Sperling and Sperling
[2018] FCCA 1517
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPERLING & SPERLING | [2018] FCCA 1517 |
| Catchwords: FAMILY LAW – Parenting and property – father seeking equal time – equal time not appropriate – mother is children’s closet emotional attachment and has been supporting children increased time with father – father lacks insight into children’s needs at times – Property – superior initial and post separation financial contribution by the husband to current property pool – mother has significant financial resources in her name – low level of child support due to low income of father. |
| Legislation: Family Law Act 1975, ss.60CC, 75(2), 79 |
| Cases cited: C & C [2005] FamCA 429 Ferraro & Ferraro (1993) FLC 92-335 Pierce v Pierce [1998] FamCA 74 |
| Applicant: | MS SPERLING |
| Respondent: | MR SPERLING |
| File Number: | SYC 6800 of 2015 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 26, 27, 28 February 2018 |
| Date of Last Submission: | 28 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell SC |
| Solicitors for the Applicant: | Newtown Solicitors |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Broun Aabrahams Burreket |
ORDERS
THE COURT ORDERS:
Parenting
The children shall live with the father as follows:
(a)During school term;
(i)Each alternate Friday from after school until the commencement of school Monday;
(ii)Each Thursday from after school until the commencement of school Friday;
(b)During term school holidays school holidays for one half of the holidays from the cessation of school until 12 noon the second Saturday of the holidays with the father and otherwise with the mother
(c)For the January school holiday period in 2019 the father to spend 2 weeks with the children in January as agreed failing agreement the 2nd and 3rd weeks of January
(d)Thereafter for one half of the long school holidays being with the father for even numbered years and the mother for odd numbered years.
Property
Pursuant to Section 79 of the Family Law Act 1975 (Cth) by way of final property alteration:
(a)That forthwith the husband and the wife will do all acts and things and sign all documents necessary to market for sale and sell the property known as and situate at Property A being the whole of the land comprised in Certificate of Title Folio Identifier (“the Property”) and in particular will:
(i)List the property for sale with Real Estate Agent (“the Agent”);
(ii)Execute all documents required by the Agent for the sale of the Property and in the event that the husband and the wife cannot agree on the terms of the Agent’s contract within seven days of the agent being selected, the contract is to be in the agent’s standard terms and with the agent’s standard fees;
(iii)Give such instructions as are necessary to Paul Marsh & Associates who shall be the legal practitioner appointed (“the Legal Practitioner”);
(iv)Market the Property for sale by public auction on a date within six weeks of the date of the selection of the Agent (the First Auction”) at a reserve price agreed between the husband and the wife and failing agreement in the sum of $2,000,000;
(v)In the event that the Property does not sell at the First Auction, market the property for sale with the Agent by way of private treaty for a period of 12 weeks during which time the husband and the wife will accept any offer made to purchase the Property within 5% of the reserve price of the First Auction unless the husband and wife otherwise agree;
(vi)In the event that the Property is not sold at the First Auction and is not sold in the period provided for sale by private treaty, market the Property for sale by public auction with the Agent on a date within six weeks of the date of the conclusion of the period of sale by private treaty at a reserve price agreed between the husband and the wife and failing agreement 5% below the reserve price at the First Auction;
(vii)Each party will attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached will negotiate with the highest bidder and the second highest bidder and will accept the highest offer to purchase made within 5% of the reserve price set for that auction unless the husband and wife otherwise agree;
(viii)Execute the contract for sale and in the event that the husband and wife fail to agree on the terms of the contract for sale the terms recommended by the Legal Practitioner will be adopted;
(ix)Co-operate in every way with the Agent in relation to the sale of the Property at all times requested by the agent and ensure that the Property is in a neat and clean condition; and
(x)Execute all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so.
(b)That on settlement of the sale of the Property the husband and the wife shall do all acts and things necessary to distribute the proceeds of sale in the following manner and priority:
(i)In payment of the agent’s commission and any other expense properly incurred in respect of the sale of the Property;
(ii)In payment of the legal costs of sale;
(iii)In payment of the mortgage secured over the Property;
(iv)In payment to the wife in the sum equivalent to 37% of the proceeds of sale and
(v)The balance then remaining to the husband.
(c)That the pending of the sale of the property pursuant to Order 1.a. the husband shall pay and indemnify the wife and keep her indemnified from and against all amounts due in respect of statutory and consumable utilities in respect of the Property including but not limited to mortgage repayments, council rates, water charges, strata fees, insurance premiums, electricity and telephone services.
(d)That the husband is permitted to remove from the Property the following:
(i)iMac;
(ii)Fold back speaker (brand);
(iii)Electronic drum kit;
(iv)Items passed on from husband’s mother, including bowls, graters, knives, pots, pans and photographs from husband’s childhood;
(v)Boogie boards;
(vi)Acoustic drum kit with all accessories;
(vii)Toaster;
(viii)Blender;
(ix)Electronic mixer;
(x)Old LP records;
(xi)1 brown and 1 black clay pot;
(xii)Personal possessions including items for late mother’s home comprising trophies and photographs;
(xiii)Items purchased for the boys comprising:
A.Xbox One and games;
B.(omitted) Game;
C.Green scooter;
D.Pushbikes.
(e)That within 14 days of the date of these Orders, the wife shall provide to the husband 3 possible dates and times that she proposes to access the property and within 7 days thereafter, the husband shall select one of the wife’s nominated dates and thereafter facilitate and permit access to the property for the wife, noting that such times shall not occur when the children are in the husband’s care.
(f)That within 7 days of the wife accessing the property, in accordance with the preceding Order, the wife shall provide the husband with a list of contents she wishes to retain from the property.
(g)Following exchange of contracts for the sale of the property, the wife to remove those items of furniture and contents she wishes to retain from the property no later than 14 days prior to settlement of the sale.
(h)The husband is to cause the remainder of the furniture and contents to be removed and disposed of and the costs of such removal and disposal are to be paid as to one half by each of the husband and wife.
(i)Otherwise the parties to retain all assets in their name including superannuation.
Parenting – By Consent
That the husband and the wife have equal shared parental responsibility for the children of the marriage, namely:
(a)[X] born 2007; and
(b)[Y] born 2011,
(collectively referred to as “the children”).
That each party have sole parental responsibility for making decisions regarding the day to day care of the children whenever the children are in his or her care respectively.
Special Occasions
Notwithstanding any Order to the contrary, the children shall spend time with each of the parties as follows:
(a)On Mother's Day from 9.00am to 6.00pm and the time that the Mother spends with the children that weekend will be suspended and no make-up time given to the Father.
(b)On the Mother’s birthday (if they are not living with the Mother):
(i)If a school day, from after school to 6.00 pm;
(ii)If a non-school day from 11.00am to 6.00pm.
(iii)The Mother shall be responsible to collect and return the children.
(c)On the child’s birthday (if they are not living with the Mother):
(i)if a school day, from after school to 6.00 pm.
(ii)if a non-school day from 11.00am to 3.00pm.
(iii)The Mother shall be responsible to collect and return the children.
(d)On Father’s Day from 9.00am to 6.00pm and the time that the Father spends with the children that weekend will be suspended and no make-up time given to the Mother.
(e)On the Father’s Birthday (if they are not living with the Father):
(i)If a school day, from after school to 6.00 pm.
(ii)If a non-school day from 11.00am to 6.00pm.
(iii)The Father shall be responsible to collect and return the children.
(f)On each child’s birthday (if they are not living with the Father):
(i)If a school day, from after school to 6.00 pm.
(ii)If a non-school day from 11.00am to 3.00pm.
(iii)The Father shall be responsible to collect and return the children.
(g)From 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with the Mother and in odd numbered years with the Father.
(h)From 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with the Mother and in even numbered years with the Father.
(i)From 5.00pm New Years Eve (31 December) until 2.00pm New Years Day (1 January) in even numbered years with the Mother and in odd numbered years with the Father.
(j)From 2.00pm New Years Day (1 January) until 5.00pm on 2 January each year in odd numbered years with the Mother and in even numbered years with the Father.
(k)Other times as agreed between the parties.
That the children shall otherwise live with the Mother.
Changeover
For the purposes of these Orders, changeover shall occur at school on a school day, otherwise the husband will collect the children at the commencement of his time from the wife’s residence, and the wife will collect the children at the commencement of her time from the husband’s residence.
Extra-curricular Activities
That neither party shall enrol the children in activities that may fall during the other party’s time with the children, without first obtaining the prior written consent of the other party.
That each party will do all acts and things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other party the children’s school attendance and progress and furnish reports, photographs, invitations and correspondence in relation to sporting and all other extra-curricular events and all other correspondence, newsletters, or other written material produced by the school and distributed to carers, and both parties shall be entitled to fully participate in all any activities at the school or connected with the school.
That neither party shall be precluded from attending any school function or activity involving the children, in the event that such function or activity occurs at a time when the children are living with or spending time with the other party.
That each party will provide the contact details of the other party as the parents and the primary contacts when completing any enrolments and/or providing contact details to school, sporting groups or other organisations in respect of the children’s activities.
Travel
In the event that either party wishes to take the children on holiday interstate (“interstate travel”), then the party proposing such holiday shall notify the other party not less than 14 days prior to the departure date of such interstate travel and shall provide at this time particulars of such interstate travel, including a copy of the proposed itinerary, particulars of where the children will be staying and a contact telephone number.
That the children are to have contact with the non-travelling parent while interstate via telephone or Skype not less than once every 3 days.
That each party will keep the other party informed at all times of their full residential address and residential telephone number, mobile telephone number, email address and any every day contact number, within 48 hours of any change to these details.
That each party will ensure that the other is advised within 12 hours of any medical emergency or significant illness or injury suffered by the children, including sufficient details to enable both parties to be consulted with respect to, and be fully advised of, such illness or injury and any treatment recommended or provided, and both parties will be at liberty to visit the children if injured, ill or hospitalised.
Each party shall keep the other party informed, at all times, of full particulars of any treating medical practitioner or other allied health professionals upon which the children may attend from time to time, and each party shall do all acts and things and sign all documents necessary to permit and authorise the treating professional to release information in respect of the children to the other party.
That each party advise the other party in advance in writing of any appointments made by either of them for the children to see any medical or other allied health professionals other than a General Practitioner.
That if one party takes the children or either of them to any health professionals, including a GP, that he or she provide a copy of any written report, treatment plans and prescriptions to the other party.
IT IS NOTED that publication of this judgment under the pseudonym Sperling & Sperling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6800 of 2015
| MS SPERLING |
Applicant
And
| MR SPERLING |
Respondent
REASONS FOR JUDGMENT
The matter of Sperling is a property and parenting application heard on 26, 27 and 28 February.
Mr Schonell of Senior Counsel represented the wife and Mr Dura of Counsel the husband.
In relation to the parenting issues, the determination for me is effectively the regime of time and quantity of time the children of the marriage, [X] aged eleven and [Y] aged seven will spend with their father during school term and in holidays.
In relation to property my task is to determine each party’s entitlement to their property.
This matter was run economically and with many agreed facts and this resulted in minimal cross examination or factual determination for the Court.
The material I have read for the parties is as follows.
For the wife:
a)Her primary affidavit, financial statement and amended initiating application, filed 16 October 2015;
b)Affidavit filed 8 February 2018;
c)Financial Statement filed 5 February 2015;
d)Case outline prepared by her lawyer; and
e)A minute of orders that she sought that the Court to make.
For the husband:
a)His amended response initiating application, filed 24 November 2016;
b)Updated financial statement of 2 February 2018;
c)An affidavit of 2 February 2018; and
d)Case outline prepared by his lawyer.
The exhibits are as follows:
a)Court exhibit 1, the family report of Dr L;
b)Court exhibit 2, statement of agreed facts in relation to property issues;
c)Court exhibit 3 is a minute of orders proposed by the parties in relation to the orderly sale of their home at Property A. My task is the fill in the parties entitlement to those net proceeds of sale;
d)Court exhibit 4 notes of the parties and children’s attendance at Clinical Psychology;
e)Court exhibit 5, emails and reports from Dr A, who [X] sees on a regular basis;
f)Court exhibit 6 – Minute of parenting orders sought by the father;
g)Court exhibit 7- joint balance sheet tendered by the parties;
h)Court exhibit 8 the property orders sought by the husband in terms of a division of the property with some changes to Court exhibit 3;
i)Wife’s exhibit 1, bank account details of a joint account used by the husband in the period 23 January 2014 to 22 July 2014;
j)Husband’s exhibit 1, a printout of that same statement until the end of that year in 2014.
The husband and wife were cross-examined, as was Dr L.
The short chronology is as follows.
The husband was born in 1969, the wife in 1974.
In 2004 the parties married and this was also the date of co-habitation.
In 2000 prior to marriage the husband had purchased Property C. At marriage the value of the husband’s interest in the property was valued at $500,000 with a mortgage of $212,000.
It is agreed that at the time of marriage, the husband also had:
a)A 50 per cent interest in a business known as Business 1 valued at $118,257.
b)An interest in a restaurant called Business 3 at Suburb P with a credit loan account for Business 3 of $48,995.
c)A share of in a property at Property C which property was valued at $515,000.
The wife’s interest and assets at cohabitation were:
a)A 25 per cent interest, with her family, in a property at Property B. This property was valued as a whole at $500,000 with a mortgage of $205,000 at marriage.
b)A motor vehicle, which was paid out during the marriage; and
c)Her interest in a superannuation fund, Super E, $20,994.
It is also an agreed fact that the husband and wife made no contribution to the maintenance, conservation either financially or by way of energy and effort to the property at Property B during the marriage.
The wife has not paid money into her superannuation account since around the birth of [X] some 11 years ago.
The husband’s net asset position at marriage in 2004 was $455,252.
In 2005, the parties purchased a property at Property A, for $822,000 with the assistance of a mortgage.
It is agreed that in 2006, the husband sold the property at Property C netting $557,000 which money was used for the benefit of the family.
[X] was born on 2007.
In 2007 Business 1 sold the property at Property C and the husband received a dividend of $80,000 from that sale. Later he received another dividend of $20,000 from that sale and the parties agreed that that $100,000 was used for the benefit of the family.
In 2010 the husband received $132,433 from the sale of the Business 3 and an additional sum of $54,619. It is agreed that this money was used for the benefit of the family.
It is an agreed fact that all moneys the husband received from the sale of his property at Property C, the Business 3 restaurant and the sale of Property C were used for the benefit of the family and to reduce mortgages.
The parties entered into a joint venture called Business 2 in 2011.
[Y] was born on 2011.
The agreed evidence is that at that time they had an unencumbered matrimonial home, as well money in an offset account of $167,833 from the sale of his interest in the Business 3 restaurant with a residual debt of $165,119.
The parties’ net asset position, as at July 2010, was that they owned their unencumbered home, they had a debt of $165,119 with Bank K and moneys in an offset account of $167,327. A fortunate position due to their hard work.
The parties then entered into a joint venture and purchased another restaurant in 2011 at Business 2 called Business 2. It was not financially successful.
The parties spent approximately $122,000 on a new fit out.
They re-financed their loan with Bank K with the Bank L and obtained a loan of some $254,000. That loan ultimately rose to $350,000.
Thus from a position in 2010 where they effectively had no debt and an unencumbered home, by February 2012 they had a debt of $350,000 an encumbered home.
The husband sold Business 2 on 31 October 2013 for $138,000. After payment of tax and other amounts, the sum left was used to reduce the then mortgage on the former matrimonial home.
In 2014, the husband received $313,682 by way of inheritance, following the death of his mother. He now has some $12,000 of that money in the bank.
Each of the parties have received by way of a partial property settlement, $125,000 and the funds for that partial property settlement came from the husband’s inheritance of $313,682, an inheritance it is agreed the wife made no contribution towards.
On 17 February 2015, the parties separated but made the mistake of remaining separated under the one roof.
The husband was paying the wife some small amount in child support.
In March 2015, the wife withdrew $31,000 and the husband some $11,400 from the Bank L account. The wife and children moved out of the former matrimonial home, leaving the husband in sole occupation from August 2015.
The parties commenced a regime of time with the children. It was very limited time and there was significant difficulties with the children, particularly the eldest child [X], spending time with his father.
The parties ultimately, to their credit, engaged the services of Dr A of Child Psychology who suggested equine therapy for [X] with Ms C. The parties and the children have continued with that therapy for some two plus years.
The husband pays the wife child support in and around $270 to $280 per month.
Dealing with the property aspect of this matter first.
A joint balance sheet marked exhibit 7 was tendered. The parties agree on most aspects of that document other than the following.
The husband has a Bank K visa credit card debt of $22,267. The debt was $6,500 at separation.
A Bank K Visa card debt of $8,776. That card was nil at separation. The husband agreed he was the only party to access those credit cards post separation.
I find that $15,000 of the debt on the Bank K Visa card and all the debt of $8,776 on the Bank K Visa being a total of $24,543 are the husband’s debts.
Additionally, I must take into account that he had the sole use of $11,000 of matrimonial funds at separation and the wife $31,000 by way of drawdowns from the mortgage.
I will reduce the current Bank K Visa balance to what it was at separation namely $6,500 and remove the Bank K card as it was nil at separation, from the balance sheet and adjust for each party what they took of matrimonial asset at separation in the exercise of my discretion.
The other issue for determination are how to deal with the wife’s interest in the property at Property B.
It has been included as a matrimonial asset in the balance sheet as has the wife’s share of the debt of $30,000. It is not a matrimonial asset. It has not been used to assist the parties to purchase property or for any other matrimonial use. It has not being used as collateral for a loan for example.
The parties have never put any joint funds or their income and earnings into the property, nor paid any outgoings, conserved or maintained the property in any way or received any profits from it. It has been, as it were, quarantined.
I find it is not a matrimonial asset but rather an asset in the wife’s name and will remove it from the balance sheet. I will take that asset into account as an asset in the wife’s name to the exclusion of the husband, in my determination of the parties’ entitlement to a share of their matrimonial property.
The husband sought I add back the $125,000 each of the parties have received by way of partial property settlement, that money having been expended by them on legal fees and other living expenses.
Normally I would not do this given each received the same amount however the source of those fund came solely from the husband’s inheritance and thus I must take this money into account in my determination.
I will not include the parties’ bank accounts in the balance sheet. They are of small compasses and the parties have been separated for many years. The husbands account with $12,000 is the residual of monies inherited from his mothers’ estate.
Going now to the balance sheet I have determined of matrimonial assets and financial resources of each party.
| BALANCE SHEET | |||
| Ownership | Description | Value | |
| ASSETS | |||
| 1 | J | Property A | $1,900,000 |
| 2 | W | Motor Vehicle X | $20,000 |
| 3 | W | 194 shares @ 20.02.2018 | $1,490 |
| Total | $1,921,490 | ||
| ADDBACKS | |||
| 4 | W | Partial property settlement | $125,000 |
| 5 | H | Partial property settlement | $125,000 |
| Sub-Total | $250,000 | ||
| Total | $2,171,490 | ||
| LIABILITIES | |||
| 6 | J | Bank L Mortgage over Property A | $159,344 |
| 7 | H | Bank K Visa | $6,500 |
| Total Net liquid assets | $166,000 $2,005,490 | ||
| SUPERANNUATION | |||
| Member | Name of Fund | Value | |
| 8 | W | Super A Superannuation | $33,387 |
| 9 | W | Super E Superannuation | $56,245 |
| 10 | H | Super B | $102,000 |
| 11 | H | Super C | $140 |
| 12 | H | Super D | $7,579 |
| Total | $199,351 | ||
It is uncontroverted that during the relationship the wife was the primary parent and homemaker, and the husband, assisted the wife when he could. It is agreed that she had not worked since the birth of [X] and that the husband financially supported the family.
The wife is currently a (occupation omitted), earning net from (employment omitted) and her share of rent from Property B some $420 per week.
The husband works for his brother-in-law as a (occupation omitted) and earns net some $700 per week. This is a difference in their income earning capacity of some $1200 per month in the husband’s favour although neither has a high income earning capacity. With the wife’s low income and lack of vocational training, this is a significant factor I must have regard to under section 75(2) of the Act[1] in my deliberations.
[1] Family Law Act 1975 (Cth), s 75(2).
The second significant factor is that the husband has been in occupation of the former matrimonial home since physical separation, in August 2015 a period of some two years. The wife and the children have lived elsewhere, and the husband has enjoyed the benefits of the property to the exclusion of the wife with a low mortgage of $160,000. That is also a matter I will take into account in my deliberations.
Having determined what the matrimonial property is, the question for me now is, what is the contribution based entitlement of each of the parties, expressed as a percentage to their property?
I will follow the well-known principles enunciated in Ferraro & Ferraro[2], Pierce & Peirce[3] and C & C[4] being the four stage approach in my determination under section 79 of the Act[5] which is to:
1. Identify the matrimonial pool it species and value.
2. Assess the parties contribution based entitlement expressed as a percentage for their past contribution to their property both directly of a financial nature, indirectly by energy, effort and/or third party contribution and as parent and homemaker.
3. Determine whether there ought to be a further adjustment to either party’s contribution based entitlement for their past contribution having regard to their future needs, the 75(2)[6] factors.
4. Look back at the orders proposed to be made and determine if they result in a just and equitable division of the parties assets.
[2] Ferraro & Ferraro (1993) FLC 92-335.
[3] Pierce v Pierce [1998] FamCA 74.
[4] C & C [2005] FamCA 429.
[5] Family Law Act 1975 (Cth), s 79.
[6] Above, note 1.
It is an agreed fact that the husband made a significant superior financial contribution to that of the wife at the commencement of marriage. It is an agreed fact that the husband contributed the totality of his pre- marriage assets to the current assets of the parties.
It is an agreed fact that the assets the wife had at the commencement of cohabitation are still in her possession and control, have never been used by the parties to assist in acquiring their current matrimonial asses. Income from the Property B property were used for matrimonial expenses.
It is an agreed fact that not only did the husband contribute all his pre marriage assets to the marriage totalling $445,000 by 2004, he has also contributed $250,000 of his inheritance of $313,000 acquired post separation to the benefit of the parties.
The combination of these contributions is some $695,000 of a total asset pool today, excluding superannuation, of $2,005,490.
The raw figures reveal a significant contribution. Consistent with the decision of Pierce v Pierce[7] in relation to the assessment of a superior initial contribution I must also look at when the contributions were made and what was done with them. A contribution in 2004 of $447,000 is a significant sum and is the reason the parties were able to buy their home. This is a significant contribution by the husband early in the marriage, only 14 years ago, to the current asset pool.
[7] Above, note 3.
The wife’s contribution as parent and homemaker and her income from work and the Property B property are factors I have considered, however, her pre-marriage assets have been quarantined and not mixed with matrimonial assets unlike the husband. The wife has had the benefit of $31,000 of joint money taken at separation and $125,000 of the husband’s inheritance post separation.
The husband has had the benefit of $11,000 taken at separation and the reminder of his inherited money. Taking these facts into account and having regard to his initial contribution and the injection of $250,000 into the pool from his mother’s estate, I assess the husband’s contribution based entitlement to be superior to that of the wife, and I assess it to be 75 per cent.
Going now to contributions made post separation and the future needs of the parties.
The wife has had the major care of the children, and that has come about due to difficulties, [X], exhibits in spending time with his father. This may be due to the poor parental relationship and the continued poor attitude of the father to the mother which I will refer to later. For whatever reason it is a fact.
The wife has received minimal child support since October 2015 of some $270/$280 per month and has a lower income earning capacity than the husband. However, the wife continues to hold her interest in the property at Property B which has provided her with an income stream which may increase in the future.
The husband has had exclusive occupation of the matrimonial home and has use of $188,000 of his inherited money no doubt pay legal fees and the like. I note that the husband today has credit card debts in excess of $30,000 when at separation he had credit card debts of $6,500.
No party sought a super splitting order. The wife will have $90,000 in superannuation and the husband $107,000 a small difference favouring the husband.
Taking all these matters into account, I will adjust the wife’s past contribution based entitlement by 12% for her post separation contributions and future needs under section 75(2) of the Act[8].
[8] Above, note 1.
This results in a percentage division of the liquid assets of 63% to the husband and 37% to the wife. The liquid assets are $2,005,490.
A 37% split to the wife of the liquid assets is $742,031 rounded up to $742,050
The wife is seized of the following assets:
a)Add back of $125,000;
b)Motor Vehicle Y $20,000;
c)shares $1490;
d)Total $146,490.
Taking this amount from her entitlement the wife will receive $595,540 from the sale of the home. The wife retains her interest in the Property B property worth net $245,000, her car and shares being total existing assets of $866,000 and her superannuation of $90,000.
The husband will receive $1,263,440, less the add back of $125,000. This is a total of $1,138,440 to him of existing assets after sale of the home together with his superannuation of $107,000.
The amount the wife is to receive from the sale of the home after deducting the mortgage I will express as a percentage. The net equity in the home is $1,740,655 and a payment of $595,540 is some 35%. This will ensure if the home is sold for more or less than 1.9 million each will share the loss or the bounty.
I find these orders are just and equitable and allow for the husband’s superior financial contributions to the parties assets pre and post the marriage and provide for the wife’s future needs having regard to her low income earning capacity, minimal child support being paid and the assets in her name.
Going to the parenting matter.
The parties have agreed to equal shared parental responsibility and many other orders which I made by consent on 27 February 2018 including travel, extracurricular activities, Christmas Day, special days and the like very much to their credit.
What is at issue is the time that the children spend with their father during the school term and the school holidays.
The mother agreed in the witness box that the time with the children with their father should now progress from Friday after school to the commencement of school Monday morning, and in the off-week each Thursday night until the commencement of school Friday. Dr L said this arrangement was beneficial for the children, as it meant their parents were not coming into contact with each other.
These parents have an acrimonious, exceedingly difficult relationship. They do not like each other. The father is still highly critical of the mother, of matters that really are of absolutely no importance at all to the care of children for example in his affidavit at paragraph 135:
Often Ms Sperling got the vacuum cleaner out but left it out without doing any vacuuming. Ms Sperling often left dirty clothes of herself and the children on the floor, the couch or the coffee table. She didn’t fold or put clothes away. I did it. I cleaned the home.
Criticisms which really did not paint the father in a good light and did not assist the Court to make a decision about the time the children are to spend with him, rather indicate to the Court that the father is still mistrustful of the mother, dislikes the mother, and has not moved much at all in his attitude to the breakdown of their marriage.
This acrimony which was evident with both the mother and father after separation has resulted in the eldest boy, [X], in particular, who has anxieties, struggling at times in spending time with his father, as, unfortunately, [X], as many other children whose parents are in conflict, feels he has to make a choice.
The father makes significant complaint that the mother makes the children lie to him, and he firmly believes that the mother wants the children to lie to him about things. The basis of this belief is that the boys did not tell him about a holiday they took with their mother to Town P last year. The father should look to his own conduct for an explanation of why the children felt they could not tell their father this information. In any event this is not something he particularly needs to know about.
The father must provide a safe place for his children to tell him things that maybe he finds hurtful or upsetting, and be able to protect them from what might be his reactions to hurtful or upsetting information or behaviour. The mother is perfectly entitled to take the children to Town P for a holiday and the father need not necessarily know those details.
Paragraph 49 of his affidavit:
The children must keep secrets, so as not to upset their mother, which places enormous pressure on them, not to mention increased anxiety. It’s detrimental to the children’s wellbeing.
It is not the mother who is placing this pressure, it is the father. It is the father questioning the children and his reaction when he finds out something that he does not like that may be one cause of this problem. The father’s affidavit does not mention one positive thing about the mother. It is simply a running down of the mother of his children as a parent and his former wife and is distressing to read.
The father sought an equal time arrangement. The factors in this matter are contraindicated to equal time. It would be a disaster for these children due in no small part to their parents’ exceedingly poor relationship and Dr L agreed such an order was contraindicated.
The mother had a poor attitude towards the father, and the importance of the father in the children’s life post separation. That attitude is referred to in both Dr A’s notes, from (Clinical Psychology), and by Dr M.
Dr L’s report states prepared in mid-2016 states at paragraph 37:
Ms Sperling referred to having benefited from the family therapy with Dr A and Dr M. She had been guided by them in their recommendations in increasing time with their father, and she will envisage that in a near future the children will most likely progress to two evenings per fortnight.
As at the date of this hearing, that is exactly what had happened and time is now three nights per fortnight. The mother is now proposing four nights per fortnight.
Therapy has been beneficial for [X], who comes back in a clearer frame of mind, with techniques, such as breathing and verbalising his thoughts, which he finds useful. The mother agrees she and the father have been advised not to expose the children to the tension in their relationship but have made little progress in this. Dr A’s notes state that the mother has come a long way in her attitude to the father.
The father complains that the mother empowers him and that what [X] says goes with her. He cited as an example that the mother does not insist [X] attend hobby training, while he does, and that [X] calls him a liar because he impresses the importance to [X] of not letting the team down. However, despite the father’s perception that all he does with [X] is let him know his side of the story the father’s attempts to resolve conflict is seen by [X] as an argument.
He described [X] as a cautious child and that he likes to engage in different activities. He can be initially uneasy around people but then relaxes. [Y] is inquisitive, he likes to be busy and is a more robust child. [X] is a child with anxiety, anxieties that his mother also exhibits.
The father opined at paragraph 23 of his affidavit that despite the intensive work he had done with Dr A and Dr M the current arrangement is a far cry from what he is hoping to obtain at this hearing. The father’s position was that with therapeutic intervention his time with the children would increase and he cannot understand why Dr A recommended his time decrease from that ordered.
Mr Sperling was of the view that the mother exhibits controlling behaviour and that she is attempting to exercise control over him by using the children. The father says he experiences difficulty when setting limits or following through with children as he is undermined by [X]. If [X] does not like something he wants him to do he insists on calling his mother. The mother reinforces [X]’s anxieties and she has not encouraged the children to be separate from her.
The father opined that an order an equal time arrangement would put a wedge between the parents’ relationship with the children and then they could have a relationship with each parent. That comment demonstrates a breathtaking lack of insight by a parent into the needs of a child and how relationships with our children work.
The father said [X] has called him a liar and is becoming aggressive towards him and that [X]’s behaviour is impacting on [Y]. Unfortunately that last comment of cause and effect may be correct.
It is clear that [X] has struggled with the separation. In the family report he referred to separation being weird, sad and he was surprised. It is clear he is still struggling with the separation and that he has picked his mother’s side not his father’s side.
[X] says he is bored at his father’s house, doesn’t really want to go there, doesn’t like going to the park because he’s worried about someone crazy coming to the park, however, describes his father as good.
[X] said it is important to protect him from strangers. He described his mother as loving, caring, kind, helpful and protective. In her cross-examination Dr L said what struck her was that despite [X] saying negative things about his father at the end of the observation, when Mr Sperling told the children he was leaving, [X] moaned in disappointment and his father sensitively said, “I will wait for you.”
[X] saying one thing and doing another thing was evident to Dr L in her observations and is evident in the other clinical notes. On the one hand he says “I want dad to set boundaries, I want him to be more forceful,” and then at other times complains when his father tries to discipline him, in telling him to eat his meal, not leave the table, not play with his iPad and the like. These are normal disciplinary behaviours parents must engage in. I accept the submission of Mr Dura that [X]’s complaints about his father are, in the main, normal matters that all parents must engage in.
[X] says he is not listened to. He is an 11 year old boy and, although a child’s voice is important, being listened to and parent disagreeing with the child’s position is an expected occurrence in the parenting of children. However, the father has said things and done things which are regretful. For example, telling [X] in late December that to use his words were “(occupation omitted) was the most disgusting job in the world” when the mother is a (occupation omitted) was insensitive and upset [X]. The father said he did not know the mother was a (occupation omitted). I do not accept that evidence.
[X] reported his father being angry one day and smashing a glass on a table. I did not take that to mean that the glass broke. The father said [X] was being difficult with [Y], not an uncommon occurrence in both parents’ households. [Y] ran from the table just as the father was to serve his meal and the father naturally became upset and perhaps even angry as [Y] would no longer eat his meal.
[X] said in the (Clinical Psychology) notes pages 36 and 37:
I felt sad, worried, unsafe and shy when dad smashed the glass cup on the table. It created a loud bang without me being ready for it and I felt scared that dad was going to hurt me. What I would like is to have a session with dad and Ms C to speak about how I feel and when he smashed the glass cup on the table. These are the things I want my dad to know, don’t be so aggressive, when you’re aggressive it makes me feel that you’re not safe to be with and I feel shy, confused and this is why I’m confused. You say to me you never do anything to me in a way you know that will harm me. Then you smashed a glass cup on the table. That’s why I’m confused.
To be fair to the father, the glass did not shatter and [X] was not hurt. Secondly, a child having a perception of danger is not the same as a child being in danger. [X] was not in danger with his father at any time, even on the worst view of that incident. Indeed, the reason for the father’s behaviour was [X]’s overbearing behaviour with his little brother. This concerning behaviour is noted by Dr A, who also says he overbears on [Y] and that [Y] takes his lead from his brother a matter the father has also observed.
[X] is an intelligent boy and it may be he is outwitting his father at present. The father has been advised not to run the argument with [X] but set the limits and boundaries clearly and calmly. His father would do well to disengage from arguing with [X] in a dispute take a clear and straightforward approach delivered in a calm manner for example “[X] this is what is happening in my house, and that is how it is going to be.”
[X] said to his father through the counsellor:
I want you to improve with your discussions when we’re in trouble, not just sending us to our rooms and discounting my opinion. I want dad to be truthful at all times. Example, he said his computer doesn’t work and I turned it on and he has a password. Not to hide anything from me because it makes it hard for me to trust you. I want you to be how you were a long time ago. I want my old dad back.
The rules are different at mum and dad’s. Mum’s rules are easier to follow.
Dad never listens to me, we argue over stupid little things.
Dr A refers in her notes to a tenuous relationship between [X] and his father. I am not sure what more the father can do to address this issue other than change his response to his son. [X] has said:
It’s fun with mum because I get to see mum’s family more, like cousins, grandparents, different aunties and different uncles. With dad I just see the same people which is only one aunty and uncle and three cousins. This feels boring and I would like to see more cousins.
The Court has some concern, consistent with the father that [X] has been empowered or feels empowered in this matter and that his views must rule the roost for himself, his brother and his father. However this is not solely the mother’s doing. If that be the case this may well be due to the parent’s acrimonious relationship. One root cause of this perceived empowerment for [X], apart from his natural anxieties, is his parents’ poor relationship and all therapists are clear on this.
Dr L was clear equal time is contraindicated in this matter and I accept the submission from Mr Schonell SC, six nights a week seven nights a week is virtually equal shared care. Any such arrangement would be tantamount to a disaster for these children. The parents both agree the therapy with their children will continue and it is clear that therapy must continue as there is still a real issue with the father and [X]’s relationship.
The father’s evidence was, at times, difficult for me to understand. He said he saw none of the behaviours in [X] described in the (Clinical Psychology) notes described by the mother and that, apart from a few issues, the boys are very well behaved in his care. However, that is not the evidence and his evidence is to the contrary.
The father has a view that the mother has not done enough to foster the father’s relationship with the children. The evidence is to the contrary. The mother drove, on at least 30 occasions in an 18 month period, to the Region M every week to enable the children to engage in equine therapy. That is not the conduct of a parent who does not want children to have a relationship with the other parent.
Time with these children has increased since Dr L saw them initially by one night per fortnight and the mother now agrees to an increase of two nights a fortnight to 4 nights. That is not the conduct of a parent who does not want a relationship with the children and the other parent. The mother continues with her own therapy. That is not the conduct of a parent who does not want a relationship to continue. The mother was quite positive that if the time with the children at four nights a fortnight progresses well, she would consider five nights a fortnight.
The father must stop blaming the mother solely for the difficulties he has in his relationship with [X], acknowledge those difficulties and look to his parenting of [X].
One of the issues is that [X]’s personality may not fit with the father’s parenting style. Dr A and Dr M and Dr L all opined as to the father being rigid, black and white, and very fixed in his views at times. That may be a significant problem for [X] and the father must desist from thinking the mother is the root cause of this problem. The father’s view that equal time is appropriate is simply misplaced, that the mother stonewalled him, would not let him speak to the children was simply erroneous.
The father saying that [X] had no separation anxiety issues at separation is incorrect. I do not know if the father not seeing his son’s anxieties, recreating history or not wanting to be honest with the Court as he thinks it might not be in his best interest to do so. He was asked a question, “So, if he wasn’t anxious at separation, was it as a consequence of the separation?” “I’m not sure”. “Is he is anxious now.” “I don’t pick it up when he’s with me.” “There are no issues with me”, when he’s with me he is relaxed.” “I only have problems if I need to set limits.” Yet the father’s own evidence was to the contrary. That is of a concern if the father is not picking up clear anxieties in his son observed by Dr L, Dr A, Dr M and his mother. The father is out of step.
The father said his sons get used to new routines quickly. That is not his evidence. The father would not admit the reason he was seeing Dr A and Dr M was due to the difficulties surrounding [X] spending time with him. The father said it was about the separation.
I find that the father minimised and underplayed significantly difficulties he has with the children in his household. It is clear that [X] can behave very poorly towards his little brother, speaks for him, does not let the child answer his own questions, imposes upon his brother not to go to the park or do things that [X] does not want to do, and his father can do nothing about this. [X] can cause such problems for [Y] that he runs away at dinner time, because he is so upset. When the father tries to discipline [X] he wants to ring his mother.
The father agreed [X] is aggressive, [X] has anger. The father said in the witness box he was very confused why his son would say things were happening in the home when they were not. He had no explanation why [X] would say these things to Dr A and his mother, yet when they are together, they have a great time.
He was asked a direct question. “Do think the focus of the therapy is to develop your relationship with your son?” The father could not answer that question. He cannot see that that is the gravamen of the issue for the mother and for the Court.
The father did not recount any incident which reflected poorly on his parenting of or time with the children. He did not reveal the incident of banging the glass down on the table and that it took him 30 minutes to convince [Y] to eat his dinner. This came out in cross examination.
Going to the Act and the section 60CC[9] factors and presumptions I am to consider.
[9] Family Law Act 1975 (Cth), s 60CC.
I would have rebutted the presumption of equal shared parental responsibility give the parent’s acrimonious relationship, however, they have agreed it ought to be shared.
Although the children have experienced their parents arguing they have not been exposed to neglect or family violence in either parent’s households.
The children’s wishes are to continue to live primarily with their mother and spend time with their father.
[Y]’s voice has been lost in this matter as his brother’s needs have overwhelmed his needs. [X]’s reactions to seeing his father was contrasted with his complaints about his father’s treatment of him. [X] is a complex and at times a difficult child and his father does not always demonstrate insight into this reality and blames the mother for problems he may have.
It is imperative that the father ultimately have significant and substantial time with the children to be able to assist [Y] to foster his own identity and needs as separate from [X]’s needs and to have input into the children’s lives as they desire him to do. The father has much to offer his sons. However, he will need to gain insight into managing [X] and a simple blaming of the mother or comments that all is well in house will not suffice.
An equal time arrangement is not an order in the children’s best interests given the still poor parental relationship and communication and the clear difficulty the father has in managing [X]’s challenging behaviours at times.
The mother has insight into the emotional needs of the children and is now positive and encouraging of their time with their father agreeing to 4 nights a fortnight, progressing to 5 nights a fortnight if the increments of time progress well. This is a real positive for the children’s all important relationship with their father strengthening into the future.
The mother is the children closest emotional bond and she is the parent that knows their strengths and weaknesses more intimately than the father. The father displayed a black and white style of relating to people at times and a naivety in responding to problematic behaviours, namely it is the mother’s fault.
I have formed the view that the mother’s position in relation to the time the children should spend with their father during school term is one in the children’s best interests and I will so order. Her plan of a slow, therapeutic based approach has worked and I am heartened that the father is desirous of continuing this intervention for himself and his sons.
Once this matter is finalised and the property dispute determined matters may rapidly improve for the parents and therefore the children.
In relation to holiday time. Children spending time with a parent during the school term is vastly different to the time they spend with the parent in school holidays. I do not see that the same issues or concerns arise in school holidays, because it is precisely that – holidays. There is no difficulty getting them to school, packing lunches, homework being done and the like as they are on holidays.
The children should spend one half of all term school holidays with their parents.
In relation to the long school holiday the father’s time will be for 2 weeks in January 2019. From 2020 the children to spend one half of the school holidays with each parent being and to alternate each year thereafter.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 18 June 2018
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