SEGAN & BACHRICH

[2011] FamCA 722

FAMILY COURT OF AUSTRALIA

SEGAN & BACHRICH [2011] FamCA 722

FAMILY LAW - PROPERTY – Assessment of contributions – Where both parties had fewer net assets at the date of hearing than when the parties commenced cohabitation – Where cohabitation less than one year – Where mother had considerably more assets than the father at commencement of cohabitation – Where mother has been solely responsible for the child’s care – Adjustment in relation to s 75(2) matters – Where mother is primary carer of the child – Where mother has shown capacity to reliably earn an income greater than the father – Where both the mother and the father are on high income – Where adjustment in the mother’s favour is just and equitable.

FAMILY LAW - SPOUSAL MAINTENANCE – Whether spousal maintenance order should be discharged at the date to which it is paid of the date of hearing – Whether there is “just cause” under section 83 of the Family Law Act 1975 (Cth) – Where the father had a period of unemployment – Where the father realised assets and borrowed from friends to pay for living expenses – Where the mother returned to full-time work and earns more than the father – Where the mother has represented that she was able to support herself without spousal maintenance – “Just cause” established – Discharge of interim spousal maintenance order and arrears to the date to which they are paid.

FAMILY LAW - CHILD SUPPORT – Child support departure application – Where the mother’s income and property is superior to the father’s – Where mother established grounds for departure for the father to pay half the child’s day care costs and school fees under sections 117(2)(b)(ib) and 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 (Cth)

FAMILY LAW - CHILDREN – Parenting orders – Parental responsibility – Best interests – Where father lives and works in Singapore – Where mother and child live in Australia – Where parties separated before the child was born – Where contact between the child and the father has been limited – Where there is conflict between the mother and the father – Mother granted sole parental responsibility – Orders made to allow for monthly contact between the father and the child incrementally increasing in time until overnight time and holiday time is allowed after the child starts school, provided certain preconditions are met.

Evidence Act 1995  (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
Dwyer v McGuire (1993) FLC 92-420
Farmer & Bramley (2000) FLC 93-060
Gyselman (1992) FLC 92-279
Goode & Goode (2006) FLC 93-286
Harrington v Harrington (2007) FLC 93-317
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Lightfoot & Hampson (1996) FLC 92-663
Lutzke & Lutzke (1979) FLC 90-714
Norbis v Norbis (1986) 161 CLR 513
Pierce & Pierce (1999) FLC 92-844
Vakil v Vakil (1997) FLC 92-743
Wreford & Caley (2010) 43 Fam LR 1
Wylde & Ballard (1997) FLC 92-771

APPLICANT: Ms Segan

RESPONDENT: Mr Bachrich

FILE NUMBER: SYC 1957 of 2009

DATE DELIVERED: 8 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 15 & 16 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Swaab Attorneys

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. Excluding orders made on 16 August 2011, all prior parenting orders made in these proceedings are discharged.

2. That the child, J Segan (“the child”) born … November 2008 live with the mother.

3. That the mother have sole parental responsibility for making major long term decisions in relation to the child.  To the extent possible the mother shall give the father advance notice of major long term decisions and will take into account his views about how any such decision should be made.

4. That the child spend time with the father in the presence of Ms S (the maternal grandmother) as follows:

   4.1On Saturday 29 October 2011, from 9.30 am and 11.00 am;

   4.2On Sunday 30 October 2011 from 9.30 am and 11.30 am;

   4.3On Saturday 19 November 2011 from 9.30 am and 11.00 am;

   4.4On Sunday 20 November 2011 from 9.30 am to 11.30 am

   with such time to be spent at Location 1.

   4.5On Tuesday 22 November 2011 from 9.30 am to 11.00 am;

   4.6On Wednesday 23 November 2011 from 9.30 am to 11.30 am;

   4.7On Friday 25 November 2011 from 9.30 am to 11.30 am;

   with such time to be spent at the park in Sydney Suburb 1 adjacent to L Day Care.

   4.8On Saturday 26 November 2011 from 9.30 am to 11.30 am;

   4.9On Sunday 27 November 2011 from 9.30 am to 11.30 am;

   with such time to be spent at Location 1.

   4.10On Saturday 24 December 2011 from 9.30 am to 11.00 am;

   4.11On Monday 26 December 2011 from 9.30 am to 11.30 am;

   with such time to be spent at Location 2, and the parties to meet at Location 3.

5. That the child spend time with the father in the presence of Ms B (the paternal grandmother) as follows:

   5.1Tuesday 27 December 2011 from 9.00 am to 12.00 noon at Location 4;

   5.2Wednesday 28 December 2011 from 9.00 am to 12.00 noon at Location 5;

   5.3Friday 30 December 2011 from 10.00 am to 4.00 pm at Location 2;

   5.4Saturday 31 December 2011 from 10.00 am to 4.00 pm at Location 1;

   5.5Monday 2 January 2012 from 10.00 am to 4.00 pm at Location 6;

6. That the child spend time with the father, without any third parties being present:

   6.1Commencing from February 2012 up to and including November 2012, for one weekend per month from 10.00 am to 4.00 pm Saturday and 9.00 am to 12.00 noon Sunday,

   6.2In December 2012:

   6.2.1        Saturday 22 December 2012 from 10.00 am to 4.00 pm;

   6.2.2Sunday 23 December 2012 from 10.00 am to 4.00 pm;

   6.2.3Monday 24 December 2012 from 10.00 am to 4.00 pm;

   6.2.4Wednesday 26 December 2012 from 10.00 am to 4.00 pm;

   6.2.5Thursday 27 December 2012 from 10.00 am to 4.00 pm;

   6.2.6Saturday 29 December 2012 from 10.00 am to 4.00 pm;

   6.2.730 December 2012 from 10.00 am to 4.00 pm.

   6.3Subject to Orders 6.5 and 6.6 from February 2013, up to and including the end of Term 1 or until in accordance with Order 6.7 overnight times commences (whichever first occurs) when the child is in kindergarten, for one weekend per month, from 10.00 am to 4.00 pm Saturday and 10.00 am until 2.00 pm Sunday. 

   6.4For the visits referred to in Order 6.3, the father shall give the mother 30 days notice.

   6.5In December 2013:

   6.5.1        Saturday 21 December from 9.00 am to 5.00 pm;

   6.5.2Monday 23 December from 9.00 am to 5.00 pm;

   6.5.325 December from 9.00 am to 5.00 pm;

   6.5.428 December from 9.00 am to 5.00 pm;

   6.5.529 December from 9.00 am to 5.00 pm;

   6.5.630 December from 9.00 am to 5.00 pm.

   6.6From 2 January 2014 to 5 January 2014 each day between 9.00 am and 5.00 pm;

   6.7Thereafter from the commencement of Term 2 in 2014 and provided the father has spent time with the child monthly in the preceding two months:

   6.7.1For one weekend per term to be taken as close to the middle weekend of the term as possible, from 9.00 am Saturday to 2.00 pm Sunday and;

   6.7.2Excluding the December/January school holidays, in the first week of each school holiday, from 9.00 am Saturday until 5.00 pm the following Saturday.

   6.7.3In the event that the father fails to spend time in the preceding months as required in the precondition to Order 6.7 overnight or holiday time (whichever is applicable) shall not start until he does.

   6.8In December 2014 / January 2015 from 9.00 am Friday 26 December 2014 until 5.00 pm Friday 2 January 2015.

   6.9From 9.00 am 1 January 2016 until 5.00 pm 8 January 2016 and for the same period each alternate year thereafter.

   6.10From 9.00 am 26 December 2016 until 5.00 pm, 2 January 2017 and for the same period each alternate year thereafter.

   6.11Notwithstanding any orders to the contrary, the father shall spend time with the child on Father’s Day from 9.00 am until 2.00 pm.

7. Unless otherwise provided in these orders, the father shall collect and return the child at the mother’s residence.

8. That the father speaks to the child by telephone each Wednesday at 6:00 pm (Sydney time).  In the event the child is unavailable the mother shall do her best to have him return the call within 24 hours.

9. That each party notify the other, as soon as possible, of any serious injury or illness suffered by the child whilst with that party.

10. That the parties promptly notify each other of any changes to their residential address, landline and mobile telephone numbers and email address.

11. Subject to any direction by the relevant authority, each party is allowed to attend the child’s day care, school, sports and social events to which parents are invited even when the child is not in his/her care.

12. That the mother on a reasonably regular basis sends the father an email updating him on information regarding the child.

13. That the mother forthwith authorise any childcare centre, pre-school or school the child may attend to provide to the father (at his expense) photocopies of reports and newsletters or otherwise pertaining to the education of the child and authorise staff members to discuss the child's progress with the father.

14. The mother is permitted to take the child out of the Commonwealth of Australia without the consent of the father provided that such travel is for a holiday of not more than three (3) months duration, and:

    14.1the mother gives the father no less than three (3) months written notice;

    14.2travel does not occur within two (2) months of the commencement of overnight or school holiday time between the child and the father; and

    14.3if requested within three months, time forgone by the father with the child is made up on dates agreed between the parties.

15. That until further order the father is restrained from removing or attempting to remove or causing or permitting the removal of J Segan (“the child”) born … November 2008 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

16. That each party shall do all acts and things and pay equally any costs necessary to ensure that the child has a current Australian passport, which will be held by the mother.

17. By way of Child Support Departure Order, commencing 1 January 2012, the father pay to the mother by way of non-periodic child support, one half of the school fees for the child’s attendance at L Day Care.

18. By way of Child Support Departure Order, upon the child commencing school, the father pay to the mother by way of non-periodic child support, one half of the child’s school fees for the child’s attendance at School 1 or School 2.

19. That the payments in Orders 17 and 18 are not to be credited against the annual rate of periodic child support payable by the father to the mother pursuant to a Child Support Assessment.

20. That Orders 21 to 24 have effect from the operative time.

21. The operative time for Orders 22 to 24 of this order is 7 days from the date of service of a sealed copy of these orders upon the Trustee.

22. That in accordance with section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to the father from his interest in the MLC Masterkey Superannuation Fund (Account No. … ), the mother is entitled to 100% of each splittable payment out of the father’s interest in the Fund, and there is a corresponding reduction in the entitlement the father would be entitled to receive but for this order.

23. That, upon the Trustee being accorded procedural fairness in relation to the making of this order, this order shall bind the trustee of the MLC Masterkey Superannuation Fund.

24. That the Trustee of the Fund, in accordance with the obligations set out under the Act and Family Law (Superannuation) Regulations 2001, shall do all acts and things and sign all such documents as may be necessary to make payment to the mother pursuant to Order 22 of this order.

25. That the father’s obligation to pay interim spousal maintenance is discharged as at the date to which it has been paid.

26. Unless he has done so, from the father’s December 2011 bonus payment he shall, within seven (7) days of receipt pay all outstanding child support arrears.

27. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

28. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Segan & Bachrich is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1957 of 2009

Ms Segan

Applicant

And

Mr Bachrich

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for property settlement, parenting and child support orders.  The parenting orders relate to the parties’ two year old son, J (“the child”).

2. The parties lived together for 11 months.  Ms Segan (“the mother”) learned she was pregnant after she returned to Australia from Singapore which was where she and Mr Bachrich (“the father”) cohabited. 

3. Before the child was born each party retained lawyers (in the mother’s case, her father) and, with their assistance, engaged in a battle that culminated in an unfortunately difficult hearing.  Although there is an issue about the mother’s legal fees claimed by her father, the parties contend that between them they spent in excess of $330,000.00 on legal fees whilst simultaneously arguing inter alia about child support, property adjustment in the vicinity of $50,000.00 and the payment of school fees, to appreciate how little commonsense was brought to bear on aspects of their dispute.  That said, because the child and father have never lived together and live in different countries, the parenting issues involve unusual complications which required careful consideration.  Notwithstanding these complications the parties agree it is in the child’s best interests to build a meaningful relationship with the father.  Key questions relate to the pace and circumstances under which this can be achieved. 

Short History

1. Throughout these reasons statements of fact are findings of fact determined upon the balance of probabilities (s 140 Evidence Act 1995 (Cth)).

2. The father was born in Africa in 1970.

3. The mother was born in Africa in 1972.

4. The parties met in Australia and on 20 April 2007 they began to live together in an apartment the mother owned at Sydney Suburb 1.

5. The parties married in June 2007.  They lived in Singapore until separation.

6. On 15 April 2008 the mother returned to Australia and within a few months it was clear the marriage was over. Since then, the mother has lived in Australia and the father in Singapore.  This situation is unlikely to change.

7. The child was born in November 2008.  He lives with the mother and has sporadic contact with the father. 

8. The mother commenced these proceedings on 2 April 2009.

9. On 6 May 2009, interim parenting orders were made as follows:

   1.That [the child] shall live with the wife.

   2.That the husband shall be entitled to spend time with the said child from 11 am to 12 pm on each alternate day when he is in Australia, except that if such day falls on a Saturday, that time will be spent on the preceding Friday, provided that for his first visit to Australia the wife shall be permitted to be within verbal contact distance of the child during that time and on each of the husband’s subsequent visits to Australia the wife shall be entitled to be present within such distance of the child on the first two occasions that the  husband spends time with the said child

   3.That the husband’s mother shall be entitled to be present when the husband spends time with the child.

   IT IS ORDERED:

   4.That each party provide their solicitor and the other’s solicitor forthwith with all necessary information which will allow the other to be in electronic contact with him or her through the agency of their respective solicitors. 

   5.That within seven days of the date of this order the father do all acts and things and execute all documents necessary for an Australian passport to be issued to [the child].  

   6.That in the event that the father fails to comply with order 5. a registrar of this court is hereby empowered pursuant to section 106A of the Family Law Act to do all acts and things and execute all necessary documents on behalf of the father for an Australian passport to be issued to the said child.

   7.The mother is hereby permitted to remove the said child from Australia for the purposes of taking the child to Israel from 1 June 2009 until 22 June 2009.

   8.That by consent, the mother shall provide the husband’s solicitors at least 21 days prior to leaving Australia with the child with a copy of the child’s return air ticket and a copy of his itinerary including addresses and telephone numbers at which the wife will be staying with the child whilst overseas.

   9.That forthwith both parties shall do all necessary acts and things to instruct [S Services] to carry out DNA testing to determine whether the husband is the biological father of the child.

   10.That within seven days from the date of these orders both the wife and the husband contact [S Services] on […] to arrange to carry out the necessary tests pursuant to Order 9. and shall comply with all such arrangements and all reasonable requests and directions of [S Services] for the purpose of the test.

   11.That within seven days of receipt of the test results from [S Services] pursuant to Order 9., if the husband is not the biological father of the child, both parties shall do all necessary acts and things and sign all necessary forms and documents to notify in writing the NSW Registry of Births, Deaths and Marriages of the DNA results and forward to them a copy of the said results.

   12.That the husband shall initially pay the cost of testing but the right to make an application for the wife to contribute part or all of that cost is reserved to him.

   13.That all applications which have not been dealt with are returned to a judicial registrar’s list.

   14.That the husband’s application to restrain the wife’s solicitor from continuing to act for the wife in these proceedings is hereby dismissed.

   15.That there be no order for costs. 

10. On 6 July 2009 interim orders were made which required the father to pay $500.00 per week spousal maintenance and give the mother 14 days notice of his intention to see the child.

11. The parties were divorced in December 2009.

The Issues

1. The key issues which require determination are:

   Parenting

   ·whether the parties should have equal shared parental responsibility, the mother sole parental responsibility or another form of parental responsibility;

   ·the circumstances under which the child will spend time and communicate with the father – this involved issues around supervision, the frequency and duration of his time with the child, the pace of incremental increases and the like;

   ·the child’s surname – whether he should continue to be known by the mother’s surname or a hyphenated surname which identifies both parents.

   Property

   ·whether the parties failed to comply with their obligations to give full and frank disclosure;

   ·treatment of paid legal fees;

   ·whether various personal loans should be included as matrimonial liabilities;

   ·whether the mother has undisclosed cash;

   ·the nature of the father’s employment/business venture in Company 1.

   Child Support and Spousal Maintenance

   ·whether the spousal maintenance order should be discharged at the date to which it is paid, May 2011 (when the mother returned to full-time work) or the date of hearing;

   ·whether a lump sum child maintenance order against the father is appropriate;

   ·whether by way of child support departure the father should contribute to the child’s future school fees for School 1 and other expenses;

   ·whether an order should be made which restrains the father’s departure from Australia.

General principles for the adjustment of matrimonial property

1. The approach to the determination of an application under s 79 of the Family Law Act 1975 (“the Act”) is well established (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595). The process ordinarily involves a four step procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s 79(4)(a), (b) and (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s 75(2) insofar as they are relevant, including any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) that a party to the marriage is to provide, or might be liable to provide in the future, for a child of the marriage.

2. Lastly, in determining what orders should be made the Court must be satisfied in all the circumstances that it is just and equitable (s 79(2)).  It is the justice and equity of the actual orders that the Court must consider: Russell v Russell (1999) FLC 92-877.

Assets, liabilities and financial resources at the date of hearing

1. The parties reached agreement as to the value of most assets and liabilities.  I find the values and identity of the parties assets, liabilities and financial resources at the date of hearing are as set out in the table below[1].

   [1] Exhibit “L”

ASSETS
F	DSB a/c Singapore – POSB	3,644
F	Westpac – xx53	1,040
F	OCBC Singapore	7
F	Masterkey Life Insurance	0
F	Company 2	0
F	Household contents	5,000
F	Computer and personal effects	5,000
F	Book collection	3,000
F	Purchased rights	13,510
M	W Street, Sydney Suburb 1	700,000
M	D Street, Sydney Suburb 2	1,340,000
M	ANZ – xx29	15,326
M	Wife’s other accounts	6,300
M	DBS account Singapore	660
M	A Consulting	0
M	Tatts Group Ltd shares (550)	1,265
M	Honda motor vehicle	30,000
M	Household contents	10,000
M	Jewellery	20,000
Total	$2,154,752

LIABILITIES
F	Loan from Mr Z	14,610
M	Adelaide and CBA mortgages	1,049,000
M	Mortgage to wife’s father	580,000
Total	$1,643,610

SUPERANNUATION
F	MLC Masterkey	31,482
M	MLC Masterkey	83,069
Total	$114,551

1. The parties’ net assets are thus $625,693.00.

2. There are number of findings in relation to the asset pool which require explanation.

3. For reasons which are discussed later the value of the father’s purchased rights exclude nine that were recently transferred to Mr Z.  The effect of this is that the father’s debt to Mr Z is included taking into account the value of the nine purchased rights transferred to him.

4. The mother argues for the inclusion of a bonus payment which the father will receive in December 2011 from his employer.  This is future income and, although I am satisfied it will be received by him, it is not an asset and is excluded. 

5. The mother sought to include as notional assets the parties’ paid legal expenses.  In this regard, she proposed that $92,000.00 be included as her asset that being funds due to her father.  A matched liability would be included as her debt.    Her actual costs are approximately $162,493.00 in relation to which approximately $35,000.00 was paid to her solicitors shortly before the hearing.  As best I can determine, none of the funds the mother used were derived during cohabitation.  I am not satisfied that the mother is obligated to pay her father for his legal services.  He claimed no expertise in family law and until immediately prior to this hearing she did not pay for his services.  Basically he represented her for two years without payment.  During this period he borrowed $580,000.00 on her behalf and it is apparent their financial affairs intermingle.  Notwithstanding his evidence he requires payment and recent payments to him I am not persuaded any liability will be enforced. 

6. The father’s legal expenses are approximately $174,000.00, of which he has paid $140,798.50.  Unlike the mother he did not have family willing to represent him for years without payment in that period.  The father sought to include as his liabilities various credit card debts.  None of these liabilities arose during cohabitation.  Although the father recently experienced a period of unemployment he has a good income.  It is not clear to me why these liabilities arose.  The father also borrowed $30,000.00 from Mr L which he also seeks to include as a matrimonial liability.  According to the father, he used these funds to pay rent and on living expenses.  While I am satisfied the father must repay Mr L, it is tolerably clear that he used post separation income and savings derived therefrom to pay the majority of his legal fees.  The remainder was met through the sale of assets he owned prior to cohabitation and to which the mother made no contribution.  This meant that when he lost his job he had comparatively modest savings and thus borrowed from friends and on credit cards.  In circumstances where I have accepted his argument against the inclusion of paid legal fees, it would be erroneous to include liabilities which probably arose as a consequence of him paying legal fees from income.  The loan to Mr L and credit card liabilities are thus excluded from the asset pool.  Harrington v Harrington (2007) FLC 93-317.

7. The father unsuccessfully argued for the inclusion as his liability $10,772.00 advanced by his brother.  There were inconsistencies between the father and his brother’s evidence in relation to when and the conditions upon which these monies were advanced.  Doing the best that I can with the evidence, while the father may feel honour bound to repay his brother, I am not persuaded this will occur or, if it lingers indefinitely, that his brother could establish a basis upon which the father would be ordered to repay him. 

8. It was appropriately conceded that there was no evidence to support the mother’s argument for inclusion as her liability, $15,000.00 land tax and it is excluded.

9. In circumstances where I have rejected the mother’s argument for inclusion of assets disposed of by the father, consistency requires that the $10,000.00 sale proceeds from the sale of her car are also excluded. 

Section 79(4) – the evaluation of contributions and other factors

1. The submissions were made to me of the basis that contributions should be assessed globally and I propose to adopt that approach (see Norbis v Norbis (1986) 161 CLR 513).

2. The mother sought that the father pay her an amount equal to 50 per cent of the value of the purchased rights (including those transferred to Mr Z).  I infer that the value is that asserted by her; in other words, 50 per cent of $48,900.00.  The father proposes that his MLC Masterkey Superannuation Fund is split so that the mother receives 100 per cent ($31,482.00).  He does not seek an adjustment in his favour and opposed the mother’s claim that he pay a cash adjustment.  As is apparent the difference in the position of the parties regarding the property settlement is diminutive.  Clearly there is no proportionality in the approach adopted by the parties.  Indeed others in the community less fortunate than they would, in all likelihood, be amazed that this issue was taken to a final hearing.  

3. Section 79(4) requires that the Court looks at the entirety of the contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense: Farmer & Bramley (2000) FLC 93-060. In Ferraro, the Full Court highlighted the difficulty involved in evaluating and balancing fundamentally different contributions.  It also reinforced that the Court’s task includes evaluating the significance of the various contributions, the weighing of which is ultimately a matter for the Court.

4. The evaluation of financial contributions is more complex than the mere calculation of the funds introduced by each party.  This point is reinforced by the often quoted comments in Pierce & Pierce (1999) FLC 92-844 where, in relation to initial contributions, the Full Court said at par 28:

   In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.

5. When the parties commenced cohabitation in April 2007 the father was employed in the financial industry at Company 3 in Sydney, for which he was paid about $100,000.00 per annum plus bonuses.  His total taxable income for the year ended 30 June 2007 was $192,762.00.

6. The mother was a private consultant who contracted her services through a company she owned called A Consulting Pty Ltd.  Through the company her services were contracted to a financial institution for which the company received $1,700.00 per day, including GST and superannuation.  The mother ceased employment in August 2006 and trained full-time for a sporting event until about May 2007.  She did not return to paid employment until the parties moved to Singapore.

7. When the parties commenced cohabitation the mother had the following assets and liabilities:

   ·W Street, Sydney Suburb 1 - $490,000.00;

   ·Honda motor vehicle - $10,000.00;

   ·Cash at bank - $342,403.00;

   ·MLC Masterkey Superannuation - $98,000.00;

   ·Adelaide Bank mortgage secured over Sydney Suburb 1 - $137,772.00

8. Including superannuation, the mother had net assets worth $802,631.00.  It was alleged by the father, however not established, that at the commencement of cohabitation she had a credit card debt in the amount of $20,000.00.

9. At the commencement of cohabitation the father had the following assets and liabilities:

   ·Purchased rights - $20,000.00;

   ·painting and a lithograph - $20,000.00;

   ·furniture and watches - $5,000.00;

   ·Toyota motor vehicle - $12,000.00;

   ·share portfolio with Company 3 - $38,008.00;

   ·share portfolio with Company 4 - $20,000.00;

   ·savings – Westpac - $14,516.00;

   ·MLC Life Insurance policy – nil;

   ·MLC Superannuation policy - $33,000.00;

   ·credit card debt - $32,000.00;

10. Thus, at the commencement of cohabitation, the father had net assets of approximately $130,507.00. 

11. In May 2007, the father gave the mother a $43,000.00 engagement ring.

12. According to the mother “[d]uring the time that [the father] lived with me at the [Sydney Suburb 1] property, he made no contribution to my mortgage or property related expenses and we only shared the purchase of food.  He made no contribution to utility expenses such as electricity”.  I do not accept her evidence.  Exhibited to the father’s affidavit are bank account statements which show transfers by him to the mother and her mortgage account.  They also show payments for utilities.  I accept the father’s evidence that between 18 April 2007 and 9 November 2007 he paid $26,031.00 to the mother, which included $5,000.00 to her mortgage account.  As to the latter amount, this reimbursed the mother for the $5,000.00 she paid for airfares when they moved to Singapore in September 2007.

13. On 27 September 2007, the parties moved to Singapore.  The father obtained employment in the financial industry with Company 3, and the mother obtained work with Company 5 in the financial industry for which she was paid SGD $212,000.00 ($160,878.53)[2] per annum.  The mother remained with Company 5 until March 2008.  With Company 3 the father was paid SGD $145,000.00 ($110,034.85)[3] per annum, plus a relocation allowance of SGD $15,000.00 ($11,382.92)[4].  Notwithstanding the large amount the father spent on legal expenses, he did not calculate the Australian dollar equivalent of numerous foreign currencies.  Because the analysis of contributions and s 74(2) considerations involves a comparable analysis, it was necessary to establish the value in Australian dollars of much of his evidence.  The calculations used are found in footnotes.  The dates used include an assessment calculated to give the most reliable figure. 

    [2] Exchange rate calculated at 0.758861 on 1/10/2007.

    [3] Ibid

    [4] Ibid

14. In Singapore, the parties established accounts in their sole names.  They did not ever have a joint account.  For the first month Company 3 paid their accommodation expenses, and in relation to the balance of their expenses during cohabitation, these were shared equally.

15. Shortly after the parties moved to Singapore the mother rented Sydney Suburb 1 for $650.00 per week.  Although she does not refer to this in her affidavit of 15 July 2011, I infer the income was retained and/or applied to the mortgage and expenses associated with the unit and perhaps also her savings.  This situation has not changed.  Thus, other than the net funds the father paid into the bank mortgage account no contribution has been made by him to Sydney Suburb 1.

16. In Singapore, the parties purchased in the father’s name membership in a club called “[O Club]”.  Each paid an initial deposit of SGD $4,444.00 ($3,493.00)[5] with monthly payments of SGD $900.00 ($707.00)[6] due thereafter until the full SGD $43,000.00 ($33,806.86)[7] membership fee was paid.  The parties each paid SGD $450.00 ($353.79)[8] per month until the mother departed Singapore.  The father has continued to pay the monthly instalments but, it would appear, has not yet paid the total sum required for membership.  I am not satisfied he is able to sell the club membership until the total sum is paid.  What it might then sell for, and any conditions attached to the sale, was not established.

    [5] Exchange rate calculated at 0.786206 on 14/09/2007.

    [6] Ibid

    [7] Ibid

    [8] Ibid

17. Not long after the mother resigned from Company 5 she returned to Sydney for a holiday with her parents.  Whilst in Sydney she discovered she was pregnant as a consequence of which she did not resume paid employment until 19 May 2011.  The mother has lived with her parents in their home at Sydney Suburb 3 ever since.  In the period until the child’s birth, the father visited the mother in Australia on a number of occasions.  Other than the first occasion when he stayed with her for a few days at her parents’ home, he stayed with friends or at a hotel.  These travel and associated costs were met by the father.

18. I do not have evidence about the parties’ cash assets when the mother returned to Australia.

19. Prior to cohabitation, the father acquired purchased rights, some of which he sold.  I accept his evidence in relation to the acquisition and disposition of purchased rights.  In September 2008, he received an offer to sell one of his purchased rights for US $45,000.00 ($55,692.90)[9].  However, negotiations broke down and the sale failed.  Since then, the father has received no offers in relation to that or other purchased rights.

    [9] Exchange rate calculated at 1.23762 on 15/09/2008.

20. A few months earlier, he borrowed $50,972.00 from Mr Z to purchase at auction nine purchased rights which are listed at paragraph 47 of his affidavit filed 19 July 2011.  He agreed to repay Mr Z and that Mr Z would receive half of any profit made from the nine purchased rights and if the rights were sold at a loss the entire sale proceeds were to be applied to the loan.

21. In about April 2011, the father transferred the nine purchased rights to Mr Z. 

22. It is the mother’s contention that the purchased rights should be included in the pool of matrimonial assets at $48,900.00.  This amount comprises the agreed value of the purchased rights, including the nine transferred to Mr Z.  In this regard, she relied on documents from X Search Engine which is an internet based search engine for purchased rights that show the nine rights are registered in the father’s name.  This search reports whether a specific purchased right is available and provides information related to registration.  The search, however, disclaims liability in relation to erroneous information.

23. Late in the hearing, the father sought to rely on an affidavit sworn by Mr Z.  Mr Z was not available for cross-examination and counsel for the mother having objected, the affidavit was rejected.

24. Notwithstanding deficiencies in the father’s evidence I am persuaded he transferred the nine purchased rights to Mr Z and the delay in registration of the transactions being recorded relates to difficulties experienced with the register.  It follows that I am satisfied the value of the purchased rights owned by him is $13,510.00.  The father would not have transferred the nine purchased rights to Mr Z unless he understood their value would be credited by Mr Z against his loan.  Accordingly, the father’s liability to Mr Z is included in the matrimonial liabilities at $14,610.00.  No direct financial contribution was made by the mother to the purchased rights.

25. In about October 2008 the father gave the mother approximately $8,000.00 towards the cost of the baby. 

26. The father came to Australia for six weeks after the child’s birth in relation to which he met his own, not inconsiderable, expenses.  This was the first of a series of trips he made to spend time with the child. 

27. Commencing January 2009, the father voluntarily paid $330.00 per week child support.  Subsequently, the mother obtained a child support assessment from the Child Support Agency and for the period commencing 22 March 2010 to 21 June 2011 he was assessed to pay $1,454.67 per month child support.  The father ceased paying child support and spousal maintenance in December 2010.  On 28 June 2011, he paid $1,460.00 child support and $500.00 spousal maintenance.

28. The father resigned from Company 3 in June 2009.  His lump sum of $21,418.81 was paid directly to the Inland Revenue Authority of Singapore.  No additional lump sum payment was received by him.

29. In mid June 2009, the father commenced employment with Company 6.  He was employed at a salary of SGD $266,000.00 ($227,726.59)[10] plus bonuses. 

    [10] Exchange rate calculated at 0.856115 on 15/06/2009.

30. On 6 July 2009, an interim spousal maintenance order was made in the mother’s favour which required the father to pay her $500.00 per week. 

31. The father sold shares worth $13,000.00 on 1 December 2009, the proceeds of which he applied to legal expenses incurred in these proceedings.  The father owned these shares before the parties commenced cohabitation. 

32. In March 2010, the mother purchased a semi-detached house at D Street, Sydney Suburb 2 for $1,340,000.00 plus stamp duty.  Notwithstanding that her father, who until recently represented her in these proceedings and gave evidence, acted on the purchase, there is some uncertainty about this transaction.  In this regard, it is submitted on the father’s behalf the net effect of the mother and her father’s evidence, means there is at least $162,000.00 of the mother’s savings unaccounted for which should be notionally included in the pool of matrimonial assets.  According to the mother, on her behalf her father borrowed $580,000.00 from the Commonwealth Bank (“CBA”) and she borrowed $804,000.00 from ANZ.  Six months after settlement, her parents lodged second mortgages (behind the banks) over the Sydney Suburb 2 and Sydney Suburb 1 properties.  These amounts are not in doubt.  Put simply, the mother says she acquired Sydney Suburb 2 with entirely borrowed funds.  However, tendered in the father’s case are the mother’s loan applications made in April 2009 and January 2010 to the ANZ Bank. These show that she claimed she had savings with other financial institutions in the amount of $857,000.00.  According to the mother, the $857,000.00 comprised the $580,000.00 borrowed by her father and $300,000.00 redraw facility on the Sydney Suburb 1 mortgage.  That, however, cannot be correct as there is a separate item on the loan application where the redraw facility is identified.  It is tolerably clear the mother failed to disclose in her loan application that $580,000.00 included as an asset was borrowed and which she was liable to repay.  The mother had ample opportunity to say she overstated her financial circumstances to ANZ but did not.  Thus, although the mother would not be the first person to exaggerate in a loan application I am not satisfied she did so.

1. Curiously, given the sea of financial material the mother produced, she did not provide the bank records through which the various transactions that constituted the acquisition of Sydney Suburb 2 are recorded.  Her father provided his CBA statement into which the $580,000.00 was paid which, in turn, persuaded me that the deposit was paid from the CBA advance.  However, on 25 March 2010, her father withdrew from his CBA account $162,000.00.  There is a matched deposit on the same day into the mother’s account which she withdrew on 6 April 2010.  Sydney Suburb 2 settled on 28 April 2010.  The questions which arise are if the $162,000.00 was used to acquire Sydney Suburb 2 why was it withdrawn three weeks prior to settlement and where was it deposited in the meantime?  Answers to these questions remain a mystery.  It is submitted by the father that the Court would treat with suspicion the mother and her father’s evidence in relation to the Sydney Suburb 2 acquisition and hers in relation to her cash resources.  These matters would have been clarified if the mother gave full disclosure of her financial records.  Her failure to produce all documents in relation to these transactions, along with the inconsistencies about this matter to which I have made reference, persuades me that the mother retained significant cash assets in April 2010 and it is likely she has greater cash assets than she has disclosed.  However, nearly 17 months later I am not satisfied $162,000.00 should be included in the matrimonial asset pool.  Because I am satisfied the remaining funds are likely to be primarily sourced from pre-cohabitation savings this matter is better addressed pursuant to s 75(2).

2. Sydney Suburb 2 has been leased for $800.00 per week since May 2010.  The total rental, from Sydney Suburb 1 and Sydney Suburb 2 is $1,475.00 per week.  The mother pays $1,175.75 per week to ANZ and $342.26 to Adelaide Bank.  I agree with counsel for the father her financial statement in relation to the CBA loan (as well as other matters) is confusing and in some respects appears designed to obfuscate rather than illuminate her financial circumstances.  For example, the mother, at question 29, said she pays her father $2,761.74 per week for legal fees and the CBA loan.  Assuming an interest rate of 7.64 per cent, principal and interest to be repaid over 25 years, means the mother pays about $1,000.00 per week for the CBA loan.  It follows, she says she pays her father about $1,761.00 per week for legal fees.  If the mother’s evidence is accepted, she has a total average weekly income of $8,975.00 and total personal expenditure of $12,114.09 per week.  The source documents which might have made this curious evidence credible were not provided.  In any event, the mother clearly embarked on a course of wealth creation which also provides, in effect, tax relief.

3. Between April 2010 and 2 June 2010 the father borrowed SGD $15,000.00 -SGD $20,000.00 from Ms Y which has since been repaid.

4. In about mid 2010, the father sold his remaining Company 3 share portfolio for approximately $20,000.00 which he applied to expenses, legal fees and outstanding debts. 

5. In September 2010 the father withdrew the full amount of his OCBC Retirement Fund which, net of tax, realised SGD $18,000.00 ($14,361.70)[11].  I infer this fund was established post separation.  The funds he received from Ms Y and OCBC were used for living expenses.  He also borrowed money from Ms W which was partly used for legal fees and living expenses.  Ms W has been repaid.

   [11] Exchange rate calculated at 0.797872 on 15/09/2010.

6. The father’s employment with Company 6 was terminated on 2 December 2010.  The Singapore tax year coincides with a calendar year.  The father was initially assessed for the 2010 tax year as liable for income tax in the amount of SGD $34,047.44 ($26,099.92)[12].  In February 2011, an additional assessment issued which increased the tax for which the father was liable as at that date to SGD $67,062.40 ($52,262.87)[13].  Company 6 were instructed by the Inland Revenue Authority of Singapore to pay that amount directly to them.  In addition, the father’s former employer retained SGD $24,089.40 ($18,466.33)[14] to reimburse them for charges he made on his corporate credit card.  The effect of these transactions is that the father did not receive a lump sum payment upon his departure from Company 6.

   [12] Exchange rate calculated at 0.766575 on 31/12/2010.

   [13] Exchange rate calculated at 0.779317 on 14/02/2011.

   [14] Exchange rate calculated at 0.766575 on 31/12/2010.

7. The father was then unemployed until April 2011.

8. In March 2011, the father withdrew the full amount of his Company 6 Provident Fund in relation to which he received SGD $31,475.00 ($24,879.85)[15].  He borrowed a final amount of SGD $10,000.00 ($7,444.00)[16] included in the SGD $30,000.00 borrowed in total from Mr L on 30 April 2011.

   [15] Exchange rate calculated at 0.790464 on 15/03/2011.

   [16] Exchange rate calculated at 0.744857 on 29/04/2011.

9. For some time, the father sought to establish interest in the development of a venture in Singapore.  On 14 February 2011, as a director, he signed an allotment of shares and certificate as to the position of share capital in a company named Company 1 incorporated in the Republic of Singapore.  This records an allotment of 10 million ordinary shares was issued to Company 7 for US $100,000.00 ($99,925.60)[17].  Company 7 has its registered address in the British Virgin Islands.  According to the father, Company 1 is a subsidiary of Company 8 which is owned by Mr V.

   [17] Exchange rate calculated at 0.999256 on 14/02/2011.

10. The father is the CEO of Company 1.  He said he is an employee and has no interest in either Company 7 or Company 1.  According to him, no contract of employment has been executed by him with Company 1.  He refused to answer questions aimed to elicit the beneficial owners of Company 7.  I do not accept his protestations that his refusal to answer was motivated by the desire to preserve commercially confidential information or because the information is not within his knowledge.  Although his approach was boorish, it does not necessarily follow he has a beneficial interest in either company.  In short, beyond funding travel discussed later, I am not satisfied he had surplus funds to invest in this venture.

11. During the hearing the father produced his passports to those representing the mother.  A schedule of his arrival and departure entries was prepared (Exhibit “M”).  This shows extensive travel commencing 2 December 2010 through to 1 August 2011.  It records him, for example, arriving in Africa on 2 December 2010, arriving in another Southeast Asian country 6 January 2011, to Africa via Europe and the Middle East in late January through to February 2011, on to Western Asia and it would seem, back to Singapore in early March 2011.  A further trip was made to Europe, in late March 2011, returning via another Southeast Asian country.  There were short trips to another Southeast Asian country and East Asia in May 2011, another to America via Europe and the Middle East in early June 2011 with three further short trips to East Asia and one to Africa in the period.

12. According to the father, by April 2011, his work with Company 1 was secure but he was not paid for his work in April and May 2011 until June 2011.  He explained his travel between January 2011 and April 2011 as trips to secure supply, that is, potential buyers and sellers.  I am satisfied that Company 1 made its first payment to the father (for April 2011) on 2 June 2011 in the amount of  SGD $30,000.00 ($22,786.11)[18], a further SGD $30,000.00 ($22,824.51)[19] was paid on 3 June 2011 (May 2011) and SGD $3,000.00 ($2,294.00)[20] on 8 June 2011. He is now paid a gross annual salary of US $240,000.00 ($223,375.92)[21], plus US $18,000.00 ($16,753.19)[22] annual car allowance, with a US $60,000.00 ($55,843.98)[23] bonus to be paid at the end of December 2011.  I do not accept the father’s evidence that he is unaware of the criteria for payment of the December 2011 bonus.  I infer he withheld this information because irrespective of performance the bonus will certainly be paid.

    [18] Exchange rate calculated at 0.759537 on 02/06/2011.

    [19] Exchange rate calculated at 0.760817 on 03/06/2011.

    [20] Exchange rate calculated at 0.764825 on 08/06/2011.

    [21] Exchange rate calculated at 0.930733 on 01/06/2011.

    [22] Ibid

    [23] Ibid

13. On 19 May 2011, the mother returned to full-time work.  Through her company she is contracted to work with consultants for which her company is paid $1,650.00 per day, including GST and superannuation.  I infer the mother will not be paid for public holidays, nor receive recreation or sick leave.  On the basis she works about 45 weeks a year she has a gross income (excluding GST) from employment of about $337,000.00 per annum.

14. When the parties commenced cohabitation the mother introduced assets worth considerably more than the father.  Her most significant assets were constituted by Sydney Suburb 1 and savings.  The father’s most significant assets comprised his share portfolio and superannuation.  In the few months the parties lived together in Australia the father lived at Sydney Suburb 1 rent free.  I have not accepted the mother’s evidence that she contributed to his support and am satisfied he made payments to her mortgage as previously set out.  Upon their relocation to Singapore the mother earned more than the father.  They did not intermingle their finances and subject to the relocation and settlement expenses met by the father’s employer, they contributed equally to living expenses.  The evidence does not disclose the parties’ savings at the end of cohabitation.  I infer their joint incomes exceeded their joint living expenses and thus it is more probable than not each made a modest gain to their overall asset position by the time the mother returned to Australia.  Throughout this period it would appear Sydney Suburb 1 was self-sufficient which is a contribution attributable to the mother.

15. Thereafter, the father continued in paid employment until Company 6 terminated his employment.  In addition to him spending, I infer, a not inconsiderable sum in an attempt to resurrect his relationship with the mother, he paid child support, $8,000.00 towards the costs for the baby and, for about 18 months, $500.00 per week spousal maintenance.  Rounded out, (excluding travel and allied costs) he paid something in the vicinity of $75,000.00 - $78,000.00 to the mother. 

16. Notwithstanding his good income, the net assets which he contributes at the date of hearing are fewer and less in value than he initially contributed.  Primarily, his depleted asset position relates to him using assets for day to day expenses.  The point being, in order to spend time with the child, and to contribute to the child and mother’s support he realised assets to meet his expenses.  A modest component of asset realisation for expenses includes the payment of legal fees.  Because legal fees have been excluded from the asset pool neither party is assessed as contributing assets or income used for that purpose.

17. The asset pool does not include a Lithograph the father owned when the parties commenced cohabitation.  The mother and her father returned to Singapore where they supervised removal of her belongings by international removalists.  The father was in Mongolia and returned to Singapore before the removalist company shipped her belongings to Australia.  It is the father’s evidence that the Lithograph was taken while he was in Mongolia and the person most likely to have it is the mother.  He contacted the shipping company who agreed to open the container which held the mother’s possessions.  Permission was sought from the mother but was refused.  The removalist’s inventory shows they removed a painting and a number of pictures.  Had the father been a better witness this issue could have been resolved in his favour. However, his refusal to answer questions in relation to Company 1, his denial the DNA tests influenced his approach to the child and wrongful denial he refused to obtain a Gett until his conditions were met, undermined his credit.  I have already commented upon the difficulties in relation to the mother and her father’s evidence concerning her acquisition of Sydney Suburb 2.  The net effect of this is that while I am satisfied the father no longer has the Lithograph, in circumstances where others had access to his rental accommodation, I am not persuaded it was taken by the mother or her father.

18. Counsel for the mother emphasised that she too has fewer net assets at the date of hearing than she owned when the parties commenced cohabitation.  Even if the mother’s financial circumstances were assessed on the basis she had the entire $162,000.00, this is unarguably true.  While I accept her childcare responsibilities limited her capacity for paid employment and, to an extent, it was appropriate that she supplement her rental income and payments from the father by drawing down on savings, it was her decision to acquire Sydney Suburb 2 in the manner adopted by her which led to this result.  Because Sydney Suburb 2 is far from self-supporting the mother has significantly drawn on her equity in Sydney Suburb 1 to meet the shortfall.  While I accept these are transactions which reflect contributions by the mother, her argument that her lesser net asset position requires an adjustment in her favour is not compelling.

19. Nonetheless, subject to what remains of the $162,000.00 and monies expended on legal fees, I am satisfied both parties contributed the assets owned at cohabitation and income and assets derived thereafter to matrimonial purposes.  The mother’s financial contributions greatly exceed those made by the father.

20. The mother has been solely responsible for the child’s care and her contribution as a homemaker and parent is all but absolute. 

21. The orders will not affect either party’s earning capacity.

22. I have already made findings in relation to paid child support with future child support to be considered pursuant to s 75(2). There are no s 79(4)(b) contributions which require consideration.

23. Albeit on an asset pool structured slightly different to that as found, the mother argued her contributions and non s 75(2) factors warranted findings in her favour as to 90 per cent compared to the father’s 10 per cent.  No submissions were made by the father contrary to a 90 percent to 10 percent outcome.  I agree that 90 per cent in favour of the mother is appropriate. To achieve this there will be an adjustment in the father’s favour (rounded out) of $14,000.00.

Section 75(2) factors

1. It was submitted on the mother’s behalf that the Court would make the following findings in relation to s 75(2):

   ·she has the primary care of the parties’ 2½ year old child and will do so for the foreseeable future without any or any significant physical or financial assistance from the father;

   ·the father has received substantial financial assistance from the mother, both prior to and during the marriage;

   ·both parties have the capacity to engage in full-time employment at similar incomes;

   ·both parties are in excellent health;

   ·the father has a financial resource in his financial skills and contacts;

   ·the mother questions the father’s future contributions or commitment to the support of the child.

2. On the father’s behalf it was contended that the application of s 72(2) would result in the Court finding:

   ·the father is 40 years and the mother is 38 years. 

   ·neither has any health issues;

   ·the mother has an income more than double the father’s ($8,975.00 compared to $4,284.00 per week);

   ·the father has no net assets whereas the mother has considerable assets;

   ·the mother has a financial resource in the form of assistance from her parents;

   ·both parties have and are utilising capacity for gainful employment;

   ·the mother has the predominate care of the only child of the marriage;

   ·neither party has responsibility to support another person;

   ·the mother has nearly three times the superannuation of the father;

   ·the father pays child support as assessed;

   ·the father will have continuing high costs of travel in order to develop and maintain a relationship with the child;

   ·cohabitation was short.

3. It will be apparent that the areas of disagreement relate to child support and the similarities or differences in the parties’ financial circumstances. 

4. The parties swore financial statements in relation to their current circumstances. 

5. The mother discloses an average weekly income in the amount of $8,975.00, which comprises $7,500.00 as a consultant and $1,475.00 rent.  It is appropriate to include an additional $361.00 child support which brings her average weekly income to $9,336.00 or $485,472.00 per annum.  It is unlikely the mother will work 52 weeks a year and a better guide to her annual income is to assess her as likely to work about 45 weeks per year which means, excluding GST, her annual income is in the vicinity of $432,972.00.  Her average weekly expenses are about $1,950.00.  Calculated weekly, she pays about $2,100.00 tax, $675.00 superannuation and, excluding credit card expenses and legal fees, her total personal expenditure is in the vicinity of $2,800.00.  Combined this amounts to about $4,750.00 per week.  Her inclusion of credit card payments in the amount of $9,127.00 (Amex) and $5,039.00 (Visa) per week distorted her financial disclosure.  I do not accept these payments reflect her “average weekly amount” paid on credit cards.  Her expenses include childcare which she presently pays $439.00 net per week and the balance of the child’s expenses.  In this regard, while the father will reasonably regularly visit the child in Australia the amount of time he and the child will have together is unlikely to moderate the mother’s costs in maintaining the child. 

6. On balance, I am satisfied the mother’s income exceeds her expenses.  She and the child enjoy a comfortable standard of living whilst she simultaneously devotes a significant component of her income to wealth creation.  She has the assets and liabilities identified earlier, as well as whatever remains from the $162,000.00.  Because her income exceeds her expenses it is likely she retains a reasonable proportion of this sum.  I am far from certain that the mother’s father expects her to pay him $92,000.00 for his legal services.  He claims no expertise in family law and until immediately prior to this hearing the mother utilised his services without payment.  In short, he has been a financial resource both in this regard as well as in the provision of accommodation and as a conduit for the $580,000.00 which she will repay.  The mother’s asserted liability to him in relation to legal fees is not accepted. 

7. Prior to the parties commencing cohabitation the mother established a consulting business which, in the year immediately preceding cohabitation, produced an income in excess of $350,000.00.  When she and the father worked in Singapore her income exceeded his.  After two years absence from the paid workforce the mother has resumed her career, in relation to which she earns more than the father.  In addition, she has income producing assets and superannuation.  Because I have excluded from the asset pool the parties’ paid legal expenses and associated liabilities, the mother also carries liabilities in addition to those which support Sydney Suburb 2 and Sydney Suburb 1. 

8. According to the father his total average weekly income is $4,608.00.  This is the equivalent of $240,000.00 annually.  When his December 2011 bonus and car allowance are included, his total annual income is $294,000.00 which is the equivalent of $5,654.00 per week.  His total personal expenditure is $5,104.00 per week.  Relevantly, this includes $1,071.00 tax, $894.00 rent, $346.00 child support (to increase to $361.00), $500.00 food, $207.00 club membership and $300.00 entertainment and hobbies. 

1. Provision is not made in his average weekly expenses for travel to Australia and costs associated therewith.  Depending on the duration of the trip, he incurs costs of between $2,000.00 and $6,000.00.  Assuming monthly visits, at $4,000.00 per trip, this is the equivalent of $920.00 per week.  I do not accept costs at that rate are reasonable or necessary.  Assuming monthly trips of 3-4 days duration average costs in the vicinity of $2,500.00 per trip are appropriate.  Although I accept some trips will be longer and the father may not travel to Australia every month, provision for about $500.00 per week for this purpose is appropriate.  In addition, he will incur at least annually, the costs involved in having his mother come to Australia to spend time with the child.

2. Presently, the father earns more than the evidence discloses he previously has.  Since separation, he has had two changes of employer and one period of unemployment.  While it is likely he will generally earn a good income the future of his employment with Company 1, which is a new venture, is not entirely certain.  Although the father is optimistic about his future, his capacity to earn a good income without perhaps, future gaps through unemployment, is uncertain.  Comparatively, the mother, even after a gap in employment to train for a sporting event and then to care for the child, has shown a capacity to reliably earn an income greater than the father.  This is a factor which weighs significantly in the father’s favour. 

3. So that it is clear, while I accept the mother’s childcare responsibilities warrant an adjustment in her favour, I am satisfied that notwithstanding her having the child’s ongoing care she will probably always earn more than the father and earn a very good income.

4. Other than the child, neither party has any responsibility to support another person.

5. Both parties maintain a standard of living which is reasonable. 

6. The father will pay significant child support in the amount assessed and, proposes to contribute half the child’s day care costs (from 2012) and school fees.  To put the issue beyond doubt he will be ordered to do so.

7. The outcome of the assessment of contributions and other factors has resulted in the mother receiving 90 per cent of the available assets.  These findings have already been considered pursuant to subsection (b) and do not warrant further adjustment pursuant to subsection (n).

8. There are no additional factors which require consideration.

9. Having regard to all of the s 75(2) factors it is appropriate that there is an adjustment in the mother’s favour of 7 per cent, which equates to $29,302.00.  Because the father does not have this sum, it is appropriate (as he offered) that the mother receives his MLC superannuation.  This is worth slightly more than the adjusting amount which I have found the mother should receive.  However, as she will wait many years before she can use these funds and this accords with the father’s application, it reflects an appropriate s 75(2) adjustment.  This is a small but nonetheless appropriate recognition of her parenting responsibilities in the overall context of my s 75(2) findings.  In effect, the outcome of the proceedings is that the mother will receive virtually all of the parties’ assets while the father is left with little, his debt to Mr Z and the balance due to his lawyers.

Section 79(2) – is this outcome just and equitable?

1. Because the Court must consider the actual orders, not just the percentage distribution under s 79(2), justice and equity in cases like this requires that the Court stands back and looks carefully at the outcome of the s 79(4) and s 75(2) process. It is at this stage that the Court considers the actual structure of the orders. The effect of my contribution findings and findings under s 75(2) are that the wife will retain slightly more than 97 per cent of the net assets, or assets to the value of $609,102.00, and the husband will retain slightly less than 3 per cent of the net assets or $16,591.00.

2. It was the mother’s argument that she should have 100 per cent of the net assets.  Subject to him being able to retain his modest personal items, savings and purchased rights, the father agreed.  The facts in this case did not justify the father being left all but penniless and with nothing more than future income.  While both parties leave the marriage with fewer net assets than at the commencement of cohabitation, the mother has two valuable properties which provide a sound foundation for future wealth.  Notwithstanding her vastly greater responsibilities for the child’s future care her income through paid employment exceeds the father’s.  Indeed, her capacity to earn income from employment is considerably more secure than his.  Although the dollar adjustment made in her favour pursuant to s 75(2) is small, comparatively so is the asset pool.  In the unusual circumstances of this case, including the disclosure issues to which I have made reference, I am satisfied the outcome is just and equitable.

Spousal maintenance arrears

1. In relation to the modification of spousal maintenance orders (which includes discharge retrospectively to such date as the Court considers appropriate), s 83 of the Act is the governing provision. Section 83 is set out below:

   (1)  If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:

   (a)  made by the court; or

   (b)  made by another court and registered in the first mentioned court in accordance with the applicable Rules of Court;

   the court may, subject to section 111AA:

   (c)  discharge the order if there is any just cause for so doing;

   (d)  suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;

   (e)  revive wholly or in part an order suspended under paragraph (d); or

   (f)  subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

   (1A)  The court’s jurisdiction under subsection (1) may be exercised:

   (a)  in any case in proceedings with respect to the maintenance of a party to the marriage; or

   (b)  if there is a bankrupt party to the marriage on the application of the bankruptcy trustee; or

   (c)  if a party to the marriage is a debtor subject to a personal insolvency agreement on the application of the trustee of the agreement.

   (2)  The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

   (a)  that, since the order was made or last varied:

   (i)  the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

   (ii)  the circumstances of the person liable to make payments under the order have so changed; or

   (iii)  in the case of an order that operates in favour of, or is binding on, a legal personal representative the circumstances of the estate are such;

   as to justify its so doing;

   (b)  that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

   (ba) in a case where the order was made by consent that the amount ordered to be paid is not proper or adequate;

   (c)  that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

   (3)  Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first mentioned order is made for the purpose of giving effect to this Part.

   (4)  In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

   (5)  The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

   (5A)  In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:

   (a)  the other party; or

   (b)  any other person for the benefit of the other party.

   (6)  An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

   (6A)  Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second mentioned order since the specified date, being moneys that would not have been required to be paid under the second mentioned order as varied by the first mentioned order, may be recovered in a court having jurisdiction under this Act.

   (6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

   (7)  For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.

   (8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

2. The approach to s 83 was considered in Wreford & Caley (2010) 43 Fam LR 1 and Vakil v Vakil (1997) FLC 92-743 where the Full Court considered “just cause” in the context of an application to discharge arrears of spousal maintenance. Their Honours in Vakil and Wreford & Caley agreed with Lindenmayer J in Lutzke & Lutzke (1979) FLC 90-714 that the words “just cause” must be interpreted in the context of the Act as a whole “and in particular with regard to the other specific provisions of the Act which relate to maintenance”. Thus, a “cause” for the discharge of a maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

3. In relation to spousal maintenance, their Honours in Wreford & Caley agreed with Vakil that in deciding whether there is just cause to discharge an order of this type the Court would consider, inter alia:

   ·    the right of a spouse to maintenance (s 72);

   ·    the matters to be taken into account in relation to spousal maintenance (s 75);

   ·    the duty of the Court to end financial relations (s 81); and

   ·    the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life (s 43(a)).

4. It was something of a surprise that the mother, even after she returned to full-time work and was earning more than the father claimed her changed circumstances did not justify a reduction or discharge of the interim spousal maintenance order.  Her counsel, in closing addresses, appropriately conceded her position was at odds with a proper application of the law.

5. I have already indicated my satisfaction that the father was unemployed from 2 December 2010 until April 2011 and that he was not paid for his work with Company 1 until June 2011.  The effect of this was that he lived by realising his modest assets, borrowing money from friends and on credit.  I have no doubt that during this period his necessary expenses absorbed his resources.  His financial position was sufficiently difficult that he found himself in conflict with the Inland Revenue Authority and defaulted in relation to various policies and credit cards.  I have accepted his evidence that his travel related to him establishing connections which, in turn, resulted in his work with his current employers.  So that it is clear, I am satisfied that the high income earned by the father when the interim spousal maintenance order was made was no longer available.  These matters weigh in favour of just cause to discharge as at the date to which the interim spousal maintenance order is paid.  Weighing against this is the mother’s right to spousal maintenance and her having the care and control of the parties’ son.  However, it is noteworthy, that in 2010 the mother informed the ANZ Bank that she could repay an $804,000.00 loan without spousal maintenance.  The point being, she represented to the ANZ Bank that she was able to support herself, as well as service the proposed mortgage, notwithstanding she had the care and control of the parties’ son.

6. The effect of these matters is that I am satisfied the father has established a just cause for the discharge of the interim spousal maintenance order and arrears to the date to which they are paid.  The same findings which establish just cause for discharge warrant the favourable exercise of the Court’s discretion to give that result.

Child support departure application

1. The obligation to pay child support is created by the provisions of the CSAA. Section 3 contains the obligation that parents maintain their children. The objects of the Act are found in s 4. Each of the objects need to be borne in mind when deciding an application under the Act. Section 4(3) of the Act recognises the desirability of parents reaching agreement for the financial support of their children. Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part 7 include:

   a)that the children have their proper needs met from reasonable and adequate shares in the income, earnings capacity, property and financial resources of both of their parents and

   b)that parents share equitably in the support of the children.

2. The Full Court of the Family Court in Gyselman (1992) FLC 92-279 set out a three step process that courts must follow in determining an application for a departure order under s 117. The first is whether one or more of the grounds in s 117 is established. If so, the next step is whether it is just and equitable within the meaning of s 117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s 117(5) to make a particular order.

3. In Lightfoot & Hampson (1996) FLC 92-663 and Wylde & Ballard (1997) FLC 92-771 the principals established in Mee & Ferguson (1986) FLC 91-716 are identified as relevant to a departure application that concerns costs associated with attendance at private fee paying schools. In essence, the principles that emerge from that case are as follows:

   a)Where the non-custodian has agreed to the child attending a private school, that person is liable to contribute to the fees involved so long as and to the extent that he or she has a reasonable financial capacity to do so.

   b)Where the non-custodian has not agreed to the child attending such a school, he or she is not liable to contribute to those expenses unless there are reasons relating to the child’s welfare which dictate attendance at that school, rather than a non-private school.  In such a case the non-custodian is required to contribute to the extent that he or she has a reasonable financial capacity to do so.

   c)The mere fact that a non-custodian can afford the fees or is a wealthy person is not in itself a reason for imposing that liability.

4. So that it is clear, once a valid application for departure has been made the question of departure from the administration assessment provisions of the Act in respect of any future years may be considered. (Dwyer v McGuire (1993) FLC 92-420).

5. It is appropriate to set out in full the child support departure orders sought by the mother.  These are set out below:

   15.That within 28 days and pursuant to Section 123A of the Child Support (Assessment) Act 1989, the Liable Parent provide child support to the Carer for the child [J] born [in] November 2008 by way of lump sum payment of $93,893. This amount to be credited against any administrative assessment of child support of the Liable Parent:

   15.1.1. for the period 24 June 2011 to 21 September 2012;

   15.1.2. 22 September 2012 to 21 September 2016

   16.is to be credited as to 100% of the annual rate of periodic child support payable by the Liable Parent until the lump sum is exhausted and is to be paid in addition to the non-periodic child support payable under Order 16.

   17. An Order pursuant to S124 of the Child Support (Assessment) Act 1998 that the Liable Parent pay to the Carer by way of non-periodic child support and is in addition to the lump sum child support under Order 15:

   17.1.1 50% of all school fees (defined as tuition fees, levies, compulsory building fees, school uniforms and shoes, sports uniforms, school books, excursions, private tutoring fees, school related equipment including laptops, books and school related events at [School 1] or at such other private school as agreed to by the parties. These payments to be made to the mother within 7 days of the emailing of the invoice by the mother;

   17.1.2. 50% of all child care fees. These payments to be made to the mother within 7 days of the emailing of the invoice by the mother;

   17.1.3. Payment of 50% of all private health fund for the child at the level to which the child is currently insured and an amount equal to 50% of the gap payment for medical, hospital, optical, dental, orthodontic, physiotherapy, alternate therapies and other similar expenses in relation to the child which are not covered by the private health fund rebate. These payments to be made to the mother within 7 days of the emailing of the invoice by the mother.

   18.That in the event that the husband is unable to pay the sum of $93,893 referred to in Order 15 within 28 days of the date of these Orders then he shall forthwith do all acts and things and sign all documents necessary to direct his employer to pay the $60,000 bonus payable to him in or about December 2011 to be paid directly to the wife; and do all such acts and things and sign all documents necessary to pay to the wife his entire MLC Masterkey Superannuation Fund account no. […] in accordance with Order 21.

   19.That in the event the husband does not pay the $93,893 to the wife in compliance with Orders 15(a) or 17 he shall pay to the wife the sum of $500 per week until such time as the full amount of $93,893 has been paid.

   20.That within 14 days of the date of these Orders the father pay to the mother the amount of $9,671.43 representing arrears in Child Support  as at 16 August 2011.

   21.That pursuant to Section 114 of the Family Law Act 1975 the father be restrained from departing Australia while soever there remains outstanding:

   21.1.spousal maintenance arrears pursuant to Order 12;

   21.2_.     the child support arrears pursuant to Order 19;

   21.3.the cost arrears pursuant to Order 13

   after 31 December 2011, the lump sum child maintenance referred to in Order 15, or any amount owed on the $500 a week pursuant to Order 18 and any amount owed pursuant to Order 16.

   22. That subject to Order 17 the husband’s MLC Masterkey Superannuation Fund account […] be split in accordance with the following:

   22.1That in accordance with paragraph 90MT(1)(b) Family Law Act 1975:

   22.2the wife is entitled to be paid the specific percentage of each splittable payment out of the husband’s interest in the MLC Masterkey Superannuation Fund account no. […]; and

   22.3.the husband’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband's interest in the MLC Masterkey Superannuation Fund account no. […] is correspondingly reduced.

   22.4.That the specified percentage for the purposes of clause 19 of the Order is 100%.

   22.5.That this Order have effect from the operative time and the operative time is 7 days from the date of service of the sealed copies of these Orders upon the trustee.

   22.6.That the trustee of the MLC Masterkey Superannuation Fund account no. […] shall do all acts and things and sign all such documents as may be necessary to:

   22.7.calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement created by clause 21.1 and 21.2 of this Order; and

   22.8.pay the entitlement whenever a splittable payment becomes payable out of the husband's interests in the fund.

   22.9.That the husband and wife do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to Rule 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the MLC Masterkey Superannuation Fund account no. […] to a fund of the wife’s choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

   That the court notes:

   22.9.1. the value of the transferable benefits from the husband's interests to the wife’s interests are calculated in accordance with Rule 7A.12 of the Superannuation industry (Supervision) Regulations 1994;

   22.9.2. pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2001 any payment from the husband’s superannuation interests in the MLC Masterkey Superannuation Fund account no. […] made after the trustee has rolled over or transferred the interests in favour of the wife as contemplated in clause 21.5 of this Order, is not a splittable payment; and

   22.9.3. the trustee will be relieved of its obligation to calculate and split payments under clause 21.1 of this Order in the event that the transferrable benefits are transferred to a superannuation fund of the wife’s choosing in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

1. The best evidence about the present state of the child’s relationship is found in the Family Report.  In this regard, on 8 August 2011, the Family Consultant observed the child together with his parents, alone with his mother and alone with his father.  Before this issue is explored in detail, it is useful to record that the child is a bright, responsive and active toddler.  He copes well with attendance at day care five full days a week.  He responds well to routine and is particularly close to his mother and maternal grandparents.  The child has met his developmental milestones in accordance with his chronological age and is generally in good health.  The mother’s kinesiologist believes he is wheat sensitive as a consequence of which the mother ensures his diet precludes wheat products.  Unfortunately, on the occasion of the child’s second birthday, this resulted in a dispute about the mother’s refusal to permit the child to eat a portion of the birthday cake provided by the father.  The evidence does not suggest the occasional ingestion of food stuffs which include wheat would be likely to make the child ill.  The mother’s rigid approach to this issue spoiled the day.

2. The evidence is consistent with the Family Consultant’s opinion that the child is “a trusting, confident and happy little boy” who responds “positively to adult attention and praise”.  She reported he was able to follow age appropriate directions and to ask for and accept help from childcare staff (who were strangers to him).  In all respects, he is a credit to his mother and the competent and devoted care he receives from her and her parents.  No issue was taken with the Family Consultant’s opinion that the child has a predictable and secure affectionate bond with his primary carer, namely the mother.  He has a similarly affectionate bond with his maternal grandparents.

3. The Family Consultant records her observations of the child with the father as follows.

   70.[The child] was facing away from the door (playing with his mother) when [the father] entered the childcare area.  In response to [the father] calling his name, [the child] turned and was observed to spontaneously smile and wave to his father.  He said “hi Dad” and complied with his father’s request for a hug before returning to his play activity.  He remained in close physical proximity to his mother and continued to engage his mother in his play.  However, he responded to the majority of his father’s questions.  At all times during observations, [the mother] was observed to refer to [the father] as “Dad” when talking to [the child] and was appropriate in encouraging [the child] to respond and to interact with his father.

   71When observed alone with his father, [the child] allowed his father to enter his personal space and to follow him around as he moved from activity to activity.  He was observed to respond to the majority of his father’s questions or instructions, of which there were quite a few.  He complied with his father’s requests for kiss and a cuddle.  When his father asked [the child] if he loved him, [the child] responded “yes”.  There was no observable reaction in [the child] when [the father] exited the childcare room.

   72.There was visible difference observed between [the child’s] demeanour and the style and pattern of play with his father, when alone with his father and when his mother was also present.  When his mother was in the room, [the child] appeared more relaxed and more confident in his play.  After lunch [the child] was observed to enjoy playing with a balloon with his father, pretending it was a soccer ball, as his mother (and the family consultant) watched on.  In this situation [the child] was observed to regularly look towards the mother for praise and reassurance.

   73.In all her interactions with [the child], [the mother] was observed to engage with [the child] in a warm, animated and age appropriate manner.  During observations involving both parents and [the child], the family consultant gained the impression that [the father], at times, seemed unsure how to engage in [the child’s] play, whether alongside the mother or in her absence.  He asked a number of questions of [the child] in what appeared to the family consultant to be an attempt to engage with [the child].  [The father’s] unfamiliarity with [the child] and his nervousness at being observed may have added to the difficulty he seemed to have in this regard, especially on occasions [the child] rebutted his attempts to engage or when he [the child] was distressed.

   74.In the morning, despite his facial expressions suggesting that he was unhappy with his mother leaving the childcare room and his verbally protesting her departure, [the child] coped with [the mother] exiting  the room. When she left the area, [the child] allowed himself to be distracted and returned to his play and exploring the room, along side his father, without significant difficulty.  The child care worked [sic] reported to the family consultant that throughout the day, [the child] regularly asked for his mother, but accepted the childcare workers [sic] reassurance without becoming upset.

   75.[The mother] said that during the day [the child] would typically have an afternoon nap between approximately 12pm and 1.30pm/2pm.  On the day of interviews, [the child] did not have nap.  Towards the end of the morning and as the afternoon progressed, despite his exuberant and boisterous play, [the child] was observed to become increasingly tired and seemed less able to regulate his emotions.  In this context he found it increasingly difficult to tolerate his mother entering and exiting the childcare room and he became increasingly distressed each time his mother left the room without him.  This distressed response was also observed late afternoon when the maternal grandparents, following a brief observation with [the child], left the child care facility.

   76.On two separate occasions, when [the child] became visibly upset and acutely distressed at his mother’s departure from the childcare room, he did not seek or accept reassurance and comfort from his father.  His father appeared not to understand the need to distract [the child] or how to (appropriately) distract him.  On the day of report interviews there was nothing to suggest that [the child] is able to use his father as a source of comfort at times of increased stress or anxiety. 

4. Although the father disagreed with minor aspects of the Family Consultant’s observation of the child with him, I accept her evidence.  She is a trained observer and reporter and, when she gave evidence, satisfied me she accurately recorded what transpired. 

5. The Family Consultant explained that the child has spent insufficient time with the father to establish and maintain a secure attachment to him.  This is common ground.  During the observation sessions, when the child became distressed or upset it was apparent that compared to the mother and maternal grandparents, he does not use the father as a source of comfort.  However, it does not necessarily follow that with effort by the father to spend time with the child a positive relationship may not be achieved.  Whether this can be achieved, according to the Family Consultant, requires that the child:

   ·is allowed to independently get to know his father and paternal family and develop a positive representation of them;

   ·that he has fun, positive experiences and memories of his father and their time together;

   ·for the mother to reinforce the child’s connection with the father, and

   ·for the father to be involved in significant activities, such as mealtimes, bath time, changing nappies/toileting, interactive playtime and activities of that nature.

6. An allied issue is the father’s capacity to soothe the child when he is upset.  To the Family Consultant, the father presented as unsure and hesitant in this respect.  His parenting skills would be enhanced by his participation in an educational program that focuses on child development issues.  While I have no doubt that the paternal grandmother has a wealth of information she would willingly share with him about child development, the unusual aspects of this case suggest additional information could be useful.

7. For some time the father has attended a psychologist with whom he discusses matters arising from the breakdown of his relationship with the mother.  Although not a focus of these consultations, he has obtained advice about how to get the best for the child from their time together.  The father was questioned about the effect on the child of nine months during which the father did not see or speak with him.  With respect to the father, he failed to appreciate the setback to the child’s developing relationship with him caused through his absence.  However, it is not hard to understand the father’s annoyance with questions about his failure to maintain other forms of contact in circumstances where his request for Skype contact be facilitated was rejected as “preposterous”.  It was pleasing to see that after this issue was explored with the mother during cross-examination, she agreed contact by Skype would be facilitated.

8. However, even with the information provided by his psychologist, the father appeared to struggle with how to discern the child’s emotional needs.  He is an obviously intelligent person who, if provided with good information about this matter, would apply that information to good effect.   That the father is willing and able to adapt his desire to spend time with the child by reference to information about the child’s emotional and development needs, is evident from the thoughtful approach contained in his ultimate suite of proposed parenting orders.  There one sees that issues raised by the Family Consultant were given careful consideration and his ambitions about his time with the child adjusted by reference to the information she provided.  That all proposals made by him do not ultimately find favour does not detract from the central point that his approach is considered and inclusive of good information in relation to the child.  It augurs well for him developing into a competent parent who is able to meet the child’s needs when they are together.  Because I do not know the types of education services available in Singapore it is inappropriate to make the fathers attendance a precondition to his spending time with the child.  It will a matter for his judgement to take into account the Court’s remarks that this is something, which if available, he should undertake.

9. The father has been disappointed about the lack of information provided by the mother about the child’s development. While she has provided good information from time to time she too is an articulate and intelligent person who, even if she did not wish to speak with the father, could provide a more generous word picture of their son’s development and life.  Such information can only enhance the father’s capacity to meet the child’s needs.  Before I leave this point, I do not propose to order the mother to provide a monthly report.  While I understand the father’s sentiment, it raises too high the risk of further proceedings.

10. One only needs to record the types of issues which have provoked disagreement and resulted in seemingly endless correspondence through lawyers to appreciate that as far as possible, the Court should make orders least likely to result in further litigation.  It is the mother’s assertion the father agreed with the Hebrew name she chose for the child.  Annexures “O” and “P” to her affidavit reveal that the father’s nominated Hebrew name was different.  The father denied he required DNA parentage testing to inform his decision about whether he would maintain a relationship with the child and/or contribute to his support.  This is inconsistent with orders previously sought by him.  There was an intense dispute about registration of the child’s birth.  The gravamen of the father’s evidence was that the mother capriciously registered the child’s birth without him being recorded as the child’s father.  Correspondence between solicitors reveals that the father was given the opportunity for his details to be included in the child’s birth registration, however refused because the mother insisted the child’s surname is the same as hers.  In these circumstances, the mother’s decision to register the child’s birth in the manner she did does not justify the father’s complaint that he is not on the child’s birth certificate.  The father has now been included on the child’s birth certificate.

11. It is also apparent that issues have arisen in relation to each trip made by the father to see the child.  Most are preceded by correspondence between solicitors and often the father has not seen the child with the frequency requested by him.  In summary, the father has visited the child in Australia as follows:

    ·from 25 November 2008 for six weeks in which he saw the child twice in hospital and thereafter each Tuesday and Friday (excluding 5 and 9 December 2008);

    ·9 April 2009 for one week in relation to which he requested time with the child daily.  The mother responded with an offer of time on 9, 11 and 13 April 2009.  The father arrived too late on 9 April and was unavailable on 11 April.  In the event, he saw the child once;

    ·between 15 May 2009 and 2 June 2009 in accordance with orders made on 6 May 2009 on nine occasions (with the paternal grandmother) for one hour;

    ·between 29 September 2009 and 6 October 2009 each second day with the paternal grandmother for an hour at a time;

    ·between 21 and 29 November 2009 at least once;

    ·17-18 December 2009 each day;

    ·4-11 March 2010 on five occasions;

    ·4-11 August 2010 on five occasions for an hour at a time.  The mother cancelled a planned holiday to facilitate the child’s time with the father;

    ·2-10 October 2010 on five occasions for an hour at a time;

    ·22-28 November 2010 on four occasions for an hour at a time.  This included the child’s second birthday.  After the argument in relation to the child’s birthday cake without good reason the father reported the incident to police.

12. The parties have different views about how well these visits have proceeded with the mother expressing concern that the father generally does not engage with the child and, if the child becomes upset, has not been able to comfort him.  The father claims greater involvement but expresses concern that the mother’s presence results in the child’s focus being on her and makes it difficult for him to, in effect, compete for the child’s attention.  The truth is probably a blend of these things.  However, because the duration of the child’s visits with the father are not dissimilar to the time spent with the Family Consultant, the setting and skilled nature of her observations justify far greater weight being given to what occurred there in preference to the parties’ different perspectives of the visits.

13. It will be apparent from the frequency of trips the father made until November 2010 that he put real effort (and money) into building a relationship with the child.  Nonetheless, it is easy to understand the mother’s disappointment that he turned down an offer of employment in Australia and failed to see the child between November 2010 and this hearing.  Although I accept the father’s evidence he has superior career prospects in Singapore, when considered from the child’s perspective, it is difficult to understand why he could not have spent the first couple of years of the child’s life in Australia and pursued his career overseas after he and the child had developed a sound attachment.  The effect of the father’s decision is that the child has been denied a strong bond with him.  It is quite wrong of the father to intimate that somehow the mother is responsible for this situation.  True it is, she could have been more generous in relation to the frequency and duration of the child’s time with the father during the father’s visits to Australia but the central point which the father cannot ignore is that given the opportunity to return to Australia for work and thus be near his son, he turned it down.

14. Nor do I accept that the father was unable to make even one trip to Australia during the nine month period.  His extensive travel elsewhere shows he had money for travel where this enhanced his career prospects.  A more balanced approach by him to his parental responsibilities would have resulted in at least one trip to Australia.

15. While these matters give reason to pause and consider whether the father is committed to the child’s relationship with him, the preponderance of evidence satisfies me he is.  Although the proceedings include financial matters, the father has committed significant effort, money and time to ensure his future relationship with the child.

16. According to the Family Consultant, it is important that future contact between the child and father is predicated upon consistency and predictability.  Incremental increases consistent with the child’s developmental gains and familiarity with the father are other important components.

17. As a general approach, the father’s proposed orders which would operate until Term 1 2014 are the arrangements most likely to build a good relationship between the child and him.  The mother’s approach is unduly cautious and includes supervision unnecessarily.  I am not satisfied the father poses a risk to the child and what is required, in the short-term, is that the child has a comfort figure present who does not diminish the father’s opportunity to care for the child and engage in the types of activities which the Family Consultant says are important to building their relationship.  As I have earlier commented, the child has a lovely relationship with his maternal grandmother who agreed (if the Court determined it is in the child’s best interests), for the child’s benefit, to facilitate his time with the father in the manner proposed by him.  In a similar vein, the paternal grandmother’s contact with the child is viewed positively by the mother and she too, is willing to participate in the father’s time as proposed by him.  On this basis, there would be 15 further visits, in the presence of a grandmother, before the father spent time with the child on his own.  By then, the child should be sufficiently comfortable with the father that daytime periods for the duration proposed by him should work well.

18. Thereafter, the father commits to visiting the child in Australia monthly and it would not be until December 2012 that overnight time would commence.  The father proposes the first two times overnight visits occur with his mother present.  If the father had a home or an environment familiar to the child where this would occur, at four years old, one night overnight at the time should be successful.  However, the father will be accommodated at hotels or apartments.  The sense I had from his evidence is that this is likely to involve constant change.  In my view, this is inconsistent with the Family Consultant’s recommendation for predictability.  The absence of a predictable setting for overnight time makes it appropriate to delay overnight time by another year.  This would coincide with the child starting school. By then, his relationship with the father should be on a sufficiently strong footing that changing where the child would spend the night with the father from visit to visit could be accommodated.

19. Starting school, however, is an exhilarating but also stressful time for children.  It is fundamentally important to a child’s long-term intellectual and educational success that Kindergarten starts well.  It is, therefore, desirable that the child is able to apply his energy to a successful introduction to school and that overnight time with the father commence after he has settled in.  Kindergarten Term 2 strikes the right balance in this regard.  Because the child will be older and thus more self sufficient when overnight time starts, although it would be nice, it is not essential that the paternal grandmother is present when this occurs. 

1. Although I am satisfied the father is committed to visiting the child monthly it is feasible this may not always occur.  Another period of unemployment, for example, would make monthly trips unattainable just as work travel commitments might interfere.  While the child is still developing his relationship with the father, it is difficult for him to understand his father’s presence, then absence; in other words, changes to their routine.  If the routine seriously breaks down incremental increases which build upon the child’s readiness to move from one settled arrangement to a new arrangement becomes problematic.  The points at which this is assessed as particularly critical are the father’s proposals for a full day (10.00 am to 4.00 pm), overnight and then the first period of school holiday time.  To ensure the child is as comfortable as possible with each of these incremental changes it will be a condition that in the preceding two months, the father spends time with the child monthly.  If he does not do this, the incremental increase will be delayed until he does.

2. It is, nonetheless, feasible that the child will be unsettled as each change occurs.  That the child is able to adapt to change, however, is evident from the relative ease within which he settled into full-time day care.  As was anticipated for a number of days he cried when the mother left but settled when she was one.  No doubt, his mother and maternal grandmother put in a lot of effort to prepare him for this significant change to his routine.  Similar efforts in relation to the child’s time with the father should achieve similar positive outcomes.  By this I mean the child moving beyond tears at change over and being unsettled in his father’s care and coming to enjoy their time together.  This may involve some distress for the child at changeover and, if the child becomes inconsolable the father allowing him to return to the mother earlier than the appointed time.  That events such as this occur, however, does not mean the parties should desist in their efforts to build the child’s comfort with the father and comply with orders which are, ultimately, designed to ensure they have the most meaningful relationship possible.  In short, changing the child’s circumstances in the manner discussed is in his best interests. 

3. When making parenting orders the Court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility.  The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied that an application of the presumption would not be in the child’s best interests.

4. The mother gave evidence of words used by the father shortly after the child’s birth which she interpreted as a threat. In circumstances where there is no history of conduct which falls within the definition of family violence used in the Act, I am not satisfied that the words attributed to the father come within the definition. Thus, the presumption applies.

5. In support of her argument for sole parental responsibility, the mother emphasised the difficulties in the parties’ communication and their conflicted relationship.  There is no doubt the parties are unable to communicate constructively, whether about the child or generally.  This is a situation to which both parties contribute and upon which each should reflect with embarrassment.  I doubt either would have achieved the level to professional success each has attained if they were unable to communicate effectively with others.  Yet, there are examples where, notwithstanding poor communication, the parties have been able to agree on major parenting issues.  For example, that the child will be raised in the Jewish faith, the type of schooling which is appropriate, and without orders that the child spend time with the father.  What is missing, however, is evidence of them being able to compromise.  The point being, their agreements have not required either to give ground on an important matter.

6. I am particularly troubled that equal shared parental responsibility will provide fertile ground for conflict which, in the long-term, could be disturbing for the child.  In cross-examination, the father showed himself capable of sarcastic, rude and domineering behaviour.  I understand his irritation with repetitive questioning and questions which suggested his interlocutor distorted his answers.  Nonetheless he revealed a style of communication inconsistent with constructive negotiation and an inability to communicate when irritated.  For her part, the mother demonstrated a greater capacity to deal with criticism.  However, as the birthday cake incident and her approach to the financial proceedings reveal she is capable of absolute rigidity and disinterest in compromise. 

7. During the hearing I raised the prospect that there is no order in relation to parental responsibility and thus the statutory scheme applies.  That this approach should not be adopted is one of the matters upon which the parties agree.  Because the child will live with the mother in a country different to his father, the factors to which I have just made reference persuade me that an order for sole parental responsibility in the mother’s favour is in the child’s best interests.  The mother will be required to keep the father informed (in advance if possible) in relation to major long-term decisions made in the exercise of her parental responsibility.

8. It is the father’s contention the child should have a hyphenated surname.  This is opposed by the mother who claims changing the child’s surname would be confusing for him.  I do not accept a change would be confusing or trouble him in any way.  He is young enough to take in his stride such a change.  The Family Consultant saw an advantage for the child in a hyphenated surname.  Essentially, she saw this as a public acknowledgement and reinforcement of his paternal heritage which might assist him to establish an identity or connection with the father.  

9. With respect to the parties, their approach to this issue appeared to be more about them than the child.  For this child, his friends will know him in the context of the Segan family.  The father is a fly in/fly out presence with his extended family resident in Africa.  This will be the public reality of the child’s life.  I do not accept that a surname is likely to materially enhance or detract from the child’s relationship or connection with the father.  Although this is a matter about which the father feels strongly, his application that the child’s name is hyphenated will be refused.

10. In the event the Court made orders along those sought by the father the mother asked that she have time with the child during December as well as the father.  Although he agreed it was not entirely clear how this agreement would be implemented.  Doing the best that I can it would appear the issue arises once the child starts spending time with the father during school holidays.  Accordingly, in relation to Christmas school holidays each alternate year the father will spend time with the child for one week commencing in January.

11. The mother proposed a series of orders for the child to spend time with the father on special occasions, such as Rosh Hasana, Pesach and birthdays.  Orders along these lines were not sought by the father and will not be made.  Nonetheless, if the father is in Sydney on these occasions the parties are encouraged to make arrangements so that the child enjoys some of these special days with the father.

12. The mother proposed an order which would require the father to follow the child’s dietary regime as advised by her.  Whilst consistency is appropriate and, notwithstanding the disagreement in relation to the child’s birthday cake, an order of that type will not be made.  While it is appropriate that the mother communicates this information to the father he has a sufficiently responsible approach to the child’s needs to decide what the child will eat during their time together. 

13. The mother seeks a series of passport orders in relation to the child.  There is no evidence the father has a passport in the child’s name or that he has attempted to obtain one surreptitiously.  As she will have sole parental responsibility, there is no evidential foundation associated with the child’s best interests for this style of these orders.  Nor is there good reason associated with the child’s best interests for mutual non-denigration orders.  I am not satisfied that the parties have or are likely to denigrate or permit anyone else to denigrate the other party in the child’s presence.

14. The mother applied for an order which would enable her to remove the child from the Commonwealth of Australia without the father’s consent provided that the travel was for a holiday of not more than three months.  The mother previously travelled with the child to Israel where, in addition to seeing maternal relatives, the child met his paternal grandfather.  The mother is well settled in Australia and the evidence does not indicate she has any plans or desire to live elsewhere.  Nor, does she presently plan to travel overseas with the child.  Nonetheless, because a three month holiday could interfere with the child’s ability to spend time with the father, she must give the father considerable notice about when this will occur.  So as not to disrupt the staged implementation of the child’s time with the father, the mother will not be permitted to take the child overseas in the two months which precede overnight contact and the first occasion of school holiday contact.

15. For these reasons I am satisfied the orders are in the child’s best interests.

I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 September 2011.

Associate:     

Date:              8 September 2011