to the Court whether the equal division of the parties’ assets included their superannuation. The Father’s superannuation as at 20 September 2019 is $ 118,692.91 and the Mother’s is $38,482.54 as at 19 September 2019.
The Mother seeks orders that she retain the former matrimonial home at Property B (“the former matrimonial home”) and assume responsibility for the mortgage/s on that property. The Mother proposes the Father retain the property at Property C (“Property C”) and assume responsibility for the mortgage on that property. The Mother seeks orders the Father be responsible for all credit cards, personal loans and any ATO liabilities. The Mother seeks that all monies held on the parties’ behalf be divided 70/30 in her favour.
The Mother adamantly denies any knowledge of loans to members of her family. In her trial affidavit she states that if such loans exist they are matters between the Father and those family members and the Father is at liberty to pursue the repayment of those loans himself and retain the benefit of any money he recovers.
The Mother denies having jewellery with a value of $25,000. It is her evidence that save for a ring the Father purchased for her, any jewellery she owns was given to her by her father and it is in the possession of the Father and his family.
The Mother is seeking a superannuation splitting order on a 70/30 basis in her favour.
Background
Parenting
The Father was born in Country F on … 1983 and is aged 36 years. He has resided in Australia since 2004 and is an Australian citizen. He works in hospitality and at the time of the hearing was only working two days per week until “custody matters were resolved”. It is his evidence he has been offered full time employment by his current employer.
The Father has remarried and his wife is due to give birth on … 2020. The Father’s new wife is from Country F and living in Country F. She is currently awaiting a visa to enable her to move from Country F to Australia.
The Father lives with friends and their three year old child in their five bedroom home. It is his evidence he, and his wife and child upon their arrival in Australia, will continue to live with his friends into the future.
The Mother was born in Country F on … 1984 and is 35 years of age. The Mother moved to Australia in January 2008, some 12 months after the parties’ marriage in Country F. The Mother is employed part-time as a supervisor at Company G. She works Monday and Tuesday from 11:00am until 4:00pm (every second Monday 7:30am until 3:00pm) and Wednesday, Thursday and Friday from 2:00pm until 6:00pm. The Mother has not repartnered. The Mother lives with her brother and sister-in-law in the former matrimonial home.
The parties married in Country F on … 2007. The Father returned to Australia in March 2007 and, as noted, the Mother joined him in Australia in January 2008.
Both parties were in paid employment until shortly before [X]’s birth when the Mother took 9-11 months’ maternity leave before returning to full-time employment.
The parties separated on 1 January 2017. It is the Mother’s evidence she was increasingly subjected to verbal and emotional abuse by the Father and the paternal grandparents who lived with the parties from July 2016. The Mother also alleges an incident in late 2016 when the Father locked her in the garage and left with [X] after he had threatened to kill himself and [X]. Subsequent investigations by the Department of Health and Human Services (“DHHS”) found these allegations to have been greatly exaggerated by the Mother.
The Father denies all allegations of abuse of the Mother save for calling her a “dumbass” once whilst they were arguing.
After separation on 1 January 2017 the Mother and [X] travelled to Country F to spend time with the Mother’s family. The Mother only texted the Father from the airport to advise him she was travelling to Country F with [X] as they were leaving Australia.
Upon the Mother’s return from Country F in February 2017 the parties lived separately under the one roof. Both parties allege that in March 2017 they were sexually assaulted by the other.
After an incident on 8 April 2017 the Mother sought assistance from the police. The Mother obtained an interim intervention order and the parties physically separated. On 13 April 2017, DHHS issued a Protection Application by Emergency Care due to their concern there was a risk to [X] because of his exposure to the Father’s family violence. By way of an interim accommodation order, [X] was placed in the Mother’s care and orders were made for the Father to have supervised contact with [X].
On 30 June 2017, the Children’s Court of Victoria ordered [X]’s time with the Father to progress from supervised time to monitored time and then to unsupervised time. [X]’s time with the Father gradually increased to unsupervised overnight time and by the time the Protection Application was struck out on 3 October 2017, [X] was living in a shared care arrangement which continued after DHHS ceased their involvement with the family.
On 1 December 2017 the Father filed an Initiating Application seeking parenting orders. On 18 January 2018 the Father filed an Amended Initiating Application seeking both parenting and property orders. The Mother’s Response was filed 31 January 2018.
On 6 February 2018 interim orders were made for [X] to live with the Father in week one from 3:00pm Wednesday until 7:30am Friday or 7:30am Saturday if the Mother was working Friday night, and in week two from 3:00pm Wednesday until 4:00pm Sunday and otherwise he live with the Mother.
The 6 February 2018 interim orders also provided for [X] to travel interstate with the Father for 10 days between 3 April 2018 and 13 April 2018, for the Father to enrol in and complete a Men’s Behavioural Change Course of not less than 12 weeks’ duration and for the parties to comply with all treatments recommended by [X]’s treating medical practitioners “including any special needs related to [X]’s autism diagnosis”.
On 25 July 2018 Counsellor Mr H released a family report. Having noted the parties’ conflicted and untrusting relationship, their respective proposals and observing the current arrangements for [X]’s care were in part dictated by the parties’ work commitments rather than necessarily being what would be best for [X], Mr H sets out the following in paragraph [84]:
“84. Ms Cabello suggested that Mr Sayer was sceptical about the ASD diagnosis and thought she was fabricating [X]’s condition so as to improve her chances of getting more time with the child. Perhaps he has made comments reflecting such a view. However, there is some likelihood that Mr Sayer is finding it difficult and distressing to accept that [X] might be a child with special needs. For her part, Ms Cabello seems to have come to terms with the child having such a condition and has moved beyond this to help-seeking behaviour for the child. It may be the case of Mr Sayer requires more information and more education as to the implications of such a condition. Hi is advised to approach some of the ASD support groups, like AMAZE, so as to be provided with this information. He may also benefit from some individual counselling.”
Mr H was of the view the current living arrangements for [X] should not be changed. He made the following recommendations at paragraphs [90]-[100]:
“90. orders be made for [X]’s time with both parents to remain substantially unchanged;
91. consideration be given to the Friday morning and Sunday evening changeover times being varied as suggested above;
92. consideration be given to [X]’s time with both parents being consolidated into two time blocks in a fortnightly cycle;
93. consideration be given to Mr Sayer's time with the child being re-structured as suggested above, on the proviso that Mr Sayer will be directly available to care for [X];
94. orders be made for the usual personal and religious festivities to be shared (specific times and dates should be included);
95. no orders be made for how the mid-term and summer school holidays are to be structured;
96. the orders made requiring Mr Sayer to complete a behaviour change program be reiterated;
97. any orders made for Mr Sayer and Ms Cabello to engage in relationship counselling be reiterated;
98. consideration be given to Mr Sayer.'s alcohol consumption being limited whilst the child is in his care;
99. consideration be given to orders requiring Mr Sayer to approach an ASD support groups such as AMAZE;
100. orders be made for Mr Sayer and Ms Cabello to participate in the Parenting Orders Program (POP).”
On 12 October 2018 the Father overheld [X]. The Mother filed an urgent Application in a Case seeking [X]’s return on that day. On 19 October 2018 when the Mother’s application came before the Court, the Father advised the Court he had taken [X] on holiday interstate. He advised the Court he was of the belief he could take [X] interstate on holiday if he told the Mother that he was doing so. He conceded that when he told the Mother of his proposed trip she had not agreed to his proposal. Interim orders were therefore made restraining each party from taking [X] interstate without an order of the Court or the written consent of the other party and providing for [X] to have make-up time with the Mother. The Father was ordered to complete a Men’s Behavioural Change Program and to attend the Amaze organisation to obtain information and support in relation to autism. The matter was otherwise adjourned to an interim defended hearing on 13 December 2018.
The Mother filed an affidavit on 9 December 2019 in which she alleged the Father did not accept [X] is a child with special needs and he therefore failed to ensure [X] attended speech therapy/occupational therapy or followed any of [X]’s treater’s recommendations as to [X]’s routine when [X] was in his care.
On 13 December 2018 interim orders were made for [X] to live with the Mother and spend time with the Father from 3:30pm Wednesday until 5:00pm Friday in week one and from 9:00am Wednesday until 7:30am Friday in week two. The orders provided that in week one the Mother was to facilitate [X]’s attendance at Windermere (where [X] received occupational therapy) on Wednesday and the Father was to take [X] to speech therapy on Friday and in week two the Father was to take [X] to Windermere on Wednesday and the Mother was to take him to speech therapy on Friday.
On 12 April 2019 the Father again overheld [X]. The Mother filed an Application in a Case seeking a Recovery Order. On 1 May 2019 Judge Harland made a chambers order requiring the Father to produce [X] to the childcare facility of the Commonwealth Law Courts by no later than 4:00pm that afternoon for the purposes of a section 11F assessment and short form written memorandum.
Family Consultant I’s written memorandum reads as follows:
“THE CHILD
·[X] (3 years) arrived with his father, Mr Sayer. He presented as non-verbal, gesturing and making noises to make his needs known.
·On arrival [X] separated from his father with ease, and immediately showed excitement and a strong interest in the playroom activities on offer. [X] remained disengaged from his father and was singularly focused on the slide equipment. [X] was immediately incontinent on the slide and his father initially stated he would change him before advising that he had no change of clothes or nappies for him. Mr Sayer reported that the paternal grandparents had the clothing and that he would return shortly.
·When he returned the bag he carried held only food items and no change of clothing or underwear and he advised that the grandparents had packed the bag. He advised that [X] had been indicating a need to go to the toilet but that he had been distracted and had not taken him.
·While in the playroom [X] presented with significant behavioural challenges, he was highly active and repeatedly urinating and defecating in the playroom, seemingly unaware of his surroundings and unconcerned about his physical state. [X] also showed no signs of emotional distress.
·On reunification with his mother, Ms Cabello, she called to [X] and he instantly acknowledged her, smiling and running towards her, with his arms outstretched. He cupped her face gently with his hands and she kissed him repeatedly before he gestured to be carried by her, which Ms Cabello did. [X] left the registry with his mother carried in her arms, seemingly with no indication of distress or resistance.”
On 1 May 2019 Judge Harland adjourned the matter to an interim defended hearing on 10 May 2019 and made interim orders for [X] to live with the Mother and for his time with the Father to be suspended until the adjourned date.
On 10 May 2019 interim orders were made for [X] to live with the Mother and spend time with the Father each Saturday from 10:00am until 4:00pm. The orders provided for changeover in the Town A Police Station and for the Mother’s brother or sister-in-law to be able attend changeover in the Mother’s stead. The orders also required the Father to follow the directions of [X]’s occupational therapist and speech therapist as to [X]’s care and routine. The Mother was directed to authorise [X]’s treaters to speak to the Father.
On 22 May 2019 the Mother sent the Father copies of the early intervention plan from [X]’s occupational therapist Ms J and Ms J’s contact details. The Mother also emailed Ms J on 22 May 2019 authorising her to speak to the Father. The Father did not, and has not, spoken to Ms J.
On … 2019 the Father participated in an event at Location K. He posted under the heading “[X]” photos of himself at this event.
On … 2019 under the heading (omitted) the Father posted on Facebook:
“(omitted)”
When giving his evidence the Father explained someone else put up these posts but they used “many of my words”.
On 14 August 2019 the matter was listed before Judge Carter for the release of the family report dated 22 July 2019 prepared by Dr M. Dr M recommended in her report that the Father’s time be supervised and limited to weekends. On 14 August 2019 an interim consent order was made by Judge Carter that all time spent by [X] with the Father pursuant to the orders of 10 May 2019 be supervised by an adult supervisor approved by the Independent Children’s Lawyer.
Property
As set out in paragraph [2] of this judgment, the parties’ evidence in relation to their property applications made it very difficult to understand the parties’ financial history and current financial circumstances. At the Court’s request, both parties provided the Court with source documents which were used in writing this judgment in order to put together as clear a picture as possible of the parties’ finances. The documents provided by the parties are set out in Annexure A to this judgment.
It is the Mother’s evidence the Father had total control of their finances during their marriage and that she was not consulted by him in relation to the decisions made by him in respect to the purchase and sale of properties, any personal loans or credit cards taken out by him or any purported share transactions. It is her further evidence that the Father would become very angry if she questioned him about their financial affairs.
In the Father’s affidavit sworn 16 January 2018 filed in support of his Amended Initiating Application filed 18 January 2018 the Father deposes to the parties’ financial history in paragraphs [3]-[23] as follows:
·neither party had assets of significance at the commencement of the relationship;
·the Father worked two-three full time jobs and the Mother worked part-time or full-time save for a period of nine months’ maternity leave when [X] was born;
·in October 2010 the parties purchased Property N for $220,000. They paid a $52,000 deposit from joint savings and the balance was funded by a National Australia Bank mortgage. This property sold in 2016 with a “profit” of $50,000;
·the former matrimonial home was purchased in September 2011 for $360,000. The parties contributed approximately $96,000 from joint savings and the balance was funded by a mortgage from the Commonwealth Bank of Australia (“CBA”);
·in November 2016 the parties purchased Property C for $275,0000. This is a vacant block of land. The parties contributed approximately $55,000 from joint savings and the balance was funded by a O Bank mortgage;
·in 2015, after selling Property N the parties purchased Property P for $400,000. The proceeds of sale of Property N was used to pay the deposit and the balance was funded by an ANZ mortgage of $320,000. Property P sold in November 2016 and the net proceeds of sale of $206,000 was placed into a trust account;
·during the relationship the parties paid their incomes directly into the mortgage on the former matrimonial home and they would redraw against the mortgage to service the mortgages on all their properties and for other expenses;
·during the relationship, the parties opened “a number of credit cards” in the Father’s name which the parties would use for every day expenses;
·both parties have superannuation, the Father’s is with Z Superannuation valued at $101,458.62 at the time of his swearing of his affidavit.
·during the relationship the parties acquired gold and diamond jewellery worth $25,000 as “an investment” which the Mother now has in her possession;
·the parties lent the Mother’s sister $10,000 in 2010 and her great uncle $40,000 in 2014. These funds were used by each of them to purchase property in Country F. There is an agreement if either sell their respective properties, the parties will be repaid; and
·in 2014 the parties lent the Father’s sister $10,000. She repaid this amount after separation and the Father used it to service the credit card debts and meet his personal expenses.
In the Father’s trial affidavit sworn and filed 16 September 2019 he deposes at paragraph [5] that during the relationship “we used a number of credit cards in 2014-2015 to purchase certain items”. The Father then lists those accounts and the amount owing as at or around the date of separation. Annexed to his affidavit are the statements relevant to each debt the Father argues are the parties’ joint liabilities. They are as follows:
| Debt | Statement date | Amount owing |
| ANZ credit card account ending ..62 | 31-01-2017 | $13,782.79 |
| Westpac Platinum Visa card account ending ...13 | 16-01-2017 | $28,387.19 |
| NAB Premium credit card account ending ..65 | 11-04-2017 | $1,599.64 |
| D Pty Ltd personal loan account ending …04* | 20-06-2019 | $5,117.20 |
| CBA credit card account ending ..40 | 7-04-2017 | $2,838.28 |
| CBA Fixed Rate personal loan account ending …81 | 30-06-2017 | $24,458.13 |
| ATO tax 2014/2015 | 25-01-2016 | $2,361.15 |
| ATO tax 2015/2016 | 5-10-2016 | $689.30 |
| Total | $79,233.67 | |
| *Annexed to the Father’s affidavit was the original loan document signed by the Father on 20 September 2012 for a loan he took with Q Finance for $15,259.64. Whether Q Finance is now D Pty Ltd is not clear. | ||
The Mother responded to the Father’s affidavit of 16 January 2018 in her affidavit sworn and filed 31 January 2018. In paragraph [16] the Mother deposes that she had no knowledge of multiple credit cards being opened by the Father and that she only used one CBA debit card which was linked to their joint account.
In relation to jewellery, the Mother deposes in paragraph [32] of her affidavit sworn 31 January 2018 that the only jewellery purchased by the Father was a $900 ring and that most of her jewellery was gifted to her by her father. She further deposes that much of the jewellery purchased for her by her father is in the possession of the Father and his family.
In relation to the alleged loans to her sister and great uncle the Mother deposes at paragraph [33] of her affidavit sworn 31 January 2018:
“I cannot comment in respect of paragraphs 20 and 21. Mr Sayer never provided such information to me.”
At the final hearing the Father was cross-examined by the Mother about his management of the parties’ finances. It is his evidence he “lost” $45,000 in shares in 2013/2014 and a further $25,000 in 2015/2016. The Father provided no documents that show his share trading. Where the monies to purchase these shares was obtained was not explained by the Father.
The Father gave evidence that in 2014 he split the mortgage on the former matrimonial home into two mortgages with the CBA, one for $100,000 and the balance of $158,662.91 remaining in the then existing mortgage.
The Father explained he split the mortgage so that $100,000 was at a fixed interest rate and the balance was at a variable rate.
At the Court’s request the Father produced documents to support his evidence as to the parties’ financial dealings during the relationship. Amongst other documents, he gave the Court a document prepared by him headed “CBA home lone (sic) …03” together with the bank statements relating to the CBA home loan ending ..03 for the period 1 January 2014 until 31 December 2016.
The Father subsequently provided the Court with copies of bank statements relating to the CBA loan account ending ..03 for the period 5 September 2017 to 31 December 2019.
In the Mother’s trial affidavit sworn 4 September 2019 she annexes the correspondence and settlement statements from the parties’ legal representatives in relation to the sale of Property N and the purchases of Property P and Property C.
The Mother also produced to the Court at its request the current mortgage statements relating to the former matrimonial home and Property C.
Perusal of all the documents provided to the Court by the parties disclose that the history of the parties’ financial affairs that was set out in the Father’s affidavit sworn 16 January 2018 and as summarised in paragraph [47] of this judgment is not accurate. The source documents disclose:
·on 9 February 2016 the Father took advantage of an offer from Westpac for a 12 month nil percentage Platinum Visa card. He drew down $35,900 on that card. $30,000 was deposited into the CBA home loan account ending ..03 on 9 February 2016. The Father’s vive voce evidence was these monies were needed to pay the deposit for the parties’ property purchases;
·in March 2016 the parties purchased Property P for $400,000. They borrowed $320,000 from the ANZ Bank for this purchase. They were required to pay a deposit of $40,000;
·on 10 March 2016 $39,500 was withdrawn from the CBA home loan account ending ..03. When giving his vive voce evidence, the Father was asked what this withdrawal was for. His response was that he would have to ask the bank;
·on … 2016 the purchase of Property P settled. The parties were required to provide $59,092.54 of their own funds to complete the purchase;
·on 5 May 2016 $65,000 was withdrawn from the CBA home loan account ending ..03. When giving his vive voce evidence the Father was asked what this withdrawal was for. His response was that he would have to ask the bank;
·on … 2016 the parties settled the sale of Property N and received $62,865.70 from the proceeds of sale after discharge of the mortgage on that property. This amount was placed in the parties’ joint CBA account ending ..32;
·in or around September 2016 the parties purchased Property C for $275,000. They borrowed $220,000 from O Bank and R Bank for this purchase. The parties were required to pay a deposit of $27,500.
·on 15 September 2016 $26,500 was withdrawn from the CBA home loan account ending ..03. When giving his vive voce evidence the Father was asked what this withdrawal was for. His response was that he would have to ask the bank;
·settlement of Property C took place on … 2016. The parties were required to provide $42,783.57 of their own funds to complete settlement;
·on 26 October 2016 $43,787.57 was withdrawn from the CBA home loan account ending ..03. When giving his vive voce evidence the Father was asked what this withdrawal was for and his response was that he would have to ask the bank;
·there are currently three mortgages to the CBA on the former matrimonial home; the first is the fixed term loan (account number ending ..05) which has a balance as at 30 June 2019 of $89,462.18, the second is the home loan (account number ending ..03) with a balance as at 31 July 2019 of $136,245.38 and the third is an investment home loan account (account number ending ..07) with a balance as at 30 June 2019 of $45,290.07;
·neither party offered any explanation as to when or why the third mortgage was taken out;
·the parties’ salaries were not paid into the former matrimonial home loan mortgage account ending 1903 but rather into a joint CBA Complete Access Account ending ..32. The parties’ day-to-day living expenses were met from this account as were a myriad of various loan repayments, rates and other expenses.
Other than the Westpac Platinum Visa, the Father offers no explanation as to when he took out two personal loans and three further credit cards or what these monies were used for. Whether he used these monies for his unsuccessful share trading is unknown.
Orders [19] to [20] of the interim consent orders made on 6 February 2018 provide as follows:
“19. The sum of $100,000 from the proceeds of sale of the property at Property P, currently held in the Trust Account of S Conveyancers:
(a) be distributed as $50,000.00 payable into the Husband’s solicitor’s Trust Account and $50,000.00 payable into the Wife’s solicitor’s Trust Account as a partial property distribution, and to be applied to invoices for legal fees of these proceedings already outstanding and future;
(b) to pay any and all arrears on either Property B or Property C known more fully as Property B and Property C;
(c) $50,000 be paid on to Property B mortgage;
(d) the balance be transferred to the Trust Account of the Husband’s solicitors to be held in an interest bearing account in the parties’ joint names until distribution by agreement or Court order.
20. Pending distribution by agreement or Court order:
(a) the parties pay equally all mortgage repayments on both Property B and Property C; and
(b) the Husband pay all repayments on all credit cards and personal loans in his sole or joint name.”
The amount of $18,472.22 was paid to meet the arrears on the mortgages on the former matrimonial home and Property C pursuant to order (19)(b).
Order (7) of the orders made on 10 May 2019 provides that $10,000 be withdrawn from the parties’ joint CBA account (current balance $42,173.01) to discharge the arrears on the mortgage on Property C and any costs incurred by the bank in legal fees to recover the arrears.
Neither party makes reference to them having a current joint CBA account in any of their affidavit material or in their vive voce evidence.
Both parties were sent an email from Chambers asking whether they hold a joint CBA account and if so, what its current balance is.
The Mother advised the Court the only joint account of the parties is the NAB account held in trust by the Father’s former solicitors with the balance of the proceeds of sale of Property P.
The Father advised the Court that there is currently $25,125.37 in “additional payments” for the CBA home loan account ending in 1903 which can be redrawn by the parties. If this amount were withdrawn, it would increase the current loan balance by a commensurate amount. This is confirmed by a statement relating to this loan for the period of 1 August 2019 – 31 December 2019, which has been provided to the Court.
Pursuant to orders (19) and (20) of the orders made 6 December 2018, the sum of $50,000 was to be paid on Property B mortgage from the proceeds of sale of Property P and otherwise both parties were to equally pay all mortgage payments on both Property B and Property C.
The CBA statements from the home loan account ending ..03 for the periods 5 September 2017 to 30 June 2019 discloses the following:
·regular loan payments of $516.00 were made each month from February to June 2018. Which of the parties made these payments is unknown. It is noted that these payments were less than the interest being charged by CBA;
·on 28 March 2018, a lump sum of $58,720.00 was paid off this loan;
·of this amount, on 30 June 2018 CBA deemed $50,990.82 to be a special repayment that the parties could redraw;
·since 1 July 2018, no loan payments have been made and the closing balance has been increasing by the amount of the unpaid payments. Further, the amount of the special repayment that the parties can redraw has been reducing;
·on 15 May 2019, $10,000.00 was withdrawn from this account which accords with the orders of 10 May 2019. This clarifies that the joint account referred to in order (7) of the orders dated 10 May 2019 is actually the redraw facility on the CBA loan account ending 1903.
The Father’s former lawyers advised the Court they currently hold $18,860.70 in trust for the parties being the balance of the proceeds of sale of Property P. Given it is the parties’ evidence the net proceeds of sale from Property P was $206,000 and that $168,472.22 was the amount paid pursuant to the orders of 6 February 2018, there is possibly $20,000 less in trust than there should be. Neither party offered any explanation for this possible “short fall”.
The Evidence
The Father relies on his affidavits sworn 30 November 2017, 16 January 2018 and 16 September 2019. The Father also gave vive voce evidence at the final hearing.
The Mother relies on her affidavits sworn 31 January 2018 and 4 September 2019. The Mother also gave vive voce evidence at the final hearing.
Parenting
The Father
As noted previously in this Judgment, the Father is seeking orders the parties have equal shared parental responsibility for [X], that [X] live with the Mother and spend time with him in week one from Friday morning until Sunday Morning and in week two from Wednesday morning until Friday morning. The Father also seeks holiday time and the capacity to take [X] to Country F to visit the paternal family. The Father is also seeking that changeover occur in a manner that will avoid him having to come into contact with the Mother or her family.
It is the Father’s evidence that he has a loving relationship with [X] who is very emotionally attached to him.
The Father states that he believes that as a Father he has “rights” and that he should be allowed to spend significant time with his son.
The Father was questioned at length about whether he accepts [X]’s diagnosis of autism, developmental delay, sensory perception issues and severe language disorder. It is the Father’s evidence that he has a different view to the experts and whilst he accepts that [X] “is behind”, he does not want to call him autistic as that is too strong a word. He is of the view that a “nicer” word than that can be used to describe [X].
When further questioned about this, the Father expressed the view that calling [X] autistic is disrespectful of him, that he does not want to give [X] the label of autism and that for [X] this is an awful thing.
The Father was specifically asked whether he was embarrassed that [X] has been diagnosed with autism. He responded “it makes me sometimes - yes”.
The Father was asked about his participation in the event at Location K in 2019.
It is the Father’s evidence that he did not personally write the posts of … 2019 and … 2019. It is his evidence that people associated with the event placed them on Facebook and that the words used were in part his words and also words of the other people who put up the posts.
It is the Father’s evidence that he believes he has been treated unfairly by the Court as the Court is preventing him from having a relationship with his son.
In relation to the Father’s compliance with orders that he undertake a men’s behavioural change program and a course with Amaze, the Father indicated that he has not undertaken the courses as ordered.
It is the Father’s evidence that he has attended at least two different men’s behavioural change programs but as the classes told him that he had to admit the things he had done were wrong “there is nothing I have said to Ms Cabello other than on one occasion only, I cannot accept the things they ask of me”.
In relation to his failure to undertake a course with Amaze, it is the Father’s evidence that he didn’t know he had to do that and that he would be prepared to do so now.
When questioned about the two occasions he overheld [X], it is the Father’s evidence that on the first occasion he was of the understanding he was able to take [X] on holidays as long as he gave the Mother sufficient notice.
In relation to the overholding in April 2019, it is the Father’s evidence that he made a mistake in overholding [X] on that occasion. His explanation for doing so was because [X] did not want to return to his Mother.
In the report provided to the Court from [X]’s speech pathologist, Ms T, Ms T indicates that whilst [X] has missed sessions while in the care of both parents, [X] attended 14 of 19 scheduled appointments with the Mother and only four of 10 appointments with the Father.
When questioned about his failure to ensure [X] attended therapy when in his care, the Father’s response was that [X] missed sessions when with both he and the Mother.
The Father was asked about an occasion in August 2019 when he refused to return [X] to the maternal uncle at changeover despite the court orders that the maternal uncle was permitted to attend changeover in lieu of the Mother. The Father’s response was that he does not trust the uncle and was therefore not prepared to return [X] to him.
The Mother
As previously set out in this judgment, the Mother is seeking orders for sole parental responsibility for [X], that [X] live with her and spend no time with the Father, even on a supervised basis.
The Mother was asked by the Father why [X] should not spend time with him. The Mother explained that it was because he will not accept [X]’s diagnosis, he will not follow the routine set by the specialists, he does not help financially, he does not attend appointments with [X], he does not follow the Court orders and he will not listen to anyone.
Whilst acknowledging that [X] has a right to have a relationship with the Father, the Mother expresses concerns that if the Father does not return [X] to her she does not want to “have to keep going back and forth to the Court”. The Mother explained her major concern in relation to [X] spending time with the Father is the Father will not put in place the consistent routine for [X] as directed by his treating specialists. It is the Mother’s evidence that when the parties had a shared care arrangement [X] did not make any improvement but that now he is in her primary care he is improving. It is the Mother’s evidence that the parties cannot let [X] do whatever he wants, which is what the Father does. It is her evidence [X]’s treaters have explained the parties must set boundaries for [X] if there is to be improvements in his behaviour. These boundaries and routines must be put in place now because if they are not, it may be difficult for [X] to change his problematic behaviours as he grows older.
It is the Mother’s evidence that [X] has recently been approved for the National Disability Insurance Scheme (“NDIS”) funding of $20,000 per year and there is a plan manager in place to oversee the allocation of this funding.
The Mother describes [X]’s current routine from Monday to Friday as one day a week at Special School U and the other four days a week at child care/kindergarten. It is her evidence that the kindergarten has obtained funding for an additional worker to assist with [X] and that the combination of these interventions has seen an improvement in [X]’s behaviours. [X] has speech therapy on Fridays as well as occupational therapy on alternate Wednesdays.
The Mother was specifically asked by Counsel for the Independent Children’s Lawyer about evidence that she had previously given in relation to the difficulties with [X]’s behaviour when she takes him shopping. Her response to that question is most illuminating and is as follows:
The Mother: “First of all, then my – because when I was taking [X] to the shopping centre and usually in a pram. I put in a pram or the shopping trolley, but he try to jump out from the trolley, and that it was too hard, and then I told my occupation therapy because she helping me out. And then she said – suggest to me, “Ms Cabello, we have across the park – across the road,” and they say you start with the – not around many people, the quiet street, take hold – holding his hand and walk to the park. I started with that, and then after that, I was in a pram I was taking him, and now – then they say, “You go for shopping for maybe one thing or two things, not, like, in a bulk, and you buy, and then you hold the hand.” I was holding [X] hand, and slowly, slowly building his behaviour to – changing. Need a lot more practice. This did not happen in one day. Before he was doing poo. He doesn’t want to sit on the poo – on the toilet seat. He always wants to go on the floor. And I – then I put him on the toilet seat. He was screaming, kicking me off. Then my occupation, she said – occupation, they teach you as well how to deal with this behaviour, rather than they teach kids, because we need to learn how to deal with that. So she said, “Don’t give up. He’s very anxiety. For you, this and that.” Keep – saying, “Keep practising. Keep practising.” I have on the wall all the signs say toilet, pull up pant, pull down, hand wash ..... we follow same routine. And under my toilet door it say – toilet sign, “[X], toilet, toilet.” Yes.”
Counsel: “And how is he going with it? … Going well?”
The Mother: “Yes. But need a lot of energy and time.”
Counsel: “Yes.”
The Mother: “…to teaching him. But he doing step by step, not, like, improving. Yes. And in the childcare centre, because they have extra person as well, they’re following the same routine as well, and he – he loves there, too. Yes. Yes. Now, he start – before he just kind of ignoring all the children, not seeing at all, just always play himself in the corner under the bench. Now, he start looking – not involving activity, but he start with looking, and now giving smiling the face when he show – see around the kids. Yes. I’m very happy. Yes.”
The Mother raises concerns about [X] being at risk of physical harm when with the Father. The Mother gave vive voce evidence that when [X] was recently in the Father’s care he stood on glass and as a result there was glass in his foot which required medical attention upon his return to her care. When this was fully explored with the Mother it became apparent there was no glass in [X]’s foot and the Mother was exaggerating this incident to support her claim that [X] was at physical risk in the Father’s care.
The Mother was also found by DHHS to have exaggerated the incident that lead to them bringing a Protection Application in 2017.
Dr M was of the view that the Mother is supportive of [X] having a relationship with the Father and observed that she did not portray the Father in an overly negative light. However, the Mother’s propensity to exaggerate incidents involving the Father must raise concerns about her capacity to put aside her very negative views of the Father and allow [X] to have a relationship with him.
Dr M
Dr M is a forensic psychologist currently working in private practice. At the time of the preparation of the family report she was a family consultant at the Federal Circuit Court. She prepared a family report dated 22 July 2019 and also gave viva voce evidence at the hearing.
When discussing the Father, Dr M noted in paragraph [34] the Father presented as preoccupied with the notion of fairness which he believed could only be achieved through equal shared care. She quoted the Father saying “I want my full right…how is it fair to have a lot less time with one parent?” She then states that the Father acknowledged that this is a “serious problem” for him such that he “won’t accept” outcomes “unless it’s fair”.
In paragraphs [41] and [42] of the family report, Dr M raised the issue of the Father not accepting [X]’s diagnosis of ASD. Dr M reports:
“41. Mr Sayer was not accepting of [X]’s diagnosis of ASD, “I wouldn’t call him [[X]] autistic, he’s behind”. He stated that the paternal grandparents described similarities between [X]’s presentation and Mr Sayer’s own development at that age. For example, according to Mr Sayer, he also did not speak until he was four years old. In addition, Mr Sayer claimed that during the extended period when he retained [X] in his care he saw “big behaviour changes within two weeks” such as “not taking his pants off and not putting everything in his mouth… and not licking walls”. Mr Sayer blamed [X]’s developmental delay on the parental separation, stating “It’s our fault. We separated when he was 18 months old. He was at the age where we’re meant to teach him”.
42. Mr Sayer raised concerns about [X] not making sufficient progress from his perspective through the support provided by the National Disability Insurance Scheme (NDIS). He worried that the comments made about [X]’s progress were inaccurate and reflected behaviours the child had been able to do a year ago, such as [X] putting his pants on by himself. Further, Mr Sayer purported that [X] licking walls and running away whilst eating was due to an iron deficiency. He indicated that [X] was “fine” and these behaviours ceased when he was on an iron supplement.”
In paragraph [43] Dr M notes that the Father acknowledges that there were differences in the parents’ parenting practices. She states:
“For example, he referred to the “biggest argument at the moment” relating to toilet training [X] and whether he ought to be wearing nappies or underwear. Mr Sayer referred to his previous attendance in court with [X], stating that “Accidents happen”. He recalled not having a spare change of clothes with him for [X], raising concern that this had been “Really big against me” in court. Mr Sayer tended to minimise the incident in May 2019 when compared with the descriptions provided in the memorandum of the Family Consultant from that occasion.”
In relation to family violence, Dr M sets out in paragraph [45] that the Father denies all allegations that he was violent to the Mother aside from admitting he called the Mother a “dumbass” on one occasion.
Dr M notes that the Father claims that the Mother has made a number of false allegations that changed over time and that he did not believe he had acted in a controlling manner towards her.
In relation to the Mother, Dr M notes her to present as “calm and forthcoming with information” and she “did not attempt to portray Mr Sayer in an overly negative light” but instead “(shared) her concerns from a child focused perspective about how best to meet [X]’s needs”.
Dr M noted the Mother provided “in-depth knowledge and detail of [X]’s schedule and the aims of his behavioural management plan. She had with her all of the documentation of daily routines and structures put in place across the board, including at childcare, to ensure that all carers provided a consistent environment and responded accordingly to [X].”
In paragraph [51], Dr M relates the Mother’s concern about the Father not accepting [X]’s autism diagnosis and his not providing consistency in routines across the households. The Mother told Dr M that she had been working with [X]’s occupational therapist on a number of [X]’s behaviours including reducing [X]’s reliance on being carried by adults. The Mother told Dr M that the Father insists on carrying [X] particularly during changeover, which from the Mother’s perspective is adding to the difficulty at changeover in relation to prolonging [X]’s distress.
In paragraphs [53] and [54] Dr M sets out the Mother’s comments in relation to [X]’s relationship with the Father and the difficulties that she experiences as a result of [X] spending time with him. Dr M states as follows:
“53. Ms Cabello did not dispute that [X] is “very happy with his dad [Mr Sayer]” but stated it takes one to two days for [X] to resettle when returned to her care. Ms Cabello stated that her proposal for supervised time for Mr Sayer was not something she considered lightly. However, according to Ms Cabello she has had to seek a recovery order on two occasions in the past year due to Mr Sayer’s actions of not returning [X]. The most recent occurred in April 2019 when Mr Sayer reportedly retained [X] in his care for a period of four weeks with no face to face contact with her during this time. Ms Cabello alleged that during that time, Mr Sayer failed to ensure [X] attended his therapy sessions or kindergarten days.
54. According to Ms Cabello, Mr Sayer is frequently late to changeovers when [X] is in his care or decides not to attend. This reportedly happened as recently as the weekend prior to this Family Report being prepared. Ms Cabello alleges that Mr Sayer refused to return [X] on Saturday and was later spoken to by police before returning [X] on the Sunday. She is concerned that this is a pattern for Mr Sayer and that he has a complete disregard for the law.”
When discussing [X], Dr M notes his presentation is consistent with a child that has autism and that he demonstrates a bond with each parent as well as with his maternal uncle who was present at the assessment with the Mother at Dr M’s request.
In relation to the formal observations of [X] with each of his parents, Dr M notes [X] to be comfortable and content in the Mother’s company and of her impressing with sound knowledge of [X]’s capabilities. She describes the Mother as engaging in play that targeted [X]’s skill building such as stacking blocks, counting and picking up objects.
Dr M reports the Mother to respond to [X] in a calm and enthusiastic manner and to him giggling and smiling during his interaction with the Mother. Dr M describes the Mother as continuously providing positive reinforcement and encouragement to [X], of her clapping her hands to signal for his attention and of her evidencing her capacity to enforce boundaries with [X].
In relation to her observations of [X] with the Father, she observed [X] to hug the Father and smile and to them both playing together and interacting well.
Dr M notes [X] was particularly fond of repeatedly climbing all over the Father which appeared to be a familiar activity for him. She also notes that she observed [X] to often gesture for the Father to pick him up and that the Father was observed to often carry [X] around the room.
Dr M notes the Father’s capacity to intervene and ensure [X]’s safety and to him also recognising the sign that [X] needed to use the toilet and that he took [X] to the toilet with no issues.
At paragraphs [76] and [77], Dr M makes the following comments about the conclusion of her observation of the Father with [X]:
“76. Mr Sayer was notably proud of [X] and of being [X]’s father. He made several comments to the report writer praising [X]. At the conclusion of the observation it became clear that Mr Sayer was having difficulty separating from [X]. He was anticipating that [X] would become distressed. This was despite the report writer explaining to Mr Sayer that Ms Cabello was in the hallway and would immediately attend the room once he left to attend to [X]. Mr Sayer prolonged the farewell and was observed to be teary-eyed upon leaving. He also remarked that he finds it difficult to leave [X].
77. [X] could be heard becoming slightly distressed upon Mr Sayer’s departure which was quickly resolved by Ms Cabello’s presence.”
Under the heading “Evaluation” Dr M notes that both parties share a deep affection for [X] and that he means the world to both of them.
Dr M notes that [X] is a young and vulnerable child with significant impairment particularly in relation to his language development and capacity for social connection. She notes that [X] has been diagnosed with ASD and that the literature is clear that for children with ASD, early intensive intervention is paramount to achieve the best possible outcomes in terms of his level of functioning and independence as he ages. She notes that he requires as much consistency in routine across the households as is practicable and that such level of support requires ongoing commitment from and frequent communication between the parents.
At paragraphs [81] to [83] of the family report, Dr M raises her concerns about the Father’s capacity to parent [X] appropriately because of his inability to accept [X]’s disabilities and notes as follows:
“81. At present, Mr Sayer’s proposal for equal shared care is not considered to be in [X]’s best interest. Not only do the parties lack the necessary capacity to effectively communicate about the child, but Mr Sayer does not accept or acknowledge [X]’s diagnosis or that he is a child with special needs. This places [X] at risk and may undermine any progress made with professional support services. This can have significant flow on effects for [X] for many years to come.
82. The report writer is not suggesting that [X] would not benefit from spending significant and substantial time with Mr Sayer if Mr Sayer was able to recognise and prioritise [X]’s needs. However, the risks to [X]’s development in doing so currently outweigh such benefit. Further, Mr Sayer has evidenced an attitude of complete disregard for the child’s emotional needs and of court orders. He has repeatedly failed to return [X] following spend time despite explicit court orders. This has seemingly occurred in response to Mr Sayer’s own needs, which he purports align with that of [X]. Mr Sayer’s actions on the day of this assessment further support this notion. It also suggests that Mr Sayer believes he is entitled to act in a manner that controls the care arrangements. Such actions do not reflect a child focussed approach to parenting and have included failing to take [X] to scheduled professional appointments.
83 In this respect, Mr Sayer presented as rigid in his thinking and as unwilling to accept any alternative other than equal shared care. He remains fixated on the notion of fairness being tied to the quantity of time rather than the quality of such time. There is a real risk that Mr Sayer will disregard any orders made that do not align with his own views of what the care arrangements ought to be, raising questions about whether [X] is able to spend time with Mr Sayer in an unsupervised capacity. This is the basis for Ms Cabello’s current proposal for any spend time to be supervised in order to minimise the potential disruption for [X].”
In paragraph [84], Dr M notes that there is no question about the Mother’s capacity to fulfil the primary care giving role for [X] and that she has demonstrated her commitment to follow the directions of professionals involved in [X]’s care. Dr M observes the same cannot be said of the Father and as such the Mother presents as the parent best able to meet [X]’s needs.
She observes the Mother to have evidenced an ability to continue to foster the Father and son relationship.
In relation to parental responsibility, Dr M makes the following observations and recommendations in paragraph [85]:
“Whilst the parties appeared to both propose equal shared parental responsibility, this is not supported by the report writer. The parties have not demonstrated a pattern of co-parenting that prioritises [X]’s needs. On the contrary, the disparity in their parenting practices has placed [X] at risk. That Mr Sayer does not accept [X] is a child with special needs indicates that any efforts to openly communicate about the professional interventions and care planning for [X] are unlikely to be successful. Thus, consideration may need to be given to the primary parent shouldering the burden of sole parental responsibility.”
Under the heading “Recommendations” Dr M sets out the following:
“87. That [X] resides primarily in Ms Cabello’s care.
88. That consideration is given to Ms Cabello having sole parental responsibility and ensuring she keeps Mr Sayer informed of any decisions made, as well as provides him updates on current interventions for [X] so he can implement them when [X] is in his care.
89. That Mr Sayer has not demonstrated an understanding of the importance of, and preparedness to commit to, returning [X] as per court orders and following all directions of professionals involved in [X]’s care. As such, it follows that at present the spend time with [X] needs to be supervised and limited to weekends so as to pose the least disruption for [X].
90. That consideration be given to Mr Sayer having regular telephone contact with [X] of limited duration given the child’s age. It would be preferable that such contact is of an audio-visual nature such as via Facetime or Skype.”
When giving her vive voce evidence, Dr M was asked about the Father’s failure to educate himself about autism or any of [X]’s special needs. Dr M indicated that this confirmed the information that she obtained from the Father in interview. She stated:
“I think it’s a shame that some of those things haven’t been done, in terms of finding that information from the AMAZE course or similar. I think it’s to [X]’s detriment, in terms of the support that can be provided. It’s not necessarily just about accepting or not accepting of a diagnosis; it’s also about following through with the support offered by treating clinicians regardless of a diagnosis.”
Dr M was asked whether in the event the Father engaged with support and gained some understanding about autism, would she recommend that the requirement that the Father’s time with [X] be supervised be dispensed with. Dr M responded:
“That is a difficult question… it’s about demonstrating a capacity to put aside his own views, and his own wishes and needs…and to be able to prioritise [X]…So it’s not just about – doing a course is a terrific start, and a first step…but there are a lot of other things intertwined in this process, and – where he has to demonstrate a capacity to put [X]’s needs first…and that includes following the recommendations of treating clinicians; potentially, taking him to some appointments, or attending appointments himself; things like returning him on time, as requested, as per the court orders, and being respectful of those.”
Dr M was asked whether the Father’s remarriage and the arrival of his new wife and his new child will impact on [X], particularly in circumstances where his new wife is unknown to [X], possibly has no English and in all probability little to no experience of children with ASD and the special needs that have been identified in [X]. Dr M agreed that this would be an issue and stated as follows:
“I guess you have got the two factors there. On the one hand, it’s a sibling relationship, and – and the opportunity to have another family members in his life that can play an important positive role … However, we have also got to look at how can we best educate these people so that everyone is well-informed to appropriately care for [X] so that we’re not having the difficulties that have been seen in the past and some of the regressive behaviour that has occurred.”
[X]’s occupational therapist and speech therapist
Orders were made on 10 May 2019 in which the Independent Children’s Lawyer was requested to obtain reports from [X]’s occupational therapist and speech pathologist setting out [X]’s ongoing needs, the parents’ historical compliance with ensuring [X]’s attendance for appointments and interventions and the parents’ capacity to follow all directions for [X]’s care when he is with them and for those reports to be filed and provided to the report writer if possible.
In accordance with those orders the Independent Children’s Lawyer filed affidavits from Ms J, [X]’s occupational therapist and Ms T, [X]’s speech pathologist.
Ms J
Ms J is [X]’s occupational therapist. She prepared a report dated 21 August 2019 which is annexed to her affidavit sworn and filed 10 September 2019. Ms J was not required for cross-examination.
In her report of 21 August 2019, Ms J notes that she has been involved with [X] since 13 February 2019.
In the third paragraph of her report, she states the following:
“It should be noted that [X] has not been seen with his father. Ms Cabello requested an agreement was made to only provide therapy when [X] was in her care. Ms Cabello disclosed information about her marital issues with her husband. She explained to the Occupational Therapist that [X]’s father is not accepting of his son's diagnosis and she felt concerns about his progress being limited due to his father not following through with recommendations and believing that there was nothing wrong with his son. She felt that [X]’s issues with toileting were due his father allowing him to run around the house naked and defecate on the floor. Over the period of involvement with Ms Cabello and [X], Ms Cabello would often comment that [X] would regress in his performance after spending periods of time with his father. She reported that he would be extra clingy to her, have more problems with toileting, not eat well and only want his milk and require very close contact (including co-sleeping) after time spent with his father. She felt that overall, [X] improved with her having more custody and more stable routine. This information cannot be verified.”
Ms J describes [X]’s behaviours in the following terms:
·“[X]’s diagnosis affects his ability to understand, express himself, engage with others, perform age appropriate daily activities and self regulate. [X] requires constant and continuous supervision…He requires significant visual prompts and coactive assistance to participate in daily activities and consistency in regards to his learning for progressing his functional skills such as toilet training, feeding, personal hygiene, self regulation and play skills. requires explicit teaching for every activity and this has been the focus of intervention for [X].”
·“[X] is very impulsive and self-gratifying in regards to his self-regulation”.
·“[X] has poor functional play and engagement with adults and children. [X] has issues with sustained attention and concentration… He enjoys tactile activities such as playing with rice and play dough and will be motivated to sit for these activities…”
·“[X] has difficulty managing his emotions and communicating his needs. He will often bite and pull at his mother in frustration when he does not get what he wants or he is upset. He is often seen to bite and press into mum and pull her arm to direct her to what he wants, redirect his mum's attention away from the therapist during conversations and will drop frequently and request to be picked up.”
·“[X] has very poor self-awareness and safety awareness and is at risk at home and in the community without intensive supervision. He will abscond and open doors to leave the house or the room at child care to get to the playground.”
·“[X] has sensory processing issues, which also interferes with his ability to engage in meaningful activity. [X] has difficulty with restricted interests and play. He requires explicit teaching and therapy to help increase his play-based social skills on a one to one basis and in a group setting.”
Ms J advises there are three main areas of concern for occupational therapy, being [X]’s cooperation and progress with self-care skills such as toileting and dressing, behavioural self-management and eating.
Under the heading “Occupational Therapy input in regards to toileting and dressing”, Ms J indicates that she has provided visual supports and strategies to the Mother to prompt [X] to engage in tasks which include “teaching her about time toileting, use of visual schedules and prompts for toileting, getting dressed and brushing his teeth.”
Under the heading “Occupational Therapy in regards to Behaviour management and self-regulation” Ms J reports that “Due to [X]’s diagnosis he requires very intensive, repetitive and consistent behaviour reinforcement strategies” which include “use of visual supports, use of consistent set up (such as only eating at the table), physically redirecting [X] to help reduce behaviours such as climbing on his mother, biting her and climbing on furniture and benches.”
Ms J indicates that she has been “clear about not picking up [X] every time he requests to be picked up” and “instead, redirecting him and teaching him hand holding, providing a hug and then redirecting him to tasks.” She states that “this is exceptionally important for [X] to learn safety skills in the community and prevent absconding.”
Ms J states:
“[X] requires intensive support and redirection to help him engage in appropriate functional play behaviours. This intensity of support is difficult to achieve at home as his mother works, has to manage the house and meal preparation and would find this difficult to do consistently. Currently [X]’s mother's sister in law lives at home but is not always around to assist and has her own obligations and studies. I did suggest on the NDIS access report that he have funding for core supports to provide a respite worker to do some therapy functional based activities to assist with this task. I have not seen his actual plan to determine if this has been provided.”
Under the heading “Occupational Therapy in regards to Eating” Ms J states:
“With regards to [[X]’s] poor diet, I have not been able to implement any feeding therapy programs yet. This is partially due to competing therapy priorities, but also because [X] has to be able to achieve sitting at a table for longer to engage in food therapy.”
Ms J states she has discussed “simple strategies such as removing junk food from [[X]’s] reach and access and saying no to [his] requests if they are not appropriate such as asking for biscuits and junk food.” She notes the Mother frequently gives in to [X]’s demands as she worries he is not consuming anything.
Ms J states she suggested the Mother take [X] to a general practitioner and dietician “for further intervention on this area to ensure his food intake is adequate” so that she can then “concentrate on feeding therapy and behaviour management strategies for eating.” She notes the Mother told her she has seen a general practitioner, that [X] is now on an iron supplement and the general practitioner had advised that a dietician is not necessary. Ms J notes she advised the Mother that she still supports her taking [X] to a dietician as there may be additional supplements that could be recommended.
Under the heading “General Progress and Proposed Intervention” Ms J notes that at the Mother’s request the occupational therapy sessions have been provided at the childcare centre and that the staff at the centre have been very keen to have occupational therapy input and consultation “to help them provide suitable program and supports to [X].” She notes his main educator to have taken on all strategies suggested from these sessions and that she feels [X] “will be making the most gains in this education setting due to the unbiased approach, consistency and follow through and the fact that he will spend many hours there.”
Ms J however states that she has told both the Mother and the childcare staff that [X] “requires consistency in approach both at childcare and home environments and they need to maintain open communication about these strategies.” Ms J also explained to the Mother that due to [X]’s limited funding, she cannot only visit [X] at childcare as it is equally important that her strategies are reinforced in the home.
Ms J states that “direct therapy with [X] is not the best method of intervention, but rather consultation to all parties involved in his care.” She notes she is “happy to model the strategies, but it is more appropriate to up skill care providers and family to implement these strategies.”
In conclusion, Ms J states that:
“aside from [X]’s significant issues due to his disability, barriers to progressing his functional gains are:
·Current inconsistencies in strategies in different environments
·Ms Cabello's stress and preoccupation with the custody issues and perception that many of [X]’s issues are due to his father's approach. This cannot be verified. I feel that this situation has resulted in limited follow through with recommendations at home potentially as Ms Cabello may not be taking all this information on board mentally due to stress.
·Lack of clear guidelines for therapists about how to manage [X]’s therapy intervention around these custody issues. Perhaps a nominated caseworker needs to oversee our therapy and provide some guidelines as to what is appropriate in regards to working with both parents. Potentially this may include joint meetings with both parents if this is seen to be appropriate.
·Limited funding hours to provide extra case management. I created an agreement for 40 hours of therapy in the year to allow Speech Therapy input also. However each time I have to attend the childcare center, (sic) this is a minimum of 2.5 hours including travel. This limits intensity of support and therefore the onus in on the family and staff to follow through with recommendations. I advocated for Ms Cabello to have a support coordinator for [X] in her NDIS plan, however I am not certain this is on his plan.”
Ms T
Ms T is [X]’s speech pathologist. Ms T prepared a report dated 5 July 2019 which is annexed to her affidavit sworn 4 September 2019 and filed 11 September 2019. Ms T was not required for cross-examination.
In her report under the heading “Attendance” Ms T notes that [X] attended 17 of 23 sessions with V Speech Pathologists in terms two and three in 2018.
Ms T notes that in term four of 2018 [X] only attended three of nine sessions; two out of four sessions with the Mother and only one out of five with the Father.
Ms T notes in term one of 2019 [X] attended eight of 11 sessions; five out of six with the Mother, one session being cancelled because of a court appointment, and three out of five with the Father. In term two of 2019 [X] attended seven of nine sessions with the Mother, noting one of the nine sessions was cancelled. Ms T notes that “[X]’s level of alertness improved during this term.”
The background and relevant information in relation to property matters has been set out in this judgment and will not be repeated.
The issues that have been identified that require a decision by the Court in order to determine a just and equitable division of the parties’ property matters are as follows:
a)should all or some of the credit card and personal loans and the Father’s outstanding tax liabilities as listed in paragraph [47] of this judgment be paid jointly by the parties or should they be the sole responsibility of the Father;
b)how should the alleged monies owed by the Mother’s family be included in the pool of assets;
c)should the Mother’s jewellery be included in the pool of assets;
d)should there be an adjustment in the Mother’s favour for section 75(2) factors given she will have primary care of [X] and the Father’s greater earning capacity; and
e)should a superannuation splitting order be made.
The Law
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
“(a) the 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
(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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.”
The matters to be taken into account under section 75(2) of the Act are as follows:
“(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”
The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Act the Court must first determine that it is just and equitable that the Court make such orders.
The High Court in Stanford (supra) held that in the majority of matters the decision as to whether it is just and equitable for the court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
This is such a matter. It is therefore apparent it is just and equitable that orders be made adjusting property interests between the parties.
Prior to the decision in Stanford (supra), a trial judge would follow the four step approach in determining how to alter property interests between the parties as articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395.
The four step process set out in Hickey (supra) is as follows. Firstly, the Court determines the nature of the property pool and attributed valuations. Secondly, the Court considers the contributions of the parties to the property pool including direct and indirect financial contributions and non-financial contributions often in the form of homemaker or parent. Thirdly, and after considering entitlements based on contributions the Court determines whether any further adjustments to either party’s entitlement is proper, given the considerations under section 75(2) of the Act. Finally, the Court stands back and considers whether the proposed division of the property is just and equitable pursuant to section 79(2) of the Act.
The High Court in Stanford (supra) and subsequently the Full Court in Bevan and Bevan (No 1) [2013] FLC 93-545 observed that this four step approach should not be rigidly followed.
The Full Court in the matter of Bevan (No 1) (supra) considered and discussed the correct application of Stanford (supra) when dealing with property matters. The Full Court in paragraph [71] of Bevan (No 1) states the following:
“71. Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.”
In Bevan & Bevan (No 2) (2014) FLC 93-572 the Full Court, having upheld the appeal against the decision at first instance proceeded to re-determine the property application before the Court. At paragraphs [18] and [19] of Bevan (No 2) (supra) Bryant CJ and Thackray J state the following:
“18. Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:
16. The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in Stanford (2012) 293 ALR 70 … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
17. Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
19. We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.”
The caveat referred to by their Honours in paragraph [19] of their judgment is the requirement that the Court must first be satisfied that it is just and equitable to make an order adjusting property between the parties. As noted in paragraph [266] of this judgment, the Court is so satisfied.
I am satisfied that this is a matter where the four step approach of Hickey (supra) is the appropriate approach to be taken to determine a just and equitable division of property between the parties given the Court is satisfied it is just and equitable that orders be made adjusting property matters between the parties.
Assets and liabilities
The credit cards/personal loans/the Father’ taxation debts at separation
The Father is seeking orders that the credit cards, personal loans and his outstanding taxation liabilities from the financial years ended June 2015 and June 2016 which total $79,233.67 as is set out in paragraph [47] of this judgment be paid prior to any division of assets between the parties as they are joint liabilities of the parties and were incurred during the marriage. The Father submits that the funds were utilised for the benefit of both the parties.
As has been noted in this judgment, other than the Westpac Platinum Visa which appears to have primarily been used for the payment of the deposit on Property P, the Father was unable to specify why these loans were necessary or precisely what they were utilised for.
It is the Father’s evidence that between 2013 and 2016 he engaged in unsuccessful share trading which resulted in a loss to the parties of approximately $70,000. He provided the Court with no proof of this share trading, the alleged losses that were incurred or where the funds to undertake such share tradings were sourced.
It is the Mother’s evidence that she had no knowledge of the decisions made by the Father in relation to their financial affairs during the course of their marriage. It is her evidence that she therefore had no knowledge of any of the personal loans and credit cards taken out by the Father during the marriage or of the Father’s share trading and the alleged losses arising therefrom.
It is the Father’s evidence that the Mother was kept informed at all times of the decisions being made in relation to their finances and that she attended with him at the bank to execute all relevant documentation. The difficulty with this evidence is that the credit cards and personal loans are in the Father’s sole name and therefore the Mother would not have been required to execute any documents relating to them.
The Court is satisfied the Mother had little knowledge of the parties’ financial affairs during the marriage.
The Mother argues that in all these circumstances the loans and credit cards in the Father’s sole name should be his sole responsibility and not considered to be joint liabilities of the parties.
It would appear that throughout the relationship the Father made investments in relation to real estate and possibly shares with a view to improving and enhancing the parties’ financial circumstances. If there was share trading, the Father, like many people during the period in which he was investing, made losses rather than gains. If the Father’s share trading had been successful, the Mother would be arguing that she is entitled to an appropriate division of any gains made. In those circumstances it is very difficult for her to argue that she should not be responsible for any negative outcomes that have occurred.
The detailed examination by the Court of the bank statements and source documents in relation to the parties’ property transactions have to a large extent clarified how those properties were purchased and where the funds came from to enable the investments to take place.
The parties’ property dealings have resulted in a net gain to the parties.
Of the $79,000 that is currently owing, $30,000 is directly attributable to the purchase of Property P, which ultimately resulted in a net profit to the parties of $206,000.
In all these circumstances the Court is satisfied that these liabilities should be considered joint liabilities of the parties and included in the pool of assets and liabilities of the parties.
The Mother’s jewellery
The Father is seeking that the Mother’s jewellery, which he values at $25,000, be included in the pool of assets.
The Mother opposes the Father’s application in relation to her jewellery. It is her evidence that other than a ring which the Father bought her for $900, any jewellery she owns was gifted to her by her father. It is the Mother’s further evidence that this jewellery is currently in the possession of the Father and his family.
There is no evidence before the Court as to what this alleged jewellery consists of or when and who purchased it. There is no independent valuation of the jewellery. There is no independent evidence of who is currently in possession of the jewellery.
In these circumstances, any jewellery of the Mother cannot be included in the parties’ assets for division.
The alleged debts to the Mother’s family
It is the Father’s evidence that he lent the Mother’s sister $10,000 in 2010 and the Mother’s great aunt and uncle $40,000 in 2014.
Annexed to the Father’s affidavit sworn and filed 16 September 2019 is a copy of statements from the Father’s Citibank account which shows that on 14 May 2014 he transferred (omitted foreign currency) to Company W. On 25 June 2014 he transferred a further (omitted foreign currency) to Company W.
It is the Father’s evidence that Company W is an entity owned by the Mother’s great aunt and uncle. However, the Father provides no evidence that Company W is owned by the Mother’s great aunt and uncle.
It is the Mother’s evidence that if the Father made loans to her relatives it was done without her knowledge. It is her submission that if these loans took place then it is a matter between the Father and the members of her family. The Mother submits that it is for the Father to pursue these alleged liabilities. The Mother advised the Court she has no issue with the Father retaining any monies that he is able to recover.
The Father has not sought to join the Mother’s family members to these proceedings in an endeavour to pursue these debts. He has provided no proof that any advances made to Company W were in fact to members of the Mother’s family. He has provided no evidence that if these monies were advanced by him to the Mother’s family, such advance was by way of a loan and not a gift.
In all these circumstances the Court is not in a position to make any findings as to whether there are monies owing to the parties by members of the Mother’s family and no orders will be made in relation to these alleged debts. They will not be included in the pool of assets for division between the parties.
The Father is the registered owner of two motor vehicles; Vehicle Y and Vehicle E. The Father drives Vehicle Y and the Mother drives the Vehicle E. These vehicles are of similar value and the parties are in agreement that they should each retain the motor vehicle that they currently drive. Accordingly they have not been included in the pool of assets for division between the parties and an order will be made that the Father is to transfer Vehicle E to the Mother (if he has not already done so), at her expense as part of the final property orders made in this matter.
The parties’ remaining assets are otherwise agreed, being the former matrimonial home, Property C, the balance of the monies currently held in trust from the sale of Property P, the partial property settlement to each of the parties whereby they have received $50,000 each from the net proceeds of sale of Property P and their superannuation entitlements.
Accordingly, the pool of assets for division between the parties is as follows:
| POOL | ||||
| Assets | ||||
| Property B | $550,000.00 | |||
| Less CBA mortgages | …7105 | - $89,462.18 | ||
| …1903 | - $136,245.38 | |||
| …6007 | - $45,290.07 | |||
| = $270,997.63 | ||||
| = $279,002.37 | ||||
| Property C | $300,000.00 | |||
| Less O Bank and R Bank account | - $210,243.53 | |||
| = $89,755.47 | ||||
| Balance of monies held in trust from sale of Property P | $18,860.70 | |||
| Monies received by the parties by way of part property settlement ($50,000 each) | $100,000.00 | |||
| Total Assets | $487,618.54 | |||
| Liabilities | ||||
| ANZ credit card accounting ending ..62 | $13,782.79 | |||
| Westpac Platinum Visa card account ending ..13 | $28,387.19 | |||
| NAB Premium credit card account ending ..65 | $1,599.64 | |||
| D Pty Ltd personal loan account ending …04* | $5,117.20 | |||
| CBA credit card account ending ..40 | $2,838.28 | |||
| CBA Fixed Rate personal loan account ending …81 | $24,458.13 | |||
| ATO tax 2014/2015 | $2,361.15 | |||
| ATO tax 2015/2016 | $689.30 | |||
| Total Liabilities | $79,233.68 | |||
| NET ASSETS | $408,384.86 | |||
| Superannuation | ||||
| The Father’s superannuation (REST) as at 20 September 2019 | $118,692.91 | |||
| The Mother’s superannuation (RES) as at 19 September 2019 | $38,482.54 | |||
| Total superannuation | $157,175.45 | |||
Contributions
Neither party had assets of any major value at the commencement of the relationship. They were both in paid employment and upon [X]’s birth, were involved in his care.
After separation until May 2019, [X] was essentially in the shared care of both parties while both parties continued to work and meet such of their liabilities as they were able to.
In these circumstances, there should be no adjustments made in either party’s favour for contribution factors.
Section 75(2) factors
This Court has determined that the parties’ four-year-old son, [X] is to live in the primary care of the Mother and spend limited supervised time with his Father.
[X] is a child with special needs which means the level of care that he requires is considerably greater than that for many children. This responsibility is going to fall almost solely on the shoulders of the Mother.
It is the Mother’s evidence that the Father is not currently paying any child support for [X]. This means that the financial burden of his care falls on the Mother, albeit she is in recept of NDIS funding to assist in this regard.
The Father works in hospitality. In the Father’s affidavit sworn 16 January 2018 and filed 18 January 2018 he sets out in paragraph [5] the income earned by him during the relationship. From 2011 until 2016 the Father averaged an income of approximately $100,000 per annum. It is his evidence that he was able to generate this level of income by working two or three jobs.
In contrast, the Mother is employed by Company G and because of her full-time care of [X] is only able to work part-time. Her Financial Statement sworn 31 January 2018, which is the only document on file that relates to the Mother’s income, shows that she earned an income of approximately $35,000 per annum. Since the Mother swore her Financial Statement, she has reduced the number of hours she is working in order to care for [X]. This has presumably resulted in a reduction in income. Because of the Mother’s responsibilities to care for [X], she is unlikely to be able to ever work on a full-time basis.
It is therefore apparent there is a considerable difference in these parties’ earning capacities.
Because of the Mother’s full-time care of [X], [X]’s special needs, the Father’s greater earning capacity and the Father’s failure to pay child support, there should be an adjustment of 25% made in the Mother’s favour in relation to the parties’ realisable assets pursuant to section 75(2) of the Act.
Conclusion
As has been previously set out in this judgment, neither party was represented at the final hearing and therefore did not couch their closing submissions in relation to property matters on the basis of a percentage division of the parties’ realisable assets.
The Father is seeking orders that the Mother retain the former matrimonial home, that he retain Property C and that from the parties’ assets, the current outstanding liabilities in relation to credit card loans be paid and that there otherwise be a division between the parties that is fair.
The Father made no submissions in relation to a superannuation splitting order being made.
The Mother proposes that she retain the former matrimonial home and be responsible for its current mortgages, the Father retain Property C and be responsible for its mortgage, the Father be solely responsible for the credit cards, personal loans debts and tax liabilities in his name and that the funds held in trust be divided 70/30 in her favour. This would mean the Mother would retain 84% of the parties’ realisable assets.
Neither party’s proposals achieve a just and equitable result for the parties given the Court’s determination there should be an adjustment in the Mother’s favour such that she receive 75% of the parties’ realisable assets.
For the Mother to receive 75% of the parties’ realisable assets, she should receive assets to the value of $303,977.37.
There is currently a $25,125.37 redraw facility available to the parties on the CBA home loan account ending 1903. If this amount is redrawn and paid to the Father it would increase the total mortgages on the former matrimonial home to $304,128.00 and reduce the equity in the former matrimonial home to $253,877.00.
If the Mother retains the former matrimonial home with the decreased equity of $253,877 together with the $50,000 already received by her by way of part property settlement she would receive 75% of the parties’ realisable assets.
For the Father to receive 25% of the parties’ realisable assets he should retain net assets to the value of $102,096.21.
If the Father retains Property C which has equity of $89,755.47, receives the balance of the proceeds of sale of Property P currently in trust of $18,860.70, is paid the redraw on the CBA loan account ending ..03 of $25,125.37 and retains the $50,000 already received by him by way of part property settlement, a total of $183,741.54 and is responsible for the credit cards, personal loans and his outstanding tax totalling $79,233.60, he will retain 25% of the parties’ realisable asses.
The Court notes it is possible that when the Court orders are pronounced the loan payment for January 2020 on the CBA home loan account ending ..03 of approximately $530.00 may have been added to the current mortgage balance and the amount available on the redraw facility on that loan commensurately reduced. These very slight alterations in the figures quoted in paragraphs [314] to [318] of this judgment still results in there being a 75/25% division of the parties’ assets.
Given the relatively small property pool and the enormous responsibility the Mother is assuming in relation to the care of [X], as well as the impost that places on her capacity to increase her income, such an outcome should allow her to retain the former matrimonial home which can only be seen as a just and equitable outcome for her and [X].
Whilst the Father is seeking orders the whole of the parties’ liabilities be paid prior to a division of the assets, this is not possible unless the real estate is sold. The order the Court is making results in the Father receiving almost $40,000 in cash. This will enable him to put a considerable dent into the various liabilities that are currently in his name. He will also have the benefit of Property C to either sell or develop as he should choose. This allows him to move on with his life, particularly now that he is aware of the parenting arrangements and can pursue full time employment at a level that will enable him to re-establish himself financially. This too is a just and equitable outcome.
Accordingly, orders will be made in the following terms:
·within seven days the parties do all things necessary to redraw the total amount currently available to the parties on the CBA home loan account ending ..03 and such amount is to be paid to the Father;
·within 60 days the Father transfer to the Mother at the Mother’s expense all his right, title and interest in the former matrimonial home;
·within 60 days the Mother do all things necessary to refinance the mortgages on the former matrimonial home;
·within 60 days the Mother do all things necessary to transfer to the Father at the Father’s expense all her right, title and interest in Property C;
·within 60 days the Father do all things necessary to refinance the mortgage on Property C into this name;
·in the event the Mother fails to refinance the mortgages on the former matrimonial home, it be placed on the market for sale and after payment of sale costs and discharge of mortgages and encumbrances, the balance be paid to the Mother;
·in the event the Father fails to refinance the mortgage on Property C, Property C be sold and after payment of sale costs and discharge of the mortgage and encumbrances, the balance be paid to the Father;
·pending the refinance or sale of the former matrimonial home, the Mother pay all mortgage repayments, encumbrances, rates, taxes and like apportionable outgoings on the former matrimonial home;
·pending the refinance or sale of Property C, the Father pay all mortgage repayments, encumbrances, rates, taxes and like apportionable outgoings on Property C;
·upon production of proof that procedural fairness has been afforded to the Father’s superannuation fund, a superannuation splitting order be made to equalise the parties’ superannuation entitlements;
·the Father be responsible for all personal loans, credit card debts and tax liabilities in his name and indemnify the Mother in relation to same;
·if he has not already done so, within 21 days the Father transfer to the Mother at her expense Vehicle E registration number …;
·otherwise each party will keep all property in their possession and indemnify the other in relation to same.
Conclusion as to Superannuation
The Father made no submissions in relation to a superannuation splitting order being made in relation to the parties’ superannuation entitlements.
The Mother is seeking a splitting order such that she receive an amount that would equate to her receiving 70% of the parties’ current superannuation entitlements.
The Father’s current superannuation entitlements are measurably greater than those of the Mother and the Court is satisfied that there should be a superannuation splitting order made in respect to the parties’ superannuation entitlements.
Given the parties’ relatively young ages, neither party will be able to access their superannuation for many years. They also both have the capacity to continue to contribute to their superannuation for many years to come.
In these circumstances, I am of the view that it is just and equitable orders be made that will result in the parties’ current superannuation entitlements being equalised.
Whilst orders will be made at the time of the handing down of the judgment that will deal with the parties’ realisable assets, it would appear that procedural fairness has not been afforded the Father’s superannuation fund. This means the final order in relation to superannuation entitlements cannot be made until procedural fairness has been afforded to the Father’s superannuation fund. The parties will be directed to attend to this as a matter of urgency.
I certify that the preceding three hundred and twenty eight (328) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 24 January 2020
ANNEXURE “A”
List of financial source documents considered by Judge Bender for the purposes of the preparation of Reasons for Judgment:
A.CBA statement for home loan account, account number ending ..05 for the period 1 January 2019 – 30 June 2019.
B.CBA statement for home loan account, account number ending ..07 for the period 1 January 2019 – 30 June 2019.
C.CBA statements for home loan account, account number ending ..03 for the periods 1 July 2013 – 31 December 2016, 5 September 2017 – 31 December 2019.
D.CBA statement for personal loan account, account number ending ..81 for the period 26 March 2015 – 30 June 2015.
E.CBA statement for Complete Access joint account, account number ending ..32 for the period 15 December 2015 – 14 June 2016.
F.Westpac statement for Altitude Platinum card account, account number ending ..21 for the periods 21 July 2015 – 20 August 2015 and 21 December 2015 – 20 January 2016.
G.Westpac statement for Platinum Visa card, account number ending ..13 for the period18 January 2016 – 16 February 2016.
H.ANZ statements for low rate account, account number ending ..62 for the periods 4 August 2014 – 3 September 2014 and 5 January 2016 – 3 February 2016.
NAB statement for Premium Mastercard credit card account, account number ending ..96 for the period 10 September 2014 – 9 October 2014.
J.Z Superannuation annual statement for the Father’s account for the 2018-2019 financial year.
K.Correspondence from Z Superannuation to the Father dated 15 January 2020 titled “Withdrawal benefit as at 20 September 2019 $118,692.91”.
L.Correspondence from Z Superannuation to the Mother dated 28 February 2019 titled “Withdrawal benefit as at 28 February 2019 $35,096.93”.
M.Printout of webpage for Z Superannuation titled “Account summary” in relation to the Mother’s account, which indicates the Mother’s superannuation entitlement balance to be $38,482.54 as at 19 September 2019.
N.Mortgage House Loan Account statement for account number ending ..22 for the period 1 August 2019 – 31 August 2019.
O.Australian Securities & Investments Commission Form 484 for company AA Pty Ltd dated 17 September 2019.
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Contract Law
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