SELWYN & SELWYN
[2011] FMCAfam 651
•11 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SELWYN & SELWYN | [2011] FMCAfam 651 |
| FAMILY LAW – Parenting – primary residence of the children – parents reside two and half hours apart following mother’s relocation – father’s mental health – allegations of family violence. FAMILY LAW – Property – income and earning capacity of the parties – relevant contributions. |
| Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65DAAl, 75(2), 79, 79(2), 79(4) |
| Hickey & Hickey [2003] FamCA 395 Waters and Jurek [1995] FamCA 101 |
| Applicant: | MS SELWYN |
| Respondent: | MR SELWYN |
| File Number: | MLC 8852 of 2010 |
| Judgment of: | Whelan FM |
| Hearing dates: | 16, 17 and 18 May 2011 |
| Date of Last Submission: | 18 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Shiff & Company |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Cahill & Rowe Family Law |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children [X] born [in] 2002 and [Y] born [in] 2004 (“the children”).
The children live with the mother.
Relocation of the children to [G] is to commence by the end of the July 2011 school holidays.
The children spend time with the father as follows:
School terms:
(a)During school terms, in a four week cycle commencing 22 July 2011,
(i)Every first weekend from 7.00pm on the Friday until 5.00pm on the Sunday (or Monday at 5.00pm in the event that Monday is a public holiday or pupil free day),
a.For the purpose of the period referred to in 3(a) above, the father be responsible for the collection of the children from the mother’s residence at the commencement of time and return the children to the mother’s residence at the conclusion of time.
b.For the purposes of the period referred to in 3(a) above, the time is to occur in either the [G] or Melbourne area.
(ii)Every third weekend from 7.00pm on Friday until 5.00pm on the Sunday (or Monday at 5.00pm in the event that Monday is a public holiday or pupil free day),
a.For the purposes of the period referred to in 3(b) above, changeover is to occur at the father’s brother’s house at [W].
b.For the purposes of the period referred to in 3(b) above, the time may occur at [M].
School holidays:
(b)During each of the gazetted Victorian term school holiday periods from 10.00am on the first Saturday following the conclusion of the school term until 5.00pm on the following Sunday night with the father to be responsible for the collection of the children from the mother’s residence at the commencement of time and return the children to the mother’s residence at the conclusion of time.
(c)For a period of no less than three weeks during the Christmas school holiday period as agreed between the parties or, if no agreement can be reached, from 5.30pm on Christmas Day until 5.00pm on 15 January in each year with changeover to occur at the father’s brother’s house at [W] or as otherwise agreed.
Special Occasions and Birthdays
(d)Pursuant to order (5)(c) herein, from 5.30pm on Christmas Day with changeover to occur at the father’s brother’s house at [W] or as otherwise agreed.
(e)If the children are not otherwise spending time with the father, on the Father’s Day weekend in each year from 7.00pm on Friday until 5.00pm on the Sunday.
(f)If the children are not otherwise spending time with the father:
(i)On the father’s birthday, should the birthday fall on a weekday, the father be at liberty to visit the children in [G] and to have dinner with them with time to conclude by 7.30pm or from 10.00am until 5.00pm on that Sunday following the father’s birthday, provided that this time occur in the [G] or Melbourne area.
(ii)On the father’s birthday, should the father’s birthday fall on a weekend day from 10.00am until 5.00pm on that day, provided that this time occur in the [G] or Melbourne area.
(iii)On each of the children’s birthdays, should the birthday fall on a weekday, the father be at liberty to visit the children in [G] and to have dinner with them with time to conclude by 7.30pm or from 10.00am until 5.00pm on that Sunday following the children’s birthdays, provided that this time occur in the [G] or Melbourne area.
(iv)For the purposes of the periods referred to in paragraphs (5)(f)(i),(ii) and (ii) herein, the father be responsible for the collection of the children from the mother’s residence at the commencement of time and return the children to the mother’s residence at the conclusion of time.
(g)As otherwise agreed between the parties.
Suspension of Time
The father’s time with the children be suspended on the following days:
(a)On the Mother’s Day weekend;
(b)On the mother’s birthday, should it fall on a weekend day or during a school holiday period when the children are with the father. In the latter case, time will be suspended between 10.00am and 5.00pm on the day.
(c)Pursuant to paragraph (6)(a) and (b) herein, the father is to have a make-up time as agreed or, failing agreement, on the next weekend following the event.
Communication
During time the children are spending with them, each parent is to facilitate reasonable telephone or other electronic communication (such as via Skype) with the other parent of no less than once every second day while the children are not in their care and otherwise as reasonably requested by the children.
For the purposes of the communication between the children and the parents pursuant to order 7 herein, the parties shall:
(a)keep each other advised at all times of their current mobile and landline telephone numbers and email addresses; and
(b)forthwith do all things necessary to enable communication through Skype or other webcam communication.
Each party shall ensure they advise the other of their current address, landline telephone number and mobile telephone number and notify the other in writing of any change of such address, landline telephone number and/or mobile telephone number within seven days of any such change.
Each party shall advise the other of any serious illness or injury suffered by the children as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other party to obtain information directly from any treating medical practitioners.
Each party be at liberty to receive copies of school information, school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, school events, extra curricular events, sports and special events and functions in which the children are involved.
Either parent may take the child on holidays with the consent in writing of the other parent.
Restraints
Each party is restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the children, and from permitting any other person to do so.
Children’s activities
The parties are to consult with each other to agree on the children’s extra-curricular activities and, if no agreement can be reached, each party may enrol the children only in activities which take place during time the children are spending with them.
Programs
Pursuant of section 13C of the Family Law Act 1975 the Applicant and Respondent:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
Pursuant to paragraph (5) herein, the parties are to exercise reasonable flexibility in terms of the changeover times to take account of contingencies associated with travel and other agreed activities in which the children are engaged.
THE COURT FURTHER ORDERS THAT
The property situate at Property E, [C] in the State of New South Wales be forthwith sold altogether out of Court and, subject to the property being sold for $600,000, the proceeds of sale after payment of the mortgage be applied as follows:
(a)Firstly, an amount of $111,413.85 is to be paid to the father; and
(b)The balance be paid to the mother after discharge of the mortgage to the ANZ Bank.
Pursuant to paragraph (18) herein, out of those amounts paid to the parties, the parties are to pay, in equal proportions, the following:
(a)Any costs, commissions and expenses associated with the sale; and
(b)Any capital gains tax on the sale.
In the event that the parties cannot agree within 30 days of the date of these Orders on the identity of the agent who is to be engaged to sell the said property, then the President of the Real Estate Institute of New South Wales be engaged for the purposes of appointing an agent.
The father is to retain the following assets:
(a)The house situate at Property B, [M];
(b)His car;
(c)His [T] shares;
(d)Half of the money held in the joint ANZ account, totalling $39,500.00;
(e)His ANZ account;
(f)His travellers cheques; and
(g)His superannuation.
The mother is to retain the following assets:
(a)Her [A] and [I] shares;
(b)Half of the money held in the joint ANZ account, totalling $39,500.00;
(c)Her ANZ accounts; and
(d)Her superannuation.
Unless otherwise specified in these orders:
(a)the parties retain all superannuation and work related benefits in which they have an interest to the exclusion of the other;
(b)the parties assume sole responsibility for any debts or liabilities in their respective names; and
(c)the parties retain all other property in their possession as at the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Selwyn & Selwyn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8852 of 2010
| MS SELWYN |
Applicant
And
| MR SELWYN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the mother, MS SELWYN (“the mother”), concerning parenting arrangements for the two children of the marriage, [X], aged nine and [Y], aged six. The children currently reside with the father, MR SELWYN (“the father”), in [M], a small town in regional Victoria, and spend two out of three weekends with the mother who, since July 2010, has been living in [G], a semi-rural town close to Melbourne.
The mother seeks that the children reside with her in [G]. She proposes that the children spend time with the father during the school terms for two weekends out of three and for varying times during the school holidays. The mother also proposes that the property be split in her favour on a 60/40 basis and that she retain all her superannuation.
The father seeks that the children reside with him and spend each alternative weekend with the mother and one week during school term holidays. He seeks that the property be divided on a 70/30 basis in his favour.
Background
The father was born in 1963 and is now 48 years old. The mother was born in 1965 and is now 45 years old. They met in Sydney in 1995 when the mother was working at [omitted], although both are originally from Victoria. They commenced cohabitation in January 1996 and in April 1998 purchased a property together in [C]. They married in 2001 and the first child, [X], was born in 2002. The mother took maternity leave and then worked on a part-time basis while [X] went into child care.
In May 2003, the parties moved to [M] in Victoria after the mother was successful in obtaining a position with [omitted]. By agreement, the father stayed at home with the child [X]. They initially rented premises but in November 2003 they purchased a house in Property B, [M]. In 2004, the child [Y] was born.
In February 2008, the father suffered a prolapsed lumbar disc and in April 2008 he had spinal surgery. In January 2009, the father re-entered the workforce. [Y] commenced kindergarten and [X] was at school.
In April 2009, the father moved the mother’s belongings into the spare room. In May 2009, the parties saw a Family Relationship Centre counsellor (“FRC counsellor”) and he was referred to his general practitioner who referred him in turn to a psychiatrist. On 31 May 2009, the father considered suicide but did not go through with it. He commenced seeing a psychologist in June 2009.
During 2009, the mother was actively looking for other employment. In January 2010, the father moved her possessions back into the marital bedroom. In early February 2010, the father made a suicide attempt and cancelled his medical and psychological treatment. He also ceased taking the medication prescribed by his general practitioner. The mother moved into rental premises in [M].
Between February and June 2010, when the mother accepted a position with [omitted], the parents essentially shared the care of the children. On 15 June 2010, the mother accepted the position in [G]. Between then and 28 July 2010, the parties attempted to resolve the issue of living arrangements and various options were discussed. The mother says that when she moved to [G] it was on the understanding that the children would move there at the end of the third school term. She says the father reneged on the agreement and refused to allow the children to be enrolled in school in [G] after initially agreeing to do so. The father denies that there was any agreement.
In September 2010, the mother made an application to the Court and Interim Orders were made by consent on 8 November 2010. In accordance with those Orders, the parties and the children were seen by Mr P in February 2011.
Issues
The central issue in this matter is the primary residence of the two children of the marriage. At present, the parents reside some two and a half hours drive away from each other and it is inherent in that fact that any outcome will mean that the time the children spend with the non-residential parent will be more limited.
While both parents raised issues in their affidavit evidence about the degree to which the other provided for the children’s material and emotional needs, there was no suggestion that either parent was not capable of meeting the children’s day-to-day needs. Mr P described them both as parenting at a high level.[1] The father’s main criticism of the mother is that she puts her career before the family. The mother’s main criticism of the father is that he does not provide a positive role model for the girls and that his behaviour, in particular his reaction to stress and emotional volatility, was impacting on the girls.
[1] Affidavit of Mr P sworn 4 April 2011, Attachment VP-2 at paragraphs 31 and 32.
Mr P considered that both parents were “well above good enough”.[2] He concluded that staying in [M] with their father was the “less uncertain option” because it would provide “stability, consistency and predictability” in their lives.[3] He stated however that “new information and/or testing of evidence might change” those recommendations.[4]
[2] Ibid at paragraph 36.
[3] Affidavit of Mr P sworn 4 April 2011, Attachment VP-2 at paragraph 36.
[4] Ibid paragraph 38.
Mr P was not called to give evidence primarily because, as the evidence unfolded, the father’s mental state became a significant issue. It is evident from his report and the evidence before the Court that
Mr P was not appraised of the details of the father’s mental state and, in particular, of his admitted suicidality.
Both parties agreed that the division of the assets would be significantly influenced by the s.75(2) matters, which in turn were dependent upon the Court’s decision concerning the primary place of residence of the two children.
Father’s mental health
An issue which became significant during the trial was the father’s mental health. It was not mentioned at all by him in his affidavits and it does not appear to have been raised by either party in the discussions with Mr P.
It seems that until it was suggested by the FRC counsellor that he talk to his general practitioner DR M, the father had not sought professional help. He later told the psychiatrist to whom he was referred that he had had persistent suicidal thoughts which had been with him for a very long time. The mother gave evidence that he had told her, early in the marriage, of suicidal thoughts which pre-dated the marriage.[5]
[5] Transcript, 16 May 2011, page 15 at lines 9-12.
On 6 May 2009, the father saw Dr M who considered him to be a suicide risk, prescribed medication and referred him to DR R, a psychiatrist. On 15 May 2009, Dr M saw him again and noted that he was responding well to medication.
It is not clear on what day he saw Dr R but the psychiatrist wrote to
Dr M on 24 May 2009. He described the father in the following terms:
[Mr Selwyn] describes having harboured persistent ruminative suicidal thoughts for really quite a long time now. He says that he thinks about suicide on a daily basis, and will often fantasise for example about jumping off the roof of the building opposite to where he works, or “taking off into the bush somewhere”. He describes these thoughts being by no means new although they could perhaps have been a little more intrusive of late in the context of his relationship breakdown. Interestingly, he feels that they may have partially responded to the introduction of Efexer 75mg which you commenced a couple of weeks or so ago.
[Mr Selwyn] describes these thoughts and feelings having been with him for a very long time, and indeed recounts a history from a relatively young age of always finding it difficult to connect with other people. He told me for example that he doesn’t really feel very connected to his wife or indeed to the older of his two daughters and has never really felt this connection.
He is certainly a very closed and fairly cold individual who delivered the details of his history in a very matter-of-fact and detached manner, while at the same time expressing concern about his intrusive suicidal ideation. I think he is more than capable of acting on these and treating him is going to be difficult. [6]
[6] Notes and documents referred to in the Report of Ms G , Exhibit A3.
On 28 May 2009, Dr M saw him again and noted that the father has “no suicidal intent – feels he has changed – believes he has been depressed for years”.[7]
[7] Ibid.
On 30 May 2009, following a family outing in Melbourne, the father asked the mother if she had any commitment to the relationship. She responded, on his evidence, “not to the relationship, to the children”.[8] He then asked for his rings back and drove off. The children were present and crying.[9] The father later characterised this incident as the mother telling him she was leaving him.
[8] Transcript, 17 May 2011, page 32 at line 13.
[9] Transcript, 16 May 2011, page 20 at line 10.
On the father’s evidence, the following day he put a box of pornography and some other things which he wished to dispose of into the boot of his car. He typed a note to the mother, which she says she never found. He looked up on the internet how to tie a hangman’s knot and took a rope to his workplace where he was intending to leave his keys. He sat in the car and smoked a cigar and then changed his mind. Some time later he drove home.
On 5 June 2009, the father had his first visit to MS G, a psychologist who specialises in counselling. He told her that he had “suggested to wife she leave”.[10] He also told her about the suicide incident and that his anxiety was long standing. The father commenced seeing Ms G on a monthly basis.
[10] Notes and documents referred to in the Report of Ms G , Exhibit A3.
The father saw Dr R again in July 2009. Dr R encouraged him to continue seeing Ms G and was of the view that “his suicidal ideation has resolved to a significant degree”.[11]
[11] Ibid.
On 20 August 2009, Ms G wrote to both Dr M and Dr R expressing her view that the father’s “suicidal thinking is significantly improved” and “he has had an exceptionally good response to the medication”.[12]
[12] Ibid.
On 19 November 2009, Dr R wrote to Dr M advising him to continue the father’s medication for another couple of months and then to reduce it for a couple of weeks before stopping.
On 18 January 2010, the father told Ms G that he had moved the mother’s stuff back into their room (she had been sleeping in the study since 18 April 2009). He told Ms G that he knew he was trying to force some action.
On 2 February 2010, Ms G wrote to Dr M and Dr R saying about the father, “There have been no issues of suicidality or depression”.[13]
[13] Ibid.
Some time in the next few days, the father attempted suicide in the mother’s car. His evidence was that she had told him she was going to leave. He emptied her things out of her car, took a pipe and some duct tape and drove out of the area. His intention was to gas himself. During this attempt he changed his mind and opened the car door. He then drove to the hospital and made up a story about falling asleep in the car with the engine running.
On 8 February 2010, the father cancelled his appointment with Dr R and said he did not want to rebook. He also cancelled his appointments with Ms G sending her a note saying, “I’ve just had enough of talking”.[14] He also stopped taking his medication.
[14] Transcript, 18 May 2011 at page 10, lines 43-44.
The father did not return to see Ms G until 10 April 2010 after the FRC counsellor suggested that he do so. There was some suggestion from Ms G that he did tell her about the February suicide attempt because her notes refer to him telling her that he told the FRC “about suicidality”.[15] His evidence however was that he did not tell her at that time. If he had told her it is likely that she would have noted it and also raised it in her letter to Dr M on 4 May 2010 where she reports that the father “returned to see me a few weeks ago after a break” and that he “ceased the antidepressants and has been feeling better for it”.[16]
[15] Notes and documents referred to in the Report of Ms G , Exhibit A3.
[16] Ibid.
On 27 July 2010, the father discussed with Ms G a plan for a joint session with her and the mother. She noted that he was, “concerned that is more needs to tell me that has ‘done’ in the re’ship – before [Ms Selwyn] does”.[17]
[17] Ibid.
In her notes of 13 August 2010, Ms G states that she encouraged the father to tell her if there was anything she should know because the mother would bring it up. He told her about the February 2010 suicide attempt where he broke off contact with her.
On 9 September 2010, following an incident at work, the father was required by his employer to take personal leave, see an Employee Assistance Program (“EAP”) counsellor and surrender his keys. He was not to return to the worksite without agreeing to provide evidence that he was involved in a health plan and that he authorise his health care professional to discuss his fitness to return to work with management.
The father told Ms G he was distressed about being suspended from work. He had “extended, multiple sessions”[18] with the EAP counsellor and did not return to work until some time in October 2010.
[18] Notes and documents referred to in the Report of Ms G , Exhibit A3.
Apart from his attendance to complete tests used by Ms G in a report to the Court, at the time of the hearing the father had not seen Ms G since 29 March 2011. At this time it was noted that no further appointments had been scheduled.[19] At the hearing however both he and Ms G stated that further appointments had now been made.
[19] Ibid.
Ms G’s report referred to the information used by her in compiling her report including material from Dr R and Dr M but makes no reference to the diagnosis of Dr R in May 2009. Her assessment of the father seems to be at odds with that diagnosis. In particular, she refers to him being “briefly suicidal 5 days before 6/6/2009”[20] and later states “he has felt suicidal on isolated occasions, specifically in May 2009 and February 2010 both connected with significant deterioration in his hope for his marriage continuing” (my emphasis).[21]
[20] Affidavit of Ms G sworn on 14 May 2011, Attachment KG1 at paragraph 1.
[21] Ibid at paragraph 5.
This appears inconsistent with the evidence that he had felt suicidal for a long time, that those thoughts predated his marriage and that he told Dr R that he thought about suicide on a daily basis.
The connection between his suicidal thoughts and actions taken by the mother was also repeated by the father in his evidence. On more than one occasion during his evidence, that father stated that the suicide attempts were brought on by the mother telling him she was leaving. This was not entirely consistent with his evidence about what brought about the first attempt and it is clear that shortly prior to the second attempt, he had consciously attempted to force some action on her part by moving her things back into the marital bedroom.
It is concerning that, despite admitting to Dr R a long history of suicidal thoughts, the father had never sought professional help and only did so in May 2009 because he was referred by the FRC counsellor. He cut off all medical and psychological assistance after the second suicide incident and only returned to see Ms G on the prompting of the FRC counsellor.
It is concerning that three days before the first suicide incident, Dr M noted the father had “no suicidal intent – feels he has changed”[22] and shortly prior to the second incident, Ms G advised Dr R that “there had been no issues of suicidality or depression”.[23] Further, the father did not tell Ms G of the second incident until prompted to do so by the fact that the mother was likely to raise it in her session with Ms G.
[22] Notes and documents referred to in the Report of Ms G , Exhibit A3.
[23] Ibid.
Ms G has expressed the opinion that the father does not have a mental illness or disorder. She is not however a psychiatrist or a psychoanalyst. She attributes his suicidal ideation to stress due to the marriage breakdown. The father seems to wish to also project this view. It is not however consistent with his history. Ms G concludes that he has no ongoing depression or other symptoms at present (my emphasis).[24]
[24] Affidavit of Ms G sworn on 14 May 2011, Attachment KG1 at Part 6, paragraph 1.
Mr P in his report appeared to be critical of the mother’s assessment of the father as not demonstrating to the children “any kind of role model to show the girls that he is coping, capable, that goals can be set and that life’s problems can be overcome”.[25] Her assessment however is unsurprising in the context of his suicidality, a matter about which
Mr P appears not to have been informed.
[25] Affidavit of Mr P sworn on 4 April 2011, Annexure VP-2 at paragraph 21.
It is concerning that the father has had a history of “suicidal thoughts”[26] and “depression”[27] which appear to predate the marriage breakdown and for which he does not appear to have received any adequate treatment. The counselling he has received appears to have been concentrated on assisting him to cope with the breakdown of the marriage which he apparently now considers to the only source of his suicidality. It is not possible to predict how he might respond to stress or depression in the future.
[26] Notes and documents referred to in the Report of Ms G , Exhibit A3.
[27] Ibid.
The applicable legal considerations
The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.
Both parents, in the orders they have proposed to the Court, provide for equal shared parental responsibility. The mother does however allege family violence and the Court must deal with those allegations.
Family violence
The mother in her trial affidavit describes the father as having a volatile temperament which manifests itself in violent outbursts. She described him as becoming aggressive and volatile under stress and his behaviour as manipulative and domineering. She refers to him lashing out and yelling at her and using verbal abuse.
The mother gave specific examples of his behaviour involving not only herself but two different neighbours, [first name omitted] and [first name omitted] and the father’s brother [first name omitted]. She also described incidents of the father yelling at her in front of the children and their fearful reaction to this. The mother also gave evidence of an incident where the father grabbed her around the back of the neck, an incident which she also recounted to Mr P.
It was put to the mother in cross-examination that the incidents she referred to related to a period when the father was suffering from a back injury which caused him a great deal of pain and impaired his mobility and physical functioning. She agreed that some of the incidents were during that period but that he had yelled at her often, not just because of the back injury and that it “had been going on for years”.[28]
[28] Transcript, 16 May 2011, page 53 at line 22.
It was also put to the mother that the incident when the father grabbed and pushed her related to an occasion when she had come home drunk from the races and he had been trying to get her into the shower to sober her up. She denied this.
The most serious incident described by the mother involved an occasion early in 2009 where she says the father arrived home and “went berserk”[29] about her failure to buy milk. “He was yelling and swearing and threw the entrance table and things on it across the room which sent [X] into tears”.[30] After going to the shop, he returned and announced to “[X] that he’d kill himself and that would be a reason for her to be upset”.[31] Both girls were in tears.
[29] Affidavit of Ms Selwyn, sworn 5 May 2011 at paragraph 34.
[30] Ibid.
[31] Ibid.
The father for the most part disputed the mother’s allegations. He stated that under stress he became anxious. He admitted that on occasions he has used “colourful verbal language and that would cause the girls to run to their mum”.[32] He denied that he got angry if she got home late from work. He stated that he had never hit the mother although he “grabbed her . . . on the shoulders”.[33] He could not recall throwing the table but did recall saying something about killing himself during the incident with [X] described by the mother.[34]
[32] Transcript, 17 May 2011, page 28 at lines 29-30.
[33] Ibid, page 30 at line 10.
[34] Ibid, page 31 at lines 27-30.
There is some evidence to support the father having a problem with anger in both what he told his medical practitioners and the workplace incident in September 2010. He told Dr M on 6 May 2009 that he “becomes anxious”, “often angry” and on 15 May 2009 after commencing medication stated that he “managed anger better”.[35] Further, his behaviour at work in September 2010, when he is described as speaking aggressively to a number of employees, was such as to cause a safety incident leading to him being required to take time off work.
[35] Notes and documents referred to in the Report of Ms G , Exhibit A3.
When questioned about the children’s safety when she moved out of the house, the mother responded:
I suppose I didn't think that there was any immediate physical danger that the children were in, but the longer term – the concerns I have for them over the longer term and being able to, I don't know, be subjected to these sorts of demonstrations and behaviour, I think it is not the kind of ideal life that you would have your children live.[36]
[36] Transcript, 16 May 2011, page 27 at lines 29-33.
The mother also raised concerns about the children being berated about small things (for example, the underpants incident[37] and the knife incident[38]).
[37] Affidavit of Ms Selwyn sworn 5 May 2011 at paragraph 25.
[38] Ibid at paragraph 44.
There is no evidence of the father being violent towards the children although there is reason to be concerned about his inability to control what he says when angered.
While the existence of family violence may mean that the Court is not required to apply the presumption of equal shared parental responsibility it does not prevent the Court from ordering that parental responsibility should be shared.
The father in this case has had a substantial involvement with the children including spending time at home with them for several years. In all the circumstances of this case, I am satisfied that it is in the best interests of the children for parental responsibility to be shared.
Equal time
Section 65DAA of the Act requires that where an order has been made for equal joint parental responsibility, the Court is to consider the child spending equal time, or substantial time and significant with each parent.
In this case, if the parents were resident in the same area, the Court would need to consider if the children spending equal time with each of the parents would be in their best interests however, given their distance apart, such an order would not be reasonably practicable.
Primary considerations
Section 60CC factors
Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence. These are matters I shall address below.
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of their parents
Despite the father’s admission to Dr R that he did not feel very connected to the older of his two daughters and has never really felt this connection, Mr P observed, “a real sense that both girls were very much connected to their parents”.[39] They seemed to him to love their parents equally.
[39] Affidavit of Mr P sworn 4 April 2011, VP-2 at paragraph 31.
There would be a significant loss to the children if they did not continue to have a meaningful relationship with both of their parents. The difficulty which presents itself in this case is how this can be achieved given their geographical locations.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected, or exposed to, abuse, neglect or family violence
As previously discussed, I am satisfied that the children have been exposed on occasions to violent behaviour and abusive language directed towards their mother by their father. While this has not involved his striking or otherwise physically abusing their mother, it has nonetheless caused them to be fearful of him at the time.
The father may benefit from anger management counselling to assist him in dealing with feelings of anger and help him to be more sensitive to the impact of his behaviour on others.
Additional considerations
Section 60CC(3)
Section 60CC(3) deals with the additional considerations to which the Court must turn its mind in dealing with parenting matters.
Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Mr P described [X] as wanting both parents actively and equally involved in her life. She missed her mother and wishes that her mother lived closer. She proposed that she reside for the rest of the year with her father and then move to live with her mother next year. He described her proposal as intended as a fair solution for her parents and an attempt by her to be even handed. The ideal solution for her is for her parents to live closer so that she could see them both on a week about basis.
Mr P referred to [Y] as hoping that her parents would reconcile and that her mother would return to [M]. She was apprehensive about a move to a new place without her father and her normal routine.
It seems clear that both children love their parents and would wish them to be together or if not then to at least live closer together so that they can spend more time with both of them. [Y] is much more concerned about moving to a new place and leaving a familiar environment.
Both children are too young to understand the practical realities that would face both parents in relocating. The mother has been the primary breadwinner during the marriage and would find moving back to [M] difficult without a job to go to. It would also involve her in breaking her current contract. The father, for his part, has also expressed concern about moving to the [G] area where he has no employment, friends or other supports.
It is understandable that, in any circumstances, a small child will not want to leave the friends and surroundings with which they have become familiar. It is however also not uncommon that a parent will need to move for work or career reasons and the children will relocate, particularly when they live in the country, for educational reasons.
While some weight should be given to the child’s concerns, in this case I do not consider it to be a decisive factor.
Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
[X] described both her parents to Mr P as caring and loving, kind and considerate. She referred to the father “yell(ing) a lot”[40] but that things were better since her mother left. She expressed no concern about either parent to him. Mr P describes [Y] as being dependent and reliant upon her father on a day-to-day basis and describing her mother in unequivocally positive and glowing terms.
[40] Affidavit of Mr P sworn 4 April 2011, VP-2 at paragraph 26.
The parties referred to relatives on both sides of the family with whom the children had spent time although none of these relationships appeared to especially significant.
Section 60CC(3)(c): The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The parties gave conflicting evidence about the relocation of the mother to [G] and what was agreed between them in respect to the girls.
The mother was very clear that she would not have moved to [G] unless she believed that the children would be going there with her. She stated that it had never been the intention for the family to stay permanently in [M]. She wanted the father to move to the [G] area and she saw greater job opportunities for him in being closer to Melbourne.
The evidence suggests that the father was at least ambivalent about whether he would move or not. In June 2010, he was suggesting to
Ms G that he felt like leaving his job, even before the mother was offered the position in [G]. On 27 July 2010, he told her that he “had proposed” that the girls “move at the end of the term at earliest” and that he was “likely to move with [Ms Selwyn]”.[41] This appears to be consistent with her view of the agreement they had reached. On 13 August 2010, he told Ms G that he was “thinking he might not move” or move “to another town” and that the “girls may at least stay out (the) term”.[42]
[41] Notes and documents referred to in the Report of Ms G, Exhibit A3.
[42] Ibid.
By September 2010, the father’s position seemed to have firmed up and he advised Ms G that he had “sent letter from solicitors to
[Ms Selwyn]; v. direct, adversarial”.[43]
[43] Ibid.
The mother complains in her affidavit material about the father agreeing to meet with the Principal of the school at [G] and then changing his mind. She also complains about him making arrangements for the girls without consulting her.
I accept the mother’s evidence that she moved to [G] believing that the girls and probably the father would also move there. I do not consider that that it was her intention to keep the children from him or that if the children were to live with her she would not facilitate and encourage a close and continuing relationship with the father.
The father’s motivation in choosing to stay in [M] is not entirely clear. Some of the reasons given by him do not completely gel with the evidence before the Court. It is clear that at least in the period from June to September 2010, moving to the [G] area was a real option for him.
The father accepted in his evidence that since the separation he has made decisions about the girls without consulting the mother but understood the need to consult with her in the future. Should the children live primarily with him, his proposal would result in the children spending less time with the mother than the mother’s proposal for the children to spend time with him should they move to [G].
Section 60CC(30(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Currently the children are suffering from being separated from their mother. Both children told Mr P that they missed her. They love their mother and want to see more of her. Undoubtedly they would feel the same if the situation was reversed and they were to live primarily with their mother.
The father suggested in his discussions with Mr P that the mother might move again and expect the children to follow. Her evidence was that she had worked at [omitted] for 10 years and then at [M] for seven. Her current position at [omitted] was subject to a three-year contract. It was her evidence that there were greater opportunities for her to advance at [omitted] because it was a large shire. [G] is also within commuting distance of Melbourne. Should she obtain employment with an urban [workplace] there is no reason to assume that she would be required to move.
I am not satisfied that a decision that the children live primarily with the mother would result in future uncertainty about where they might live.
Section 60CC(3)(e): The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The distance between the parents’ homes is approximately
200 kilometres, being some two and a half hours drive. Any time they spend with the non-residential parent will involve travel by the children unless that parent does all of the travelling. There are practical difficulties for the mother in having the children with her in [M] as she has no accommodation there. Her family does have a holiday house in [omitted] but, depending on its availability, this would still involve a drive of 90 minutes or so for the children.
If the children are living primarily with the mother, the father would face similar difficulties although his parents do have flat in [suburb omitted], about 40 minutes drive from [G], where he could spend time with the children.
Presently the travel is an issue for the girls who both find it tedious and boring.
Section 60 CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
There is no question that both parents can provide for the children’s material needs. They both support their involvement in extracurricular activities of a sporting and social nature. The mother questions the father’s capacity to provide for their emotional needs. She also refers to the greater access to activities the children would have living in [G].
The father refers to activities in which the children are involved and his support for them.
There is some question in my mind about the father’s capacity to meet the emotional needs of the girls, particularly as they become older. His reluctance to deal with his own emotional problems and his difficulty in coping with conflict with the mother suggests that he may not be able to deal well with the needs of his daughters as they develop more independence.
The children are still quite young and no real consideration appears to have been given as yet to their future educational needs. Should they continue living with their father in [M], their options may be more limited than what living in [G] could offer them.
Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant
There do not appear to be any particular characteristics of the children that might be relevant to the Court’s deliberations in this matter. Neither parent raised any cultural issues or other issues which might be relevant.
Section 60cc 3(h): if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents clearly love their children and acknowledge the other parent’s love for them. Both are confident that the other parent would not harm them. The father is critical of the mother’s moving in order to further her career and her expectation that the family would move to accommodate it. The mother argues that this was always the understanding, from the time they moved back from Sydney to Victoria. He considers her to have prioritised her career over her children. She believes that she is providing for the children by improving her income and by virtue of the greater access to activities and facilities moving to [G] provides.
The father states that he considers that staying in [M] is best for the children.
There is probably a degree to which the parent’s views on what is best for the children are influenced by their own needs and desires. The mother is ambitious and wants to advance her career. There were limited, if any, opportunities for her to do this in [M]. She does, I accept, also genuinely consider that there are advantages for the children in moving to [G].
The father’s ambivalence about going to [G] or staying in [M] only expressed itself in terms of being what was best for the children after he had made up his own mind that he did not want to go. He probably also genuinely believes that it would be less disruptive for the children to stay in [M].
Section 60cc 3(j): any family violence involving the child or a member of the child’s family
Section 60CC(3)(j) has already been considered.
Section 60cc 3(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
Section 60CC(3)(k) is not applicable.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is difficult to predict what may occur should the Court order that the children primarily reside with the mother or with the father. It is possible that should the Court order that the children primarily reside with the father, issues such as those which have arisen since the mother relocated to [G] will continue to arise. As the girls become older, their circumstances are also likely to change. It is not clear, for example, what educational opportunities [M] can offer them.
On the other hand, if the children reside primarily with the mother, there is the potential that the father may choose to relocate to somewhere closer to [G] provided he can find suitable employment. Such considerations are however purely speculative and have not influenced the orders in this matter.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks relevant.
I am of the view that the father’s mental health is a matter to which I should give some weight not only because it raises concerns about how he may respond to stress in the future but also because of his lack of frankness about it both with the Court and with various medical professionals.
Despite his evidence that he was open with Ms G, the father also admitted that he did not tell her about the second suicide incident until some months after it occurred. He also failed to disclose some matters to Dr M and to the nurse at the hospital which he visited after the suicide attempt in February 2010.
The father has also not been entirely honest in other aspects of his evidence to the Court.
The father described himself in his affidavit of 1 May 2011 as having a “good network of friends, neighbours and supports in [M]”.[44] This appears to be at odds with what he told Dr R in May 2009 where he described himself as “always feeling it difficult to connect with other people”.[45] He also stated that he “hasn’t made any friends in the area and really keeps to himself”.[46]
[44] Affidavit of Mr Selwyn sworn 1 May 2011 at paragraph 44.
[45] Notes and documents referred to in the Report of Ms G , Exhibit A3.
[46] Ibid.
Nor was he honest in his evidence about his employment as detailed below.
The father described his position with [omitted] as a “good job” in his trial affidavit and in his oral evidence as “the best job I ever had”.[47] The mother in her evidence stated that he did not describe the job to her as good.[48]
[47] Transcript, 17 May 2011, page 36 at line 30.
[48] Transcript, 16 May 2011, page 35 at line 26.
Dr R, in May 2009 when writing to Dr M, states that the father “is currently working in administrative duties for a local business in [M], a role with which he is not happy”.[49] On 23 July 2009, the father told
Ms G that he “doesn’t much like the work” and on 7 June 2010 told her that “work was also stressful” and that he “felt like leaving job”.[50]
[49] Notes and documents referred to in the Report of Ms G , Exhibit A3.
[50] Ibid.
On 9 September 2010, he was also required to take some time off work because of a workplace incident. His evidence about this was not consistent with what is contained in the letter from the General Manager, [Department omitted] and he denied that it involved any form of disciplinary action. He told Ms G however that he was “distressed” about being “suspended from work” and that he “plans not to return”.[51]
[51] Ibid.
While it appears that the workplace has given the father some flexibility about his working arrangements since the mother moved to [G], the picture he painted in both his affidavit and oral evidence failed to reveal that his attitude to his job has vacillated and indeed at the very time the mother was, with his knowledge, applying for jobs elsewhere he felt like leaving his job, himself.
The picture that the father creates of himself being in a great job with lots of friends in a town where he and the children are happy and settled and the mother as secretly applying for jobs and being likely to do the same again, further disrupting the children does not gel with the evidence as it unfolded during the trial.
Where there is conflict between the evidence of the father and that of the mother, I prefer her evidence.
Section 60CC(4): Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
The main criticism of the mother in this regard was her decision to accept the position in [G] and leave the children with the father in [M]. I accept the mother’s evidence that she had, with the fathers’ knowledge, been applying for other jobs for about two years prior to accepting the position at [G]. At least one of these was in the Melbourne metropolitan area.
I do however accept that she did not consult with the father about the move prior to accepting the [G] position.
I also accept the mother’s evidence that when she left for [G] she did so on the understanding that the children would be joining her there at the end of the third school term. This seems to be consistent with what the father also told Ms G on 27 July 2010.
The mother gave incidents of the father making decisions about the children, since her move to [G], without consulting her. Both parents would benefit from participating in a post-separation parenting course in this regard.
There is nothing to suggest that both parents would not seek to make the most of their opportunities to spend time with and communicate with the children. Both are also keen to participate in making decisions about major long-term issues in relation to the children. While they reside so far apart, it is likely that the parent with whom the children reside will, by default, end up making most of the day-to-day decisions. They need however to be able to communicate with each other about matters concerning the girls’ education and extra-curricular activities in particular and the impact these might have on the time they spend with the non-residential parent.
Property Distribution
In April 1998, prior to their marriage in 2001, the parties purchased a property in [C], a suburb of Sydney. The house was purchased for approximately $214,000.00 from joint savings and a loan of $110,000.00. After relocating to [M], they have continued to own this property. It is subject to a mortgage of $60,750.00.
During the time they lived in Sydney, the mother was employed by [omitted] apart from a period of paid maternity leave. The father worked in various jobs until January 1999 when he commenced working as a [omitted], a job in which he stayed until the move to [M].
After moving to [M] in 2003, the parties at first rented accommodation and then purchased the house in Property B, [M] for $150,000.00. That property is currently valued at $265,000.00 and is unencumbered. After moving to [M] the father ceased paid employment and did not work again until January 2009.
Currently, the father in living in the [M] property. He is working on a full-time basis earning approximately $55,000.00 per annum inclusive of superannuation. The mother is living in rented accommodation in [G] for which she pays rent of $290.00 per week. She is on a package of $150,000.00 per annum of which $125,000.00 is the salary component. She is also paying $280.00 per week in child support.
Applicable Legal Considerations
Section 79 of the Act defines the court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the court must take into account when considering what orders should be made for the alteration of the interests of the parties in property.
The Court must also address any relevant s.75(2) factors.
The usual course in determining an alteration of property interests pursuant to the Act was set out in the case of Hickey & Hickey [2003] FamCA 395, which stated at 39:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
Step One: Assets and liabilities
The agreed assets of the parties are:
ASSETS
Property B, [M]
$265,000.00
Property E, [C], NSW
$600,000.00
Father’s car
$8,000.00
Father’s [T] shares x 1,000
$E2,880.00
Mother’s [A] shares x 302 and [I] shares x 1148 total value
$5,634.00
Joint ANZ account
$79,000.00
Father’s ANZ savings account
$30,853.00
Father’s Amex travellers cheques
$1,237.00
Mother’s ANZ online saver account
$10,547.00
Mother’s ANZ cheque account
$39,832.00
Total Real Assets
$1,042,983.00
LIABILITIES
Mortgage to ANZ
$60,750.00
Capital Gains Tax on sale of Sydney property
Unknown
Total Liabilities (before Capital Gains Tax)
$60,750.00
SUPERANNUATION
Mother’s superannuation with [S]
$145,013.00
Father’s superannuation funds:
[omitted]
[omitted]
$78,663.00
$9,294.00
TOTAL SUPERANNUATION
$232,970.00
NET REAL ASSETS PLUS
SUPERANNUATION$1,215,383.00
The net asset pool therefore consists of:
a)The total of the real assets listed above: $1,042,983.00
less
b)The liabilities listed above: $60,750.00
Which gives a net asset position of $982,233.00.
If the total superannuation is notionally included in the asset pool, the net asset position is $1,215,383.00.
Step Two: Identify and assess contributions
It is not disputed that the mother has been the primary breadwinner during the course of the marriage. For a period of almost six years, the father stayed at home with the children. Both parents contributed to the raising of the children.
Taking into account all of the material before me, I am satisfied that the contribution of the parties made both directly and indirectly to acquisition, conservation and improvement of the property and in their contribution as parents should be regarded as equal.
None of the assets are used principally for the purpose of income generation with the exception of the investment property in [C]. The sale of this property would have no impact on the earning capacity of either party.
Step Three: Identify and assess section 75(2) factors
The father is 48 years old and is in good physical health. The mother is aged 45 and is likewise in good physical health. Both are currently gainfully employed. The mother is earning considerably more than the father. This has been the case throughout the marriage and is likely to be so into the future. She is better qualified than he is and is also studying in order to improve her qualifications and employability.
Both parties have submitted that whoever has the primary care of the two children of the marriage should have a greater share of the asset pool.
There are no other s.75(2) factors which are relevant.
Step Four. Effect of the orders and what is just and equitable
Such is considered below.
Conclusions
Taking into consideration all of the relevant factors, I am satisfied that it is in the best interests of the children that they reside primarily with the mother.
I am satisfied that while they may suffer some initial dislocation from the move to [G], in the longer term it is the mother who is able to offer the children more stability and predictability. The father, on the other hand, appears to suffer from some denial about his mental health and his response to stress cannot be predicted. While I am satisfied that he would not deliberately harm the children, there are risks associated with his mental health and inability to take appropriate steps to deal with it.
Given their location and the travel involved, it is not possible for the children to spend time with the father other than during days that fall on weekends and holidays, including school holidays. Given the travel involved, I am also of the view that at least half of the time spent on weekends should be either in [G] or Melbourne to reduce the need for the children to travel long distances.
In relation to the property, the residence of the children with the mother would entitle her to some additional part of the pool. Balanced against that is her greater earning capacity and the likelihood that she will continue to earn significantly more that the father into the future.[52]
[52] Waters & Jurek [1995] FamCA 101.
In those circumstances, I consider that a 55%/45% split of assets in the mother’s favour is just and equitable. At face value, 55% of the total asset pool (including superannuation) would constitute $668,460.65 to the mother while 45% would constitute $546,922.35 to the father.
The mother has requested that any order in relation to property not effect her superannuation.
The parties also concede that the sale of the [C] property will attract some capital gains tax. In my view, the parties should be equally liable for that payment.
The father is to retain the following:
Property B, [M]
$265,000.00
His car
$8,000.00
His [T] shares
E$2,880.00
Half of the money held in the ANZ joint account
$39,500.00
His ANZ account
$30,853.00
His Amex travellers cheques
$1,237.00
His superannuation
$87,957.00
TOTAL OF ASSETS PLUS SUPER TO BE KEPT BY FATHER
$435,427.00
The mother is to retain the following assets:
Her shares
$5,634.00
Half of the money held in the ANZ joint account
$39,500.00
Her ANZ online saver account
$10,547.00
Her ANZ cheque account
$39,832.00
Her superannuation with [S]
$145,013.00
TOTAL OF ASSETS PLUS SUPER TO
BE KEPT BY MOTHER$240,526.00
While the mother does not wish for her superannuation to be split, it is clear that the father should receive some type of adjustment in his favour for this. In determining so, I have considered that 45% of the total superannuation pool would constitute $104,836.50. Therefore, the father, currently whose superannuation currently totals $87,957.00, would require an additional amount of $16,879.50. I have determined that he should receive this additional amount from the sale of the [C] property.
Pursuant to the [C] property selling for $600,000.00, from the sale proceeds, the father is to be paid $111,495.35 subject to payment of 50% of any capital gains tax on that sale and any other expenses associated with the sale.
The mother is then to receive the proceeds of the sale of the [C] property after payment to the father of the amount of $111,495.35 and subject to payment of 50% of any capital gains tax on that sale and other expenses associated with the sale.
Subject to the capital gains tax payable, the mother will be allocated 55% of the pool of assets and the father 45%.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 11 July 2011
0