SWINTON & BARNSTABLE
[2011] FamCA 548
•15 July 2011
FAMILY COURT OF AUSTRALIA
| SWINTON & BARNSTABLE | [2011] FamCA 548 |
| FAMILY LAW - PROPERTY SETTLEMENT – Full and frank disclosure - Whether there should be a notional add back of wasted or lost assets advanced to third parties – Contributions - Just and equitable FAMILY LAW - CHILDREN - Best interests of the child - With whom a child lives - Substantial and significant time with father who lives overseas and visits Australia regularly – Child’s passport - Internet communication by child - Equal shared parental responsibility |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Weir and Weir (1993) FLC 92-338 Russell v Russell (1999) FLC 92-877 |
| APPLICANT: | Mr Swinton |
| RESPONDENT: | Ms Barnstable |
| FILE NUMBER: | SYC | 5996 | of | 2009 |
| DATE DELIVERED: | 15 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATES: | 30 June and 1 July 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Kelly |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Dorrough & Smart |
Orders
Subject to the orders made by consent on 1 July 2011 in these proceedings, all prior parenting orders are discharged.
That the father and the mother have equal shared parental responsibility for the child J born … April 2003 (“the child”).
In addition to the time that the child will spend with the father pursuant to orders dated 1 July 2011, the child shall spend time with the father as follows:
(a)for the first half of the school holiday period following the conclusion of school term 2 in 2012 and each alternate year thereafter unless the mother provides the father with not less than 56 days prior written notice of her intention to travel with the child to a holiday destination outside Australia during the said school holiday period in which case the father’s time with the child pursuant to this order shall be suspended; and
(b)for a period of four weeks during the school holiday period following the conclusion of school term 4 being the first four weeks following the conclusion of school in 2012 and each alternate year thereafter and for four weeks commencing 2 January in each other year, commencing 2011.
Commencing following the conclusion of school term 4 in 2012, the mother may suspend the father’s time with the child in the Christmas school holiday period so that the child spends time with the mother for four weeks in that and each third Christmas school holiday period. Order 3(c) above is suspended to the extent required to give effect to this order. In this regard, the child’s time with the father shall commence at the time nominated in Order 3(c). The father’s time pursuant to Order 3(c) is suspended only if:
(a) the mother gives the father four months written notice; and
(b) the mother takes the child to Country 1 during the relevant school holiday.
On those occasions when the child will spend time with the father in Australia, changeover shall take place as follows:
(a) on a school day at school;
(b)in the first half of the school holiday period, the father shall collect the child from school on the last day of the school term and shall deliver the child to the mother at 3.00 pm on the midpoint day of the school holiday period to her address; and
(c)in the second half of the school holiday period, the father shall collect the child from the mother’s residence at 6.00 pm on the midpoint day of the school holiday period and return the child to her at 3.00 pm on the day before the new term commences.
In the event that the father’s flight time makes it impractical for him to collect or return the child at the hour nominated in Orders 5(b) and 5(c), provided the father gives the mother no less than 21 days notice, he may collect or return the child at a different time on the nominated day. The child shall be returned no later than 7.30 pm.
If there are two midpoint days in school holiday period, the time shall commence or conclude as the case may be on the second midpoint day.
In calculating school holidays, the parties shall count the number of nights, including the last night of the school term and the night before the first day of the new school term [excluding pupil free days].
On those occasions when the child is to travel overseas to spend time with the father, the following shall apply:
(a)the father shall provide the mother with a copy of the child’s flight itinerary via email not less than 14 days prior to the commencement day of his period of time;
(b)the mother shall cause the child to be delivered to the father, or another responsible adult who is to travel with the child, at Sydney Airport at such time as is required to ensure the child is able to check-in for their flight in accordance with the relevant airline policy; and
(c)the father shall cause the child to be returned to the mother at Sydney Airport at the conclusion of his period of time.
That for the purposes of the child travelling via air until he attains the age of 14 years, the parties shall ensure that the child is accompanied by the parent with whom he is living/spending time with at that time or another responsible adult known to the child and in relation to travel to spend time with the father overseas, nominated by the father.
From when the child turns 14 years, each of the parties may cause him to travel by air as an unaccompanied minor provided he is to travel directly and no further than Singapore. For indirect flights or flights further than Singapore, the parties must agree that the child travel as an unaccompanied minor.
The mother shall provide the father with the child’s British passport within 14 days and the father shall thereafter retain possession of the passport except as otherwise provided for by these orders.
That the mother shall retain possession of the child’s Australian and Country 1 passports except as otherwise provided for by these orders.
The mother and the father shall each release to the other any of the child’s passports necessary for travel pursuant to these orders, and the one receiving the passport or passports pursuant to this order shall return it or them to the other within 14 days of the end of the child’s trip.
Each party shall facilitate and encourage the child to communicate with the other party, and in meeting this obligation the parties shall:
(a)maintain a telephone service and keep the other party informed at all times of their telephone number;
(b)maintain a low rate international telephone account or card at all times when the child is in that party’s care;
(c)make the telephone available to the child to call the other parent at all reasonable times;
(d)not unreasonably restrict the periods of time the child wishes to communicate with the other party;
(e)give the child privacy when he is communicating with the other party;
(f)if a party has a mobile telephone number, make that telephone number available to the other party; and
(g)keep and maintain in working order a personal computer at their respective homes, subscribe to a broadband internet service when the child is in that party’s care, and permit the child reasonable access to the computer and internet connection for the purposes of communicating with the other party.
The father shall immediately change the name of the blog established by him for the child so that it does not identify the child by name. Unless the security parameters for this blog are guaranteed to limit access to close friends and family then the blog is to be closed and no further blog or social media tool is to be established in relation to the child until these conditions are met.
Provided the conditions referred to in the above order are maintained, the father may establish a social media facility for exclusive use by the parties and close friends and family.
Pursuant to s 65DA(2) and s 62B, 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.
By way of property settlement, within three months of the date of these orders, the father shall pay $21,576.75 to the mother.
Except as otherwise provided in these orders, the parties are declared to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, shares, equities, superannuation entitlements and personal effects in their respective possession and control.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Swinton and Barnstable is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5996 of 2009
| Mr Swinton |
Applicant
And
| Ms Barnstable |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for property settlement and parenting orders. The parenting orders relate to the parties’ son, J (“the child”), who is eight years old.
On the morning the hearing commenced, the parties reached agreement about many aspects of the child’s arrangements. This included some of the pivotal issues, namely, that the child would live with the mother in Australia and not in Singapore with the father. The agreement made provision for the child to spend time with the father in Australia and overseas and communicate with the father via telephone and Skype amongst a raft of ancillary orders.
The property settlement application required consideration of a modest asset pool, the focus of which was whether the Court should include funds advanced to third parties. If these funds are excluded from the asset pool, the total net assets are in the vicinity of $175,000.00. If they are included, then the asset pool would increase by about $110,000.00.
Short History
Ms Barnstable (“the mother”) was born in Country 1 in 1968.
Mr Swinton (“the father”) was born in Country 2 in 1969.
The father moved to Singapore in 1995.
The parties met in Singapore, where the father lived and worked, in mid 1999. In September 1999 they commenced to live together in Singapore.
The parties married in 2001.
J, who is the parties’ only child, was born in April 2003 in Singapore.
In April 2004 the parties and the child migrated to Australia.
In March 2006 the parties stopped living together. The mother moved with the child to a rented apartment at Sydney Suburb 1. The father initially resided with friends and then moved into rental accommodation. The child was then aged 2 years and 11 months. The mother regards this as the date upon which the parties separated. Although the parties did not resume cohabitation, it is in October 2008 that the father says he considered their relationship ended. As the fact of physical separation was uncontentious, it was unnecessary to determine which of the parties’ views about the date on which their relationship ended should be preferred.
On 6 October 2009 the father commenced these proceedings.
On 16 October 2009 the father returned to live in Singapore. The child remained in Australia with the mother.
Since the father has lived in Singapore, he has regularly spent time with the child in Australia and the child has stayed with him in Singapore and visited Country 2 where his paternal family reside. The father has generally spent time with the child in accordance with the operative orders.
Interim parenting orders were made by consent on 8 February 2010. These orders are set out below:
1.That both parents be restrained from removing the child [J] born […] April 2003 (“[J]”) permanently from the Commonwealth of Australia except in accordance with these orders, without the written consent of the [other] or orders of the Court.
2.That [J] live with the mother except as provided for herein.
3.That [J] spend time with the father as follows:
During school terms in Australia
3.1 26 February to 1 March 2010
3.2 12 – 14 March 2010
3.3 23 – 25 April 2010
3.4 14 – 16 May 2010
3.5 4 – 6 June 2010
3.6 25 – 27 June 2010During school holidays
3.7 10 – 18 July 2010
4.Neither party shall denigrate the other to the child or in the child’s hearing.
5.The balance of the husband’s interim application filed 14 December 2009, including time to be spent during the April school holiday period in 2010 and the terms on which the parties may remove [J] temporarily from the Commonwealth of Australia for the purposes of a holiday, is hereby adjourned to the first available date after 1 March 2010.
6.Costs reserved.
AND THE COURT NOTES:
A.The mother proposes to make [J] available to speak with his father when his father calls every Tuesday, Wednesday, Thursday, Saturday and Sunday when [J] is otherwise not spending time with his father between 6.30pm and 7.00pm, and to facilitate the telephone call by ensuring that [J’s] mobile telephone provided to [J] by the father and her own mobile telephone are switched on and able to receive the father’s call. The issue of the father’s communication with [J] remains an issue for determination on the adjourned date.
Further interim orders were made by consent on 10 March 2010 and they too are set out below:
1.That order 3 of the Orders made 8 February 2010 be varied so that [J] spends time with the father as follows:
During school terms and in Australia
1.126 February to 1 March 2010
1.212 – 15 March 2010
1.323 – 26 April 2010, with the father returning [J] to the Mother at 9.00am on 26th April 2010, being a Public Holiday on that day
1.414 – 17 May 2010
1.54 – 7 June 2010
1.625 – 28 June 2010
During school holidays
1.7From after school on 1 April until 9.00am on 4 April 2010
1.8From 5.00pm on 4 April until 5.00pm on 11 April 2010
1.910 – 18 July 2010
2.That the father shall make [J] available to spend time with the mother from 9.00am until 5.00pm on 4 April 2010, and shall be responsible for delivering and collecting [J] to and from the mother’s residence or any other mutually agreed location at the start and end of the period referred to in this paragraph.
3.That the mother will spend the time with [J] during the April school holiday period in Australia.
4.That the father will spend the time with [J] during the April school holiday period in Australia.
AND THE COURT DIRECTS
5.The husband’s interim application filed 14 December 2009 is hereby adjourned to the first available date after 26 April 2010 (when it is anticipated the parties will have completed the Child Responsive Program), with liberty to restore to both parties on 14 days notice to the other party after receipt of any report from the family consultant following completion of the Child Responsive Program.
On 6 September 2010 and 1 November 2010 further interim orders were made which are set out below:
6 September 2010
1.The child [J] born […] April 2003 shall live with the mother at all times except as provided in these orders.
2.The child shall live with the father as follows:
Until 22 November 2010
2.1from after school on 10 September 2010 to before school on 13 September 2010;
2.2from 5.00 pm on 2 October 2010 until 5.00 pm on 10 October 2010;
2.3from after school on 5 November 2010 until before school on 8 November 2010;
2.4from after school on 19 November 2010 until before school on 22 November 2010.
During School Terms
2.5for the 1st, 4th and 7th weekends of each school term from after school Friday to before school Monday, commencing on the first weekend of Term 1 in 2011;
2.6for the 10th weekend of each school term [provided there are 11 weeks or more occurring in a term] from after school Friday to before school Monday, commencing in 2011.
During Term 1, Term 3 and Term 4 Holidays
2.7for the first half of Terms 1, 3 and 4 holidays in years ending with an even number and for the second half of the said holidays in the years ending in an odd number [commencing in December 2010].
During Term 2 Holidays
2.8for the whole of Term 2 holidays in years ending in an odd number commencing 2011.
3.To give effect to Order 2 the following shall apply:
3.1When the father has time during school holiday periods, then unless otherwise agreed:
3.1.1When having time in the first half, he shall collect the child from school on the last day of the school term and shall deliver the child to the mother at [3pm] on the midpoint day to her address.
3.1.2When having time in the second half shall collect the child from mother’s residence at [6pm] on the midpoint day and return the child to the mother at [3pm] on the day before the new term commences.
3.2If there are 2 midpoint days in school holidays, time shall either commence or conclude as the case may be on the second midpoint day.
3.3In calculating school holidays the parties shall count the number of nights including the last night of the school term and the night before the first day of the new school term [excluding pupil free days].
4.The mother shall make [J] available to communicate by video conference with the father by Skype at 8pm on Monday each week during school terms subject to the following:
4.1the parties shall use the Skype address “[…]”;
4.2the father shall initiate the Skype call commencing 13 September 2010.
5.The parties shall do all acts and things to obtain an Australian passport for [J] that will remain in the mother’s possession at all times when [J] is residing or should be residing with her pursuant to these orders.
6.The father is at liberty to holiday with [J] in Singapore and or [Country 2] provided:
6.1he provides the mother with an itinerary 21 days prior to departing Australia;
6.2[J] travels on an Australian passport;
6.3the father returns [J’s] Australian passport to the mother when he returns [J] to her care;
6.4the travel occurs after 1 November 2010;
6.5the father accompanies [J] for the whole trip.
7.The mother shall within seven (7) days of provision of the father’s itinerary make available to the father [J’s] Australian passport.
8.The mother is at liberty to holiday with [J] in [Country 1] provided:
8.1she provides the father with an itinerary 21 days prior to departing Australia;
8.2[J] travels on an Australian passport;
8.3the mother accompanies [J] for the whole trip.
9.The itinerary referred to in Orders 6 and 8 shall contain:
9.1flight particulars;
9.2accommodation particulars;
9.3telephone numbers to enable contact with [J].
10.Each party shall facilitate and encourage [J] to communicate with the other party by telephone at reasonable times daily and unrestricted, when [J] is in the care of each party.
11.In the event the father wishes to communicate with [J] by email he shall use the mother’s email address “[…]” and the mother shall facilitate and encourage [J] to read and respond to those emails within a reasonable time.
12.If both parties are within Sydney or its proximity during the Christmas period, then the parent who has the care of [J] during the second half of the Christmas school vacation shall have the care of [J] from 1pm Christmas day to 8pm Boxing Day.
13.Noted on the next Court occasion the parties shall apply to be transferred to the Federal Magistrates Court on a date to be fixed by that Court.
14.The question of a [Country 2] passport requirement be stood over to a date to be fixed and the time [J] is collected during school holiday times [Orders 3.1.1 and 3.1.2 where marked in brackets].
1 November 2010
1.Order 2.6 of the Orders made 6 September 2010 be amended and provide as follows:-
2.6For the 10th weekend of each school term [provided there are 11 weeks or more occurring in a term] from after school Friday to before school Monday, commencing in 2011.
2.Order 3 of the Orders made 6 September 2010 be amended and provide as follows:
3.To give effect to Order 2 the following shall apply:-
3.1 When the husband has time during school holiday periods, then unless otherwise agreed:-
3.1.1When having time in the first half, he shall collect the child from school at the time school ends on the last day of the school term and shall deliver the child to the wife at 3.00 p.m. on the midpoint day to her address or her place of employment if the wife is at work that day.
3.1.2When having time in the second half shall collect the child from the wife’s residence at 6.00 p.m. on the midpoint day and return the child to the wife at her address or to her place of employment if the wife is at work that day at 3.00 p.m. on the day before the new term commences.
3.1.3When having time for the whole of the July school holidays, he shall collect the child from school at the time school ends on the last day of the school term and shall deliver the child to the wife at 3.00 p.m. on the last day of the school holidays to her address or her place of employment if the wife is at work that day.
3.2 If there are two midpoint days in school holidays, time shall either commence or conclude as the case may be on the second midpoint day.
In January 2011 the mother and child commenced living with Mr T in a rented property at Sydney Suburb 2. The mother and Mr T have been in a relationship for approximately four years. He and the child are good friends.
Trial directions, which included an order for the preparation of a Family Report were made on 17 March 2011. Family Consultant, Ms B, who had undertaken a Children & Parents Issues Assessment in April 2010 completed the Family Report which is dated 3 June 2011. The Family Consultant was not cross-examined. While I accept she accurately reported upon her consultations and observations, this does not mean the Court is bound by her opinions.
The Family Consultant recommended:
·that the child live in Sydney with his mother,
·that the child spend time with his father, in Australia, during the school terms in line with, or similar to the current arrangements,
·that the child spend shared time with each parent during school holidays,
·that the child be allowed unrestricted communication with each of his parents, and
·if the parents were to live in close physical proximity, then a substantially shared care arrangement be considered.
Parenting orders
As I indicated earlier, the parties agreed on various parenting issues.
On 1 July 2011, by consent, I made the parenting orders which are set out below:
1.That the mother and the father be restrained from removing [J] from the Commonwealth of Australia except in accordance with these orders, without the written consent of the other parent or Orders of the Court.
2.That [J] live with the mother in Sydney, Australia.
3.That [J] spend time with the father:
3.1once per term from Friday after school for a period of 10 nights, at the conclusion of which the father shall deliver [J] to school on Monday morning, commencing with the fifth Friday of each school term unless otherwise agreed between the parties in writing;
3.2for the first half of the school holidays periods following the conclusion of school term 1 and school term 3 in 2012 and each alternate year thereafter and for the second half of the said school holiday periods in 2011 and each alternate year thereafter;
3.3for the entire school holiday following the conclusion of school term 2 in 2011 and each alternate year thereafter;
4.That in the event that the father is spending with [J] in Sydney in accordance with these Orders, the following shall apply:-
a.The father will use his best endeavours to ensure that [J] attends any extra-curricular activity he is required attend during the period he is in his father’s care;
b.The father will make [J] available to spend time with the mother for a period of three hours on each of [J’s] birthday and the mother’s birthday.
5.If Mother’s Day falls on the first Sunday of the father’s time with [J] then [J] shall spend time with the mother from 12 noon on Mother’s Day until the commencement of school the following Monday.
6.If Mother’s Day falls on the last Sunday of the father’s time with [J] then the father’s period of time with [J] shall conclude at 12 noon on Mother’s Day.
7.The mother shall make [J] available to communicate with the father by video conference by Skype at 8.00 pm each Monday, and if for any reason such communication does not occur on that day it is to occur at 8.00 pm the following Wednesday subject to the following:-
a.The parties shall use the Skype address “[…]”; and
b.The father shall initiate the Skype call.
8.The father shall be permitted to remove [J] from Australia temporarily to any country provided that:
8.1The trip takes place during school holidays, unless otherwise agreed between the parties;
8.2The father is responsible for all expenses of each trip;
8.3The father gives the mother 28 days notice of his intention to travel the child;
8.4The father gives the mother a full itinerary and a copy of [J’s] return ticket no less than 10 days prior to travel; and
8.5The father ensures that [J] is made available to communicate with the mother via telephone and Skype in accordance with the balance of these orders.
9.The mother shall be permitted to remove [J] from Australia temporarily to any country provided that:
9.1The trip takes place in school holidays, unless otherwise agreed between the parties;
9.2The mother is responsible for all expenses of each trip;
9.3The mother gives the father 28 days notice of her intention to travel;
9.4The mother gives the father a full itinerary and a copy of [J’s] return ticket no less than 10 days prior to travel; and
9.5The mother ensures that [J] is made available to communicate with the father via telephone and Skype in accordance with the balance of these orders.
10.That the mother shall retain possession of [J’s] Australian and [Country 1] passport except as otherwise provided for by these orders.
11.That the parties do all acts and things and sign all documents in a timely manner necessary to cause any and all of [J’s] passports to be renewed upon presentation of the relevant renewal application/s by one parent to the other parent.
12.The mother shall keep the father informed at all times of the name address and telephone number of [J’s] general practitioner in Sydney and shall authorise such general practitioner to provide any information held by that practitioner relating to [J’s] health to the father at the father’s written request.
13.The mother shall keep the father informed at all times of the details of any education institution attended by [J] and shall authorise such education institution to provide any information held by that institution relating to [J’s] education to the father at the father’s written request.
14.That each party have liberty to disclose the details of these orders to all Principals and teachers and schools that [J] attends, together with all medical practitioners and health professionals attended by [J] from time to time.
15.That each party may attend upon all school and extra-curricular activities of [J] of which parents are normally invited/permitted to attend.
16.That [J] may spend any other time with either party as may be agreed between the parties from time to time.
17.Neither party shall denigrate the other to [J] or in [J’s] hearing.
Other orders
18.That each party shall keep the other informed of their residential address and phone number and mobile number and shall advise the other of any change to those details within 7 days of such change.
19.Each party do all acts and things and sign all documents necessary to comply with and give effect to the terms of this Order.
20.Appoint the Registrar pursuant to section 106A of the Family Law Act 1975 for the purposes set out in that section.
Notation
21.The parties agree that for the purposes of [J’s] travel and for the purposes of him residing overseas when he is aged 18 years the parties shall do all things necessary to keep his current [Country 1] and [Country 2] passports current.
The issues
The key issues which require determination are:
Children
· whether the mother should have sole parental responsibility;
· the logistics of the child spending time with the father overseas;
· whether the father should have the child’s Country 2 passport;
· electronic and internet communication by the child;
Property
· whether funds advanced by the mother to Mr P should be notionally added into the asset pool;
· whether £50,000.00 invested by the father in a business acquired by a company controlled by his step-father should be notionally added into the asset pool;
· the appropriate s 75(2) adjustment in the mother’s favour, and
· whether the father failed to comply with his obligation to give full and frank disclosure.
Disclosure and credit
It is the mother’s contention that the father failed to comply with his obligation to give full and frank disclosure of all material facts and documents.
As to the effect of non-disclosure, their Honours said in Weir and Weir (1993) FLC 92-338 at 79,593:
It seems to us that once it has been established that there has been a deliberate non disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
Property settlement issues arose a long time after the parties separated. During cohabitation the parties rarely mingled finances which, because the father was the main income earner, meant the mother had only a vague idea about their assets and liabilities at any given time. She recalls discussions at different times which led her to believe between them the parties had more money (in Australia and overseas) than is admitted by the father. She is concerned that it was only during informal disclosure that the father revealed post separation that he had invested in a failed business venture and that his decision was taken without reference to her. Complaint is made about the provision of credit card statements and the extent to which the father accounted for the reduction in his savings at various points after separation.
The father denied failing to give full disclosure. He gave the mother a significant amount of material. He, in effect, said she wanted an audit of his financial circumstances for the five years since separation. In some instances, in order to meet her requests, it had been necessary to obtain duplicate documents from financial institutions which he had done. He produced many bank statements, his contract of employment and credit card statements and said the Court should accept that he fulfilled his financial disclosure obligations. I agree and the mother’s argument for the application of Weir fails.
General principles for the adjustment of matrimonial property
The approach to the determination of an application under s 79 is well established by authority. In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595. The process ordinarily involves a four part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s 79(4)(a), (b) and (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s 75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child of the marriage.
In determining what order the Court should make under s 79, the Court must be satisfied in all the circumstances that it is just and equitable (s 79(2)). It is the justice and equity of the actual orders that the Court must consider: Russell v Russell (1999) FLC 92-877.
Assets, liabilities & financial resources at the date of hearing
The parties reached agreement as to the value of most assets and liabilities, the values and identity of which are found in the table below.
In the table the column headed “agreed” comprises the agreed assets and liabilities as at the date of hearing. The column headed “30 June 2010” comprises the mother’s contentions about the asset pool at that date[1]. According to her counsel, these values establish the father’s more extravagant lifestyle and are relevant to the magnitude of the adjustment pursuant to s 75(2) which should be made in her favour. It will be apparent that the mother includes values, for example, of shareholdings in publicly listed companies which, because of movements in the share market, were worth more at the earlier date than they are now and assets which have been transferred (movements between bank accounts) and the like. In a similar vein, some of the father’s present assets were acquired after 30 June 2010. During closing addresses counsel for the mother conceded, because some 30 June 2010 figures were potentially misleading it is necessary to disregard numerous values contained in the earlier column. In so doing he highlighted the fallacy in this aspect of his submissions. Nonetheless, the point that the father spent more than he earned and more than the mother from when he returned to Singapore is accepted.
[1] Exhibit ‘J’ – in that document the agreed values are in a column headed “Husband’s value” and the 30 June 2010 column is headed “Wife’s value”
I find that the parties’ assets, liabilities and financial resources as at the date of hearing are as identified in the following table:
Asset
30 June 2010
Agreed
Bank 1 Singapore Account (F)
$4,026.00
$0.00
Bank 2 Country 2 Account (F)
$29,309.00
$4,253.00
Bank 3 Country 2 Account (F)
$2,887.00
$2,174.00
Bank 4 Singapore Account (F)
$60,383.00
$23,553.00
Bank 4 Singapore Savings Account (F)
$1,520.00
Bank 5 Singapore Account (F)
$9.00
$100.00
3,964 Company 1 Shares (F)
$4,534.00
$2,971.00
256 Company 2 Shares (F)
$1,479.00
$1,064.00
599 Company 3 Shares (F)
$435.00
$2,741.00
211 Company 4 Shares (F)
$223.00
$256.00
Bank 6 Savings Account (F)
$18,804.00
$170.00
Bank 6 Everyday Account (F)
$313.00
$0
Car and Bike (Sing) (net of lease) (F)
$25,897.00
VW Golf (SGD $100,000) (F)
$76,000.00
Ducati motor cycle (SGD$40,000) (F)
$30,400.00
Loan due by Mr D (F)
$9,157.00
$9,157.00
Suzuki motor cycle (SGD$7,500) (F)
$5,700.00
$5,700.00
Bank 7 Country 1 (M)
$678.00
$678.00
Vespa (M)
$5,000.00
$5,000.00
Jeep Wrangler (M)
$24,000.00
$24,000.00
Bank 6 A/C … (M)
$16,289.00
$16,289.00
Bank 6 A/C (M)
$3,892.00
$3,892.00
Funds in M’s Solicitors Trust Account (M)
$6,214.00
$6,214.00
Total
$219,229.00
$216,132.00
ADDBACKS
Loan to Mr D through his company (F)
$87,488.00
$0.00
Sale proceeds of VW Golf (F)
$35,000.00
$0.00
Balance of Country 1 Bank Account (M)
$24,985.00
$0.00
Total
$147,473.00
$0.00
LIABILITIES
Car Loan (F)
$86,698.00
Motor cycle Loan (F)
$16,341.00
Tax due for year ending 30.12.2010 (F)
$19,646.00
Total
$0.00
$122,685.00
SUPERANNUATION
Super 1 (M)
$34,726.00
$34,726.00
Super 2 (F)
$39,552.00
$39,552.00
Total
$74,278.00
$74,278.00
Asset Pool
$440,980.00
$167,725.00
There are a number of findings in relation to the asset pool which require explanation. The parties agreed the liabilities referred to in the balance sheet amounted to $139,698.00 which is incorrect. The three items identified total $122,685.00 which is the figure included. They also agreed that the parties’ superannuation as at 30 June 2010 was worth $39,552.00 which is incorrect and appears to reflect transposition of the father’s superannuation without the mother’s. It follows that the value of the asset pool asserted by the mother is also wrong. Notwithstanding the parties agreed on these figures, necessary arithmetical corrections have been made.
The parties agreed to exclude paid and outstanding legal expenses from the asset pool. The father’s legal expenses are about $77,000.00 of which he has paid $43,716.75 from savings and $1,389.25 from borrowings. The balance is held in trust sourced from borrowed money. The mother’s fees are similar and have been paid primarily from her Country 1 savings and post separation income. I infer the balance sheet item which relates to funds in her solicitors account is included as these are not borrowed funds. As will become apparent, the parties’ legal expenses explain to a degree the depletion in their savings.
It was the father’s contention that the mother’s Jeep Wrangler was worth $30,100.00. The mother contended it was worth the lower amount. Valuation evidence was not provided. During closing addresses, I understood counsel for the father to concede that the mother’s figure should be included as an admission against interest. If I am wrong about his concession, it is, nonetheless, the approach I have adopted.
It was argued by the father that the Court should include as a matrimonial liability his $17,000.00 credit card. Cross-examination of the father revealed he regularly repaid credit cards in full at the end of the month. In short, his current credit card debt was incurred long after the parties separated and in circumstances where his income exceeds the mother’s, his indebtedness is better considered under s 75(2) rather than in the formulation of the asset pool. The latter approach would result in the mother contributing to a loan in a manner which would be neither just nor equitable.
Included in the asset pool is the father’s assessment of his taxation liability for the year which ended 30 December 2010. He is a resident in Singapore for taxation purposes. His employers pay him a total salary package which does not involve withholding income tax. Assessment of the father’s income tax is undertaken by Inland Revenue calculated by reference to information provided by the father’s employer and him. Using the online calculator, it is the father’s evidence that he expects he will be liable to pay taxation in the amount referred to in the table. He has retained savings so that when his taxation assessment issues the funds are available.
In Koh & Koh (unreported) delivered 18 October 1993, the Full Court per Barblett DCJ, Lindenmayer and Rourke JJ considered an argument that the Court should have included in the asset pool a husband’s taxation liability incurred post separation during a year in which he had a very high income, made significant advances and investments but made no provision for tax.
In the course of dismissing the husband’s appeal, their Honours held:
He [the husband] could have made provision for his ultimate tax liability by putting money aside from his very considerable cash flow during the financial year in question. Had he done that, there would have been no question of his putting forward any future liability for personal income tax as a liability reducing the net value of available property. It would in our view have been properly arguable on the husband's behalf that his future tax liability should be set off against his relevant savings had he made any. However, he cannot properly be heard to say, when he has made no such savings, that his spouse should effectively subsidise his personal tax liability by suffering a corresponding diminution in the net property available for division.
In circumstances where the father has made provision for payment of income tax, he has significant necessary expenses and his savings are included in the asset pool, it is appropriate to include his personal income tax liability in the formulation of the asset pool.
It is the mother’s contention that the Court would notionally add back as the father’s asset $87,488.00 lost in a business venture with Mr D, who is his step-father. In short, post separation the father invested £50,000.00 in a franchise in Country 2. The franchise was acquired in late 2007 with the majority of the funds used for the purchase provided by the father’s mother and step-father. Unfortunately for those involved, the global financial crisis damaged this Country 2 based business and the business failed with no return of capital to shareholders. The monies invested by the father and his mother and step-father have been lost.
The father argued for the inclusion as the mother’s asset $19,414.00 loaned by her to Mr P in September 2001. Mr P was in financial difficulty and borrowed the money to discharge his credit card debt. He has not repaid any of the funds advanced. The mother and Mr P are no longer friends. To no avail, once or twice each year she has asked him when he might repay her. It is the mother’s view that Mr P is unlikely to repay her. She understands he has been unemployed for a considerable time and left Singapore to return to live in Country 1. She believes debt recovery action would be unproductive.
In relation to the father’s investment, the parties adopted the opposite position each took in relation to the mother’s advance to Mr P. In short, the father argued the funds were unlikely to be recovered by him and thus should not be included in the asset pool. It was argued by the mother that the father should be held to account for his disposition of matrimonial assets.
The purpose of the following discussion is to ascertain whether the court should notionally add back the lost funds, deal with the issue pursuant to s 75(2)(o) or adopt another course if this is the only way to deliver a just and equitable outcome.
In Kowaliw (1981) FLC 91-092, the husband allowed prospective purchasers of the matrimonial home to occupy the home rent free for 12 months. Baker J explained that marriage, for most couples, is an economic partnership. As a statement of general principle, his Honour found that financial loss incurred by the parties in the course of a marriage, whether or not a joint liability, should be shared between them except in the following circumstances:
(a)where one of the parties embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
If the losses had been suffered by the parties in the course of the pursuit of the objectives of the marriage, for example gaining income and/or assets, then such losses should be shared by the parties, although not necessarily equally.
Kowaliw has received widespread appellate support. In Browne v Green (1999) FLC 92-873, the Full Court considered whether the quarantining of losses from the parties’ failed business as a loss absorbed by the husband was unjust. The trial judge determined that the husband should bear full responsibility for the losses incurred by the business because he alone initiated the venture and had control over it. There was no suggestion of recklessness on his part, nor a course of conduct designed to reduce the asset pool. Essentially this case involved a promising business venture which went sour. The Full Court agreed with the trial Judge that the principle in Kowaliw does not form a fixed code, but should be used as a guideline. The Full Court cited with approval comments made by Nicholson CJ and Fogarty J in Townsend v Townsend (1995) FLC 92-569 that Kowaliw should not be used to define the parameters of considerations to be applied in all cases involving waste. In placing the full burden of the loss on the husband, the Full Court determined that the trial Judge erred.
The issue of whether the loss should be notionally added back into the asset pool, constitutes a s 75(2) factor or should be dealt with another way is quite complex. In Townsend (which counsel for the mother relied upon), the Full Court determined that the wasted property should be notionally added back to the pool of assets. Simply put, after separation the husband sold the parties most valuable asset, a taxi for $148,000.00. The husband had the benefit of the money from the taxi and none of the sale proceeds remained. The Court found that selling the taxi was a premature distribution of marital property and thus it would be unjust to merely treat such conduct by the husband as a matter under s 75(2). The Full Court determined that the taxi should be brought into the pool of assets on a notional basis and a distribution made accordingly.
In Bell and Bell [2000] FamCA 1301 (unreported), the Full Court made it clear that notional adjustments are not limited to wasted assets but may also include identified items of property that have been bona fide disposed of. Also that “(i)t may also be appropriate, depending on the circumstances, to notionally include in the pool of assets items of property in respect of which no or no reasonable explanation has been given for the assertion that they no longer exist or never existed”.
The Court has been reluctant to notionally add back assets where monies that existed at separation have been spent on reasonably incurred living expenses, the point being that parties are entitled to continue to provide for their own support: Marker [1998] FamCA 42.
In Cerini [1998] FamCA 143, the Full Court held, where the monies have been shown to have been reasonably disposed of, the notional add back approach should be the exception and not the rule.
In contrast to the notional add back approach in Townsend, there are numerous decisions where wasted or lost assets and any consequences are considered under s 75(2)(o).
A case which draws the issues of wasted or lost assets and notional add backs together is G & G [2001] FamCA 1138 (unreported). In this case, after separation the husband invested $1.8 million in wine, of which the investment at trial had a value of $1,220,739.00. Counsel for the wife argued that the difference between the two amounts ought to have been added back to the asset pool under the Townsend principle. The Full Court noted particular features of the transaction as follows: The investment was made after separation, after the parties had each sought advice on property settlement and on the advice of a financial adviser. The husband was aware that in the short term there would be a significant decrease in the value of the investment and invested for the long term. His expectation and that of his advisor was that short-term losses would be significantly outweighed by longer term gains. The trial Judge concluded that the investment was appropriate, that is, not reckless or irresponsible and not tantamount to waste. Thereafter, no further adjustment was made as a consequence of the loss. The Full Court determined this case was not about waste, essentially because the money was not lost and would be returned with a significant profit in the long term. Their Honours concluded that whether or not the removal of $580,000.00 from the asset pool was a deliberate plan or an unintended consequence of the investment was irrelevant. To deny the wife the right to share in nearly $580,000.00 which she would have done but for the wine investment, whilst at the same time denying her the opportunity to participate in the investment cannot be said to be just and equitable. The Full Court remitted the matter for re-hearing. However, before doing so, it held there were a number of ways the economic consequences of the wine transaction could have been taken into account in order to achieve a just and equitable result. “They could have been taken into account in a number of ways, for example: according to the Townsend guidelines; or upon a consideration of the s 75(2) factors. Alternatively it was open to his Honour to adjourn the proceedings pursuant to s 79(5).” Presumably to a date when the wine had at least recouped its original investment or its anticipated increased value.
The principles that arise from these cases appear to be the following:
i)The principle in Kowaliw is not a fixed code.
ii)Kowaliw is a useful guideline for dealing with cases involving lost assets or income.
iii)In cases involving waste there must be a proper reason for adopting a non Kowaliw approach.
iv)If the losses occurred in the course of the pursuit of the objectives of the marriage then such losses should be shared by the parties, although not necessarily equally.
v)The economic consequences of waste must be dealt with in a just and equitable manner.
vi)The economic consequences (loss) may be treated as a premature distribution of the asset pool and notionally added back as the asset of the party who had its sole benefit.
vii)Taking the premature distribution into account in a general way pursuant to s 75(2)(o) and applying the cumulative outcome of the s 79(4) and s 75(2) findings to the smaller depleted asset pool may offend s 79(2) notions of justice and equity.
viii)Where the asset pool had been seriously depleted, it may be that only by giving the premature distribution its full dollar value that justice can be given.
ix)The premature distribution concept is not restricted to post separation transactions.
x)Where monies have been reasonably disposed of the notional add back approach is the exception and not the rule.
xi)Notional adjustments are not limited to wasted assets but may also include property that has been bona fide disposed of.
xii)The source of the funds is relevant.
xiii)Notionally included assets may include unascertained assets, even if the precise value is not known.
xiv)Even if the matter does not involve waste, the economic consequences of a significant reduction in the asset pool must be considered.
Turning first to the mother’s loan to Mr P.Mr P gave evidence in the father’s case. He acknowledged his indebtedness to the mother and his intention to repay her. Cross-examination revealed Mr P has Country 1 Currency $1,200.00 in the bank and no other assets of value. There is no evidence he is employed, which I infer he is not. He rejected counsel for the mother’s proposition that he use his savings to partially repay the loan. Mr P was either unwilling or unable to give an indication about when (if ever) he would repay the loan. I am satisfied there is no reasonable likelihood he will repay the mother. I agree with her assessment that notwithstanding his asserted intention to repay her, that the funds are effectively lost to her and the amount is not included in the asset pool.
The father’s advances to his step-father were made to enable a related company in which the father had a 25% shareholding to purchase a franchise in Country 2. The father and his step-father are close and the father trusts his step-father’s business acumen. The father’s mother and step-father sold their home and an investment property to fund their £150,000.00 contribution to the purchase. Without reference to the mother, the father accepted their invitation to join in the venture. This transaction took place about 18 months after the parties stopped living together with the funds drawn from funds the father had before the parties commenced living together and which he retained in Country 2. The father believed this was a sound investment and I am satisfied the advance was not designed to reduce the net value of available property. In circumstances where his step-father had a long business career, it was not reckless for the father to accept his opinion that this was a sound venture in relation to which it was reasonable to be initially optimistic. No criticism could be made of their failure to anticipate the global financial crisis, which ultimately destroyed the business.
It will be recalled the father made two advances for the business, the second of which occurred after the global financial crisis hit and at a time when it was clear the business was in trouble. In the months which followed the start of the global financial crisis the business’ fortunes fluctuated. Some months returned a profit while others resulted in losses. Strategies adopted by the step-father met with limited success and the point was reached where, if the business was to survive, a further ingestion of capital was required. Again, the father accepted his step-father’s advice and made the second payment. Unfortunately, business conditions continued to deteriorate and about four weeks later the step-father commenced a major review of business conditions including whether the business was viable. He informed the father that unless they were able to support the business through further capital investment it was unviable. Neither was able or willing to invest more and thus in December 2008, the business was placed in voluntary liquidation. It is argued by the mother that the second advance was reckless and attracts the application of Kowaliw and/or Townsend principles.
I do not accept that either advance was wanton, negligent or reckless. The first, as I said earlier, was an appropriately sound investment. The global financial crisis presented the business and financial world with extraordinary challenges. It is common knowledge economists and governments disagreed about how long it might last or the steps which should be taken for business and global financial survival. For business there were few benchmarks about the most prudent course and I accept that to a great degree businesses operated in unprecedented market conditions. Considered in this context I reject the mother’s claim that based on Kowaliw the lost funds should be notionally added into the asset pool.
The mother’s characterisation of the franchise investment as a premature distribution of marital property is, however, apt. It does not follow that the funds must be returned to the asset pool (albeit notionally). After separation both parties had use and control of their offshore savings which they used without reference to the other. In a similar vein they each sold cars without the other’s involvement. In short no restraint was seen as appropriate by either party on the use of capital sums each introduced at the commencement of cohabitation. During the years the parties cohabited the mother trusted the father’s management of their financial affairs and did not second guess the wisdom of how these were managed. When these circumstances are factored into the features of these transactions explained earlier, I do not consider the funds should be notionally added back as the father’s asset.
Notwithstanding that both parties add back arguments have failed, it is necessary to consider the economic consequences of the transactions and whether justice and equity requires consideration elsewhere. In this regard it is noteworthy that the source of funds for these advances was funds acquired by each party prior to cohabitation in relation to which each party retained those funds overseas in their sole names. Other similarities are that each advanced funds to people they trusted and that the funds are lost. While these losses could be considered under s 75(2)(o), a better approach is that the economic consequences are in the context of evaluation of initial contributions. As will be discussed later, it is clear from the case law that the use made by parties of initial contributions must be considered.
Section 79(4) – The evaluation of contributions and other factors
Section 79(4) requires that the Court looks at the entirety of the contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense: Farmer & Bramley (2000) FLC 93-060. In Ferraro, the Full Court highlighted the difficulty involved in evaluating and balancing a fundamentally different contribution. It also reinforced that the Court’s task includes evaluating the significance of the various contributions, the weighing of which is ultimately a matter for the Court.
The evaluation of financial contributions is more complex than the mere calculation of the funds introduced by each party. This point is reinforced by the often quoted comments in Pierce & Pierce (1999) FLC 92-844 where, in relation to initial contributions, the Full Court said at par 28:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
When the parties commenced cohabitation, the father had assets worth $225,000.00 and no liabilities. His assets comprised Country 2 shares worth $20,000.00, savings deposited in Bank 2 (Country 2) of $125,000.00 and superannuation in Singapore worth $79,169.00. The mother owned a house and car in Country 1 and had about $25,000.00 savings. She sold her house in mid 2000 from which she received $50,000.00 net. I infer this was the value of the property when the parties began living together. Rounded out, the mother had assets worth about $75,000.00. From her Country 1 monies, the mother withdrew $5,000.00 which she contributed to the parties’ living expenses after they began to live together.
It is from their respective initial contributions, which each party retained in their country of birth, that they made the advances which it is argued should be notionally added to the asset pool. So that it is clear, the father kept his Country 2 funds in a Country 2 account and the mother kept her Country 1 funds in a Country 1 account. The economic effect of the parties’ advances to third parties is that these funds were lost to the marriage. It would be illogical to give them credit for the introduction of assets owned at cohabitation when the use each made of the funds meant the funds were lost. So that it is clear, although the mother discussed her decision to loan Mr P about $20,000.00 with the father, the decision was hers. It follows that each party made the decision to advance funds acquired by him or her respectively. Thus, although the father made a proportionally significantly larger initial contribution than the mother, when the use (losses) made of their initial contributions is taken into account, the gap between them narrows considerably.
The mother is an allied health worker. Her qualifications were not recognised in Singapore and it was only in 2002 that Singapore granted her permission to work (not in her field). From that time until shortly before the child’s birth, the mother was employed as an office worker for which she received SGD$15,065.74. This is the total sum the mother earned whilst the parties lived together.
When the parties began to live together the father was employed in the finance industry, in which occupation he continued to work until they moved to Australia. Between 2000 and 2002 he earned SGD$15,000.00 per month and from 2002 until 2004 again SGD$10,000.00 per month. These figures represent his gross income from which the father paid his personal expenses, the parties’ rent and outgoings. The mother’s income was used to meet her personal expenses. Indeed throughout cohabitation each party contributed all funds earned to joint matrimonial purposes.
When the parties migrated to Australia, the father earned around $150,000.00 per annum which included superannuation and a non taxable living allowance. He did not receive bonuses. Again, the mother’s qualifications were not recognised and for the first two years after their migration to Australia the father supported her while she undertook studies which resulted in her being given permission in June 2006 to work as an allied health worker. By this time the parties no longer lived together. From when the parties cohabited until they ceased living together the father’s financial contributions materially exceeded the mother’s.
From when the child was born the mother was primarily responsible for his care. She did not have paid employment and her time was fully devoted to the child and the parties’ home from his birth until the parties ceased living together. The mother accurately described the father as a doting parent who, when he was not at work, involved himself in all aspects of the child’s care. While his role as a parent was not insignificant in this respect while the parties cohabited, the mother’s care for the child materially exceeded his.
When the parties stopped living together in March 2006, their assets comprised the mother’s savings in Country 1, the father’s savings in Country 2 and Singapore, his Singapore superannuation (of unknown value) and assets they acquired in Australia. Essentially, the Australian assets comprised a VW Golf for which they paid $49,800.00, a Ducati motor cycle, furniture and electronics for which they paid approximately $15,000.00 and a RAV4 motor vehicle. They had savings in an Australian bank account of $8,659.00 which, by agreement, the mother retained. The mother retained the RAV4 and the father kept the motor cycle and Golf. The value of the RAV4 is reflected in the above table as the mother’s jeep. The father sold the bike (amount unknown) and car (for $35,00.00) which he replaced when he moved to Singapore. The replacement assets are included in the asset pool, albeit at a lesser net value.
From May 2006 until December 2007 the father paid the mother’s rent of $510.00 per week (total $40,800.00), as well as significant child support the details of which are set out at annexure J to the mother’s affidavit. This shows that from January 2008 until the date her affidavit was sworn he paid about $30,200.00. Otherwise, he retained the income earned by him and the mother retained the income she earned from mid 2006 as an allied health worker.
Post separation the child, as was mentioned earlier, lived with the mother and spent time with the father every week. At a minimum, the father spent time with the child each alternate weekend, on an ad hoc basis during the week for dinner and at some stage for block periods in school holidays. From when he returned to Singapore the father has spent time with the child in accordance with orders. The effect of this is that post separation the mother has made a significantly greater contribution as a parent.
As was earlier mentioned, on 11 December 2007 and again on 15 October 2008 the father advanced £25,000.00 (twice) to his step-father towards the acquisition and maintenance of a franchise. On 4 March 2009 the father loaned £5,500.00 to his step-father by way of an interest free loan which is repayable on demand. This enabled the franchise to break a commercial lease and thus contained what would otherwise have been a larger liability.
The father’s employment was terminated at the end of July 2009. Although he did not receive any redundancy payment, he received a lump sum entitlement. For the financial year 2009/2010 the father received a taxable income of $32,526.00, a significant component of which I infer, comprised lump sum entitlements. This was followed by a few months unemployment during which I infer the father lived on savings and the lump sum. Although the mother is critical of the father’s decision to look for work in Singapore, from a financial perspective this was a necessary, albeit difficult, decision. He could not afford ongoing unemployment and his financial prospects were and remain superior in Singapore compared to in Australia. When the father returned to Singapore he sold assets (car and bike) and incurred the re-establishment costs involved in setting up a new home in another country.
Post separation the mother acquired a motor cycle from income, I infer earned by her. Her superannuation has been acquired post separation from her income.
I do not know the extent to which the father’s superannuation grew post separation. It too would appear to relate to his employment in Singapore.
It will be recalled that the father owned shares when the parties commenced cohabitation. There is no evidence of the purchase by him of shares subsequently and I infer his shareholding at the date of hearing constitutes shares he owned at cohabitation, which have possibly been supplemented at no cost to him. His money in banks constitutes what remains from his initial contribution (Country 2 funds) and income subsequently earned by him. He was cross-examined at length about movements between his various bank accounts and how it is that he has relatively modest assets and savings. I accept his evidence that the parties’ expenses generally exceeded their income and, from March 2006, his expenses have exceeded his income. In essence, from when the parties moved to Australia financially they slowly went backwards. Since the father’s return to Singapore, he has regularly visited Australia to see the child. Averaged out, his costs of spending time with the child sit at about $30,000.00 per annum. This is in addition to the child support paid by him.
Post separation, the parties’ contributions are equal.
On balance, I am satisfied that the father’s financial contributions materially exceed those made by the mother and her homemaker and parent contributions materially exceed his. Neither party gave evidence of other contributions made by or on their behalf. In this case both types of contributions are equally important. However, while the significance of the gap in their initial contributions is materially reduced by the use to which the lost funds were put, the father still made a greater initial contribution than the mother. While I accept he used marital funds while he was unemployed and to re-establish himself in Singapore, this was appropriate. The effect of these findings is that, overall, the father made a slightly greater contribution than the mother.
The orders will not affect either party’s earning capacity.
Since separation the father has paid child support.
The overall effect of my findings expressed as a percentage of the net value of the parties’ assets as at the date of hearing, is that the father’s contributions and other factors favour him 53 per cent compared to the mother’s 47 per cent. This reflects a weighting in his favour in light of his greater initial contribution balanced with the parties’ respective contributions made in the years which followed and other s 79(4) factors.
Section 75(2) factors
The mother sought a 15 to 25 per cent adjustment pursuant to s 75(2) in her favour. She sought the higher figure if her add back argument failed and thus the asset pool was smaller than asserted by her. It was the father’s contention that there should be an adjustment no greater than 5 per cent. The adjustment pursuant to s 75(2) sought by the mother relied upon her being the child’s major carer into the future, the father’s greater earning capacity and the small amount of assets available for distribution. I understood the father to concede the first and third points but not the second. In circumstances where it is the mother’s preference to work four rather than five days per week, it was submitted by him that there is little difference in their earning capacity. He pointed out that he incurs significant costs in order to spend time with the child, he will pay significant child support and that because of the approach taken to formulate the asset pool, he will carry credit card liabilities.
The parties are in their early 40s and close in age. Each has reasonable health and is likely to remain in the work force for many years.
Including bonuses, for the 2010 calendar year the father earned $167,000.00. This comprised his current salary of SGD$172,000.00 plus bonuses. The payment of bonuses is entirely at his employer’s discretion. For the year to date the father has received two bonuses being SDG$64,050.00 and USD$7,500.00. The larger sum is a bonus paid this year but in relation to the last quarter in 2010. The father is optimistic he will continue to receive bonuses which, the trend to date would indicate is likely. In addition to his assets and liabilities set out in the asset pool he owes $17,000.00 on credit cards.
By working four days per week the mother earns $2,377.00 and receives $176.00 per week child support. The mother resides with her partner who works in a hospitality business owned by his brothers. He has no assets of value and since January 2011 has been unable to afford to meet his proposed half share of their rent. In short, the mother’s partner moderates her rental expenses by about $600.00 per month and otherwise contributes no more than what is incurred by the household for him. She has the assets and liabilities identified earlier.
The father has also repartnered but does not live with his girlfriend. They maintain separate finances and from a financial perspective, their relationship is irrelevant.
The mother’s expenses are set out in her Financial Statement filed 17 June 2011. This shows her most significant expenses are weekly rent of $1,075.00 and tax of approximately $684.00. Her partner contributes approximately $600.00 per month towards rent and strictly speaking is liable for half. Until the mother’s landlord required vacant possession of the apartment she rented at Sydney Suburb 1 in late 2010, she was able to afford her rent (about $500.00 per week) and other expenses from income earned by her. But for legal expenses she has incurred in these proceedings, she was able to meet her and the child’s reasonable expenses from her income and child support. I agree with the mother, that she cannot afford rent in the amount presently paid and her decision to look for less expensive accommodation when her lease expires at the end of 2011 will result in her again being able to meet her and the child’s necessary expenses from her income and child support.
From the father’s Financial Statement it is apparent his most significant expenses are also rent and income tax for which he pays $923.00 and $672.00 respectively each week. In addition, he has hire purchase loans for a car and bike of $416.00 per week and pays $176.00 per week child support. He incurs significant costs in order to spend time with the child. For some time, the father’s expenditure has exceeded his income and his capital position is gradually deteriorating.
The mother will have primary responsibility for the child’s care until he is 18. In The Marriage ofClauson & Clauson (1995) FLC 92-595, the Full Court held at 81,911:
…it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails…
The point being, notwithstanding the payment of child support by the father, that the mother will have primary responsibility for the child’s care for the best part of a decade warrants an adjustment in her favour and is a factor to which it is appropriate to attach reasonably significant weight.
As indicated earlier, it is argued by the mother that the father maintains an extravagant lifestyle whereas financially she struggles. However, when the child support paid by the father is deducted from his income and added to hers, the father’s gross income exceeds the mother’s by about $45,000.00 annually. It will also be recalled that the parties cohabited for about six and a half years during which time they enjoyed a comfortable standard of living. Since then, and until the mother rented her current property, she maintained a reasonable standard of living and, as I have earlier indicated, her necessary expenses were met. While I accept that the father has a more comfortable lifestyle, his standard of living results from him continuing to work in a location and field which he established years before the parties met. In circumstances where his superior earning capacity will result in an adjustment in the mother’s favour, as does her future care of the child, a further adjustment as a consequence of the parties’ standard of living is not warranted.
In relation to the mother’s earning capacity, I do not accept that absent child care responsibilities, she is unable to work fulltime. While she says she has never worked full time this is her choice and not a matter of capacity. However, the Act protects a party’s role as a parent and makes it appropriate that the mother works four rather than five days per week.
Section 75(2)(n) achieves a cross-referencing between s 75(2) and s 79(4). The outcome of the assessment of contributions and other factors has resulted in the father receiving 53 per cent of the available assets compared to the mother’s 47 per cent. Each will have superannuation interests of reasonably close value. Given the modest size of the asset pool an adjustment under s 75(2)(n) is not warranted.
Having regard to all of the s 75(2) factors, I find that it is appropriate that there should be an adjustment in the mother’s favour of 20 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s 75(2) (see Tomasetti & Tomasetti (2000) FLC 93-023). Any lesser adjustment, given the size of the asset pool, would be notional.
Section 79(2) – Is this outcome just and equitable?
Because the Court must consider the actual orders, not just the percentage distribution under s 79(2), justice and equity in cases like this requires that the Court stands back and looks carefully at the outcome of the s 79(4) and 75(2) process. It is at this stage that the Court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome which distributes the available assets 33 per cent to the father and 67 per cent to the mother is just and equitable. Simply put, these include her larger contributions as a homemaker and parent, which contributions have been given significant weight. The significance of the father’s greater initial contribution is diminished by the subsequent loss of $87,488.00 by monies advanced to his step-father’s franchise. I am conscious that the father has a slightly greater component of his assets in superannuation and it may be some time before his step-father repays the amount owed by him and included in the asset pool. However, his superior earning capacity will continue for many years. For about a decade, the mother will have the primary responsibility for the child’s care, which, as I earlier indicated, notwithstanding the significant child support which will be paid by the father, weighs significantly in her favour. Although, in percentage terms, this is more than was sought by the mother, her claim was calculated against a materially different asset pool.
The effect of these findings is that the father will pay the mother $21,576.75. It is appropriate that he has three months to organise his finances to do so. Any longer would require the mother to wait too long to receive money to which she is entitled.
The general law in relation to parenting applications
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underlie those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3. For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests: Goode & Goode (2006) FLC 93-286.
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, whether they be primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.
Determination of the child’s best interests
In Collu & Rinaldo [2010] FamCAFC 53, the Full Court pointed out that a number of s 60CC considerations potentially overlap. Their Honours explained that where, for example, considerations which deal with relationships overlap, it may be appropriate to consider the additional considerations first. In my view, where the considerations clearly overlap, it is also reasonable to discuss the overlapping considerations simultaneously. I will adopt this approach.
J is a delightful boy who is a credit to his parents and their parenting capacity.
The Family Consultant spoke with the child’s Year 3 teacher who said he is a ‘lovely’ and ‘sweet’ child who is a ‘capable and clever boy’. Whilst she said that he can be easily distracted and talkative in class, she has no concerns regarding his academic achievements, behaviour at school or of his ability to appropriately engage with peers. This evidence is consistent with that given by the parties and the Family Consultant.
To the Family Consultant, the child mentioned a number of times how much he loves each of his parents. Until he met the Family Consultant, he was stressed by the erroneous belief that it was his responsibility to make a decision about whether he lived primarily with his mother or his father. He made clear to the Family Consultant that he would like to live with both of them and that he did not know which parent to choose. To the Family Consultant he explained that he wanted to be able to “see a lot more of Dad” and it was clear to her that the child continues to miss the father. In a similar vein, he told her that his mother “doesn’t know how much I miss him [the father], I keep it a secret”. On the other hand, the child made it clear that he would feel “confused”, uncertain and sad were he to move to Singapore to live with his father and that he did not want to see less of his mother. It is beyond dispute the child loves his parents dearly and wants these strong relationships to be protected and promoted in the outcome. In this regard, his views warrant significant weight.
The Family Consultant observed the child with each of his parents and the mother’s partner. In relation to her observations, the Family Consultant reported at par 67:
Observations raised no concerns about the nature of [the child’s] relationship with either parent or with [the mother’s partner]. There were no indications of any difficulties present in these relationships. [The child] was observed to be affectionate with all three adults and to engage with each of them in a warm, relaxed and familiar manner.
I am strongly satisfied that the child enjoys meaningful relationships with each of his parents, which are fundamental to his wellbeing and the continuation of which is essential for his long term happiness.
The father’s application that the child lives with him was partly motivated by his concerns about the mother’s willingness to support his and the child’s relationship. To the Family Consultant and in his evidence, the father spoke about barriers he said the mother creates which limit easy Skype and telephone contact, her failure to consult him in relation to parenting issues, to facilitate the level of contact he sought in the early years after separation and to communicate with him about the child. He was particularly troubled about her earlier indication she may return to Country 1 (where she has family) with the child.
Although some of the father’s concerns have foundation, there is strong evidence of the mother’s genuine commitment to the child’s relationship with him. To the Family Consultant, she explained that the child is her “number one priority” and that she would never intentionally hurt him, which included not undermining his relationship with the father. It will be recalled, the child was not quite three when the parties separated and that the mother has been his primary carer. When this factor is combined with the child’s loving relationship with her, it is evident her influence over the child during his formative years has been strong. In other words, her powerful position in the child’s life gave her the opportunity to undermine the father’s efforts. That she did not misuse her position is apparent. That said, there are steps she could have taken (for example, taking the child’s telephone when they are out and a call is due from the father) which would have made for easier relations with the father and for him to stay in regular contact with the child.
Putting this to one side for a moment, in relation to the father’s undoubtedly strong commitment to the child, the Family Consultant said at par 86 of her report:
… that [the child] has been able to develop and maintain such a strong relationship with his father, appears to indicate, irrespective of [the father’s] concerns, that [the mother] does indeed value and support [the child’s] relationship with his father … It is difficult to imagine that [the child] would have been able to develop such a strong bond with his father over the intervening years if the mother, his primary carer, was not in some way supportive of this relationship.
I agree with these observations. In my view the strength of the child’s relationship with the father demonstrates it has and will continue to have the mother’s active support.
However, even with the mother’s support, unless the child and father have sufficient time together, the joy which the child has in his relationship with his father may be threatened. The child felt deeply the loss of weekly contact when the father returned to Singapore to live and was anxious and sad about what this might mean for their relationship. The Family Consultant and the mother agree the child was emotionally traumatised by his father’s departure. It is beyond dispute that the child was devastated by the father’s relocation and that to a considerable extent, it fell to the mother to nurture and guide the child through that difficult time. Were she ill-motivated, she might have adopted a less child-focussed approach.
It is, however, fundamentally important for this child that the future parenting arrangements do not challenge his recovered confidence that both of his parents will remain significantly involved in his life. Unless the parenting arrangements put that issue beyond doubt, the thrust of the Family Consultant’s evidence is that the child’s emotional wellbeing may be seriously compromised. I agree with her that the child “having already experienced the significant loss of one parent at a young age” renders him “more susceptible to experiencing exacerbated feelings of loss, sadness and/or grief in response to future trauma/stress”. These are matters to which I attach significant weight.
The 1 July 2011 consent orders vary the frequency with which the child spends time with the father. The father’s thrice weekly trips to Australia will cease in favour of longer stays during term and a rearrangement of school holiday time. The parties remained at odds about the father’s desire to spend four weeks with the child during the Christmas school holidays and unless the mother planned to travel overseas with the child to have one week in each alternate June/July school holidays.
As is probably apparent, it is likely the father will continue to reside in Singapore. The mother does not propose to return to Country 1 to live and it is likely she will continue to live in Australia. Her family are in Country 1 and the paternal family lives in Country 2. The parties are keen that the child maintains these extended familial relationships and, in order to do so, the child will visit those countries. The father’s employment involves international travel which includes two or three trips annually to Country 2/Europe. He anticipates that he may be able to dovetail work trips with family visits. The point being, it is quite likely that the father could take the child to Country 2 most years. The mother, on the other hand, says she is unlikely to afford regular visits to Country 1 and, by way of example, said it had been four years since her last visit. As I understood her evidence, she opposed the father having orders in his favour for the child to spend four weeks during the Christmas school holidays with him because this would mean she would have no more than two weeks within which to make the return trip to Country 1. I agree distance and cost requires that she have at least three and preferably four weeks for trips to Country 1 with the child.
The mother’s financial circumstances and pattern of visits to Country 1 persuades me she is unlikely to take the child to Country 1 more than once every three years. Provided the orders enable her to do this, giving the child the opportunity for longer periods with his father and to visit paternal relatives in Country 2 in the other years facilitates the child’s relationship with his Country 2 and Country 1 relatives, and reasonably regular block periods with the father. If the mother does not take the child to Country 1, the father will have the longer period. As both parties need to make arrangements with employers and for travel well in advance, the mother will need to give the father four months notice of her intention to take the child to Country 1.
In relation to June/July school holidays, it was agreed that in the alternate year the child would spend these holidays with the father. In terms of the child’s time with the father in the other year, the effect of the mother’s proposal would be that there could be a 10 week gap of contact for the child and father. Such an approach is inconsistent with the child’s desire for contact with his father and positive reinforcement that the father remains an important part of his life. The approach taken by the father would enable the mother to take short holidays overseas with the child similar, for example, to their trip to Bali. Otherwise, she would still have half the July school holidays with the child. On the father’s approach, the mother would still spend significant school holiday time with the child annually.
On balance, notwithstanding that the orders proposed by the father in relation to school holidays result in the child spending more school holidays with him, the father’s approach strikes the right balance between promoting meaningful relationships between the child and his parents, good relationships with grandparents and other family members with the practical difficulties which arise because the parties live in different countries. These changes to the child’s circumstances would not adversely affect the child’s relationship with the mother.
There is a surprisingly intense dispute about which of the parties should retain the child’s Country 2 passport. The child has Australian, Country 2 and Country 1 citizenship and holds passports issued by each country. The mother retains the child’s passports and has made his Australian passport available when the child has travelled internationally with the father. In this regard, the child and father have travelled together (without the mother) to Country 2 and to Singapore. The father has not attempted to withhold the child overseas nor in the six years of regular contact in Australia. The father impressed as a responsible parent who supports the child’s relationship with the mother. No matter which passport the child travels on, I am strongly satisfied the father will return the child to the mother in accordance with the orders.
As I understood the mother’s argument, an Australian citizen can only depart Australia and return on an Australian passport. She did not present evidence which supports this proposition. The father, who travels on a Country 2 passport, gave evidence that on entry to Country 2 the child was unable to use the European Union entry channels which meant much longer queues on arrival. Because the child is more likely to travel to Country 2 and elsewhere with the father and the father travels on a Country 2 passport, I am satisfied that the father should retain the child’s Country 2 passport. This is likely to mean that when the child meets the father overseas, he will use his Australian passport to that point and thereafter travel on his British passport. As has been the situation to date, the father shall return the child’s Australian passport to the mother.
There is an issue about when the child might travel unaccompanied internationally, the extent to which a parent must travel with him and allied changeover issues. In my view, unaccompanied international travel requires a cautious approach. Although airlines do their best to avoid problems, they can arise. Airspace can be shut down on short notice and planes diverted to unplanned destinations. Disruptions can make it difficult to make the planned destination. Even an experienced child traveller can become anxious about these types of events. Another factor that compels caution relates to the child’s development. Although this child is well behaved and compliant, it is appropriate to wonder what challenges puberty will present. Will he be a risk taker? Will compliance be the norm? In short, there are too many unknowns that even direct unaccompanied flights between Australia and Singapore would be unwise before the child is 14.
These matters are also relevant to the father’s proposal that the child may travel without a parent but in the company of nominated adult acquaintances. The father named a selection of adult friends (some are known to the mother) who regularly travel between these destinations. Of those known to the mother, there was no suggestion any are inappropriate. She did point out, however, that when the child was six he became distressed on a plane when the father left him to use the toilet. No similar issues have arisen subsequently and this incident does not influence my deliberations. The child is mature enough to understand his parent’s instructions and expectations of him travelling with an adult other than them. The father’s responsible attitude to parenting ensure he will only nominate a responsible person who he is confident will competently care for the child. In circumstances where the parties do not have unlimited funds, the father’s approach makes it easier to ensure the child will spend time with the father as often as expected in the orders. I will discuss later the parties’ communication difficulties. To limit the risk of dispute, the father will be able to nominate the person who will accompany the child.
Changeover arrangements are also problematic. In essence, the mother wishes to maintain the current arrangements, whereas the father seeks her assistance to facilitate some changeovers at Sydney Airport. The mother prefers not to have to see the father and explained her financial circumstances mean she cannot afford to lose pay to facilitate changeover. More than once, she expressed the opinion that changeover and contact difficulties only arise because the father put his career ahead of his parental obligations when he returned to Singapore. In other words, he created a problem which she should not be required to solve. I do not agree with the mother’s analysis and in this instance her generally sound judgment failed her. On those occasions when the father will spend time with the child in Australia, there is little additional effort required from him to deliver and collect the child from school or home. This arrangement has worked well and other than minor time changes, which will make it easier for the father to adjust times when he is flying, there is no good reason for change. To avoid problems for the mother with her hours of work, the father will need to give her 21 days notice. However, when the child is travelling internationally, it is far more practical for the mother to collect and receive him at the airport. On these occasions, the child will usually travel with a third party adult or unaccompanied. A third party might be harder to persuade if he or she is also required to collect and deliver the child from the mother’s home. This type of changeover is unlikely to occur more than four times annually. The mother should be able to arrange changeover personally or with her partner’s assistance without undue difficulty or cost to her.
The next issue relates to internet use, email access and continuance or closure of a blog established by the father. Presently, the child does not have his own computer and uses his parents. Each agree that his computer use and access to the internet should be strictly monitored and protections put in place to keep him safe.
In late 2009 the father established a blog on which he recounts his time with the child. Members of his family and close friends, including the mother, are thus able to follow his and the child’s activities. The mother is unhappy about the blog and troubled that persons unknown to the family may identify and target the child. Although the father was adamant that he carefully vetted photographs and information so as not to disclose information which may enable strangers to find the child, he conceded in cross-examination that one blog photograph identified where the child attended school. This is interesting in a number of respects. Firstly, the mother scrutinised the blog and, although this photograph had been uploaded over 12 months ago, she did not bring this to the father’s attention. Secondly, this is the sole example of a flaw in the father’s vetting. Thirdly, even with careful vetting a cyber security breach can happen. Of course, once information is published, even if the security breach is rectified, it cannot be retrieved.
Provided the blog is password protected and access limited to trusted friends and family, the child’s safety and anonymity would be protected. Protection will be enhanced if the blog does not carry the child’s name. Unless these conditions can be met, the father will be required to close the blog and use another form of social media (anonymised and password protected) to maintain this type of intra-family communications.
Until the child is in high school and has his own computer, it is appropriate he uses the mother’s email address to communicate with the father. The point is not that she scrutinise their communication but that the child does not establish a line of communication on the internet which is beyond her control. In other words, an email address the child might establish to communicate with the father could just as easily be used by him to communicate with others. Whether the child is mature enough to have his own email address when he reaches high school is something the parties can resolve with the child at that time.
There are other specific orders sought and opposed by each party. This includes orders in relation to Skype (which happens and will continue to happen), contact by the child with paternal relatives whilst in the mother’s care, orders about the father’s accommodation in Australia, use of mobile telephones and the like. None of these ancillary orders are necessary. Orders of this type also create the opportunity for dispute and increase the prospect of litigation.
Prior to separation the parties were able to make major long term decisions jointly. Post separation their communication has been problematic and in the last 18 to 24 months, predominantly undertaken through lawyers. As is evident by this litigation, post separation, they have been unable to agree upon the complex parenting issues faced by them. The mother is unhappy that the father refused his permission to change the child’s school to one which, in the same area, provides before and after school care. In this regard, there are good reasons associated with the child’s welfare for the stance adopted by each party. The father is unhappy she nominated Italian and not also Mandarin for the child’s study. In the context of disagreement about the level of child support which the father should pay, there is evidence of disagreement about the child’s extra-curricular activities and whether he required a nanny.
Although the process has been tedious for them, the child’s interests and needs have not been compromised by the parents’ communication difficulties. It is self-evident that through this hearing process, the parties reached agreement about significant major long term issues. Indeed, they have grappled with extremely complex parenting issues and shown that by focussing on the child; they agree on what is best for him. So that it is clear, I am strongly satisfied both parties treat seriously their parental responsibilities and have the capacity to contribute in a real way to sound major long-term decisions.
When making parenting orders, the Court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied that an application of the presumption would not be in the child’s best interests. Where the presumption is rebutted the Court may, if it is in the child’s best interests, order equal shared parental responsibility.
The father gave evidence of conduct by the mother which falls within the definition of family violence used in the Act. To the Family Consultant, the mother denied violence by her and said she once hit the father when, during an argument, he dared her to. This issue was not explored in cross-examination and I infer the parties agree that whatever occurred in this regard so many years ago is irrelevant. If the father believed there was a risk the mother might engage in family violence, he would not have agreed that the child live primarily with her. Thus, although the presumption does not apply, it is necessary to consider whether it is in the child’s best interests for the parties to have equal shared parental responsibility or, as is sought by the mother, that she have sole parental responsibility.
In support of her argument for sole parental responsibility, the mother emphasised the difficulties with the parties’ communication and their conflicted relationship. She is clearly irritated by the volume of email traffic from the father about the child and what she perceives as his unreasonable demands for information about their son. The mother correctly regards herself as a capable parent and views the father’s comments as unnecessarily critical. She gave as examples, an SMS message received in the early hours of the morning which sought the child’s head size. Another related to questions when the child had impetigo. The tone of the father’s affidavit will not have assisted her to view more generously his requests for information about the child. However, both she and the father have the intelligence and capacity to put past unhappiness behind them and, now that these proceedings are finalised, adopt a more constructive style of communication. Both will have reflected upon their son’s discussion with the Family Consultant about his understanding of their poor relationship and his desire in this regard for something better. In all likelihood there will be a myriad of opportunities for them to share their son’s success. He would be thrilled to have both parents share his achievements with him. Not one at a time but together. I intend only to convey this to the parties as I consider it is within their gift.
In the meantime the parties will need to adopt an easier style of communication. This means not peppering each other with unnecessary demands for information and promptly responding to reasonable requests for information. I have no doubt the parties communicate respectfully with others and have the capacity to adopt the same approach with each other.
I am strongly satisfied that an order for equal shared parental responsibility is in the child’s best interests. I do not accept such an order is likely to provoke further litigation and view the alternative as being more likely to have that effect. In short, it is in this child’ best interests to have the benefit of both of his capable and loving parents input into decisions encompassed by an equal shared parental responsibility.
Because there will be an order for equal shared parental responsibility, it is necessary to consider equal time and then substantial and significant time. I agree with the parties that equal time is impractical and substantial and significant time is appropriate. Both the consent orders and those which are contentious satisfy the definition of substantial and significant time and each are reasonably practical. For reasons which do not need to be restated in relation to time, in relation to the contentious matters as to time the father’s achieve the most positive impact on the child.
For these reasons, I am satisfied that the parenting orders identified at the start of this judgment are in the child’s best interests.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 July 2011.
Associate:
Date: 15 July 2011
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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