SCARLETT & BRADSHAW

FAMILY COURT OF AUSTRALIA

SCARLETT & BRADSHAW

[2018] FamCA 982

FAMILY LAW – CHILDREN – Final orders – Where there is one child aged five years – Where the child is currently living with her mother and spending supervised time with her father – Where both parents seek that they have equal shared parental responsibility for the child – Where both parents seek that the father’s time with the child be increased following completion of an anger management course – Where both parents seek a gradual increase in the child’s time with her father but within different time frames – Where the father has a vulnerability for poor impulse control and where the mother is described as over-protective – Where the father perpetrated family violence towards the mother during the relationship – Where the father assaulted a recent partner – Where orders are made for an increase in the father’s time with the child on a cautious and gradual basis.

FAMILY LAW – PROPERTY – Final orders – Where the parties were in a relationship for seven years – Where a separate asset pools approach was adopted – Where the husband made greater initial financial contributions – Where both parties worked during the marriage but the wife earned a greater income – Where contributions are assessed overall as 58 per cent in favour of the husband due to his initial contribution – Where the wife has a greater future earning capacity and primary care of the child – Where there is no adjustment made under s 75(2) of the Family Law Act 1975 (Cth).

FAMILY LAW – PROPERTY – Where the wife acquired a property post separation and has an interest in shares that have not yet vested – Where the wife seeks that this property and her share interest be assessed separately from the assets in the other pool – Where the husband seeks these assets be included as part of a global approach – Where the husband made no contribution to the wife’s property acquired post separation – Where the shares have not vested and cannot be regarded as property – Where the property and share interest are to be considered separately – Where the shares are considered a financial resource.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 75, 79

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 Bondelmonte & Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 In the Marriage of Money and Money (1994) FLC 92-485 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Westlake & Trask [2013] FamCA 928 Zalewski & Zalewski (2005) FLC 93-241; [2005] FamCA 996
APPLICANT:	Ms Scarlett

RESPONDENT:

Mr Bradshaw

FILE NUMBER:

SYC

4319

2014

DATE DELIVERED:

22 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

28 February 2017, 1, 2, 3, 6 March 2017 and 18 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cummings SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Rosic

SOLICITOR FOR THE RESPONDENT:

Manning Lawyers

Orders

Parenting

The following parenting orders are made in relation to the child, X born … 2013 (“the child”).
All previous parenting orders are discharged.

Parental Responsibility

The husband and the wife shall have equal shared parental responsibility for the child.

Live With

The child shall live with the wife.

Time Spent (supervised)

The child shall spend time with the husband as follows:
(5.1)from the date of these orders until the expiration of three weeks and subsequently until such time as the husband completes an anger management course such as Life Supports’ 12 week course or a similar course (“the anger management course”) as follows:
(5.1.1)from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday each week;
(5.1.2)from 10.00 am to 4.00 pm on each alternate Sunday;
(5.1.3)the child’s time with the husband be supervised at all times by the nanny, with the costs of the nanny to be paid by the wife;
(5.1.4)on the child’s birthday, if a school day from 3.00 pm to 5.30 pm and if on a non-school day then from 1.00 pm until 5.30 pm;
(5.1.5)on Christmas Day in 2018 from 2.00 pm to 5.30 pm and if the husband has completed the anger management course and provided to the wife the certificate of completion this time shall be unsupervised; and
(5.1.6)on Father’s Day from 10.00 am until 4.00 pm.

Time Spent (unsupervised)

Subject to Order 5.1 above, upon the husband completing the anger management course and providing to the wife the certificate of completion. The child shall spend unsupervised time with the husband as agreed and failing agreement as follows:
(6.1)until the conclusion of Term 2 in 2019:
(a)from after school (or 3.00 pm if not a school day) until 5.30 pm each Tuesday; and
(b)from 8.00 am to 5.00 pm each Sunday.
(6.2)commencing from the conclusion of Term 2 in 2019 on a two week rotation as follows:
(6.2.1)in Week One:
(a)from after school (or 3.00 pm if not a school day) until 5.30 pm on Thursday; and
(b)from 4.00pm on Saturday until 10.00 am on Sunday.
(6.2.2)in Week Two:
(a)from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.
(6.3)commencing from the conclusion of Term 3 in 2019 on a two week rotation as follows:
(6.3.1)in Week One:
(a)from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday; and
(b)from after school (or 3.00 pm if not a school day) on Friday until 10.00 am on Sunday.
(6.3.2)in Week Two:
(a)from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.
(6.4)commencing from the conclusion of Term 1 in 2020 on a two week rotation as follows:
(6.4.1)in Week One:
(a)from after school (or 3.00 pm if not a school day) on Thursday until 10.00 am Sunday.
(6.4.2)in Week Two:
(a)from after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.
(6.5)commencing from the conclusion of Term 2 in 2020 on a two week rotation as follows:
(6.5.1)in Week One:
(a)from after school (or 3.00 pm if not a school day) on Thursday until before school (or 9.00 am if not a school day) on Monday.
(6.5.2)in Week Two:
(a)From after school (or 3.00 pm if not a school day) until 5.30 pm on Tuesday and Thursday.
(6.6)commencing from the conclusion of Term 3 in 2020 on a two week rotation as follows:
(6.6.1)in Week One:
(a)from after school (or 3.00 pm if not a school day) on Thursday until before school (or 9.00 am if not a school day) on Monday.
(6.6.2)in Week Two:
(a)from after school (or 3.00 pm if not a school day) on Wednesday until before school (or 9.00 am if not a school day) on Thursday.

School Holidays

The child’s time with the husband as specified in order 5 and order 6 above insofar as it does not relate to special occasions shall be suspended during school holiday time except during the January 2019 and January 2020 holidays when it shall be suspended only for the first two weeks thereof.
The child shall spend time with the husband during school holiday time as follows:
(8.1)in 2020 during each of the Term 1, Term 2 and Term 3 holiday periods from 9.00 am on the fourth last day of each holiday period until 9.00 am on the last day of each such period.
(8.2)In 2021:
(a)for one week during each of the January 2021, Term 1, Term 2 and Term 3 holiday periods to be agreed between the parents and in the absence of agreement, the last week with changeover occurring at 9.00 am on Saturday;
(b)for three single week periods during the December 2021/January 2022 holiday period, such weeks to be agreed between the parents and in the absence of agreement the first, fifth and seventh weeks with changeover occurring at 9.00 am on Saturday.
(8.3)From the 2022 Term 1 holidays onwards:
(a)during school holiday time as agreed between the parents and in the absence of agreement, for half of each school holiday period with the child to spend time with the husband for the first half of the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years;
(b)school holiday time shall commence from the conclusion of school on the last day of school term for the school that the child attends. This shall be known as “the first day”;
(c)school holiday time shall conclude at 5.30 pm on the day prior to the first school day that the child attends school in each new school term. This shall be known as “the last school day”; and
(d)unless otherwise agreed between the parents, changeover half way through the school holiday time shall occur at 2.00 pm on the day in the middle of the first day and the last day, and in the event there are two middle days, then changeover shall occur at 12.00 pm on the first of the two middle days.

Birthdays and Special Occasions

The child shall spend time with the husband:
(9.1)from 9.00 am until 5.00 pm on Father’s Day in each year;
(9.2)from 9.00 am until 5.00 pm on the husband’s birthday in each year if a non-school day and from 3.00 pm to 5.30 pm if a school day;
(9.3)if not otherwise spending time with the husband on the child’s birthday then in the event that the child’s birthday falls on a school day, from 3.00 pm until 5.30 pm and if it is on a non-school day then from 1.00 pm until 5.30 pm;
(9.4)from 5.30 pm Christmas Eve until 5.30 pm on Christmas Day each odd numbered year;
(9.5)from 5.30 pm Christmas Day until 5.30 pm Boxing Day in each even numbered year commencing in 2020; and
(9.6)from 3.00pm Easter Thursday until 5.00 pm Easter Monday each even numbered year.
That commencing from the date of the making of these orders and notwithstanding anything else contained in these orders. The child shall live with the wife as follows:
(10.1)from 9.00 am until 5.00 pm on Mother’s Day each year;
(10.2)from 9.00 am until 5.00 pm on the wife’s birthday in each year if a non-school day and from 3.00 pm to 5.30 pm if a school day;
(10.3)if not otherwise spending time with the wife on the child’s birthday then in the event that the child’s birthday falls on a school day, from 3.00 pm until 5.30 pm and if it is on a non-school day then from 1.00 pm until 5.30 pm;
(10.4)from 5.30 pm on Christmas Eve until 5.30 pm on Christmas Day each even numbered year;
(10.5)from 5.30 pm Christmas Day until 5.30 pm Boxing Day in each odd numbered year; and
(10.6)from 3.00pm Easter Thursday until 5.00pm Easter Monday each odd numbered year.

Communication

Each parent shall do all things necessary to facilitate the child making telephone calls and receiving telephone calls from the other parent:
(11.1)on Christmas Day between 8.00 am and 10.00 am;
(11.2)on two occasions in each week; and
(11.3)at other times as requested by the child.

Changeover

Unless otherwise agreed and unless changeover occurs at the child’s school, the husband, or his nominee, is to collect the child at the commencement of his time, in accordance with these orders, from the wife’s residence and the wife, or her nominee, is to collect the child from the husband’s residence at the conclusion of his time with the child.

Contact Details

Each parent shall keep the other informed of their contact telephone numbers and residential address and provide the other with at least 28 days’ notice in writing of any proposed change of address.

School and Health

Each parent shall be entitled to obtain directly from any school attended by the child or any health or welfare professional or other professional (excluding any confidential counselling) attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose, each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each parent shall do all things necessary to authorise any school the child attends to provide the other parent on a regular basis with copies of all school reports, school newsletters, and any other information regarding the child’s school activities.
Each parent shall be at liberty to attend school events where parents are invited to attend.
Each parent shall immediately notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child, when the child is in their care. Together with any such notice the parent shall provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment.

Unavailability of the Wife

From the conclusion of Term 1 in 2021 and subject to the completion of the anger management course as specified in order 5.1, in the event that the wife is unable to care for the child for a period of at least twenty-four hours the husband is to be given first opportunity to care for the child during the time the wife is unable to do so and the wife shall notify the husband by text message or email as soon as she becomes aware of her unavailability to care for the child.

Travel

From January 2021 each of the parents shall be at liberty to take the child for holidays overseas during their part of each school holiday period on the following terms:
(19.1)they give the other parent at least four weeks’ written notice of the intended overseas travel and not less than seven days prior to the departure a detailed itinerary and contact details for the child whilst away; and
(19.2)during any overseas holiday, the travelling parent will ensure the child telephones the other parent on not less than each sixth day.
Both parents shall do all things to cause the child’s passport to be renewed as required to ensure the passport has at all times not less than nine months validity, and each of the parents pay the costs of any such renewal equally.
The wife shall hold the child’s passport at all times except when the child is travelling with the husband overseas in accordance with these orders, in which case the wife shall provide the child’s passport to the husband not later than seven days prior to the date of departure and the husband shall return the child’s passport to the wife within four days of the child’s return to Australia.
Until January 2021 the wife will be at liberty to take the child for holidays overseas or within Australia for up to three consecutive weeks and the husband’s time with the child shall be suspended during those periods on the following terms:
(22.1)the wife shall give the husband not less than 28 days written notice of the intended travel and not less than seven days prior to the departure a detailed itinerary and contact details for the child whilst away;
(22.2)during any such holiday, the wife shall ensure the child communicates with the husband by telephone (or other electronic communication) on not less than each sixth day; and
(22.3)the wife shall only exercise this opportunity on three occasions in each calendar year.
The wife shall ensure that all loss of time which would otherwise have been spent between the child and the husband pursuant to these orders is made up by the child spending make-up time with the husband within 10 weeks of her return home.

Property

The husband and the wife forthwith do all things and sign all documents to cause the following:
(24.1)payment to the wife of the money in the joint Westpac account #38; and
(24.2)payment to the wife of $878,807, or 34.642 per cent of the money in the Westpac E-Saver joint account #54 and payment to the husband of the balance ($1,657,993 or 65.358 per cent) remaining.
The husband indemnifies the wife against any action, claim, suit, demand and/or liability of any nature:
(25.1)which the wife has at any time, in the past, now, or in the future, arising in respect of any of B Pty Ltd and the B Family Trust and all underlying assets and any other company or trust in which the husband has an interest (“the Entities”):
(25.1.1)by reason of the wife having been an employee, director, officer and/or shareholder of any of the Entities, including but not limited to any taxation liability arising in the wife’s name relating to any transaction, distribution, dividend or payment of any kind received or receivable from any of the Entities;
(25.1.2)pursuant to any guarantee given by the wife in respect of any of the Entities; and
(25.1.3)by reason of any monies being receivable or received by the wife from any of the Entities.
(25.2)which the wife has at any time, in the past, now, or in the future, arising in respect of the husband whether:
(25.2.1)arising out of, or in connection with, the husband’s interest in any business or real property;
(25.2.2)any taxation (including Capital Gains Tax);
(25.2.3)all duties (including stamp duty);
(25.2.4)arising out of, or in connection with, the husband’s interest in any of the Entities; and
(25.2.5)arising in respect of any asset or interest in any of the Entities or received by the husband pursuant to these orders or otherwise.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) and in order of priority:
(26.1)a base amount be allocated to the wife being all of the wife’s interest in the C Super Fund (“the Super Fund”), as required by s 90MT(4) of the Act and the Court declares the wife’s base amount to be $138,585 (“the wife’s base amount”);
(26.2)the wife’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to the first payment out of the wife’s interest in the Super Fund, be hereby correspondingly reduced;
(26.3)this order have effect from the operative date, being four days from the date of the making of these orders;
(26.4)the Trustee of the Super Fund do all acts and things and sign all documents necessary to:
(26.4.1)calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement created by Order 26.1 and Order 26.2 above; and
(26.4.2)pay the entitlement when a splittable payment first becomes payable out of the wife’s interest in the Super Fund.
In order to give effect to these orders relating to superannuation split, the husband and wife, as Trustees of the Super Fund, as soon as practicable, implement the superannuation roll over and transfer provided for under these orders, in accordance with the rules of the relevant Trust Deed of the Super Fund and hold a meeting:
(27.1)to note receipt of the request by the wife to transfer her benefit to another complying superannuation fund; and
(27.2)to note receipt of the election by the husband to hold the remaining benefits in the Super Fund in his sole name.
Before the close of the meeting of the Trustees of the Super Fund, the wife do all acts and things and sign all such documents as may be necessary to:
(28.1)sign the Tax Returns and Financial Statements for the Super Fund for any outstanding financial years;
(28.2)resign her membership from the Super Fund; and
(28.3)resign as a Trustee of the Super Fund.
Subject to any other order to the contrary, the wife be solely, legally and beneficially entitled to the exclusion of the husband, to all other real and personal property and superannuation of whatsoever nature and kind as is in her ownership, possession and/or control.

Subject to any other order to the contrary, the husband be solely, legally and beneficially entitled to the exclusion of the wife, to all other real and personal property and superannuation of whatsoever nature and kind as is in his ownership, possession and/or control.
From the date of these orders, the wife do all acts and things necessary to indemnify, and keep indemnified, the husband from and against all liabilities, claims, actions, suits or demands of whatsoever nature arising in the wife’s sole name in respect of the wife’s property or loans secured over that property.
Except as these orders provide to the contrary, each party releases the other from all actions, claims, suits, demands and debts from one to the other.
The parties do all acts and things necessary and give all consents to and sign all documents to give effect to these orders in the time periods prescribed.
In the event that either party refuses or neglects to sign any deed or instrument, the Registrar of the Family Court of Australia at Sydney is appointed pursuant to s 106A of the Act, to sign such deed or instrument in the name of such party and to do all things necessary to give validity to the operation of the deed or instrument.
That all exhibits be released.
That the above property orders not commence operation until 13 December 2018.
That both parties have leave to relist these proceedings at any time not later than 12 December 2018 by arrangement with the Associate to Johnston J for further submissions about the form of the property orders only.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scarlett & Bradshaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4319 of 2014

Ms Scarlett

Applicant

And

Mr Bradshaw

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Scarlett (“the wife”) and Mr Bradshaw (“the husband”) commenced cohabiting in November 2006. They married in 2007 and separated on 8 June 2014. They have one child, X (“the child”), who was born in 2013 and is five years of age. They are in dispute about what parenting arrangements are in the best interests of their child and also in relation to their property and superannuation.
They have asked this Court to determine these matters.

Parenting

Applications

Annexed at Annexure “A” to these Reasons are the detailed orders sought by each of the parties.
The wife seeks orders to the following effect:
· that the parents have equal shared parental responsibility for the child;
· that the child lives with the wife;
·that the child spends time with the husband following completion of an anger management course on a gradually increasing basis commencing with supervised day contact only and moving to three nights per fortnight from the conclusion of Term 3 in 2021;
·that the child spends time with the husband during the school holidays commencing from the conclusion of Term 3 2021 for three single week periods over Christmas and progressing to half the school holidays from the conclusion of Term 1 2023 onwards;
·that the child spends time with each parent on special occasions as specified;
·that orders be made in relation to the provision of information about the child, medical information and attendance at school events;
·that from the date of the orders until Term 3 of 2021 the wife be at liberty to take the child for holidays overseas for up to three consecutive weeks on only one occasion each calendar year and for two consecutive weeks on two occasions each calendar year;
·that from Term 3 in 2021 onwards, each of the parties be at liberty to take the child for overseas holidays during their time with the child;
·that if there is any dispute arising between the parents in relation to any matter regarding making a decision or the parenting of the child, the parties shall consult HH or such other person agreed between them to assist in making decisions.
The husband seeks orders to the following effect:
·that the parents have equal shared parental responsibility for the child;
·that the child live with the wife;
·that the child spend time with the husband commencing with day only supervised contact and progressing to six nights per fortnight when the child attains the age of five years;
·that the child spends half the school holidays with the husband from when she commences school;
·that the child spends time with each parents on special occasions as specified;
·that the parents each facilitate telephone and Facetime contact between the other parent and the child;
·that from when the child commences overnight time with the husband the husband be permitted to travel overseas with the child for no more than two weeks on two occasions each year until the child commences transition school;
·that the wife be permitted to travel overseas with the child for no more than two weeks on two occasions each year until the child commences transition school
·that upon the commencement of the child spending overnight time with the husband, in the event the wife is unable to care for the child for a period of at least 24 hours, the husband is to be given first opportunity to care for the child; and
·that orders be made regarding medical treatment, attendance at school events and sports activities.

Background

The husband was born in 1973 and is 45 years of age. The wife was born in 1978 and is 39 years of age. The parties commenced cohabitation in November 2006 and were married in 2007. X (“the child”) was born in 2013 and is five years of age. The parties separated on a final basis on 8 June 2014.
In 1999 Mr D, the father’s first child, was born.
In 2003 the wife purchased a property at E Street, Suburb F (“the E Street property”) for $365,000.
The parties met in June 2005.
On 10 May 2006 the husband purchased a property at G Street, Suburb H (“G Street”) for $2,600,000. He obtained a mortgage in the amount of approximately $2,100,000.
In June 2006 the husband’s employment at J Ltd ceased. In November 2006 the husband received a payment for his J Ltd shares in the amount of $2,126,000 before tax. This payment came to the husband by way of the B Family Trust of which the husband is the sole director, secretary and shareholder.
On 30 November 2006 the parties commenced cohabitation. At around this time the wife was employed in the finance sector earning approximately $200,000 per annum plus bonuses. Within a few months of commencing to cohabit with the husband the wife was paid a bonus of $227,143.
From December 2006 or January 2007 the husband was employed by K Ltd.
In early 2007 the husband was contacted by the mother of his son, Mr D. A paternity test was conducted thereafter and the husband’s paternity of Mr D was confirmed. He commenced paying child support at a time thereafter.
In 2007 the parties were married.
In May 2007 and February 2008 the wife transferred to the husband’s accounts a total of $480,345 from which he paid tax in respect of the payment of his J Ltd shares. The wife was working at Company L.
During 2007 the parties undertook some modest renovations to G Street including the addition of a garage, improvements to the backyard and installation of a custom built wardrobe in the fourth bedroom.
In June or July 2007 the husband was retrenched from K Ltd.
In January 2008 the husband and the wife established two Protected Equity Loan facilities with Westpac. The loan facilities came to a total of approximately $3.6 million. Unfortunately the share market dropped significantly and the parties lost a considerable amount of money with these facilities.
In February 2008 the husband commenced employment at Company M where he remained until early 2009.
In approximately April 2008 the husband caused the title on G Street to be changed to include the wife’s name. The parties also refinanced the associated loan to be in both parties’ names.
In May 2008 the parties purchased a property at N Street, Suburb H (“the N Street property”) for $5,400,000. They lived in this property for six months then rented it out, negatively geared. They then moved into a rented apartment at Suburb O paying $1350 per week.
After the purchase of the N Street property the parties established a joint account with Westpac out of which the various loan repayments would be paid.
In August 2009 the husband, with others, established a “start-up” company called Company P (“CP”). Approximately $60,000 was paid out of the parties’ joint account towards establishment costs. I shall refer to this again below.
In February 2013 the wife sold the E Street property for $540,000. The net proceeds in the amount of $243,449 were applied to renovations on the N Street property.
In 2013 the child was born.
In August 2013 an incident occurred between the parties. It is the wife’s evidence that the husband returned home intoxicated and the wife locked herself in the bedroom with the child. It is the wife’s evidence that the husband repeatedly banged on the door in an aggressive manner. The husband denies this account. This will be referred to again below.
From October 2013 the husband commenced earning an income from CP in the amount of $100,000 per annum.
On 23 December 2013 there was a physical incident between the parties. This will be referred to again below.
In late December 2013 the husband and the wife commenced couples counselling.
From January 2014 the parties engaged a nanny in anticipation of the wife’s return to work.
In mid-January 2014 the wife left the matrimonial home with the child and resided with her parents for a period of approximately 10-14 days. She then returned to live at the matrimonial home.
From January 2014 the parties commenced seeing psychologist, Ms Q, to assist with difficulties in their marriage.
On 3 February 2014 the wife returned to work after maternity leave.
On 10 February 2014 the parties invested $150,000 in Company R through the C Superfund.
On 16 March 2014 the wife went to the United States of America (“the US”) on business for approximately seven nights leaving the child in the care of the husband and a nanny.
On 23 March 2014, G Street was sold for $3,500,000.
From 7 to 20 April 2014 the wife travelled on business through China, and Asia. The husband took the child to meet the wife in China, then the family flew to other parts of Asia.
In May 2014 the wife had gone to the US on business for 10 nights. The husband and a nanny cared for the child. The husband took the child to Tasmania. Upon his returning her to her maternal grandmother, she was very ill. The grandmother took the child to the doctor who diagnosed her as having the Roseola virus.
As indicated above, on 8 June 2014 the parties separated. The child was 10 months old at this time. On the day of separation the wife made a report to the NSW Police in respect of the incident in December 2013. The wife and the child moved into her parents’ home in Suburb S and the husband remained living in the former matrimonial home. On that day the husband transferred to himself the amount of $50,000 from the parties’ joint account. The wife then transferred to herself the remaining funds of $18,000.
On 12 June 2014 a provisional Apprehended Domestic Violence Order (“AVO”) was made at Suburb T Local Court.
On 27 June 2014 the husband was loaned an amount of $50,000 from Mr U.
On 14 July 2014 the wife commenced these proceedings.
On 24 July 2014 the AVO application was withdrawn by the police and the interim order discharged. From this time the husband commenced spending time with the child for two hours twice per week, supervised by a nanny at the former matrimonial home.
On 20 October 2014 orders were made by consent for the sale of the N Street property. The property was sold in October 2014 for $6,500,000. The net proceeds of sale were $2,957,452.
On 24 November 2014 the husband invested a further amount of $250,000 in Company R through the B Family Trust. The husband borrowed $240,000 from Mr V and contributed $10,000 from his own funds.
In late 2014 the husband commenced a relationship with Ms W.
In December 2014 the husband moved out of the former matrimonial home into a rented five bedroom home at Suburb Y. He rented out some of the bedrooms.
On 19 January 2015 interim parenting orders were made by consent providing for the child to live with the wife and to spend time with the husband for four hours twice per week, supervised by a nanny.
On 21 January 2015 the wife purchased a property at 2 G Street Suburb H (“2 G Street”) for $2,675,000. The wife obtained a mortgage for the full purchase price and stamp duty costs of $135,000. The wife’s parents provided a guarantee in respect of that loan.
In June 2015 the wife and the child moved out of her parents’ home and into 2 G Street.
In September 2015 the wife and her mother had arranged for the latter to take the child to the US to meet the wife there. The wife would be visiting the US on business. But the planned holiday did not go ahead because the husband declined to permit the child to travel overseas.
On 21 December 2015 the husband invested $50,000 in Company R through the B Family Trust. He borrowed that amount from Mr U.
In April 2016 the child fell out of bed and broke her elbow.
On 30 August 2016 orders were made listing the proceedings for hearing over four days commencing on 27 February or 6 March 2017. It was ordered by consent that funds in the amount of $250,000 be released to each of the parties from the net proceeds of sale of the N Street property in a controlled monies account. A Single Expert was appointed for the parenting proceedings.
In October 2016 the wife travelled with her mother and the child to New Zealand. The wife had business meetings there.
On 30 January 2017 orders were made that each of the parties receive a further $100,000 from the controlled monies account by way of partial property settlement.
On 16 February 2017 the wife purchased a motor vehicle for $42,700 funded from the $250,000 released from the controlled monies account.
In February/March 2017 the husband and Ms W separated.
On 9 April 2017 there was a serious argument between the husband and Ms W. Ms W complained to the police about the husband’s behaviour and an AVO issued against the husband for the protection of Ms W. The husband was charged with assault.
On 19 April 2017 the wife sought leave to re-open her case to tender evidence about this matter.
On 24 April 2017 the husband pleaded guilty to having assaulted Ms W. The husband was placed on a good behaviour bond for eight months and no conviction was recorded.
On 18 December 2017 the wife was permitted to re-open her case, that course not having been opposed by the husband.

Credit

The wife

The wife was articulate. She was reasonably responsive to questions but showed a tendency to add to her response information which she appeared to perceive might assist her case. Even after I pointed this tendency out to her, the wife continued to do this.
The wife appeared to find it difficult to make concessions. But I regard the wife as having been truthful.

The husband

The husband appeared to have some difficulty with the process of cross‑examination. Like the wife there were times when he did not provide a responsive answer, although he transgressed in this even more than did the wife. Time and again he included information in his answer which was not called for in the question. Presumably he could not resist putting this information into the answer in an endeavour to provide material he thought might assist his own case.
Although he made some concessions, and readily, this was not always the case.
I would have difficulty in thinking that the husband has not minimised the seriousness of his aggressive and violent behaviour towards the wife on the various occasions referred to. I have reservations about his credit in relation to these matters. Otherwise, I regard the husband as a truthful witness.

Mr Scarlett

Mr Scarlett is the wife’s brother. He was cross-examined over the telephone from overseas.
His evidence, generally, was consistent with the evidence of the wife and her mother concerning the incident on 23 December 2013.
Although I had a sense that he was a little partisan towards his sister, this could be understood in the distressing circumstances of the said incident. Notwithstanding this I regard his evidence as truthful.

Ms Scarlett Snr

Ms Scarlett Snr is the wife’s mother. Her affidavit came into the evidence unchallenged.

Ms Z, Ms AA, Ms BB, Ms W, Ms CC, Mr V, Mr U

The affidavit of each of these witnesses came into the evidence unchallenged.

Dr DD

Dr DD, psychologist, is the Chapter 15 single expert who was appointed to prepare a report about the family. Dr DD was cross-examined by both counsel for the husband and senior counsel for the wife. Where I refer to the evidence of Dr DD I accept this evidence.

Violence

A major issue is whether the husband has perpetrated violence against the wife.
The wife alleged that the husband has been violent to her on numerous occasions during the marriage.
The first complaint is that the husband would become aggressive during discussions and at times would clench his fists and purse his lips which made her feel scared. The husband denied this.
The wife also said that on occasions the husband would lose his temper and start screaming at her. The wife said that one such occasion was in mid-January 2014 and she became so frightened that she went and lived at her parents’ home for 10 days. The husband said that on this occasion the parties had an argument about the child’s christening and who her godparents would be. He said that he and the wife were both raising their voices.
The wife also said that the husband screamed and shouted at her during counselling sessions. The husband said that both parties became heated in their arguments. The counsellor’s notes did not record any concerns by her about their conduct.
The second complaint is that in August 2013 the husband returned from watching a rugby game in an intoxicated state, barely able to walk. The wife said that he was so aggressive with her that she grabbed the child, took her into her bedroom and locked the door. She said that the husband proceeded to bang on her door trying to get in but gave up after a while. She said that she sent a text message to her mother saying that she was concerned that the husband was drunk and that she was scared. She said that her mother came to the home and sent her a text message to say that she was downstairs and to let her know if she was required to assist.
The wife gave a similar account of this in her statement to police in support of an application for an AVO, the statement being dated 8 June 2014 (time of separation). The statement recorded that in August 2013 the husband went to a friend’s house and returned around midnight extremely intoxicated. The wife said that she took the child into the bedroom, locked the door and that the husband repeatedly banged on the door in an aggressive manner, calling her names and causing her to fear for her safety and that of the child.
The husband’s account was different. The husband said that he had consumed approximately six to eight drinks over four hours. He said that he walked home and when he arrived home he was not extremely intoxicated. But he conceded that he would not have been able to drive a motor vehicle. He said that he was in a happy mood and wanted to play with the child. He said that the wife said “You have had a few. Don’t wake the baby. Go and snore in the spare bedroom”. He said that he went to the spare bedroom and the wife took the child into their bedroom. He said that the next morning the wife laughed at him and said words to the following effect “You were so pissed last night”. He denied ever banging on the door in an aggressive manner or being heavily intoxicated.

The wife’s mother said in her affidavit as follows:
On or about 20 August 2013, [the wife] telephoned me and said:
Hi Mum, [Mr Bradshaw] just arrived home. He has been at a friend’s place watching the rugby match. He is extremely drunk and can barely walk. I’ve taken the child and locked myself in my room. He’s banging on the door trying to get in. I don’t know what to do.
The wife’s mother said she would come over and park outside, which she did. She waited outside in her car for approximately 45 minutes and was not further contacted by the wife. She then returned home. The evidence of the wife’s mother came in unchallenged.
I prefer the wife’s account of this matter over that of the husband.
The next complaint was about an incident on 23 December 2013. It is common ground that the husband’s mother was visiting from Tasmania and staying with the parties. The husband, his mother, the wife and the child went to the Suburb EE shops. In the early afternoon the wife’s brother arrived from overseas. In the early evening the wife, her brother and his wife went out for drinks. They invited the husband but he decided to stay home with his mother and the child expressing the view that that day was like his Christmas Day and he wanted to have it with his mother. The wife and the others attended a hotel at Suburb F and had some drinks. The wife said that she was breastfeeding and had no more than three glasses of alcohol. The husband said that the wife arrived home intoxicated. He said that her eyes were red, she was slurring her speech and was unsteady on her feet. He said that he was asleep when she returned home. The wife said that he was not.
The wife checked the computer and saw a message about the husband’s business, CP. It is common ground that the wife said to the husband words to the effect “.... [CP] is not doing well”. The husband said that this was a reference to a recent unsuccessful tender in relation to his business. It is also common ground that the wife then said words to the effect “It is inappropriate for you to walk around arm in arm with your mother when you have my daughter with you”. It is also common ground that the husband said to the wife words to the effect “I do not want to deal with this now. I am going to sleep in the spare room. I have to drive mum to the airport at 5.30am”. It is also common ground that the husband walked from the parties’ bedroom into the spare room taking his iPhone with him. He said that he needed to use it as an alarm clock. It is also common ground that the wife walked into the spare room where he was and removed his iPhone from the bedside table and walked out of the spare room.
What then transpired was an incident between the parties involving some physical force. Their accounts are different. The wife said that she said to the husband “Come back to the bedroom” and that upon her picking up his phone the husband grabbed her by the throat using his right hand and pushed her backwards down onto the bed. She said that the husband used his left hand to pin her right hand against the bed preventing her from moving. She said that he snatched the phone away from her hand and left the room. She said that she was immediately in shock, she could feel pain around her neck and she was short of breath. She said that she took photographs of red marks on her neck shortly thereafter but the photographs no longer exist because her Blackberry mobile phone was damaged and the photographs became irretrievable. She said that she telephoned her brother Mr Scarlett and said to him:
[Mr Bradshaw] has just tried to strangle me. I have marks on my neck. I am distressed. Please come and get me. I am locked in my room and will wait for you to come. Let yourself in. I am worried about the child. Quick.
She said that less than 10 minutes later her mother sent her a text message saying “[Mr Scarlett] and I have arrived”. She said that her brother opened the door to the house and entered. She said that the husband was at the top of the stairs and she heard the following conversation. Her brother said “What have you done?” and that the husband replied “I don’t know, I don’t know” and that he was crying. The wife said that she immediately picked the child up and took her out of the house. She said that the husband did not follow them. They went to her parents’ home and she decided not to go to the police because she wanted the marriage to work. She said that she thought going to the police would make things worse and she wanted the child to have a father.
The husband’s account was different. He said that after the wife removed his iPhone from the bedside table and walked out of the spare room he followed and took hold of her arm in an attempt to retrieve the phone from her. He said that he regrets his actions. He said that the wife was highly intoxicated and pulled violently away from his grasp. He said that they both fell onto the bed. He said that when this happened the wife dropped his phone and he went back into the spare bedroom. He denied putting his hand or hands around the wife’s neck. He described what occurred as a “scuffle”. He said that he has apologised to the wife for this during a subsequent counselling session.
The wife’s mother called the police for advice and they informed her that the wife would need to come to the police station for the police to take action.
The wife decided not to go to the police station. She said that she wanted to endeavour to reconcile with the husband and that he was begging her to come back and was crying. She said he said “I am so sorry. I can’t believe what I did last night. Please come back”.
A year later the wife made a statement to police referring to this incident. In her statement she said that she picked up the mobile phone and walked back into the main bedroom. She said that the husband followed her and suddenly used his right hand to grab her around the neck and push her hard onto the bed. She said he said “Give me my phone”. She said he then used his left hand to hold down her right arm preventing her from moving. She said he then grabbed his mobile phone from her left hand and left the room. She said that she had red marks on and around her neck and took three or four photographs on her old blackberry phone straight after the incident occurred. She said she showed her siblings the marks on her neck.
The wife’s brother, Mr Scarlett, said that on 24 December 2013 at about 12.00 am he was at his parents’ home when he received a telephone call from the wife whom he could hear crying and speaking in a tone of distress. He said that during the conversation she said words to the effect “[Mr Bradshaw} has grabbed me by the throat and pushed me onto the bed” and certain other things. He said that he and his mother drove to the parties’ home arriving at approximately 12.30 am. He said that the wife came to the door and he could see that she was crying, appeared to be shaking and was otherwise visibly distressed and fearful. He said that he told the wife to pick up the child and come with him and his mother to their parents’ home. He said that he went into the home and he saw the husband to whom he said “I cannot believe what you’ve done to my sister mate” and left the home with the wife and child. He said that he saw that the wife had red hand marks on and around her neck. He said that she said to him “[Mr Bradshaw} grabbed my throat forcefully”.
Mr Scarlett said that in approximately mid-January 2014 he had a telephone conversation with the husband during which he said “I am extremely disappointed that you physically attacked [Ms Scarlett]. I want you to assure me that you will never do something like that again” and that the husband said “I am so sorry for what I did to [Ms Scarlett]. I didn’t mean to assault her. I don’t know what came over me”.
During his cross-examination it was suggested to Mr Scarlett that what the husband had said was as follows “I am sorry for grabbing [Ms Scarlett] on the arm when grabbing my phone”. Mr Scarlett said that that was not what the husband had said. He was asked whether he remembered the husband telling him that all he did was grab her on the arm. Mr Scarlett denied this saying “That’s not what he did and not what he said”. Mr Scarlett said that “There was no doubt in my mind, in his mind and in [his sister’s] mind during all their interactions that he strangled my sister”. Mr Scarlett said that his sister used the word “strangle” on the night of the incident.
The wife’s mother said that at approximately midnight on 24 December 2013 she was woken by her son Mr Scarlett and asked to attend at the parties’ home because something had happened to the wife. She said that when they arrived, the wife came running down the stairs crying with the child in her arms. The wife’s mother said that she observed that the wife’s neck had red marks on it. She said that she heard her son say to the husband “What the heck have you done mate”.
The wife’s mother said that she had never seen the wife like she was at that time. She said that the wife appeared to be traumatised, that she was shaking and crying.
During his cross-examination about this incident, the husband maintained his assertion that he took hold of the wife’s arm to get his phone. He said that he did not grab her “that hard”. His evidence was consistent with a statement he had prepared with his lawyers for the purposes of defending an application against him for an AVO. In particular the husband denied putting his hand or hands around the wife’s neck.
Ms BB, a long-time close friend of the wife, said that on 24 December 2013 the wife rang her and was crying. Ms BB said that the wife said amongst other things:
[Mr Bradshaw} and I had a huge fight. He tried to strangle me. I’m alright. I’m just shocked. I don’t know how we can move past this. I don’t know what to do. I have a small child and I want her to have a father.
As indicated above, this evidence was unchallenged.
This distressing incident assumed prominence in the hearing. As can be seen, there was considerable cross-examination about it.
The view I have reached about this incident is that I find it more probable than not that the husband has minimised the extent of the physical contact. The wife, her brother and her mother all said that the wife had red marks on her neck. The wife’s mother’s evidence came in unchallenged. So I accept that their account is more likely to be true than that of the husband.
As indicated above, on 18 December 2017 the wife was permitted to re-open her case to tender evidence in relation to an assault by the husband on his former partner, Ms W. That evidence, to which I shall refer below, makes me even more comfortable about the likely correctness of my finding in this regard.

Current arrangements for the child

The child lives with the wife who works full-time in the finance industry. The wife is assisted in caring for the child by her parents on Mondays and Wednesdays as well as by a nanny. The child attends tennis lessons on Mondays. The wife stays home Tuesday mornings and a nanny cares for the child Tuesday afternoons. On Thursdays and Fridays the child attends FF Early Learning Centre. The wife travels several times a year overseas for her employment and during these periods she is assisted with the care of the child by her mother in particular who often travels with her to care for the child overseas.
The child has been spending supervised time with her father four times per fortnight for a period of four hours. The husband said that his work hours are flexible and his business partners would permit him time off during the week when required to care for the child.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA of the Act). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Subsection 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subsection 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court cases of MRR v GR (2010) 240 CLR 461 and Bondelmonte & Bondelmonte (2016) 259 CLR 662.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. But I am satisfied that the presumption does not apply in this case because in my view the husband has engaged in family violence.
In any event, to their credit the parents agree that it is in the child’s best interests for them to have equal shared parental responsibility for her.
In these circumstances the Court must first consider making an order for the child to spend equal time with each parent if this will be in her best interests and be reasonably practicable.
For reasons referred to below, in my view it would not be in the child’s best interests to spend equal time with each of her parents.
Because equal time is not in her best interests, as indicated above, s 65DAA(2) of the Act requires the Court to consider whether for her to spend substantial and significant time with each of her parents would be in her best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It is set out in s 65DAA(4) that s 65DAA(3) does not limit the other matters to which the Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

At the time Dr DD observed the child she was three years of age. Unfortunately the hearing became protracted because of the application by the wife for leave to re-open her case. Added to this has been a lengthy delay in completing this judgment. I apologise to the parties for this. The child is now five years of age and in considering Dr DD’s evidence and the child’s best interests, I am keeping this age difference in mind.

At the age of only five years any views the child has expressed would be afforded little weight.
Having said this, Dr DD made numerous observations in relation to the child’s views which merit recording here.
Dr DD said that the child has extremely well developed language skills. She said that the parents need to be cautious that they do not give more weight to things the child says than is appropriate for a child of her age. She said just because the child has strong verbal skills does not necessarily mean that she has the cognitive and emotional maturity of a much older child.
Dr DD said that both parties said that they were guided by the child’s views in respect of activities she chooses and each places weight on the child’s reports of experiences in the other household. Dr DD said that while it is important that the child’s views and wishes be acknowledged, it is equally important that she is reminded that the adults need to be in charge.
Dr DD said that in the context of high conflict as is the case between these parents it is imperative that the child is not inappropriately empowered. She said that placing such weight on a young child’s views in the absence of a collaborative parenting relationship can become highly problematic for a child such as the child and places her in the position of becoming the conduit between her parents. She said that the parties have been warned about the dangers of using the nannies in this regard but, sadly, unless they were to address their communication impasse they pass the staff onto the child to adopt this role.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

It is clear that the child has a close, loving and secure relationship with each of her parents.
Dr DD said that both parents acknowledged the strength of the child’s relationship with her other parent. It is clear that the wife has been the child’s primary caregiver. Nevertheless Dr DD said that the child has a secure relationship with both parents and that their loving and concerned attention to her needs has undoubtedly contributed to the attachments that were observed. She said that both parents at interview were attentive and responsive to the child.

(a) The child with her mother

Dr DD said that when the child was reunited with her mother at the interview she smiled. She said that the wife was “attuned to the child and involved in the play”.
The wife is the child’s primary carer.

(b) The child with her father

Dr DD said that the child separated easily from her mother and when she saw her father, she responded warmly to him and they hugged. She said that the husband sat on the floor with the child and they played at the doll’s house together. She said that their interaction was observed to be warm, spontaneous and affectionate. She said that their conversation was punctuated with laughter. She said on leaving the interview the child and her father hugged and she separated easily from her father.
Dr DD said that the wife’s criticism that the husband is lacking in his attunement to the child was not consistent with the observations of his interaction with her. She said that the child asked each parent about the whereabouts of the other and that the child questioned her father whether he could stay longer when it was time for him to leave. She said that both parents acknowledged the close relationship the child has with her extended maternal family, in particular, her maternal grandmother. The child has had limited contact with her paternal extended family.
Ms AA was the child’s nanny between September 2014 and April 2016. She said that the child has a positive relationship with the husband and enjoys seeing him.
Ms Z has been the child’s nanny since September 2016. She has accompanied the child to spend time with the husband. Ms Z said that the child enjoys spending time with her father and is excited to see him. She said the husband adores the child and is excited to see her.

(c) Extended family

Dr DD said that one of the areas where there is a blind spot is the involvement of extended families.
She said that clearly, the wife has a very strong relationship with her mother. Dr DD said that if the husband’s accounts are correct, there may be an element of enmeshment between the two. She said that similarly the wife is suspicious and critical of the relationships the husband has with his family.
Dr DD said there was a significant power struggle between the parents in respect of how each of them perceive the other as wanting to draw them away from their families of origin. Dr DD said that strongly through all of the documentation and therapists’ reports the wife seems to hold “rigid” views on the husband’s family whom she holds in poor regard and considers that the child may be at some physical and emotional risk by coming into contact with them.

Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

The parents have struggled with this responsibility. Their ability to negotiate in relation to which school the child should attend was quite challenged. The husband came somewhat slowly to accept the very keen desire of the wife to enrol the child at FF School. That was the school attended by the wife and her mother. Other members of her family have had a long association with the school. But the husband gave me the impression that he is now very happy for the child to attend at FF School as I shall refer to further below.
The parties encountered real difficulty in that they could not agree about whom the child’s godparents would be. In the end it seems clear that the wife had her way and the husband was quite frustrated about this. It caused a very serious argument between the parties.
The husband is very keen to be able to exercise his equal shared parental responsibility for the child.

Subsection 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

There was some criticism of the husband for not paying child support for the child. However, the parties have been in the fortunate position of experiencing an affluent lifestyle and standard of living. Each of them has had access to substantial money. Although the husband has not paid child support as such, the wife earns a far greater income than him and I am satisfied that she has had access to more than sufficient of the parties’ funds to be able to support the child financially.

Subsection 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

Dr DD said that the child has reached the developmental indices that are fundamental for her to be able to manage regular time away from her mother overnight. She said that these include the following:
·the child is able to self-regulate and calm herself when she becomes stressed or upset and that she would be able to use her father as a soothing source;
·she can imagine her mother even when she is not present;
·she will have the language skills to understand what is being said to her;
·she would be able to anticipate events beyond the here and now and understand, for example, what tomorrow means; and
·she will have a rudimentary capacity to express her basic needs and feelings.
Dr DD said that these are usually abilities that a child has mastered by the time they are three years old and she said that this would certainly be the case for the child.
Dr DD said that based on this assessment there appeared to be no reason which would stand in the way of the child’s time with her father being extended for longer periods during the day with a view to introducing overnight time.

Subsection 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The parents live quite close to one another and therefore face little difficulty in terms of the practical aspects of the child spending time with the husband.
In fact, because the wife spends periods working overseas this in time could provide even more practical opportunity for the child to further develop her relationship with the husband.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

There is no suggestion of any psychiatric issues, either concerning the parents or members of their extended families.
It is the case that, before separation, caring for the child was a collective responsibility with the wife obviously assuming the major role. She was assisted to a very considerable extent by her mother and the various nannies.
The wife asserted that the husband undertook a minor role in the child’s care and it was submitted on her behalf that the husband overstated his involvement in the child’s care. I have a different view. I am satisfied that he was involved in the care of the child to an extent significantly greater than the wife would give him credit for, including during the early period when the wife was on maternity leave.
There was also some criticism of the husband’s care of the child by Ms Z, the nanny. She said that while the husband seemed to be focused on making the child happy, in her opinion, he did not feed her properly during their time together. She said that he gave her ice cream and lollies rather than a proper meal or a healthy snack. She also said that the husband has not always dressed the child in a sweater when it is cold.
Ms AA, also the child’s nanny, said that the husband has been caring towards the child but lacked insight into her needs and the effects his behaviour had on her. She said that the husband did not provide child appropriate meals at his home and tended to feed the child excessive amounts of fruit.
The husband denied that he has given the child too much fruit. He said that bananas, strawberries and mandarins are her favourite foods. He also said that he has fed her pasta and never offers her soft drinks.
To my mind the husband appears to lead a healthy lifestyle. He gave me the impression that he values a healthy diet saying that he does not include much in the way of sugar products in his diet and that he eats a lot of fruit, a diet he also follows in relation to the child.
The husband has satisfied me that he has the skills to feed the child and to put her off to sleep, and that he did these things. He has also satisfied me that he has an enormous love for the child and a very strong commitment to parent her in the fullest manner bearing in mind that clearly the wife is the child’s primary parent.
Dr DD said that during interview the husband was “attuned and reflective” in his responses to the child. She said that generally the husband was meeting the child’s needs in a satisfactory manner during the time that the child has been with him. But she said that the constraints under the current arrangements inhibit him from being able to attend to the child’s needs “across the full breadth of a day”.
Dr DD said that the husband said that it was not uncommon for the wife to have business meetings with clients in the evenings at which times the child’s care would be his responsibility. She said he added that during this time he had no difficulty meeting the child’s needs, settling her if she became distressed or putting her to sleep. I note that the husband reinforced this in his cross‑examination.
There were also three occasions prior to separation when the wife travelled overseas for work commitments for periods of up to 10 days and the husband was responsible for the child’s care with the assistance of the nanny. He said that he had no issues attending to her care. He also informed Dr DD that at that point the wife seemed to have no objection to him assuming this role and that she gave him the impression that she trusted his capacity to care for their child. He informed Dr DD that he understood how difficult it must have been for the wife to be away from the child so he kept her informed about the child’s eating, sleeping and play progress by way of what he described as “Lou Lou overnight reports”. Relevant emails were in evidence.
The husband took the child to Tasmania for four days in May 2014 to visit his mother. He said that the wife was reluctant to let him do this. Unfortunately the child contracted the Roseola virus at this time.
The husband has a bedroom set up for the child at his home. He said that he understands the child’s health and educational needs and routine. His former girlfriend, Ms W, described the husband to Dr DD as relaxed and patient with the child. I must say he gave me the impression during his cross-examination that this would be his demeanour and attitude to the child.
Dr DD said that the wife described the husband as “a relatively negligent and rough parent who put his work before his family needs, notwithstanding that he had promised to do otherwise”. Dr DD said that even when the wife was overseas she minimised the role which the husband played in the child’s care in spite of email exchanges which demonstrated that the husband played a hands-on role and the wife recognised this.
Dr DD said that the wife projects some of her own fears onto the child whom she believes is unsafe in her father’s care.
The husband is a former member of a sports team. He continues to train frequently and often takes the child to training which she enjoys. He denied the wife’s assertion that he has taken the child to training when she was ill. I am inclined to prefer the husband’s evidence about this to that of the wife given his background with training and the emphasis on health which must have been a strong part of his experience.
At one point while in the wife’s care. The child fell out of her bed and broke her elbow. Each of the parents made some criticism of the other about the management of this. The husband was understandably frustrated that the wife only informed him about this approximately 30 minutes prior to the commencement of surgery. On the other hand, the wife was critical of the husband whom she says was not sufficiently attentive by not attending at the hospital. The husband said that he was anxiously waiting by his phone to await reports from the wife. He said that the parties had not been in one another’s presence for a long time and he did not wish to meet.
Dr DD also referred to the period immediately after separation when there was no time between the child and her father. Dr DD said that interruptions of continuity in a child’s relationship with a parent place seeds of doubt in the child’s mind about whether that parent will be a reliable presence in their life. She strongly advised the parties to ensure that there were no further instances when the child’s relationship with either of them was interrupted.
In my view, the parents appear to have quite different parenting styles. The husband informed Dr DD that he wants the child to be grounded and to have a broad upbringing which includes sport and exposure to diversity. He said that he is more inclined than the wife to extend the child beyond her comfort zone, albeit in a considerate way.
The wife described herself as “over-protective”. This would appear to be consistent with the parenting arrangements to date and particularly the wife’s insistence that the child be supervised during all periods when she has spent time with her father. Dr DD said that while the wife’s need to protect the child is commendable, there were elements of her behaviour, especially towards the husband, that suggest she might be over-protective of the child. Dr DD said that in the long term, over-protective behaviour can instil unrealistic fears and thwart a child’s curiosity and creativity.
Dr DD said that some of the husband’s responses which the wife considers to be harassing and intimidating may reflect his focus on becoming a more involved father, in light of what he perceives to be gate-keeping on the wife’s part and her lack of recognition of his role as father. Dr DD said that undoubtedly this presses buttons for the husband about his own family of origin experience with his father and stepfather and the way he has been excluded from his son, Mr D’s life.
Dr DD made the observation that both parents mentioned that the other was prone to episodes of emotional dysregulation and alcohol was raised as a precipitating factor. She said that it is possible that both parents have found it difficult to contain their emotions when they have been pushed to the point of overwhelming frustration. She said that it is imperative that the child is not exposed to such outbursts and if the Court considers that either party has difficulty controlling their emotions and managing their anger, further personal counselling might be indicated.
Dr DD said that both parents are good role models for the child.

Subsection 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Dr DD said that the child presented as a bright and alert child who seems to have reached the milestones expected for a child her age. She said that the child has very strongly developed language expression skills and that her motor skills are consistent with those of a child her age. Dr DD said that both parents are involving the child in a range of activities including swimming, dancing, ballet and cycling, which are extending her abilities and skills.
Dr DD said that no psychological or psychiatric issues were identified in the child. But she said that exposure of children to over-protectiveness or protractive conflict between their parents may predispose them to mental health concerns.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

This consideration is not relevant.

Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

It is clear that both parents take their parenting responsibilities seriously. Dr DD said that both have a significant investment in being the best possible parents they can be. She said that their accounts of the child’s strengths and interests were remarkably similar but differed in that the husband was more inclined than the wife to invite the child to face challenges. This assertion was challenged on behalf of the wife and I accept that Dr DD has probably overstated the differences between the parents in this regard.
Dr DD said that as a result of the dispute, unfortunately, both parents have adopted a defensive position in their parenting relationship where they have become suspicious of the other and their intentions in respect of parental responsibility and communication. She said that the parents have considerable work to do in order to jointly assume the responsibilities of parenthood. She said that they are currently caught in an intense power struggle and have adopted a competitive rather than a collaborative stance in their parenting relationship which is hardly child-focused.

Changeover

That other than by agreement between the mother and father from time to time in writing changeover of the child shall occur at school where a school day (provided the child is in attendance) and where not a school day then changeover of the child shall occur at the mother's home.

Travel with the child

That commencing from the date of the making of these orders until Term 3 of 2021, notwithstanding any other provision in these Orders to the contrary, the Mother will be at liberty to take the child for holidays overseas for up to 3 consecutive weeks and the father’s time with the child shall be suspended during those periods on the following terms:
23.1.The mother give the father not less than 28 days written notice of the intended overseas travel and not less than 7 days prior to the departure a detailed itinerary and contact details for the child whilst away;
23.2.During any overseas holiday, the mother ensure the child telephone calls (or such other electronic communication) the other parent on not less than each 6^th day; and
23.3.The mother to only exercise this right on 1 occasion in each calendar year.
That commencing from the date of the making of these orders until Term 3 of 2021, notwithstanding any other provision in these Orders to the contrary, commencing from the date of the making of these Orders, the Mother will be at liberty to take the child on holidays (overseas or domestic) for up to 2 consecutive weeks and the father’s time with the child shall be suspended during those periods on the following terms:
24.1.The mother give the father not less than 28 days written notice of the intended overseas travel and not less than 7 days prior to the departure a detailed itinerary and contact details for the child whilst away;
24.2.During any overseas holiday, the mother ensure the child telephone calls (or such other electronic communication) the other parent on not less than each 6^th day; and
24.3.The mother to only exercise this right on 2 occasions in each calendar year.
That notwithstanding any other provision in these Orders to the contrary, from the conclusion of Term 3 in 2021 each of the parties be at liberty to take the child for holidays overseas during their part of each school holiday period on the following terms:
25.1.They give the other parent at least 4 weeks’ written notice of the intended overseas travel and not less than 7 days prior to the departure a detailed itinerary and contact details for the child whilst away;
25.2.During any overseas holiday, the travelling parent will ensure the child telephones the other parent on not less than each 6^th day.
That both parents do all things to cause the child's passport to be renewed as required to ensure the passport has at all times not less than 9 months validity, and each of the parties pay the costs of any such renewal equally.
That the wife hold the child's passport at all times except for when the child is travelling with the father overseas in accordance with these orders, in which case the wife shall provide the child's passport to the father not less than 7 days prior to the date of departure and the father shall return the child's passport to the wife within 4 days of the child's return to The Commonwealth of Australia.

Schooling

The parties do all things and sign all documents necessary to cause the child to be enrolled at and attend the FF School commencing from Term 1 in 2018.

Communication

That should there be any dispute arising between the parents in relation to any matter regarding making a decision or the parenting of the child, the parties shall consult with Mr HH or such other person agreed between them to assist them in making decisions and co-parenting.

Property Orders

The Trustees of the Super Fund, being the husband and the wife, by this Order acknowledges it has been given sufficient notice and has been afforded procedural fairness in the making of these Orders.
Within 14 days of the date of these Orders and contemporaneously:
30.1The husband and the wife shall do all acts and things and execute all documents necessary to divide the sale proceeds as follows:
30.1.1to pay to the wife the sum of $1,521,819.00.
30.1.2to pay to the husband the sale proceeds remaining after the payment pursuant to Order 30.1.1 (in the amount of $1.014,981 plus interest accrued up to the time of payment);
30.2The parties shall do all acts and things and sign all documents in order of priority necessary to:
30.2.1Cause the balance in the joint bank account to be divided equally;
30.2.2cause the joint bank account to be closed;
30.3The husband shall do all acts and things and execute all documents necessary to:
30.3.1release the wife from any personal guarantee she may have given in relation to any loan related to any of the Entities;
The husband by this Order indemnifies and keeps the wife indemnified against any action, claim, suit, demand and/or liability of any nature:
31.1which the wife has at any time, in the past, now, or in the future, arising in respect of any of the Entities, whether:
31.1.1by reason of the wife having been an employee, director, officer and/or shareholder of any of the Entities, including but not limited to any taxation liability arising in the wife's name relating to any transaction, distribution, dividend or payment of any kind received or receivable from any of the Entities;
31.1.2pursuant to any guarantee given by the wife in respect of any of the Entities;
31.1.3by reason of any monies being receivable or received by the wife from any of the Entities;
31.2which the wife has at any time, in the past, now, or in the future, arising in respect of the husband whether:
31.2.1arising out of, or in connection with, the husband's interest in any business or real property;
31.2.2any taxation (including Capital Gains Tax); and
31.2.3all duties (including stamp duty);
31.2.4arising out of, or in connection with, the husband's interest in any of the Entities;
31.2.5arising in respect of any asset or interest in of the Entities or received by the husband pursuant to these Orders or otherwise.

Superannuation

In accordance with Section 90MT(1)(a) of the Act and in order of priority:
32.1a base amount be allocated to the Wife being all of the wife's interest in the Super Fund, as required by s90MT(4) of the Act and the Court declares the Wife's base amount to be $138,585 ["Wife's Base Amount"];
32.2the Wife's entitlement, and the entitlement of such other person to whom a splittable payment may be made to the first payment out of the Wife's interest in the Super Fund, be hereby correspondingly reduced;
32.3this Order have effect from the operative date, being 4 days from the date of the making of these Orders;
32.4the Trustee of the Super Fund do all acts and things and sign all documents necessary to:
32.4.1calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations, the entitlement created by Order 32.1 and Order 32.2 above; and
32.4.2pay the entitlement when a splittable payment first becomes payable out of the Wife's interest in the Super Fund.

In order to give effect to these Orders relating to superannuation split, the husband and wife as trustees of the Super Fund as soon as practicable implement the superannuation roll over and transfer provided for under these Orders, in accordance with the Rules of the relevant Trust Deed of the Super Fund hold a meeting:
33.1to note receipt of the request by the wife to transfer her benefit to another complying superannuation fund;
33.2to note receipt of the election by the husband to hold the remaining benefits in the Super Fund in his sole name;
Before the close of the meeting of the Trustees of the Super Fund, the wife do all acts and things and sign all such documents as may be necessary to:
34.1sign the Tax Returns and Financial Statements for the Super Fund for the financial year ended 30 June 2016;
34.2resign her membership from the Super Fund and
34.3resign as a Trustee of the Super Fund;
Subject to any other order to the contrary, the wife be solely, legally and beneficially entitled to the exclusion of the husband, to all other real and personal property of whatsoever nature and kind as is in her ownership, possession and/or control as at the date of these Orders, or to which she may become entitled after the making of these Orders including but not limited to:
35.1The wife's interest in the wife's property;
35.2The wife’s superannuation entitlements;
35.3the wife’s bank accounts;
35.4The wife’s motor vehicles;
35.5All furniture, contents and fittings and fixtures located in the wife's property; and
35.6All jewellery and effects held in the wife’s possession or control.
Subject to any other order to the contrary, the husband be solely, legally and beneficially entitled to the exclusion of the wife, to all other real and personal property of whatsoever nature and kind as is in his ownership, possession and/or control as at the date of these Orders, or to which he may become entitled after the making of these Orders including but not limited to::
36.1      The Husband's companies;
36.2      The husband’s bank accounts;
36.3      The husband's motor vehicle;
36.4      All furniture effects in the husband's possession.
From the date of the [sic] these Orders, the wife do all acts and things necessary to indemnify, and keep indemnified, the husband from and against all liabilities, claims, actions, suits or demands of whatsoever nature arising in the wife’s sole name in respect of the wife's property or loans secured over that property.
Except as any paragraph comprising these Orders provides to the contrary, each of the parties releases the other from all actions, claims, suits, demands and debts from one to the other.
The parties do all acts and things necessary and give all consents to and execute all documents and writings to give effect to these Orders in the time periods prescribed.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Family Court of Australia at Sydney is appointed pursuant to Section 106A of the Act, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
That the husband pay the wife's costs.

FATHER

PARENTING

That all previous Interim Orders be discharged.
That the child X born …2013 (“the child”) live with the Mother.
That the parents have equal shared parental responsibility for the child.
That from the date of these orders until such time as the Father completes and [sic] an anger management course such as Life Supports 12 week course of [sic] a similar course (“the anger management course”) that the Father spend time with the child as agreed and failing agreement follows:
In Week One:
4.1. For four (4) hours on Tuesday at such times as agreed between the parties and failing agreement from 1.30pm to 5.30pm;
4.2. For four (4) hours on Thursday at such times as agreed between the parties and failing agreement from 1.30pm to 5.30pm;
In Week Two:
4.3. On a Tuesday for four (4) hours at such times as agreed between the parties and failing agreement from 1.30pm to 5.30pm;
4.4. On a Sunday for four (4) hours at such times as agreed between the parties and failing agreement from 1.30pm to 5.30pm
4.5. That the Father's time with the child be supervised at all times by the nanny, with the costs of the nanny to be paid by the Mother.
That upon the Father’s completion of the anger management course and within 24 hours of the Father providing to the Mother the certificate of completion, the Father spend time with the child as agreed and failing agreement as follows:
5.1~~From the commencement of the these Orders~~ For a period of four (4) weeks as follows:
5.1.1.From 8.00am to 5.00pm each Tuesday; and
5.1.2.From 8.00am to 5.00pm each Saturday.
5.2At the cessation of Order 4.1 above and for a period of four (4) weeks as follows:
5.2.1.From 8.00am to 5.00pm each Tuesday; and
5.2.2.From 5.00pm Friday to 5.00pm each Saturday.
5.3That from the cessation of Order 4.2 above and for a period of four (4) weeks as follows:
5.3.1.From 5.00pm each Tuesday to 7.00am Wednesday; and
5.3.2.From 5.00pm Friday to 9am each Sunday.
5.4That at the cessation of Order 4.3 above and continuing until the child attains the age of four (4) as follows:
5.4.1.From 5.00pm Friday to 9.00am Monday each week.
5.5When the child attains the age of four (4) until the child attains the age of five (5) as follows:
5.5.1From 5.00pm Thursday until 7.00am Monday in week one each alternate week; and
5.5.2.From 5.00pm Wednesday to 7.00am Thursday in week two each alternate week.
5.6 When the child attains the age of five (5) as follows:
5.6.1. From after school (or 3.00pm if a non-school day) Thursday until the commencement of school (or 9.00am if a non-school day) on Monday in week one (1) each alternate week;
5.6.2. From after school (or 3.00pm if a non-school day) Wednesday to the commencement of school (or 9.00am if a non-school day) on Friday in week two (2) each alternate week.
5.7. That when the child commences Transition school with FF School at or around age four (4), for half of every school holidays as agreed and failing agreement for the first half of all school holidays in odd numbered years and the second half in even numbered years.
That the school holidays be determined in accordance with the child’s school website and/or newsletter.
That notwithstanding Orders 4.1 to 4.6, the Father spend time with the child on the following special occasions:

Birthdays

7.1. From 9.00am to 5.00pm on the Father’s Birthday if a non-school day and from 3.00pm to 7.00pm on a school day
7.2. That in the event the Mother’s birthday falls on a day with the Father, the Father’s time with child be suspended from 9.00am to 5.00pm on the Mother’s birthday if a non-school day and from 3.00pm to 7.00pm if on a school day to allow the child to spend time with the Mother.
7.3. From 9.00am to 1.00pm on the child’s birthday if a non-school day and from 3.00pm to 7.00pm on a school day.
7.4. That in the event the child’s birthday falls on a day with the Father, the Father’s time with the child be suspended from 9.00am to 1.00pm on the child’s birthday if a non-school day and from 3.00pm to 7.00pm on a school day to allow the child to spend time with the Mother

Father’s Day and Mother’s Day

7.5. From 9.00am to 5.00pm on Father’s Day.
7.6. That in the event Mother’s Day falls during the Father’s time with the child, the Father’s time be suspended from 9.00am to 5.00pm to allow the child to spend time with the Mother.

Easter

7.7. That the child live with the Father from 3.00pm Easter Thursday until 5.00pm Easter Monday each odd numbered year and with the Mother from 3.00pm Easter Thursday until 5.00pm Easter Monday each even numbered year.

That upon the child the Father’s time being increased to two (2) overnight periods per fortnight, the Father be permitted to travel overseas with the child on the following conditions:
8.1. That the Father provides the Mother with at least two weeks’ written notice of his intention to travel with the child.
8.2. That such travel is to occur for no more than a period of fourteen (14) consecutive nights.
8.3. That the Father provides the Mother a copy of all itineraries, travel documents, contact numbers and addresses for where the child will be living with the Father.
8.4. That the Father provides the Mother with evidence of a return ticket for the child.
8.5. That the Father collects the child and travel the return trip with the child.
8.6. That the Mother release to the Father the child’s passport (if in his possession) for the purpose of the intended trip.
8.7. That the Father return the child’s passport immediately to the Mother upon the child’s return to Sydney.
8.8That the Father facilitates and encourages telephone communication between the Mother and the child as often as possible during the trip.
That the Mother be permitted to travel overseas with the child on the following conditions:
9.1. That the Mother provides the Father with at least two weeks’ written notice of her intention to travel with the child.
9.2. That such travel is to occur for no more than a period of fourteen (14) consecutive nights.
9.3. That the Mother provides the Father a copy of all itineraries, travel documents, contact numbers and addresses for where the child will be living with the Mother.
9.4. That the Mother provides the Father with evidence of a return ticket for the child.
9.5. That the Mother collects the child and travel the return trip with the child.
9.6. That the Father release to the Mother the child’s passport (if in his possession) for the purpose of the intended trip.
9.7. That the Mother facilitates and encourages telephone communication between the Father and the child as often as possible during the trip.
That from the date of these Orders until the child commences transition school, the parties are restrained from taking the child overseas more than two times each per calendar year.
That unless otherwise agreed and unless changeover occurs at the child’s school, the Father, or his nominee, is to collect the child at the commencement of his time, in accordance with these orders, from the Mother’s residence and the Mother, or her nominee, is to collect the child from the Father’s residence at the cessation of the Father’s time with the child.
That in the event the Father is unable to spend time with the child for any reason at the times pursuant to these Orders, the Father is to have make up time with the child within seven (7) days of the missed time.
That both parents are to facilitate and encourage both Facetime and telephone contact between the child and the non-resident parent as follows:
13.1. On Christmas Day morning between 8.00am and 10.00am
13.2. At least twice per week
13.3. At all other times as requested by the child.
That upon the commencement of the Father spending overnight time with the child, in the event that the Mother is unable to care for the child for a period of at least twenty-four (24) hours the Father is to be given first opportunity to care for the child during the time the Mother is unable to and the Mother shall notify the Father by text message, email as soon as she becomes aware of her unavailability to care for the child.
That in the event of a medical emergency involving the child, the party with the care of the Child is to notify the other party within 2 hours or as soon as practicable.
That in the event that the Child requires medical care, the party with the care of the child is to notify the other party of the details of such care and any treatment or medication prescribed or recommended, within 24 hours.
That both parties are at liberty to attend school events, teacher meetings, end of year and festive occasions or any other event that the child is affiliated with or participating in.
That the child be enrolled in a sporting activity that is provided by her school as per the child’s wishes.
That both parties are to provide the other party with all information and correspondence relating to any and all sporting, school, social and religious event in which the child is affiliated with or participating in within two (2) days of such notice or as soon as practicable.

That each party to do all things necessary to ensure that all schools, doctors, dentists, professional carers and any other professional involved in the care and treatment of the children are authorised at all times to communicate with and provide information and copies of documents in relation to the children to both parents.
That each party to do all things necessary to ensure the other party is kept informed at all times and in writing of the residential telephone number, mobile telephone number and residential address of the other party.

PROPERTY

That within seven (7) days, the parties to all things and sign all documents necessary to transfer the amount of $2,300,000, or an amount equivalent to effect of overall distribution of the net assets 51% to the Husband from the net proceeds of sale of the property known as and situated at N Street, Suburb H in the State of New South Wales held in joint signature account in the parties’ names with Westpac banking Corporation Limited, BSB …, account number #54 with the balance to be transferred to the Wife

Notation
A. That the payment made to the Husband equates to an equal distribution of the net matrimonial assets taking into account the funds already in the possession of each party.
B.The parties are trustees of the C self-managed superannuation fund. The Husband intends to retain the investments held within the Fund. A superannuation splitting Order is sought to transfer the entirety of the Fund to the Husband in the first instance for the Husband to then attend to transfer the cash component within the Fund to the Wife which would be rolled over into her own Fund with the Husband making a cash payment to the C Superannuation Fund to allow for an equal distribution to occur on the second superannuation splitting order.

SUPERANNUATION

Wife to transfer her entire interest in the Super Fund to the Husband for an instant (Splitting Order 1)

That in accordance with Section 90MT(1)(a) of the Family Law Act 1975:
23.1The Husband is entitled to the specified percentage, being 100% of each splittable payment made out of the Wife’s interest in the self-managed superannuation fund, C Superfund (“the Fund”);
23.2The Wife’s entitlement to the amount in her member account in the Fund is correspondingly reduced.
That Mr Bradshaw and Ms Scarlett, being the Trustees of the Fund (“the Trustees”) do all such acts and things and sign all such documents as may be necessary to:
24.1. Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement awarded to the Applicant in Order 20.1 of these Orders; and
24.2. Pay the entitlements whenever the Trustees make a splittable payment of the Wife’s interests.

Substantive Superannuation Split in favour of the Wife (Splitting Order 2)

That in accordance with section 90MT(1)(b) of the Family Law Act:
25.1That the Wife is entitled to be paid the specified percentage being fifty five percent (55%) of the Husband’s superannuation interest; and
25.2The entitlement to the Husband to payments out of his interest in the Husband’s Superannuation Fund is correspondingly reduced by force of these Orders.
25.3The Trustees of the Husband’s Superannuation Fund (“the Trustees”) shall do all things and sign all documents as may be necessary to:
25.3.1.Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001, the entitlement created for the Wife in the Husband’s Superannuation Fund by Order 22.1 of this Order.
25.3.2.Pay the entitlement whenever the Trustees make a splittable payment out of the interest of the Husband in the Husband’s Superannuation Fund.

Operative Time of the Order

The operative times for Splitting Order 1 and Splitting Order 2 operate as follows:
26.1Firstly, operative time 1 operates from the beginning of the day of the transfer of the transferable benefit; and
26.2Secondly, Operative Time 2 operates immediately following the operation of Operative Time 1.

Transfer of Wife’s Interest to Trustee of the Wife’s New Superannuation Fund

The service of this Order shall be deemed to have occurred on the date of the Order by reason of the Parties in their capacity as directors of the trustee corporation and the Court notes that this will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations 1994.
That after service by the Trustee, on behalf of the Super Fund, of the payment split notice in accordance with regulation 7.03 of the Superannuation Industry (Supervision) Regulations 1994 in accordance with the operating standards under the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such acts and things and sign all necessary documents as may be necessary, including but not limited to exercising her request in accordance with regulation 7A of the Superannuation Industry (Supervision) Regulations 1994 (“the Wife’s regulation 7A.06 request”) for the transfer of the transferable benefits (defined in regulation 1.03 of the Superannuation Industry (Supervision) Regulations 1994) from the Super Fund to the Wife’s interest in a complying superannuation fund nominated by the Wife (“the Wife’s New Super Fund”).
That the Husband and Wife as directors of the trustee corporation shall convene a meeting by exchange of minutes within fourteen (14) days after receipt of the Wife’s regulation 7A.06 request and in that meeting do all such acts and things and sign all documents as may be necessary to authorise the transfer of the transferable benefit in accordance with regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 to the trustee of the Wife’s New Super Fund by way of the following:
29.1The transfer of all right, title and interest in the Wife’s entitlement pursuant to Order 22.1 from the Trustee of the Super Fund to the trustee of the Wife’s New Super Fund; and
29.2The transfer of sufficient cash from the Trustee of the Super Fund to the trustee of the Wife’s new Super Fund to meet the balance of the Trustee’s liability in accordance with Splitting Order No 2 and the directors shall do all such things as may be necessary to sell or otherwise liquidate other investment property of the Super Fund to obtain the necessary cash referred to hereon.
And it is noted that the Trustee of the Super Fund will be eligible for Capital Gains Tax Rollover relief in accordance with Sections 126 to 140 of the Income Tax Assessment Act 1997 for any in specie transfers.
That immediately following the transfer of the transferable benefits from the Husband’s interest in the Super Fund to an interest in the name of the Wife in the Wife’s New Super Fund, the Wife shall do all such things and sign all documents necessary to resign:
30.1As a director of the trustee corporation; and
30.2As a member of the Super Fund.
in accordance with the Rules of the Super Fund.
That contemporaneously with the Wife’s compliance with the provisions of Order 27 of this Order, the Husband will indemnify and keep the Wife indemnified against all liability of an [sic] in relation to the Super Fund including any debt personally guaranteed by the Wife and including any unpaid income tax assessed or hereinafter assessed against the Wife in respect of income derived or deemed to have been derived by the Super Fund inclusive of interest, penalties, costs and fines and from all proceedings, costs, claims or demands in respect thereof.
That in the event of any dispute arising between the Parties in the exercise of their powers as Trustees of the Super Fund, the Parties shall appoint an arbitrator nominated by the Institute of Chartered Accountants.
That pending the transfer of the transferable benefits from the Husband to the Wife and from the Wife to the Husband:
33.1Each Party is restrained from dealing with, charging, encumbering and disposing of any investment property of the Super Fund other than in accordance with the terms of this Order; and
33.2Each Party shall immediately revoke any binding death benefit nomination already made and each party be, and is hereby, restrained from:
33.2.1.making any binding death nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
33.2.2.making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
33.2.3.doing any such act or thing which would defeat, extinguish or reduce the entitlement of either Party under this Order.
That except as provided for in these Orders, each party is to otherwise retain all property, resources including superannuation in their possession, custody and/or control.
That save and except as to these Orders provides to the contrary, each of the parties shall, by these Orders, mutually release the other from all debts owing from one to the other.
That in the event that either party refuses or neglects to execute a Deed and/or Instrument in compliance with the provision of these Orders, the Registrar of the Family Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all Deeds and/or Instruments in the name of the defaulting party and do all acts and/or things necessary to give validity and operation to the Deed and/or Instruments.
That pursuant to Section 81 of the Act these Orders are intended to operate to end all financial relationship including spousal maintenance between the parties and are an attempt to avoid further proceedings between them.

[2018] FamCA 982

22 November 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Fiduciary Duty

Consent

Constructive Trust

Remedies

Costs