SHIBA & SHIBA
[2014] FamCA 968
•13 November 2014
FAMILY COURT OF AUSTRALIA
| SHIBA & SHIBA | [2014] FamCA 968 |
| FAMILY LAW – CHILDREN – Best Interests – Where there are three children aged 11, 10 and four – Where the children live primarily with the mother – Where the parties agreed to orders during the trial about many parenting issues – Where the issues for judicial determination included living arrangements during school term, school vacation and overseas travel – Where the mother opposed overseas travel and sought that the children live with the father on the first two weekends of each month and for block periods during school holidays – Where the father sought that the children be permitted to travel overseas, that they live with him on a week about basis and spend half of school holidays with him – Where the ICL proposed increases in the father’s time in three, six monthly stages until it reached 11 nights in every four weeks and that the children spend half the school holidays with the father from 2015 – Where the children have meaningful relationships with both parents – Where there is a high level of conflict between the parents – Where the single expert recommended against a week about regime – Where it is found that equal time would neither be in the best interests of the children, nor reasonably practical – Where it is in the best interests of the children to order that the parents have substantial and significant time with them –Where orders are made in terms of the ICL’s proposals. |
FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the mother and father cohabited for 12 years – Where the s 79(4) considerations are applied to two pools being a non-superannuation assets pool and a superannuation pool – Where the initial contributions of the father outweighed those of the mother – Where the mother’s contributions to the family exceeded those of the father – Where the overall contributions are found to be 55 per cent by the father and 45 per cent by the mother – Where the father’s earning capacity is substantially greater than that of the mother – Where the parties’ three children will primarily live with the mother – Where a 7.5 per cent s 75(2) adjustment is appropriate in favour of the mother – Where it is appropriate for the mother to receive 52.5 per cent and the father to receive 47.5 per cent of the assets – Where the father seeks a splitting order from his superannuation fund – Where the mother seeks there be no splitting order – Where the mother seeks access to capital in order to refinance the matrimonial home – Where it is found that a just and equitable settlement of property gives priority to the mother having non-superannuation assets.
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC, 75(2), 79, 79 (4), 81, 117 | |||||
| |||||
| APPLICANT MOTHER: | Ms Shiba | ||||
| RESPONDENT FATHER: | Mr Shiba |
| INDEPENDENT CHILDREN’S LAWYER: | Mr N O’Dowd |
| FILE NUMBER: | SYC | 1486 | of | 2013 |
| DATE DELIVERED: | 13 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 1 - 4 April 2014 and 9 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D Blackah |
| SOLICITOR FOR THE APPLICANT: | Warren Mckeon Dickson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms R Druitt |
| SOLICITOR FOR THE RESPONDENT: | Watkins Tapsell Solicitors |
| COUNESL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms L Sproston |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr N O’Dowd |
Orders
Parenting Orders
In addition to the living arrangements set out in the orders of this Court made on 2 April 2014 and unless the parties otherwise agree in writing, Y Shiba, born … 2003, S Shiba, born … 2004 and M Shiba, born … 2010, (“the children”) shall live with the father:
a)During school term in four weekly cycles as follows:
i)From the date of these orders to the end of the 2014 school year, from after school Friday in weeks 2 and 4 to 6.00 pm on the following Sunday;
ii)For the first half of 2015 from after school Friday in weeks 2 and 4 to before school on the following Monday;
iii)For the second half of 2015 from after school Friday in week 2 to before school on the following Monday and from after school Tuesday in week 4 to before school on the following Monday;
iv)Thereafter, from after school Thursday in week 2 to before school on the following Monday and from after school Friday in week 4 to before school on the following Friday.
b)During school holidays:
i)During the Christmas 2014/2015 school holidays for two (2) one week blocks of time to be agreed between the parties and if not agreed from 10.00 am 2 January 2015 and from 10.00 am 18 January 2015;
ii)For all other school holidays the children shall spend half of each school holiday period with each parent as agreed and failing agreement with the father in the first half of the school holidays in odd numbered years, commencing in 2015 and the second half of the school holidays in even numbered years, commencing 2016.
At all times other than when the children are living or spending time with the father pursuant to these orders or those made on 2 April 2014, the children shall live with the mother.
Each parent is at liberty to take the children overseas provided that:
a)Such travel does not interfere with the time the children are to spend with the other parent, unless the other parent consents in writing; and
b)The travelling parent provides the other parent eight (8) weeks written notice of the intended departure and return dates, a detailed itinerary of all flights and other transportation, details of all accommodation where the children are staying while overseas, including contact telephone numbers.
The children are permitted to travel internationally.
The names of the children shall be removed from the Family Law Watchlist. The Court requested the assistance of the Australian Federal Police in the implementation of that order.
In the event that he has not already done so, that as soon as practicable, the father attend and complete a Triple P parenting program.
Leave is granted to the Independent Children’s Lawyer to provide a copy of these orders and a copy of the orders made on 2 April 2014 to the family’s therapist Ms K and to the Principal of F Primary School.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (“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
These Orders are made by way of alteration of property interests pursuant to s 79 of the Act.
Within 60 days of the date of these Orders the father sign all documents and do all things necessary to transfer to the mother all his right title and interest in the former matrimonial home situated at and known as … Suburb B, being the whole of the land contained in folio identifier … at the mother’s cost.
At the time of the transfer:
(a)The father and mother shall do all acts and things to discharge the mortgage in favour of Westpac Banking Corporation registered on the B property;
(b)The mother shall do all acts and things to refinance the mortgage into her sole name; and
(c)The mother shall pay to the father the sum of $249,810.
In the event that the mother fails to comply with orders 10 and 11, within 60 days of the date of her default, the mother sign all documents and do all things necessary to transfer to the father all her right title and interest in the former matrimonial home situate at and known as … Suburb B being the whole of the land contained in folio identifier … at the father’s cost.
At the time of the transfer pursuant to order 12:
(a)The father and mother shall do all acts and things to discharge the mortgage in favour of Westpac Banking Corporation registered on the B property;
(b)The father shall do all acts and things to refinance the mortgage into his sole name; and
(c)The father shall pay to the mother the sum of $507,498.
In the event that orders 12 and 13 are enlivened and the father fails to comply with them, forthwith upon that default, the parties shall do all acts and things and sign all documents as shall be necessary to sell the B property as soon as practicable, for the best price reasonably obtainable and to cause the proceeds of such sale to be applied in the following manner and order:
(a)In payment of the costs of and incidental to such sale, including but not limited to the legal and agent’s costs;
(b) In payment of the amount required to discharge the mortgage;
(c) In payment of 33 per cent of the balance to the father; and
(d) In payment of the balance then remaining to the mother.
Should the parties be unable to agree upon any matter relating to the sale of the B property including (but not limited to) the price at which the property is to be offered for sale or sold, the agent or agents to have conduct of the sale or whether the property should be offered for sale by private treaty or public auction, then the parties or either of them may appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to make those decisions on their behalf and shall be jointly bound thereby and jointly bear the costs thereof.
In the event the property fails to be sold by private treaty within a period of six months after being placed on the market for sale, then both parties shall take all necessary steps and execute all documents necessary to cause the property to be sold by auction at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be distributed as set out in order 14.
Superannuation
Orders 18 to 23 (inclusive) are binding on the O Pty Ltd, the Trustee of the O Super Fund, member number …535.
The Court allocate, pursuant to s 90MT(4) of the Act, a base amount of $103,603 to the mother out of the father’s interest in the O Super Fund, member number …535.
Pursuant to s of the Act whenever a splittable payment becomes payable in respect of the father’s interest in the O Super Fund, member number …535, the mother shall be entitled to be paid an amount calculated in accordance with Pt of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
Order 19 has effect from the operative time.
The operative time for the purposes of Order 20 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the O Super Fund, member number …535.
Until such time as the superannuation split to the mother pursuant to these Orders can be rolled over into a separate account for her:
(a)The father provide to the mother no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the O Super Fund, member number …535;
(b)The father direct and authorise the Trustee of the O Super Fund, member number …535 to communicate with the mother and/or any person authorised by her in writing:
(i)To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the O Super Fund, member number …535;
(ii)To provide to the mother and/or her authorised representative with a copy of any notice of any application or request by the father which seeks release of entitlements in the O Super Fund, member number …535 in so far as that release may affect the mother’s entitlement in the O Super Fund, member number …535 pursuant to these Orders; and
(iii)The father by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the mother, her heirs, executors, administrators or nominees from receiving the benefits in the O Super Fund, member number …535 to which she is entitled pursuant to these Orders.
In the event that the superannuation split to the mother pursuant to these Orders can be rolled over into a separate account for the mother, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
Other
As between the father and mother, and subject to the above Orders, the father and mother shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c)All interests in life insurance policies, retirement accounts and superannuation funds standing in his/her sole name respectively.
The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Leave is granted to the parties to apply within 28 days or such further time as they may agree, on giving at least seven days’ notice to the Court and each other, in relation to the wording of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shiba & Shiba has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC1486 of 2013
| Ms Shiba |
Applicant Mother
And
| Mr Shiba |
Respondent Father
REASONS FOR JUDGMENT
Introduction
These are proceedings for parenting orders and property settlement. The marriage of Ms Shiba and Mr Shiba involved them living together for more than 12 years. The parenting proceedings concern the living arrangements for their children, Y who is 11 years of age; S who is 10 years of age; and M who is four years of age.
The parties are variously referred to as both “mother” and “father” and “wife” and “husband” in the documents prepared for the hearing. As a settlement was achieved in much of the parenting dispute and the resultant consent orders are styled “mother” and “father”, I will refer to the parties throughout this judgment by those terms.
Applications
The parties reached agreement about many parenting issues including parental responsibility, arrangements for special days and they agreed in principle that the children would live in both households, overnight and unsupervised. The issues for judicial determination included the living arrangements during school term, school vacation and overseas travel. Relevantly, the applicant mother sought that the children live with the father on the first two weekends of each month from after school Friday to before school Monday and for block periods during school holidays at times to be agreed between the parties. The mother sought week-about orders for the 2014 Christmas school holidays, with weeks 1, 3 and 5 with her and weeks 2 and 4 with the father. For the 2015 Christmas holidays she sought that the children spend weeks 1 and 3 with the father and weeks 2, 4 and 5 with her. The mother opposed any overseas travel.
The respondent father sought orders whereby the children would live with him each alternate week with changeovers at 5.00 pm Sunday. The father sought time with the children for half the school holidays. The father sought permission to remove the children from Australia for the purposes of travel to the United States of America to visit his parents and extended family.
Events overtook the initial proposals of the Independent Children’s Lawyer (“ICL”) and his ultimate proposals were in part set out in a document submitted at the conclusion of the hearing (Exhibit 17). The ICL proposed increases in the father’s time in three, six monthly stages until his time with the children reached 11 nights in every four weeks during school term, half the school holidays and that the children have access to overseas travel.
As to property settlement the mother sought that the parties retain what they have, that the former matrimonial home be transferred to her, that she discharge the mortgage and that the father pay her $90,000.
The father sought orders for a superannuation splitting order in favour of the mother from his O Superannuation interests based on an amount of $115,458; and orders in the alternative, in respect of the B property. One option was that he retain the property, discharge the mortgage and pay the mother $286,958. His other option being that the mother retain the B property, that she discharge the mortgage and pay him $500,350. In either event he otherwise sought that the parties retain what they own, have or owe.
Written Evidence
The mother relied on:
·Affidavit of the mother sworn 25 March 2014 and filed 26 March 2014;
·Financial Statement of the mother sworn 24 March 2014 and filed 27 March 2014;
·Affidavit of Ms C sworn 25 March 2014 and filed 26 March 2014; and
·Affidavit of Mr D sworn 11 June 2013 and filed 17 June 2013.
The father relied on:
·Affidavit of the father sworn and filed 30 April 2013;
·Affidavit of the father sworn and filed 18 March 2014;
·Affidavit of the father sworn 31 March 2014 and filed 1 April 2014;
·Financial Statement of the father sworn 27 March 2014 and filed 28 March 2014; and
·Affidavit of Ms U sworn and filed 11 June 2013.
Expert Evidence
Dr H is a Child, Adult and Family Psychiatrist. Dr H graduated in medicine with honours in 1984. He became a fellow of the Royal Australian and New Zealand College of Psychiatrists in 1992. He has worked in and taught psychiatry in the public hospital system and elsewhere since 1991 and since 1993 he has worked as a Child, Family and Adult Psychiatrist in private practice. For the purposes of the parenting proceedings he interviewed the family in September 2013 and his report is dated 10 October 2013.
The Hearing
The hearing was conducted over five days, commencing on 1 April 2014. Parts of the parenting dispute were resolved by consent orders made on 2 April 2014. On 4 April 2014 orders were made by consent to address the living arrangements to be in place at Easter and pending delivery of judgment.
Delay in the delivery of Judgment
At the conclusion of the hearing judgment was reserved. On 5 June 2014 an application was filed by the mother for leave to re-open her case in respect of property settlement. That application was opposed by the father and was ultimately listed for hearing on 9 September 2014. On that date the mother’s application was withdrawn. As a result, the judgment in the substantive matter was again reserved. Thus the application to re-open accounted for three months of the delay in delivery of judgment. The process of preparing a judgment was not assisted by the interruption but the balance of the delay is regretted.
Short History
The father was born in 1971 in the United States of America and as at the date of the hearing he was 42 years of age. The mother was born in 1968 and as at the date of the hearing, she was 45 years of age. The parents met in April 2000, were married in June 2000 and separated in September 2012. There are three children of the marriage namely: Y, born in 2003, S, born in 2004, and M, born in 2010. As at the date of judgment the children were 11, 10 and four years of age, respectively.
Background Facts
The parties met in April 2000 and married in June 2000.
At the commencement of the marriage, the father had assets valued at approximately $451,000 calculated at an exchange rate of .58AUD to 1 USD including:
a)Superannuation and retirement funds valued at $104,000;
b)Investments of $307,000;
c)Savings of approximately $32,000; and
d)$8,600 in furniture, jewellery and household goods.
The mother had assets including:
a)Westpac Investment Valued at approximately $112,505;
b)282 AMP shares valued at approximately $4,681.20;
c)IAG shares valued at $11,783;
d)$21,459 in superannuation with MLC;
e)$7,590.58 held in a Westpac Classic Account number …125;
f)A motor vehicle valued at $28,000 and subject to a car loan of $11,597;
g)Furniture and household effects; and
h)Jewellery valued at approximately $25,000.
In 2000 the paternal grandfather gave the father, the paternal great-grandmother’s engagement ring to give to the mother.
In October 2000 the parties purchased the former matrimonial home at Suburb B for $620,000. They paid stamp duty of $23,394. The parties took out a mortgage in their joint names for $400,000.
In approximately October/November 2000 the father applied $10,000 of his savings towards furniture for the matrimonial home.
The child Y was born in 2003.
In 2003 the paternal grandparents provided the parties with a gift of $10,600 which was applied to installing ducted air conditioning in the former matrimonial home.
In 2004 the paternal grandparents provided a gift of $11,000 to the parties so they could pay certain expenses.
The father deposed that in 2004 he confronted the mother about problems in their marriage, saying that he had been viewing pornography and gave the mother the names of the two main websites he had viewed.
The child S was born in 2004.
In approximately 2007 the parties renovated the former matrimonial home over a period of 15 months. The mother deposed that the cost of the renovations was approximately $600,000.
A violent incident between the parties occurred on or about 14 August 2007 following an altercation. The mother reported the incident to police on 16 August 2007. The mother later gave evidence during proceedings for an AVO that she could not be sure if the father pushed her or if she fell.
The father deposed that on 16 August 2007 the mother grabbed him.
Following the incident on 14 August 2007, the mother underwent testing to determine whether she had Multiple Sclerosis. The mother was diagnosed with a thyroid tumour and had to undergo surgery to have the tumour removed. It is the mother’s evidence that a diagnosis of Multiple Sclerosis was subsequently excluded.
On 17 August 2007 the father was charged with assault and the police sought and obtained an AVO for the protection of the mother and children.
In October 2007 the mother asked police to withdraw the assault charge and AVO application. The police wrote to the mother and indicated that the charges would not be withdrawn. On 3 October 2007 the interim AVO was extended to protect the mother and children.
On 6 February 2008 the assault charge against the father was dismissed following the mother giving evidence that she could not be sure whether the father pushed her or she fell. A final AVO was made for the protection of the mother and the children.
The father said that in 2008 he first observed that the mother had tremors, slurred speech and difficulty keeping her balance. The mother denied that she had tremors however stated that for the last three to four years of the marriage she suffered severe panic attacks and that she had a reaction to Zoloft which at times made her panic attacks worse.
On 18 August 2008 the mother commenced seeing Dr R, a psychiatrist at V Clinic. Dr R diagnosed the mother with anxiety and adult Attention Deficit Hyperactivity Disorder.
The child M was born in 2010.
The father alleged that the mother suffered increased difficulty sleeping in 2011 and that she became increasingly aggressive.
In August 2011 S and Y commenced attending Ms T, Psychologist.
On 26 July 2012 Dr E diagnosed S with ADHD and prescribed Ritalin. The father did not and does not agree with that diagnosis.
In August 2012 Dr R prescribed Ritalin for the mother in relation to a diagnosis of adult ADHD.
The father alleged that in 2012 he spoke to the maternal grandmother about his concern about the mother’s consumption of alcohol. The mother denies that she had a drinking problem.
The father says he saw his general practitioner in September 2012 to discuss his concerns about the mother.
The parties separated on 27 September 2012 with the father moving out of the B property. The father deposed that for two weeks following separation he attended the B property each day to assist with caring for the children.
On 1 October 2012 Y and S stayed with the father overnight. The mother attempted to call the father on seven occasions that evening and because she could not get through, she called the police.
On 4 October 2012 the father spent time with the children between 5.30 pm and 7.30 pm at the B property. The father deposed that after leaving, the mother called him and asked him to return as S was having nightmares. The father deposed that he returned and spent the night. He said that the mother had a panic attack and fell over several times.
On 6, 14 and 19 October 2012 Y and S stayed overnight with the father. The paternal grandmother was also present.
On 1 November 2012 the mother reported her concerns in relation to the father viewing child pornography to L Police Station.
The father deposed that the mother called him on 14 December 2012 and stated that he could only spend time with the children if it was supervised. The parties agreed that the children’s nanny would supervise their time with the father.
In late 2012 Y and S commenced seeing Ms K, a Psychologist.
In December 2012 the father purchased a motor vehicle for $60,000.
The mother says that in January 2013 she stopped the father visiting the children at the B property.
On 20 March 2013 the mother commenced these proceedings when she filed an Initiating Application seeking interim and final parenting and property orders.
On 15 April 2013 an Anton Piller order was made ex-parte for the seizure and examination of the father’s computer, hard discs, external drives and memory sticks.
On 30 April 2013 the father filed a Response to the mother’s application, seeking interim parenting and property orders.
On 1 May 2013 the father filed a Notice of Child Abuse, Family Violence or Risk of Family Violence.
On 11 June 2013 Dr E diagnosed S with Autism Spectrum Disorder and prescribed Risperidone.
On 12 June 2013 interim consent orders were made for the father to see the children on defined occasions, on a supervised basis.
On 13 August 2013, Dr E advised the mother that he no longer believed S had Autism and that she should only give him Risperidone when “he is not doing well”.
On 23 September 2013 NN & Associates prepared a valuation report of the B property, valuing the property at $1,325,000.
On 22 November 2013 orders were made by consent providing the father with unsupervised time with the children.
The mother alleged that following spending time with the father in late December 2013, Y told the mother that the children were left by the father in a locked car in hot weather while the father went shopping.
On 11 January 2014 overnight time commenced with the father. The mother asserts that the children did not have their own beds at the father’s property.
In mid January 2014 the father, mother and S met with Dr E. It was agreed that S would come off Ritalin and Resperidone for three months.
On 22 January 2014 the father received a telephone call from Dr E who said he had again prescribed Ritalin for S following a call from the mother about the child’s uncontrollable behaviour.
The father is currently employed as a management executive by W Company and earns approximately $300,000 gross (including superannuation contributions) per annum, plus bonuses. The mother is a medical professional. The mother sees and treats patients at the B home.
During the trial, on 2 April 2014 parenting orders were made by consent in the following terms:
1.That all prior Orders are dismissed and discharged.
2.That the Mother and Father shall have equal shared parental responsibility for the children, Y, born … 2003 …, S, born … 2004 … and M, born … 2010 …, (“the children”).
3.That the Mother and Father shall consult with each other and make a genuine effort to come to a joint decision in the event that long-term issues arise in relation to the children concerning:
a)The children’s education;
b)The children’s health;
c)Changes in the children’s living arrangements in so far as they impact each parents time with the children in accordance with these Orders; and
d)The children’s extracurricular activities.
4.That the Mother and Father shall have sole parental responsibility for making decisions concerning the children in respect of issues that are not major long term issues being those relating to the day-to-day care, welfare and development of the children, when the children are in their respective care.
Children’s Birthdays
5.That the Mother and Father shall spend time with the children on each of the children’s birthdays as follows:
a)If the children are spending time with the Father pursuant to these Orders, then the Mother shall spend time with the children for four (4) hours at a time to be agreed upon between the parties, and failing agreement, from after school to 7.30pm if it is a school day and from 3.30pm to 7.30pm if the children’s birthdays fall on a weekend.
b)If the children are spending time with the Mother pursuant to these Orders, then the Father shall spend time with the children for four (4) hours at a time to be agreed upon between the parties, and failing agreement, from after school to 7.30pm if it is a school day and from 3.30pm to 7.30pm if the children’s birthdays fall on a weekend.
Christmas
6.That each parent shall spend time with the children each alternate Christmas, as follows:
a)In even numbered years commencing 2014:
i)The Father shall spend time with the children, from 3.00pm on Christmas Eve until 3.00pm on Christmas Day; and
ii)The Mother shall spend time with the children, from 3.00pm on Christmas Day until 3.00pm on Boxing Day.
b)In odd numbered years commencing 2015:
i)The Father shall spend time with the children, from 3.00pm on Christmas Day until 3.00pm on Boxing Day; and
ii)The Mother shall spend time with the children, from 3.00pm on Christmas Eve until 3.00pm on Christmas Day.
Parents’ Birthdays
7.That in respect of a birthday of either of the parents and in the event that the parent is not otherwise spending time with the children pursuant to these Orders, then each parent shall spend time with the children for four (4) hours at a time to be agreed upon between the parties, and failing agreement, from after school to 7:30pm if it is a school day and from 3.30pm to 7.30pm if it is a weekend.
Father’s Day
8.That if Father’s Day falls on a day which the Father is not otherwise spending time with the children pursuant to these orders, then the children shall spend time with the Father from 5pm Saturday the day before Father’s Day until 5.00pm on Father’s Day.
Mother’s Day
9.That if Mother’s Day falls on a day which the Mother is not otherwise spending time with the children pursuant to these orders, then the children shall spend time with the Mother from 5pm Saturday the day before Mother’s Day until 5.00pm on Mother’s Day.
Changeover
10.That for the purposes of changeover, the Father or the Father’s representative shall collect the children from school/daycare if applicable or from the Mother’s residence at the commencement of the Father’s time with the children and the Mother, or the Mother’s representative, shall collect the children from school/daycare if applicable or the Father’s residence at the commencement of the Mother’s time with the children.
General
11.That each party shall notify the other forthwith if either of the children suffer a serious illness or medical emergency whilst in their care, and shall provide details of the treating medical practitioner or medical facility.
12.That each parent notify the other, in writing by email or text message, within twelve (12) hours of either parent arranging any medical appointments for the children with any medical professionals, including specialists and both parents are entitled to attend all and any medical appointments of the children.
13.That the mother and father do all acts and things necessary so as to comply with directions of the children’s general practitioner or specialist in relation to the administering of prescribed medications, including but not limited to [S’s] Ritalin prescription.
14.That in the event that either parent wishes to take the children on an interstate holiday, that parent shall give the other parent no less than four (4) weeks’ notice of the proposal/trip and accommodation information (including addresses) and telephone contact number(s) on which they can be reached for the duration of the holiday.
15.That the Father shall supply to the Mother a copy of a roster of his work travel dates within seven (7) days of receipt and at least quarterly.
16.That each parent shall provide the other with notice within two (2) days of any change of residential address, telephone number, mobile number and email address/details.
17.That the children shall have reasonable Skype and telephone communication with both parents no earlier than 7:30am and not later than 7:30pm and to facilitate such communications each parent shall maintain a landline phone number and access to Skype.
18.That each parent shall communicate with each other in respect of the children by way of email or SMS (text message), except in a medical emergency.
19.That each parent do all such things as may be necessary to ensure that each of them receives copies of all school reports, school notices, school photos, school newsletters and the like with particular reference to school functions and/or school activities in which the children are involved, including parent and teacher interviews.
20.That the parents shall notify each other and keep each other informed of any sporting event, school event and/or extracurricular activity in which either of the children are involved and each parent shall be entitled to attend all such activities regardless of with whom the children may then be spending time.
21.That the Mother and Father be restrained by way of injunction, pursuant to section 68B of the Family Law Act, from denigrating each other or a partner of either parent, in the presence and/or hearing of the children, and that they each ensure that no other person denigrates the other parent or a partner of either parent in the presence and/or hearing of the children.
22.That neither parent shall use corporal punishment on the children.
23.That the parents shall attend upon Ms [K], psychologist, at their joint expense from time to time as may be directed by Ms [K] for the purpose of working with the parents if required by Ms [K] with regard to issues relating to the children, including co-parenting, improving communication skills and the parents shall comply with all reasonable requests of Ms [K] for a period of no less than twelve (12) months from the date of these Orders or such time as recommended by Ms [K].
24.That the Mother and Father shall facilitate the children’s attendance upon Ms [K] at such times and at such places as may be arranged by Ms [K] for a period of no less than twelve (12) months from the date of these Orders or such time as recommended by Ms [K].
25.That each parent is restrained from discussing the court proceedings with the children save and except as recommended or directed to do so by Ms [K].
On 4 April 2014 further orders were made by consent in terms of a document Exhibit 16 as follows:
1.That that within 60 days of the date of this order each parent pay to Legal Aid NSW the sum of $5,650.00 in full and final payment of their contribution towards the ICL’s professional costs.
AThe Court notes that each parent has paid in advance to Legal Aid NSW the sum of $1650 each (sic).
Further, on 4 April 2014 the following orders were made by consent:
1.That the children spend time with their father during the April 2014 school holiday period, from 9am 22 April 2014 to 5pm 27 April 2014
2.That the children spend time with their father at times when he is in Sydney, pending judgment, as follows:
a.From after school Friday to 5.00pm Sunday commencing on 4 April 2014 on the first two weekends of each month that the father is in Australia.
The Parenting Proceedings
The orders made by consent left the parenting issues for determination as the precise living arrangements during school term – broadly week about or two weekends a month; the arrangements during school holidays and the issue of overseas travel.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of 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. 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.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.Set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.Where possible and relevant, consider and make findings about matters set out in s 60CC;
c.Apply s 65DAA if relevant and assess the proposals in light of that provision;
d.If s 65DAA is not relevant, assess the proposals against the best interests criterion;
e.Consider and make findings about living arrangements; and
f.Make orders.
The Parties’ Proposals
As is referred to above, there were changes to the parties’ positions over time but when final submissions were made the proposals were as follows:
·The applicant mother sought that the children live with the father on the first two weekends of each month from after school Friday to before school Monday and block periods during school holidays at times to be agreed between the parties. The mother sought week about orders for the 2014 Christmas school holidays, with weeks 1, 3 and 5 with her and weeks 2 and 4 with the father. For the 2015 Christmas holidays she sought weeks 1 and 3 with the father and weeks 2, 4 and 5 with her. The mother opposed any overseas travel.
·The respondent father sought orders whereby the children would live with him each alternate week, from 5.00 pm Sunday to 5.00 pm the following Sunday. By way of an alternate proposal[1], the father proposed a regime graduated in six, four week stages from alternate weekends to what I assume was intended[2] to achieve the children living with him for nine nights in every four weeks. He considered that the change should be introduced gradually. The father sought half of the school holidays. In respect of travel the father sought permission to remove the children from Australia for the purposes of travel to the United States of America to visit his extended family.
[1] Page 8 of the father’s Practice Direction Document dated 28 March 2014.
[2] The sixth and final stage of the father’s alternate proposals is expressed: “from 3.30pm Friday to 5pm Sunday each alternate weekend;” and “from 5pm Sunday to 5pm Sunday in the alternate week”. If that was literally put in place then by my calculations the children would be with the father for 18 out of each 28 nights, including all Friday and Saturday nights. Nothing in the presentation of his case suggested that the father sought that the children would live mainly with him or that they should not have any weekends with their mother.
The ICL proposed increases in the father’s time in three, six monthly stages until it reached 11 nights in every four weeks. The final arrangement proposed was from after school Thursday in week 2 of a four week cycle to before school the following Monday and from after school on Friday of week 3 to before school on the following Friday. The ICL also proposed that the parents each have the children for one half of the school holidays and that the children be able to travel overseas with each parent. Although submissions had been made earlier on behalf of the ICL in terms of days, nights or weeks each month, learned counsel for the ICL indicated at the conclusion of the trial that the ICL intended that his proposals be expressed in four week cycles rather than in calendar months. The ICL proposed half the school holidays with each parent and overseas travel for the children.
By way of oral application, the ICL also sought:
a)In the event that the Court permits overseas travel that the children’s names be removed from the Watch List;
b)That the father be ordered to attend a Triple P parenting program; and
c)That leave be granted to the ICL to provide a copy of the final orders to the families’ therapist Ms K and to staff at F Primary School
Section 60CC Considerations
Section 60CC provides the criteria for what is in a child’s best interests. It specifies the following considerations:
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[3] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[3] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[4]
[4] Champness & Hanson (2009) FLC 93-407.
Each of the parents proposes that the children have overnight time with the other parent, including block periods and on an unsupervised basis. The background facts support a finding that the children have meaningful relationships with both parents. It would be appropriate to make orders that will promote those relationships.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms.
“abuse” , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
Section 60CC (2A) requires that as between the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The mother had concerns that the children are at risk with the father because of his use of pornographic material, particularly material involving children, because he used corporal punishment on the children and because of his emotional and sexual abuse of her.
In 2004 the father gave the mother the names of the two main pornography websites he had viewed. The father subsequently attended counselling at a Christian counselling service.
The mother gave evidence that in 2006 she accessed the websites the father nominated as his two favourite pornography websites and saw sexualised images of 11 or 12 year old girls.
The experts retained by the mother to examine the father’s computer and other electronic devices seized under an Anton Piller order, did not identify evidence that he had accessed pornography involving children. The mother does not contend that she observed the father exposing the children to pornography let alone to pornography involving children. In the opinion of Dr H, there is no significant risk to the children arising from the father’s use of pornography. He did not consider that the children had been exposed to inappropriate sexual behaviour through the father’s use of pornography or that there would in the future be a risk of sexual abuse from the father. Dr H was not challenged in relation to that opinion and I accept it.
The mother alleged that in around May 2004, when she was pregnant with S that the father came home from a work function at 3.00 am, smelling of alcohol and grabbed the bedroom door and pushed it onto the mother.
An incident occurred on or about 14 August 2007 where, following an altercation between the parties, the mother grabbed the back of the father’s shirt and told him to leave. The father then turned around to the mother and grabbed her by the hair and pushed her head into the corner of a nearby kitchen chair. The mother deposed that she was left with a bruise under her left eye and that she suffered a miscarriage a few days after the incident. The father alleged the mother was verbally abusive, grabbed him and then fell and hit her face. The mother reported the incident to police on 16 August 2007. The mother later gave evidence during proceedings for an AVO that she could not be sure if the father pushed her or if she fell.
Notwithstanding that history, it is common ground that the children will spend unsupervised, overnight time with the father. In particular that is the mother’s application.
The children have been exposed to conflict between the parents but Dr H opined that the children had not been abused, neglected or exposed to family violence. He did not identify any factors suggesting that the children are likely to be exposed to abuse by either parent.
The one area of concern to Dr H was the fact that the father had used corporal punishment on the children, all the more so as it had proven ineffective. The father conceded that he struck the children in the course of disciplining them. He has decided not to do that again. With the mother, the father agreed to orders restraining him from using corporal punishment on the children.
Additional considerations
(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;
The boys told Dr H that they wished to continue to live primarily with their mother but were agreeable to spending unsupervised time with their father. S was comfortable with the idea of overnight time whereas Y was not, mentioning his father’s discipline and the desire to care for the animals at his mother’s home. Dr H observed that those wishes were understandable given the boys’ primary attachment to their mother. He noted that the boys have been exposed to parental conflict and communication whereby each parent blamed the other. Dr H considered that those factors created an atmosphere of mistrust.
Dr H reported that the boys are intellectually capable. The mother told Dr H that they had been identified as gifted and talented. S had experienced learning difficulties. The mother considered that S is “incredibly bright” but that his academic achievement does not reflect that, due to the learning difficulties.
The mother experienced Y to be very manipulative and told Dr H that he would lie and play people off against each other.
Dr H did not expressly report on the weight that might be accorded to the children’s views but the background evidence suggests that notwithstanding their ages, the boys’ wishes might be viewed with some caution.
M did not express a view to Dr H.
(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);
In the opinion of Dr H all three children have a primary attachment to their mother. Dr H did however observe positive interactions between the children and the father. Y was reported and observed by Dr H to be oppositional and defiant in his interaction with his parents. Dr H considered that to be a function of his underlying temperament but further amplified by exposure to parental conflict and ineffective discipline.
Arguing against S having an Autism Spectrum Disorder, Dr H observed a warm relationship between him and each of the parents.
Dr H observed positive relationships between the children and the maternal grandmother and their nanny.
In recommending against a week-about regime, Dr H referred not only to the potential impact on the children of spending less time with their mother but to the impact on them of the distress and anxiety that the mother would feel at the imposition of such a regime. That suggests that in Dr H’s opinion, the mother is incapable of insulating the children from her anxiety.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
There is no serious contention that either party has avoided opportunities to spend time with the children, communicate with the children or to participate in decision-making about them. To the extent that the father’s time with the children has been limited that has come about largely because of the travel commitments associated with his employment and because of the restrictions imposed by the mother. Similarly, those occasions when the father has not been involved in decision-making particularly in relation to medical matters have largely arisen because the mother did not consult with him.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
In my view the parents have largely fulfilled their obligations to maintain their children.
(3)(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;
An equal time arrangement would represent a significant change in the lives of the children. Dr H considered that such an arrangement would be met with resistance and distress from the mother. That in turn would impact on the emotional experience of the children because they are sensitive to parental conflict and highly aware of the mother’s views about the father. Given their difficulties in communication and the history of control with the parental relationship and their lack of trust, Dr H considered that an equal time arrangement would require therapeutic intervention and would need to be introduced gradually.
An equal time arrangement is likely to have an adverse impact on the children both directly and through its impact on their mother.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The main practical problem is caused by the travel commitments associated with the father’s work. It follows from his proposals that the father can be available in Australia every second week. The ICL’s proposals concentrate the children’s time with the father mainly into two weeks of each four weekly cycle. In my view a pattern that concentrates the children’s time with one parent for half of each four week cycle will best address that issue.
Otherwise, the difficulties associated with implementing one living arrangement or another are more to do with the parties’ relationship than to practical difficulties or expense. The parties live near each other in Sydney’s south. The parties have been assisted in their parenting by a nanny and the maternal grandmother and it is likely that that assistance will be available to both parties in the future. Her affidavit suggests that the nanny, Ms C, is somewhat aligned with the mother. Nevertheless, despite being put in the awkward position of supervising the father’s time with the children, there is no suggestion that she would not be able to cooperate with the father in the future.
(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;
The litigation process focuses on the negative aspects of parents. Even in this case where it is common ground that the children will spend significant time with each parent including overnight time, block periods and that those times will be unsupervised, much of the cross-examination focused on criticisms of the parties’ conduct in relation to their children. In turn I was somewhat critical of counsel, for the emphasis and strength of the criticisms implied by their cross-examination of the parties. To my observation each of the parents made appropriate concessions about their past conduct and about specific incidents. The parents made the unremarkable concession that they could have done things better and expressed a willingness to take advice from experts to better manage issues such as discipline. In the course of parenting proceedings sight can be lost of the practical realities of parenting and the challenges that parents face. For whatever reasons the parties have found the behaviour of Y and S to be challenging and difficult to control. While the Court is obliged to identify poor decision-making by parents and would encourage them to explore strategies to better deal with challenging behaviour from their sons, it must be acknowledged that there is no perfect answer to some situations.
It must be also acknowledged that at the time of relationship breakdown parents often do not have the support and assistance of the other parent. Quite the contrary. As has been seen in this case the breakdown of the marriage can lead to distrust, anger and denigration of the other parent. That adds to the difficulty of what in any event would be a challenging parenting task.
Dr H recorded that the mother has a complex psychiatric history which has been assertively addressed with psychological and psychiatric interventions, to good effect. The mother has been affected by shameful behaviour by her father, her parents’ divorce, her adopted father’s suicide, anorexia nervosa as a teenager, depression and PTSD symptoms following the death through leukaemia of her first husband and the impact of a complicated medical history including Thyroid disease and a diagnosis of Multiple Sclerosis. Although the diagnosis of Multiple Sclerosis was subsequently excluded, the diagnosis alone would have had an adverse impact on the mother.
The father said that in 2008 he started to observe that the mother had tremors, slurred speech and difficulty keeping her balance. The mother denied that she had tremors however stated that for the last three to four years of the marriage she suffered severe panic attacks and that she had a reaction to Zoloft which at times made her panic attacks worse.
On 18 August 2008 the mother commenced seeing Dr R who diagnosed anxiety and adult ADHD.
Although there had been substantive improvement in her depressed and anxious mood since separation, the mother remained in a state of high anxiety when the children were in the care of the father. Nevertheless Dr H considered the mother to be a highly competent and high achieving individual who had assertively addressed her emotional vulnerabilities.
Dr H did not identify the father to have a psychiatric disorder. He considered that given his Christian faith and authoritarian upbringing, the father suffered shame because of his use of pornography.
While the father made some concessions, for example in relation to physical punishment, there is an element of his case that demonstrates that he maintains the correctness of his parenting style. The submissions made in support of his case highlighted the need to protect the children from the mother (the mother’s threat to send S to Boystown) and to provide respite from periods when she is challenged by the children and her capacity is compromised. There is a concept in the submissions made in his case, of the children being settled down by the father so that they can return and experience the loving (albeit less competent) care of the mother. I do not accept that characterisation of the competing parenting claims of the parents.
The parties are intelligent, mature adults and to my observation, loving parents. They concede that they have acted badly on occasions and there is no doubt that if they had been able to cooperate there would have been a better outcome for their children over the last few years. The parents have very different personalities and the breakdown of their relationship has polarised their opinions and to some extent, their parenting. The mother has a history of anxiety and she continues to be anxious in relation to the father’s care of the children. In my view much of her anxiety about that issue is not warranted on an objective basis. Requiring the father to provide her with a photograph of the bedding available for the children at his accommodation is a symptom of that unwarranted anxiety. The father has been caught up in the litigation, perhaps focused in some instances on his rights rather than what would be in the best interests of the children. Until it was pointed out in cross-examination, it had not occurred to him that his leave arrangements would not necessarily allow him to spend time with the children for one the half of the school holidays he seeks. When he did consider that issue he readily conceded that if he could not spend time with the children and if his parents were not available, it would be sensible for the children to return to the mother during those school holiday periods. The father was asked what he thought was the reason behind the mother’s contention that S is on the autism spectrum despite Dr E’s opinion to the contrary. The father responded to the highly cynical effect that the mother might seek justification for her own inability to manage S’s behaviour.
During cross-examination of the father he was challenged about his contention that S’s diagnosis with ADHD is incorrect. Given that each of the parties disputes Dr E’s opinion about a condition suffered by S it is difficult to understand the reason for that challenge. It is unremarkable that an adult would seek a second opinion in relation to an important medical diagnosis, especially in relation to a child.
In Dr H’s opinion both parents have adequate capacity to meet the children’s emotional and intellectual needs. I accept that opinion. The mother was identified by him as prioritising the children’s developmental needs but Dr H observed her to be resistant to facilitating and encouraging a close and continuing relationship between the children and the father. He viewed the father as capable but noted that the father’s authoritarian approach to parenting was met with resistance from the children and most notably from Y. This caused problems, particularly given that the mother viewed the father’s discipline as controlling and abusive. That in turn, according to Dr H, resulted in inconsistency between the parents which perpetuated Y’s oppositional and defiant behaviour.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The boys are both intelligent. Y has been preoccupied with a particular computer game and has “exhibited escalating Oppositional Defiant behaviour in the context of persistent parental conflict and triangulation”.
S achieved very highly in sporting pursuits. The mother reported that he is “most kind-hearted, soft gentle, loving and beautiful”. She gave the example that he had volunteered to be physically punished in Y’s stead.
The father is American and the paternal grandparents live in the USA. This highlights the importance of the issue of the children being able to travel overseas. The mother accepted that it is important for the children to have a relationship with the paternal family and to understand their background and culture.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Dr H considered that both parents had a committed approach to the children and to the responsibilities of parenthood. That accords with my view of the evidence.
(3)(j) any family violence involving the child or a member of the child’s family;
I have referred to the evidence in relation to allegations of physical violence.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On 17 August 2007 the father was charged with assault and the police sought an AVO for the protection of the mother and children. Despite the mother’s request, the charges were not withdrawn by the police. On 3 October 2007 the interim AVO was extended to protect the mother and children.
On 6 February 2008 the assault charge against the father was dismissed following the mother giving evidence that she could not be sure whether the father pushed her or she fell. A final AVO was made for the protection of the mother and the children.
There are no current orders.
(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;
The mother proposes that the father spend time with the children for six nights per month. She gave evidence that the parties could then agree on additional time between them. The mother also wishes for some flexibility in holiday arrangements.
The concern with a flexible approach is highlighted by the father’s evidence that the mother refused to allow him to spend time with the children on the weekend before the trial commenced. That was a weekend when his mother was staying with him. Instead of agreeing to the father’s request, the mother sent the children to the maternal grandmother’s house for the night. That suggests that there could be difficulties in future about the parties agreeing on additional time.
The submissions on behalf of the ICL were to the effect that the orders least likely to lead to the institution of further proceedings would be those that stipulate defined school term time and holiday time with only the usual flexibility for parties to depart from those arrangements. There is force in that submission.
Living Arrangements
On 2 April 2014 orders were made by consent, including an order that the parents have equal shared parental responsibility for the children. It is therefore necessary to consider equal time and if that is not ordered, substantial and significant time with each parent. Section 65DAA requires that in considering equal time the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Would equal time be in the best interests of the children and reasonably practicable? As to the first of those questions, the primary considerations do not assist. Turning to the additional considerations, the boys told Dr H that they wished to continue to live primarily with their mother. Dr H observed that those wishes were understandable given their primary attachment to their mother. There are characteristics of each boy that warrant some caution in taking account of their wishes. M did not express a view to Dr H. Although Dr H observed positive interactions between the children and the father, in his opinion all three children have a primary attachment to their mother. Psychologist Ms T also identified the mother as the primary caregiver of the children. In recommending against a week-about regime Dr H referred not only to the potential impact on the children of spending less time with their mother but of the impact on them of the distress and anxiety that the mother would feel at the imposition of such a regime. Dr H considered that an order for equal time would be met with resistance and distress from the mother. That in turn would impact on the emotional experience of the children because they are sensitive to parental conflict and highly aware of the mother’s views about the father. Given their difficulties in communication and the history of control within the parental relationship and their lack of trust for each other, Dr H considered that an equal time arrangement would require therapeutic intervention. He considered that any such arrangement would need to be introduced gradually.
The relevant additional considerations do not favour equal time. Therefore it would not be in the best interests of the children to order equal time. On that finding it is not necessary to go further. For completeness, however, I will turn to the question of whether equal time would be reasonably practicable. Section 65DAA(5) provides:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child‘s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents‘ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents‘ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The parties currently live near each other and have each been assisted in their parenting by the same nanny and the maternal grandmother. It is likely that that assistance will be available to both parties in the future. As I have observed above, the nanny, Ms C, is likely to be able to work with the father as well as the mother, in the future. The parties’ communication is not good and as recently as the weekend before the hearing, they were not able to put in place a sensible compromise in the best interests of the children. They distrust each other and are suspicious of the motives of each other.
For the reasons that are identified above, in my view an equal time arrangement would have an adverse impact on the children. On that basis, I find that equal time with both parents would not be reasonably practicable. Equal time would neither be in the best interests of the children, nor reasonably practicable.
I turn to consider substantial and significant time.
There is no doubt that the orders proposed by the ICL and those proposed by the father would achieve substantial and significant time with both parents. Minds could differ as to whether the proposals of the mother would achieve substantial and significant time between children and the father. With no significant extension of his time into their school week, it is probably the case that the mother’s proposals would not, in accordance with s 65DAA(3), ensure that the father will be involved in the daily routines of the children and in occasions and events that are of particular significance to them. It may be that her proposals would also not allow the children to be involved in occasions and events that are of special significance to the father.
As to whether the substantial and significant time would be in the children’s best interests, it follows from the above findings in relation to s 60CC that it would. The primary and additional considerations are either neutral or favour substantial and significant time. Therefore it would be in the best interests of the children to order that the parents have substantial and significant time with them.
As to whether substantial and significant time with the parents would be reasonably practicable. I refer to the findings made earlier in respect of equal time. A regime that has the children living mainly with their mother will have the support of the children and the mother. Although the parties’ communication is poor, if the arrangements are largely specified and so the need for negotiation and communication is reduced, that should not preclude an effective living arrangement. Importantly, Dr H apparently considers that it would be reasonably practicable for the father to have at least, substantial and significant time with the children. Such a view is pressed on behalf of the children’s lawyer. I do not understand the mother’s objections to relate to practicability.
I also refer to the reasons set out above in relation to equal time. In my view it would be reasonably practicable to order substantial and significant time.
As to the particular arrangements, I accept that it is open to the Court to make orders as to living arrangements that are different from those proposed by the parents or on behalf of the children. However, the submissions were made only in terms of the particular proposals. One could make a case for a day more or less. Nevertheless, it seems to me that the proposals made on behalf of the ICL achieve a measured advance to a pattern of living arrangements that addresses the criteria going to the best interests of the children. They implement over time an arrangement that recognises the wishes of the children and the fact of their primary attachment to their mother. The importance of their relationships with their father and the practical realities of his work arrangements are also addressed. The proposals minimise the number of handovers while ensuring that the children are not away from their mother for more than seven days and that will only occur in school holidays. The proposals ensure that all school term handovers are to and from school, thereby avoiding the risk of any disputation on those occasions. I will make orders in terms of the ICL’s proposals.
As to school holidays there is virtually no dispute. The father’s general proposals did not distinguish between school term and holidays, with the week about arrangement continuing throughout the year. The exceptions he proposed related to special days and to the right of either parent to elect, on notice, to have the children for one block period of no more than two weeks each year. The mother sought that the school holidays be as agreed between the parents save that she sought week about orders for the 2014 Christmas school holidays, with weeks 1, 3 and 5 with her and weeks 2 and 4 with the father. For the 2015 Christmas holidays she sought weeks 1 and 3 with the father and weeks 2, 4 and 5 with her. The dispute, such as it is, is not about matters of principle.
The ICL proposed that the parties each have the children for one half of all school holidays save that the father’s time in the 2014 Christmas holidays be two, one week blocks. That seems a sensible compromise. As to the father’s idea of the parties being able to elect to have the children for a two week block once a year, under the ICL’s proposal they will be able to do that in the Christmas holidays from 2015 but not otherwise. The father’s idea is a good one but it could cause pressure for a child and disputes between the parents if the children have no holiday time with one parent during one of the three shorter school holidays. I will leave such an arrangement to be only by agreement between the parties.
The parties have not always been ready to facilitate time with the other parent when they are not available for the children. I have noted that the mother refused to allow the father to spend time with the children on the weekend before the trial commenced. That was a weekend when his mother was staying with him. Instead of agreeing to the father’s request, the mother sent the children to the maternal grandmother’s house for the night. On the other hand it had not occurred to the father that his leave arrangements would not necessarily allow him to spend time with the children for one the half of the school holidays he sought. That suggests that there could be difficulties in future about the parties making sensible arrangements when they are not available. The devil is in the detail and if Court orders are too open to interpretation then there is a risk of debilitating enforcement action. I will not make any specific order but would strongly encourage the parties to keep each other informed if they will not be available for the children at times when the children are to be with them under the Court orders and to make timely and sensible arrangements with the other parent in that event.
The mother advanced the idea that the orders would treat Y differently to the other children. There was no support for such a distinction from the father, the ICL or importantly, from Dr H. Y is the oldest of the children but the particular struggle he and the parties have had in managing his behaviour, provides a reason for his views to be given less rather than greater, weight. I will express the orders in similar terms for all three children.
The parties cannot agree about overseas travel for the children. In my view the parents should be able to take the children overseas. The mother is concerned about the father retaining the children outside Australia. There is no evidence to support that fear save for the father’s overseas connections. While it constitutes a risk, the fact of those connections is an important reason for facilitating the travel. As a general proposition, overseas travel can be an enriching and enjoyable experience for children and in my view it should be facilitated here. Indeed, the parents set the pattern of supporting overseas travel for the children in the past.
The father disputes the mother’s evidence about her income. By exhibit 9 he extracted information to suggest that in the 12 months from July 2012 the mother received a total of $128,620.20 in payments apparently related to her work as a medical professional, not including the income from her practice. I understood the mother to concede during cross-examination that there was an error in her Financial Statement on this issue and that her income was greater than she had deposed.
The mother spends $1,686 per week which includes $64 in tax, $700 in mortgage repayments, $75 in rates, $143 in insurance premiums, $237 on car expenses and $180 on Mastercard payments.
The father’s income, including superannuation contributions, car allowance and health benefit is approximately $6,240 gross per week, plus bonuses. The father works as a senior director with a large company and is employed on a full time basis.
The father spends $4,189 per week which includes $2,320 in tax, $650 in rent, $268 in insurance premiums, $235 on car expense and $716 on child support. The father’s financial resource in the form of his rental bond is not of significance.
I note that the mother receives $776 per week in child support while the father only pays $716 per week. There is no explanation for that discrepancy.
The outcome based on contributions alone would favour the father by about $85,000.
It is the father’s case that the mother’s earning capacity is around $150,000 per annum plus superannuation, if she were to work as a medical professional and that her earning capacity will increase and exceed his. The mother disputed those propositions. It was her evidence that the maximum she earned working six days per week as a medical professional in the past was $68,000 per annum and further that she would not be comfortable seeing the high number of clients this role would demand. The mother commenced a specialised professional practice in August 2013. She retrained and secured further professional qualifications. She operates her specialised practice from home as a sole trader and has no employees. The demand for her services is variable and the time taken in the new practice is also extremely variable because of the time taken for the required procedures. As at the date of swearing her affidavit, the mother had seen 54 clients at home.
In my view the mother is exercising something like her earning capacity. She has maintained employment in her profession despite time off associated with the birth and care of the parties’ children. That has meant maintaining currency in her areas of practice. In addition, the mother retrained and has commenced to practice in that area.
As has often been noted, s 75(2) serves more than one purpose. Here the Court is not concerned with a claim by the mother for spousal support from the father. The question of the difference between the income of the parties and their earning capacity may have greater import in the latter proceedings. In any event, it is no doubt true that the mother could earn more money than she does. That must also apply to the father. In each case, in addition to their current work they could take up a paper run in the mornings and earn more money. They could also retrain as traders on the money market and make millions. In the real world and for the purposes of property settlement however, it seems to me that each of the parties is exercising something like their earning capacity.
As to the future there is no basis for finding that the mother’s earning capacity will exceed that of the father. If the past is any guide and it should be, quite the contrary. The father’s earning capacity is substantially greater than that of the mother.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
There are three children of the marriage aged eleven, ten and four years. Following orders made by this Court, the children will mainly live with their mother but will spend substantial periods in their father’s care.
The two older children, S and Y, can exhibit behavioural difficulties and are at times hard to control, making the parenting task more onerous than would otherwise be the case.
(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 mother receives an income tested child care benefit. Each of the parties has superannuation interests.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is no reliable evidence about the standard of living of the parties at any particular time.
(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
The father pays the mother the assessed amount of child support which as at about March 2014 was either $716 or $776 per week.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The mother drew $51,801 from the parties’ mortgage account at separation and applied those funds to her expenses. Albeit with the children, the mother had the benefit of occupying the former matrimonial home since separation. As at the date of the hearing the mother met the mortgage payments which were of similar order to the father’s rent.
Section 79(4)(f)
I have referred to the parenting orders made to date. 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
The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
·The parties are 42 and 45 years of age, they both have a high earning capacity. While the mother earns less than the father, it is likely that the mother’s earning capacity will increase as her business becomes more established. Nevertheless, her income today is substantially less than that of the father and that is likely to continue.
·The outcome based on contributions alone will favour the father.
·The three children will need their parents’ support and a greater portion of that support will fall to the mother with whom the children will primarily live. The two boys have exhibited behavioural difficulties and will place significant demands on the parenting skills of the parties.
·The mother has a history of mental health and anxiety issues. Although perhaps exacerbated by the current proceedings those issues have the potential to be debilitating and ongoing.
The remaining elements of s 79 all support an adjustment in favour of the mother. The parties have argued the case on different bases. That said, the submission for the mother is that the adjustment should be 15 per cent. As I understood the father’s case, any adjustment to the mother should be no more than 5 per cent because the high income earning capacities of the parties.
In my view there should be an adjustment of 7.5 per cent in favour of the mother. In this context 7.5 per cent represents $63,716 and an adjustment of that magnitude would cause a disparity between the parties of twice that sum. Given the difference in the parties’ incomes that is a significant but not excessive allowance.
That would lead to an apportionment of the first pool as to 52.5 per cent to the mother and 47.5 per cent to the father.
Pool Two – Superannuation Interests
The submission on behalf of the father is that a fair approach in respect of this pool would be to take off his contributions made before marriage and after separation, to make a splitting order out of his Australian superannuation interest (the O Super Fund), calculated to evenly split the remaining interests. In order to achieve that outcome he seeks that the Court allocate a base amount of $115,458 to a splitting order in favour of the mother, out of his interest in that fund.
The mother did not support a two pool approach and does not seek a splitting order. She argues overall that the contributions should be assessed as equal.
Section 79(4)(a) Contributions
Each of the parties brought superannuation interests into the marriage and each made contributions to superannuation after separation.
At the commencement of the marriage the father had superannuation and retirement funds valued at $103,605. The mother says she had $21,459 in superannuation with MLC.
Each of the parties made contributions to superannuation during the marriage. The mother worked as a medical professional before changing to work in an associated field. The father worked at an executive level for a large company.
The parties made contributions to superannuation after separation. It is submitted for the father that his contributions were $46,318.
On those facts, the financial contributions to superannuation by and on behalf of the father exceeded those of the mother.
Section 79(4)(b) Contributions
There is little evidence about non-financial contributions to superannuation. The mother undertook the main parenting role during the marriage while the father was able to maintain full-time employment. That role in itself is recognised under paragraph (c) below but by taking it on, the mother indirectly contributed to the father’s superannuation. It is likely therefore that the mother enabled the father to build his superannuation interests while sacrificing her own.
Section 79(4)(c) Contributions
I refer to the findings about contributions to the family made in relation to the first pool.
I have found that the contributions of the mother to the family exceeded those of the father.
Conclusion on Contribution
The financial contributions of the father to superannuation exceeded those of the mother. The mother made indirect non-financial contributions to the father’s superannuation. The mother’s contributions to the family outweighed those of the father
I agree with the contention in the father’s case that the contributions by and on behalf of him exceeded those by and on behalf of the mother. Again care is needed not to undervalue the s 79(4)(c) contributions. In my view the balance of contributions was 55 per cent by the father compared to 45 per cent by the mother.
The other matters in Section 79
The considerations in s 79(4)(d) – (g) are not pool specific. That is not to say that the same outcome is required but in my view there should be an adjustment of 7.5 per cent in favour of the mother to the outcome warranted by contributions alone. I refer again, without repeating the observations made earlier in respect of the first pool. Adjusted for the value of the second pool those observations apply equally here.
That would lead to an apportionment of the second pool as to 52.5 per cent to the mother and 47.5 per cent to the father.
Just and Equitable
The net assets of the parties have a value of $1,524,594 ($1,433,656 + $675,043 - $584,105).
The non-superannuation assets have a net value of $849,551 and the superannuation interests have a value of $675,043.
The s 79(4) considerations warrant each pool to be apportioned as to 52.5 per cent to the mother and 47.5 per cent to the father. Ignoring the different characteristics of the pools and the different types of order available, a division in those proportions would result in the mother receiving a total of $800,412 and the father receiving $724,182. On the same basis, if the division was made to the two pools in those proportions, the non-superannuation assets would be divided as to about $446,014 to the mother and $403,537 to the father. In respect of the superannuation interests that would mean about $354,398 to the mother and $320,645 to the father.
However, the parties are not agreed about how the orders varying their interests in property should be expressed. In particular, whether there should be provision for an adjustment of superannuation interests through the device of a splitting order and if so, what the relevant base amount should be. The father seeks that part of the settlement be expressed in a splitting order from his O superannuation fund. The mother seeks no such order, her priority being non-superannuation assets.
In the written submissions contained in his practice direction document, reference was made on this issue to the father’s need for capital in order that he can secure appropriate accommodation either in the former matrimonial home or in other premises nearby.
Beyond the argument about the number of pools for the application of s 79(4), this issue was not addressed in the mother’s Case Information. However, it follows from the orders sought by her, that the mother would argue that she has a particular need for capital to retain the former matrimonial home for her and for the children.
Each of the parties would like to retain the former matrimonial home. If feasible, that has advantages in itself as the parties will be spared the costs of selling the property and one of them will avoid the costs associated with purchasing a new home. As a result there will be very substantial savings to the matrimonial pool and thereby to the parties.
The overarching requirement is for a just and equitable settlement of property. Because of the different nature of interests held in the form of superannuation and non-superannuation assets and because the legislature has made provision for orders that can have an effect directly on (Australian) superannuation when the interest in question vests, it is often appropriate to include splitting orders in the orders that change the parties’ interests in property. There are advantages and disadvantages to interests held in the form of superannuation in Australia rather than as liquid funds or other property. For example the income from such interests currently enjoys special taxation status, the extent of the benefit depending on the age of the superannuant and whether the fund is taxed or untaxed. On the other hand there are restrictions on accessing some superannuation funds, often related to the age and employment status of the superannuant or the nature or character of the interest. It is because of those reasons, depending on the other circumstances of the case and of the parties, that it can be unfair to allow a disproportionate amount of one party’s property settlement to be in the form of superannuation interests, leaving the greater share of non-superannuation assets with the other party.
There is no evidence before me as to the benefits or detriments applicable to the father’s USA retirement benefits. It is not contended by either party that an Australian splitting order could effectively be made in relation to the father’s USA interests.
There are other considerations. In my view it is appropriate, as the father invites in the submissions made on his behalf, to consider the immediate need of the parties for capital funds. It can also be relevant to consider the practical utility of superannuation to an individual party by reference to their age and the likely delay in accessing superannuation funds together with the prospects of that party achieving a degree of self-funded retirement. In the case before me each of the parties will have an immediate and pressing need for capital funds to address their accommodation. Because of the level of his income and his long history of secure paid employment it is likely that the father will have less trouble than the mother in obtaining finance. In addition, the father’s superannuation interests are greater and are growing at a faster rate than those of the mother. At this stage only the father can anticipate having a level of superannuation that is likely to give access to a self-funded retirement. For those reasons, in my view some priority should be given to the mother being able to retain the former matrimonial home.
I will give the mother the first opportunity to purchase the property and if she is not able to refinance, the father will have an opportunity to retain it. In order that the orders address all likely contingencies I will make a default order for sale. The mother was asked about the time she would need to raise finance to buy out the father and her answer was to the effect that her broker told that it could be done quickly. As it transpires, at least in the alternative, each of the parties proposes that she have a similar period to arrange refinance. The mother did not however, give evidence about the extent of her ability to service a refinanced debt.
Turning to the approaches favoured by the parties:
The approach favoured by the father
The father seeks that the property settlement be effected by orders including a superannuation splitting order from his Australian superannuation to the effect that the parties retain superannuation in the proportion identified by the Court. If, the orders are expressed by the application of the identified proportions to respective pools then the mother would receive $446,014 in non-superannuation and $354,398 in superannuation interests and the father would receive $403,537 and $320,645, respectively. In terms of non-superannuation interests the mother has the following assets and debts:
Description
Value Furniture 30,000 Westpac Choice bank account number …526 4,125 527 AMP Shares 2,584 3,200 NIB Shares at 9,072 BT Investor Choice Funds 204 1,075 IAG Shares 5,826 Westpac Mastercard -9,602 42,209
In order to bring her to 52.5 per cent of the non-superannuation assets the mother would receive a further $403,805 ($446,014 - $42,209). The former matrimonial home represents a net $757,308 ($1,350,000 - $567,692). Ignoring unpaid legal fees and any other personal debts, that would require the mother to pay the father about $353,503 in addition to refinancing the $567,692 mortgage. Under that scenario the mother would retain her superannuation ($147,102) and would have the benefit of a splitting order with a base amount of about $207,296 ($354,398 - $147,102).
Subject to his legal fees and other personal debts, the latter approach would leave the father with:
Description Value St George Bank Account number …676 4,450 St George Bank Account number …258 11,345 USAA Bank Account number …124 141 St George Bank Account number …059 1,631 … Stock and Insured Deposit account with AK 3,528 Motor vehicle 35,750 O Super Fund ($324,669 - $207,296) 117,373 US Super Fund 1 151,667 US Super Fund 2 35,935 US Super Fund 3 15,670 Westpac Mastercard -3,026 St George Mastercard -3,785 Payment from the mother for property settlement 353,503 Total 724,182
The approach favoured by the mother
The mother seeks there be no splitting order and the adjustment of property between the parties is made out of non-superannuation property. Of the two pools she has or would retain:
Description
Value Furniture 30,000 Westpac Choice bank account number …526 4,125 527 AMP Shares 2,584 3,200 NIB Shares at 9,072 BT Investor Choice Funds 204 1,075 IAG Shares 5,826 MLC Masterkey Business Super – … 147,102 Westpac Mastercard -9,602 189,311
In order to bring her to 52.5 per cent of the net assets the mother would receive a further $611,101 ($800,412 - $189,311). Again, ignoring unpaid legal fees and any other personal debts, that would require the mother to pay the father about $146,207 in addition to refinancing the $567,692 mortgage. I do not know whether that would be feasible but it would obviously make the mother’s task of retaining the home easier than under the father’s proposal.
Subject to his legal fees and other personal debts, the latter approach would leave the father with:
Description Value St George Bank Account number …676 4,450 St George Bank Account number …258 11,345 USAA Bank Account number …124 141 St George Bank Account number …059 1,631 … Stock and Insured Deposit account with AK 3,528 Motor vehicle 35,750 O Super Fund 324,669 US Super Fund 1 151,667 US Super Fund 2 35,935 US Super Fund 3 15,670 Westpac Mastercard -3,026 St George Mastercard -3,785 Payment from the mother for property settlement 146,207 Total 724,182
This approach will leave the father with little if any capital with which to address his need to fund proper accommodation.
A hybrid approach
Although not specifically canvassed by the parties, it would be open to the Court to take the middle ground and adopt an approach whereby part of the adjustment of superannuation was reflected in a splitting order in favour of the mother and part by an adjustment of non-superannuation interests. If instead of a splitting order based on about $207,206, the mother benefited from an order based on about half that sum, the other half could be adjusted out of non-superannuation assets. This approach would improve the mother’s chances of refinancing the home, over the full splitting order approach, while improving the father’s access to capital compared to the mother’s proposal.
Of the two pools the mother has or would then retain:
Description
Value Furniture 30,000 Westpac Choice bank account number …526 4,125 527 AMP Shares 2,584 3,200 NIB Shares at 9,072 BT Investor Choice Funds 204 1,075 IAG Shares 5,826 MLC Masterkey Business Super – … 147,102 Westpac Mastercard -9,602 189,311
The mother would benefit from a splitting order based on about $103,603. In order to bring her to 52.5 per cent of the net assets the mother would receive a further $507,498 ($800,412 – ($189,311 + $103,603)). Again, ignoring unpaid legal fees and any other personal debts, that would require the mother to pay the father about $249,810 in addition to refinancing the $567,692 mortgage.
Subject to his legal fees and other personal debts, the hybrid approach would leave the father with:
Description Value St George Bank Account number …676 4,450 St George Bank Account number …258 11,345 USAA Bank Account number …124 141 St George Bank Account number …059 1,631 … Stock and Insured Deposit account with AK 3,528 Motor vehicle 35,750 O Super Fund after splitting order ($324,669 - $103,603) 221,066 US Super Fund 1 151,667 US Super Fund 2 35,935 US Super Fund 3 15,670 Westpac Mastercard -3,026 St George Mastercard -3,785 Payment from the mother for property settlement 249,810 Total 724,182
It seems to me that this approach fairly balances the competing interests of the parties and so meets the purposes of the legislation. I will make orders aimed at achieving that outcome.
Turning to the precise wording of the orders, the father’s solicitors engaged in correspondence with the trustees of the Australian fund holding the greatest proportion of the father’s superannuation interests. I am satisfied that the form of splitting order proposed on behalf of the father would be effective and its trustee has been given notice that an order may be made in that form and has had input to that wording.
In the event that neither of the parties can afford to refinance the former matrimonial home and a default sale is necessary, I will provide for the net proceeds of such a sale to be distributed in the proportions that I have identified for the adjustment of the net value of the B property between them. Those proportions favour the mother 507,498 : 249,810. I will round out those proportions to 67 per cent to the mother and 33 per cent to the father.
Conclusion under Section 79
This was a marriage that involved important contributions made during 12 years of cohabitation and since separation. The contributions of the father exceeded those of the mother. An adjustment in favour of the mother is warranted from an outcome based on contributions alone, particularly because the parties’ children will mainly live with her and because her income and earning capacity are less than those of the father. As a result the parties’ property should be divided in a way that slightly favours the mother. A just and equitable settlement of property gives priority to the mother having non-superannuation assets and thereby the best opportunity to secure appropriate accommodation for herself and the children. If feasible that could be the former matrimonial home at Suburb B.
As with the parenting orders, there is some complexity to the orders for property settlement and I will provide for the parties, if necessary, to bring the matter back before the Court within 28 days of the delivery of judgment in relation to the phrasing, rather than the import of the orders.
I certify that the preceding two hundred and eighty three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 November 2014
Associate:
Date: 11 November 2014
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Consent
-
Remedies
-
Jurisdiction
-
Procedural Fairness
0
1
21