Tomkins and Faulkes
[2017] FCCA 3018
•6 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOMKINS & FAULKES | [2017] FCCA 3018 |
| Catchwords: FAMILY LAW – Parenting orders – where child to live after 2019 upon the commencement of formal schooling – order that child to live with father in Sydney upon commencing school and by agreement an equal time arrangement if mother returns to Sydney – property – nil past contribution-based entitlement of mother – adjustment of 10% to the nil contribution based entitlement having regard to the mother’s relevant 90SF(3) factors. |
| Legislation: Family Law Act 1975, ss.60CC(2), 60CC(3), 90SM, 90SF(3) |
| Applicant: | MR TOMKINS |
| Respondent: | MS FAULKES |
| File Number: | SYC 4464 of 2014 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 13, 14, 15 June 2017 and 9, 10 October 2017 |
| Date of Last Submission: | 10 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Milevski Family Lawyers |
| Counsel for the Respondent: | Mr Bolger |
| Solicitors for the Respondent: | Gordon & Barry Lawyers |
THE COURT ORDERS THAT:
The child to live with the father in Sydney commencing the week prior to school resuming in January 2019.
Upon the mother relocating to live in Sydney, the child to live with his parents on a week about basis from the cessation of school Monday or as agreed.
The child to live with the mother from the second week after she has re-located to Sydney and each alternate week thereafter and with the father at all other times.
The child to spend half of all school holidays with each parent subject to order 21(b) and (c) and order 22(b) and (c).
Pursuant to Section 65Y(2) of the Family Law Act 1975 each party is permitted to travel overseas with the child during periods the child is living with that party pursuant to these orders or at such other times as the parties agree upon in writing provided they have:
(a)Given the other parent 42 days of notice of their intention to travel;
(b)Provided a copy of the itinerary for the travel to the other parent; and
(c)Provided a copy of the return airflight ticket for the child and contact details for the child whilst overseas to the other parent.
Pending the commencement of Order 1 the child to live with his father in the same cycle of time as is current and as follows:
(a)In week one from 5pm Sunday to 5 pm Wednesday 5 pm with changeover to occur on Sunday at (omitted) railway station and on Wednesday at the mother’s home; and
(b)In week two from 5 pm Saturday to 5pm Wednesday with changeover to occur at (omitted) railway station on Saturday and on Wednesday at the mother’s home, otherwise the child to live with his mother.
In the event the father proposes to attend the child’s sport on Saturday in week 2 he is to give the mother 5 days’ notice of his intention and he will collect the child from (omitted) after his sporting fixture.
The by way of alteration property interests under Section 90SM of the Family Law Act 1975 the applicant father pay to the respondent mother the sum of $92,000.
Thereafter the parties are entitled to whatever assets stand in their name as at today’s date including but not limited to superannuation accounts, bank accounts, shares, trusts, and real estate.
BY CONSENT THE COURT ORDERS THAT:
The father and mother have equal shared parental responsibility for the child X born (omitted) 2013.
Upon the commencement of Order 1 and for as long as the mother remains living in (omitted) the child to spend time with his mother as follows:
(a)During two out of every three weekends, from 7pm on Friday to 5pm on Sunday, or the commencement of school the following day should the mother spend this time in Sydney and provided that he notifies the Mother of his intention to do so prior to him collecting X for the said weekend;
(b)During any long weekend (being a weekend during X’s school term which includes a public holiday on a Monday or a Friday), X’s time with the mother is to be extended to include the public holiday, to commence at 7pm on the day X finishes school and concluding at 5pm on the last day of the long weekend;
(c)During any term school holidays (April, June and September), X is to spend time with the mother during the first half of each school holiday period in 2019 and for the first 10 days of each holiday period in 2020 and each year thereafter commencing after school on the last day of X’s school term with the father to deliver X to the mother at her residence by 7pm and the mother to deliver X to the father on the last day of such period and X is to spend the remainder of the term school holidays with the father; and
(d)During the December to January school holidays:
(i)In December 2018/January 2019 X is to spend time with the mother for a period of seven (7) consecutive nights (8 days) as nominated by the mother in writing to the father by 15 November 2018 during which period the time provided for in Order 11(a) shall be suspended, otherwise Order 11(a) shall continue to operate;
(ii)In December 2019/January 2020 X is to spend time with the mother on an alternating week about basis commencing on the last day of X’s school term with the Father to deliver X to the Mother at her residence by 7pm for seven (7) consecutive nights concluding at 5pm on the eighth (8th) day, with the Mother to deliver X to the Father at 5pm, and alternating weekly thereafter with X to spend the balance of the said holiday period with the father;
(iii)In December 2020/January 2021 X is to spend time with the mother during the first two weeks of the school holidays commencing after school on the last day of X’s school term with the Father to deliver X to the Mother at her residence by 7pm. The Mother to deliver X to the Father at 5pm on the 14th day of the school holiday period. X will then spend the fifth week of the school holiday period with the mother with the Father to deliver X to the Mother’s residence at 5pm on the 28th day of the school holiday period and the Mother to return X to the Father at 5pm on the 35th day of the school holiday period;
(iv)From December 2021/January 2022 and each alternate year thereafter X is to spend time with the mother for the second half of the school holiday period commencing on the 21st day of the school holiday period with the Father to deliver X to the Mother at her residence by 7pm on the 21st day and the Mother to return X to the Father at 5pm on the day prior to the commencement of the new school year; and
(v)From December 2022/January 2023 and each alternate year thereafter X is to spend time with the mother for the first half of the school holiday period commencing on the last day of X’s school terms with the Father to deliver X to the Mother at her residence by 7pm and the Mother to return X to the Father at 5pm on the 21st day of the school holiday period.
During the December 2018/January 2019 school holiday period X shall spend time with the father for a period of seven (7) consecutive nights (8 days) as nominated by the father in writing to the mother by 15 November 2018 during which period the time provided for in order 11(a) shall be suspended.
If X lives in Sydney he is to be enrolled in primary school at either (omitted) Public School or (omitted) Public School.
Each of the parties shall be at liberty to propose to the other not more than three (3) high schools for X to attend and seek that the other sign any relevant Application for Enrolment to enable a place to be secured for X to attend that school should a place become available and in doing shall sign all necessary documents as presented to them and return same duly and properly completed within seven (7) days of receipt of such application, the parent nominating the school shall be solely responsible for all costs associated with the Application Form for the school nominated by them.
Compliance with Order 14 above is not taken to be consent by the other parent to the child attending the school nominated by them.
Notwithstanding any other order X shall live with the Father as follows:
(a)On Father’s Day in each year at times to be agreed in writing and failing agreement from 7pm on the Friday prior to Father’s Day until 5pm on Father’s Day or until the commencement of school the following day should the Father advise the Mother in writing of his intention to do so not later than 48 hours prior to Father’s Day;
(b)From 3pm on Christmas Eve until 3pm Boxing Day in the 2017 year and for that period in each alternate year thereafter;
(c)From 3pm on Good Friday 2018 until 3pm on Easter Saturday 2018 and for that period in each alternate year thereafter; and
(d)From 3pm on Easter Saturday 2019 until 6pm on Easter Monday 2019 and for that period in each alternate year thereafter.
Notwithstanding any other order, X shall spend time with the Mother as follows:
(a)On Mother’s Day in each year at times to be agreed in writing and failing agreement from 7pm on the Friday prior to Mother’s Day until 5pm on Mother’s Day or until the commencement of school the following day should the Mother advise the Father in writing of his intention to do so not later than 48 hours prior to Mother’s Day;
(b)From 3pm on Christmas Eve until 3pm on Boxing Day in the 2018 year and for that period in each alternate year thereafter;
(c)From 3pm on Good Friday 2019 until 3pm on Easter Saturday 2019 and for that period in each alternate year thereafter; and
(d)From 3pm on Easter Saturday 2018 until 6pm on Easter Monday 2018 and for that period in each alternate year thereafter.
The parties shall facilitate a Skype/FaceTime call between X and the other parent on Christmas Day, Easter Sunday, X’s birthday and their respective birthdays in the event that X is in their care on the said day.
For the purposes of these Orders the school holiday periods are deemed to begin at the conclusion of school on the last day of the school term and to conclude at the commencement of the first day of the following school term.
Each of the parties shall:
(a)Not later than twenty-four (24) hours prior to the same, inform the other of any medical treatment being administered to X and of any appointments at which X is to attend;
(b)Provide all authorities and directions necessary for all health professionals consulted by X and all schools or preschools attended by X to provide to each of the parties all information and material held by them in relation to X; and
(c)Sign all documents as are necessary to be identified as the primary and alternate emergency contact on all documentation relating to X.
Both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number, Skype contact details and email address as is applicable.
Both parties be at liberty to communicate with X by telephone and any other electronic method utilised by X including but not limited to E-mail, SMS text message, Skype and Facebook at all reasonable times by contacting X by any of those means and that neither parent shall unreasonably refuse X from communicating with the other parent.
Each of the parties shall ensure that X have reasonable access to a mobile telephone and/or computer to enable him to communicate with the other parent pursuant to Orders 11 and 14 hereof.
Each of the parties shall not later than 48 hours prior to the same notify the other of all school, sporting and extra-curricular events for X and that each parent be permitted to attend all such activities in which X participates.
The parties be restrained and use their best endeavours so as to prevent any other person from:
(a)Making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of X;
(b)Discussing these proceedings with or in the presence or hearing of X; and,
(c)Physically disciplining X.
IT IS NOTED that publication of this judgment under the pseudonym Tomkins & Faulkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4464 of 2014
| MR TOMKINS |
Applicant
And
| MS FAULKES |
Respondent
REASONS FOR JUDGMENT
The matter of Mr Tomkins and Faulkes was a property and parenting application. The party’s son X was born on (omitted) 2013.
Mr Dura of Counsel represented the father and Mr Bolger of Counsel the mother.
The issues for determination surrounding X’s care ultimately were whether at the commencement of school in 2019 he lives in Sydney with his father or remains living in (omitted) with his mother. The parents have effectively agreed bar one night per fortnight upon his care arrangements until that time.
Secondly, the issue of travel overseas to the (country omitted) a non-Hague country. Travel overseas to a Hague country is agreed.
The parties have agreed to a vast array of parenting orders in the alternative and dependent upon the outcome of my decision of with which parent X is to live when he commences school.
They have agreed if either of them lives close to the other, that is the mother moves to Sydney and/or the father to (omitted), X will live in an equal time arrangement.
They have agreed, whether X lives in Sydney or (omitted), which school he will attend in 2019 and the time he spend with the other parent.
The difficult issue of with which parent he should primarily live when he commences school is one which has been left to the court. Dependent upon that decision I will make the consent orders as agreed between the parents.
In relation to property. The parties were in a de facto relationship for 2 years. The father brought the one item of real estate into the relationship and a substantial share portfolio. The issue is the mother’s entitlement, if any, to a share of the parties’ assets in circumstances where the father is seized of all the liquid assets and the mother her superannuation.
The evidence I read for the parties was, as usual, extensive. The matter was part-heard. The matter commenced to be heard on 13, 14 and 15 June 2017. It could not be finalised in that time and was stood over part-heard to 9 and 10 October 2017.
On 5 February 2016 I made orders permitting the mother to relocate, X’s permanent residence whist living with her to (omitted). The mother had moved or was about to move to (omitted) for work. I put in place a regime of time where, ultimately the child would live with his father from 5 pm Sunday until 5 pm Wednesday each week otherwise he was to live with his mother. Thus, effectively since late May 2016, X has lived in a four/three care arrangement with his parents and by all accounts has flourished. He is a happy, well-adjusted child meeting all his milestones and has two competent, capable and caring parents.
The documents I read for the applicant father is as follows:
a)Initiating application filed 18 July 2014;
b)Trial affidavit of 23 May 2017;
c)Affidavit of the paternal grandmother, Ms C, 23 May 2017;
d)Father’s financial statement of 23 February 2017;
e)Amended initiating application filed 13 September 2014; and
f)His updating affidavits of 23 May 2017, and his mother’s of 23 May 2017.
For the father the following exhibits were tendered:
a)Exhibit 1, the certificate of his ownership of the property the parties lived in at Property A with a mortgage to his mother registered on 4 June 2014 and signed on 14 May 2009 on the title;
b)Exhibit 3, Bank statements from the (omitted) Bank in relation to the father’s various shareholdings with that bank and dividends paid from a share portfolio in his name;
c)Exhibit 4, his individual tax returns from 2015 through to 2016;
d)Exhibit 5, a spreadsheet of the projected capital gains tax payable on the sale of various shares in his share portfolio;
e)Exhibit 6, the train timetable for the trip from (omitted) through to (omitted) and then on through to (omitted) and return;
f)Exhibit 7, advert of a vacant position at (employer omitted), Sydney, and other similar positions, which the father asserts the mother could apply for dated 15 June 2017;
g)Exhibit 8, a map of the (country omitted) and the DFAT warnings in relation to travelling to that country. The mother marked on the map where her parents live which is in the city of (omitted), a part of (omitted);
h)Exhibit 9, various emails between the parents. The father asked me to accept that they indicate that there had been three occasions in the last few months where he has collected his son from (omitted). On the last occasion the mother would not give him a reason why she could not travel to Sydney on the train; and
i)Exhibit 10, a document prepared by the mother showing the remittances by her of money to her family for the period during their relationship of 2010 to 2013 totalling AUD $19,415.
For the mother:
a)Affidavit, amended response and financial statement filed 23 May 2017.
Each party provided a case outline.
The mother’s exhibits:
a)Exhibit 2, the financial report of the Tomkins Family Trust; and
b)Exhibit 3, the actual deed of trust.
Court exhibits:
a)Court exhibit 1, the first report prepared by Dr L dated 30 June 2015;
b)Court exhibit 2, updated report of 2 May 2017;
c)Court exhibit 3, a valuation of the husband’s property at Property A;
d)Court exhibit 4, an agreed list of assets and liabilities; and
e)Court exhibit 5, an agreed minute of order.
The father, his mother, the mother and Dr L all gave evidence.
The short relevant history is as follows.
The parties commenced cohabitation in about (omitted) 2012 when the mother moved into the father’s home at Property A.
The parties separated two years later on 3 April 2014 when the mother left the home with X.
The paternal grandmother provided accommodation for the mother in (omitted) from separation until the mother told the father that she was moving to (omitted) in November 2015.
The mother is a (occupation omitted) and obtained a position in (omitted) pursuant to her qualifications.
It is undisputed that the father purchased the home at Property A in May 2009 and that the purchase of that property was funded by his mother.
On (omitted) 2012 he received $20,000 as a beneficiary of the estate of his grandmother.
On 30 June 2012 he received $109,378 distribution from the Tomkins Family Trust.
As at 30 June 2013 he has unpaid distributions totalling $227,987 in the Tomkins Family Trust.
X was born on (omitted) 2013.
The mother became an Australian citizen in (omitted) 2013.
The mother was very concerned about the father’s mental health in April 2014 and there were issues concerning his fragile state at that time.
On 12 May 2014 the grandmother and the father signed a loan agreement for $949,000 in respect of the purchase of the Property A property and the father paid the grandmother $143,000 on 27 May 2014.
The mother returns to work as a (occupation omitted) in (omitted) 2014 on a part-time basis following the birth of X.
The mortgage to Ms C on the property at Property A was registered on title on 4 June 2014.
The father slowly commences time with X and currently X is in a virtually equal time arrangement with his parents.
The mother asserts that from about October 2015, she advised the father she was looking for work outside of Sydney. The mother had a job at (employer omitted) at the time she was looking for work outside Sydney. The mother resigned that job to take up a position in (omitted) and she is currently working as a (occupation omitted) at (employer omitted).
The father commenced a (omitted) business in (omitted) 2016 and continues to run that business as well as receive dividends from his significant share portfolio.
I will determine the parenting matters prior to determining the property issues.
Parenting Issues
Dr L’s evidence on the last day of the hearing was extremely helpful.
The child is a healthy, securely attached child to both his mother and his father reaching all his developmental milestones and has a degree of robustness about him. He had, to use her words, competent, capable, loving parents each able to care for him. There were no issues of adjustment for the child with either parent and both parents were fully functioning parents.
Dr L could see no difficulty in the upcoming (omitted) period, when X will be four and a half, spending seven days with his father for a holiday period and seven days with his mother. Additionally, she agreed that X could manage being away from either parent for seven days although this is not something he has been used to. The mother was very much against the child spending greater time away from her than he currently does with his father.
Dr L’s words were that both parties are quality parents. If both parents can deal with whatever order the Court makes X will cope and deal with it well. As night follows day that is a truism. X will adjust if his parents adjust. He is resilient and has secure attachment to both parents. Each parent acknowledged the attachment of the child to each other and they have affirmed that each is a good parent.
The father seeks an additional night up until X goes to school, being an alternate Saturday night once a fortnight. Dr L could see no difficulty with the child having that additional one night a fortnight with his father. The mother objected as such an arrangement would interfere with her and the child attending Church on Sunday and X’s (hobby omitted) on Saturday. Dr L further opined that if he could attend X’s (hobby omitted) games and the like that would also be of benefit to the child and that the mother’s significant attachment to the child attending Church with her every Sunday was not a priority over X spending more time with the father and his paternal family.
Once X is to attend school his mother’s case is that he will be attending before and after school care. The father’s position was that was that if X lived with him this would not be necessary and thus the child should live with him.
The evidence leads me to find that X would adapt to before and after school care. It is his mother’s work hours that pose a significant problem for the Court in determining with which parent he is best placed to live once he commences school. There is little else to separate these parents in their capacity to care for their son, his attachment to them or his attachment to each of them.
Such a concern is at one level unfair as the father does not have the pressure on him to work shift work as does the mother, but I am merely making a finding as to the facts.
Paragraph 20 of the mother’s affidavit sets out her current working history. She says on Wednesdays she works from 6.30 am to 3 pm or 12.30 pm till 9 pm, on Tuesdays from 7 am to 3 pm and on Wednesday from 6.30 am to 3 pm. The mother finishes work when X is returned to her on Wednesday in (omitted) by his father.
On Thursdays she does not work and spends the day with X. On Friday the mother drops X to day care at 6 o’clock and is at work by 6.30 am and then she collects him at 3 pm Friday. The mother does not work on the weekends.
The mother says her hours are flexible and that when X is not in her care she can work an earlier shift. That when X is in her care she, “has negotiated hours which allow me to take X to day care and collect him from day care after work.”
At paragraph 22, “I’ve spoken with the (omitted) manager at my work about my hours when X attends school. Provided he is in school in the (omitted) area I can commence work after I drop him off at school in the morning and collect him when school finishes. There are other options as a last resort such as before and after school care, my friends, colleagues, or other members of my support network in (omitted) who can assist with drop-off and pickup whilst I am at work.”
Two of the mother’s significant support people are Mr R and Mr T who both live in Sydney and who are not available to assist her during the week.
When X attends school he will not be able to be dropped off at before school care at 6 am as is presently the case with day care. The mother cannot leave him at after school care until 9 pm to work a late shift as she now can as the father has him in his care on those nights.
The mother’s evidence was she was required to work 32 hours a week in her current position and there was no other evidence tendered by the mother that could support the mother’s assertion that once X starts school and is in her fulltime in in (omitted) every day, Monday to Friday for every week, that her working hours are such that she can drop him to school and collect him after school within after school care hours. Thus other arrangements will have to be made. I do not know what they are other than some ad hoc reliance on neighbours and friends which is plausible.
All working parents use afterschool care, however, afterschool care does not start at 6 am in the morning nor does it cease at 9 pm at night which are currently some of the mother’s shifts. Her role as a (occupation omitted) and the shift work she has to do is a difficulty for her in being a sole carer of a young child just starting his first year at school. I have no evidence of what this care arrangement would look like and nor does the father.
Contrast the mother’s difficulties with the father who truly has a very flexible work arrangement. He (business omitted). He is supported by his significant share portfolio and his very supportive paternal family. There will be no difficulties at all for the father or his family to collect and deliver his child to and from school every day should he be in his care.
It is highly likely that if the mother lived in Sydney, the paternal family would collect X to and from school to assist his mother to work in the weeks he was living with her such is the level of support these young people and X have had and will continue to receive from the father’s family.
Dr L made a recommendation at paragraph 45 of her latest report that X should live primarily with his mother in (omitted).
If the parties continue to live in (omitted) and Sydney respectively. It is recommended that X lives with his mother and spend two weekends out of three with his father.
I asked on what basis was that recommendation made. Her answer was, because the mother would have been his primary carer and that that she would have been his closest emotional attachment.
The reality, however, is that by the time any order I make is to commence at the end of 2018 beginning of 2019 X will have lived in, effectively, an equal time arrangement for half of his life from May 2015. Dr L agreed that there might be very little difference in his primary attachment to either parent given his strong and secure attachment to each of them now, by that time and that as he will for the next 16 months, be living in an equal time arrangement his primary attachment may not, in these circumstances, be as important an issue as it might be in other factual circumstances.
However, Dr L was also clear that even in the light of these facts she was still of the view that there would be a greater negative impact on X not living with his mother than there would be on him in not living with his father even though she was not be able to say by the end of 2018 which parent would be his primary attachment figure.
This is a matter where the practicalities of care arrangements for a young child loom large at the end of the day.
I have formed a view on the evidence, and having regard to the matters under the Act[1], namely the nature of the child relationship with each of his parents and their capacity to provide for his needs that whatever order I make as to where X lives when commencing school, be it with his father in Sydney or his mother in (omitted), he will flourish as he continues to do. One of his parents will be bitterly disappointed by the decision I make. However, on the evidence I do not see that by the end of 2018 there would be a significant deficit for him in living with either of his parents. He will of course miss the parent with whom he does not primarily live.
[1] Family Law Act 1975.
I have formed the view that if I make an order that X is to live primarily in Sydney with his father at the end of 2018 commencement of 2019 his mother will follow. The mother said so in her evidence such is her attachment and commitment to her son.
The evidence also leads me to the view that if I make an order that the child live primarily with the mother in (omitted) 2018/2019, the father is less likely to follow for the following.
He has secure appropriate accommodation in Sydney for which he pays no rent. Arguments were raised that he could rent his Sydney property out and move to (omitted). I have no specific evidence of that, but I can take notice that this is available to him. He agreed that his (omitted) business was available to him in Sydney or in (omitted), however his clientele and client base in the (omitted) suburbs of Sydney may be very different to that in (omitted).
His income from his share portfolio would still be available to him in (omitted), however, he will be leaving the significant support his most generous family provide not only to him but also to his son. He will be living alone in (omitted) without his usual supports around him and that may be a significant deficit for him and diminish his otherwise post-separation exemplary commitment and capacity to be involved in the care of his son.
I permitted the mother to remove herself and X to (omitted) to enable her to take up a work position she had obtained which was a new position. To enable her to obtain the security and stability she was looking for and to establish herself in a new area away from the father’s family. The mother to her credit has done this. The mother will, by 2018/2019 be an experienced (occupation omitted) with a solid work history and her ability to find a job in Sydney will be further enhanced given her work skills as (occupation omitted).
The mother did not move to an area for family support. What the mother has done is move away from the very family support she and X had benefited from, namely the father and his family, and her good friends Mr R and Ms T. The mother removed herself to (omitted) where there was no family support or known friendships. I accept the mother has been able to gather around her a support group much based upon the church she and X attend on a Sunday. There is no criticism of the mother in these findings of fact.
The mother deposes in her affidavit at paragraphs 133 to 161 the support network she has in (omitted). They include Mr J, Ms J and Ms M, whom she met through the church. A (nationality omitted) couple upstairs have a little boy that X plays with. Sometimes her neighbours will drive her to the local shopping centre to buy groceries. “If I need a babysitter the (nationality omitted) couple they stay.” The mother then babysits the (nationality omitted) couple’s child and other times he goes to their unit to play. They have a good relationship. X has a little friend a child of her (nationality omitted) friend Mr J and they attend parties together.
The mother says she has made good friends with work colleagues. Ms L, a work colleague of hers has said, “Don’t worry, Ms Faulkes, if you need any help I can always come and help look after X, dropping off, picking up from school, if you need to.
The mother further says that, “The (nationality omitted) community is good and supportive and he is learning (language omitted) which is wonderful” and that in (omitted) everything is in walking distance. I accept the mother’s evidence of her friends and family and the ad hoc assistance they give her. It is, however, not family support or the support Ms T and Mr R would give if she lived close to them. Her friend Ms L’s words state the position “If you need help” and like all working parents, the mother will need help not ad hoc but secure and stable.
Going to the Act[2] and having regard to the relevant matters under section 60 CC(2) and (3)[3] I find that:
[2] Above, note 1.
[3] Family Law Act 1975, s 60CC(2) and (3).
The child will benefit from the meaningful relationship with each of his parents by whatever order I make as he currently does and will continue so to do.
X has never been subjected to abuse, violence or neglect in either parent’s care and would not so be into the future. He was shielded from his father’s concerning behaviour at separation.
His wishes are irrelevant. He is too young and I do not know them.
Each of his parents has capacity to provide for his emotional, psychological and educational needs. Each parent takes the responsibilities of parenthood seriously. Each is more than cognisant and well-aware of the needs of their child and each demonstrates an insight into his needs and capacity to be reflective and provide for his needs on any occasion. Each parent has a respectful attitude towards the other as a parent of the child and values each as a parent of the child.
The child has a strong and attached relationship with his mother and his father and a significant relationship with his paternal family. He does not have a significant relationship with the mother’s family. They live in the (country omitted) and given that Mr R and Ms T, who the mother described as her surrogate parents, live in Sydney the child is not mixing whilst in (omitted) with the significant substitute parental family that the mother has in the past and may in the future call upon.
This is an exceedingly finely balanced matter and I am predicting as to what will be happening in X’s life at the end of 2018/2019 some 16 months away in order to make an order in his best interests.
On this very finely balanced matter, I have formed the view that the child’s best interests would be served by him living with his father in Sydney and attending school in Sydney due to the practical issues of support that the paternal family can provide to care for the child whilst the father is working and the father’s flexible working hours. I have based my decision upon the clear difficulty the mother and therefore the child will face in being a single parent of a school aged child and working shift work. Given the uncertainty of the mother’s actual shift when X commences school and the ad hoc nature of her support group in comparison to the certainty and support the father can provide, this is a significant factor I must weigh up.
A further factor is that I am confident that the mother will move to Sydney at the end of 2018/2019 if I make orders the father seeks, apply for a job in Sydney, obtain a job in Sydney, and thereby an equal time arrangement will ensue as the parties each agree should occur. That is the outcome I find in the child’s best interests, namely to have an equal time parenting arrangement by the time he is due to commence formal education which is best achieved for him due to family support in Sydney which is not available in (omitted).
I have formed the view that the certainty and solidity of the father’s family and his family support in Sydney and that the mother will return to Sydney so that an equal time arrangement can be implemented if I order the child live in Sydney have been for me the tipping points in this very finely balanced matter.
I will also make the orders that forthwith X will spend an additional Saturday evening with his father once per fortnight as this was a matter Dr L opined would benefit X. The father will advise the mother 5 days prior to X playing (hobby omitted) if he will attend X’s (hobby omitted) and if he does this, the father will collect the child for his time in Sydney and return him. In the event the father is not attending the child’s (hobby omitted), the parents are to meet at (omitted). I do not intend to make orders the father seeks that mother and the child travel to (omitted). He has a car. The mother does not.
(omitted) is a large easily accessible station where the mother can easily hop on a train to return to (omitted) and given the arduousness already of the mother travelling with the child by train, any further train travel is to be minimised. The parents will continue to meet at (omitted) until the mother is able to, perhaps have the use of a car.
The plethora of cross-examination and examination-in-chief about the parents’ prior behaviours and conduct to each other, whether the mother told the father of her move, the mother not bringing the child to Sydney and not explaining why to the father etc. was of minor compass and had little impact upon my decision in relation to the parenting issues due to in part the glowing report by Dr L as to these, competent, capable and caring parents.
In relation to overseas travel, the father seeks a restriction on travelling to a non-Hague country. That means X could never travel to the (country omitted) to meet his maternal family. I do not see the mother is a flight risk. Her own evidence was her parents are very poor, they live in a poor part of the (country omitted) in (omitted) a part of (omitted) and the mother continues to send money to her family. If she did not return to Australia, she could no longer support her family and would be committing herself and her son to a life of financial hardship. Her commitment to her family let alone her son is enough to satisfy me she would not give up her citizenship and work in Australia, as to do so would mean she could no longer support her family, herself and her son, most important matters to the mother. Thus there will be no order restricting travel to a Hague convention signatory country only.
PROPERTY ISSUES
Dealing with the property matter and the vexing issue of what is in the relationship pool for division. I would have dealt with the matter on a an asset by asset basis given it is a short relationship and that the father brought all the assets save the mother’s superannuation into the relationship, however that is not the position the parties took.
The pool.
| Assets | ||||
| Item | Ownership | Description | Wife's estimated value | Husband's estimated value |
| 1 | H | Property A | 1,500,000 | 1,500,000 |
| 2 | H | Share Portfolio (as at 7 June 2017) | 869,453 | 869,453 |
| 3 | H | (omitted) Bank (as at 6 June 2017) | 837 | 837 |
| 4 | H | (omitted) Bank (as at 6 June 2017) | 4,366 | 4,366 |
| 5 | H | (vehicle omitted) Motor Vehicle | 14,750 | 14,750 |
| 8 | W | (omitted) Bank | 2,991 | 2,991 |
| 9 | W | (omitted) Bank | ||
| 10 | W | (omitted) Bank account | 715 | 715 |
| 11 | W | (omitted) Bank Kids saver account | 525 | 525 |
| Subtotal | 2,393,637 | |||
| Superannuation | ||||
| Item | Ownership | Description | Wife's estimated value | Husband's estimated value |
| 14 | H | (omitted) Bank | 5,405 | 5,405 |
| 15 | W | (omitted) Super | 54,813 | 54,813 |
| Subtotal | 60,218 | |||
| Liabilities | ||||
| Item | Ownership | Description | Wife's estimated value | Husband's estimated value |
| 16 | H | Mortgage on Property A | 1,064,363 | 1,268,910 |
| 17 | H | Loan from Ms K (share portfolio) | 197,000 | |
| 18 | H | Loan from Ms K ((omitted) family services) | 10,035 | |
| Subtotal | 1,064,363 | 1,475,945 | ||
| Financial Resources | ||||
| Item | Ownership | Description | Wife's estimated value | Husband's estimated value |
| 21 | H | Tomkins Family Trust | 227,987 | |
| Total | 1,389,492 | 977,910 | ||
I will take out of the balance sheet items 3, 4 and 8 and 10 and 11. These are bank accounts either in the parent’s name or in the child’s name. It is some three years since separation. They are not relationship assets. They are the parties own assets. The matters left in the balance sheet are.
The home at Property A, 1.5 million.
The father’s significant share portfolio of $869,453.
(vehicle omitted) motor vehicle. The (vehicle omitted) motor vehicle was purchased prior to the commencement of the parties’ relationship.
The motor vehicle although purchased during the relationship, was in part funded from a trade in of a (omitted) motor vehicle at the commencement of the relationship worth $20,000.
I will leave the car, home and share portfolio in the matrimonial pool. As contended for by the father.
In relation to the unpaid dividend presently in the father’s name in the Tomkins Family Trust, of $227,987.
It was urged upon me by Mr Bolger that I should include that as an asset in the husband’s name for division and to that end he tendered to the trust deed and financial documents relevant to that unpaid dividend being mother’s exhibit 5.
One can see from looking at the Tomkins Family Trust financial report 2016 on page 8, an undistributed dividend of $192,738 to Mr S, $404,316 to Ms C, $227,987 to Mr Tomkins and $166,740 to Mr H giving a total of unpaid trust distributions of $991,781.
It was clear from the evidence of the paternal grandmother that the trust is unable to meet that debt and make those distributions at this time and thus there has not been a distribution. The last time, she says, trust distributions were made to Mr Tomkins from the trust was 30 June 2012. The liabilities of the trust exceed the assets so there are no distributions to be made.
Mr Bolger urged upon me to find that as the financials for the trust have been signed off certifying that the trust is solvent with retained profits, then that is what I to should find. He submitted that that if the trust is insolvent, the financial report should not have been signed off. Therefore, I should include as a matrimonial asset in the husband’s name his unpaid distribution.
I prefer the evidence of Ms C on this issue rather than what I am urged to find as a result of the financial report having been signed off. The financial report clearly tells a story of a trust that has insufficient capital to pay the entirety of the dividends owing to all four beneficiaries. Further, I accept that a trust distribution has not been made since 2012 to the father. I find that the dividend is not an asset realisable now and is at best is a financial resource.
Additionally, this unpaid dividend is not one the mother has made a contribution to at any level and should be taken out of the asset pool.
The mother says that throughout the relationship, she and Mr Tomkins maintained separate finances and at paragraph 188, “Mr Tomkins receives assistance from his parents.” The mother received significant assistance from Mr Tomkins’s parents as did Mr Tomkins and X.
This assistance continues. Ms C’s evidence is at paragraph 49, “I have provided significant financial support to Mr Tomkins, Ms Faulkes and X.” In (omitted) 1998 she loaned Mr Tomkins $340,000 for the purchase of a share portfolio. One of the conditions of that loan was that Ms C would manage the share portfolio. Ms C has done that and it is now worth $870-odd thousand dollars.
Ms C does this for all her adult sons, manages their share portfolios. Her concern is she wanted to make sure her four adult sons were taken care of equally.
The loan of $340,000 is interest free but is repayable on demand. Dividends from this share portfolio are paid to the father as income which income is supplemented by his job.
Ms C said in May 2014 she requested repayment of $143,000 from the father as she and her husband were building a house, they needed this money and he paid her this amount when a bundle of shares were compulsorily acquired. That money went to his mother and thus the debt on the share portfolio was reduced from $340,000 to $197,000.
Ms C deposes to assisting her son to purchase the Property A property in May 2009. Her evidence is that she and Mr Tomkins entered into a loan agreement and although they believed this had been reduced to writing and executed it had not been. The loan agreement and mortgage were not signed at the time that the property was purchased. Ms C says this oversight was corrected in May 2014. No doubt consequent upon reviewing the situation after the separation of Mr Tomkins and Ms Faulkes.
Ms C attached a file note to her affidavit from her lawyers file dated 24 March 2009, “re Mr Tomkins purchase I have done the following. Sent out requisitions, audit inquiries, prepared transfer, you did the rest. First time loan form attached. Ms C wants to put a mortgage to be registered. She is lending the money to her son.”
Ms C was not shaken on this evidence. It is clear the money to buy the unit came from Ms C. It is clear from the solicitor’s file note that a mortgage at least was contemplated being entered into at the time of purchase. I accept the formal paper work to bring into effect Ms C’s intention in the solicitors file note was not perfected until May 2014. That does not dissuade me that Ms C has a valid mortgage over the Property A property.
Ms C pays the private health care premiums for her son, council rates on Property A, body corporate strata fees, gas and electricity for the property.
Ms C paid rent of $3,237 per month for the mother between 10 December 2014 to 4 March 2016 and break fees when Ms Faulkes broke the lease and moved to (omitted). With cleaning costs and the like Ms C has paid $53,161 in relation to the leasing of the (omitted) property for the mother.
Ms C paid supervision costs to (omitted) Family Services when the mother would not let the father see the child other than time being supervised and I accept she paid $10,035.
Ms C paid $13,600 towards X and Ms Faulkes’ medical fees at his birth and has paid Mr Tomkins’s legal expenses of $160,000.
Ms C was a witness of truth. A most generous woman who supported her son and the mother throughout their short relationship, who paid private hospital fees for the birth of their child and has been absolutely pivotal in her son’s capacity to now be the parent he is. The mother herself says in her affidavit that Mr Tomkins receives help from his parents. That is possibly the greatest understatement in this matter.
Thus I find the assets for distribution are the home at Property A, motor vehicle and share portfolio a total of $2,382,453. The Tomkins Family Trust unpaid distribution is a financial resource available to the father.
The father has $5000 in super and the wife some $54,000.
DEBTS
The mortgage in relation to the Property A property is somewhat fraught. I accept the calculation by the father, supported by his mother, that the interest payments now outstanding on that property are $1,268,910. The mother says it is only $1,064,363 as I should only calculate the interest payments on the loan from the date the loan was signed which is May 2014.
There is some degree of neatness in that argument; however, the evidence has led me to the following findings.
Whatever the correct interpretation of the interest owing the entirety of the money to purchase this property was provided by the father’s mother. The mother made no payments of interest to Ms C during her occupation of the home and nor has the father.
I accept the father’s position that he feels a moral obligation to pay interest from the date the property was transferred into his name and purchased as opposed to the date of the agreement was signed. That reasoning is sound for it is true that without his mother purchasing the property there would be no property. I accept that, if the loan was called in, he would pay his mother interest from the date the property was purchased. I accept that he and his mother had an oral agreement to that effect. Therefore I find the debt on that property $1,268,910.
The (omitted) Family Services loan is the father’s loans and is not a relationship debt.
The loan in respect of the share portfolio is $197,000.
Total debts are $1,465,910.
I find the net amount available for division is $916,543.
The wife’s contribution-based entitlement for her past contribution to the assets of the relationship is nil. Her contribution to the property was minor and insignificant. The wife paid no outgoings on the home or the loan, nor conserved or renovated the home and the reality is she lived in the home rent free for 2 years.
The mother has made no contribution whatsoever to the share portfolio. That was an asset he had at the time of cohabitation. The father has used income from that share portfolio to support the mother whilst they were living together, and their son, and the mother has received a benefit from that asset by the father using the income it generates for their support.
The father made a 100% contribution, excluding superannuation, to all assets. Furthermore, the evidence discloses in father’s exhibit 6 that the mother repatriated 50% of her income to her family during the period of the relationship. The mother was only able to do that because she was supported by the father and he in turn was supported by his family.
Going to future needs the mother urged a 25% adjustment for her 90SF(3)[4] factors. The father asserts the mother is entitled to a 10% adjustment. What are those factors?
[4] Family Law Act 1975, s 90SF(3).
The child will live primarily with his mother for the next 16 or so months. I have found it is more likely than not that she will move to Sydney to live with the child in late 2018/2019 when he commences school and an equal time arrangement will result. Additionally, the mother does not have the financial resource of the father’s family nor the income from his share portfolio and the potential of unpaid share dividend of some $227,000. Thus the father is in a far superior financial position to that of the mother.
Evidence to support an adjustment of 25% per cent is not evident in this matter. The mother works and earns income. Her financial resources are far less than the father’s, however, section 90SF(3)[5] factors cannot be used to bolster up a nil contribution based entitlement.
[5] Above, note 3.
The parties will retain their superannuation and I will not make a splitting order. The husband’s contribution to her current superannuation is minimal at best.
I find that a 10% adjustment to a relationship pool of just under 1 million to which the mother made no contribution is just and equitable in all the circumstances and takes into account the difference in the assets each party has.
Thus, I will order the father to pay to the mother $92,000 by way of property settlement.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 6 December 2017
Key Legal Topics
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Family Law
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Jurisdiction
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