Sellen and Sellen & Anor
[2017] FamCA 275
•3 May 2017
FAMILY COURT OF AUSTRALIA
| SELLEN & SELLEN AND ANOR | [2017] FamCA 275 |
| FAMILY LAW – CHILDREN – Best interests – Spend time with – Where there is one child who is seven years of age – Where the central parenting dispute relates to whether the child should spend four or five nights with the father during school term and the structure of that time – Where there is a high level of conflict between the parents – Where the single expert was unable to recommend one proposal over the other – Orders made that the child spend four nights per fortnight with the father – Orders made regarding holiday time, travel, passports and special occasions. FAMILY LAW – PROPERTY - Settlement in relation to marriage – Where it is agreed that the contributions made by the husband exceeded those by the wife – Where it is found that contributions were made in the proportions 75 per cent by the husband and 25 per cent by the wife – Where the parties agree that there should be an adjustment pursuant to s 75(2) in favour of the wife – Where the wife submits that there should be an adjustment in her favour of 17 per cent – Where the husband submits that there should be an adjustment in favour of the wife of 5 to 10 per cent – Where the appropriate adjustment is 12.5 per cent – Where orders are made to reflect an overall division of property in the proportions 62.5 per cent to the husband and 37.5 per cent to the wife. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, 65DAA, 75(2), 79 | |
| Cerini & Cerini [1998] FamCA 143 Gabel & Yardley (2008) FLC 93-386 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Kennon (1997) FLC 92-757 Robb & Robb (1995) FLC 92-555 Stanford v Stanford (2012) 247 CLR 108 | |
| APPLICANT: | Mr Sellen |
| RESPONDENT: | Ms Sellen |
| INTERVENOR | C Lawyers | |
INDEPENDENT CHILDREN’S LAWYER: | Stephen W Bell & Associates | |
| FILE NUMBER: | SYC | 2350 | of | 2014 |
| DATE DELIVERED: | 3 May 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 27 February - 2 March 2017 & 3 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Longworth |
| SOLICITOR FOR THE APPLICANT: | Doolan Wagner Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Beckerling |
| SOLICITOR FOR THE RESPONDENT: | Morris Alexander and Nelson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Breeze |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stephen W Bell & Associates |
| SOLICITOR FOR THE INTERVENOR: | C Lawyers |
Orders
Parental Responsibility
The mother and father will have equal shared parental responsibility for B (“B”), born on … 2010.
Living Arrangements
Except as otherwise provided in these Orders or as agreed between the parents in writing, the child will live with the mother.
During school term the child will live with the father on four overnight occasions each fortnight as follows:
In week 1 – from Thursday after school to before school on Friday
In week 2 – from Friday after school to before school on Monday
Subject to overseas travel or special days in accordance with these Orders or as otherwise agreed, during the shorter school holidays the child will live with the father during the first half of the holidays in even numbered years, commencing at the conclusion of school on the last day of term until 11.00 am on the second Sunday of each such period and in odd numbered years the child will live with the father from 11.00 am on the second Sunday of that school holiday period until the commencement of the first day the child is to attend school for the new school term.
Subject to overseas travel or special days in accordance with these Orders or as otherwise agreed, the child will live with the parents on a week-about basis during the Christmas school holidays, the father’s first week commencing at 10.00 am on the second Sunday of the holidays. Changeover will occur at 10.00 am each Sunday thereafter.
By consent, subject to overseas travel in accordance with these Orders or as otherwise agreed, the child will spend:
(a)from 6.00 pm on the Saturday before Father’s Day to 6.00 pm on Father’s Day with the father;
(b)from 6.00 pm on the Saturday before Mother’s Day to 6.00 pm on Mother’s Day with the mother; and
(c)from 3.00 pm to 6.00 pm with each parent on their respective birthdays.
If the child’s birthday is on a school day he will spend between after school and 7.00 pm with the parent he is not otherwise with. In the event that the birthday is not on a school day, if the child is otherwise with the mother on that day, he will spend between 1.00 pm and 6.00 pm with the father. If the child is otherwise with the father on that day, he will spend between 11.00 am and 5.00 pm with the mother.
Subject to overseas travel in accordance with these Orders or as otherwise agreed, the child will live with the father from 3.00 pm Good Friday to 2.00 pm on Easter Sunday in odd numbered years and with the mother during that period in even numbered years.
Subject to overseas travel in accordance with these orders or as otherwise agreed, the child will live with:
(a)the mother from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in odd numbered years and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in even numbered years; and
(b)the father from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in even numbered years and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years.
Overseas Travel
Each of the parents shall forthwith do all things necessary to obtain an Australian passport for the child and they shall jointly apply to renew his passport no later than nine months prior to its expiry.
The parents shall equally share the cost of obtaining and renewing the child’s Australian passport.
As to the possession of the child’s passport prior to or in between occasions of overseas travel by the child, the mother shall retain the passport from the time of issue and thereafter, the parent who most recently travelled with the child shall retain his passport. The holder of the passport shall provide it to the travelling parent as soon as practicable after he or she receives the copy documents referred to in Order 13(a), (b) and (c).
As to notice required for the child’s overseas travel, unless these Orders otherwise provide or the parties otherwise agree, the travelling parent shall provide the other parent with notice at least 56 days prior to the date of intended departure, including in that notice the proposed dates of travel and planned destinations. Not less than 14 days prior to departure, the travelling parent shall provide the other parent with copies of:
(a)the travel itinerary, including the details of all places at which the child will stay while overseas;
(b)B’s return airline tickets, including booking references; and
(c)travel insurance documents for that trip, being insurance which includes the child.
Unless the parents otherwise agree in writing:
(a)in 2017 the parents are permitted to take the child overseas during the July school holidays only, and:
(i)in the event that the father notifies the mother by 31 May 2017 that he wishes to travel with the child in those holidays:
(A)the mother shall arrange for the child’s travel for the first half of the holiday, including paying for the child’s travel from Australia;
(B)the mother will deliver the child to the father in City E on the middle day of the holidays or as close to that day as possible and the father shall arrange for the child’s travel for the second half of the holiday, including paying for his travel back to Australia;
(C)the parents will equally share the cost of the child’s travel from City D or another agreed city to City E on the middle day of the holidays;
(D)the father will reimburse the mother for one half of the cost of her return travel to City E to accompany the child, capped at the cost of economy class direct return travel between City D or another agreed city and City E;
(ii)in the event that the father elects not to travel or fails to notify the mother of his intention to travel by 31 May 2017 then the mother is at liberty to travel with the child to Europe for 14 days in the July 2017 school holidays provided she gives the father the notice in accordance with Order 13 above and returns the child to the father not less than 48 hours before the resumption of school;
(b)in 2018 the parents are permitted to travel overseas with the child during one of the shorter school holiday periods being the school holiday period nominated by the mother in writing to the father by the end of January 2018. The travel will be on the following basis:
(i)if the father notifies the mother within 30 days after her nomination of the holiday period of his intention to travel with the child for that period, he is permitted to travel with the child to Europe and:
(A)B will spend the first half of the period with the father and the second half with the mother.
(B)the father will deliver the child to the mother in City D on the middle day of the holidays or close to it, and the mother shall arrange for the child’s travel for the second half of the holiday, including paying for his return flight to Australia;
(C)the parents will share the cost of the child’s travel from City E or an equivalent city to City D on the middle day of the holidays and of the father’s return travel to City D from City E or an equivalent city to accompany the child;
(ii)in the event that the father elects not to travel or fails to notify the mother of his intention to travel within 30 days prior to the commencement of the holiday period, the mother shall be at liberty to travel to Europe with the child for 14 days provided that she gives the father seven days’ notice after the father’s election or failure to notify and returns the child to the father not less than 48 hours before the resumption of school;
(iii)in the event that the father elects to travel but the mother does not elect to travel in that same holiday period, or fails to notify the father of her intention to travel within seven days after the father’s notification, the father shall be at liberty to travel to Europe with the child for 14 days in that holiday period, provided that he returns the child to the mother not less than 48 hours before the resumption of school;
(c)in 2019 and each alternate year thereafter, the mother is permitted to remove the child from Australia within any school holiday period, provided:
(i)she gives the father notice in accordance with Order 13 above;
(ii)the period nominated does not fall over the Christmas public holidays except with the father’s written consent; and
(iii)she returns the child to the father not less than 48 hours before the resumption of school.
(d)in 2020 and each alternate year thereafter, the father is permitted to remove the child from Australia within any school holiday period provided:
(i)he gives the mother notice in accordance with Order 13 above;
(ii)the period nominated does not fall over the Christmas public holidays except with the mother’s written consent; and
(iii)he returns the child to the mother not less than 48 hours before the resumption of school.
(e)from 2019, in any year that the child travels overseas with one of the parents, the other parent is at liberty to travel overseas with the child for not more than seven days during a period of that parent’s holiday time on the basis that the travelling parent gives the other parent notice in accordance with Order 13 above.
Miscellaneous Parenting Orders
By consent, each of the parents shall facilitate the child’s attendance and participation in his existing extra-curricular activities, being language school, cricket and soccer together with any additional activities that are mutually agreed between them.
By consent, each of the parents is restrained from talking about the other parent in the child’s presence or hearing in a rude, nasty, unpleasant or disrespectful way.
By consent, when facilitating changeovers or any other event between the parents where the child is present, the parents shall ensure that they shall greet each other and otherwise act in a polite and respectful manner.
Each parent shall keep the other informed of his or her current telephone number, email address and residential address and in the event of a change in one of more of those details shall notify the other parent of the change as soon as practicable but in any event, no later than 48 hours after the change has occurred.
Each of the parents is restrained from enrolling the child in any new extra-curricular activity which will or could require the child’s attendance during his time with the other parent, without the written consent of the other parent.
Each of the parents shall inform the other as soon as practicable of any medical emergency affecting the child.
Each of the parents hereby authorises any health care professional who has treated the child or who treats him in the future to communicate with the other parent in respect of that treatment. The Court notes that each of the parents is at liberty to obtain, at their own expense, any information they may request from those professionals.
Each of the parents hereby authorises any school attended by the child to provide at the cost of the respective parents, copies of all school reports, photographs, orders, forms, invitations and correspondence to both parents. In the event that a school does not provide copies of that material to a parent, the parent who receives the material shall provide a copy of it to the other parent within three days of being requested to do so.
The parents shall advise each other of any birthday parties and school functions in which the child is involved as soon as practicable and shall ensure, where the parent considers it appropriate, that the child shall attend at those commitments when he is in his or her care.
Unless the parties otherwise agree in writing, during any period when the child is away from one parent for more than two days, the other parent shall ensure that there is telephone, Skype or other personal electronic communication between the child and the other parent between 6.00 pm and 7.30 pm on every second day.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property Settlement Orders
Within 42 days after the date of these Orders or within such further time as the parties may agree in writing, the father shall pay to the solicitor for the mother the sum of $696,413.
In the event that the father fails or neglects to comply with Order 26, he shall forthwith do all things and sign all documents necessary to cause the property at F Street, Suburb G in the State of New South Wales being the property described in title reference … (“the Suburb G property”) to be sold and for that purpose, to be listed for sale by an agreed agent and at an agreed price.
In the event that Order 27 applies:
(a)if the parties are unable to agree on the agent or sale price, the parties shall refer that disagreement to the nominee of the President of the Real Estate Institute of New South Wales who will act an as expert and whose decision shall be binding on the parties.
(b)pending the sale the father is responsible for the payment of all outgoings, the maintenance of building insurance to the market value and the maintenance of the Suburb G property in good and tenantable repair and shall indemnify the mother and keep her indemnified in respect of any loss arising from a failure to comply with those obligations.
(c)upon settlement of the sale of the Suburb G property the father shall irrevocably authorise and direct the agent and any solicitor acting on the sale to disburse the proceeds of sale in the following order of priority:
(i)in payment of the agent’s costs of sale;
(ii)in payment of legal fees incurred for the purposes of the sale;
(iii)in payment of any adjustments of rates, other utilities and taxes;
(iv)in payment to the solicitor for the mother the sum of $696,413; and
(v)in payment of any balance to the father.
The Court notes that the father is a director and shareholder of the company H Limited (“HL”) which owns three parcels of land in Country I (“the Country I properties”).
Within one month after the date of these Orders the father shall do all acts and things and sign all necessary documents to sell or transfer the Country I properties. He shall cause the proceeds of that sale or transfer to be paid in the following order of priority:
(a)in payment of the costs of sale;
(b)in payment to the mother of 37.5 per cent of the balance of the proceeds; and
(c)in payment of the remaining balance to the father.
For the purposes of Order 30:
(a)the father is restrained from doing anything to dispose of or encumber his shareholding in HL or his interest or the interest of HL in the Country I properties other than pursuant to these Orders;
(b)the father shall provide to the mother monthly progress reports as to his efforts to sell or transfer the Country I properties, including the details and particulars of the relevant stages of sale or transfer;
(c)pending the sale or transfer of each of the Country I properties pursuant to these Orders, the father shall pay any holding costs (such as council rates) and shall be reimbursed for such payments that arise after the date of these Orders, from the sale or transfer proceeds prior to the payment to the mother pursuant to Order 30(b) above.
Except as otherwise provided herein, the mother shall retain, to the exclusion of the father:
(a)all furniture, jewellery and other chattels currently in her possession custody or control;
(b)the Motor vehicle 1, registration number …, registered in her name;
(c)any funds standing to her credit in any Bank, Credit Union or Building Society account;
(d)any shares in any public or private company;
(e)any superannuation fund in which she has an entitlement; and
(f)all and any leave and long service, or any other employment benefits or entitlements.
Except as otherwise provided herein, the father shall retain, to the exclusion of the mother:
(a)all furniture, jewellery and other chattels currently in his possession custody or control;
(b)the Motor vehicle 2, registration number …, registered in his name;
(c)any funds standing to his credit in any Bank, Credit Union or Building Society account;
(d)his interest in Sellen Pty Ltd;
(e)any shares in any public or private company;
(f)any superannuation fund in which he has an entitlement;
(g)all and any leave and long service, or any other employment benefits or entitlements; and
(h)all of his right, title and interest in the Suburb G property.
Otherwise the mother and the father shall each be solely entitled to the exclusion of the other, to all property and resources in the possession of that party, being property and resources that were identified for the purposes of these proceedings but which have not been otherwise referred to in these Orders.
By consent, leave is granted to C Lawyers to intervene in the proceedings.
By consent, prior to disbursement to the wife of any moneys paid to her solicitors pursuant to Order 26 or Order 28(iv) herein, as the case may be, the sum of $61,241 be paid from those moneys into a Controlled Moneys Account established by the wife’s solicitors and the wife and the wife’s solicitors are restrained from disbursing or otherwise dealing with those moneys pending an assessment of costs between the wife and the intervenor and thereafter, other to give effect to that assessment.
The order for interim spousal maintenance which was last amended on 29 June 2015 is discharged as at the date of these Orders.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other, in relation to the wording or implementation of these Orders.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, where it is otherwise appropriate, the Registrars of this Court at Sydney are appointed pursuant to s 106B of the Act to execute such deed, document or instrument in the name of that party and to do all acts and things to give validity and operation to the deed, document or instrument upon the Registrar being provided with evidence of such refusal or neglect, by way of affidavit.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sellen & Sellen and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC2350 of 2014
| Mr Sellen |
Applicant
And
| Ms Sellen |
Respondent
And
C Lawyers
Intervenor
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are property settlement and parenting proceedings between Mr Sellen (“the father”) and Ms Sellen (“the mother”). Although the parenting arrangements for the parties’ seven year old son, B were mainly resolved, some narrow issues were left for judicial determination.
The property settlement dispute relates to the extent of the payments and other orders to be made in favour of the mother. There are disputes about the identity and value of assets but it is agreed that the father will retain a greater share of the property.
Applications
The father sought the orders in accordance with Short Minute of Orders marked exhibit 3.
As to parenting orders the mother sought orders in accordance with a Minute of Orders marked exhibit 1. The mother sought orders for property settlement in accordance with a minute of orders included in her “Papers for the Judge” dated and filed 21 February 2017.
Ultimately the Independent Children’s Lawyer (“ICL”) agreed with the parenting orders proposed by the mother with one variation in respect of the timing of telephone communication between the absent parent and the child.
The Hearing
The hearing commenced on 27 February 2017. The first day of the trial was taken up with settlement discussions in the parenting proceedings and with objections to affidavits. Notwithstanding the very narrow range of dispute, the parenting proceedings could not be resolved. The trial commenced on 28 February 2017. In order to complete the trial in the time remaining, it was necessary to extend sitting hours and impose time limits. On 2 March 2017 oral submissions were made and judgment was reserved.
On 26 April 2017 solicitors who had formerly acted for the wife filed an Application in a Case seeking to intervene in the proceedings in order to secure priority for costs owed to them by the wife and to preserve a fund pending the quantification of those costs by a taxing officer. That application was listed on 3 May 2017. The applicant appeared by a solicitor and mentioned the matter on behalf of the husband and the ICL. The solicitor for the wife appeared by telephone. Ultimately I was informed that the issues were resolved by an agreement to orders in terms of paragraphs 1 and 5 of the Application in a Case. By consent, I have incorporated the effect of those orders in the substantive orders made today.
Short History
The father is 54 years of age and the mother is 37 years of age. They commenced communicating online in 2004 and were married in 2008. According to the mother they commenced living together in 2006 when the mother stayed with the father in Australia. According to the father they did not commence living together until the time of their marriage. The parties separated in February 2014. Their divorce order was granted with effect from 25 June 2016. The child is the only child of the relationship and he was born in 2010. He was six years of age at the time of the hearing.
Credibility and Submissions
Some contentious factual findings fall to be made on the uncorroborated testimony of the parties. Importantly there were many allegations of violence made by the mother against the father; there were significant differences between the parties in relation to the extent of the non-financial contributions of the mother and of her father to house renovations; and diametrically opposed findings were sought in respect of the father’s ownership of real estate in South America and his beneficial ownership of property owned by a company in Country I. It is therefore necessary to say something about the credit of the parties.
The parties were the only lay witnesses called for cross-examination. English is not the first language for either party. The father grew up in European Country J but his high school education incorporated English studies. The evidence included business correspondence by and to him in English. The father worked and was involved in business projects in England and Australia as well as some countries in which English is not the first language. The mother grew up in European Country K and her education there also included English language lessons in high school. She has undergraduate and post graduate degrees from a Country K university. Those studies were undertaken in Country K. The mother has also undertaken studies in Australia. She is currently enrolled in studies for a Diploma in Law. The parties communicated with each other in English and to my observation they each have good facility in English. Because of answers given, both parties were warned by me during their cross-examination about the need to be careful in responding to questions.
A very serious problem arose in relation to the mother’s affidavits. In relation to what were purported to be copies of emails, including emails between her and the father, the mother said that in at least some instances, the emails reproduced in her affidavits were emails selected from a chain of emails exchanged between the parties on a particular issue or at a particular time. She was asked about the process of collating and presenting the emails as annexures to her affidavit and about her choice of emails to include in the affidavits. The effect of the mother’s evidence was that in each case she did not undertake those tasks. I understood her to mean that her solicitor or someone else made those selections and reproduced the emails for attachment to her affidavit. In some instances the “responding” email selected for the mother’s affidavit had a different header or subject line from the email to which it was asserted to be responding. No inference adverse to the father could be made based on that material. If an assessment was to be made of the father’s response to a communication from the mother, all of the email exchanged in that chain of communication should have been reproduced. The risk of course, is that the mother or someone else was selective in the choice of emails to reproduce in the mother’s case, so as to advantage her or to disadvantage the father.
Even in normal circumstances there are difficulties with verifying the fact and content of email communications. An email is an electronic message and has no physical form. Normally challenges to the accuracy of copies of emails are resolved by another party to the communication verifying the contents from their memory, from a record kept by them in electronic or hard copy form or from the records of an internet service provider of the messages dispatched or received by that person. Here however, no attempt was made on the mother’s behalf to provide independent corroboration of any email or to isolate some emails from others that cannot be adequately proven. It was the unchallenged evidence of the father that he no longer has electronic access to some of his former email accounts, including business accounts and some of the emails in question were apparently sent from or received at the father’s email address on those accounts. Therefore the father was not in a position to satisfy himself or the Court about the accuracy of the mother’s evidence.
The father was taken to some of the emails attached to the mother’s affidavits and indicated that he recognised some and not others. He said that some of the emails purportedly written by him, could not be his. I understood him to mean that the presentation or expression of the emails were not in a form used by him and or that the meaning conveyed was inconsistent with any meaning he had sought to convey. He agreed with the contention put to him, that in his view, some of the asserted reproduced emails were forged or changed. Justifying the father’s concerns in the latter regard is the fact that one purported email from the mother to him was reproduced in two different affidavits sworn by the mother and the versions are different. The mother attached a purported copy of an email from her to the father sent on 21 October 2010 at 9:51. In the version that appears as an annexure to her affidavit filed 4 June 2014 (page 42 of 54) there is a sentence: “You behavior is inappropriate.” In the version attached to the mother’s trial affidavit (page 84), the same sentence appears as: “You behaviuor is unappropriate” When asked about that in cross-examination the mother responded to the effect: “what does it matter, it is only spelling”. Her counsel suggested a similar sentiment in his submissions on credit.
Of course, the problem is nothing to do with spelling. It is that the annexures to the mother’s affidavits cannot be relied as faithful reproductions of the parties’ email communication. The offending email came to light by accident. I noticed the different wording. It is not for me to undertake a review of all of the emails reproduced in the mother’s affidavits over the years. Once this problem came to light, it was then for the mother to distinguish it from what could have been an otherwise faithful representation of other correspondence with the father. Nothing of that nature was done. Suffice it to say that, except where there is a concession from the father or other reliable evidence, the mother’s affidavits cannot be relied on to verify the fact or content of any email communication.
In some instances the mother repudiated her preparation of the affidavits. She gave evidence of an incident said to have occurred when the parties were together in Country J on 10 September 2010. The father disputes the evidence but even on the mother’s evidence, there are problems. In an affidavit sworn by the mother on 4 June 2014 and filed that day, she deposed at paragraph 22:
On 10 September 2010 we were in Country J. Following a verbal argument [Mr Sellen] punched me twice on my left arm, once in the kidney and twice in the left leg. He also threw a can of salt at me that hit my left eye and damaged it.
In respect of the same incident, the mother deposed in her trial affidavit at paragraph 90:
During this argument, the Applicant Father punched me twice on my left arm, once in my kidney, twice in my left leg, and he threw a can of salt that nearly hit my left eye.
The mother was asked about the difference in that evidence as to whether she was struck and injured by the can of salt or was narrowly missed by it. She said words to the effect that the trial affidavit is correct and that the words used in the earlier affidavit were not hers. I understood the mother’s testimony to be that the earlier wording was provided by the lawyer who drew the affidavit and that she did not properly check the affidavit before signing it. It beggars belief that a lawyer drafting an affidavit on the mother’s instructions would, unaided, invent a different version of an event. I find it impossible to identify a credible explanation for the different versions and none was offered to me.
I should say that as a result of the parenting orders sought by the mother and the concessions made in her case, I was not called upon by the parties to make findings about significant family violence. However, the concern here is credit.
Suffice it to say that the mother’s testimony in relation to that incident cannot be relied on. The mother was at least, careless in the preparation of her affidavits.
Of perhaps less importance but lending further support to the concern that the mother’s affidavit evidence cannot always be relied on, the mother was asked in cross-examination about when she “commissioned” an asset trace in respect of the father’s assets in Country I. The mother indicated that she did not understand the meaning of “commissioned” and was provided with synonyms from the bench and bar table to assist her understanding. It transpired that the original question was framed in the precise terms used in the mother’s trial affidavit, where at paragraph 189 she deposed: “At the end of 2014, I commissioned a private asset trace in the Applicant Father’s Country I assets ...” It is unlikely that the mother knew the meaning of “commissioned” when she swore her affidavit but forgot it when cross-examined. Again, the inference is that the affidavit was drawn by someone other than the mother and that either she did not read her affidavit before she executed it or that she did not ensure that it faithfully represented her testimony. In either event, except where they report on uncontested, agreed or otherwise corroborated facts the mother’s affidavits cannot be relied on.
There were also issues with the father’s evidence. He was asked whether he joined in an application to sponsor the mother to migrate to Australia in January 2008. He ultimately said that he had not. It transpired that he signed a form in respect of the application in January 2008 – exhibit 7. The case before me was argued on the basis that there was relevance in the date the parties commenced their cohabitation. The father would have it that the relevant relationship commenced on marriage in 2008. In exhibit 7 he declared that he and the mother made the decision that they both wanted to commit to a long term spouse or interdependent relationship or intended to marry from 25 December 2006. In my view the father’s representations are inconsistent.
The father initially disclosed that he owned two properties in Country I. That was his evidence at paragraph 20 of an affidavit of 30 June 2014. He gave a similar response[1] to specific questions administered in 2014. In his trial affidavit at paragraph 17.1 he deposed to purchasing three plots of land in European Country I, two in L Town and one in M Town. The father was asked about that in cross-examination and responded to the effect that his earlier evidence was mistaken. He had ignored or forgotten the third property as he contended that it had no significant value.
[1] Letter dated 14 November 2014 from the father’s solicitors to those of the mother – part of exhibit 4
In final submissions I was invited to prefer the evidence of one of the parties over that of the other on all disputed issues that fell to be decided on uncorroborated testimony. The concept was that one of the parties’ credit inadequacies were significantly greater than those of the other. English is the second language for both parties. Memory is an unreliable thing, with its accuracy being affected by time, perspective and the processes of storing and recalling events. Two otherwise well-motivated witnesses can honestly have a very different recollection of the same event. Such is the antipathy between the parties that even if they were equally motivated to provide a candid version of events, they may genuinely be incapable of doing so. I cannot simply rely on one of the parties’ testimony to the exclusion of the other. I will make findings on disputed issue of fact, issue by issue.
Background Facts
The father was born in Country J in 1962.
The mother was born in Country K in 1980.
In 1991 the father moved to Australia. He is now an Australian citizen.
In 1996 the father purchased a plot of land at N Street, Suburb O (“the Suburb O property”) for $28,000. He caused a house to be built on that land which was completed in approximately 2002.
In 2004 the mother and father commenced communicating on an online dating website. The mother was residing in Country K at that time.
In August 2005 the mother travelled to Australia to meet the father. She again visited the father in Australia for a period from January 2006, and again in late 2006 to early 2007. The parties continued to travel to see each other during 2007 and 2008. It is the mother’s contention that the parties’ cohabitation commenced in 2006.
In 2005 the father purchased two plots of land in Country I. He later purchased a third.
In February 2006 the father purchased a property at F Street, Suburb G for $810,000. He paid $376,000 made up of savings and the proceeds of sale of another property owned by him and obtained a mortgage to the National Australia Bank for the balance.
Over the period from March 2007 to October 2008 the father worked in the UK. During that time the parents spent various periods of time together including in Country J and the UK.
From November 2008 to May 2009 the father was not in paid employment.
In November 2008 the mother moved to Australia. She now has permanent residence status in Australia.
In 2008 the mother and father were married in Australia. On the father’s evidence, the parents commenced cohabitation at that time.
From May 2009 to December 2009 the father was employed in Country J. The mother joined him there in July 2009 once she had obtained the appropriate visa. The mother and father returned to Australia in November and December 2009 respectively. The father stayed in Australia for a few weeks and then returned to Country J for work.
From January 2010 to June 2011 the father worked part time and was paid only amounts to cover costs of flights, livings costs and local travel.
In 2010 the child was born in Australia. The father returned to Australia two weeks after his birth and remained here for either three weeks on the mother’s version or five weeks on the father’s version, before returning to Country J.
In July 2010 the mother and the child joined the father in Country J. On 2 November 2010 the mother, father and the child returned to Australia. The father again travelled to Country J in early 2011. The mother and the child spent several months in Country J living with the father. They returned to Australia in August 2011.
In April 2011 the Suburb O property was sold. The net proceeds of $381,153 were applied to the mortgage secured against the Suburb G property.
From approximately July 2011 to April 2012 the father was not in paid employment.
In December 2011 the NSW Police obtained an Apprehend Violence Order (“AVO”) against the father for the protection of the mother for a period of six months. The father consented to the order, without admissions.
From May 2012 to November 2016 the father was employed by P Limited on contract. The father did not work on Fridays and worked from home on Thursdays to spend time with the child.
In 2014 the mother became an Australian citizen.
On 7 February 2014 there was an incident between the mother and father at the former matrimonial home and the police subsequently applied for an interim AVO against the father for the protection of the mother. The AVO was made final on 17 July 2014. The order was made with the father’s consent but without admissions.
On 17 February 2014 the mother and father separated. The father remained in the former matrimonial home and the mother was displaced. She and the child lived in refuge accommodation for a period.
On 22 April 2014 the father commenced these proceedings in the Federal Circuit Court in relation to parenting issues.
On 4 June 2014 the mother filed a Response seeking both parenting and property orders.
On 5 June 2014 the parenting proceedings were heard on an interim basis by Judge Monahan. Interim orders were made for the child to spend time with the father each Friday from 9.00 am to 3.00 pm, on Sunday from 9.00 am to 3.00 pm on each alternate weekend and for three intervening weekends from Sunday at 9.00 am to Monday at 9.00 am commencing 15 June 2014. The father was ordered to submit to urinalysis testing when requested to do so by the ICL.
On 17 June 2014 the parenting orders were amended to provide that the child spend time with the father on Fridays from 1.00 pm to 5.00 pm, Sundays from 9.00 am to 3.00 pm, and for three alternate weekends from Sunday 9.00 am until Monday 9.00 am and thereafter, fortnightly from Saturday 9.00 am to Monday 9.00 am. A further order was made that the father attend for supervised urinalysis drug testing within six hours of a request by the ICL, and that the father be restrained from consuming alcohol or illicit drugs prior to or during times when he cared for the child.
On 22 August 2014 orders were made providing that the child live with the mother and spend time with the father in a fortnightly cycle, including overnight time.
On 1 December 2014 orders were made to transfer the proceedings to the Family Court at Sydney. By consent, orders were made to appoint a single expert in the parenting proceedings. The father was ordered to attend for urinalysis testing within 12 hours of a request by the ICL and orders were made to obtain a valuation of items of property including the Suburb G property.
In January 2015 the child commenced attending school.
On 6 May 2015 orders were made by consent providing that the father pay to the mother $50 per week by way of interim spousal maintenance. Further orders were made providing for the father to sell his shareholding in IAG Limited and pay the proceeds to the mother by way of partial property settlement.
On 29 June 2015 orders were made by way of partial property settlement that the father pay the mother a total sum of $35,000. Orders were made providing for the mother to temporarily remove a caveat lodged by her against the Suburb G property to allow the father to borrow not more than $35,000 against the property.
On 22 October 2015 interim parenting orders were made. Those orders provided for the child to live with the mother and spend time with the father from after school on Thursdays until 10.00 am Saturday each week, from 10.00 am to 6.00 pm on Sunday each week and for block time during school holidays, and special occasions.
On 21 December 2015 the father was notified by the NSW Police that the mother had lodged a complaint against him in relation to him allegedly hitting her with a car door during changeover a few days prior. The police dismissed the mother’s complaint.
On 24 May 2016 a divorce order was granted with effect from 25 June 2016.
On 30 August 2016 trial directions were made for a final hearing to commence on 27 February 2017.
On 21 September 2016 orders were made providing for a regime of time spent between the father and the child over the Christmas and New Year period including 20 – 25 December 2016, 28 December 2016 to 1 January 2017, 8 – 15 January 2017 and 22 – 29 January 2017.
In November 2016 the father’s employment with P Limited ceased and to the date of the trial, he had not engaged in paid employment since then.
The Parenting Proceedings
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
The Expert Evidence
The single expert in the parenting proceedings was Ms Q. She is a Clinical Psychologist. Dr Q graduated with a Bachelor of Psychology (Honours), a Master of Clinical Psychology (Honours) in 2003 and a Doctor of Clinical Psychology in 2013.
Dr Q has worked in positions as a clinical psychologist since 2003. She worked for three years as the Director of Child and Adolescent Development at a school and since 2009 has worked as a clinical psychologist in private practice.
Dr Q prepared a report in this matter dated 21 January 2015 and an updated report was prepared on 14 February 2017.
The Approach
For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the current parenting arrangements;
(b)set out the parties’ proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(c)where possible and relevant, consider and make findings about matters set out in s 60CC;
(d)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(e)apply s 65DAA and assess the proposals in light of that provision;
(f)consider and make findings about living arrangements; and
(g)make orders.
The Current Parenting Arrangements
B currently lives mainly with the mother but during school term he is with the father during each alternate week from after school Thursday to 10.00 am Saturday and from 10.00 am to 6.00 pm on each Sunday. Although the interim orders did not make provision after the 2016/2017 Christmas school holidays, the child has spent periods of time with each of the parents during school holidays, including periods with the father of up to seven consecutive nights.
The Parties’ Proposals
It is agreed that the parents will have equal shared parental responsibility for the child and that he will spend time with each of the parents overnight and for block periods. It is agreed that the child will continue to live mainly with the mother. It is agreed that whichever parent has the child he will be taken to language school on Saturday and to cricket. The parties agree that the school holidays will be shared. The parties agree to each other taking the child overseas.
The father proposes that his time with the child increase during school term, to a fortnightly pattern of five overnight occasions as follows:
Monday from after school to Tuesday before school;
The following Friday after school to Monday before school; and
The following Thursday after school to Friday before school.
The father proposes that each of the shorter school holidays be shared with him having the first half in even numbered years and the second half in odd numbered years, with the second Sunday morning of the holiday period being the half way change over point, and apart from an arrangement whereby the special days alternate, week about in the Christmas school holidays. The father seeks an order in relation to the parties’ agreement to both travelling with the child in 2017 that if the mother does not go on the trip that he be permitted to take the child overseas for 17 days. The father seeks that the mother’s overseas travel not involve countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction or countries in respect of whom caution level three or four is in place by the Department of Foreign Affairs and Trade. However, through his counsel the father explained that he did not intend to prevent travel to visit members of the mother’s family. They live in Country R and Country K.
The mother proposes that there be a slight increase in the current arrangements to the effect that the father’s time with the child during school term increase to four overnight occasions each fortnight as follows:
In week 1: Thursday after school to Friday before school
In week 2: Friday after school to before school on Monday
The ICL supports the mother’s proposals save that in relation to phone calls to the child by the absent parent during school term, that the calls be permitted every second day and before 6.00 pm.
Therefore the main dispute in relation to the child’s time during school term is whether the time the child spends with the father should increase to:
(a)Five nights a fortnight in the pattern:
·Monday from after school to Tuesday before school;
·the following Friday after school to Monday before school; and
·the following Thursday after school to Friday before school; or
(b)Four nights a fortnight in the pattern:
·Thursday after school to Friday before school; and
·on the next Friday after school to before school on Monday.
Neither parent will agree to the proposal of the other. If the father is to have five nights the mother would prefer the following fortnightly arrangement.
·Wednesday after school to Friday before school; and
·On the next Friday after school to before school on Monday
Similarly, if the only other choice was to have only four nights a fortnight, the father would rather have that compromise arrangement.
It is difficult to distinguish between parties’ proposals by reference to the statutory criteria or indeed, by any principled analysis. Over the four days of the trial I was not able to persuade the parents to that view. Dr Q was also unable to recommend one proposal over the other by reference to the child’s welfare. It is a symptom of the paucity of their relationship that the parents were not able to bridge what I consider to be a non-justiciable gap in their proposals. The parties are entitled to ask the Court to make a decision that they are unable to make but the process must necessarily be little more than an arbitrary one.
Section 60CC Considerations
The section specifies a number of considerations. On either set of proposals, what are meaningful relationships between each parent and the child, will be promoted.
The mother alleges that many incidents of violence were perpetrated against her by the father. Much of the mother’s evidence in chief is devoted to her allegations of violence by the father. At the commencement of the trial I expressed concern that given the narrow range of orders sought, the mother’s allegations would not be relevant to identifying appropriate parenting orders. Indeed the mother’s allegations are inconsistent with the orders she seeks. The mother’s evidence describes a history of abusive, controlling and violent behaviour by the father against the mother. The bullying behaviour alleged would have been disgraceful, cowardly and unacceptable. If all or any significant part of the mother’s allegations were borne out, notwithstanding the parties’ proposals, the question for the Court would not be whether the father had four nights or five with the child, there would likely be no unsupervised time at all.
During oral evidence, the submission by the mother’s counsel was that she did not press for findings that were not put to the father in cross-examination. That submission is of itself a concern. Did the mother falsify or greatly exaggerate her evidence? Was the evidence accurate but the mother now feels that the child will no longer be exposed to it? Counsel for the mother did not clarify which allegations were being pressed in closing submissions.
Nonetheless, in fact there has been violence between the parties. The father concedes that he held the mother’s arms albeit that he says he did so to protect himself from her. The mother pushed a sandwich into the father’s face. The father tipped over the mother’s dinner plate. The father put his arm through a door in what he says was an accident. I have great difficulty with that concept. Remarkably, the records of the NSW Police tend to support the father’s assertion.
In terms of the broader statutory definition of violence, the father conceded that in a 2011 email he threatened to withhold financial support from the mother and to leave her homeless.
Even then, those findings of violence are of no assistance given the range of dispute between the parties. In oral evidence Dr Q said she had no comment on the relevance of violence to the issue of four or five nights in circumstances where the mother is proposing equal shared parental responsibility.
Dr Q recorded the child’s views about his living arrangements. She recorded him to say that he wishes he could spend “the same” time with his mother and his father, “one week with Mum and one week with Dad”. The child told Dr Q however, that if that was the arrangement, he would miss each parent when he was spending time with the other. He said that that happened “a bit” during the school holidays.
Dr Q opined that the child’s views reflect his wish to spend more time with each parent and produce a “fair” outcome for both his mother and father. Dr Q said that at (nearly) seven years of age the child had not developed the level of cognitive capacity required to evaluate the implications of such an arrangement but, the child has a desire to spend more time with his father. Indeed Dr Q referred to him having a craving for more time with his father. The child would also like to travel overseas.
In my opinion the child’s views are of little assistance. He turned seven years of age after the trial. There is a concern that the concept of fairness might have been suggested to him by the father. Dr Q said that it was possible that he arrived at that concept himself but she thought it unlikely. Of course, in terms of the criterion, neither of the parents want to implement all of the child’s wishes. To the extent that the child expressed a wish for equal time, for example, neither of the parents seeks such an arrangement. The ICL does not seek that arrangement. I could nevertheless impose equal time on the parents but would have needed to canvas doing so with the parties. I did not do that.
The evidence suggests that each of the parents enjoys a loving relationship with the child. Dr Q observed a comfortable, warm and familiar interaction between the child and the mother. She also observed the child to have an extremely close, well-developed and affectionate relationship with his father. Suggesting a healthy relationship between father and son, and lending some support to the idea that the child has not been exposed to significant violence by his father against him or against his mother, the child was prepared to contradict his father during the most recent session observed by Dr Q. The child transitioned comfortably between his parents. The child was comfortable talking about what he did with the father, in the presence of the mother. The mother responded in an interested and kind manner.
B is apparently not scared of or worried about either of his parents. The only substantial complaint that the child made to Dr Q about his parents was that they fight with each other. He does not know what they fight about. He does not think that they fight about money. He wishes that they would stop fighting. They hate each other (he thinks). Again, this is one of the child’s wishes that the parents have not yet fully implemented.
Each of the parents has taken the available opportunities to interact with the child.
As to providing support, the father pays the assessed Child Support. From August 2016 this has been at the rate of $65 per week. He agreed that this was inadequate for the child’s support. The father also pays $50 per week as spouse maintenance in accordance with Court orders. It is the mother’s case that the father does not adequately contribute to the child’s expenses and that he is capable of providing more support. She considers that he has a greater earning capacity than he currently exercises and that in any event, he has the capacity to properly provide for the child.
The father’s plan to take the child overseas suggests that his capacity to support the child may be greater than is reflected in his current financial support of him. That is of concern. The child’s daily needs should come before holiday travel.
The narrow range of the parties’ proposals mean that the child is not likely to be exposed to significant change. During the interview for her latest report the father told Dr Q that he did not want to create too much change for the child. The father told Dr Q that he would like to consider a week about arrangement when the child is older but noted that if that was to occur then the child would need to attend before and after school care during his weeks with his father. That suggests that the father has some insight beyond a need to secure the orders he wants. Subject to the need for socialisation with other children, in the normal course it would be better to maximise the child’s time with his parents rather than have him in out of school care in the cause of balancing the living arrangements between the parents.
On the face of it, an increase in the child’s time with the father would be a positive change.
There are no serious practical issues. For example, the parties both live in the north of Sydney.
But for their inability to interact with each other in a civil way, the evidence suggests that each of the parents is capable.
The mother says she continues to be concerned about the father’s alcohol consumption and in particular, his binge drinking. The father told Dr Q that he does not consume alcohol when the child is with him. Dr Q does not believe that the father has a chronic pattern of binge drinking and does not believe that his parenting of the child has been impacted by abuse of alcohol. The random alcohol screens, including two CDT screens have all been negative. Oddly, despite me raising it during the hearing, the mother seeks no order restraining the father in regard to his consumption, let alone abuse of alcohol while the child is with him or at all. Perhaps her concerns have been mollified by those results and the father’s recent presentation.
The mother informed the father about a recent referral of the child to a counsellor and the father was involved in that consultation. On the other hand the mother contends that the father does not communicate effectively with her. She told Dr Q that in December 2016 the father took the child to S Town for three nights and did not tell the mother. The mother said she found out after the event. The father was asked about this issue. He agreed that he had not told the mother about a trip to Queensland until he was there because he used to tell her about trips but she would not tell him about where she was going. When Dr Q pointed out the inappropriateness of that conduct, the father agreed. He told her that he would try to improve. The parents do not adequately communicate about the child. The father tried to enrol the child in soccer only to find that the mother had already done so. That was a minor problem but as he gets older there is potential for the child to be greatly embarrassed unless his parents can avoid that type of problem.
The mother is concerned about the father’s failure to properly supervise the child. She says that the child often comes home from the father, sick or injured. However, she seeks no orders in that regard and in any event, that concern could not logically bear on the resolution of the narrow dispute between the parties.
The mother complained that the father refused to help the child with a costume. The father agreed that he has refused. He told Dr Q that he refused “because it was not on my day”. He had assisted with costumes required when the child was with him but on this occasion he did not assist because “I wouldn’t even see him on those days”.
On the other hand, the mother praised the father to Dr Q in relation to him assisting the child with maths. She also said that the father reads to the child and that he takes the child on trips or to activities that she cannot afford. He took the child to swimming lessons and the child now has good swimming skills. The mother told Dr Q that she is aware that the parents need to co-parent the child for another 11 years and that she is concerned that the father does not appreciate that need.
Dr Q reports that the parents have managed to adhere to a living arrangement regime that has allowed the child’s relationship with each parent to develop in a positive manner. She reports that the child has enjoyed and benefitted from close and developing relationships with each of his parents. Dr Q considers that both parents are well resourced in different ways to attend to the child’s various needs and their individual parenting contributions are complementary.
The mother is of Country K origin. The father is of Country J origin. The child appears to have a relationship with the maternal and paternal extended family which is facilitated by electronic communication. Each of the sets of grandparents have visited Australia. The mother takes the child to language school on Saturdays and the father supports that. There is no evidence that the child has any facility in Country K. Otherwise there is no evidence about important tenets of the cultural or religious backgrounds of the parents nor, apart from travel to Country K and Country J, of any proposals for their introduction and promotion with the child.
After her most recent observations of the child, Dr Q reports that he continues on a trajectory of positive, healthy development. He has experienced a high degree of parental conflict as a young child and that included conduct in the form of family violence. Dr Q reported that both parents agreed that they had behaved inappropriately at times and that the child was exposed to their conflict. Dr Q observed that since her 2015 report, the child does not appear to have been exposed to overt family violence but she believes that he is continually exposed to chronic low level conflict between his parents that flares up from time to time. The child longs for his parents’ conflict to be resolved. His exposure to that conflict continues to present a risk for the child’s overall well-being, behaviour and adjustment.
Dr Q considers that the parents have each done a good job with the child. She believes that the mother’s parenting has at times been destabilised by her reaction to the father. She believes that the father has been able to address some problems in his parenting. However, he continues to display an unfortunate self-interested trait in respect of aspects of the child’s care – not telling the mother about where he plans to take the child because she did not always tell him; not helping the child with a costume if the child will not be with him when the costume is needed; and the suggestion that he would only provide the child with school uniforms for the days when the child is with him.
The mother alleges that the father has been violent to her and the father substantially denies those allegations.
As might be expected with allegations that were said to occur more than three years ago, were rarely if ever reported to the police and in respect of which there is no independent corroborative evidence, there are problems in making findings about the incidents. Much of the mother’s case about violence inflicted on her, rests only on her testimony and on emails said to have been exchanged between the parties over the years. As I have referred to above, there are serious problems with the mother’s testimony and with the reliability of her evidence about email communication.
In terms of the statutory definition, there has been the violence that I have referred to earlier in these reasons.
There is no current family violence order. At least one of the previous orders was made by consent, albeit without admissions.
All of that said, there is little or no assistance in those findings with the choice between the parties’ proposals – the choice between four and five nights a fortnight with the father, for example. By the same token, apart from the agreed level of conflict and the parties’ poor communication suggesting some problems for them sharing parental responsibility, there is nothing in those findings that contraindicates any of the parties’ proposals.
Parental Responsibility
It is agreed that the parents will have equal shared parental responsibility for the child. Given that agreement and notwithstanding the problems experienced between the parties, I will make that order.
Living Arrangements
In that the Court will make an order that the parties have equal shared parental responsibility, it is necessary to consider making an order for equal time. As I have said, neither of the parents seeks such an order. Such an arrangement is not sought by the ICL and is not recommended by Dr Q. It would be perverse to impose such an arrangement in those circumstances.
Next, I am required to consider ordering that the parties have substantial and significant time with the child. In my view, any of the combinations of orders proposed would amount to substantial and significant time.
Unhelpfully, the parties’ proposed parenting orders are convoluted and difficult to compare. Some are in such similar terms as might be considered the same arrangements. They could and should have been presented as agreed orders. In respect of others, there are differences that range from subtle variations to wholly inconsistent proposals. No attention was paid to the differences in ancillary orders during final submissions. I considered making no orders on those topics. However, I will attempt to navigate through the mire. The parties can of course agree about a variation to the orders or using the leave I will grant, bring the matter back shortly in respect of any practical or machinery problem of substance.
As to the precise form of orders.
Time during school term
The arguments made in support of the father’s proposals include that they represent a clear increase in the father’s time as the child wants and Dr Q recommends; they avoid any change-overs that are not to and from school; and there is no more than three days between the child’s times with his father.
In support of the mother’s proposals, which also have the support of the ICL, there is the fact that the mother has been the child’s primary carer and she has had to cope with an environment of some family violence; the child’s views may simply reflect an idea from the father that five nights would be fairer; the child told Ms T[2] that his father told him to say that it was not fair that he was not able to go to Country J, where he has a dog; and Dr Q noted weaknesses in the father’s capacity. Again, in that regard the father would only help with costumes that would be worn during his time; the father suggested that he would only pay for uniforms for the child’s time with him; the father refused to give the mother timely notice of his travel with the child because of some perceived failure by the mother in a similar regard.
[2] A Social Worker to whom the child was referred by his General Practitioner in relation to behavioural issues, including cruelty to a cat.
Importantly, Dr Q was not able to distinguish between the impact on the child of the competing proposals.
B is doing well. Both proposals provide for an increase in the number of nights in the father’s care. There may be more parenting issues for the father to address than for the mother. Counsel for the mother said that it is not just the number of days/nights that is important but the pattern or structure of that time. He submitted that the father’s proposal involves two short periods of time in his home (in addition to the weekend time), which considering the parties’ inability to communicate, could exacerbate conflict. For example if the child leaves things at one parent’s home. It was said that two periods of time would be more workable than three. At the margins there is something in those submissions. I will make orders as proposed on behalf of the mother.
Time during school holidays
The parties both seek orders that would have them share time with the child during school holidays.
Both parents agree that subject to arrangements for special days and overseas travel, the child will spend time with the parties during the Christmas school holidays on a week about basis.
The mother’s proposal is that the father have seven days in each of the shorter holidays, commencing at 10.00 am on the second Sunday. The mother seeks that the week about basis for the Christmas holidays be arranged so that the father’s first week commences at 10.00 am on the second Sunday of the holidays.
Alive to the fact that the shorter school holidays are a day or so longer than 14 days, the father’s proposal is that they be equally shared. He seeks that he have the first half of the holidays in even numbered years, commencing on the conclusion of school on the last day of term until 11.00 am on the second Sunday of each such period. In odd numbered years he proposes that he have the child from 11.00 am on the second Sunday until the commencement of the first day the child is to attend school for the new school term. As to Christmas holidays the father’s proposal is that the week about arrangement commence on the day following the last day of school attendance for the year. He does not identify who would have the first week.
I gather that the ICL again supports the mother’s proposals. I will make orders in terms of the father’s proposals for the shorter school holidays and the mother’s proposals for sequencing the time during the Christmas school holidays.
Special Days
The parents agree that irrespective of other orders, the child will spend from 6.00 pm on the Saturday before Father’s Day to 6.00 pm on Father’s Day with the father and from 6.00 pm on the Saturday before Mother’s Day to 6.00 pm on Mother’s Day with the mother. They agree that he will spend from 3.00 pm to 6.00 pm with each parent on their respective birthdays.
The parents agree that subject to travel but irrespective of other orders, the child will be with his father from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in even numbered years and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years.
I will make those orders.
As to the matters that are not agreed:
The father proposes that if the child’s birthday is on a weekday he will spend between after school and 7.00 pm with the other parent. In the event that the birthday is on a weekend, the father proposes that if the child is otherwise with the mother on that day, he will spend between 1.00 pm and 6.00 pm with the father. However, if the child is otherwise with the father on that day, he will spend between 11.00 am and 5.00 pm with the mother.
The mother’s proposal for the child’s birthday is the same as the father’s weekday proposal. She seeks that the child spend between after school and 7.00 pm with the other parent. The mother’s proposal does not address what happens on non-school days and therefore I will make orders in accordance with the father’s proposal. Given the reference in his proposals to “after school” and the desirability of making orders that address all of the days in a year, I will change “weekday” to “school day” and “weekend” to “non-school day” in the order.
The parents agree that where Easter does not fall within an end of term school holiday period, the child will be with the father from 3.00 pm Good Friday to 2.00 pm on Easter Sunday in odd numbered years and will be with the mother during that period in even numbered years. The mother seeks that same arrangement wherever Easter falls. However, it is the father’s proposal that where Easter does not fall within an end of term school holiday period, there be no special arrangements for Easter. Subject to exempting periods of international travel, I will make orders in accordance with the mother’s proposal.
As to the mother’s time at Christmas, the mother proposes the reciprocal arrangement to that agreed for the father - that the child be with her from 4.00 pm Christmas Eve to 4.00 pm Christmas Day in odd numbered years and from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in even numbered years. The father’s proposals are unworkable. For example under his proposals in even numbered years the child would be with the mother from 10.00 am on Christmas Eve to 3.00 pm Christmas Day notwithstanding that he should be with the father in those same years from 4.00 pm Christmas Eve to 4.00 pm Christmas Day. I will make orders in accordance with the mother’s proposals.
Overseas Travel
The parties agree that each of them will be able to take the child overseas. However, there are differences in the detail of their proposals.
The father proposes that the parents immediately do all things necessary to obtain an Australian passport for the child and that they jointly apply to renew his passport no later than nine months prior to its expiry. He proposes that they meet the costs associated with the child’s passport equally. Those seem sensible orders and I will make them.
As to the possession of the child’s passport, each of the parties has proposals. The father proposes[3] that the mother generally holds the passport in even numbered years and that the father does so in odd numbered years. The mother proposes[4] that she retain the passport initially and that thereafter the parent who most recently travelled with the child retain his passport. During final submissions when I was told that there was a dispute about the topic, somewhat optimistically and hoping to cut through on a machinery issue, I said something to the parties to suggest that I would order that the mother generally retain the passport. I find on examining the parents’ proposals that not even the mother sought such an order. Choosing between the proposals, the mother’s proposal should mean fewer transitions between the parent and therefore, fewer opportunities for an argument. I will make an order in terms of her proposal.
[3] Paragraph 8.3 and 9 of exhibit 3
[4] Paragraph 9 of exhibit 1
As to notice in respect of overseas travel, the mother proposes[5] that the travelling parent provide the other parent with notice at least 90 days prior to the date of intended departure, including the proposed dates of travel and planned destinations. She proposes that not less than 30 days prior to departure, the travelling parent provide a complete itinerary to the other parent. The father proposes[6] that the travelling parent provide the other parent with notice at least 56 days prior to the date of intended departure, including the proposed dates of travel and planned destinations. He proposes that not less than 14 days prior to departure, the travelling parent provide the other parent with copies of:
(a)the travel itinerary, including all places at which the child will stay while overseas;
(b)B’s return airline tickets, including booking references; and
(c)travel insurance documents for that trip, being insurance which includes the child.
[5] Paragraph 10 of exhibit 1
[6] Paragraphs 13.3 and 13.4 of exhibit 3
Again, there were no submissions in respect of these issues. I will make orders in accordance with the father’s proposals. They provide sufficient lead times for the purposes of notice while limiting the risk that some documents will not be available in the required time. Of course, one party may well book a significant period in advance and he or she would be wise to give notice to the other parent as soon as they are able.
In the event that the travelling parent does not hold the child’s passport, the holder of the passport shall provide it to the travelling parent as soon as practicable after he or she receives the copy documents referred to in paragraph 136 above.
As to overseas travel itself, the father proposes[7] that:
(a)in 2017 and 2018 the parties are permitted to take the child overseas during the July school holidays only. If both parents wish to take part in that travel, the mother shall arrange for the child’s travel in the first half of the holiday, including paying for the child’s travel from Australia. She will deliver the child to the father in City E on the middle day of the holidays and the father shall arrange for the child’s travel for the second half of the holiday, including paying for his return flight to Australia. The parents will share the cost of the child’s travel to City E on the middle day of the holidays. The father will reimburse the mother for one half of the cost of her return travel to City E to accompany the child, capped at the cost of economy class direct return travel between City D and City E;
(b)in 2019 and each alternate year thereafter, the father is permitted to remove the child from Australia within the school holidays and if at Christmas, not before 26 December and for no longer than 16 days;
(c)in 2020 and each alternate year thereafter, the mother be permitted to remove the child from Australia on those same conditions;
(d)from 2019, the travelling parent shall return the child to the other parent not less than 48 hours prior to the first day he is to attend school in the new term and the child will stay with that parent until the first day of term;
(e)holiday travel is limited to countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction and[8] to destinations that do not, as at the proposed date of travel, have a level 3 or 4 travel warning according to the website smarttraveller.gov.au.
[7] Paragraphs 10, 11, 12 and 13 of exhibit 3
[8] The orders sought by the father use “or” rather than “and” but I understand that the initial intent was to avoid both non Hague Convention countries and countries with a level 3 or 4 warning.
Notwithstanding (e), during submissions, I understood the father’s counsel to say that the father did not intend his restrictions to prevent the mother from taking the child to see members of her family. The mother’s evidence was that elements of her family are in City D and in Country R. Country K is a convention country and Country R is not. Either destination may from time to time, be the subject of travel warnings. In that there is no evidence to suggest that either parent would take the child to an unsafe destination I will impose no general limits on travel destinations. The notice provision for overseas travel will allow the parties time to directly agitate any issues as to destinations.
As to overseas travel itself, the mother proposes[9] that:
[9] Paragraphs 4, 5, 6, 7, & 8 of exhibit 1
(a)in 2017 the parents are permitted to take the child overseas during the July school holidays only.
(i)in the event that the father notifies the mother by 20 March 2017 that he wishes to travel with the child:
(A)the mother shall arrange for the child’s travel in the first half of the holiday, including paying for the child’s travel from Australia;
(B)she will deliver the child to the father in City E on the middle day of the holidays or close to it, and the father shall arrange for the child’s travel for the second half of the holiday, including paying for his return flight to Australia;
(C)the parents will share the cost of the child’s travel from City D or an equivalent city to City E on the middle day of the holidays;
(D)the father will reimburse the mother for one half of the cost of her return travel to City E to accompany the child, capped at the cost of economy class direct return travel between City D or an equivalent city and City E;
(ii)in the event that the father elects not to travel or fails to notify the mother of his intention to travel by 20 March 2017 then the mother is at liberty to travel with the child to Europe for 14 days in that period, provided that she gives the father the notice she specifies in her orders sought and returns the child to the father not less than 48 hours before the resumption of school;
(b)in 2018 the parents are permitted to travel overseas with the child during one of the shorter school holiday periods being a period nominated by the mother in writing to the father no less than 90 days before the commencement of the nominated holiday period. The travel will be on the following basis:
(i)if the father notifies the mother within 30 days after her nomination of the holiday period of his intention to travel with the child for that period then the travel will be to Europe and:
(A)B will spend the first half of the period with the father and the second half with the mother.
(B)The father will deliver the child to the mother in City D on the middle day of the holidays or close to it, and the mother shall arrange for the child’s travel for the second half of the holiday, including paying for his return flight to Australia;
(C)The parents will share the cost of the child’s travel from City E or an equivalent city to City D on the middle day of the holidays and of the father’s return travel to City D from City E or an equivalent city to accompany the child;
(ii)in the event that the father elects not to travel or fails to notify the mother of his intention to travel within 30 days prior to the commencement of the holiday period, the mother shall be at liberty to travel to Europe with the child for 14 days provided that she gives the father the notice she specifies in her orders sought and returns the child to the father not less than 48 hours before the resumption of school;
(c)in 2019 and each alternate year thereafter, the mother is permitted to remove the child from Australia within any school holiday period for not more than 14 days, provided:
(i)she gives the father the notice she specifies in her orders sought;
(ii)the period nominated does not fall over the Christmas Period except with the father’s written consent; and
(iii)she returns the child to the father not less than 48 hours before the resumption of school.
(d)in 2020 and each alternate year thereafter, the father is permitted to remove the child from Australia within any school holiday period for not more than 14 days, provided:
(i)he gives the mother the notice she specifies in her orders sought;
(ii)the period nominated does not fall over the Christmas period except with the mother’s written consent; and
(iii)he returns the child to the mother not less than 48 hours before the resumption of school.
e)from 2019, in any year that the child travels overseas with one of the parents, the other parent is at liberty to travel overseas with the child for not more than seven days during a period of that parent’s holiday time on the basis that the travelling parent gives the other parent the notice the mother specifies in her orders sought.
The father asserted that he also had UK bank accounts containing the equivalent of an estimated A$150,000. He said that the sources of those funds were the proceeds of the sale of the South America property and the UK flat. That cannot be correct as those properties were sold after either party’s date for the commencement of cohabitation. Nevertheless, for the purposes of assessing his initial contributions, he had some equity in those two properties.
It is the mother’s contention that the father’s initial contribution was $600-700,000. The father has it in excess of $1,000,000. The father is probably closer to the mark but it is neither possible nor necessary to resolve that dispute with precision.
The mother did not bring any assets to the marriage. The mother had no income from paid employment during the marriage. She gives evidence that initially her visa conditions precluded her working and that in the more recent years, the father opposed her obtaining a job or running a business. The father disputes some of that but no matter, the mother did not have any income from paid employment. While he had periods of unemployment the father had paid employment for the much of the period of the parties’ relationship. He contracted his services through his company and he was directly employed.
For significant periods the father worked and travelled overseas. It would presumably have been very difficult for the mother to have paid employment during those periods. However, the reason is not important, the focus here is on contributions.
Section 79(4)(b) Contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
Renovation and maintenance work was undertaken on the Suburb O property. The mother gave evidence that she undertook significant aspects of that work. She referred in particular staining the outside of the timber property, landscaping and general cleaning and tidying. She assisted with major jobs and personally completed lighter jobs. The father rejected much of that evidence, among other things asserting that the external timber on the property was not stained. My inclination is to accept the mother on this point. Again, there were significant periods when the work was in train and the father was overseas.
Renovation and maintenance work was similarly undertaken on the Suburb G property including the construction of a double garage, an outdoor sauna, internal tiling, landscaping, the installation of a kitchen and painting. The mother asserts that she made substantial contributions to this work including mixing concrete. The father refuted much of the mother’s evidence, saying among other things that she only painted some windows.
It is agreed that the mother’s father did some work on the Suburb G property. He assisted in the building of a double garage and built a free-standing sauna. The dispute in that regard is whether he was fully remunerated for that work. It is common ground that his fares to Australia were paid, that he was accommodated and provided for by the parties and that he received some payment.
Again, I accept that there was some contribution made to the improvement and conservation of the Suburb G property on behalf of the mother by her father.
It is agreed that the father did work on the Suburb O property and the Suburb G property. Of course he could only do the physical work while in Australia.
Section 79(4)(c) Contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage. There is no scope under this heading for contributions to be made on behalf of the parties. In other cases[23] assistance with contributions to the family have been recognised under s 75(2)(o).
[23] See Robb & Robb (1995) FLC 92-555.
The mother’s contributions to the family exceeded those made by the father. The mother was the primary and for much of the time, the sole caretaker of the child.
The father had substantial periods of work related travel and simply was not available to make the sort of contribution to the family that the mother made. For example, the father was overseas when the mother was admitted to hospital and gave birth to the child. Her waters broke on 24 March 2010 and she drove herself to hospital on 27 March 2010. The birth was induced at 11.00 am and the mother gave birth after 8.00 pm. The father returned to Australia some days later before the family travelled together to Country J for a holiday.
Conclusion on Contribution
An argument was foreshadowed in the mother’s case that the father’s conduct during the marriage, in the form of family violence, made her contributions more arduous and therefore an allowance should be made to her for that fact[24]. Ultimately no such argument was pressed on behalf of the mother.
[24] See In the Marriage of Kennon (1997) FLC 92-757.
It is agreed that the contributions of the father exceeded those of the mother. It is conceded for the mother, that his contributions were the foundation of parties’ current wealth. The father contends that contributions were made in the proportions 80 per cent by him and 20 per cent by the mother. The mother submits that the proportions were 70 per cent by the father and 30 per cent by her. The father made the only financial contributions. Each of the parties assisted with non-financial contributions and they were assisted by the mother’s father. The mother made the greater contribution as parent and homemaker. The father would have it that his contributions represent four times, those of the mother. In my view a better reflection of the parties’ contributions would be found in an assessment that they were made in the proportions 75 per cent by the father and 25 per cent by the mother.
The Other Matters in Section 79
The parties agree that there should be an adjustment once contributions have been assessed, the other factors in s 79(4) need to be considered. They are:
Section 79(4)(d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the father and mother. No such effect was identified by either of the parties.
Section 79(4)(e) - Section 75(2) Factors
The relevant matters in s 75(2) would seem to be paragraphs (a), (b), (c), (k) and (o).
(a) the age and state of health of each of the husband and wife;
The father and mother are 54 and 37 years of age respectively. They are both apparently in good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The father is currently unemployed. He nevertheless estimates his average weekly income to be $923 per week. That sum comes from income from his business as an Information Technology consultant. Apart from the child, he lives alone. The father has a partner, Ms GG. She and the father do not live together but see each other three times a week. They have separate bank accounts.
The father spends $3,871 each week, which includes $276 in income tax, $25 to register his car, $100 on a visa credit card, $110 in child support and $3,360 on all other expenses. Of his other expenses, he spends $2,970 on himself and $390 on direct expenses for the child. His own expenses include $200 per week for food, $30 for house supplies, $100 for house repairs, $70 on utilities, $80 on petrol, $50 on motor vehicle maintenance, $80 on fares and parking, $20 on clothing and shoes, $50 on medical and dental, $100 on entertainment and hobbies, $100 on holidays $20 on gardening and lawn mowing, $25 on repairs to furnishings and appliances and $2,000 per week on unidentified other necessary commitments.
The evidence about his assets and liabilities is addressed above.
The mother receives $945 each week. She earns $330 per week through casual employment, which work she commenced in August 2015. The mother receives $300 in the form of the single parent payment and $200 in tax benefits and a pensioner study supplement. She receives $65 in child support and another $50 each week in spousal maintenance.
The mother has obtained a certificate of registration, permitting her to work. She has recently commenced studying for a Diploma.
According to the mother’s evidence, her expenditure is $1,555 each week, made up of $6 in income tax, $32 in superannuation, $470 in rent, $12 in motor vehicle insurance, $25 on a CBA Mastercard and $1,010 in other expenditure.
The evidence about the mother’s assets and liabilities is set out earlier in these reasons.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Each of the parties will have the child living with them for periods. Under the orders I propose, the child will live mainly with the mother.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out above, what there is of the evidence in relation to the parties’ expenses.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
The parties both have superannuation interests but only the father’s interest is of any significant value.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
The parties have had extensive overseas travel but otherwise there is no probative evidence about this issue.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no application for maintenance.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
There is no creditor for whom the range of possible orders will adversely affect the recovery of a debt.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The mother has managed the home and cared for the child while the father engaged in paid employment, including significant overseas travel. The mother facilitated his employment.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
For the purposes of her relationship with the father, the mother left Country K and moved to live in Australia. She has recently had some paid employment in Australia. There is no evidence about the mother’s prospects of employment in Country K but it is highly likely that the mother’s relocation to Australia and giving birth to and caring for the child all adversely affected her earning capacity.
(l) the need to protect a party who wishes to continue that party's role as a parent;
The mother now has some part time paid employment and engages in study. She does not claim that she is prevented from re-establishing herself in the job market because of her care of the child.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
I have set out above what there is of that evidence.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
A settlement of property based on contributions alone would leave the father with about $980,000 more than the mother.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
There is a child support assessment. The details of the assessment are not clear. The mother says she receives $65.00 per week and the father says he pays $110.00 per week. I suspect that part of the $110 is interim spousal maintenance.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
I have found on the balance of probability that the father has land in South America (U Town). I do not know the value of the land. Complete and accurate financial disclosure is a fundamental obligation of parties to property proceedings. Some allowance to the mother is warranted for this factor.
The father has had significant access to matrimonial funds since separation. For example, in June 2014 the father had four bank accounts with a combined balance of $125,227. By 30 April 2015 the accounts held only $2,880. In circumstances where the father had a significant income, it is the mother’s case that the father has not properly accounted for those funds. This circumstance will not be addressed by adding back any sum to the balance sheet. The submission on behalf of the mother is that there should be an adjustment under s 75(2)(o) to address those circumstances. In my view, some allowance to the mother is warranted as a result of those facts.
The parties were assisted by the mother’s parents attending in Australia, particularly during periods when the father was overseas. Their fares and support were provided by the parties but in my view some allowance is warranted to the mother by reference to that support.
(p) the terms of any financial agreement that is binding on the parties.
There is no agreement.
Section 79(4)(f)
Beyond those referred to above, there are no relevant orders made under the Act.
Section 79(4)(g)
I have referred to what I know of the child support position.
Conclusion
It is agreed that there should be an adjustment in favour of the mother. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
·The father’s earning capacity is greater than that of the mother but because she is 18 years his junior, the mother has the potential of many more years in the paid workforce;
·The father has a partner who is in paid employment;
·The father has land in South America which he has not disclosed;
·A settlement of property based on contributions alone would leave the father with about $980,000 more than the mother.
·Since separation, the father had and took advantage of far greater access to matrimonial resources, not only by his use of funds but also by his use of the former matrimonial home, than did the mother;
·The parties were assisted and were assisted with the child by the mother’s parents attending in Australia, particularly during periods when the father was overseas.
The first of those matters has an ambiguous effect but otherwise, they all favour an adjustment to the mother. The adjustment sought in the mother’s case is 17 per cent. For the father, it is submitted that the adjustment should be 5 – 10 per cent in favour of the mother.
In my view the allowance should be 12.5 per cent which represents about $244,000 and will make a difference between the parties of over $488,000.
Just and Equitable
The assets of the parties total $1,954,044.34. Of that sum $138,564 is in the form of superannuation interests and $1,815,480.34 is not in superannuation.
If the assets are divided in the proportions 37.5 per cent to the mother and 62.5 per cent to the father then the mother will have about $732,766 and the father will have about $1,221,278. As to the form of the orders, the father seeks that there be a splitting order in favour of the mother based on 100 per cent of his AMP fund. The mother seeks no splitting order. I anticipate that cash funds will be at a premium for the mother, not just because she will want to secure appropriate accommodation but also because she is many years from an age when she is likely to be able to meet the conditions for drawing on superannuation. On the other hand, the father is 18 years older than her and if not already achieved, he is closer than her to being able to meet the conditions to draw on his superannuation. For those reasons and because superannuation is a relatively small component of the overall pool of assets, I will not make a splitting order.
Of the pool of assets identified by me, the mother has the benefit of and would like to retain:
Asset Value Mother’s Motor vehicle 1 $7,000 Jewellery $800 Mother’s paid legal fees $33,931 Mother’s MLC Superannuation $584 Mother’s personal loan from her mother -$10,000 Mother’s Commonwealth MasterCard ending …67 -$362 Total $31,953.00
In order to bring the mother to 37.5 per cent of the net assets as found, she would receive a further $700,813. As is referred to above, the mother owes the father $4,400 for her share of Dr Q’s report fees. I will deduct that sum from the amount the father is to pay. Therefore the father should pay to the mother, $696,413. If he cannot make the payment the Suburb G property will be sold and the mother paid from the net proceeds.
That would leave the father with:
Asset Value F Street, Suburb G $1,650,000 Motor vehicle 2 $2,000 Boat $25,000 Father’s interest in race horse $2,629 ATO Credit $101 Land in South America – U Town (2 plots) $0 Father’s paid legal fees $124,381.34 Father’s AMP Retirement Savings $28,746 Father’s AA Super $109,234 Father’s personal loan from Mr Z -$17,000 ASIC/accounting fees -$3,000 Payment to the mother -$696,413 Total $1,225,678.34
There is no agreement about the period the father will have to make the main adjusting property settlement payment. In his proposed orders he specified 42 days. I have a recollection that his counsel sought to amend that in final submissions to three months. The mother seeks that the payment be made within 42 days. I will order that the payment be made within 42 days or within such further period as the parties may agree in writing.
As to the format of the orders I have appropriated the wording of the orders proposed by one or other of the parties, save where the orders deal with matters not raised in the course of the trial or where I do not understand the import of a particular order or phrase. For example, as to paragraph 4 of the mother’s orders I do not know that she has a caveatable interest. The mother’s paragraph 5 does not deal with the legal costs incurred on the sale and it is not clear why there would be that omission. In relation to the mother’s proposed order 6, I do not recall any evidence about frequent flyer points. As to paragraph 30 of the father’s proposed orders I do not understand what protection is being proposed and how protection beyond the scope of the Act could be effectively afforded by such an order.
Conclusion under Section 79
The parties’ relationship first commenced in 2004. Their marriage spanned nearly eight years and valuable contributions were made over that time and continued after they separated. Notwithstanding that she made the greater contribution to the family, the father’s contributions greatly exceeded those made by and on behalf of the mother. An adjustment in favour of the mother is justified by factors including the relative strength of the father’s financial position, the failure of the father to disclose all of his assets and the fact that the greater parenting load will continue to fall to the mother. Even then, the division of property will strongly favour the father. In my view the orders I have proposed will provide a just and equitable division of their property.
I certify that the preceding two hundred and seventy nine (279) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 3 May 2017.
Associate:
Date: 3 May 2017
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