SEAFORD & PAINE-SEAFORD
[2008] FMCAfam 922
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEAFORD & PAINE-SEAFORD | [2008] FMCAfam 922 |
| FAMILY LAW – Children – equal shared parental responsibility – substantial and significant time – parental conflict. FAMILY LAW – Property – contributions – s.75(2) factors. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Telecommunication (Interception & Access) Act 1975 |
| Goode & Goode (2006) FamCA 1346 McIntosh J & Chisholm, R, 2008, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research Australian Family Lawyer Vol 20, No 1, 3-16 |
| Applicant: | MR SEAFORD |
| Respondent: | MS PAINE-SEAFORD |
| File Number: | ADC 814 of 2007 |
| Judgment of: | Kelly FM |
| Hearing dates: | 7, 8 & 29 May 2008 & 3 June 2008 |
| Date of Last Submission: | 3 June 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bowler |
| Solicitors for the Applicant: | David Burrell & Co |
| Counsel for the Respondent: | Ms M Ross |
| Solicitors for the Respondent: | Clelands |
ORDERS
Children
The parties share equally in parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2003.
[X] and [Y] live with the wife save as otherwise specified in these orders.
[X] and [Y] live with the husband as follows:
(a)During school terms:
(i)on each alternate Thursday from the conclusion of school or 4.00pm until the commencement of school or 9.00am on Friday commencing 11 September 2008 and recommencing on the second Thursday in each school term thereafter;
(ii)on each alternate weekend from 6.00pm Friday until the commencement of school or 9.00am on Monday (or Tuesday in the event Monday is a public holiday) commencing Friday 5 September 2008;
(iii)upon [Y] commencing school then on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday in the event Monday is a public holiday);
(iv)commencing in the 2009 school year, on alternate weekends from the conclusion of school Thursday until the commencement of school on Monday (or Tuesday in the event Monday is a public holiday) commencing on the first Thursday in each school term;
(b)For one half of each school holiday period at times to be agreed between the parties and in default of agreement:
(i)for the first half of each short school holiday period commencing at 6.00pm on the last day of the school term and concluding at 6.00pm on the Saturday one week following;
(ii)for the Christmas 2008 school holidays from 6.00pm on the last day of the school term until 6.00pm on the Friday one week following and from 6.00pm on Friday 2 January 2009 until 6.00pm Friday 16 January 2009;
(iii)for the second half of the Christmas 2009 school holidays and each alternate year thereafter;
(iv)for the first half of the Christmas 2010 school holidays and each alternate year thereafter.
[X] and [Y] spend time with the each parent on special occasions as follows:
(a)on Christmas Day each year at times to be agreed between the parties;
(b)on the children’s birthdays each year at times to be agreed;
(c)with the father from 9.30am until 5.00pm on Father’s Day;
(d)with the mother from 9.30am until 5.00pm on Mother’s Day;
(e)on other occasions as may be agreed between the parties.
[X] and [Y] communicate with the father by telephone twice each week for up to 15 minutes in total on each occasion.
[X] and [Y] communicate with the mother by telephone twice during each week that the children are living with the father for up to 15 minutes in total on each occasion.
Where possible all handovers take place by the children being delivered to or collected from school and where that is not possible, handovers take place inside the [omitted] Police Station.
The wife is authorised to enrol the children at [F] School commencing in fourth term 2008.
Each party is restrained from abusing or denigrating the other parent to, or in the presence of, the children and from allowing any other person to do so.
The parties do all things necessary to facilitate the children’s participation in the Anglicare “Banana Splits” programme as soon as reasonably practicable.
The mother attend the Anglicare “KidsAreFirst” as soon as reasonably practicable.
The parties forthwith participate in co-parenting counselling as recommended by Ms H.
The children’s passports be delivered up to the Family Law Courts Registry in Adelaide to be released to either parent upon the joint written request of the parties for the purpose of overseas travel, provided that the passports are then returned to the registry within seven (7) days of the children’s return to Australia.
Each party is liberty to travel interstate with the children upon giving the other party at least seven days written notice of the proposed trip, to include full details of the itinerary, destination and contact details for the children whilst interstate.
Each party is at liberty to travel overseas with the children on the following conditions:
(a)the travelling parent give the other parent at least six weeks written notice of the proposed trip, to include full details of the itinerary, destination and contact details for the children whilst overseas;
(b)each party do all things necessary to enable the children’s passports to be released to the travelling parent;
(c)the parent intending to travel overseas with the children (or either of them) shall deposit the sum of TEN THOUSAND DOLLARS ($10,000) into a bank account in the joint names of the parties at least fourteen days prior to departure as security for the children’s return to Australia;
(d)each party is restrained from withdrawing the funds from the joint account, save as specified in this order;
(e)the funds shall remain in the joint account until the children have returned to Australia in accordance with the itinerary provided;
(f)the funds are to be released to and may be withdrawn by the travelling parent upon the children’s return to Australia; and
(g)in the event the children are not returned in accordance with the proposed itinerary then the deposited funds may be released to the non travelling parent in accordance with any order of the Court.
In the event the mother wishes to travel overseas at short notice on account of a family emergency, she shall provide as much notice to the father as possible and shall otherwise comply with paragraph 15 of these orders with respect to providing a travel itinerary and financial security.
Property
The net proceeds of sale of the former matrimonial home be disbursed as follows:
(a)as to the wife in the sum of ONE HUNDRED AND FORTY THOUSAND DOLLARS ($140,000);
(b)as to the husband in the sum of FIFTY NINE THOUSAND, FIVE HUNDRED AND FIFTY NINE DOLLARS AND SIXTY ONE CENTS ($59,559.61).
The husband retain the following property free from any claim by the wife:
(a)his motor vehicle;
(b)all moneys standing to his credit in any bank or financial institution;
(c)the assets of the [S] Family Trust;
(d)all furnishings and household effects; and
(e)his estate and interest in the [Mr Seaford] Superannuation Fund save as otherwise specified in paragraph 22 herein.
The wife retain the following property free from any claim by the husband:
(a)her motor vehicle;
(b)all moneys standing to her credit in any bank or financial institution;
(c)all furnishings and household effects; and
(d)her interest in any superannuation fund, including but not limited to, her interest pursuant to paragraph 22 of these orders.
The husband indemnify the wife with respect to all debts and liabilities in his sole name including, but not limited to, any personal loans, credit accounts, store accounts and any liabilities arising under the [S] Family Trust.
The wife indemnify the husband with respect to all debts and liabilities in her sole name including, but not limited to, any personal loans, credit accounts and store accounts in her name.
In accordance with s.90MT(1)(a) of the Family Law Act 1975 whenever the Trustee of the [Mr Seaford] Superannuation Fund makes a splittable payment out of the husband’s interest in the [Mr Seaford] Superannuation Fund, the Trustee shall:
(a)pay to Ms Paine-Seaford or to her administrators, executors, beneficiaries, heirs or assigns, the amount calculated in accordance with the Regulations using a base amount equivalent to forty two percent (42%) of the total value of the [Mr Seaford] Superannuation Fund less TWENTY TWO THOUSAND, SEVEN HUNDRED AND TWELVE DOLLARS ($22,712.00) (or such other sum as represents the wife’s present personal interest in the fund);
(b)
make a corresponding reduction in the entitlement that
Mr Seaford would have had in the [Mr Seaford] Superannuation Fund but for this order; and
(c)this order has effect from the operative time being the fourth business day after the service of these orders upon the Trustee.
If either party fails to take the necessary step in accordance with these orders, a Registrar of the Federal Magistrates Court at Adelaide is appointed and empowered, pursuant to s.106A of the Family Law Act 1975 to execute all documents and perform all acts necessary to implement the terms of these orders.
Liberty to apply with respect to ancillary orders.
IT IS NOTED that publication of this judgment under the pseudonym Seaford & Paine-Seaford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 814 of 2007
| MR SEAFORD |
Applicant
And
| MS PAINE-SEAFORD |
Respondent
REASONS FOR JUDGMENT
Mr Seaford and Ms Paine-Seaford separated on 19 December 2006. They have been unable to reach agreement about the care arrangements for their two children [X] aged 7 years and [Y] aged 4 years or resolve financial issues arising from the break down of their marriage. It falls to the Court to determine these issues.
Background
The husband was born in 1958 and is 49 years of age. The wife was born in [omitted] in 1971 and is 36 years of age. The parties began living together in 1993, while the husband was working in [omitted]. They married in New Zealand on [omitted] 1996 before moving to Australia in September 1996 to pursue the husband’s career.
Prior to their relationship commencing, the husband owned various assets including a house at [R], two investment properties in Queensland and an investment portfolio.
Across the early years of the marriage the husband sold the [R] property and discharged various liabilities in his name at that time. In 1997 the husband left his employment with [omitted] and received a redundancy payment of $116,000. He rolled over those funds into a self managed superannuation fund known as the “[Mr Seaford] Superannuation Fund”. The parties are trustees of the Fund. He also established a Discretionary Trust, the [S] Trust, with an initial deposit of $114,400 along with another entity, the [Mr Seaford] Trust with a corporate trustee, [A] Pty Ltd. The husband and wife were directors and shareholders of [A] Pty Ltd.
The parties then established a [omitted] business. In addition to this business the husband undertook training as a [omitted]. In June 1999 the family moved to Darwin where the husband was [occupation omitted]. His career then took the family to Brisbane where the husband obtained employment as a [omitted] in 2001.
In April 2003 the family returned to South Australia where the husband obtained employment with [omitted] for a period of six months before returning to Adelaide in October 2003. The husband worked as a [omitted] and commenced with his present employer, [omitted], in 2006.
The wife had been employed in [omitted] prior to the parties’ relationship. She resigned from her position with [omitted] to follow the husband as he moved to various locations to further his career. The wife then worked on an occasional part time basis during the marriage. She assisted in running the [omitted] business and obtained other clerical work from time to time.
The child [X] was born [in] 2001. [Y] was born [in] 2003. From August 2004 until January 2007 the wife was employed on a casual basis for the husband’s uncle, working variously as a [omitted]. She generally worked on weekends and the husband would care for the children with the assistance of the paternal grandmother. While both parties were actively involved in the children’s day to day during the marriage, I am satisfied that the wife was the parent who took on the primary responsibility in this regard, given the husband was working full time.
The husband continues to work full time. The wife is not presently engaged in paid employment, preferring to focus on her parenting responsibilities.
Across 2002 and 2003 the husband sold his investment properties and his share portfolio. In 2005 the parties purchased the former matrimonial home at [W] for the sum of $375,000. The parties contributed $145,000 to the purchase price from the proceeds of sale of the various assets along with $55,895 drawn from the [S] Trust. A mortgage of $250,000 was taken out with SunCorp Medway Bank Ltd.
Following separation the parties continued to live together in the family home at [W]. This was clearly a tense and difficult time for the parties. The husband alleges that the wife refused to speak to him. He further alleges that she removed funds from their bank accounts without his knowledge. The wife concedes this, saying she did so because the husband was not properly providing for her support.
In February 2007 the wife and children travelled to Cairns to visit her family. She did not inform the husband of her plans. The wife says it was untenable with both parties living together in the former matrimonial home. The husband issued proceedings seeking the immediate return of the children. The wife returned with the children to Adelaide prior to the first return date of the husband’s application.
On 16 March 2007 the parties consented to orders that the children live with the wife during the period of the adjournment and spend time with the husband on alternate weekends from 6.00pm Friday until 9.00am Monday and on alternate Wednesdays from 5.00pm until 7.30pm, in addition to school holiday and telephone communication.
On 4 June 2007 the parties consented to orders for this arrangement to operate until further order. This parenting regime has continued pending the outcome of the final hearing. The parties also agreed to sell the former matrimonial home and settlement proceeded on 11 May 2007. The parties received net proceeds of sale in the sum of $199,559 which were deposited into the conveyancer’s trust account. The wife is presently living in rental accommodation and the husband is living with his parents.
History of proceedings
The husband’s application commenced in the Family Court on 14 February 2007. He filed an Amended Application on 20 March 2007. The wife filed her Response in the Family Court on 15 March 2007 and her Amended Response on 10 May 2007. The proceedings were transferred to the Federal Magistrates Court by consent of the parties on 28 August 2007. The application was adjourned in October to await preparation of Ms H’s family report which became available on 15 October 2007.
On 2 November 2007 the matter was listed for trial with hearing dates allocated on 7 and 8 May 2008. The trial was adjourned part heard, with further evidence on 29 May and final submissions on 3 June 2008.
The husband relied upon the following documents:
(a)Amended Application filed 20 March 2007;
(b)Husband’s trial Affidavit filed 16 April 2008;
(c)Husband’s Financial Statement filed 16 August 2007;
(d)Affidavit of paternal grandmother Mrs S filed 16 April 2008;
(e)Affidavit of paternal grandfather Mr S filed 16 April 2008;
(f)Affidavit of the husband’s employer, Mr Z filed 16 April 2008;
(g)Affidavit of D C Burrell sworn 1 May 2008 annexing report of Dr H.
The wife relied upon the following documents:
(a)Amended Response filed 10 May 2007;
(b)Wife’s trial Affidavit filed 11 April 2008;
(c)Wife’s Financial Statement filed 15 April 2008.
Both parties were cross examined. The only supporting witness required for cross examination was the paternal grandmother. Both parties cross examined Ms H.
As the outcome of the parenting dispute between the parties is a relevant factor in determining the financial issues, I will rule on the children’s issues first before turning my attention to financial issues.
Children’s issues
Legal principles
When making a parenting order the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision making responsibilities. This section focuses upon the importance of parents having a meaningful involvement in the children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties so that children can achieve their full potential.
Section 60CC then sets out the factors the Court must consider in determining what parenting arrangements will be in the children’s best interests. The Full Court in Goode & Goode[1] concluded that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.
[1] (2006) FamCA 1346, para.10
Section 60CC is divided into primary considerations and additional considerations. The primary considerations focus on the importance of children having a meaningful relationship with both of their parents and upon the need to protect children from the physical or psychological harm that can follow from being subjected to, or exposed to abuse, neglect or family violence. There are thirteen additional considerations in s.60CC(3) which must be taken into account and I will address these considerations further. I must also consider the extent to which each party has fulfilled or failed to fulfil their parental responsibilities (s.60CC(4)).
The Court must also consider s.61DA when making a parenting order. This section presumes that it is in the children’s best interests for their parents to share equally in parental responsibility. If an order for equal shared parental responsibility is made, this triggers the effect of s.65DAA. This section requires the Court to consider whether the children should spend equal time living in each parent’s household, assuming such an outcome is reasonably practicable and in the children’s best interests.
If equal time is not appropriate then the Court must still consider whether the children should spend substantial and significant time in the care of each parent (which is defined as time that includes week days, weekends and holidays). Section 65DAA(5) defines how the Court determines whether an order for equal time or substantial and significant time is reasonably practical having regard to:
“(a) how far apart the parents live from each other;
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
The parties’ proposals
The parties consent to an order for equal shared parental responsibility and I am satisfied this order is appropriate and in the children’s best interests.
The husband seeks further orders as follows:
(1)[X] and [Y] live with the parties on alternate weeks with handovers at the conclusion of school each Friday.
(2)The children spend time with each party on special occasions as may be agreed.
(3)The children communicate by telephone with the party with whom they are not living between 6.30pm and 7.30pm each Monday, Wednesday and Friday.
(4)The parties forthwith participate in co-parenting counselling.
(5)The parties facilitate the children’s attendance and participation in the Anglicare Banana Split programme.
(6)The children spend a three week block with each parent during the Christmas school holidays.
(7)The children continue at their present school or alternatively attend a school equidistant between the parties.
(8)The children’s passports be delivered to the Registry of the Court.
(9)The parties are restrained from removing the children from South Australia without the prior written consent of the other parent.
(10)The wife is restrained from applying for New Zealand citizenship.
(11)The children’s names be placed on the Pass Alert system in place at airports and all points of departure from the Commonwealth of Australia.
The wife seeks the following orders:
(1)The children live with her.
(2)The children spend time with the husband as follows:
(a)during school terms:
(i)each alternate weekend from 6.00pm Friday to 9.00am on Monday (or 9.00am Tuesday if a public holiday Monday) recommencing on the first weekend of each school term;
(ii)each intervening Wednesday from 5.00pm until 7.30pm recommencing on the first Wednesday of each school term.
(b)during the short school holiday periods from 6.00pm on the last day of the school term until 6.00pm on the Saturday of the middle weekend of the holiday period.
(c) for one half of the Christmas school holiday periods at times to be agreed between the parties consisting of one period of fourteen (14) days and another period of seven (7) days.
(3)The children communicate with the husband by telephone once each week for between 5 and 10 minutes per child.
The wife agrees the children should spend time with each parent on special occasions. She seeks the Court’s permission to enrol the children at [F] School and seeks orders to enable the children to travel interstate and overseas.
Section 60CC(2) – primary considerations
The parties agree that [X] and [Y] enjoy a loving and meaningful relationship with each parent. While both parties are critical of the other party’s parenting, there is no dispute about the importance of the children’s relationship with each parent. This is confirmed in Ms H’s report where she says (at page 20):
“[X] (6 ½ years) and [Y] (4 years) at the time of the assessment both reported and presented as having strong attachment relationships with each of their parents (3b). This was evidenced by their reports regarding activities enjoyed with each parent, their responses on the Family Relations Test and positive child/parent interactions observed in play sessions.”
There is no evidence to suggest that the children are being exposed to abuse, neglect or family violence in the care of either parent. The husband raises numerous concerns about the wife’s parenting but for the reasons discussed below, I do not accept his submissions in this regard. Accordingly, in assessing the additional considerations in s.60CC(3), I pay particular attention to the importance of both girls maintaining a meaningful relationship with each parent.
While the parents are very different in terms of their personality, parenting style and cultural background, the children have clearly established a significant relationship with each parent and benefit from the parenting they receive from their father and their mother.
Additional considerations
Section 60CC(3)(a) – the children’s views
Limited weight can be attached to the children’s views, given their young ages. Ms H was satisfied that neither party was deliberately influencing the children in the assessment process. She noted that [X] was reluctant to discuss some issues, but Ms H said (at page 21):
“…This is not unexpected where she has been privy to adult conflict, inappropriate adult conversation and/or questioning, and experiences split loyalty.”
Section 60CC(3)(b) – nature of the children’s relationship with each parent and other significant adults
As indicated, the children clearly enjoy a strong and loving relationship with each of their parents. At present, the husband is residing with his parents and accordingly the children regularly spend time in the care of the husband and their paternal grandparents. The grandparents participated in the family assessment and Ms H had no hesitation in confirming that the girls “… impressed as closely attached to their paternal grandparents.”
The wife’s extended family lives away from Adelaide. Her father remains in [omitted]. Her brother and his family live in Queensland. The maternal grandmother lived with the wife and girls for a period of time in 2007. Sadly, the maternal grandmother has developed dementia and is now living in an aged care facility in New Zealand. While the children have had limited opportunities to spend time with their extended maternal family I am satisfied the wife is able to ensure the children will maintain a relationship with her family in the future.
Section 60CC(3)(c) – each party’s willingness to facilitate the children’s relationship with the other parent
The husband believes that the wife wants to “spoil” his relationship with the children. He says she has abused and criticised him and his parents in the presence of the children and that she has undermined or disrupted the children’s telephone calls with him.
The wife makes similar allegations. She says the husband’s whole attitude towards her, her family and her culture is hostile and derogatory. It is an attitude which he and his parents communicate to the children which she says undermines their relationship with her and with their extended maternal family.
At times each parent has exposed the children to their hostility towards the other parent. This reflects poorly on both parties. However they have now had the benefit of Ms H’s report and her evidence in this trial. They will both have attended the KidsAreFirst parenting programme in the near future. I am confident they now understand their responsibility to support and encourage the children’s relationship with the other parent.
Both parents are putting forward sensible proposals regarding the children’s future time in the care of the other parent. While their proposals differ, this reflects their different perception of the children’s long term best interests, not an intention to undermine the children’s relationship with the other parent.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances
The husband is proposing a change to a week about care arrangement. Ms H does not support this outcome. She said (at page 21):
“With regard to the effect of a possible change on [X] and [Y] (3d), extended care e.g. (week about) away from their mother is not advised since Ms Paine-Seaford has been the primary carer and this is not advised for children under school age, who manage better with a split week arrangement. In circumstances where Mr Seaford is not available to provide primary care it remains preferable that the girls continue living for the greater period of time with their mother. Extending the current visitation arrangements to five nights per fortnight, is however supported where the girls stay for an extended weekend e.g. Thursday afternoon to Monday morning and for a midweek overnight stay on the intervening Wednesday.”
The husband has responded to Ms H’s concerns regarding his availability. His employer has filed an affidavit confirming that the husband can commence work at 9.15am and conclude at 2.45pm on week days, enabling him to deliver and collect the children from school or kindergarten. This evidence was not challenged by the wife although she continues to doubt the husband will actually be available for the children at the relevant times.
The husband also noted that both children will be of school age once [Y] turns five in [omitted] 2008. When asked whether the husband’s evidence would change her opinion, Ms H noted she was still concerned about the parents’ poor communication. She was not confident that the parents could manage the degree of co‑operation necessary to implement an equal time parenting arrangement.
In a general sense, neither parent is proposing changes that will impact upon the children’s relationship with the other parent or extended family members. Both parties propose that the children will continue to spend regular time in the care of the other parent.
The wife is proposing a change of school for the children. Presently [X] is enrolled at [B] School. The wife wants to enrol the children at [F] School which is substantially closer to her home. While a change in school or kindergarten would require some adjustment for [X], I do not consider this to be a significant factor in my determinations. I will address the schooling issue further in these reasons.
Section 60CC(3)(e) – practical difficulty and expense
The parties presently live approximately 20kms apart but they have managed the existing parenting arrangements and the children are generally delivered to the other parent on time. Therefore this factor does not weigh in my determinations.
Section 60CC(3)(f) – each parent’s capacity to provide for the children’s emotional and intellectual needs; section 60CC(3)(i) – the attitude each parent demonstrates to the children and to the responsibilities of parenthood; and section 60CC(4) and (4a) – the extent to which each party has fulfilled or failed to fulfil their responsibilities as a parent particularly having regard to events that have occurred since separation
It is convenient to discuss these considerations together as they are inter-related. The husband is critical of the wife’s parenting skills. He says she lacks pride in her home environment and that the standard of tidiness and cleanliness within the wife’s home is seriously lacking.
He is concerned that she does not impose regular bed times for the children and has no daily routine for them. This leads to the girls arriving late to school and kindergarten on a regular basis. He says that the wife imposes unrealistic discipline upon them and that she chastises the girls if they speak positively about him or his parents.
The paternal grandmother believes the wife is mentally abusing the children and was highly critical of the wife’s level of housekeeping, her lack of punctuality and her lack of daily routine for the children. I place very limited weight on the paternal grandmother’s evidence. She was extremely hostile towards the wife while giving evidence. I consider the paternal grandmother is unable to view the wife in an objective, even handed manner.
The wife denies the husband’s allegations. While she conceded that [X] was delivered late to school on some days, she claimed that it was generally by a minute or two, which she did not see as a problem. However, the wife agreed that this could be unsettling for [X] if it disrupted her school day. The wife disputed that her home was messy or dirty. Rather, she saw these criticisms as an example of the hostile attitude displayed by the husband and his parents towards her.
The husband concedes that some of the differences between the parties are simply differences in parenting style. He has always been highly organised and extremely punctual whereas the wife takes a more laisse faire approach to day to day household management.
Having heard the parties and the paternal grandmother, it is clear that the parents have a different parenting style. This is not a criticism of either parent. I do not consider the husband’s criticisms of the wife are significant, nor do I accept that the wife’s day to day parenting is as neglectful as he suggests. Insofar as the husband is proposing a week about shared care regime, presumably he accepts that [X] and [Y] are not at risk in the wife’s care. This suggests that he does not place great weight on these concerns, at the end of the day.
A significant aspect of parental responsibility is the parties’ capacity to communicate with each other. It is clear from the evidence before me that the parents lack this capacity at the present time. I will address a number of specific incidents that have arisen between the parties since their separation which best convey their poor co‑parenting relationship and their inability to communicate productively about the children.
Wife’s removal of the children to Queensland in February 2007
The wife argues that her actions were appropriate as she was removing the children from the conflict in the family home. That may be so, but her decision to travel interstate with the children without the father’s knowledge was inappropriate. The wife remedied the situation by returning the children promptly to Adelaide. However, her actions certainly added to the atmosphere of hostility and distrust between parties.
Father’s Day 2007
The parties gave extensive evidence about the events that occurred on Father’s Day 2007. The children spent the day in the husband’s care and were to return to the wife in the late afternoon. Both parties agree that [X] became distressed and would not leave her father’s car. The wife says the husband and paternal grandmother exacerbated the situation rather than settling and reassuring [X].
The husband became concerned that [X] may have been suffering some sort of seizure and drove her to the [omitted] Medical Centre. The wife followed. Whilst at the hospital the husband and the paternal grandmother tried to keep the wife away from [X]. They asked security staff to remove the wife from the waiting area. The husband denied raising his voice or abusing the mother in front of [X]. Having heard both parties’ evidence I conclude that the husband did abuse and denigrate the mother and that [X] would have been aware of the conflict between her parents. The whole incident must have been very distressing for [X].
[X] was eventually discharged from hospital with no medical issues identified. To the wife’s credit, she did not insist [X] return to her care that night as it was late and [X] was clearly overtired. The husband agreed to return [X] to the wife at 8.30am the following morning. However he failed to do so and kept [X] with him across the Monday morning. He then sought advice from the Australian Federal Police and from staff at the Commonwealth Law Courts building in Angas Street, as he was reluctant to return [X] to the wife. [X] accompanied the father to these agencies. Eventually [X] was returned to the wife’s care in the late morning, after police intervention.
The husband agreed that his behaviour towards the wife at the hospital was inappropriate. He agreed that his behaviour in taking [X] with him the next morning was also inappropriate. He conceded that his actions would have conveyed a negative message to [X] about her mother. He acknowledged that he was not really thinking about the consequences for [X] at the time.
Husband’s telephone communication with the children
The current orders provide for thirty minute telephone calls between the husband and the children. Upon receiving Ms H’s report in November 2007, it became clear that the children find this arrangement onerous at times. The parties agreed to institute shorter telephone calls, in accordance with Ms H’s recommendations. However after a period of time the husband insisted on reverting back to strict compliance with the orders. His insistence suggests that the husband has lost sight of the children’s interests in this regard.
The husband further acknowledged that he has criticised or undermined the wife during the telephone calls. I do not intend addressing each and every allegation put to the husband about these telephone conversations. Suffice to say the matters conceded by him do not reflect well upon his understanding of his daughters’ needs and their emotional vulnerability. His behaviour has added substantially to the atmosphere of distrust and hostility between the parents.
The husband has since attended the KidsAreFirst parenting programme through Anglicare. He says that he learned a great deal about better ways to engage with the children and with their mother in the post separation environment in which they all live. Hopefully this is the case, but the impact of his previous behaviour is nonetheless significant.
Wife’s actions in taping the children’s telephone calls
The wife gave evidence that she recorded the children’s telephone calls in late 2007, in an attempt to prove the husband was harassing the children and criticising her. She says that [X] and [Y] were unaware that she was taping the telephone calls and I accept her evidence in this regard. The wife says she was acting on advice from Ms H but I conclude that the wife misunderstood Ms H’s comments.
The wife sought to place the transcripts of the telephone calls before the Court but I declined to allow the transcripts into evidence, as the husband was unaware that the telephone calls were being taped, which is in breach of the Commonwealth Telecommunication (Interception and Access) Act 1979.
The wife’s actions illustrate the degree of distrust that had arisen between the parents. It was clearly inappropriate for the wife to be monitoring the children’s communication with the husband in this way. It was equally inappropriate for the husband to be denigrating and undermining the wife in the way he has done. While the wife’s actions were ill-advised, the husband’s behaviour had the potential to cause far greater damage to the children.
The hostility between the parties’ households
The husband and the paternal grandmother complain that the wife has been critical and hostile towards them. The wife conceded that she does not enjoy an easy relationship with the paternal grandparents but says that she is equally concerned about the hostility that the husband and the paternal grandparents display towards her.
Having had the opportunity to observe the parties and the paternal grandmother in the witness box, I conclude that all parties are at fault to some extent. However, I consider the children have been exposed to significantly more hostility in their father’s household than in their mother’s household.
Mrs S senior struggled to identify anything positive about the wife or her parenting. The husband acknowledged denigrating the wife during his telephone calls with the children. It is likely that he would have behaved in a similar manner at times while the children were in his care.
This behaviour can only be distressing for the girls. [Y] and [X] love their mother. They love their father. They love their grandparents. Each time these adults criticise or denigrate one another, the children’s loyalties are torn between the two households. This places an unacceptable emotional burden upon the girls. All of the adults, including the paternal grandparents, need to ensure that they behave respectfully towards the other significant adults in the children’s lives.
The wife is concerned that the husband intends relying upon his parents to care for the children. Medical reports have been filed regarding Mr and Mrs S and this evidence was not challenged. I do not consider the paternal grandparents’ physical health is a matter of concern.
The husband’s availability to deliver and collect the children from school has already been addressed. Even if he did need to rely upon his parents I see no real difficulty in this regard. I have no doubt that the paternal grandparents love the girls and, provided they do not continue to criticise or denigrate the wife, will play a positive role in the children’s lives.
[X]’s counselling with CAMHS
The wife has arranged for [X] to participate in counselling with the Child and Adolescent Mental Health Service to support [X] as she deals with her parents’ separation. While [X] will no doubt benefit from this counselling, the wife should have consulted with the husband or, at the very least, advised him of the arrangements. The husband only became aware of the counselling when he read about it in Ms H’s report. Both parents are entitled to be involved in major decisions about the children’s welfare. The wife’s failure in this regard has further added to the distrust between the households.
Allegations of aggressive behaviour by the husband
The wife alleges that the husband has been rude and aggressive towards her in the presence of the children. She says this aggressive behaviour has extended to her friends and neighbours and that she ultimately insisted handovers take place inside the police station, for her own safety.
The husband denies his behaviour was as difficult or constant as the wife alleges. However he acknowledges that in June 2007 he became angry and tipped the contents of [X]’s lunch box over the windscreen of the wife’s car. On another occasion the husband admits that he abused the wife and slammed a door, although he denies kicking the door.
The husband admits he had a verbal altercation with the wife’s neighbour, Mr D in April 2007, although he denies assaulting him. The husband acknowledged that he has criticised Mr D when speaking to the children and agreed that it would have been confusing for the girls to hear their father denigrating their mother’s friend in this way.
Having heard each party’s evidence on these matters, I am satisfied that the husband has behaved in a threatening and aggressive manner towards the wife and her friends on numerous occasions. I consider the husband has minimised the extent of his past aggressive behaviour. Where the parties’ evidence conflicts about this topic, I find that the wife’s evidence and her memory of these events is more reliable.
When I consider all of the evidence before me, I make the following findings about the parties’ parenting capacity and their attitude to the children and the responsibilities of parenthood:
·Both parents can provide for the children’s day to day care and their intellectual needs into the future.
·Both parents love the children. They accept the responsibilities of parenthood and are doing their best to meet those responsibilities appropriately.
·Both parents have taken every opportunity to participate in the children’s lives and to maintain their relationship with the children in a meaningful way.
·Both parents can provide appropriately for the children’s emotional needs but at times they have failed to appreciate the impact of their behaviour upon the children’s emotional welfare.
·The wife has failed to facilitate the husband participating in decisions about the children’s welfare.
·The wife has allowed her hostility towards the husband to impact negatively upon the children, at times.
·The husband has allowed his hostility to the wife to impact in a significant way upon the children and he has undermined the children’s right to a meaningful relationship with both parents.
·The husband’s aggressive and threatening behaviour has impacted upon the children both directly (by occurring in their presence) and indirectly (by causing the wife to feel frightened and intimidated).
·The husband’s behaviour has undermined the parties’ capacity to communicate openly and respectfully.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents
The children are fortunate to enjoy two diverse cultural backgrounds – the Anglo-Australian culture of their father and the [omitted] culture of their mother. By virtue of their life in Australia the children are obviously immersed in the culture and traditions of their father’s family. While the wife will play a greater role in educating the children about her culture and traditions, both parents have a role to play in supporting the children’s understanding and appreciation of their diverse cultural heritage.
The husband says that he supports and respects the wife’s [omitted] culture but his actions suggest the contrary. The husband agreed that he may have referred to the homes of the wife’s family in [omitted] as “silly houses” and “smelly” or “stinky”.
His affidavit addresses aspects of the wife’s traditional culture – for example, eating with fingers - in a way that implies the wife has failed to teach the children how to eat with a knife and fork and that she is imposing her [omitted] culture upon the children. I see no evidence to support this. The children are entitled to share their mother’s rich culture and traditions. I consider the husband’s criticisms are niggardly and demonstrate a lack of respect for the children’s [omitted] heritage.
Section 60CC(j) & (k) – family violence involving the child or a member of the child’s family; any family violence order that applies
There are no family violence orders that apply. I have already discussed the allegations of aggressive and abusive behaviour by the husband and I do not need to address this further.
Conclusion
The parties concede that an order for equal shared parental responsibility is appropriate and therefore I must consider s.65DAA. Section 65DAA requires the Court to consider making an order for children to spend equal time or substantial and significant time with each parent if such an order is reasonably practicable and in the best interests of the children. The father seeks a week about shared parenting regime.
Although the parties live some distance apart, they have been able to manage handovers and the extra requirements of school attendance. However, reasonable practicality also requires the Court to consider other issues regarding the co-parenting relationship – specifically the parents’ current and future capacity to implement an arrangement for equal time, to communicate with each other and to resolve difficulties that might arise in implementing an arrangement of that kind.
I consider there are significant difficulties in this regard. The hostility and distrust between the parties is still high. I have no confidence in their ability to resolve the day to day issues that week about shared parenting requires. I am concerned that these difficulties would result in the children being exposed to ongoing parental conflict. This would not be in the best interests of the children.
Social science research suggests that shared parenting outcomes are most successful where the parents are able to demonstrate mutual trust, effective communication and flexible co-operation.[2] This research identifies ongoing parental conflict as a significant factor that militates against a successful shared parenting outcome. In a recent article[3], McIntosh and Chisholm discuss the indicators and contra-indicators for successful shared parenting outcomes. They conclude (at page 14) that:
“When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight needs to be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security.”
The authors conclude their article with a challenging question to professionals working in the family law arena:
“Ultimately we are asking professionals to ask themselves: Will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”
It is a question that parents who find themselves before the Court should also ask themselves.
[2] Shared parenting outcomes are discussed in the following articles: Johnston JR et al, “Ongoing post divorce conflict in families contesting custody: Effects on Children of joint custody and frequent access” American Journal of Orthopsychiatry, (1989) 59, 576-92; Smyth B(ed), Parent child contact and post- separation parenting arrangements (2004) AIFS Research report No 9; A Tucker, “Children and their Suitcases”, Australian Family Lawyer (2006) Vol 18 No 4, 1-4.
[3] McIntosh J & Chisholm, R, 2008, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research Australian Family Lawyer Vol 20, No 1, 3-16
The husband cites the parties’ use of the communication book as an example of their improved communication. He is confident that once these proceedings are resolved the parties will be able to adopt a more co-operative parenting style.
The communication book was tendered and I have considered its contents. While the parties have not fallen into outright abuse or denigration in the communication book, there are numerous examples where their communication has been tense and terse. Requests were made or information sought which were ignored or deflected by the other parent.
The communication book has enabled the parties to deal with some practical issues such as the birthday parties or sharing school information. It is certainly better than no communication between the parents. However it falls a long way short of demonstrating the degree of co-parenting communication that is necessary for these parties to manage a shared care arrangement into the future.
Ms H did not support a week about parenting arrangement. She supported the parties attending co-parenting mediation in the future but felt that the parties needed to substantially improve their communication before a week about shared parenting arrangement should be considered. She also noted that the success of co-parenting mediation was less certain in circumstances where the parties have quite different parenting styles.
Ms H was further concerned that the husband was unable to make even minor changes as recommended by her, such as agreeing to shorter telephone calls with the children. She felt that this degree of inflexibility could undermine further attempts at mediation.
Taking into account all of the above, I consider an order for the children to live with each parent on an equal time basis would not be a beneficial outcome for the children. I conclude that [X] and [Y] are likely to experience week about shared care as being “deeply divided” between their parents.
The wife’s proposal meets the definition of substantial and significant time however when making parenting orders the Court is not limited to either party’s proposal. I must make orders that I consider to be in the best interests of the two girls. The children love their father and enjoy their time with him. I consider an order that allows the children to enjoy weekends as well as weekday time in their father’s care is appropriate.
Ms H recommended that [X] and [Y] live with their father each alternate week from Thursday after school until Monday morning and overnight on intervening Wednesdays, with handovers taking place to and from school, where appropriate. This was her primary recommendation.
Alternatively she proposed a slower transition by introducing an overnight stay on alternate Wednesdays before introducing the extra night on the alternate weekends. On balance I am inclined to follow the alternate proposal and take a more gradual approach.
This will allow time for the parties to commence their parenting mediation and work towards improving their co-parenting relationship. The orders will nonetheless allow the father to participate more fully in the children’s school routines in addition to the weekend activities they already enjoy with him.
I see no reason why handovers cannot take place to and from school once [Y] commences school but until that time handovers should continue at a set location, with the security afforded by the police station. Presumably the husband’s flexibility as negotiated with Mr Z will be available for those four days per fortnight when the husband will be required to collect the children from or return them to school.
There are other parenting issues to be determined. The wife seeks to enrol [X] and [Y] at [F] School which is nearby to her home and more convenient for her. Obviously this school is less convenient to the husband, at least while he is living with his parents. The husband preferred the children continue at [B] School to minimise any disruption for [X]. Having said that, I note the husband was not averse to enrolling the children at a school mid-way between the parties’ homes, in the event that the children were living week about with each parent.
Ms H supported a change of school for the girls. The husband conceded that he would eventually move out of his parent’s home and that he would be able to afford to purchase a home in the [F] area. However he was concerned that the wife may move again which would then require another change of school for [X].
There was no evidence to suggest that the wife was intending to make such a move. I have no doubt that the wife as primary care giver will endeavour to minimise any impact on the children’s schooling. It is a matter that the parties will need to discuss and resolve to their mutual satisfaction if and when it ever arises. Hopefully with the assistance of co-parenting mediation they will be better able to deal with these matters co-operatively.
In accordance with my orders, the children will be primarily living with their mother. The advantages for the children in attending a school near to their primary home are significant. It involves the children in less travel and it will generally be easier for the children to join in the social and extracurricular activities associated with their school. I will order that the children attend [F] School commencing fourth term this year.
Both parties support telephone communication between the children and the other parent. Ms H recommends that telephone calls between the children and their father should be two to three times per week for brief periods of 5-10 minutes each. The existing telephone calls have clearly been onerous for the children. [X] and [Y] are young and are unlikely to maintain a phone conversation for thirty minutes with anyone.
Ms H’s recommendation is sensible and age appropriate. Given the children will be staying overnight in each parent’s care each week I consider two telephone calls per week is sufficient. Equally the children should be able to communicate with their mother by telephone during those school holiday times when they are in the husband’s care.
The husband did not specify precise special occasion arrangements but he seemed relatively open to the proposals put forward by the wife in that regard. Both parties are willing to attend co‑parenting counselling or mediation and support the children participating in the ‘Banana Split’ programme for children of separated parents. The wife should attend at the Anglicare ‘KidsAreFirst’ programme as soon as possible.
Mutual non denigration injunctions as proposed by Ms H are clearly appropriate.
Regarding the children’s passports and overseas travel, the husband initially sought to restrain the wife from travelling overseas with the children. However, in the course of the hearing, he acknowledged that the wife’s extended family live overseas and that the children should be able to visit with extended family from time to time. The husband sought some control over that process by virtue of having the passports held by Court. Counsel for the husband urged the Court to accept the wife’s evidence that she did not oppose the children being placed on the Airport Watch List nor the passports being held by the Court.
I am satisfied that the children should be able to travel overseas to the [omitted] or New Zealand to visit their extended family. I note that the [omitted] are not a signatory to the Hague Convention on the Abduction of Children but I do not consider there is any real risk of the wife remaining in the [omitted] or New Zealand with the children. Her life has been based in Adelaide for some years now. I consider there are appropriate safeguards that can be put in place in this regard.
The children’s passports will be held by the Court to be released upon the joint written request of the parties, to enable either party to travel overseas with the children. I decline to place the children’s name on the Airport Watch List in circumstances where overseas travel is clearly contemplated. The risk of a breakdown in communication surrounding a temporary suspension of the Airport Pass Alert order is high and could be disastrous from either parent’s point of view.
I will restrain either party from travelling overseas with the children without first providing written notice to the other parent at least six weeks prior, save in circumstances where a family emergency requires the wife and children to travel overseas at short notice. The parties should exchange itineraries of any overseas or interstate travel.
In my view either party should provide financial security as a guarantee of their intention to return. I will fix a sum of $10,000 in this regard, to be paid into a joint account by the travelling parent and to be released to that parent upon the children’s return to Australia, or otherwise paid out in accordance with any order of the Court.
Accordingly I make orders as published at the commencement of these reasons.
Property settlement
Section 79 of the Family Law Act 1975 sets out the factors that the Court must consider when deciding a property settlement. Various Full Court authorities have confirmed that the Court must follow a number of discrete steps when determining any adjustment of matrimonial property[4].
[4] Lee Steere & Lee Steere (1998) FLC 91-625
First the Court must identify the assets and liabilities arising from the parties’ marriage. Once the asset pool has been identified, the Court must then assess each party’s contribution during the marriage. The relevant factors pursuant to s.79(4)(a)-(c) include the parties’ direct and indirect financial contributions, any other contribution the parties may have made to the “acquisition, conservation or improvement of the matrimonial assets” and their respective contribution to the overall welfare of the family as a whole – what is often described as the “home maker or parent” contribution.
The third step requires the Court to consider a range of factors set out in s.79(4)(d), (e), (f) and (g), including the matters set out in s.75(2) and the parties’ future needs. Finally, the Court must be satisfied that the orders to be made are just and equitable as between the parties in accordance with s.79(2). As noted by the Full Court in D & D[5]:
“… the task of the court in proceedings under s.79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions.”
[5] D & D (2003) FamCA 473
Asset pool
The parties agreed the value of most assets however there were some areas of disagreement. The husband sought to include each party’s post separation drawings from the [S] Trust which I consider is appropriate.
There is a dispute regarding the value of the wife’s 1989 Mazda Astina motor vehicle. No valuation was provided. The husband values the vehicle at $4,000. The wife values it at $2,000 which reflects the Red Book estimated valuation for such vehicles. In the absence of any better evidence I will accept the wife’s figure based on the Red Book estimation.
The wife alleged that the husband retained the net proceeds of two bank accounts to a total value of $4,141. Documentary evidence was presented to the Court showing that the husband retained the Westpac joint account in the sum of $2,484 and I will include this sum. No documentation was provided regarding the CBA joint account and I decline to include that account.
The husband argues that he owes the sum of $35,000 to his parents representing two “loans” provided to him by his father in 1983 and 1998. The husband discusses these “loans” at para.19 of his trial affidavit. The wife acknowledges that the paternal grandparents provided financial assistance but denies that these sums were loans or that there was any expectation of repayment.
There is no mention of these “loans” in the affidavit filed by the paternal grandfather. In the absence of confirmation from the paternal grandfather, I decline to accept these sums as loans that are still outstanding. However, those sums certainly represent a contribution made on behalf of the husband to the matrimonial asset pool.
The husband also sought to include his present credit card debt in the sum of $15,605. The husband conceded that this credit card debt was incurred post separation and included his legal fees. In those circumstances I do not consider the credit card should be treated as a matrimonial debt.
Accordingly the asset pool is as follows:
Proceeds of sale of former matrimonial home $199,559
Value of [S] Trust as at 26/5/2008 $35,108
Parties’ joint funds within the Mr Seaford
Superannuation Fund as at 26/5/2008 $582,999
Wife’s interest in [omitted] Superannuation $1,533
Husband’s Toyota Avalon $9,000
Wife’s Mazda Astina $2,000
Wife’s post separation drawings from [S] Trust $20,000
Husband’s post separation drawings from [S] Trust $21,764
Westpac joint account (retained by husband) $2,484
TOTAL $874,447
There are no liabilities relevant to determining the asset pool.
Each party’s contributions
The parties were married for approximately ten years. I am satisfied they each devoted their efforts to the welfare of their family unit as a whole. There is no doubt that the husband made a substantially greater direct financial contribution by virtue of the assets owned by him prior to the marriage and the financial assistance received from his family.
The husband claims that he contributed assets worth over $540,000, including assets owned at cohabitation, payments received by him from his employment and financial assistance from his parents. The wife does not accept the husband’s estimated value of the real estate and shares owned by him when the parties commenced cohabitation in 1993. The husband based the value of his real estate holdings on Council rate notices from 1993. However the [R] property valued by the husband at $94,000, was eventually sold for $90,000 in 1997. Similarly, the husband valued the block of land on [omitted] at $17,000, but agreed it was eventually sold in 2002 for $13,000.
No historical valuation evidence was provided to the Court by either party. The eventual sale prices achieved suggests some of the husband’s estimates may be overstated. However, even if the value of certain assets were lower than the husband’s estimates, the husband’s direct financial contribution is still substantial. I am satisfied that the husband’s direct financial contributions account for well over half of the value of the pool of assets now remaining to be divided. I agree with counsel that the husband has made “a walloping contribution”.
The husband worked full time during the marriage. The wife worked full time until the birth of the children and has worked part time since the children were born. Her employment opportunities clearly took second place to the husband’s career as the family moved from [omitted] in 1995 and then to various locations around Australia depending upon the husband’s employment.
While the husband earned a greater income during the marriage, the wife made an indirect contribution through her support of the husband’s career. The wife made a significant contribution to the domestic life of the family and also took on the role of primary caregiver to the children.
The husband seeks to include as a post separation contribution the mortgage payments made by him between February 2007 and May 2007, while the wife was living in the former matrimonial home. These payments were made in accordance with Court orders made by Judicial Registrar Forbes on 22 February 2007, presumably in response to the wife’s application for sole use and occupation of the former matrimonial home and interim spousal maintenance. The orders were continued by consent on 16 March 2007. In these circumstances I decline to treat the payments as a post separation contribution made by the husband.
Given the present asset pool of $874,447 and the substantially greater financial contribution made by the husband, I find that the parties’ contributions should be assessed at 65% to the husband and 35% to the wife.
Section 75(2) factors
The husband concedes there should be an adjustment in the wife’s favour on account of s.75(2) factors. The wife seeks an adjustment of 20%; the husband proposes a much smaller adjustment. I conclude that these factors favour a significant adjustment on account of the wife, but not to the extent sought by her.
Both parties are in good health. The husband is older and his years in the workforce are more limited. However he is able to earn a significantly greater income than the wife could expect to earn, even if both parties were working full time. In addition, his financial acumen should enable him to consolidate his financial position in the years ahead.
The wife was employed in [omitted] and it is likely that she could have established a successful career path if the family had remained living there. As it is, the family relocated a number of times to support the husband’s career. This benefited the family as a whole and assisted the husband in achieving his present professional status. However an unfortunate side effect was to make it more difficult for the wife to maintain steady employment, even on a part time basis.
In accordance with the parenting orders I have made, the wife retains primary care of [X] and [Y], but the children will be spending significant time in the care of both parents. Both parties will need to balance their future employment with their parenting responsibilities which will impact more significantly upon the wife.
While the wife clearly has skills that will enable her to return to the fulltime workforce in the future, her parenting responsibilities will limit her capacity to work full time for some years yet. The wife hopes to re-train so that she can obtain employment as a [omitted]. She argues this would maximise her availability for the children outside of school hours. This seems a sensible plan given the age of the children but means the wife will need time to complete the necessary qualifications in that regard.
Neither party is cohabiting with any other person. Both parties will have available to them the property and financial resources that are allocated as a result of this decision. The orders are unlikely to impact upon either party’s earning capacity. Taking into account all of the above, I conclude that an adjustment of 12.5% in favour of the wife is appropriate.
Conclusion
Given my finding that contributions should be assessed at 65% in favour of the husband and 35% in favour of the wife, the further adjustment on account of s.75(2) factors results in the wife retaining 47.5% and the husband retaining 52.5% of the nett matrimonial asset pool. The precise value of the [Mr Seaford] Superannuation Fund is uncertain, due to the stock market volatility. A percentage based superannuation splitting order is appropriate, taking into account that the wife has her own superannuation entitlement within the fund which she will retain and can transfer elsewhere, if she chooses.
Having reached this point s.79(2) requires the Court to step back and consider whether this outcome is just and equitable. The Court needs to consider not only the appropriate percentage split between the parties but to consider the actual impact of the orders made.
When this 52.5/47.5 division is applied to the total asset pool the wife should retain assets to the value of $415,362. Applied equally to the superannuation and non superannuation asset pools the wife should retain non superannuation assets to the value of $137,709. She has her motor vehicle valued at $2,000.00 and has had the benefit of $20,000 withdrawn from the [S] Trust. On this basis the wife therefore would receive a further cash adjustment of $115,709 and retain superannuation interests to the value of $277,653 with a total allocation from the [Mr Seaford] Superannuation Fund of $276,120 or 47.36%.
The husband would retain non superannuation assets to the value of $152,205. As with the wife, this figure includes the amount of $21,764 withdrawn by him from the [S] Trust. The husband would also retain the balance of the [Mr Seaford] Superannuation Fund to the value of $306,879 or 52.64%.
I have concluded that it is appropriate for the husband to receive a greater share of the asset pool, as this reflects his greater contribution, as discussed above. However the court must also consider each party’s situation and circumstances. In the unreported case of Levick & Levick[6]. Moore J discussed the relevant factors that the Court should consider in determining the ultimate allocation of superannuation and non superannuation assets, including re-housing costs for both parties, a buffer for contingencies and independent living, the current level of the parties’ superannuation, each party’s capacity to accumulate appropriate superannuation benefits in the future and each party’s overall earning and/or borrowing capacity.
[6] Moore J, 31 January 2003 (unreported) cited with approval by Brown FM in Herbert & Herbert [2006] FMCAfam 254
In the case before me, a consideration of these factors leads me to conclude that it is just and equitable that the wife should receive a higher cash adjustment now, with a corresponding reduction in the superannuation splitting order. The wife’s income is presently very modest. A greater cash settlement will maximise her capacity to provide a secure home for the girls.
The following adjustments are not made on a strict arithmetical basis, but in an attempt to achieve an outcome that is just and equitable between the parties overall. If the wife receives a total cash settlement of $140,000 this reflects an additional payment of $24,291 and equates to approximately 56% of the non superannuation assets.
The husband also has his own accommodation needs however his income gives him a significantly greater borrowing capacity. He will retain the assets that have been or are in his control, along with the balance of the net proceeds of sale from the former matrimonial home in the sum of $59,559. Together with the funds he retains from the [S] Trust he will still have a sizeable deposit.
Obviously the superannuation split would also need to be adjusted. On a “dollar for dollar” basis the wife’s interest in the superannuation pool would be reduced to the sum of $251,829 or 43.2% of the [Mr Seaford] Superannuation Fund. However the wife will receive the immediate benefit of an extra cash adjustment in her favour, rather than having that portion of her property settlement locked away for some years in superannuation.
As the husband is older he will be able to access his superannuation entitlements significantly earlier than the wife. No doubt the husband will bring all his financial acumen to bear in deciding when to access his superannuation entitlements, regardless of when he becomes eligible to do so.
I take these matters into account and will allocate a slighter lower percentage of 42% by way of a splitting order in the wife’s favour. On present figures, this equates to $244,859 (including the wife’s own interest in the Fund) and still makes a significant contribution to the wife’s long term financial security.
I conclude that such an adjustment between the superannuation pool and the other assets is appropriate, given the wife’s present needs. It will increase the wife’s capacity to purchase a home for her and the children, whilst still leaving the husband with a significant sum that he can use by way of deposit. Both parties will retain significant superannuation to provide for their long term security. Taking into account all of the relevant factors under s.79 I am satisfied that the orders I now make are just and equitable, in all the circumstances.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Kelly FM
Associate:
Date: 29 August 2008
Hickey & Hickey (2003) FLC 93-143
AJO v GRO (2005) FLC 93-218