FAMILY COURT OF AUSTRALIA
| SNIPPER & JAMES AND ANOR | [2018] FamCA 7 |
| FAMILY LAW – CHILDREN – Where final parenting orders were made in 2013 but there is no question that it is in the children’s best interests to change those orders – Where the single expert concluded that there is a high risk of emotional abuse of the children in the husband’s care – Where each of the children has suffered from the current parenting arrangement and there is a need to protect the children – Where interim orders were made in February 2017 decreasing the amount of time the children spend with their father and this change has demonstrated that the best chance of the children having a meaningful relationship with their father is to ease the intensity of the pressure upon them and put some distance between the children and their father – Where there has not been parental alienation by the wife as asserted by the husband – Where the parents currently lack the capacity to work collaboratively and cooperatively together and the husband concedes that an order should be made for the wife to have sole parental responsibility with the wife to keep the husband informed of any decisions made in relation to the children – Where the husband seeks orders for the children to spend equal time with him and the wife – Where the wife fundamentally seeks a continuation of the interim orders made in February 2017 which provides for the children to spend regular time with the husband but less than 50 per cent of the time – Where orders are made as sought by the wife for the children to spend time with the husband each fortnight from Sunday to Monday morning and an order is made that when the children are aged 14 they are able to initiate additional time with the husband in consultation with their therapist – Where orders for supervision are made in relation to the two younger children to continue for 12 months. FAMILY LAW – PROPERTY – Where both parties seek property settlement orders – Where the wife also seeks a child support departure order and a spousal maintenance order – Where the Commissioner of Taxation for the Commonwealth of Australia is an intervenor in the proceedings and seeks that as part of any final property settlement the court take into account the taxation liabilities of the parties – Where the net assets of the parties excluding taxation debts are looked at first to determine what would be a just and equitable distribution between them before considering the competing claims of the wife and the Commissioner – Where the existing net assets before taxation liabilities should be divided between the parties 80/20 in the wife’s favour taking into account the contributions made by the wife – Where an adjustment is made of existing net assets of 15 per cent in favour of the wife taking into account the substantial monies the husband expended on… |
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- AGLC
- Snipper and James & Anor [2018] FamCA 7
- Case
- [2018] FamCA 7
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children in relation to parenting arrangements, specifically whether to continue the reduced time with the father or grant the father's request for equal time. Legally, the court had to assess whether parental alienation had occurred, the parents' capacity for collaboration, and the need to protect the children from emotional abuse. In the financial proceedings, the court had to determine a just and equitable distribution of the parties' net assets, taking into account the wife's contributions, the husband's gambling expenditure, and the competing claims of the wife and the Commissioner of Taxation regarding tax liabilities. The court also had to consider the wife's applications for child support departure and spousal maintenance.
Watts J found that the existing parenting arrangement was detrimental to the children and that a change was necessary for their best interests. The court accepted the single expert's conclusion regarding a high risk of emotional abuse and the need to protect the children. The court determined that the interim orders, which reduced the children's time with the father, had demonstrated that easing the intensity of pressure upon them was beneficial. The court found no evidence of parental alienation by the wife and acknowledged the parents' current inability to cooperate. Consequently, the court made orders for the wife to have sole parental responsibility, with the husband to be kept informed. The court ordered that the children spend regular time with the husband, but less than 50 per cent of the time, specifically each fortnight from Sunday to Monday morning. Orders were also made for supervised contact for the two younger children for 12 months and for children aged 14 to be able to initiate additional time with the husband in consultation with their therapist.
In financial matters, the court determined that the net assets, excluding taxation debts, should be divided 80/20 in the wife's favour, with a further 15 per cent adjustment in her favour due to the husband's gambling and ongoing liabilities. The court balanced the rights of the Commissioner of Taxation and the wife, ordering the wife to pay her own tax debt and contribute to the husband's tax debt. A child support departure order was made, with the husband to be responsible for 87.6 per cent of the children's expenses and the wife for 12.4 per cent, based on their relative income-earning capacities. The wife's application for spousal maintenance was dismissed.
Orders
Orders of the court
Parenting
1.
All previous parenting orders be discharged.
2.
The children G born … 2002, B born … 2004 and R born … 2010 (“the children”) live with the wife.
3.
Subject to any other obligation as provided for in these orders the wife shall have sole parental responsibility for making decisions about major long-term issues in respect of the children subject to the wife informing the husband in writing at the earliest opportunity of her decision in respect of the long term care, welfare and development of the children.
4.
The wife shall not change the children’s surnames nor move the children away so that the implementation of the orders for the children to spend time with their father becomes significantly more difficult.
5.
The wife’s exercise of her parental responsibility in relation to non-urgent medium to long term medical decisions and or specialist recommendation, excluding the retaining of therapists for counselling, shall be as follows:
5.1. The wife shall inform the husband in writing of her proposed decision.
5.2. The husband shall within four (4) weeks of receipt of the written notice from the wife provide to the wife in writing his views in respect of such medical decision or specialist recommendation.
5.3. The wife shall thereafter consider the views of the husband prior to making a final decision and thereafter inform the husband of that decision at the earliest opportunity in writing.
6.
The children shall spend time with the husband and communicate with him as follows:
6.1. Each alternate Sunday from 9am to Monday morning before school or 9am Monday on long weekends and school holidays.
6.2. Telephone communication each Wednesday between 6pm and 7pm.
6.3. Telephone communication each other alternate Sunday between 6pm and 7pm (not the Sunday referred to in Order 6.1).
6.4. Communication between the children and the husband by way of telephone, text, electronic and/or social media shall be restricted to the times referred to in Order 6.2 and 6.3 unless instigated by the children.
6.5. For two (2) hours on each of the children’s birthdays and the husband’s birthday as agreed and failing agreement between 5pm and 7pm.
6.6. Upon each of the children attaining the age of fourteen (14) years communication between the husband and that child may occur outside the times referred to in Orders 6.2 and 6.3 but initiated by the child.
6.7. In the event that the children are not available to spend time with the husband in accordance with Order 6.1, due to a prior engagement, then the wife shall notify the husband as soon as is practicable but not less than 14 days prior to the date and provide to the husband three dates when make-up time can occur and the husband shall thereafter notify the wife within seven (7) days of having received such notice which of the nominated alternative dates he accepts.
6.8. Upon each of the children attaining the age of fourteen (14) years that child may with the assistance of their counsellor, and thereafter in consultation with the therapist, inform the husband, should the child so wish, of what additional time they may wish to spend with the husband up to the following:
6.8.1. from completion of school Friday to 9am Monday morning in each alternate weekend.
6.8.2. for one afternoon/evening per week.
6.9. On the eve of Pesach from 4pm until the commencement of school the following morning in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing in 2018.
6.10. On the first day of Pesach from 4pm until the commencement of school the following morning in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing 2019.
6.11. On the eve of Rosh Hashana from 4pm until 10am the following day each alternate year commencing 2018.
6.12. On the first day of Rosh Hashana from 10am until the commencement of school the following day in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing in 2019.
6.13. On Kol Nidre from 4pm until 10am the following day each alternate year commencing in 2019.
6.14. On Yom Kippur from 10am until the commencement of school the following day in the event it is a school day and if not a school day the children shall be delivered to the wife’s residence by 9am each alternate year commencing in 2018.
6.15. Once a child has reached the age of 14 years a child can indicate to their father that they wish to attend a synagogue for a particular period or periods of time during any of the periods of religious observance referred to in order 6.9 to 6.14 and the husband is to facilitate that request.
6.16. In the event that Father’s Day falls on day when the children are not spending time with the husband from 9am on Father’s day to the commencement of school on Monday morning.
7.
In the event that Mother’s Day falls on a day when the children not spending time with the wife, the children will spend time with the wife from 9am on Mother’s Day to the commencement of school on Monday morning.
8.
For the purposes of Order 6.1 so far as they extend to B and R such time shall occur in the presence of either/or the paternal grandmother Ms AA or the husband’s partner Ms T for a period of twelve (12) months from the date of these Orders.
9.
The wife shall ensure that the children attend upon a counsellor in accordance with the recommendations of that counsellor but not less that once in each six (6) month period.
10.
Leave be granted to the Independent Children's Lawyer to provide a copy of these orders to the husband’s partner Ms T and the paternal grandmother Ms AA.
11.
The husband shall continue to attend upon Dr Z for a period of not less than six (6) months or such shorter period as Dr Z considers appropriate.
12.
Leave be granted to the Independent Children's Lawyer to provide a copy of these orders to Dr Z, Ms U and Ms V.
13.
The wife is to hold the children’s passports. In the event that the husband refuses to sign any application for, or renewal of, passport for each or all of the children within seven (7) days of the wife having submitted such passport application to the husband then the wife is permitted to approach the Registrar of the Family Court of Australia to sign on the husband’s behalf.
14.
The husband shall not:
14.1. Question the children regarding their activities or plans in the maternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.
14.2. Question the children about their loyalty or affection for himself or the wife, or their relative loyalty or affection.
14.3. Challenge or exhort the children to express certain opinions or wishes to any third parties including the wife and their therapists.
14.4. Behave in a verbally aggressive way towards the children.
14.5. Use physical discipline.
14.6. Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.
15.
The wife shall not:
15.1. Question the children regarding their activities or plans in the paternal household or require the children to provide information about the same, beyond general interested enquiry about their life experience.
15.2. Question the children about their loyalty or affection for herself or the husband, or their relative loyalty or affection.
15.3. Challenge or exhort the children to express certain opinions or wishes to any third parties including the husband and their therapists.
15.4. Behave in a verbally aggressive way towards the children.
15.5. Use physical discipline.
15.6. Not push, pull, drag or otherwise use physical force upon the children, or require another person to do the same, unless dealing with an issue of immediate physical safety to the child.
16.
Unless the wife authorises it in writing after a direct request to her from a child, the husband be restrained from attending any sporting fixtures of the children or each of them outside the hours the children are to spend with him provided that this order does not apply to G’s two major sporting activities being football in the winter and cricket in the summer. With those exceptions the children are to participate in sporting commitments when they are with the wife without the husband being present.
17.
The husband be restrained from contacting the wife by email, text or telephone other than responding to any inquiry or advice initiated by the wife in respect of the children or either of them other than in respect of any urgent medical incident of the children or either of them in which event the husband shall initiate the communication as soon as practicable, except that the husband can contact the wife if he is running late for changeover at scheduled contact time and if he wishes to invite the wife to consider swapping times the children are with him for a reasonable reason.
18.
The parents will do all things and sign all necessary documents to enable G to travel to overseas in 2018.
19.
Both the husband and wife pay to Legal Aid NSW the sum of $5,379 in respect of the costs of the Independent Children's Lawyer.
Financial
20.
Pursuant to s 79 Family Law Act 1975 (Cth), an order is made in accordance with paragraphs 21 to 29 below.
21.
The wife be declared the sole owner of the property known as D Street, Suburb J (“the Suburb J property”).
22.
Within three (3) months, the wife discharge any responsibility or liability the husband has in respect of the debt secured by way of first mortgage with the Commonwealth Bank of Australia (No. …72) on the Suburb J property.
23.
Within three (3) months, the husband:
23.1. Resign any office bearing position in A Pty Limited (“the company”);
23.2. Prepare and execute in favour of the wife or her nominee, a transfer of the whole of his right, title and interest in his shareholding in the company;
23.3. Assign to the wife any interest that the husband might have in respect of any claim that he might have against the company;
23.4. The wife indemnify and keep indemnified, the husband against the loan the husband has to the company and any other liability the husband might have to the company.
24.
The husband have sole right, title and interest to the loan to Company C, his motor vehicle and his household contents and any other asset which is in his possession or in his name.
25.
The wife have sole right, title and interest to her household contents, her savings with the CBA and any other asset that is in her possession or her name.
26.
The wife indemnify the husband in relation to any liability in respect of any loan to Ms BB Snipper.
27.
Within three (3) months, the wife pay to the 2nd respondent the sum of $113,161 in respect of her outstanding tax liability without prejudice to the ability of the 2nd respondent to claim against the wife any interest that has accrued in respect of that tax after 2 July 2017.
28.
The wife pay to the 2nd respondent an amount of $200,000, which sum will be credited by the 2nd respondent against the current outstanding tax owing by the husband.
29.
Each party is to do all things and sign all necessary documents to implement these orders.
30.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
Child Support Departure
31.
Pursuant to section 118(1)(a) of the Child Support (Assessment) Act 1989 (Cth), an order is made in relation to the children varying the annual rate of child support payable by the husband to an amount of $101,608 per annum calculated from 12 January 2018.
32.
The payment referred to in order 31 is to be adjusted on 1 January each year in accordance with any change in the consumer price index for Sydney for the preceding calendar year.
33.
The child support payable by the husband pursuant to order 31 hereof in respect of the children is to be credited against the husband’s liability under any assessment issued by the Child Support Agency and is to account for 100 per cent of the annual rate of child support payable to the wife by the husband under any assessment.
34.
Pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth), the husband shall pay 87.6 per cent and the wife pay 12.4 per cent of the following expenses as and when they fall due:
34.1. all education expenses in respect of the children’s attendance at their present schools and such high schools, including all tuition fees, compulsory building fund contributions, excursion fees, incidentals, sporting costs, uniforms and equipment, all school books, extracurricular activities and additional tuition provided that in the event that the wife chooses to send the children to more expensive schools than the two elder children currently attend, then she will be responsible for the payment of all of the differences in fees and the husband will only be responsible for 87.6 per cent of the costs of the children’s schooling based upon the cost of the current schooling of the two elder children;
34.2. all instalments at the present scale to the private health fund of which the children are presently members, or such other fund as the parents agree upon in writing;
34.3. all private hospital, optical, physiotherapy, dental or medical expenses in respect of the children which are not able to be recovered from the private health fund;
34.4. the children’s therapy.
Spousal maintenance
35.
The wife’s application for spousal maintenance is dismissed.
Notation in relation to a Gett
36.
I note that in evidence given on his oath, the husband was asked what his attitude was to the granting of a Gett to the wife and the husband responded:
…on reflection I think I don’t have any objection to that and I think that will be a good step. It sounds like it’s important to [the wife] and would be a good step for allowing her to move forward and us to move forward in relation to our relationship and the children as well.
Costs of Experts
37.
The husband and the wife each pay one half of all professional fees payable to Dr Y and Mr CC in respect of professional services provided by them in the course of this litigation and reimburse the other party in the event that that other party has already paid more than one half of the costs of the professional services of either of those experts.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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