TEMORE and MITCHELL
[2019] FCWA 130
•14 JUNE 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: TEMORE and MITCHELL [2019] FCWA 130
CORAM: O'BRIEN J
HEARD: 20, 21, 22, 25 & 26 MARCH 2019
DELIVERED : 14 JUNE 2019
FILE NO/S: PTW 1906 of 2018
BETWEEN: MS TEMORE
Applicant
AND
MR MITCHELL
Respondent
Catchwords:
PARENTING - Where parties lived in [Country A] prior to separation - Where children have lived with husband in [Country A] since separation and are settled - Where wife seeks that the children live with her in Perth - Where husband unlikely to continue employment in [Country A] in the long-term - Consideration of evidence as to the children's relationship with each parent and their expressed views - Turns on own facts.
PROPERTY - Where extent and value of property agreed - Narrow dispute as to contributions - Dispute as to add backs and impact of factors considered pursuant to s 79(4)(d) to (g) - Turns on own facts.
SPOUSAL MAINTENANCE - Where threshold requirement not established.
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Beckerling |
| Respondent | : | Ms Farmer |
Solicitors:
| Applicant | : | Loukas Law |
| Respondent | : | West End Legal |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204
Gollings & Scott (2007) FLC 93-319
Hall & Hall (2016) FLC 93-709
In the Marriage of Kowaliw (1981) FLC 91-092
Norbis & Norbis (1986) 161 CLR 513
Trevi & Trevi [2018] FamCAFC 173
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Temore] (“the wife”) and [Mr Mitchell] (“the husband”) have been unable to agree the arrangements to be made for their daughters [Child A], born [in] 2006, and [Child B], born [in] 2008. They have also been unable to agree on the division of their property. Their financial dispute extends also to an application by the wife for spousal maintenance.
2Prior to their separation, the parties lived with the children in [Country A] where the husband is based in his employment. Following the separation, the wife moved to Perth. The children presently live with the husband in Country A and spend time with the wife.
3The husband proposes that the children continue to live with him in Country A, or any other place to which he might subsequently choose to move in his employment. The wife proposes that the children live with her in Perth.
4The property dispute is uncomplicated. To the credit of the parties, the identification of their existing interests in property and the value of those interests were largely agreed. On the husband’s case, the contributions of the parties should be assessed as equal; on the wife’s case, those contributions should be assessed slightly in her favour to reflect her receipt of an inheritance during the relationship. The husband concedes that an adjustment in favour of the wife to what would otherwise be her contributions based entitlement should be made, primarily to reflect the significant disparity in the earning capacities of the parties. On his case, that should result in an outcome whereby the wife receives 57.5 per cent by value of the property and superannuation of the parties. On the wife’s case, she should receive 65 per cent.
5The wife’s application for spousal maintenance is opposed. The husband does not concede that the wife is unable to adequately support herself, and asserts that she is not fully exercising her earning capacity.
Background
6The husband was born in 1970. He works as [an] [engineer], and is presently employed by [Company A]. He has been based in Country A since May 2014.
7The wife was born in 1972. She is qualified as a [teacher], but presently works part-time as a [child-care worker] in Perth.
8The parties began living together in August 1993, and were married [in] 1998. In the early years of their marriage, the wife graduated from the [teaching] program and the husband graduated from university with qualifications in [engineering].
9In early 2003, the parties moved from Perth to [State A]. Both worked full-time with [Company B]. In June 2009, the husband was offered a position in [Country B], and the parties moved there. They returned to live in State A in January 2014.
10In May 2014, the parties moved to Country A to enable the husband to take up a new job. In early 2017, the husband told the wife that he wished to end the marriage. The wife left Country A to visit Perth [in] April 2017, returning to Country A [in] May 2017. She then left Country A permanently in July 2017. The husband and the children accompanied her to Perth on that occasion, the husband staying in Perth for a few days, and the children until August 2017. At that point, by agreement the children returned to Country A and the wife remained in Perth.
11The children have lived in Country A with the husband since then, spending time with the wife as outlined in more detail later in these reasons.
12The events leading to that circumstance were matters of contention at trial. On the wife’s case, she left Country A with a clear understanding that it was agreed that the children would follow and live with her in Perth once she had arranged appropriate accommodation and schooling. On the husband’s case, there was no such agreement.
13The wife commenced proceedings [in] March 2018. The parties agreed at an early stage of the proceedings that [Dr W] should be appointed as single expert witness in the parenting case. Interim orders were made by consent for the children to spend time with the wife in Australia, and for the payment by the husband of an amount of $100,000 by way of “partial property settlement”. Subsequently, further interim orders were made for an additional payment by the husband to the wife of $170,000 on the same basis.
14Appropriately, the parties attended private mediation in an effort to resolve the dispute if possible. An order was made [in] October 2018 dispensing with the requirement for a conciliation conference on that basis. Further orders were made by consent [in] March 2019 for each party to receive $75,000, again characterised as “a partial property settlement”.
15The matter then progressed to trial as quickly as could be accommodated by the court.
Relief sought by the parties – parenting
16The wife sought an order for equal shared parental responsibility. She proposed that the children live with her unless the husband chose to relocate to Perth, in which case she proposed a week about equal shared care arrangement. In the event that the husband did not choose to live in Perth, she proposed that the children spend two thirds of each school holiday period with him, and that he meet the relevant travel costs. She also proposed that the children attend as day scholars at [School A] or an equivalent agreed school.
17Otherwise, the wife proposed detailed orders in relation to special occasions, travel, communication during school terms, and injunctions restraining the husband from changing the place of residence of the children to anywhere other than Country A or Perth in the event that orders were not made for them to live with her.
18The husband sought an order for sole parental responsibility, and that the children live with him. In the event that the parties lived in the same location, he too proposed a week about equal shared care arrangement during school term. In the event that the children live with him, he proposed that they spend time with the wife for two weeks during two of the three school holiday periods which occur in the academic year in Country A, for 4 weeks in the longest of those holiday periods, and at such other times as might be agreed. The minute filed with his Papers for the Judge did not specify by whom he said travel costs for the children should be met. He otherwise sought various orders in relation to special occasions, Skype communication and the like.
19To their credit, the parties were able to agree a number of parenting orders which are to be made, regardless of the outcome in relation to the central issues. Those orders will be incorporated in the proposed orders which appear at the end of these reasons.
20It was also common ground that the statutory presumption of equal shared parental responsibility applies in this case.
Relief sought by the parties and identified issues – financial
21The husband sought orders for each party to retain their personal property, shares, savings, superannuation, and responsibility for their personal liabilities. He otherwise sought orders to distribute monies in joint bank accounts such as to see the wife receive 57.5 per cent by value of the property and superannuation of the parties, after taking liabilities into account, and adding back payments made by way of interim property settlement for the purposes of calculation.
22He sought the dismissal of the wife’s application for spousal maintenance.
23The wife sought orders for the return to her of certain chattels. Counsel for the husband advised that there was no dispute in that regard, but only a minor dispute as to which party should be responsible for the costs associated with transporting the items from Country A to the wife in Perth. The wife otherwise proposed that each party retain their personal property, savings and superannuation, and responsibility for their personal liabilities. She otherwise sought orders to distribute the monies in the joint bank accounts such as to see her receive 65 per cent by value of the property and superannuation of the parties, after taking liabilities into account, and adding back legal fees paid by both parties for the purposes of calculation.
24She also sought an order that the husband pay her spousal maintenance in the sum of $1,625 per week for a period of four years.
25As noted above, the existence and value of the property and superannuation of the parties, and the extent of their liabilities, were agreed prior to trial. The only disputes in relation to the establishment of the asset pool for the purposes of calculations related to the appropriate treatment of monies received by way of interim property settlement, and the appropriate treatment of paid legal fees. In relation to the latter point, it was common ground that the wife’s legal fees had been paid from capital which would otherwise have been available for division between the parties. The husband’s legal fees were said to be paid by him from post separation income; the wife nevertheless argued that the amount of those fees should be notionally added back for the purposes of calculations.
26Neither party sought an order for superannuation splitting. The husband has significantly more in the form of superannuation than does the wife, and will accordingly retain a significant proportion of his overall entitlement in a deferred form. He argued that should properly be taken into account in determining what overall orders for alteration of property interests are just and equitable.
27The parameters of the dispute between the parties in relation to the assessment of contributions, the proper effect of a consideration of the factors set out in 79(4)(d) to (g) of the Family Law Act 1975 (“the Act”), and the wife’s application for spousal maintenance are as earlier outlined.
The law – the parenting case
28The parties were married. The proceedings therefore fall to be determined pursuant to the Family Law Act 1975 (Cth) (“the Act”). The Court must be guided by the objects of Part VII of the Act and the principles underlying them.
29Parental responsibility is defined in s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 61C, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.
30Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence. If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
31If an order for equal shared parental responsibility is to be made, I am required to consider whether the children spending equal time with each of their parents would be in their best interests, and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
32Again, against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in their best interests and reasonably practicable. If so, I am required to consider making such an order.
33In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.
34The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no relevance in the particular circumstances of the individual case. [1]
[1] Banks & Banks (2015) FLC 93-637.
35Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part VII of the Act. The additional considerations set out in the legislation:
… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[2]
The law – the property case
[2] Bondelmonte & Bondelmonte (2016) 259 CLR 662, 77,094 [32].
36The Court has a wide discretion conferred by s 79(1) of the Act. That discretion must be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets are or should be different from those determined by common law and equity.
37The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests. That requirement is readily satisfied in most cases, including this one. The parties have been separated for a considerable time, and both seek to discontinue their joint ownership of property.
38In determining what orders will be just and equitable, the Court’s power is not confined by any “steps” or “stages”. Having said that, a court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties (to the extent the evidence permits), takes into account their respective contributions (including contributions to any assets which have ceased to be owned by them), assesses the factors in s 79(4)(d) to (g) of the Act (to the extent they are relevant), and considers whether the proposed orders are just and equitable.
39The Court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself (other than in an atypical case) to a strictly mathematical approach. The holistic approach to the assessment of contributions accommodates the wide range of factual scenarios dealt with by the Court.
40There is no presumption that, even over the course of a long marriage, the contributions of the parties are to be regarded as having been equal. There is no requirement for an entirely discrete consideration of the impact of initial financial contributions, nor that the contributions of the parties be quantified at a particular past moment in time, whether by reference to the date of commencement of cohabitation or, for that matter, the date of separation.
41Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of the factors in s 79(4)(d) to (g), although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.
42In this case, as in many others, issues arose as to the appropriate treatment of property no longer owned by the parties, but which was owned by them prior to separation. While the court’s power is only to adjust existing interests in existing property, circumstances often arise where the disposal of property post separation must be taken into account if a just and equitable order is to be made.
43Broadly, there are two approaches which may be taken. The court may notionally “add back” the value of disposed property, merely as an aid to calculation in determining the appropriate division of existing property. Alternatively, and without notionally adding back, the court may take the disposal of property into account pursuant to s 75(2)(o).
44Adding back is the “exception rather than the rule”.[3] Reasonably incurred expenditure does not usually come within accepted categories of add backs.[4]
[3] C & C [1998] FamCA 143 [46].
[4] Trevi [2018] FamCAFC 173, 78,454 [29].
45As the Full Court observed in Trevi:
Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.[5]
[5] Ibid, 78,454 [30].
46Paid legal fees “occupy a particular position in the consideration of add backs by reason of s 117(1) of the Act”.[6] Against the background of s 117(1) the court is alert to consider notionally adding back legal fees paid from monies which would otherwise have been properly available for division between the parties, and were not generated by one party post separation from his or her own endeavours, so as to avoid a contribution by one party to the legal fees of the other, other than by a proper application of s 117(2).[7]
The law – the spousal maintenance case
[6] Ibid, 78,455 [36].
[7] Chorn & Hopkins (2004) FLC 93-204.
47Section 72(1) of the Act provides that a “party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support him herself or himself adequately… having regard to any relevant matter referred to in s 75(2).”
48Any such liability is then “crystallised by the making of an order under s 74(1)”,[8] which provides that the court may make such order as it considers proper.
[8] Hall & Hall (2016) FLC 93-709, 81,450 [4] (‘Hall’).
49In exercising the power conferred by s 74(1), the court is required to take into account only those matters referred to in s 75(2).
Evidence relied upon
50The wife relied upon the following affidavits:
(a)Her trial affidavit filed [in] October 2018;
(b)Her responding affidavit filed [in] October 2018;
(c)Her updating affidavit filed [in] February 2019;
(d)Affidavit of [Ms A] filed [in] October 2018; and
(e)Affidavit of [Ms R] filed [in] October 2018.
51The husband relied upon the following affidavits:
(a)His trial affidavit filed [in] October 2018;
(b)His further affidavit filed [in] February 2019;
(c)Affidavit of [Ms S] filed [in] October 2018;
(d)Affidavit of [Ms M] filed [in] October 2018;
(e)Affidavit of [Ms T] filed [in] October 2018;
(g)Affidavit of [Ms B] filed [in] October 2018; and
(h)Affidavit of [Mr C] filed [in] October 2018.
52Dr W provided 2 reports, dated July 2018 and February 2019; both were in evidence. He also provided a written response to questions put to him by the solicitors for the wife; both those questions and his answers were in evidence.
53All witnesses other than Mr C were required to present for cross examination, and did so.
54The wife gave her evidence in a clipped and cautious manner. Even allowing for the understandable stresses associated with trial, the degree of reserve which she displayed in giving evidence was notable. That said, she presented as endeavouring to give her evidence honestly, and made various concessions without apparent hesitation.
55The husband was more expansive, while still presenting as somewhat cautious. Again, he presented as endeavouring to give his evidence honestly. He too made various concessions without apparent hesitation.
56As will appear later in these reasons, I conclude that the parties have very different personalities and levels of insight. In many instances, where their accounts of events conflict, that is likely reflective of their different perceptions and interpretations of those events, rather than either giving evidence other than honestly.
57The children’s teachers, Ms T and Ms B, both gave their evidence in an open, balanced, direct and matter-of-fact way. Both were impressive witnesses.
58The husband’s [employee], Ms S, also gave her evidence in a direct and apparently honest manner. While it was suggested that her evidence was tailored in favour of the husband because of her desire to retain ongoing employment with him, I reject that suggestion.
59The wife’s friend, Ms R, while presenting as nervous and cautious, answered questions directly and honestly. Similarly, the wife’s friend, Ms A, who gave evidence by video link from [Country D], presented as a witness who endeavoured to answer questions directly and honestly. Her evidence was essentially unchallenged.
60The husband’s mother, Ms M, presented for cross examination. She gave her evidence in a straightforward and open manner, while becoming somewhat defensive when challenged on the gratuitous comments about the wife made in her affidavit. While I regarded her as an honest witness, it was apparent both in her affidavit evidence and on her presentation at trial that she was very conscious of the case sought to be established on her son’s behalf, and had a tendency to go beyond simply giving evidence, rather seeking to argue that case.
61Dr W gave his evidence in a professional, considered and direct manner. His observations and conclusions were explored, rather than challenged, in cross examination.
The parenting case – the primary considerations
62While the nature of each child’s relationship with the parties was a matter explored in some detail in evidence, and is referred to further below in the context of the additional considerations set out in the legislation, it is clear that each child has a relationship with each parent that is meaningful to the child, and to her benefit. While neither party made that express concession in their Papers for the Judge, each proposed a week about equal shared care arrangement, if their geographical circumstances permitted. In those circumstances, neither could contend that the relationship of either child with the other parent was anything but meaningful and beneficial to the child.
63Equally, neither party suggested that orders need be crafted to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. While the wife raised some suggestion on the Papers that the husband posed a psychological risk to the children, that was not pursued at trial.
The parenting case – the additional considerations
64Understandably and appropriately, there was considerable focus at trial on the views expressed by the children and the weight to be given to those views.
65Dr W first met with the children during the May holidays in 2018. He described them as being “quite delightful” to interview, and as “intelligent girls” with a “broad knowledge” and a “dynamic interest in life”. Both girls reported feeling better and happier since their parents had separated, explaining that the situation was more peaceful since the wife had left and was “no longer shouting at them”.
66Both expressed a strong positive view towards the husband, being quite protective of him, and described feeling very comfortable with him looking after them. Dr W expressed some concern that their views of the husband indicated some idealisation.
67Both girls readily expressed that they loved the wife, but both expressed some degree of hesitation in that regard. Child A, more than Child B, was missing the wife.
68Dr W expressed the opinion that one reason for that presentation was that the children could be simply reporting the “reality of the situation, namely a mother who tended to shout and a father who aligned with [them] against the mother, so he was the protective one and the mother was the ‘bad’ one”. Another explanation might be “along the lines of an alienation dynamic”; Dr W initially found features in Child B’s behaviour in particular which supported that as a significant possibility, but later concluded to the contrary.
69He summarised his initial views as follows:
“From a psychological perspective I am quite certain that both aspects are present in this assessment, namely the way in which the father has dealt with the issues is causing alignment of the children, and that the mother’s behaviour being different from the father’s has created some grounds for conflict. I am not able to offer a finding as to how much weight should be put on which factor, but I can say for certainty that the children’s behaviour is not simply a product of the mother’s actions but is, to some part, the father’s actions”. (sic)
70While emphasising to the children that they should not have to choose between parents, Dr W placed five scenarios before them. The first was that they stay in Country A on the then current arrangements. Child A said she was “fine with that”, while missing the wife, and rated that option 8/10. Child B said “I like it, it’s quite fine, I have my friends, it’s good” and rated that option 7/10.
71The second option put was the prospect of living with the husband in another country, but not likely in Perth. Child A said she would be scared at starting at a new school and with new friends, but would be happy to be staying with the husband, albeit a little sad if it was on the other side of the world such that she would not be having holidays with the wife. She rated that option 7.5/10. Child B said it would be fine but did not want the other country to be too far away so as to make it hard to visit the wife, and rated the option 5/10.
72The third option put was the possibility of the husband moving to Australia. Both girls were enthusiastic about the prospect of having more time with both parents in that scenario, and rated it 8/10.
73The fourth option put was that the children attend boarding school in Perth, spend time with the wife on weekends, and spend time with the husband during holidays. Child A said she had always liked the idea of boarding school and rated that option 7.5/10. Child B referred to concerns about the “fairness” of any arrangement as between the parents, but rated the option of later attending boarding school highly once it was explained to her.
74The fifth option put was that the children live with the wife in Australia and visit the husband in holidays. Child A said she would feel sad at having to leave the husband, and would not like having to attend a new school and find new friends. She said she would be happy with the wife “as long as it doesn’t turn out like the [Country A] situation, because that would be worse [in the absence of the husband and [his employee]] and if it was the shouting mummy it would be the worst outcome”, before rating the option 7.5/10. Child B thought that on that option “we may argue more than we do now. Mum doesn’t know that we don’t want to live with her in Perth, we haven’t told her. We wouldn’t see our friends as much” and rated the option as 4/10.
75Dr W met with the children again in February 2019. He interviewed them twice – once after they had been with the husband, and once after they had been with the wife for a weekend. Again, both girls presented as intelligent and capable of communicating to adults.
76Dr W described the “most notable aspect” of the interviews as being that both girls “reported and appeared to be much happier and more stable than when [he] saw them last”. He thought that the passage of time since separation had been helpful, as had the fact that they had continued their life in Country A as before, while still having the opportunity to spend time with the wife.
77He described some guardedness on the part of both girls, more particularly Child A. He expressed the view that a presentation of that nature “occurs most commonly when children are concerned that the information they are providing may in some ways upset or hurt somebody.”
78Child A spoke about her preference being to still live with the husband in Country A. She was still cautious around the time to be spent with the wife saying that she did not “want it to go back to where it was before.” She said she would still like to come to Australia to see the wife, but also spoke about enjoying having school holidays with the husband. Her plan would be to stay in Country A and attend [School B], an international school about an hour from home.
79Child B was described as being “a little bit more forward than Child A when it came to discussing issues”. She was enjoying living in Country A with the husband and saw the situation as being good for her. She said that the husband encourages her to make contact with the wife and that she talks or texts her most days. She then went on to say that she would want to live with the wife without Child A, saying she would “probably be better friends with [Child A] and [she] would do better at school because [Child A] is a distraction”.
80She also felt that it would be fair for the parties if they had one child each.
81Dr W found that change somewhat surprising, given Child B’s conflicts with the wife. When he discussed with her a range of options he concluded that “there is actually not a lot of difference in the strength of desire between living with [the wife] in Australia, living with [the husband] in [Country A], or her plan of living with [the wife] while [Child A] goes off to boarding school.”
82He expressed concerns about Child B looking for “fair” solutions, and about discrepancies between her recount of conflict with the wife and Child A’s recount of the same events.
83Dr W concluded that both children love their parents. He described Child B as appearing to be desperate to have a relationship with both parents, but particularly the wife, while Child A prefers the relationship with the husband but “is still quite capable of a relationship” with the wife.
84In his evidence at trial, Dr W described the girls as having a little bit of conflict but otherwise being “quite close”. In relation to not only his observations of Child B, but the wife’s evidence as to Child B’s more recent expressions of her views, he said:
“… It was quite clear that the biggest problem between the mother and the children was the mother and [Child B]’s relationship and that was where the absolute most conflict was described as taking place… [Child B]’s desire to realign with the wife] was suggesting that she was wanting to get something from her mum which she wasn’t getting emotionally or something but, again, I couldn’t get her to articulate.”
85He also described the conflict between the wife and Child B being a significant component of what had historically upset Child A.
86He went on to say:
“[Child B] is going to bounce around irrespective of what happens. So if she goes and lives with her mum will probably have, you know, at some point saying she wants to go live with dad. If she stays with dad she will be having times where she wants to go live with mum. That’s the nature of [Child B]. [Child A] will actually have a harder time if she was relocated because the dynamic between the two parents has caused her to have trust issues around her mum and she gets spiked. So she loves her mum but there is a degree of fear which has come about because of that dynamic. So I believe [Child A] would have a harder time adjusting. [Child B] will have problems wherever she stays, occasional problems.”
87Dr W concluded that the Court should put some weight on the children’s views but that “they don’t have the open thinking, sort of, brains to put a lot of weight on [them].”
88Taking into account not only the evidence of Dr W, but also the evidence of the parties as to the children’s expressions of their wishes and views, I conclude that Child A is clear in her wish to remain living primarily with the husband, while maintaining frequent holiday and other contact with the wife. I conclude further that while Child B is happy living with the husband, she is more ambivalent in her wishes, both because of a perceived need to be “fair” as between her parents, and because she wants more from her relationship with the wife, and less conflict with her.
89I find that some weight should be given to the children’s views, given their intelligence and maturity and (in Child A’s case more particularly) the consistency with which they have been expressed. While Child B’s expressions of her wishes have varied, there remains a relatively consistent pattern in her observations and views.
90As Dr W correctly observes, this is not a case where the children’s views or expressed wishes would be determinative of the outcome.
91A consideration of the nature of the relationship of each child with each parent is informed by the matters already referred to. Again, the evidence of Dr W was helpful. There was nothing in his assessment which caused concern to the extent of suggesting that the children were at any risk of psychological abuse or harm with either parent, and he observed the children to be quite happy to be with the wife when he observed them together. The children clearly love both parents, but their relationships with them are influenced both by the differing personalities of the parties, and their differing parenting styles.
92In his first report, Dr W described Child A’s relationship with the husband as positive, and seeming fairly grounded; she felt supported by him. She felt a lot of sadness at missing the wife, but there was a degree of ambivalence around some of the wife’s past behaviour and shouting. There was accordingly a “degree of wariness” in Child A’s relationship with the wife.
93In the same report, Dr W described Child B’s relationship with the husband as “idealised in the positive, in that he can do no wrong and she feels guilty if she does something”. She held a “fair degree of negativity” about the wife, while at the same time describing some aspects of missing her.
94Dr W described the children’s accounts of the mother shouting at them and the conflict in the household prior to separation. He described also the husband’s responses to the wife’s behaviour, which were avoidant and directed towards managing the children’s reactions, thereby both undermining the wife’s position with the children, and increasing their alignment with him. While the evidence does not support a conclusion that the husband’s approach reflects any intention to create that outcome, the outcome nevertheless occurred.
95Dr W expressed the view that:
“In the dynamics of this case the children are clearly most comfortable with their father and consider him their safe, stable factor. They would find it difficult to move from that arrangement, because of their level of connection and their perception of safety through him.”
96The children have appropriate relationships with members of extended family on both sides, and in particular with the husband’s mother. The relationships of the children with adults other than their parents, including for that matter their good relationship with Ms S, are not significant factors in determining the outcome that is in their best interests.
97There have been difficulties between the parties since separation in their communication about various decisions which have needed to be made for the children. By way of example, there was a dispute about the children’s participation in various extracurricular activities. While some time was spent exploring those issues at trial, in my view they are not overly significant, bearing in mind the context in which they arose, and the strains of litigation on both parties. On one view, it is to the credit of both parties that they have at least endeavoured to consult with each other about what might reasonably be regarded as day-to-day rather than long-term issues; the fact that they have encountered some difficulty in that regard is only to be expected. Both parties have clearly endeavoured to take the opportunity to participate in making decisions about the children, to spend time with them, and to communicate with them.
98Both parties have also fulfilled their obligations to maintain the children.
99I am required to consider the likely effect of any changes in the children’s circumstances. There are several elements to that consideration. The children are presently in a stable environment living with the husband in Country A, where they are happy. They have a good lifestyle, commensurate with both the husband’s income and the support offered to expatriate workers. That said, Child A is about to leave primary school and (if she remains in Country A) will attend a different international school which will involve her in considerable travel each day unless she attends as a “weekday” boarder. Many of her existing cohort at her current school will also attend that school.
100The children have never lived in Perth, and have no significant network here other than the wife. If they live with the wife in Perth, they will attend a good school but will have to establish entirely new friendship groups. That said, they have already moved a number of times during their lives and have adapted well to the realities of the expatriate lifestyle. The departures of friends, or moving themselves, obviously feature in that lifestyle.
101The husband is committed to his present employment in Country A until March 2022. After that, he may continue to work in Country A, but it is at least equally possible that he will choose to work elsewhere. It is very unlikely that he would return to work in Australia, as to do so would involve a very significant reduction in his income. While he held open the possibility of continuing to work in Country A in the longer term, my clear impression was that he would more likely pursue opportunities elsewhere, possibly as far away as [Country C]. He denied any intention of moving with the children to work in a place which might expose them to danger; I accept his evidence in that regard.
102What emerges from what is set out above is that further change in the lives of these children is almost inevitable. Of course, geographical location is only one element of change. While the wife was the primary carer for the children prior to separation, they have been in the primary care of the husband since no later than August 2017, and have the sense of stability in that regard referred to in the evidence of Dr W. In a very real sense, a choice is faced between a certain and significant change in circumstances by the children moving to Perth to live with the wife, and a likely future change in geographical circumstances by the children remaining in the care of the husband. In my view, a consideration of the likely effect of any changes in the children’s circumstances favours the latter option.
103Self-evidently, there are practical difficulties and expenses associated with the children spending time with the parent with whom they are not living, on either party’s case. It is fortunate that the financial circumstances of the parties are such that the children will be able to spend regular holiday time with the parent with whom they do not primarily live.
104Both parties have an appropriate capacity to provide for the practical and educational needs of the children. Both have their weaknesses in providing for the children’s emotional needs. Dr W did not regard the husband as “someone who has a good grasp on emotion”, noting that he described very clearly that “when there’s an emotional issue he tends to cut off and not deal with it.” His emotional communication style is dysfunctional. That, in turn, contributed to a difficult parenting dynamic prior to separation.
105That said, it was clear from Dr W’s second report and his evidence at trial that the husband had taken note of the observations in the first report in relation to the impact of his responses to the wife’s behaviour on the parenting dynamic, and the undermining nature of some of his actions. As a result, Dr W noted that there was on the later occasion no evidence of “priming” or “reminding” the children of difficulties they had experienced with the wife.
106By the same token, Dr W recommended that the wife source appropriate help in developing her parenting skills. He was satisfied that the wife had “lost control over that last period [prior to separation] in terms of her parenting”, and that she needed “more tools in her toolbox” to effectively parent the children as they get older. There is no doubt that, particularly in the latter stages before separation, albeit while feeling unsupported by the husband, the wife’s parenting style was volatile, with significant conflict with Child B in particular.
107I do not regard the maturity, sex, lifestyle and background of either party or of the children as being relevant to a determination of what parenting orders are appropriate, other than to the extent already referred to. Within the constraints of their own limitations, the parties both have appropriate attitudes to the children and to the responsibilities of parenthood. It was not suggested by either party that any concerns about family violence would inform the decision to be made.
108While it would be preferable to make the order least likely to lead to the institution of further proceedings in relation to the children, my earlier observations about the inevitability of future change in their circumstances apply. The wife would argue that making orders for the children to live with her in Perth would be the outcome least likely to lead to further proceedings; while there is some superficial attraction to that argument, the inevitability of further change already referred to gives no confidence that one present outcome rather than the other is likely to avoid future disputes.
109There is one other matter upon which the parties placed significant relevance. They were at odds as to whether or not, at the time the wife left Country A, there was an agreement between them that the children would follow and live with her in Perth. The wife was adamant that there was such an agreement; the husband was adamant that there was not, while acknowledging that various possibilities including that one had been discussed, and that steps had been taken to explore and secure the availability of school placements in Perth.
110While at a personal level that factual dispute was understandably important to the parties, and particularly to the wife, the resolution of it does not in my view inform the prospective decision which now must be made. The children’s current circumstances are what they are. In addition, I find that it is likely that both parties are being honest in their recall of their communications around the subject, and in their expression of what they understood to be the outcome of those communications. It is entirely consistent with the circumstances of the parties’ separation, their communication styles generally, and their personalities and views that the wife would genuinely believe that there was such an agreement, and that the husband would genuinely believe that there was not.
Conclusions
111As already noted, it was common ground that the statutory presumption of equal shared parental responsibility applies in this case. While the husband seeks sole parental responsibility, his arguments in that regard were largely based around a concern as to the potential need to consult about his future employment destination if the children were living with him, and communication difficulties experienced since separation. Those latter difficulties were almost exclusively about decisions which cannot properly be characterised as being “major long-term decisions” in relation to the children; any continuation of those difficulties would not, therefore, weigh significantly against an order for equal shared parental responsibility.
112There were other examples of behaviour by each of the parties that did them no particular credit, but which do not in my view influence the decisions to be made either as to parental responsibility or with whom the children should live.
113Both these parents have different attributes, skills and qualities to offer. I comfortably conclude that it is in the best interests of the children for them to have equal shared parental responsibility, so that major long-term decisions are made jointly. I acknowledge that the husband’s first concern just mentioned will remain; frankly, I regard a requirement for consultation about such a decision to be appropriate.
114As I propose to make an order for equal shared parental responsibility, I must consider whether the children spending equal time with each parent is in their best interests and reasonably practicable and, if not, whether an order for the children to spend substantial and significant time with each parent would be. While both parents proposed an equal shared care arrangement if they live in the same place, neither proposes to move. There is no present prospect of the husband living in Perth, nor any present prospect of the wife living in Country A. Accordingly, the possibility of orders for equal time or substantial and significant time do not require further consideration.
115The central question, therefore, is whether the children are to continue living with the husband or move to Perth to live with the wife. While there are proper arguments in favour of both alternatives, on balance for all the reasons outlined above I conclude that the children’s best interests are served by continuing to live with the husband and spending significant holiday time with the wife.
116That conclusion having been reached, the next issue for determination is just how the children’s time with the wife should be arranged. Certain orders in relation to the children’s regular communication with the wife can be made by consent, as can certain orders about the exchange of information between the parents.
117The wife seeks orders whereby the children would spend two-thirds of each holiday period with her, with the cost of any travel being born by the husband. She proposes arrangements whereby the children would spend alternate Christmas periods with each parent.
118The husband proposes that the children spend two weeks with the wife during the school holidays in the December/January period, and again in the holidays in March/April, and 4 weeks during the July/August school holidays. He proposes alternating arrangements for the Christmas period in the event that the parties are in the same geographical location as the children.
119The husband explains in his trial affidavit that the school holidays in Country A are based on the American school year. There is a summer break in July/August of six or seven weeks, a mid-term break of one week in October, a three-week break over December/January to include Christmas, a mid-term break in February of up to one week, a two week break in March/April, and a further mid-term break of up to one week in May/June. Since the parties separated, the children have travelled to Australia to spend time with the wife on various occasions in those holiday periods.
120I consider it appropriate that the children spend approximately two-thirds of their summer holidays with the wife, and the remaining one-third with the husband. That is proposed by the wife, and is broadly consistent with the husband’s proposal in any event, depending on the precise length of the holiday period. I do not consider it appropriate for the children to travel between Country A and Perth during the mid-term breaks, which are only of one week duration or thereabouts, unless specifically agreed by the parties.
121I accept also the wife’s proposal that the children should spend more than half of the Christmas break with her; again, that is broadly consistent with the husband’s proposal in any event. Some flexibility and communication between the parties will be required, as I consider it appropriate for the children wherever possible to spend time at Christmas with each parent. Neither party proposed orders which would see the children alternate Christmases between Perth and Country A; given where Christmas falls in the relevant holiday period, the effect of their respective proposals is that the children will see both parents over Christmas only if the Husband travels to Perth. The matter was not otherwise addressed at trial.
122The husband proposes that the children spend two weeks with the wife during the March/April school holidays, which on his evidence would see them spending virtually the whole of those holidays with the mother; I regard that as appropriate.
123Of course, the orders which I propose to make do not in any way constrain the ability of the parties to reach alternative agreements in relation to particular holiday periods, or for that matter mid-term breaks.
124I see no need to make orders restricting the location at which the parties may spend their holiday time with the children.
125The wife sought an order that the cost of any travel undertaken by the children be borne by the husband. The Minute of Orders Sought filed by the husband for the purposes of trial was silent on that issue. Regardless of the specifics of any assistance for travel expenses that may be available from the husband’s employer, his financial circumstances are sufficiently superior to those of the wife to lead me to conclude that he should bear the children’s travel costs.
126The wife sought an injunction restraining the husband from changing the children’s principal place of residence to any place outside Country A, other than Perth. While that application was initially resisted, counsel for the husband sensibly acknowledged that if an order for equal shared parental responsibility was to be made, that order would require such a decision to be made jointly. Although I propose to make an order for equal shared parental responsibility, I propose also to make the injunction sought by the wife, so that there can be no suggestion of any misunderstanding by the parties of that position.
The property case
127As already noted, both parties seek orders for alteration of property interests in circumstances where neither seeks to continue the joint ownership of property. It is clearly just and equitable for orders to be made.
128The agreed facts as to the extent and value of the parties’ property and superannuation interests, and the extent of their liabilities, are as set out in the table used below.
129The only issue between the parties in that regard was as to the treatment of paid legal fees and the amounts received by them by way of interim property settlement.
130The wife received $270,000 by way of interim property settlement payments pursuant to orders made [in] May 2018 and September 2018. At the time of swearing her updated trial affidavit [in] February 2019, she had $50,004 remaining from those funds, having utilised the balance for legal fees and associated costs. She anticipated that the balance she still held would also be used towards legal fees, and that she would require further funds for that purpose. Pursuant to further orders made by consent [in] March 2019, she received a further $75,000.
131Her lawyers’ costs notification tendered at the commencement of trial showed that she had, to that point, paid legal and associated expenses of $253,729. That said, the total in her bank accounts at the date of trial was $102,480. At the time of swearing her updated financial statement [in] February 2019, the total in those accounts was $68,261, and she deposed to pay legal costs to that date of $148,333.
132The approach taken on behalf of the husband in the joint schedule of assets and liabilities tendered at the commencement of trial was to include the whole of the amounts received by the wife by way of interim property settlement as an asset in her hands, and to show her paid legal fees as being included in that sum. The approach on behalf of the wife was to show the updated paid legal fees figure, and to note that the balance of the funds received by way of interim property settlement were “included elsewhere”. No more precise approach was taken.
133Given the increase in both the wife’s paid legal fees and the balances in her bank accounts following the filing of her updated financial statement and the subsequent receipt of an additional $75,000 by way of interim property settlement, and doing the best I can on the information provided, I conclude that the appropriate approach is that taken by the wife. The whole of her paid legal fees to the date of trial will be notionally added back for the purposes of calculation, and no additional figure relating to her receipt of interim property settlement payments will be added back.
134The only other disputed matter was the treatment of the husband’s paid legal fees. On his evidence, his fees were paid from post separation income. That evidence was unchallenged.
135It was common ground that, at the agreed date for the purposes of the joint schedule of assets and liabilities, the husband had paid legal fees of $182,045. The wife argued that this amount should be added back; the husband argued that it should not.
136The husband’s counsel relied on the well-established guideline that legal fees paid from monies “generated by a party post separation from his or her own endeavours” will not generally be added back.[9]
[9] Chorn & Hopkins (2004) FLC 93-204, 79,322 [58].
137Counsel for the wife raised a number of arguments in support of the proposition that, notwithstanding that guideline, the amount in question should be added back.
138Firstly, he argued correctly that the guidelines expressed in Chorn & Hopkins,[10] and referred to in Trevi,[11] are no more than that. Guidelines “guide the exercise of a discretion”; they do not replace it.[12]
[10] Ibid.
[11] [2018] FamCAFC 173
[12] Norbis & Norbis (1986) 161 CLR 513, [537].
139Otherwise, counsel for the wife broadly submitted that adding back the husband’s paid legal fees would be fair. He referred to the inclusion by the husband of paid legal fees as an add back in schedules prepared on his behalf at earlier stages of the proceedings, saying that the husband’s departure from that position occurred only at the point of the filing of his Papers for the Judge. Indeed, the husband’s change in position may have come even later than counsel suggested. Counsel suggested, also, that the wife’s position that she should receive 65 per cent by value of the available property and superannuation, after deduction of liabilities, had been set on the induced assumption that the legal fees of both parties would be added back; that said, there was no application to amend the relief sought by the wife in that regard, even once the husband’s changed position was made clear.
140I acknowledge that the guidelines referred to are no more than that, and that I retain a discretion to add back the husband’s paid legal fees. I decline to do so in circumstances where they were paid exclusively from post separation income.
141That conclusion is, in my view, consistent with the principles espoused in a slightly different context by the Full Court, to the effect that as a general rule, provided their proper obligations are being met, and subject to considerations relating to waste,[13] each party is entitled to get on with his or her life independent of the other and spend post separation income as they wish.[14]
[13] In the Marriage of Kowaliw (1981) FLC 91-092.
[14] Gollings & Scott (2007) FLC 93-319.
142The existing interests of the parties in property and superannuation, and the extent of their liabilities, are accordingly set out in the table reproduced below. The amount of the wife’s paid legal fees is included in the table for the purposes of calculations only, though it is self-evidently not property.
| [TEMORE] & [MITCHELL] ASSETS & LIABILITIES | |
| Asset | Value |
| Joint Assets | |
| [Westpac Account 1] | $4,181 |
| [Westpac Account 2] | $1,069,552 |
| [HSBC Account 1] | $27 |
| [Chase Account 1] | $3,478 |
| [Company C Account 1] | $1,722 |
| [Standard Chartered Account 1] | $3,421 |
| Husband's Assets | |
| [Westpac Account 3] | $5,809 |
| [Westpac Account 4] | $4,179 |
| [Standard Chartered Account 2] | $6,853 |
| [Chase Account 2] | $4,877 |
| [Motor Vehicle A] | $20,000 |
| [Motor Vehicle B] | $25,000 |
| [Trust Account] | $21,944 |
| Husband's partial property (11/3) | $75,000 |
| [Company Shares] | $54,435 |
| [Company Share Salary Allocation] | |
| Performance Share Plan Award | $28,437 |
| Furniture in [Country A] | $8,500 |
| Wife's Assets and add back | |
| [Westpac Account 5] | $10,247 |
| [Westpac Account 6] | $92,233 |
| [Motor Vehicle C] | $35,000 |
| Furniture | $12,500 |
| Wife's paid legal fees | $253,729 |
| Total Property and addback | $1,741,124 |
| Husband's Liabilities | |
| [Westpac Account 7] | ($3,552) |
| [Standard Chartered Account 3] | ($3,034) |
| [Chase Account 3] | ($578) |
| [AMEX] | ($4,288) |
| Outstanding Australian Tax | ($731) |
| Joint Liabilities | |
| [Westpac Account 8] | ($2,921) |
| Total Liabilities | ($15,104) |
| Total Net property and addback | $1,726,020 |
| Superannuation | |
| [Husband’s Superannuation 1] | $3,885 |
| [Husband’s Superannuation 2] | $121,099 |
| [Husband’s Superannuation 3] | $262,549 |
| [Husband’s Superannuation 4] | $96,535 |
| [Husband’s Superannuation 5] | $17,031 |
| [Wife’s Superannuation 1] | $47,746 |
| [Wife’s Superannuation 2] | $150,647 |
| Total Superannuation | $699,492 |
| Total Net Property & Superannuation | $2,425,512 |
Contributions
143There was little in the way of factual dispute between the parties in relation to the matters required to be considered in assessing their respective contributions. It was common ground that at the commencement of the relationship neither party had property of significance. Both parties were working, although both completed further qualifications during the course of the relationship. There was a period when the husband was not working so that he could devote himself to his studies, and the wife continue to work full-time. The wife did not work after Child A was born, and from that point until the date of separation she was primarily responsible for the care of the children, while the husband was the primary breadwinner. Since separation, the children have lived primarily with the husband and he has been solely responsible for their financial needs.
144It is common ground that in October 2006, the wife inherited $109,617 which was paid towards the reduction of a mortgage debt over the property then owned by the parties.
145The wife asserts that, but for her receipt of that inheritance, the contributions of the parties should be assessed as being equal. Because of the inheritance, she says that contributions should be assessed in the proportions of 52 per cent to her and 48 per cent to the husband, that 4 per cent differential reflecting a figure very close to the amount of her inheritance when applied to the value of the property and superannuation currently available for division. The husband acknowledges the wife’s inheritance, while saying that his greater financial contributions during the relationship, and his contributions post separation, should lead to a conclusion that the contributions of the parties to the date of trial are equal.
146The parties lived together for nearly 24 years. Both worked hard in their respective roles. Leaving aside any impact of the wife’s inheritance, the conclusion that their contributions from the commencement of cohabitation up until the date of separation were equal would be readily reached. By the same token, the financial and parenting contributions of the husband in the two years since separation exceed those of the wife. Nevertheless, in my view the benefit to the parties of the investment of the wife’s inheritance in the reduction of their primary debt must be acknowledged, albeit not to the extent sought by the wife.
147I assess contributions in the proportions of 51 per cent to the wife and 49 per cent to the husband.
Matters requiring consideration pursuant to 79(4)(d) to (g) of the Act
148The husband was born [in] 1970 and is in good health. The wife was born [in] 1972. She has some health issues associated with her [liver], but does not assert that she is other than in general good health.
149The husband earns a very good income. In his financial statement sworn for the purposes of trial, he acknowledged that his average weekly income was approximately $5,307 from salary. Importantly, that figure was net of tax. In addition, the husband has the ongoing prospect of bonuses, and has accommodation provided for him at no cost. Education expenses for the children are met by his employer, as is health insurance. He is also entitled to various travel benefits and to participation in a performance share plan.
150As already noted, the husband intends to continue to work in his current role, or a similar expatriate role, for the foreseeable future. I find that his present earning capacity is likely to continue in the long-term.
151The wife is a teacher. She has not, however, worked in that role for some years. She is presently employed part-time as a child-care worker. She gave evidence that she had applied for a significant number of jobs as a child-care worker or teacher without success, but acknowledged under cross-examination that she was clearly not qualified for a number of the jobs for which she applied.
152The evidence of Mr C was unchallenged. In his report, he accurately noted that the wife had not been employed since Child A was born, but had recently returned to the part-time work just described. By reference to the data set out in his report, he expressed the view that if the wife was to secure employment in Perth as [a] teacher on a full-time basis, she would likely command an initial salary of approximately $1,700-$1,900 per week.
153Mr C then set out data as to the demand for teachers in Perth, and available jobs. He noted that he readily found a high number of vacancy advertisements for teachers in Perth, while also acknowledging that many of those would not be accessible to the wife immediately as they require particular specialist skills which she does not have, and that others were senior roles for which she would not be qualified given her long absence from the workforce. He concluded, however, that many of the advertised vacancies were for what he described as “ordinary [teaching] roles” and expressed the view that the wife “would be competitive for a good many of these”. He noted a buoyant and growing demand for teachers in Perth, and concluded with the opinion that if the wife “actively sought out employment as [a teacher] in Perth she ought to be able to secure a job within a reasonable period of time.”
154I accept the unchallenged evidence of Mr C.
155I conclude accordingly that, while the wife can reasonably expect to obtain remunerative full-time work within a reasonable period of time, her earning capacity will remain significantly inferior to that of the husband.
156I note further that, as no superannuation splitting order is sought by either party, it is common ground that the husband will retain a significant proportion of his overall entitlement in the deferred form of superannuation (just over $500,000), while the wife will retain superannuation of just over $198,000, receiving the balance of her entitlements in immediately accessible form.
157The husband has access to a performance share plan through his employment. It was common ground at trial that he has a number of unvested shares which can only be treated as a financial resource. The value of that resource is uncertain, as is the amount of tax payable on vesting. The unvested shares cannot be transferred, and no dividends are payable before vesting. At present, the husband has unvested entitlements for the years 2017 to 2019 inclusive. The notional value of his annual share entitlements varied in recent years from approximately $25,000 to approximately $40,000, before consideration of tax and any fluctuations. The husband retains his entitlement to participate in that share plan.
158Pursuant to the parenting orders I propose to make, the husband will have care and control of the children, with associated commitments. Both parties have commitments to support themselves – neither has any commitment to support any other person, other than the children.
159Neither party is presently eligible for any relevant pension, allowance or benefit. They have enjoyed a comfortable standard of living over the course of their relationship and it is reasonable that to the extent possible they continue to do so. Neither proposes to undergo any further training or relevant education beyond the wife maintaining ongoing professional development requirements. It is not suggested that any order I make will have any effect on any creditor.
160Both parties have contributed to the income, earning capacity, property and financial resources of the other as already outlined. Joint decisions were made which enabled the pursuit of the husband’s highly remunerative expatriate work, and both parties supported each other in their respective studies in the early years of the relationship.
161This was a long marriage. The wife’s earning capacity has, to a degree, been impacted by the joint decision of the parties that she would not be in the workforce while primarily caring for the children.
162Neither party is cohabiting with any other adult. The husband will remain primarily responsible for the financial support of the children, though it is to be expected that the wife will contribute appropriately in that regard in due course. There is no financial agreement binding on the parties.
163Taking all those matters into account, I conclude that an adjustment in favour of the wife to what would otherwise be her contributions based entitlement is appropriate. In my view, an overall division of the property and superannuation of the parties, (after taking into account all liabilities and adding back the wife’s paid legal fees for the purposes of calculations) in the proportions of 60 per cent to the wife and 40 per cent to the husband is appropriate.
164That outcome will see the wife retain property to the value of $1,003,185 after deducting liabilities, the benefit of add backs in the sum of $253,729, and superannuation to the value of $198,393. It will see the husband retain property to the value of $394,106 after deducting liabilities, the benefit of an add back in the sum of $75,000 and superannuation to the value of $501,099. Having considered not only the percentage division but the effect of that division in dollar terms, I am satisfied that it is just and equitable in all the circumstances.
165There being no evidence or submissions about the cost of transporting the agreed chattels to the wife, I do not propose to make any order in that regard.
Spousal maintenance
166The relevant matters already set out above need not be repeated.
167Taking into account both her current income, what I have found to be her earning capacity, and the property and financial resources she is to retain pursuant to the proposed alteration of property interests, I cannot conclude that the wife is unable to adequately support herself.
168The threshold question in relation to any entitlement to spousal maintenance having been answered in that way, the application for spousal maintenance must be dismissed.
Proposed orders
169Subject to any submissions as to form, I propose to make the following orders:
Child-Related Proceedings
Upon the court noting:
A. The parents agree to each do all things and sign all documents necessary to give meaning and effect to these orders in a comprehensive and timely way including to pay for the flights and/or to reimburse one another for doing so, as applicable.
1.All previous parenting orders be and are hereby discharged.
2.The parties have equal shared parental responsibility for the children of the marriage, [CHILD A] born [in] 2006 and [CHILD B] born [in] 2008 (“the children”).
3.The children live with the husband.
4.The children spend time with the wife during the school holidays as follows;
(a)For as close as practicable to two thirds of the December/January school holidays each year;
(b)For two weeks during the March/April school holidays each year; and
(c)For four weeks during the July/August school holidays each year.
5.Notwithstanding any other order, if during the Christmas period the parties are in the same geographical location, the children spend time with the parties as follows;
(a)In 2019 and each odd year thereafter from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day with the wife, and from 2.00 pm on Christmas Day until 5.00 pm on Boxing Day with the husband; and
(b)In 2020 and each even year thereafter from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day with the husband, and from 2.00 pm on Christmas Day until 5.00 pm on Boxing Day with the wife.
6.Any cost of travel to facilitate the above orders be borne by the husband.
7.The parties have liberty to spend time with the children pursuant to these orders in any country.
8.The children have liberal and uninterrupted phone, video, SKYPE and other electronic communication with the parent with whom they are not resident from time to time and each parent do all things necessary to facilitate and encourage that communication, including to keep the other parent and the children informed of all phone numbers and electronic contact details,
9.The parties keep one another informed about and provide one another with all information and any authority reasonably required to obtain information about any matter affecting the children’s health, education or welfare.
10.The parties inform one another immediately in the event of a medical emergency affecting either of the children.
11.The parties do all things and sign all documents necessary from time to time to ensure the children maintain current passports.
12.The parties be restrained from discussing these proceedings with the children or either of the children and from insulting or denigrating one another.
13.The parties each do all things and sign all documents necessary to give meaning and effect to these orders in a comprehensive and timely way including;
(a)To book the children’s flights at times as close to the dates above as practicable;
(b)to provide itineraries and relevant travel details;
(c)To ensure the children arrive on time and are checked-in for their flights.
14.Subject to any written agreement of the parties, the father be restrained from changing the children’s principal place of residence to any place outside of [Country A], except Perth.
Financial Proceedings
15.The parties forthwith do all things and sign all documents as necessary to cause the money standing to their joint credit in [Westpac Account 2] to be distributed in the following order of priority;
(a)The sum of $845,519 to the wife;
(b)The remainder to the husband.
16.The husband forthwith transfer to an account nominated by the wife the funds standing to their joint credit in [Westpac Account 1], [HSBC Account 1] and [Chase Account 1].
17.The wife forthwith transfer to an account nominated by the husband the funds standing to their joint credit in [Company C Account 1] and [Standard Chartered Account 1].
18.The husband pay the liability attached to [Westpac Account 8], and indemnify the Wife in relation thereto.
19.All of the wife’s right title and interest in the following forthwith vest in the husband:
(a)[Motor Vehicle A];
(b)[Motor Vehicle B];
(c)Subject to the husband’s obligations arising in accordance with these orders, the husband’s cash at bank;
(d)Subject to the husband’s obligations arising in accordance with these orders, the husband’s current and future superannuation entitlements.
20.All of the husband’s right title and interest in the following forthwith vest in the wife:
(a)[Motor Vehicle C];
(b)The wife’s cash at bank;
(c)The wife’s furniture and contents and personal effects, including those chattels presently in [Country A] which it is agreed she should retain;
(d)The wife’s current and future superannuation entitlements.
21.Except as otherwise provided for, each party:
(a)Be solely entitled to the exclusion of the other to all assets, financial resources and superannuation in that party’s custody, possession or control registered in that party’s name or in which they have any interest as at the date of these orders or in the future and the other party hereby relinquishes their whole right, title and interest therein;
(b)Be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled;
(c)Be responsible for income tax assessed on income received or deemed to have been received by that party and all outstanding income tax in that party’s name.
22.The parties have liberty to apply in relation to implementation of these Orders only.
23.All outstanding applications and responses are otherwise dismissed.
24.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
25.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(b)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
26.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 24 and 25 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
Associate14 JUNE 2019
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