Trayden & Trayden
[2021] FedCFamC2F 285
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trayden & Trayden [2021] FedCFamC2F 285
File number(s): CAC 2262 of 2017 Judgment of: JUDGE W J NEVILLE Date of judgment: 3 November 2021 Catchwords: FAMILY LAW – Parenting – Father’s fixation upon single event at separation and seeking to have his local Church admonish the Mother for her behaviour – Father’s regular intervention with children’s multiple health care providers resulting in some of them refusing to treat the children – children have good and close relationship with both parents – best interests for care of the children’s special health needs for Mother to have sole parental responsibility for them regarding these matters – Orders as sought by the Mother in children’s best interests. Property – Husband treated the property matters very much like a strict accounting exercise – failure to provide or call evidence from paternal Grandmother regarding alleged gift solely to the Husband – Court determined that the gifts were to both parties especially since the funds gifted were used to pay down jointly held mortgages and otherwise put into joint accounts – just and equitable considerations. Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC(3)(a) – (m), 65DAA, 75(2), 79(2) & (4) Cases cited: AMS v AIF (1999) 199 CLR 160
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387
Chapman & Chapman (2015) 51 Fam LR 176
Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102Gollings & Scott (2007) 37 Fam LR 428
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Hsiao v Fazarri (2020) 94 ALJR 961; (2020) 383 ALR 446; (2020) 61 Fam LR 465
Jones v Dunkel (1959) 101 CLR 298
M v S (2008) 37 Fam LR 32
McCall v Clark (2009) 41 Fam LR 483
Mabb & Mabb (2020) FLC 93-947
Mazorski v Albright (2007) 37 Fam LR 518
AJO & GRO v AJO & GRO (2005) 33 Fam LR 134
Sempterton v Semperton (2012) 47 Fam LR 626
Sigley v Evor (2011) 44 Fam LR 439
Stanford v Stanford (2012) 247 CLR 108
U v U (2002) 211 CLR 238
Vass v Vass (2016) 53 Fam LR 373
Welch & Abney (2016) FLC 93-756
Division: Division 2 Family Law Number of paragraphs: 190 Date of last submission/s: 14 June 2021 Date of hearing: 29 & 20 October 2020 Place: Canberra Solicitor for the Applicant: Mazengarb Family Lawyers Counsel for the Applicant: Mr M Wong Solicitor for the Respondent: Dobinson Davey Clifford Simpson Counsel for the Respondent: Mr G Howard Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 2262 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: MR TRAYDEN
Applicant
AND: MS TRAYDEN
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
3 NOVEMBER 2021
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children X born in 2008 and Y born in 2010 (“the children”) save for in relation to the children’s health.
2. The Mother have sole parental responsibility for the children’s healthcare, including their medical and therapeutic needs, provided that:
2.1 The Mother notify the Father of all health appointments scheduled for the children as soon as practicable;
2.2 The Mother provide the Father with contact details of the health providers engaged by her for the children;
2.3 The Mother provide to the Father a summary of any health appointments attended by the children including recommended treatments, within 7 days of attendance;
2.4 The Mother authorise all health providers attended by the children to provide to the Father information and reports regarding the children.
3. The Father be restrained from attending any medical or therapeutic appointments attended by the Mother and the children, unless invited by the Mother to attend.
4. The Father provide to the Mother a summary of any health appointments he facilitates the children attending, including recommended treatments, within 7 days of attendance.
5. The children live with the Mother.
6. Unless and subject to any other agreement between the parties in writing, the children spend time with the Father during term periods, as follows:
6.1 in week one and every second week thereafter:
6.1.1 from after school Tuesday until before school on Wednesday; and
6.1.2 from after school on Friday until 6.00pm; and
6.2 in week two and every second week thereafter:
6.2.1 from after school Tuesday until before school on Wednesday; and
6.2.2 from after school on Friday until Sunday at 5.00pm.
7. Unless and subject to any other agreement between the parties in writing, during school term holiday periods at the end of term 1, 2 and 3 (“the term holidays”), the children spend equal time with the parents as follows:
7.1 Until the term holidays commencing in term 1, 2023:
7.1.1 From after school on the last day of term for a period of four nights with the Father, with changeover to occur at 5pm on the fifth day;
7.1.2 With the Mother from 5pm on the fifth day for a period of four nights, with changeover to occur at 5pm on the ninth day;
7.1.3 With the Father from 5pm on the ninth day for a period of four nights, with changeover to occur at 5pm on the thirteenth day;
7.1.4 With the Mother for the balance of the term holiday period.
7.2 From the term holidays commencing in term 1, 2023:
7.2.1 In odd numbered years, from after school on the last day of term for a period of eight nights with the Father, with changeover to occur at 5pm on the last day of that period; and
7.2.2 For the balance of the school holiday period with the Mother;
7.2.3 In even numbered years, from after school on the last day of term for a period of eight nights with the Mother, with changeover to occur at 5pm on the last day of that period; and
7.2.4 For the balance of the school holiday period with the Father, with the children returning to the Mother at 5pm the day prior school resuming.
8. Term holidays are deemed to commence at the conclusion of school on the last day of term and conclude at 5pm on the day prior to the resumption of school in the next term.
9. The Christmas school holiday period is deemed to commence at the conclusion of school on the last day of school in term 4 and conclude at 5pm on the day prior to the resumption of school in the next year (term 1) (“the Christmas school holidays”).
10. Unless and subject to any other agreement between the parties in writing, during the 2020-21 Christmas school holidays, the children spend time with the parents as follows:
10.1 From after school on the last day of term for a period of three nights with the Mother (11 to 14 December 2020);
10.2 From 5pm 14 December 2020 for a period of four nights with the Father;
10.3 From 5pm 18 December 2020 for a period of three nights, with the Mother;
10.4 From 5pm 21 December 2020 for a period of four nights to 3pm 25 December 2020 (Christmas Day) with the Father;
10.5 From 3pm 25 December 2020 (Christmas Day) for a period of four nights with the Mother;
10.6 From 5pm 29 December 2020 for a period of four nights with the Father;
10.7 From 5pm 2 January 2021 for a period of seven nights with the Mother;
10.8 From 5pm 9 January 2021 for a period of seven nights with the Father;
10.9 From 5pm 16 January 2021 for a period four nights with the Mother;
10.10 From 5pm 20 January 2021 for a period of four nights with the Father;
10.11From 5pm 24 January 2021 for a period of four nights with the Mother;
10.12 From 5pm 28 January 2021 for a period of three nights with the Father, with the children returning to the Mother at 5pm on 31 January 2021, the last day of the Christmas Holiday period.
11. Unless and subject to any other agreement between the parties in writing, during the 2021-22 Christmas school holidays, the children spend time with the parents as follows:
11.1From after school on the last day of term for a period of three nights with the Father (10 to 13 December 2021);
11.2From 5pm 13 December 2021 for a period of four nights with the Mother;
11.3From 5pm 17 December 2021 for a period of four nights with the Father;
11.4From 5pm 21 December 2021 for a period of four nights to 3pm 25 December 2021 (Christmas Day) with the Mother;
11.5From 3pm 25 December 2021 for a period of four nights with the Father;
11.6From 5pm 29 December 2021 for a period of four nights with the Mother;
11.7From 2 January 2022 for a period of seven nights with the Father;
11.8From 9 January 2022 for a period of seven nights with the Mother;
11.9From 16 January 2022 for a period of four nights with the Father;
11.10From 20 January 2022 for a period of four nights with the Mother;
11.11From 24 January 2022 for a period of three nights with the Father;
11.12From 27 January 2022 for a period of three nights with the Mother with the children remaining in the Mother’s care for the commencement of Term 1 2022.
12.Unless and subject to any other agreement between the parties in writing, from December 2022, during Christmas school holidays, the children spend equal time with the parents as follows:
12.1From after school on the last day of term for a period of four nights with each parent, commencing with the Mother in even numbered years for the first four nights and commencing with the Father in odd numbered years for the first four nights;
12.2Notwithstanding any other order, that in even numbered years the children spend time with the Father from 9am Christmas Eve until 3pm Christmas Day, and spend time with the Mother from 3pm Christmas Day for a period of two nights;
12.3Notwithstanding any other order, that in odd numbered years, the children spend time with the Mother from 9am Christmas Eve until 3pm Christmas Day, and spend time with the Father from 3pm Christmas Day for a period of two nights;
12.4That in even numbered years, the children spend time with each parent on a week about arrangement, commencing with the Father from 5pm 27 December for a period of seven nights with changeover to occur at 5pm on the relevant day and save that the children will return to the Mother at 5pm on the last day of the Christmas Holiday Period;
12.5That in odd numbered years, the children spend time with each parent on a week about arrangement, commencing with the Mother from 5pm 27 December for a period of seven nights with changeover to occur at 5pm on the relevant day and save that the children will return to the Mother at 5pm on the last day of the Christmas Holiday Period.
13.Notwithstanding any other Order, the children spend time with the parents on special occasions as follows:
13.1With the Mother on Mother’s day from 9am to 7pm;
13.2With the Father on Father’s day from 9am to 7pm;
13.3On a child’s birthday, with the parent with whom they do not wake on that day, as agreed and failing agreement:
13.3.1 If the birthday is on a school day, from after school until 5:30pm;
13.3.2 If the birthday is on a Saturday, from 2pm to 7pm;
13.3.3 If the birthday is on a Sunday, from 1pm to 5pm.
13.4On a parent’s birthday, with the parent celebrating a birthday as agreed and failing agreement from after school until 7pm if a school day or from 2pm to 7pm if on a non-school day.
13.5Over the period commencing 9am Good Friday until 5pm Easter Monday (“the Easter weekend”):
13.5.1 In odd numbered years with the Father from the commencement of the Easter weekend until 7pm Easter Saturday and then with the Mother from 7pm Easter Saturday until 5pm Easter Monday;
13.5.2 In even numbered years with the Mother from the commencement of the Easter weekend until 7pm Easter Saturday and then with the Father from 7pm Easter Saturday until 5pm Easter Monday.
14.In the event the Easter weekend falls during a school holiday period:
14.1Order 13 prevails despite the requirements of Order 7; and
14.2At 5pm Easter Monday, Order 7 resumes, with the children being in the care of the parent required by Order 7 (or Order 6, if term time resumes at the end of the Easter period), as though that Order had continued uninterrupted.
15.Unless otherwise agreed in writing, changeovers not occurring at the children’s school are to occur:
15.1With the Mother delivering the children to B Street, Suburb C (or such other place within the ACT at which the father lives) at the end of any period the children are in her care;
15.2With the Father delivering the children to D Street, Suburb E (or such other place within the ACT at which the mother lives) at the end of any period the children are in his care.
16.The children may telephone the parent with whom they are not living or spending time each day between 6:30pm and 7:30pm, unless otherwise agreed between the parties.
17.The children may communicate with the parent with whom they are not living or spending time at any reasonable time the children may request.
18.Each parent advise the other as soon as practicable any significant injury or illness to a child.
19.Except in the event of a medical emergency, the parties communicate by email for the purposes of discussing matters relating to the children, unless otherwise agreed. The parties communicate by the most appropriate means necessary in the event of medical emergency for the children.
20.Each parent advise and keep the other advised of any change to their residential address and relevant contact details including mobile telephone number and email address.
21.These Orders act as authority for any school or educational facility attended by the children to communicate with both parents regarding the children’s education and provide to both parents copies of reports and notices ordinarily sent to parents.
Property
22.The net equity of the parties in their property (owned individually and jointly and including superannuation, subject to Orders 32 – 36) be divided as to 60% to the Wife and 40% to the Husband and the following orders be made to give effect to that outcome.
23.Within 28 days of these Orders (“the due date”), the Husband pay to the Wife $628,900 (“the payment”).
24.Upon the payment, the Husband be declared the sole legal and beneficial owner of the property known as B Street, Suburb E, ACT (“the B Street, Suburb E property”).
25.Within 28 days of these orders, the Wife do all things necessary to transfer to the Husband 40% of the shares held in each holding within the share portfolio and upon the transfer of the shares:
25.1the Wife be solely entitled to the funds in the joint bank account with F Bank; and
25.2the parties do all things necessary to close that account.
26.The Wife retain to the exclusion of the Husband, her Motor Vehicle 2 vehicle, registration number …;
27.The Husband retain to the exclusion of the Wife, the Motor Vehicle 3 motor vehicle registration number ….
Default provisions
28.In the event the Husband does not make the payment to the Wife on the due date, then interest in accordance with the Family Law Rules shall apply and be payable by the Husband to the Wife upon so much of the payment as is then outstanding from time to time, from the due date until it is paid.
29.In the event that the Husband does not comply with Order 23 (and Order 28) within a further 30 days of the due date (“the default date”), the Husband will forthwith do all acts and things and sign all necessary documents to effect a sale of the B Street, Suburb E property at the expense of the Husband, and for the purposes of effecting a sale:
29.1The B Street, Suburb E property will be listed for sale with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of default date, the real estate agent will be as nominated by the then president of the Real Estate Institute in New South Wales or the Australian Capital Territory;
29.2The list price of the B Street, Suburb E property shall be such amount as is agreed between the parties and failing agreement within 14 days of the default date, the list price will be as nominated by the real estate agent;
29.3The sale price of the B Street, Suburb E property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;
29.4In the event that the B Street, Suburb E property has not been sold by or before a date four (4) months from the settlement date then the parties will make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the B Street, Suburb E property upon the following terms:
29.4.1 the auctioneer will be selected by the Wife;
29.4.2 the auction will take place as soon as practicable and no later than 6 weeks after the happening of the events provided in Order 29.4;
29.4.3 the reserve price will, unless agreed upon by the parties, be as proposed by the auctioneer;
29.4.4 the Husband will be solely responsible for payment of auction expenses payable before the B Street, Suburb E property is auctioned; and
29.5In the event that the B Street, Suburb E property is not so sold by auction or by private negotiation within fourteen (14) days after the said auction then the Wife will do all acts and sign all necessary documents to procure a second auction within a further five (5) weeks of that date otherwise and upon the same terms and conditions as applied to the first auction.
30.Upon completion of the sale of the B Street, Suburb E property, the Husband do all things and sign such authorities as required to cause the proceeds of the sale to be paid as follows;
30.1Payment of any other encumbrance affecting the property including rates and taxes;
30.2Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
30.3Payment of the legal costs and outlays relating to the sale;
30.4The balance to be divided 60% to the Wife and 40% to the Husband.
31.In default of the Husband doing all acts and things and executing all such documents as are necessary to give effect to the sale of the Orders relating to the sale of the B Street, Suburb E property, a Registrar of the Family Court of Australia at Canberra be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute all such documents in the Husband’s name and to do all such acts and things necessary to give validity and operation to the said Orders.
Superannuation
32.In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Trayden from his interest in G Super Fund, Ms Trayden is entitled to be paid (by the Trustee of G Super Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $100,000 and there is a corresponding reduction in the entitlement Mr Trayden would have had but for these Orders.
33.The operative time for Order 32 is 23 October 2020.
34.Subject to Order 36 below:
34.1In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Trayden from his interest in the H Super Fund Superannuation Scheme (“the H Super Fund”) Ms Trayden is entitled to be paid (by the Trustee of the H Super Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $100,000 and there is a corresponding reduction in the entitlement Mr Trayden would have had but for these Orders.
35.The operative time for Order 34.1 is 23 October 2020.
36.The Wife do all things necessary to obtain a Family Law Valuation (FLV) of the Husband’s interest in the H Super Fund as at 23 October 2020 and:
36.1provide a copy of that valuation to the Husband within 48 hours of receipt; and
36.2within 7 days of receipt of the FLV, advise the Husband and the Court in writing whether any change to the base amount identified in Order 34.1 is required as a consequence of the FLV (noting the consequence of the Orders sought by the Wife is that she will receive 60% of the parties’ superannuation interests and the base amount split from the H Super Fund will be calculated by reference to the value of the total of the parties’ superannuation interests).
Notation
The parties note that these Orders and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
Other property
37.Unless provided in these Orders, the parties otherwise retain their superannuation interests, personal bank accounts, furniture and personal belongings in their current possession;
38.The Husband be solely responsible for any credit card debt and any other liabilities held in his name and indemnify the Wife with respect to all monies owing to his mother.
39.The Wife be solely responsible for any credit card debt and any other liabilities held in her name and indemnify the Husband with respect to all monies owing to her parents.
40.The Qantas and Velocity Frequent Flyer points of the parties be distributed between them such that the Wife receives 60% of the total points (and the Husband do all things necessary to transfer the necessary points to the Wife within 14 days of these Order).
41.Within 21 days of these Orders:
41.1the Husband do all things necessary to remove himself from the parties’ private health insurance policy with Medibank Private (noting the mother will retain the children on her cover);
41.2the Husband do all things necessary to obtain for himself a separate Medicare card/account (nothing the Wife will retain the current Medicare card/account for herself and the children);
42.The Husband make available to the Wife copies of all digital photographs and video recordings of the children in his possession and to facilitate this, the Wife will provide a hard drive to the Husband and within 14 days of that, he will copy the file/s and return the hard drive to her.
43.The Husband pay to the Wife the sum of $2,500 within 14 days of these Orders, in satisfaction of reserved costs (subpoena objection process).
44.The Wife’s costs regarding the Application to re-open to adduce new and updating evidence of the B Street, Suburb E property be reserved.
45.Absent any other Application regarding costs within 14 days of the date of these Orders, the issue of costs regarding the Application to re-open will be dealt with on the basis of submissions already filed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Trayden & Trayden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
This matter involves the parties seeking property Orders following a 15 year marital relationship. The parties also seek parenting Orders that are in the best interests of now 13 year old X, and now 11 year old Y. The children, and X in particular, have a range of health issues. The litigation between the parties has been on foot since 2017.
By definition, all trials are taxing, and usually much else. Clearly this is especially so for the parties. Sometimes, parties see the wood for the trees (to speak colloquially), while others do not – for any number of reasons. This matter fell very strongly into the latter category, which led to the trial being a quite enervating, and often remarkably exasperating, experience doubtless for all, sometimes including the Bench!
Regularly and unsurprisingly, exasperation most commonly arises from the conclusion being quite readily apparent even quite early in a trial. However, it becomes clear that the parties (one or both) cannot, for any number of reasons, or will not, also for any number of reasons, see the reality of the evidence that is laid out (or being laid out) before them. Regrettably, such was the case here.
Difficulties can also arise where usually one party has a particular fixation upon one incident or feature of the past relationship, and despite any number of attempts to assist the party to focus upon other, more important features of the matter, they cannot or will not do so. Regrettably, such was the case here. A singular example will suffice here, with many more to come later in these reasons.
The parties separated in August 2017. There was a physical altercation between them at the time. Everyone agrees that this was the only incident of physical contest between them both during the relationship and after separation. Both parties give differing accounts of the incident, most notably who was the aggressor or instigator. As was made plain throughout the whole of the trial, from the Father’s perspective, he was the victim of the assault and the Mother the instigator and aggressor, and that until his account of things was vindicated “the 2017 incident” would (or will) continue to fester and blight all aspects of the parenting issues, and all else. Details of how fixated the Father was on this incident and how it coloured his perspective on so many aspects of the trial and the parenting relationship are set out later in these reasons. It mattered not a jot how many times the Court indicated that as significant as family violence is, a one-off incident three or more years ago was unlikely to be so crucial to making Orders that are in the best interests of the children. Ultimately, after yet another commentary on this incident in the course of the Father’s cross examination, the Court bemoaned:[1]
HIS HONOUR: The bazillionth time! It’s like an audit of “he said/she said”. It’s like watching, respectfully, a bad slow-motion movie, and it’s very difficult not to be distracted in trying to focus upon how does this – or how does any of the evidence help me make orders that are in the best interests of the children? That’s what my focus has got to be. That’s what I’m trying to focus upon, so hence my comments this morning to everyone in court about this remarkable fixation upon an incident in August 2017. People have got to move on. We’re hopefully – at the end of this trial and whenever a judgment is, rule it off. Let it go. Sorry, Mr Howard.
MR HOWARD: You’ve used the words, “We have differing views about that incident,” and certainly that’s reflective of what his Honour has said as well?‑‑‑Yes.
But that’s not, with respect, what you tell medical providers, is it? You don’t say, “We have differing views.” You say, “Ms Trayden is not telling the truth about these things”?‑‑‑Yes. Yes, absolutely, I’m saying that.
[1] Transcript (29th October 2020) p.55. Hereafter, “T” followed by relevant page number. Unfortunately, the transcript for the second day of the trial did not following sequentially the page numbering from day one, but simply recommenced at p.1. In what follows, it will be specified from which day/date the reference is taken or given. The easiest way of distinguishing the references will be “TA” for the first day of the hearing, and “TB” for the second, followed by the relevant page number.
The so-called August 2017 incident came up multiple times in the course of the Father’s cross examination. Such matters are summarised below.
Another unfortunate exchange, along lines similar to the above, was the following (emphasis added):[2]
MR HOWARD: Yes. And it was after this series of communications that Dr P, firstly, cancelled the appointment and then later withdrew treatment, isn’t it?‑‑‑Yes.
You also shared with Dr O the details of your separation and that you considered that Ms Trayden was a liar about those – about the incident at separation?‑‑‑I was requested to give explanation of some of that.
So is the answer to my question, yes, you did share that with Dr O?‑‑‑Yes.
Thank you. I suggest to you that in neither case, neither with Dr P nor with Dr O, was it relevant for them to know the personal circumstances of your separation from Ms Trayden. Do you agree with that or you don’t agree with that?‑‑‑I think it was important for our children’s health potentially, until we worked out what was actually happening, so.
HIS HONOUR: Why? Why? In order to treat the children for whatever the malady, the situation, circumstances were, why would the circumstances of the separation be relevant to that?‑‑‑Because there was some irrationality, and I know that’s my view only, and so what if that was to be in what was informed to practitioners on behalf of children? So I just wanted to play a part in giving some input, so.
I know the input is important, but ‑ ‑ ‑?‑‑‑But, yeah. And so being – I guess we’ve both put the same view from what I can tell, “I’m going, you’re not.” So not – not helpful, wouldn’t have done it that way if my – my time over, and haven’t done it since, but ‑ ‑ ‑
[2] T 76 – 77.
The Expert in the parenting side of the proceeding was Dr J. She did two detailed Reports, which became Exhibit A1 (dated 29th October 2018) and Exhibit A2 (dated 20th December 2019).
Two interim oral judgments were delivered in November and December 2018, respectively. The November reasons and consequent Orders granted sole parental responsibility to the Mother regarding matters pertaining to health care for the children.
In the Mother’s Case Outline for the Final Hearing in October 2020, her experienced Counsel stated (par.20), with wonderful if not eternal optimism regarding the parenting side of the proceeding: “In light of the recommendations of Dr J, this matter should be relatively easy to resolve without the need for a hearing.” Given the brief procedural history already set out, including the number of interim hearings, the two detailed Reports, plus the intricate layers of the dispute that has involved so many others (some noted below), the prospects of a quick resolution to the parenting side of things was indeed optimistic. Having sat through the trial, and laboured through detailed submissions (not to mention the multiple Affidavits), and the high level of conflict between the parties, which included the Father’s almost obsessive fixation upon a single and concerning physical contest between the parties (fortunately the only one) on the date of separation in 2017 (“the 2017 incident”) it was a plainly forlorn hope of any expeditious resolution. For the children’s sake, and for the parents’ sake too, it is extremely regrettable that they could not resolve their parenting contest.
As an example of the Father’s fixation upon the single physical contest between the parties in 2017, in addition to him regularly raising it with experts, he effectively lodged a formal complaint to his evangelical Church (“M Christian Church”) by which he sought to have the Mother “condemned.” His “statement” to M Christian Church, dated 28th November 2017, became Exhibit C. The Father’s complaints against the Mother included that she lied about this incident, had perjured herself regarding its details, and had not taken responsibility for being the instigator and perpetrator of it. At the same time, he acknowledged that she was a good and attentive Mother to the children.
Subject to what is said later in these reasons, because it was a single incident, and now the better part of 4 years ago, in my view, the 2017 incident was, at best, of marginal relevance to the principal matters for the Court’s determination. Of course, as is often the case, a party or witness who continues to press a particular matter in his or her evidence often tells the Court more about themselves than what they are seeking the Court to find regarding the other person.
Subject to what is set out later in these reasons, the Father continued to press for parenting Orders that are not only unsupported by the expert evidence before the Court but were consistently contrary to what the expert cogently and consistently recommended. The Father’s persistence, in other circumstances, would doubtless be a virtue. In the ongoing parenting contest between the parties, it is anything but. It strongly bordered on confirming a reasonably strong impression of him as lacking in insight and or being over-confident in his own assessment of the children’s needs, X’s in particular.
In Dr J’s first Report, noted in my oral reasons of November 2018, she said that the children have a good and close relationship with, and attachment to, both parents. However, the primary attachment is with the Mother (pars.1.2 & 1.5).
In the oral reasons of November 2018, I noted the following, again by reference to Dr J’s first Report:
At par.1.8.2 (p.35) of the Report, Dr J said: “The parents appear not to be able to work together to manage the health needs of the children. Professional services for the children’s health needs appear to have become intertwined in the acrimonious parental relationship. This appears to be having a serious negative effect on the children’s health treatment, especially X’s treatment. It appears that the father’s interactions with health professionals have had the negative effect of health professionals withdrawing (or considering withdrawing) care to X. Specialist paediatric care in the Canberra region is difficult to source. Wait lists can be long. Interruption to positive professional relationships in children’s lives can have negative impacts on children’s health and wellbeing. It appears the parents, at this point in time, cannot work together to support the children to receive appropriate professional health care. Whether the parents can work together in other areas of decision making (such as supporting the children in choices for their educational needs and social / extracurricular needs) is unknown.”
Also in those reasons I said:
In the Father’s submissions, emphasis was placed on Dr J’s comments regarding the children wanting to see their Father more. While he acknowledged that her recommendations, such as they were, did not propose any move to a shared care regime until perhaps 3-4 years’ time, he sought that there be some definite increase in time with arrangements now.
Regrettably, so many of my concerns that were raised in the November 2018 reasons remained, in my clear view, unheeded at the final hearing in October 2020. That said, at the eleventh hour, so to speak, late in the hearing there was a modicum of a breakout of peace. The Father indicated at the commencement of the second day of the trial that he had changed his position regarding parental responsibility, more particularly regarding the Mother continuing to have sole parental responsibility in relation to the children’s health. Regrettably, this peace was not long-lasting.
For the reasons that follow, in relation to parenting, the Orders sought by the Mother, supported in substance by the Independent Children’s Lawyer (“the ICL”), are in the children’s best interests.
Also for the reasons that follow, in relation to Orders regarding property, with some slight “tweaking”, the Wife’s Orders, in my view, are just and equitable in all of the circumstances.
Procedural matters
The Father’s position regarding parental responsibility changed a number of times in the course of the litigation. Curiously, if not alarmingly, in the final iteration of his written submissions (set out in full later in these reasons), the Father’s position regarding parental responsibility changed from what was articulated during the trial. No leave of the Court was sought; no authority was cited – for or against – this novel course. Unsurprisingly, the Father’s changed Orders regarding parental responsibility was vehemently opposed by the Mother.
Principles of long-standing hold that, absent leave being sought and granted, a party is bound by the case that was run at trial. Thus so here: the Father must be bound by his position notified to the Court at the final hearing. This must especially be the case here where no leave was sought for the changed position; nor was it even mentioned in submissions. In addition to the submissions by the Mother on this point, which I accept, I simply note the High Court’s latest comments in this regard. In Hsiao v Fazarri, the majority (Kiefel CJ, Bell and Keane JJ) said, at [44] (emphasis added; internal references omitted):[3]
The main purpose of the Family Law Rules (Cth) is "to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case". Parties to proceedings under the Act are under an obligation to act in a manner that conduces to the promotion and achievement of that purpose. Nonetheless, it is recognised that in proceedings under the Act, the need for finality will often be less prominent than in other appellate proceedings. Among other considerations, this takes into account the fact that proceedings under the Act will often affect the interests of children and that in many cases the Full Court is able to act on further evidence without the need for a new trial. This is not to hold that in a case such as the present – property settlement proceedings following a notably short marriage that do not involve the interests of children – the need for finality does not present as a most material factor. Here the respondent had no opportunity to deal with the further evidence and its reception would have necessitated a new trial. The Full Court's exercise of discretion was correct; the demands of justice would not have been served by receiving further evidence that would have necessitated a new trial in order to give the appellant an opportunity to present a case that she deliberately chose not to make at trial. That is so regardless of whether the further evidence might have produced a different result, albeit the Full Court's conclusion that it would not has not been shown to be erroneous.
[3] Hsiao v Fazarri (2020) 94 ALJR 961; (2020) 383 ALR 446; (2020) 61 Fam LR 465.
Although the High Court’s comments relate most directly to the reception of new or further evidence, plainly, their Honour’s comments also refer specifically to a party being relevantly bound by the case that was conducted at trial.
A second procedural issue arose this way.
In the course of the trial, there was brief discussion with Counsel, notably for the Father, regarding the length of written submissions to be filed. It was discussed that they would necessarily be brief, indeed “very brief.” Ultimately, after noting that a usual length of perhaps 10 pages was a commonly agreed and or ordered page limit, the matter of submissions was left with the lawyers to finalise.[4]
[4] See TB 33.
On the 30th October 2020, the parties provided the Court with a timeline for the filing of written submissions. The Orders in relation to the timetable for each party to file their respective submissions have been amended a number of times as a result of the delay on behalf of the Applicant, with a revised timetable for filing agreed between the parties and published from Chambers on 19th January 2021.
The Applicant Father/Husband ultimately filed written submissions of 50 pages in length on 4th February 2021. Although the Consent Orders, which provided for the filing timetable, did not specify a specific page length to adhere to, in my view (and in the light of the discussion at trial) the filing of such a document undermined the objects of standard practice in all Courts regarding case management as well as in fact enabling responding material of similar or equivalent length. In an email to the parties on 11th February 2021, the Court directed the Applicant Father/Husband to refile his written submissions and contain them to no more than 10 pages in relation to property matters, and 10 pages in relation to parenting matter. The Court further directed the parties to provide the Court with an amended timetable for the filing of the Applicant’s and Respondent’s submissions. An amended timetable was never provided to the Court. Nevertheless, the Applicant’s submissions were re-filed on 11th March 2021 and the Respondent’s submissions were filed on 2nd June 2021. The Independent Children’s Lawyer (“the ICL”) had previously filed submissions on 25th November 2020.
A third procedural matter was resolved as follows.
An Application in a Case was filed by the Respondent Mother/Wife on 9th March 2021. Put summarily, she sought leave to reopen proceedings for the purpose of adducing current evidence of the value of the property at B Street, Suburb E ACT and orders relating to the filing of the Applicant and Respondent’s submissions in the substantive proceedings. She also sought an Order for costs relating to the previous submissions process and this Application. This Application was listed before a Senior Registrar of this Court for Interim Hearing and Orders made in Chambers on 12th March 2021 for the filing of response material. The Interim Hearing did not proceed as the parties reached a consent position regarding the Application in a Case. Those Orders were made by the Senior Registrar on 28th April 2021. The consent Orders of 28th April 2021 essentially provided for the parties to obtain an updated valuation of the B Street, Suburb E property, the provision of submissions by the Respondent Wife, and separate submissions regarding costs in relation to the Application in a Case to seek the updated valuation.
The parties confirmed that the Court could accept into evidence and adopt the new valuation figure for the B Street, Suburb E property (as set out in the most recent submissions).
Applicant’s Orders sought
The Applicant’s final Orders sought were filed on 11th March 2021. The Applicant subsequently filed an Amended Minute of Orders Sought in relation to property only. This was filed on 14th June 2021. The final Orders sought by the Applicant reflect the Father’s position as later amended but different from what he sought at trial, and therefore without Court sanction. As such, they are more expansive than what was sought and confirmed at trial:
Proposed minute of Orders Sought by the Father/Applicant
Parenting – Minute of Order
1. Subject to Order 2 and 3, the parties have equal shared parental responsibility for the children X Trayden born in 2008 and Y born in 2010 (“the children”).
2. Until 31 December 2021, the mother have sole parental responsibility for the health of the children as follows:
a) The mother notify the father of all health appointments scheduled for the children as soon as practicable.
b) The mother provide the father with contact details of the health providers engaged by her for the children.
c) The mother provide to the father a summary of any health appointments attended by the children including recommended treatments, within 7 days of attendance.
d) That the mother provide to the father copies of information and reports regarding the children’s health matters.
3. Until 31 December 2021:
a) the father not attend in person any medical or therapeutic appointments with the children and the mother unless otherwise invited by the mother, but the father may otherwise attend medical or therapeutic appointments with the children via electronic means (including but not limited to video link or telephone).
b) The father may attend upon any of the children’s medical or therapeutic providers to discuss the child’s treatment with the practitioners and the mother shall provide all such authorities to facilitate any attendances.
c) The mother not make arrangements to schedule recurring medical or therapeutic providers appointments for the children during the time the children spend with the father, without first obtaining the consent of the father.
d) The mother may make arrangements to schedule appointments for herself with the medical or therapeutic providers for the children or a child.
e) That in the event the children require medical assistance while in the care of the mother, the mother is to provide to the father a summary of any medical appointments the children attend including recommended treatments within 48 hours of attendance.
4. The children live with the father and the mother as follows:
a) During school terms 1 and 2 of 2021, with the Father in a fortnightly rotation as follows:
i) In week 1, from after school on Tuesday to the commencement of school on Wednesday and from after school on Friday (or 3:00pm if a non-school day) to 6:30pm; and
ii) In week 2, from after school on Tuesday to the commencement of school on Wednesday and after school Friday (or 3:00pm if a non-school day) to the commencement of school on Monday or the commencement of school on a Tuesday if the Monday is a non-school day.
b) During school Terms 3 and 4 of 2021, with the father in a fortnightly rotation as follows:
i) In week 1, from after school on Tuesday to the commencement of school on Wednesday; and
ii) In week 2, from after school Monday to the commencement of school on Wednesday and after school Friday (or 3:00pm if a non-school day) to the commencement of school on Monday or the commencement of school on a Tuesday if the Monday is a non-school day.
5. That unless otherwise agreed in writing between the parents, commencing in Term 1 in 2022 the children shall spend time with the parents on equal shared time basis during the children’s school terms as follows:
a) with the father in week 1, from after school Monday to the commencement of school on Wednesday; and
b) with the father in week 2, from after school Monday to the commencement of school on Wednesday and after school Friday (or 3:00pm if a non-school day) to the commencement of school on Monday or commencement of school on a Tuesday if the Monday is a non-school day.
c) for all other times with the Mother.
6. That during school holiday periods occurring at the end of Term 1, 2 and 3 (“mid-year school holiday period”) commencing in 2021 and each other mid-year school holiday period thereafter, the children spend one half of each school holiday period with the mother and father:
a) That mid-year school holidays periods are deemed to commence at 9am on the 1st Monday following the last day of school term until the commencement of school in the following term.
b) The children spend time with the mother and father as follows:
i) In odd numbered years, with the father for week 1 and the mother for week 2;
ii) In even numbered years, with the mother for week 1 and the father for week 2.
7. That during each Christmas school holiday period commencing 2021, the children spend equal time with the mother and father, as follows:
a) From after school on the last day of term for a period of four nights with each parent, commencing with the Mother in even numbered years for the first four nights and commencing with the Father in odd numbered years for the first four nights;
b) Notwithstanding any other order, that in even numbered years the children spend time with the Father from 9am Christmas Eve until 3pm Christmas Day, and spend time with the Mother from 3pm Christmas Day for a period of 2 nights;
c) Notwithstanding any other order, that in odd numbered years the children spend time with the Mother from 9am Christmas Eve until 3pm Christmas Day, and spend time with the Father from 3pm Christmas Day for a period of 2 nights;
d) That in even numbered years, the children spend time with each parent on a week about arrangement, commencing with the Father from 27 December for a period of seven nights, with changeover to occur at 5pm on the relevant day.
e) That in odd numbered years, the children spend time with each parent on a week about arrangement, commencing with the Mother from 27 December for a period of seven nights, with changeover to occur at 5pm on the relevant day.
8. That notwithstanding any other Order, the children spend time with the mother and the father on special occasions as follow:
a) With the mother on Mother’s Day from 9am until commencement of school the following day.
b) With the father on Father’s Day from 9am until commencement of school the following day.
c) On a child’s birthday, with the parent with whom they are not living with, as agreed and failing agreement:
i) If the birthday is on a school day: from after school until 6pm.
ii) If on a Saturday from 2pm to 7pm.
iii) If on a Sunday from 1pm to 5pm.
d) On a parent’s birthday, as agreed and failing agreement from after school until 7pm if a school day or from 2pm to 7pm if on a non-school day.
e) Over the period commencing 9am Good Friday until 5pm Easter Monday (“the Easter weekend”):
i) In odd numbered years with the father from 9am Good Friday until 7pm Easter Saturday and then with the mother from 7pm Easter Saturday until 5pm Easter Monday.
ii) In even numbered years with the Mother from 9am Good Friday until 7pm Easter Saturday and then with the Father from 7pm Easter Saturday until 5pm Easter Monday.
9. That in the event the Easter weekend falls during a school holiday period, Order 8(e) prevails and replaces the time required by Order 6 until 5pm Easter Monday and then Order 6 resumes, with the children being in the care of the parent required by Order 6, as though that Order had continued uninterrupted.
10. That unless otherwise agreed in writing, changeovers not occurring at the children’s school are to occur at each parent’s residence as follows:
a) the parent with whom the children are living with shall deliver the children to the other parent at commencement of time spent; and
b) the parent who the children have spent time shall deliver the children to the other parent at the conclusion of time spent.
11. That the children may telephone/videocall the parent with whom they are not living or spending time with each day between 6:30pm to 7:30pm, unless otherwise agreed between the parties.
12. That the children or a child may communicate with the parent with whom they are not living or spending time with at any reasonable time the children or a child may request.
13. That each parent advise the other as soon as practicable of any significant injury or illness to a child whilst in that parent’s care.
14. That except in the event of a medical emergency, the parties communicate by email or text message for the purposes of discussing matters relating to the children unless otherwise agreed. The parties communicate by the most appropriate means in the event of medical emergency for the children.
15. That these Orders act as authority for any school or educational facility attended by the children to communicate with both parents regarding the children’s education and provide to both parents copies of reports and notices ordinarily sent to parents.
16. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
AMENDED PROPERTY - MINUTE OF ORDER SOUGHT
The Applicant Husband seeks the following Final Orders:
1. That within fourteen (14) days from the date of this Order, the Respondent shall do all such things and sign all such documents to transfer to the Applicant 50% of each shareholding that she holds in publicly listed entities, where the Respondent holds an odd number of shares in the relevant entity she may retain such 1 extra share with the balance to divided per 50%.
2. That within forty-two (42) days from Respondent’s compliance of Order 1 (the “due date”), the Applicant pay to the Respondent, or as she directs the sum of $398,598 (“the principal sum”).
3. That upon the payment of the principal sum, the Applicant be declared the sole, legal and beneficial owner of the right, title and interest in the property situate and known as B Street, Suburb E in the Australian Capital Territory (“the B Street, Suburb E property”) and he shall indemnify and keep the Respondent indemnified against all liability arising from the B Street, Suburb E property.
4. The Applicant shall be at liberty to raise a mortgage over the B Street, Suburb E property for the purposes of paying the Wife the principal sum.
Default provisions
5. In the event the Applicant does not make the payment of the principal sum on the due date, then the interest in accordance with the Family Law Rules shall apply and be payable by the Applicant to the Respondent upon so much of the payment as is then outstanding from time to time, from the due date until it is paid.
6. In the event that the Applicant does not comply with Order 2 within a further 30 days of the due date (“the default date”), the Applicant will do all acts and things and sign all necessary documents to effect a sale of the B Street, Suburb E property at the joint expense of the parties, and for the purposes of effecting a sale.
a) The B Street, Suburb E property will be listed for sale with such real estate agency as is agreed between the parties and failing agreement within 14 days from the date of default date, the real estate agency will be as nominated by the then president of the Real Estate Institute in the Australian Capital Territory;
b) The list price of the B Street, Suburb E property shall be such amount as is agreed between the parties and failing agreement within 14 days of the default date, the list price will be as nominated by then president of the Real Estate Institute in the Australian Capital Territory;
c) The sale price of the B Street, Suburb E property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 95% of the list price shall be accepted by the parties as the sale price; and
d) In the event that the B Street, Suburb E property has not been sold by or before a date four (4) months from the due date then the parties will make all such arrangements and do all such acts and sign all documents to procure a sale by public auction of the B Street, Suburb E property upon the following terms:
i) The auctioneer will be selected by the nominated agent;
ii) The auction will take place as soon as practicable and no later than 6 weeks after the failure to sell within four (4) months by private treaty;
iii) The reserve price will, unless agreed upon by the parties, be as proposed by the auctioneer; and
iv) The parties shall pay equally the auction expenses, payable before the B Street, Suburb E property is auctioned.
e) In the event that the B Street, Suburb E property is not so sold by auction or by private negotiation within fourteen (14) days after the said auction then the parties will do all acts and sign all necessary documents to procure a second auction within a further five (5) weeks of that date otherwise and upon the same terms and conditions as applied to the first auction.
7. That upon completion of the sale of the B Street, Suburb E property, the parties do all things and sign all such authorities as required to cause the proceeds of the sale to be paid as follows:
a) Payment of any other encumbrance affecting the property including rates and taxes;
b) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
c) Payment of the conveyancing costs and outlays relating to the sale;
d) Payment to the Respondent the principal sum or so much thereof that remains unpaid, plus interest calculated in accordance with Family Law Rules.
e) Payment of the balance to the Applicant.
8. That in default of the parties doing all acts and things and executing all such documents as necessary to give effect to the sale of the Orders relating to the sale of the B Street, Suburb E property, a Registrar of the Federal Circuit Court of Australia at Canberra be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute all such documents in the defaulting party’s name and do all such acts and things necessary to give validity and operation to the said Orders.
9. That within fourteen (14) days from the date of this Order, the parties shall do all acts and things and sign all documents as are necessary to close all joint bank accounts and divide the balance equally between them.
10. That the Respondent retain to the exclusion of the Applicant, her Motor Vehicle 2 motor vehicle, registration number ….
11. That the Applicant retain to the exclusion of the Respondent, his Motor Vehicle 3 motor vehicle registration number ….
12. That the Applicant provide a set of digital photos and video recordings in his possession of the children created during the period from 26 March 2008, being from the birth of X, until the date of separation of the parties, being 24 August 2017.
13. That unless otherwise specified in these Orders and except for enforcing the payment of the principal sum:
a) Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles.
b) Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
c) Each party forgoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
d) A party who is the owner of a policy of insurance shall be deemed to be the owner of the policy to the exclusion of the other.
e) Each party will be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
f) The Applicant and Respondent be solely responsible for any credit card debt and any other liabilities held in their individual names and indemnify the other with respect to all monies owing.
14. That the Respondent do all things necessary and sign all documents to assign the Applicant all contractual obligations and responsibilities of the Applicant and the Respondent for the sponsorship of children through CC Charity.
15. That the Respondent pay to the Applicant the sum of $2,500 within 14 days of these Orders, in satisfaction of the reserved costs Order dated 4 June 2018.
16. There be no order for costs in respect of the reserved costs Order dated 19 April 2018.
AND IT IS NOTED:
A. These Orders have been amended taking into account the new valuation of the B Street, Suburb E property from $970,000 to $1,125,000. The attached Aide Memoire filed with this Minute shows the calculations of the Applicant’s property settlement proposals taking into account the increased value of the B Street, Suburb E property.
B. The Respondent has told the Applicant that the Motor Vehicle 1 has been sold for $1,000, receipt documents have not yet been provided.
Respondent’s Orders sought
The Respondent’s final Orders sought were included in her Case Outline and were as follows:
Minute of Orders Sought
Children
1. That the parties have equal shared parental responsibility for the children X Trayden born in 2008 and Y born in 2010 (“the children”) save for in relation to the children’s health.
2. That the Mother have sole parental responsibility for the children’s healthcare, including their medical and therapeutic needs, provided that:
2.1 The Mother notify the Father of all health appointments scheduled for the children as soon as practicable;
2.2 The Mother provide the Father with contact details of the health providers engaged by her for the children;
2.3 The Mother provide to the Father a summary of any health appointments attended by the children including recommended treatments, within 7 days of attendance;
2.4 The Mother authorise all health providers attended by the children to provide to the Father information and reports regarding the children.
3. That the Father be restrained from attending any medical or therapeutic appointments attended by the Mother and the children, unless invited by the Mother to attend.
4. That the Father provide to the Mother a summary of any health appointments he facilitates the children attending, including recommended treatments, within 7 days of attendance.
5. That the children live with the Mother.
6. Unless and subject to any other agreement between the parties in writing, the children spend time with the Father during term periods, as follows:
6.1 in week one and every second week thereafter:
6.1.1 from after school Tuesday until before school on Wednesday; and
6.1.2 from after school on Friday until 6.00pm; and
6.2 in week two and every second week thereafter:
6.2.1 from after school Tuesday until before school on Wednesday; and
6.2.2 from after school on Friday until Sunday at 5.00pm.
7. Unless and subject to any other agreement between the parties in writing, during school term holiday periods at the end of term 1, 2 and 3 (“the term holidays”), the children spend equal time with the parents as follows:
7.1 Until the term holidays commencing in term 1, 2023:
7.1.1 From after school on the last day of term for a period of four nights with the Father, with changeover to occur at 5pm on the fifth day;
7.1.2 With the Mother from 5pm on the fifth day for a period of four nights, with changeover to occur at 5pm on the ninth day;
7.1.3 With the Father from 5pm on the ninth day for a period of four nights, with changeover to occur at 5pm on the thirteenth day;
7.1.4 With the Mother for the balance of the term holiday period.
7.2 From the term holidays commencing in term 1, 2023:
7.2.1 In odd numbered years, from after school on the last day of term for a period of eight nights with the Father, with changeover to occur at 5pm on the last day of that period; and
7.2.2 For the balance of the school holiday period with the Mother;
7.2.3 In even numbered years, from after school on the last day of term for a period of eight nights with the Mother, with changeover to occur at 5pm on the last day of that period; and
7.2.4 For the balance of the school holiday period with the Father, with the children returning to the Mother at 5pm the day prior school resuming.
8. That term holidays are deemed to commence at the conclusion of school on the last day of term and conclude at 5pm on the day prior to the resumption of school in the next term.
9. That the Christmas school holiday period is deemed to commence at the conclusion of school on the last day of school in term 4 and conclude at 5pm on the day prior to the resumption of school in the next year (term 1) (“the Christmas school holidays”).
10. Unless and subject to any other agreement between the parties in writing, during the 2020-21 Christmas school holidays, the children spend time with the parents as follows:
10.1 From after school on the last day of term for a period of three nights with the Mother (11 to 14 December 2020);
10.2 From 5pm 14 December 2020 for a period of four nights with the Father;
10.3 From 5pm 18 December 2020 for a period of three nights, with the Mother;
10.4 From 5pm 21 December 2020 for a period of four nights to 3pm 25 December 2020 (Christmas Day) with the Father;
10.5 From 3pm 25 December 2020 (Christmas Day) for a period of four nights with the Mother;
10.6 From 5pm 29 December 2020 for a period of four nights with the Father;
10.7 From 5pm 2 January 2021 for a period of seven nights with the Mother;
10.8 From 5pm 9 January 2021 for a period of seven nights with the Father;
10.9 From 5pm 16 January 2021 for a period four nights with the Mother;
10.10 From 5pm 20 January 2021 for a period of four nights with the Father;
10.11 From 5pm 24 January 2021 for a period of four nights with the Mother;
10.12 From 5pm 28 January 2021 for a period of three nights with the Father, with the children returning to the Mother at 5pm on 31 January 2021, the last day of the Christmas Holiday period.
11. Unless and subject to any other agreement between the parties in writing, during the 2021-22 Christmas school holidays, the children spend time with the parents as follows:
11.1From after school on the last day of term for a period of three nights with the Father (10 to 13 December 2021);
11.2From 5pm 13 December 2021 for a period of four nights with the Mother;
11.3From 5pm 17 December 2021 for a period of four nights with the Father;
11.4From 5pm 21 December 2021 for a period of four nights to 3pm 25 December 2021 (Christmas Day) with the Mother;
11.5From 3pm 25 December 2021 for a period of four nights with the Father;
11.6From 5pm 29 December 2021 for a period of four nights with the Mother;
11.7 From 2 January 2022 for a period of seven nights with the Father;
11.8 From 9 January 2022 for a period of seven nights with the Mother;
11.9 From 16 January 2022 for a period of four nights with the Father;
11.10 From 20 January 2022 for a period of four nights with the Mother;
11.11 From 24 January 2022 for a period of three nights with the Father;
11.12 From 27 January 2022 for a period of three nights with the Mother with the children remaining in the Mother’s care for the commencement of Term 1 2022.
12.Unless and subject to any other agreement between the parties in writing, from December 2022, during Christmas school holidays, the children spend equal time with the parents as follows:
12.1From after school on the last day of term for a period of four nights with each parent, commencing with the Mother in even numbered years for the first four nights and commencing with the Father in odd numbered years for the first four nights;
12.2Notwithstanding any other order, that in even numbered years the children spend time with the Father from 9am Christmas Eve until 3pm Christmas Day, and spend time with the Mother from 3pm Christmas Day for a period of two nights;
12.3Notwithstanding any other order, that in odd numbered years, the children spend time with the Mother from 9am Christmas Eve until 3pm Christmas Day, and spend time with the Father from 3pm Christmas Day for a period of two nights;
12.4That in even numbered years, the children spend time with each parent on a week about arrangement, commencing with the Father from 5pm 27 December for a period of seven nights with changeover to occur at 5pm on the relevant day and save that the children will return to the Mother at 5pm on the last day of the Christmas Holiday Period;
12.5That in odd numbered years, the children spend time with each parent on a week about arrangement, commencing with the Mother from 5pm 27 December for a period of seven nights with changeover to occur at 5pm on the relevant day and save that the children will return to the Mother at 5pm on the last day of the Christmas Holiday Period.
13.That notwithstanding any other Order, the children spend time with the parents on special occasions as follows:
13.1 With the Mother on Mother’s day from 9am to 7pm;
13.2 With the Father on Father’s day from 9am to 7pm;
13.3On a child’s birthday, with the parent with whom they do not wake on that day, as agreed and failing agreement:
13.3.1If the birthday is on a school day, from after school until 5:30pm;
13.3.2 If the birthday is on a Saturday, from 2pm to 7pm;
13.3.3 If the birthday is on a Sunday, from 1pm to 5pm.
13.4On a parent’s birthday, with the parent celebrating a birthday as agreed and failing agreement from after school until 7pm if a school day or from 2pm to 7pm if on a non-school day.
13.5Over the period commencing 9am Good Friday until 5pm Easter Monday (“the Easter weekend”):
13.5.1In odd numbered years with the Father from the commencement of the Easter weekend until 7pm Easter Saturday and then with the Mother from 7pm Easter Saturday until 5pm Easter Monday;
13.5.2In even numbered years with the Mother from the commencement of the Easter weekend until 7pm Easter Saturday and then with the Father from 7pm Easter Saturday until 5pm Easter Monday.
14. That in the event the Easter weekend falls during a school holiday period:
14.1 Order 13 prevails despite the requirements of Order 7; and
14.2At 5pm Easter Monday, Order 7 resumes, with the children being in the care of the parent required by Order 7 (or Order 6, if term time resumes at the end of the Easter period), as though that Order had continued uninterrupted.
15.That unless otherwise agreed in writing, changeovers not occurring at the children’s school are to occur:
15.1With the Mother delivering the children to B Street, Suburb C (or such other place within the ACT at which the father lives) at the end of any period the children are in her care;
15.2With the Father delivering the children to D Street, Suburb E (or such other place within the ACT at which the mother lives) at the end of any period the children are in his care.
16.That the children may telephone the parent with whom they are not living or spending time each day between 6:30pm and 7:30pm, unless otherwise agreed between the parties.
17.That the children may communicate with the parent with whom they are not living or spending time at any reasonable time the children may request.
18.That each parent advise the other as soon as practicable any significant injury or illness to a child.
19.That except in the event of a medical emergency, the parties communicate by email for the purposes of discussing matters relating to the children, unless otherwise agreed. The parties communicate by the most appropriate means necessary in the event of medical emergency for the children.
20.That each parent advise and keep the other advised of any change to their residential address and relevant contact details including mobile telephone number and email address.
21.That these Orders act as authority for any school or educational facility attended by the children to communicate with both parents regarding the children’s education and provide to both parents copies of reports and notices ordinarily sent to parents.
Property
22.That the net equity of the parties in their property (owned individually and jointly and including superannuation) be divided as to 60% to the Mother and 40% to the Father and the following orders be made to give effect to that outcome.
23.That within 28 days of these Orders (“the due date”), the Father pay to the Mother $628,900 (“the payment”).
24.Upon the payment, the Father be declared the sole legal and beneficial owner of the property known as B Street, Suburb E, ACT (“the B Street, Suburb E property”).
25.That within 28 days of these orders, the Mother do all things necessary to transfer to the Father 40% of the shares held in each holding within the share portfolio and upon the transfer of the shares:
25.1the Mother be solely entitled to the funds in the joint bank account with F Bank; and
25.2 the parties do all things necessary to close that account.
26.That the Father be declared the sole legal and beneficial owner of the Motor Vehicle 1 motor vehicle located at the Mother’s home, registration …, and within 14 days of these Orders, he shall arrange for the collection and removal of the Motor Vehicle 1 from the Mother’s home;
27.That the Mother retain to the exclusion of the Father, her Motor Vehicle 2, registration number …;
28.That the Father retain to the exclusion of the Mother, the Motor Vehicle 3 registration number ….
Default provisions
29.In the event the Father does not make the payment to the Mother on the due date, then interest in accordance with the Family Law Rules shall apply and be payable by the Father to the Mother upon so much of the payment as is then outstanding from time to time, from the due date until it is paid.
30.In the event that the Father does not comply with Order 23 (and Order 29) within a further 30 days of the due date (“the default date”), the Father will forthwith do all acts and things and sign all necessary documents to effect a sale of the B Street, Suburb E property at the expense of the Father, and for the purposes of effecting a sale:
30.1The B Street, Suburb E property will be listed for sale with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of default date, the real estate agent will be as nominated by the then president of the Real Estate Institute in New South Wales or the Australian Capital Territory;
30.2The list price of the B Street, Suburb E property shall be such amount as is agreed between the parties and failing agreement within 14 days of the default date, the list price will be as nominated by the real estate agent;
30.3The sale price of the B Street, Suburb E property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;
30.4In the event that the B Street, Suburb E property has not been sold by or before a date four (4) months from the settlement date then the parties will make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the B Street, Suburb E property upon the following terms:
30.4.1 the auctioneer will be selected by the Mother;
30.4.2the auction will take place as soon as practicable and no later than 6 weeks after the happening of the events provided in Order 30.4;
30.4.3the reserve price will, unless agreed upon by the parties, be as proposed by the auctioneer;
30.4.4the Father will be solely responsible for payment of auction expenses payable before the B Street, Suburb E property is auctioned; and
30.5In the event that the B Street, Suburb E property is not so sold by auction or by private negotiation within fourteen (14) days after the said auction then the Mother will do all acts and sign all necessary documents to procure a second auction within a further five (5) weeks of that date otherwise and upon the same terms and conditions as applied to the first auction.
31.Upon completion of the sale of the B Street, Suburb E property, the Father do all things and sign such authorities as required to cause the proceeds of the sale to be paid as follows;
31.1Payment of any other encumbrance affecting the property including rates and taxes;
31.2Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
31.3 Payment of the legal costs and outlays relating to the sale;
31.4 The balance to be divided 60% to the Mother and 40% to the Father.
32.That in default of the Father doing all acts and things and executing all such documents as are necessary to give effect to the sale of the Orders relating to the sale of the B Street, Suburb E property, a Registrar of the Family Court of Australia at Canberra be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute all such documents in the Father’s name and to do all such acts and things necessary to give validity and operation to the said Orders.
Superannuation
33.That in accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Trayden from his interest in G Super Fund, Ms Trayden is entitled to be paid (by the Trustee of G Super Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $100,000 and there is a corresponding reduction in the entitlement Mr Trayden would have had but for these Orders.
34. The operative time for Order 33 is 23 October 2020.
35. Subject to Order 37 below:
35.1That in accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of Mr Trayden from his interest in the H Super Fund, Ms Trayden is entitled to be paid (by the Trustee of the H Super Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $100,000 and there is a corresponding reduction in the entitlement Mr Trayden would have had but for these Orders.
36. The operative time for Order 35.1 is 23 October 2020.
37.The Mother do all things necessary to obtain a Family Law Valuation (FLV) of the Father’s interest in the H Super Fund as at 23 October 2020 and:
37.1provide a copy of that valuation to the Father within 48 hours of receipt; and
37.2within 7 days of receipt of the FLV, advise the Father and the Court in writing whether any change to the base amount identified in Order 35.1 is required as a consequence of the FLV (noting the consequence of the Orders sought by the Mother is that she will receive 60% of the parties’ superannuation interests and the base amount split from the H Super Fund will be calculated by reference to the value of the total of the parties’ superannuation interests).
Notation
The parties note that these Orders and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
Other property
38.That unless provided in these orders, the parties otherwise retain their superannuation interests, personal bank accounts, furniture and personal belongings in their current possession;
39.That the Father be solely responsible for any credit card debt and any other liabilities held in his name and indemnify the Mother with respect to all monies owing to his mother.
40.That the Mother be solely responsible for any credit card debt and any other liabilities held in her name and indemnify the Father with respect to all monies owing to her parents.
41.That the Qantas and Velocity Frequent Flyer points of the parties be distributed between them such that the mother receives 60% of the total points (and the Father do all things necessary to transfer the necessary points to the Mother within 14 days of these Order).
42. That within 21 days of these Orders:
42.1the Father do all things necessary to remove himself from the parties’ private health insurance policy with Medibank Private (noting the mother will retain the children on her cover);
42.2the Father do all things necessary to obtain for himself a separate Medicare card/account (nothing the Mother will retain the current Medicare card/account for herself and the children);
43.That the Father make available to the Mother copies of all digital photographs and video recordings of the children in his possession and to facilitate this, the Mother will provide a hard drive to the Father and within 14 days of that, he will copy the file/s and return the hard drive to her.
44.That the Father pay to the Mother the sum of $2,500 within 14 days of these orders, in satisfaction of reserved costs (subpoena objection process).
Independent Children’s Lawyer Orders sought
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):[67]
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
[67] Sigley v Evor (2011) 44 Fam LR 439.
Consideration & disposition - parenting
Without canvassing all aspects of the evidence because of the comments in the course of outlining the evidence, I need only note here the following.
First, where-ever there is any conflict in the account of events between the parties, and absent any supporting independent evidence to the contrary, I strongly prefer and accept the evidence of the Mother to that of the Father. Moreover, as is clear from her evidence, Dr J similarly supports the Mother’s account and evidence more generally in relation to parenting matters.
Secondly, without necessarily referring to each paragraph in s.60CC(3), I should be taken to follow them sequentially.
The views of the children are basically as recorded in the two Reports of Dr J and in the parents’ respective materials. Given their ages, some weight should be given to them, but the Court must also have regard to the various other matters that relevantly impact upon them, such as Y’s “need for cuddles” from his Mother, therefore questions about what weight can or should be given to them. Likewise, X’s ASD is a consideration in the attribution of weight, together with the evidence of Dr J in this regard.
There is no question that both children have a close and loving relationship with both parents. X however seems to be quite acutely aware of the tensions and difficulties between her parents. As already noted, Y in particular has a very close attachment, and likely “need” to some degree, to be very close to his Mother. These matters are also relevant to sub-paragraph (g), among others.
In relation to the “considerations” set out in sub-paragraphs (c), (ca), (e), (f) and (i), recalling what has already been observed in the course of these reasons, and without repeating them, in my view:
(i)the children have a close relationship with both parents;
(ii)the Mother has a much more intuitive, methodical and child-centred approach in relation to the children’s needs, while the Father, though well-intentioned, often seems very focussed on the amount rather than the quality of his time with the children, to their detriment. Plus, he has an unrelenting, almost zealous, need to have “input” to all decisions, which has led to some health care providers opting not to treat the children because of the Father’s interventions. His zeal and often self-focus must somehow be significantly tempered;
(iii)the Mother works assiduously to involve the Father in many matters regarding the children but he is never relevantly satisfied. This regularly leads to ongoing “discussions”, if it is appropriate to call them such, but which must inevitably slow much decision-making regarding the children’s best interests, and doubtless too continues to exhaust the Mother. The Father is relentless in the prosecution of his views;
(iv)the parties communicate with the children without much difficulty in the Father’s case, and well, in the case of the Mother;
(v)the care and “maintenance” of the children is not a major issue, on the evidence, save in relation to the issue of child support, as set out earlier in these reasons;
(vi)there are really no practical difficulties regarding the children spending time with the parents, other than those already noted; and
(vii)there are no substantial issues, other than those recorded throughout these reasons, regarding the general capacity of each parent to provide for the children’s needs, including their intellectual and emotional needs. For reasons already given, in my view, the evidence strongly supports the Mother being the parent who most practically and intuitively provides the greater, more properly structured, psychologically and emotionally attuned care of the children, and significantly more so than does the Father;
(viii)in terms of “attitude” to the children and responsibilities regarding parenthood, the comments already made show clearly where the Court’s views rest. This is not intended to be overly critical of the Father, but for the reasons given, the Mother carefully and properly focusses on the children, while the Father, for various reasons, although thinking that he is child-focussed, either is unable or unwilling to break out of his various fixations and pre-occupations of his own concerns. The Father’s past interventions with the children’s health care providers is a cause of very significant concern, as is his relentless desire or need to have “input” to decisions relating to such matters. The Father’s parenting position has been made all the more difficult because of it constantly changing regarding his Orders sought. That too does not augur well for the future, absent the Father getting relevant assistance to aid him in such matters.
There is little or no question about the general capacity of the parents, for the further purposes of sub-paragraph (f) and other parts of s.60CC(3), to provide for the material needs of the children.
Although canvassed a number of times already, it remains important to consider the somewhat infamous August 2017 incident between the parties at separation. In my view, it warrants separate attention and can be properly looked at under s.60CC(3)(m).[68]
[68] Formally, the incident can also be properly considered under s.60CC(3)(j).
The August 2017 incident at separation was, and remains, the only matter of family violence. The Father’s pre-occupation with it, and at various times since, his need to find vindication against the Mother, remains a cause of significant disquiet and concern for the Court. The event was distressing for both parties. The Mother has moved on, to the degree that she has been able to do so, in the light of the Father’s unrelenting campaign to have some accounting for it. The Court cannot, on the evidence before it, make any relevant findings about instigator or principal perpetrator. In my view, it being now so relatively long ago, its weight or relevance is, at best, negligible. Everyone, but most especially the Father, needs to let it go and move on, so that they can focus upon the best interests of the children. It will very likely also assist him, indeed everyone, to do so.
In the course of his cross examination, the Father was asked questions about the incident in the context, and in the light, of him writing to certain members of his Church at the time. The relevant correspondence was drawn to his attention from the Tender Bundle (pp.71 – 72).[69] Summarily, as set out in this correspondence, the Father sought, among other things, that the Mother be formally admonished and condemned by the Church for her actions as described by the Father. Fortunately, the Church did not proceed as the Father wished. Regrettably, others on his behalf pursued the Mother. In my view, such action was completely improper.
[69] See TA 81 – 82. See also the Father’ detailed letter, dated 28th November 2017 (Exhibit C), to the M Church Council, in which he sought, among other things, to have the Mother formally rebuked for her “ungodly behaviour.” In that correspondence, he alleged that the Mother had injured herself in relation to the incident in August 2017.
In the course of the hearing, I questioned the Father about other Christian teachings such as forgiveness as perhaps being a more positive course to pursue. Of course, this is not a Court of morals or ethics. That said, I simply need to record that, in my view, the Father’s actions to press his (and the Mother’s) local Church to admonish her was a lamentable and completely inappropriate course. Among other things, it clearly showed that the Father, at the time, and in many respects repeated since, had (and may still have) little or no insight into the impact upon the Mother, and in turn on the children, of his fixation upon this very unfortunate event in August 2017. Hopefully it will suffice to recall from the Beatitudes the following (Mt 5,7): Blessed are the merciful, they shall have mercy shown them, and the instruction to forgive infinitely (Mt 18,21 – 35).
In addition to these reasons, I accept and adopt the submissions by the Mother, and also by the ICL. Those submissions support, as these reasons also confirm, that the best interests of the children are served by the Mother having sole parental responsibility regarding the health care for the children. Otherwise, parental responsibility is to be shared equally between the parents.
In the light of all the evidence and the findings and comments made by the Court along the way, and in the light of the statutory considerations, the Orders as sought by the Mother are, in my firm view, in the best interests of the children. The Orders so sought and to be made are least likely to result in further litigation.
To the degree that it is relevant to record, the Orders also relevantly satisfy the requirements of s.65DAA.
Outline of principle - property
In Chapman v Chapman, the Full Court said, firstly at [19] - [21] (Strickland and Murphy JJ; Bryant CJ agreeing) (emphasis added):[70]
[19] Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s.79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s.79(2) issue will, “...in many cases ... [be] ... effectively answered in the affirmative by the way the parties present their cases.”
[20] Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
[21] First, it is “...not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “...stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “...just and equitable requirement is readily satisfied...” by the fact of separation: “[i]t will be just and equitable to make a property settlement order ... because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
[70] Chapman v Chapman (2015) 51 Fam LR 176.
Regarding matters of “weight”, also in Chapman, the Full Court said, at [64]:
“...what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “...functions and purposes of the Court ... [involve] ... difficult and evaluative decisions...” such that “...any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).
In Vass v Vass, the Full Court said, at [138] – [139]:[71]
[138] There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) 49 Fam LR 387 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
[71] Vass v Vass (2016) 53 Fam LR 373.
The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.[72]
[72] See the detailed discussion in Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387 at [57] – [89].
In AJO & GRO, at [46], subject to the matters outlined from Stanford and Bevan above from Chapman, the regular “four-step” process will be undertaken here. That process begins with (i) the identification and value of the net property of the parties, (ii) assessment of the contributions of the parties under s.79(4), (iii) consideration of the factors under s.75(2), and finally (iv) consideration and determination of what Orders are just and equitable between the parties in all of the circumstances, having regard to all the evidence and in the light of the principles outlined.
“Contributions” were a vexed issue in this matter, albeit in a limited number of respects. It is important therefore to note the following from Fields v Smith, where the Full Court said (Bryant CJ and Ainslie-Wallace J; May J agreeing), at [75] and [168] (emphasis added):[73]
[75] … As we have already said, there is no requirement to attribute different percentages to different periods in the relationship. Indeed the Full Court has cautioned against it: see Dickons & Dickons(2012) 50 Fam LR 244, Lovine & Connor and Anor (2012) FLC 93-515 and Bolger & Headon [2014] FamCAFC 27 where the Full Court said at [28], “[d]oing so ... is not consistent with a holistic assessment of the parties’ contributions which is what s.79(4) requires.” It is only if error can be demonstrated in the overall result that the appeal would succeed.
[168] … the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by
s.79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.[73] Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1.
In Gollings v Scott the Full Court said, at [65] and [68] (emphasis added):[74]
[74] Gollings v Scott (2008) 37 Fam LR 428; AJO & GRO v AJO & GRO (2005) 33 Fam LR 134.
[65] In AJO & GRO and AJO & GRO (2005) 33 Fam LR 134 the Full Court identified three clear categories of cases where it was appropriate to notionally add back to the pool assets which were said by the Full Court to “no longer exist”. Those three categories were:
(a) monies spent on legal fees;
(b) monies disbursed by way of premature distribution of matrimonial assets; and,
(c) monies lost by one party either during or after the marriage as a result of a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or as a result of reckless negligent or wanton behaviours which had the effect of reducing or minimising the value of assets.…
[68] As a general rule once the parties have separated, subject to obligations of maintenance and support, and subject to the type of considerations described in Kowaliw (1981) FLC 91-092 relating to waste, each party is entitled to get on with his or her life independent of the other. The husband would be free to go about spending the money he earned post-separation in the furtherance of his relationship with Ms Y if he chose to do so providing that at the same time he properly met his obligations towards his wife and children for their due support. It would not normally be appropriate some years after separation to require each of the parties to account for any monies they had spent post-separation so as to determine whether or not that expenditure was reasonably necessary for their own self-support, and to the extent that it was not, to determine whether it would be proper to add it back into the pool of assets available for division between the parties…
More recently, in Vass v Vass, the Full Court said, at [138] – [139] (emphasis added):[75]
[138] There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) 49 Fam LR 387 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
[139] The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.
[75] Vass v Vass (2016) 53 Fam LR 373.
Finally, in accordance with multiple other, earlier authorities, also in Chapman, at [39], the Full Court said (emphasis added):
The consideration of the relevant matters referred to in s.75(2) of the Act, pursuant to s.79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.
Consideration & disposition – property
In the light of the evidence canvassed earlier in these reasons, I need only note the following somewhat summarily.
The parties are aged respectively 46 (Husband) and 45 (Wife) years. In general terms, there are no health issues to speak of, although there was regular reference to the Father indicating that he was regularly afflicted with fatigue and some other conditions during the relationship, and certain levels of anxiety and the like following the separation. This, he said, left him unable to work full time for a significant period of time, post separation. There was evidence before the Court indicating that he could have returned to work full-time had he so wished during his period of working lesser hours. No medical evidence for any of these matters was provided.
There are, of course, health issues in relation to the children (aged 13 and 11), for which the Mother bears the bulk of the care and responsibility. She did not, and could not, reduce her labours across the board, post separation because she was the primary carer of the children. The parties’ relationship was for approximately 15 years.
Before finalising the size and composition of the property pool, the following matters need to be considered. Both parties provided Aide-memoires that set out the respective property pool claims. Relatively speaking, there are only a few matters of substance that separates them. Those issues are set out below.
Issue 1: the Wife’s H Super Fund Superannuation: pursuant to a valuation he obtained, the Husband ascribed a family law value of $363,232 to the Wife’s very modest H Super Fund pension (which arose from a voluntary redundancy she took in 2015); it is in the payment phase. She receives each week the sum of $331 from this pension. In accordance with authority discussed presently, and because the Husband does not seek any splitting of the Wife’s pension, it is inapposite that it be ascribed any value, and certainly not a capitalised value. It is proper for the Court to treat it only as a financial resource in the Wife’s hands.
Further, the Wife’s pension is understandably, and realistically, treated as income for the purposes of the assessment of Commonwealth benefits, and for taxation and child support purposes.
The two Full Court decisions in Semperton and in Welch & Abney confirm that, whilst a trial Judge has a discretion as to how superannuation interests will be treated in a particular case, the discretion is guided by statements of principle.[76] This includes, for example, the nature, form and characteristics of the subject interest which must be considered, including whether or not a splitting Order of the interest is sought or made.
[76] See Sempterton v Semperton (2013) 47 Fam LR 626 at [87] – [91] (May J); at [159] – [162] & [175] (Thackray & Ryan JJ); Welch & Abney (2016) FLC 93-756 at [59] and [61].
In the light of the statements of principles in the two Full Court decisions referred to, the Husband’s position regarding the capitalisation of the Wife’s H Super Fund pension, and its inclusion in the property pool, is unsupportable.
Issue 2: Add backs: The second area of contention for the purposes of confirming the details of the asset pool concerns the regularly contested area of “add backs.”[77] Factually, the principal area here concerns the Father’s times of “under employment” or non-employment, for a period of time, from July 2017 until April 2018 (9 months), during which time he was also not paying child support. He was paying half of the children’s school fees. During this period the Father withdrew $53,045 from joint funds for his personal use.
[77] This area of jurisprudence is well-trodden yet remains regularly fertile in property disputes. It is sufficient simply to note the statement of principle in AJO & GRO v AJO & GRO (2005) 33 Fam LR 134 at [30] – [31].
It would usually be the case that funds used for living expenses are not treated as warranting to be added back to the property pool. Here, however, the Wife argues that it was the Husband’s decision either not to work, or not to work full-time. As already observed, the Husband contended that he suffered from various maladies that prevented him from working. He provided no medical evidence in this regard. And there was evidence before the Court of him indicating to others that he could have worked full-time if he so wished. Nor did the Husband provide any evidence as what the appropriated funds were used for.
In my view, it is best in these circumstances to deal with this “claim” or aspect of dispute under s.75(2) (o) of the Act. The evidence and the Wife’s submission, and in the light of the principle referred to, are more than sufficient for this sum to be added back to the pool. Although considered elsewhere, during this period also, the Husband was living rent-free in the former marital residence while the Wife was renting a property for herself and the children. Moreover, as a matter of justice and equity, the Husband’s claims have no substance in this regard.
A related matter of little consequence is that the Husband sought to have added back to the pool the sum of $1,920 paid to the Wife from NDIS funds. It seemed that the Husband may have, in more recent times, backed away somewhat from seeking this pittance of a sum to be added back, particularly in circumstances where the funds in question (a) benefit the children directly, and (b) the Wife’s bank statements are before the Court and are included in the asset pool in any event. To include it would, among other things, raise the prospect or risk of some double-dipping. Formally, I refuse to add back that sum into the pool in the unlikely event that such a course was still pressed.
The Husband also sought to include into the pool of assets the value of a piano. It is not, and cannot be, disputed that the piano belonged to the Wife prior to the marriage. Nor can it be disputed that there is no valuation of it before the Court. There being no valuation, no value of such an “asset” can or should be ascribed to it, perhaps least of all by the person who has never owned it. The piano, to which the Husband suggested that a value of $3,000 should be ascribed, does not fit into any of the proper or usual categories for add backs. It will not be so included in the pool.
The other values in relation to superannuation and other matters are essentially agreed. For the reasons given, the asset pool will be taken as set out in the Wife’s Aide-memoire, as follows:
ASSET Owner Wife's Value Husband's Value B Street, Suburb E ACT H $1,125,000 $1,125,000 Motor Vehicle 3 motor vehicle H $11,100 $11,100 Motor Vehicle 1 motor vehicle H $2,800 $2,800 Motor Vehicle 2 motor vehicle W $4,400 $5,100 Shares W $214,896 $214,896 F Bank account Jt $8,320 $8,450 Husband's F Bank Account H $25,078 $25,078 Wife's NAB Account W $15,348 $15,348 Wife's NDIS refund amount W $0 $1,920 Piano W $0 $3,000 Addback re funds withdrawn from joint account H $53,000 $0 SUBTOTAL OF ASSETS $1,459,942 $1,412,692
LIABILITIES Husband's loan for legal fees H $0 $0 Wife's loans for legal fees W $0 $0 SUBTOTAL OF LIABILITIES $0 $0 NET TOTAL OF ASSETS AND LIABLITIES $1,459,942 $1,412,692
SUPERANNUATION G Super Fund H $106,696 $106,696 H Super Fund H $285,941 $285,941 H Super Fund Preserved benefit W $25,421 $25,421 H Super Fund W $48,888 $48,888 H Super Fund pension in payment phase W $0 $363,232 NET TOTAL OF SUPERANNUATION $466,946 $830,178 TOTAL NET ASSETS INCLUDING SUPER $1,926,888 $2,242,870 TOTAL NET ASSETS EXCLUDING SUPER $1,459,942 $1,412,692
60% DIVISION OF SUPER to Wife $280,168 Super split to Wife required $205,859
Percentage Division of Net Assets (Not including super) 40% $583,977 $565,077 45% $656,974 $635,711 50% $729,971 $706,346 55% $802,968 $776,981 60% $875,965 $847,615 65% $948,962 $918,250 HUSBAND'S PROPOSED ORDERS WIFE TO RETAIN Cash payment - fixed amount $339,818 $339,818 Half of shares $107,448 $107,448 Half of joint accounts $4,160 $4,225 Motor Vehicle 2 motor vehicle $4,400 $5,100 Wife's NAB Account $15,348 $15,348 Wife's NDIS refund amount $0 $1,920 Piano $0 $3,000 TOTAL $ 471,174 $ 476,859 24.5% 21.3%
THEREFORE ADDITIONAL PAYMENT REQUIRED TO BE MADE TO WIFE 40% $112,803 $88,218 45% $185,800 $158,852 50% $258,797 $229,487 55% $331,794 $300,122 60% $404,791 $370,756 65% $477,788 $441,391
WIFE'S PROPOSED ORDERS WIFE TO RETAIN Cash payment $718,959 $684,859 60% of shares $128,938 $128,938 F Bank account $8,320 $8,450 Motor Vehicle 2 motor vehicle $4,400 $5,100 Wife's NAB Account $15,348 $15,348 Wife's NDIS refund amount $0 $1,920 Piano $0 $3,000 TOTAL $875,965 $847,615 60.0% 60.0%
I should only add that after the hearing and earlier this year, the Wife brought an Application to re-open the proceeding to seek to adduce further and more recent evidence regarding the value of the former marital residence. Ultimately, that issue was resolved by consent, albeit that it took (so it seems) a not insignificant period of time and some extra effort to resolve this aspect without the need for Court determination. The more recently agreed value of that property will be taken as set out in the Aide-memoire.
The Wife sought her costs of that Application and filed submissions in this regard. The Husband likewise filed written submissions. Although the costs sought by the Wife were comparatively modest, I propose reserving her costs in relation to that Application, pending any other Application regarding costs more broadly.
Contributions
In general terms, I accept the characterisation of contributions set out in the Wife’s submissions in relation to the contributions during the marriage as being basically equal. There is little in the Husband’s submissions that relevantly challenges this account, other than some fine-tuned parsing of a few matters that really make little difference to contributions during the relationship.
The parties had few assets at the commencement of the relationship, and during it, both parties worked and earned income and both were involved in the care of the children. For a significant part of the relationship, the Husband was (in somewhat colloquial terms) the predominant “bread-winner” and the Wife the person primarily responsible for homemaking. That said, the Wife undertook employment outside the home when she could.
During the relationship the Husband’s parents gifted the parties a significant sum, by way of a series of individual gifts of money. The total sum was $280,000. The issue here, at trial and to be determined is whether this was a gift solely to the Husband or to the couple. Perhaps unsurprisingly, the Husband asserts the former, while the Wife contends for the latter.
It is uncontested that the funds were used by the parties to pay down joint mortgages and or into joint account(s). According to authority, the onus is upon the party to provide evidence in support of that party’s position. Here, the Husband could have, but did not, call his Mother in relation to her intention (and that of her deceased Husband) regarding the payment of these sums of money.
In the recent Full Court decision in Mabb, the plurality of Ainslie-Wallace and Aldridge JJ said, at [37] – [38]:[78]
[37] Each party bore an evidentiary onus to establish the facts to support their respective contentions. While it is reasonable to assume, as the Full Court did in Kessey, that the presumed intention of the donor is to advantage the child in the marriage, it is no more than an evidentiary device. Clearly as Fogarty J said in Gosper, that presumption can be rebutted by evidence of the actual intention that accompanied the gift and in this case, the transfer of the land to the parties jointly is a “strong indicator” of intention.
[38] True it is that in this case, there was no direct evidence from the husband’s mother about what she (and her husband) intended when they transferred the land to the parties, her Honour’s conclusion was an inference drawn from the facts and circumstances of the evidence before her Honour which included the fact that the transfer of the property was to both of the parties. There is no error in such an approach and the wife was not obliged to call evidence from the husband’s parents.
[78] Mabb & Mabb (2020) FLC 93-947.
The third member of the Full Court in Mabb, Kent J, commented to similar effect, at [110] – [120].
In all of the circumstances, and in particular the failure of the Husband to call his Mother regarding the intention of the donors of the monetary gifts, plus the fact that the funds were used to benefit both parties with the paying down of joint debt and the family more generally, in my view clearly points or leads to the inference that the gifts were to both parties. Should it need to be noted, the failure to call a relevant witness – here the paternal Grandmother – will entitle the Court to view that failure as significant. More formally put, based upon the principles outlined in the long-standing decision in Jones v Dunkel, an unexplained failure to call a material witness may (not must), in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case.[79] In my view, given how contested the issue of the “monetary gifts” was, and that the intention of the Father’s parents was crucial, his unexplained failure to call his Mother was a significant omission.[80] The relevant inference must, in my view, be drawn.
[79] Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-321.
[80] The Father’s evidence, such as it was, was to the effect that he did not know that he could or should. Given the experience of his lawyers, this cannot and is not a suitable or otherwise apposite “explanation.”
In my view, in the light of the evidence canvassed above, it cannot be disputed that since separation, the Wife has had the greater proportion of the care of the children, thus for some 3½ years or so (as at the date of the trial in October 2020). The period of primary care is even greater now of course. None of this is said critically of the Husband; it is a statement of fact.
It is also a statement of fact that between August 2017 and August 2019 the Husband paid no child support.
Next, I accept the following propositions: (a) between August 2017 and 17th January 2018, the Wife and children resided at the former marital residence. During this period the Husband lived with his Mother and paid her no rent; (b) following the Husband’s insistence, the Wife and children left the former marital residence and rented elsewhere, while the Husband lived at that residence. Thus, the Husband lived rent- and mortgage-free at the former marital residence while the Wife and children lived in rental accommodation. The Wife said that she has paid in excess of $70,000 in rent as at the time of the final hearing. Obviously, when the children lived with the Husband it was at the former marital residence. I accept that the Wife’s rental was without any financial assistance from the Husband. These factors are relevant to the assessment of contributions.
In my view, in the light of all the evidence, there should be a relatively modest contribution-based assessment in the Wife’s favour of 4.5%
Section 75(2) factors
There is a significant difference in the income of the parties. Although the Husband says that he does not work full-time because of his care of the children, and thereby earns approximately $120,000 per year, in my view, the Court can and should consider the Husband as being capable of working full-time, especially where there is no medical or other independent evidence to support his contention: alas, another significant and unexplained omission. His full-time earning capacity, on the limited evidence, is approximately $180,000 + per annum. The Wife’s annual income is approximately $70,000.
Even taking into account the Wife’s modest H Super Fund pension of $17,000 per annum, her income is significantly less than that of the Husband.
As already noted a number of times, the Wife has, and will continue to have, the primary care of the children.
In my view, on the very limited issues under this section of the Act, there should be a modest assessment in the Wife’s favour of 7%.
Regarding superannuation, given the income disparity between the parties, but also having regard to their relatively young years, meaning that they each have a significant period of time available in their income-earning lives to accumulate reasonable amounts of superannuation, in my view, there should be a further adjustment to the Wife in this regard of 6%.
Disposition & conclusion
At the so-called “fourth step” in property proceedings, the Court is required to assess whether the overall result is relevantly “just and equitable” for the purposes of s.79(2) of the Act.[81]
[81] See AJO & GRO 33 Fam LR at [46], and Bevan 279 FLR at [59] – [85]..
Accepting, as there must be, that there is invariably a certain, general “range” within which property Orders might reasonably be made, in the light of the evidence and findings made throughout these reasons, including the findings and assessments made regarding contributions, and the s.75(2) factors, in my view a just and equitable division of the parties’ property is 60% in the Wife’s favour, and 40% to the Husband. The disposition and division of the parties’ property, reflecting that percentage division, should be as sought by the Wife as noted in the Aide-memoire provided for the purposes of the final hearing. In my view, those Orders, and the percentage division I have determined, are just and equitable in all of the circumstances.
I noted earlier in these reasons the Court’s decision to reserve the Wife’s costs regarding the Application to re-open to adduce new and updating evidence regarding the value of the B Street, Suburb E property. Absent any other Application regarding costs more generally within 14 days, I will deal with that discrete Application for costs based on the submissions already filed.
I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 3 November 2021
w
0
10
0