VANDERS and HALL
[2020] FCWA 205
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: VANDERS and HALL [2020] FCWA 205
CORAM: DUNCANSON J
HEARD: 15, 16, 17, 20, 21 and 23 JULY 2020
DELIVERED : 19 NOVEMBER 2020
FILE NO/S: PTW 2736 of 2018
BETWEEN: MS VANDERS
Applicant
AND
MR HALL
Respondent
Catchwords:
CHILDREN - Where it is in the best interests of the children that the parties have equal shared parental responsibility for them - where the mother has sole parental responsibility for selecting the primary school to be attended by the children
PROPERTY - Where the application is made within two years after the parties' de facto relationship ended - Where it is just and equitable to make a property settlement order - Where a holistic assessment of the contributions by the parties is undertaken
Legislation:
Family Court Act 1997 (WA) s 9A, s 66, s 66A, s 66C, s 70A, s 89AA, s 205ZB, s 205ZD, s 205ZG
Interpretation Act 1984 (WA) s 13A
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr J Hedges SC |
| Respondent | : | Ms L De Maio |
Solicitors:
| Applicant | : | WA Family Legal |
| Respondent | : | Culshaw Miller |
Case(s) referred to in decision(s):
Chorn and Hopkins (2004) FLC 93-204
Dickons v Dickons (2012) 50 Fam LR 244
Holland & Holland (2017) FLC 93-798
Steinbrenner v Steinbrenner [2008] FamCAFC 193
Trask & Westlake (2015) FLC 93-662
Trevi & Trevi (2018) FLC 93-858
Truman & Clifton [2010] FCWA 91
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vanders & Hall has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1[Ms Vanders], the mother and [Mr Hall], the father are unable to agree about the parenting arrangements for their children [Child A] aged eight years and [Child B] aged seven years. Currently the children live with the mother and spend five nights each fortnight with the father. The father seeks to increase the children's time with him, such that by the beginning of 2021 the children spend equal time with the parties. The mother is opposed to the orders sought by the father for equal time.
THE PARENTING ISSUES IN DISPUTE
2The parenting issues in dispute include the following:
•parental responsibility;
•the live with and spend time arrangements for the children during the school terms; and
•the school to be attended by the children.
THE AGREED PARENTING ORDERS
3The parties were able to agree many parenting issues including the children's arrangements during the school holidays and on special occasions. The parties agreed orders in relation to their communication, handover, provision of information, overseas travel, attendance at special events and restraints as to their conduct. The agreed orders were contained in a minute of final orders by consent which became Exhibit 9.
THE PARENTING ORDERS SOUGHT AT TRIAL
4The mother proposes that she have sole parental responsibility for the children. It is her position that she will consult with the father, but ultimately she would make the decision if agreement could not be reached.
5The mother proposes that during the school term the children live with her and spend time with the father in a fortnightly cycle. She proposes that until the conclusion of 2022, the children spend time with the father each alternate weekend from Friday to Tuesday and commencing 2023, each alternate weekend from Friday to Wednesday and other times as may be agreed.
6The mother proposes that the children continue to attend [School A] while she resides in the catchment area. At trial she foreshadowed moving to [Suburb A] and changing the children's school to one closer to her place of residence.
7The father proposes that the parties have equal shared parental responsibility for the children. He proposes that during the school term the children spend time with him in Week 1 from Friday to Tuesday, and in Week 2 from Tuesday to Thursday. With effect from the commencement of Term 1 in 2021, he proposes that the children spend time with him in Week 1 from Friday to Tuesday, and in Week 2 from Monday to Thursday. In the alternative he proposes a week about arrangement with handover on a Friday.
8With respect to the children's schooling the father seeks an order that the parties be restrained from changing the children's school without the prior written consent of the other party. He opposes the change of school from School A as proposed by the mother.
BACKGROUND AND SHORT HISTORY
9The father was born [in] 1972. He is 48 years of age.
10The mother was born [in] 1973. She is 47 years of age.
11The parties met [in] 2010 and commenced cohabitation [in] 2011.
12Child A was born [in] 2012. Child B was born [in] 2013.
13The parties and the children lived at the father's home at [Property A].
14For the reasons set out below, I find the parties' relationship ended in about [mid] 2017.
15The mother and the children left the family home [in early] 2018 and have since occupied a rental property in [Suburb B].
16Thereafter the children spent time with the father on an ad hoc basis, including overnight according to his roster.
17The mother commenced these proceedings on 18 December 2018 seeking orders with respect to parenting and financial matters. The father filed a response and subsequently an amended response on 3 April 2019.
18On 28 May 2018 orders were made by consent that the children spend time with the father each Tuesday night and each alternate weekend from Friday to Sunday.
19On 18 December 2018 orders were made that the children spend time with the father each Tuesday night and each alternate weekend from Friday to Monday.
20On 4 October 2019 orders were made by consent that during the school term the children spend time with the father each intervening Tuesday night and each alternate weekend from Friday to Tuesday. That was the arrangement in place when the matter came to trial.
THE PARTIES AND THE WITNESSES
21Both parties filed lengthy and detailed affidavits all of which I have read and considered. Where I do not refer to evidence of a party, or part of that evidence, that is not to say I have not taken it into account.
The mother
22The mother was represented by Mr Hedges of Senior Counsel. I consider the mother gave truthful evidence. She was cooperative in cross‑examination. She thought carefully before answering questions. I observed she was somewhat hesitant in making concessions, but I consider this was to ensure accuracy rather than a reluctance to make a concession. For example, she was asked about positive aspects of the father's parenting of the children and took the opportunity overnight to locate those parts of her trial affidavit where she made reference to the father's parenting in positive terms.
23The mother became distressed when speaking of the conflict between the parties, family violence and its impact upon the children.
24The mother is a loving and devoted parent to the children.
The father
25The father was represented by Ms De Maio of counsel. He gave carefully considered responses to questions in cross-examination and I consider his evidence was mostly truthful.
26I do not accept the father's evidence with respect to the incident of family violence [in] March 2018, although I do accept that at the time, like the mother he was shocked by what had occurred between the parties.
27The father was somewhat hesitant in his evidence regarding his mental health. The father said he did not recall saying he felt suicidal. He deposed he had never been diagnosed with depression. In cross‑examination he said that related to major depression, but he had reactive depression after the death of his [pet] in 2010.
28The father made some sensible concessions during the course of his evidence. For example, he conceded that the mother may hold the children's passports and that this was not an issue that the parties should disagree about. He also conceded that on an occasion his use of language to the mother was inappropriate. This was a reference to a text message to the mother in which he stated "I cannot give them back on [my birthday] unless [Child A's birthday] is catered for." There is a degree of rigidity about the father which underlies his correspondence and communication with the mother.
29The father is a loving and devoted parent to the children.
Ms A
30[Ms A] is the maternal grandmother. She was aligned with the mother. She said she had a civil relationship with the father, but when asked, had little positive to say about him.
31Ms A said and I accept that she provides important support to the mother on a practical level. She plays a significant role in caring for the children around the mother's working hours.
32Ms A deposed to a telephone conversation with the mother [in] March 2018 in which the mother told her the father was being aggressive and frightening her and the children. The mother told her she was scared. Ms A said the mother told her the father had pushed her out of the bathroom, however that was omitted from her sworn evidence, she said, because she focused on the mental abuse of her grandchildren.
Ms Hall Snr
33[Ms Hall Snr] is the paternal grandmother. She attended by telephone link from [Country A].
34Ms Hall Snr visited the parties from Country A in December 2017. Her prior correspondence with the mother was warm and amicable. Ms Hall Snr spoke of feeling unwelcome and said she knew there was unhappiness between the parties. Although the family spent Christmas Day together, the mother left on Boxing Day with the children to spend time with her family. Ms Hall Snr said she had known for a long time there were difficulties between the parties.
35Ms Hall Snr said she felt "groomed" by the mother to become her very good friend and that she was taken in completely. Ms Hall Snr was aligned with the father.
Dr C
36[Dr C] is a Clinical and Forensic Psychologist. He was appointed single expert witness on 6 November 2019. Dr C provided a report dated 9 January 2020. Dr C also gave oral evidence.
37In his summary of issues to be investigated Dr C reported at [2]:
The parties are highly intelligent, capable people who had a relationship which has been difficult, in particular the mother claiming the father had been controlling, emotionally abusive and, at times, physically reactive; the father claiming the mother orchestrating abuse claims, such as getting [Child A] to run to a neighbour's house, by inducing fear.
(as per the original)
38Dr C further reported that the parties' disagreement was predominantly around how the children's time with their parents should be shared stating "the father is adamant that it should be equal time, the mother believing the children would be better off on an unequal shared arrangement".
39Dr C reported that the current arrangements appear to be working well for the children. Dr C recommended that rather than having two returns, the children should spend a continuous four night block with the father for two more years and then add a fifth night. He further recommended that when the children start high school consideration should be given to whether a week about arrangement would be in their best interests.
40Dr C recommended the children spend equal time with their parents during the school holidays.
41Further to his recommendation as set out above, Dr C said in his oral evidence that in addition to a four night block, the children should have an opportunity to see the father in the intervening week because a nine or 10 day gap is too long without doing so. He had no strong view on whether that intervening time should be an afternoon and dinner, or an overnight. He said that it would depend on the evidence as to changes in routines, for example bedtime etc. If that was problematic Dr C said the time in the intervening week would tend not to be overnight, but he thought there was some flexibility about this.
Ms B
42The parties attended family therapy with [Ms B], Clinical, Counselling and Forensic Psychologist. Ms B provided a report dated 30 November 2018. Ms B's report was tendered into evidence by consent.
43In her summary and discussion, Ms B reported that in the observation sessions the children showed no marked differences in the manner in which they interacted with their parents.
44Ms B reported that the mother described ongoing difficulties in respect of the children spending time with the father. She described her fears with respect to his parenting and she considered his methods to be inappropriate. The mother was concerned the father was influencing the children and drawing them into adult related matters.
45The father indicated to Ms B that the mother was attempting to control his time with the children and she was inflexible.
46Ms B reported that both parties bore some negative consequences of their relationship. The mother indicated she feared the father and his propensity towards emotional and physical abuse. The father was resentful of the mother and her desire to change him, not meeting his needs in the relationship and not allowing him to be an independent parent.
47Ms B described both parties as vulnerable.
48Ms B reported it was not helpful for the father to discuss arrangements with the children or use them as messengers. She reported he may benefit from counselling. Ms B reported it was important for the mother to manage her anxiety relating to the father.
THE EVIDENCE
49Important matters in relation to which the parties were cross‑examined include those referred to below.
The parties' communication
50The mother said the parties cannot communicate very well. She said they cannot make a decision and there are lengthy arguments between them which are neither healthy nor helpful. The mother said she has engaged with the father about medical decisions but often it results in blame or argument. She consulted with the father when Child A injured his eye [playing sports]. There was no argument between them on that occasion although the mother questioned whether the father had altered the children's hospital records such that the hospital contacted him regarding Child A's follow-up appointment rather than her.
51In 2018 Child A broke [a bone]. The mother said the father [disagreed with] the decisions made by the doctor at [Hospital A] claiming he did not agree with the treatment.
52The parties did not agree as to whether the children should attend school in the last week of Term 1 by reason of COVID-19. The mother explained that her step-father was at high risk and she was concerned about his welfare. She said she listened to government advice and sought the father's input. The mother told the father she intended to keep the children home from school once the Premier had stated it was a parent's choice.
53The father responded he would be sending the children to school. He said that in his view education was important and that children should attend school when they can and not to do so was damaging. The father's recollection was that schools were open and to send children was a parent's choice. He conceded the mother had put a lot of thought into her email to him and he considered it. He accepted the mother was capable of home schooling the children but was concerned about learning continuity. He considered the risk was negligible. The father said both parties exchanged their reasons in correspondence, but did not agree. He accepted that to do differently was confusing for the children and that routine was important for them.
54The parties had a different point of view as to whether the children should attend school and each had good reason for the position they took. Unfortunately it led to conflict and some break in routine for the children.
55The parties have communicated with each other regarding medical issues concerning the children and the mother agreed the father should be involved therein. There are no fundamental differences between the parties in this respect.
56The father said recently there has been an improvement and that the parties have been able to agree some matters.
57The mother deposed the father constantly seeks to change the children's time with him and she finds the volume of texts to be overwhelming. The father now has permanent part-time employment [as a health professional at Business B]. He is able to manage his roster and his hours are known to him. He is unlikely to do any locum work and he will arrange a babysitter if he has to work when he has the children.
58It is likely some of the communication difficulties will lessen by reason of the change in the father's working commitments and his predictable hours. There will also be defined orders made at the conclusion of these proceedings.
59On 12 May 2019 the mother requested a change to the children's arrangements. She had booked a trip to [Location A] with the children and friends, which included 1 June, a date which the father had requested the children spend time with him in lieu of Mother's Day.
60On 23 May the father responded to the mother's request and said he would take the children on 3 June instead of 1 June. The mother agreed to this, but stated she was not returning from Location A until 3 June and said the father should collect the children at 11.00 am that morning from [Location C]. The father insisted that the handover time be 9.00 am pursuant to the orders. The mother accordingly rescheduled her return and said the children could be collected from Location C at 9.00 am. The father insisted that the children be available for collection by him at the mother's home in Suburb B at 9.00 am. It was not possible for the mother to get the children to Suburb B by that time.
61It was put to the father that it should have made little difference to him whether the children's time with him commenced at 9.00 am or 11.00 am, but he disagreed saying that his time with the children was important. In his view the mother could have travelled [earlier that morning] or returned the night before.
62On 3 June, the mother and children arrived at Location C at 9.00 am. The father was not there and the mother drove to Suburb B where she arrived at 9.30 am. The mother described the father's text messages as bullying and asserted that the father's insistence on the children's return at 9.00 am was not in the best interests of the children.
63This was an example of the parties' lack of cooperation as to the children's arrangements. I consider the father's correspondence to have been high handed. The father's insistence on the children's return from Location A at an early hour, with Child A being a child who struggles in the morning, was not sufficiently child focused.
64The children spent time with the father on his birthday [in mid] 2019. This was not the arrangement ordered, but was by agreement of the parties. The mother was travelling with the children to [State A] for a holiday that night and thought the children's return to her care at 7.00 pm was appropriate. Her solicitors had corresponded with the father's solicitors about this, although there was no agreement. Senior Counsel for the mother pointed out that the children were spending time with the father which was not ordered and therefore it was a concession by the mother. The mother messaged the father to say she would collect the children at 7.00 pm. The father responded saying that was not confirmed with his lawyer and they would not be available until 10.15 pm. The mother arrived at the father's home and said the father threatened to apply for a violence restraining order if she did not leave. She contacted the police. The police contacted the father who refused to hand over the children until 10.15 pm. The mother arrived at his home at 10.03 pm, but he retained the children until 10.15 pm.
65The father deposed that the mother requested to travel with the children and advised that she would be travelling to State A in the holidays departing [mid] 2019 at 11.45 pm. The father had requested that the children spend time with him that day which was his birthday. The mother proposed to collect the children at 7.00 pm. The father deposed it was not agreed when they would be returned and he considered it reasonable that the children stay with him until prior to the flight. He told the mother he would make the children available at 10.15 pm. The mother contacted the police. She arrived at the house at 7.00 pm and the father deposed she remained there with the headlights on until 8.00 pm. The mother called the police and returned at 10.00 pm. The father brought the children out of his house at 10.15 pm as he had proposed.
66The father accepted that the mother accommodated the children's time with him on his birthday. He considered their exchange of correspondence to be amicable. The father considered his proposal to return the children at 10.15 pm to be reasonable. He denied his correspondence was bullying and stressed the importance of the children spending time with him on his birthday.
67In one of the text messages, the father wrote "There needs to be give and take. I can not give them back on [my birthday] unless [Child A’s birthday] is catered for." [Mid 2019] was [also] Child A's birthday and the parties had not agreed the time on this day.
68This text message is likely to have caused the mother to be worried because she was planning to travel to State A on the night of the [father’s birthday]. In this message the father suggested he would not return the children on that day unless time on Child A's birthday had been agreed.
69The father's communication was again high handed and was unreasonable. When this message was put to the father he made an appropriate concession that this was "an unfortunate use of language" by him.
70While I can understand both parties' points of view, again I consider the father was less attuned to the children's needs. The father wished to maximise the children's time with him but the mother wished to have the children back in her care in time to prepare for a late night interstate flight. The mother said, and I accept, she was worried the father would not hand the children over to her.
71I do not consider this to be an incident of family violence. On this occasion there was no consensus as to the return time of the children.
The mother's residence and proposed change to the children's schooling
72The children live with the father at his home in [Suburb C]. They live with the mother in her rented accommodation in Suburb B. The children attend School A which is close to both homes and convenient for both parties. The children are happy and settled at School A.
73The mother is employed as [an education professional] at [Company B]. The mother plans to purchase a home close to the maternal grandmother who lives in Suburb A. The mother's sister and the children's three cousins live in [Suburb D]. The children spend time with their cousins regularly.
74The mother described her planned move as relocating back to family and friends. She would access the support provided by the maternal grandmother.
75The mother explained that the travel time from Suburb B to Company B is between 40 and 45 minutes and can be longer. If she moves to Suburb A, the travel time to work would be about 20 minutes. The mother's preliminary proposal is that the children would attend [School C] which she described as similar to School A, although smaller, but with similar values and teaching background. This would readily enable the maternal grandmother to assist with the children's care before and after school. The children would also be able to socialise with children living in their residential area.
76Currently the maternal grandmother drives from Suburb A to the mother's home in Suburb B every morning to get the children ready for school. She then takes the children to school while the mother travels to Company B.
77The father said the children are well settled at School A and said they are doing well with lots of friends. He described them as "enmeshed in the school system there". He is of the view that stability is good for the children. The father is prepared to make some changes to the handover arrangements and try and assist with transport. He would also be prepared to keep the children for an extra few hours to help the mother if he is not working. He was opposed to the upheaval to the children of changing to a new school.
78It was put to the father that if he was not working on the nine days the children were with the mother, the travel to school in Suburb A would not be difficult for him, but he said his concern was for the children. He said the mother's proposed move to Suburb A was not "a major inconvenience" for him. It was also put to the father that travel for the mother would be easier if she lived in Suburb A and the children could conveniently go to the maternal grandmother for out of school care. The father said there were babysitters in Suburb C and the children would be better off with him. He did not agree with the proposition that the benefits of moving to Suburb A were that the children would have time with their maternal grandmother, it would be more convenient to her and it would avoid the cost of out of school care. The father was of the view that the detriment to the children outweighed the benefit to them. He was concerned about the children being able to adjust but Child A in particular. He did not consider it beneficial to take them out of their settled school environment.
79I consider the mother's proposed move to Suburb A is not unreasonable in the circumstances. She seeks and will benefit from the maternal grandmother's support. The move to Suburb A would be far more convenient to the mother as it is closer to her place of work. The mother is currently the primary carer of the children and it would be convenient to her for the children to attend School C, close to her new home.
80The move would be less convenient for the father who lives in Suburb C and seeks to have the children remain at School A.
81The children are doing well. They have no educational difficulties. There is nothing to suggest they would not adjust to a change in their schooling. The arrangements proposed by the mother are likely to enhance her parenting as she will benefit from the practical and other support received from her family living close by.
82 I consider the mother has strong reasons to move to Suburb A and consequently to seek to change the children's school. The father has good reasons for opposing the change of school. An important factor in the determination of this issue will be the living arrangements which I determine to be in the best interests of the children.
Family violence
83[In] March 2018 the father bathed the children. The mother said the father carried Child A to the bathroom. Child A called for her and she said she would sit on the bath stool as usual. The mother deposed the father slammed the door which hit her foot and reopened. The mother deposed as it did so the father pushed her hard in the stomach and she stumbled backwards. She said he again pushed her hard to her stomach. The father then locked himself and the children in the bathroom. The mother called the maternal grandmother. She overheard the father telling the children "assertively" who feeds, bathes and looks after them and that she had brainwashed them.
84The mother deposed after the bath the father upset Child B. The father insisted on speaking to Child A and moved to grab him and the mother told him to run to their neighbour's house. The mother deposed the father picked her up by the waist and threw her to the ground. Child B saw this and began to cry. The mother picked up Child B and ran to the neighbour's home. The father followed. The neighbour called the police.
85The father deposed that he wanted to spend time with the children and told the mother he would bathe and dress them and get them ready for bed. Child B went ahead to the bathroom and the father picked up Child A, and said he did not resist. The father said the mother followed him to the bathroom, and tried to push her way into the bathroom. In evidence he described it as her trying "to barge into the bathroom". He said until that time there was nothing abnormal and the mother's actions upset the children. He put his hand against the door to block the door from opening and she did not get in. He denied this upset the children. The father deposed that at no time did the door hit the mother or did he touch her.
86The father agreed the children were upset and traumatised in the bathroom. The father denied he spoke to the children in the way described by the mother.
87The father went into the dining room to get Child A who said he did not want to go to bed. The father deposed the mother stood between him and Child A and turned her back toward him. The father deposed when he went to go past her, she opened the front French doors and screamed at Child A who was very scared, saying "run, run for your life, run to next door, daddy is after you". Child A went to the neighbour's house and the mother and Child B followed. The father went to the neighbour's house to speak to the children but the neighbour said that was not a good idea.
88In cross-examination the father said the mother's arm was on the door frame and he came into contact with her arm to pass her. He said it was not correct that he picked her up and threw her to the ground. The police incident report states the mother complained she had been thrown to the ground by the father. The report states:
The POI [the father] stated that he brushed past her her [sic] and she deliberately threw herself to the ground. He stated she did this to make him look bad in the custody dispute as she is a very manipulative person.
89The report states Child A then volunteered to the police that "daddy threw mommy to the ground". The report states the father said that the child could not have seen it because he was not there. The report states the father was not able to account for why the victim would throw herself to the ground if there was no one there to see it.
90The father complained to the police that the system favours females and that the police were biased towards the mother and he was being unfairly treated. He complained about the general unfairness of the Family Court system and at one point commented "that he could see why men committed suicide in these circumstances".
91In cross-examination the father questioned the terms of the incident report and said he would have to listen to the recording of it. He described himself as in shock and believed he was unfairly treated.
92To the extent the parties' accounts of this incident differ, I prefer that of the mother for the following reasons:
•I think it more probable that what upset the children in the bathroom was not the mother trying to enter, but the father preventing her from doing so.
•I consider it improbable that the father merely "brushed past" the mother and she threw herself to the ground. It is also improbable that she did this to make him look bad in the custody dispute.
•The terms of the police incident report are consistent with the mother's account of events and not that of the father.
•It is most unlikely that Child A made up the statement he volunteered to the police upon their attendance that the father threw the mother to the ground. It is likely that this was a reference to what he saw. The father could not explain why the mother would throw herself to the ground if as he said, Child A was not there to see it.
93The mother was very upset when she described the father as pacing and yelling with intimidating body language. She said Child A witnessed her being pushed in the stomach. Child A had an outburst at school after this incident and Child B had nightmares as a consequence. The mother said she is fearful of the father in some ways.
94The incident escalated quickly and was distressing for both parties. It has left the mother fearful and anxious. Looking back the father described himself in shock. The children, in particular Child A were exposed to family violence perpetrated by the father against the mother.
95A police order issued [in] March 2018 following the incident. The mother applied for a violence restraining order. The application was resolved between the parties by way of a mutual undertaking which expired on 26 October 2020.
96The mother remained in Property A with the children until April 2018 when she moved into rental accommodation in Suburb B.
The father's mental health
97The mother deposed that the father had been diagnosed as suffering from depression and anxiety. She deposed he was often depressed and would say "I'm having a blue day" or "I feel suicidal".
98The father deposed that the mother had made accusations that he has mental health issues which he denied.
99In 2010 the father consulted his general practitioner who noted the father had been a bit more depressed as a result of the loss of one of his pets in an accident. The father said he was treated for reactive depression and not major depression and he was prescribed a mild antidepressant.
100In 2015 the father saw a clinical psychologist for relationship counselling.
101The father said he has never suffered from anxiety. He admitted he had probably said he had blue days or he was feeling low but he did not recall saying he felt or was feeling suicidal.
102The father deposed that on 4 October 2016 he asked the children if they would like to travel to [Property B] with him. Child A declined, but Child B said she would like to go and he took her to Property B with him. That evening after Child B had eaten, bathed and been put to bed, two police officers attended the property to conduct a welfare check requested by the mother. The father denied there was any conversation between the parties before him travelling about any concerns the mother might have.
103The mother deposed that the father took Child B to Property B just two days after saying he was having thoughts of suicide. She deposed he asked the children if they wanted to go with him and said if they did not do so they would not see him again. Child A declined to go. The mother deposed the father picked up Child B, who remained silent and looked confused, and he took her with him. The mother alleged the father made some concerning statements as a consequence of which she contacted the police who attended Property B. The father said he stayed away for one night, the mother said he stayed away for three days.
104The father denied the mother's concerns were reflected in their communication. He said he was just being a "dad" and having some alone time with the children. He did not see anything inappropriate about asking the children if they wanted to come with him and said he did not know the mother was opposed to it until after he had asked the children. He did not consider the children were too young to make this decision.
105This was a concerning incident for the mother yet the father's view was that she had no cause for concern. I consider that once again the father was less attuned to the children's needs than the mother. I accept the mother was concerned for the children's safety. The children were too young to be asked to say whether they wanted to go with him or not. In this respect the father lacked insight.
The children's emotional wellbeing
106The mother is concerned of this aspect of the children's care by the father. Her concerns include his inappropriate discussions with the children and involving them in adult matters. The mother listens to what the children say and becomes anxious. She became upset when describing the impact of what she described as the father's conduct upon the children. She worries about the father's anger and the standard of care which he provides to the children.
107The mother is concerned that the children and in particular Child A are afraid to reveal their emotions and feelings to the father. The mother was criticised for not reassuring the children that the father loves them and that they shouldn't be afraid of him. In this respect the mother made a good concession that she does not always get it right and that she will consider handling this differently in the future.
108Dr C reported at [53] as follows:
The father and the children enjoy doing physical activities together. They related quite well. I am quite satisfied the father can look after the children in a general sense of meeting their physical and practical needs. He has had some degree of disruption in his past and I suspect that there is a degree of difficulty in understanding the children's emotional needs.
109Dr C referred to Ms B having commented on this aspect of the father's personality and her concern about the attachment disturbance when he was a child, which limits his emotional insight.
110Dr C referred to Child A's wish that time with his parents should be equal and that it was not fair to have different time. Dr C gained the impression from what Child A said that he felt a sense of loyalty and sympathy to the father. He described this as a type of psychological abuse and reported that the father needs to understand the impact of the way he is transmitting messages to the children.
111Dr C was cross-examined extensively about this issue. He acknowledged he did not address it directly with the father during his assessment process. Dr C placed some weight on what Child A said and was of the view that Child A feels upset for the father and is taking responsibility for the father's emotions. When I asked Dr C whether either parent posed a risk to the children he said "No, I would just like dad to lift his game a little bit emotionally." He said he would not categorise the father's behaviour as harmful, but potentially harmful and said if it increased it would become psychologically harmful.
112The father may be disappointed that his behaviour towards the children is seen in this way. It is however an opportunity for him to reflect on this. I consider it may be beneficial to the children if the father attends the programs recommended by Dr C.
THE LAW
113These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").
114In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.
115Section 66 sets out the objects and the principles underlying them.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
116In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the primary and additional considerations. Section 66C(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
117Section 66C(3A) provides that in applying the above considerations the Court is to give greater weight to the need to protect the child from harm.
Parental responsibility
118Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
119Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
120The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there are reasonable grounds to believe a parent has engaged in abuse or family violence. The meaning of family violence is set out at s 9A of the Act which provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) -
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...
121The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
122Child A and Child B have a meaningful relationship with both of their parents and it is to their benefit that it continues.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
123The father has perpetrated family violence against the mother to which the children were exposed. The children are not currently exposed to family violence between the parties at this time and are not likely to be in the future.
124The mother referred to emotional harm to the children by reason of the father's conduct towards them. I consider this a matter to be addressed when considering the parties' capacity to provide for the needs of the children, including their emotional needs.
125As to the father, Dr C reported that he suspected there was a degree of rigidity. However he was not satisfied that it was an unacceptable risk of harm, just a difference in parenting style.
126The mother deposed the father has been diagnosed as suffering from depression and anxiety. The father is not currently suffering from depression or anxiety, although at times in the past he has felt "low" or "depressed". Dr C was of the view that neither parent poses a risk of harm to the children, or to each other. I agree with that view.
127There is not a need to protect Child A and Child B from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either party. The children are much loved and well cared for by both of their parents.
THE ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
128Dr C reported:
These children are young, being 6 and 7 respectively. [Child A] indicated that "Both parents love us a lot" and he was happy with both parents. In regards to particular views, [Child A] was of the view that "I think it should be equal, it's not fair to have different time." This view has largely being influenced by the father. [Child A] said that "Dad looks at photos of us at work; he's saying that he can't wait to see us; I feel that he's alone". The impression I got was that he feels a sense of loyalty and sympathy towards his father. I this is a type of psychological abuse and the father needs to understand the impact the way he is transmitting messages to them.
(as per the original)
129Dr C further reported that he did not pick up a sense of an obligation upon Child A towards caretaking his mother's needs as he did with the father.
130Dr C reported Child B was too young to offer a view.
131I am mindful that the children are aged eight and seven years. I shall give appropriate weight to their views.
132I consider the children enjoy their time with both of their parents. Dr C reported in similar terms.
the nature of the relationship of the child with -
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
133The children have a close and loving relationship with both of their parents. The children have a close relationship with their maternal grandparents and other relatives, including cousins. The children's paternal family live in [Country B]. The children enjoyed the paternal grandmother's visit at Christmas in 2017.
134The children have friends at school and in their social network when with both parents.
the extent to which each of the child's parents has taken, or failed to take, the opportunity -
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
135Both parties have participated in making decisions about major long-term decisions in relation to Child A and Child B although this has not been without conflict. The mother feels bullied by the father. The father considers the mother is controlling. He wishes to be fully involved in all aspects of the children's care.
136Both parties have spent time and communicated with the children. The father wants to spend more time with them than the mother considers to be in their best interests.
137Both parties have fulfilled their obligations to maintain the children, although for an extended period after the parties separated, the father did not pay child support as assessed and significant arrears accrued. Currently both parties maintain the children.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
138At this time the children spend four nights each alternate weekend with the father that is, from Friday to Tuesday. They also spend overnight on the Tuesday in the intervening week. The orders sought by the father involve an increase in the children's time with him. The orders sought by the mother involve a decrease in the children's time with the father. The father proposes an increase in time such that the children are spending equal time with the parties by the commencement of Term 1 in 2021. The mother proposes to maintain the existing alternate weekend arrangement, but to reduce the intervening week time to after school and dinner, but not overnight.
139The children are happy and settled in their current living arrangements. They are accustomed to these arrangements and neither party proposes a change in their circumstances such that there would be a separation from either parent.
140Both parties were of the view that the children were likely to benefit from a settled routine in their arrangements.
141Dr C reported that the current arrangement is "working well for the children". He reported they are happy in the environment and enjoying time with both parents. In Dr C's opinion the children "appear to be thriving". Dr C reported he was not satisfied that changing the arrangement would make it better for the children and there was a risk it would make it worse, especially for Child B who is a little more clingy in her attachment.
142Dr C opined that an arrangement for equal time should ideally be introduced at the start of high school and until that time, Child B is best having the majority of her time in a stable base.
143I place weight on Dr C's view when considering the impact upon the children of any changes in their arrangements for them.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
144The father lives in Suburb C. Currently the mother lives in Suburb B, but proposes to move to Suburb A.
145The parties agree that handovers will take place at the children's school, or at either parent's home with the parent or their agent collecting and delivering.
146Currently there is no practical difficulty and expense. If the mother moves to Suburb A there will be greater travel distance between the parties' homes. The father said this would not be a major inconvenience to him, but he was more concerned about the impact on the children of changing school. A move to Suburb A by the mother will not give rise to practical difficulty and expense such that it would affect the children's right to maintain personal relations and direct contact with either of their parents on a regular basis.
the capacity of -
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs
147Dr C reported he was quite impressed with the children's development. He reported that like all children they are not without some issues but he was of the view that psychologically they were doing exceptionally well.
148The mother described the children as loving children, who are most of the time happy. She said the children love both parents. Both are doing very well. They are well behaved at school.
149The mother is a loving, caring and competent parent. The father is concerned that she does not adequately promote the children's relationship with him. The children have been aware of her anxiety and at times her responses to them have been inappropriate. For example, when the children have made comments about the father she has listened sympathetically rather than encouraging and reassuring the children. To the mother's credit she acknowledged that on occasions she could have handled the situation differently and better.
150The mother is capable of providing well for the children's needs including their emotional and intellectual needs.
151The father too is a loving, caring and competent parent. At times however, he has lacked insight into the children's emotional needs. An example of this is referred to by Dr C at [49] of his report. I have found that on occasions he has been less attuned to the children's emotional needs than the mother. Greater consistency in the parties' parenting styles would be of assistance, although the father assured the Court the children have a sensible bedtime routine, something which was of concern to the mother.
152The father should ensure he does not overburden the children with adult matters. Dr C recommended certain programs which might be of assistance to the father as discussed below.
153The father is capable of providing for the children's needs including their emotional and intellectual needs.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
154Child A is eight years of age. Child B is seven years of age.
if the child is an Aboriginal child or a Torres Strait Islander child -
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
155This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
156The children have a close and loving relationship with both of their parents. This would suggest that neither parent has deliberately undermined the children's relationship with the other.
157It is likely the parties will comply with Court orders in the future.
any family violence involving the child or a member of the child's family
158There has been family violence between the parties.
159There is unlikely to be family violence involving the children, or the parties in the future.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
160The mother applied for a violence restraining order, but this was resolved by an undertaking.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
161It would be preferable to make orders that finalise these proceedings.
any other fact or circumstance that the court thinks is relevant
162Both parties were ordered to enrol and complete the Mums and Dads Forever program. The father has not done so and I consider it important that he do so as soon as practicable. Dr C recommended that there are further programs which might be of assistance to the father, including the Circle of Security program which he said could help give him insight. The father should attend this program too.
CONCLUSIONS
163Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
Parental responsibility
164The mother seeks an order that she have sole parental responsibility for the children. She proposes to consult with the father, but ultimately in the event of disagreement she wishes to make the final decision. The father seeks an order that the parties have equal shared parental responsibility for the children.
165There has been family violence between the parties. The father's behaviour caused the mother to be fearful. The presumption that it is in the best interests of Child A and Child B that their parents have equal shared parental responsibility does not apply. Nevertheless, I turn to consider whether it would be in the children's best interests that their parents have equal shared parental responsibility for them.
166An order for equal shared parental responsibility requires the parties to consult as to major long-term issues regarding the children and to make a genuine effort to come to a joint decision about such an issue. The parties are able to communicate, although at times their communication has been difficult and conflictual. The mother described their communication since October 2019 as amicable.
167Many of the difficulties between the parties occurred when one party sought flexibility and a change in the children's arrangements and agreement could not be reached. I intend to make comprehensive parenting orders as to the children's living arrangements with the intention that this will minimise the scope for conflict between the parties.
168Both parties are responsible and caring parents who want the best for Child A and Child B. It would be in the children's best interests that both parents have input into decisions for their long-term care.
169The parties do not fundamentally disagree as to the children's education. A decision as to whether the children should change schools is to be made in these proceedings. This issue should not therefore give rise to conflict between the parties.
170The father is a health professional. I am not persuaded that the parties' different points of view with respect to health issues was such that it would displace an order for equal shared parental responsibility. I consider any major decision about the children's health should be made jointly.
171Although various parenting issues have required a determination, many others were agreed. Although there is a lack of trust between the parties, my orders will determine the outstanding parenting issues.
172The parties' recent correspondence by text message and email has been child focused and for the most part reasonably courteous.
173I am mindful of the objects of the legislation, including that children's best interests are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child. An order for equal shared parental responsibility is consistent with this.
174I conclude it would be in the best interests of Child A and Child B that their parents have equal shared parental responsibility for them. My orders will set out precisely what the parties are required to do, to give effect to an order for equal shared parental responsibility.
The children's living arrangements
175As I intend to make an order that the parties have equal shared parental responsibility for Child A and Child B, it is necessary for me to consider the specific outcomes as set out in s 89AA of the Act.
176The equal time arrangement proposed by the father to commence in 2021 is a significant change to the children's circumstances which are currently stable and predictable. In his description of the children Dr C said that he was impressed with their development and psychologically both were doing "exceptionally well".
177Dr C reported:
40.The point I would like to stress is that the general presentation of both [Child A] and [Child B] is that the current arrangements are working well for their overall development and the influence from the parties is having a positive mix.
178Dr C reported:
56.As touched on earlier, the children have an unequal arrangement which lands within the shared-care, but not equal-care, range. In my opinion, this is an arrangement which is working well for the children, they are happy in the environments and enjoying the time with both parents. In my opinion both children appear to be thriving. I am not satisfied that changing would make it better for the children and there is a risk of making it worse, especially for [Child B] who is more clingy in her attachment.
326The mother is [an] education professional. Her earnings are $154,000 per year.
327The mother deposed the father has the capacity to earn an income in excess of $350,000 per annum. The question was put to the father that despite never earning less than $300,000 a year in the past, was it still his case looking into the future that he would never seek to earn more than $180,000. The father responded it is unlikely. The mother deposed the father's predicted income for the next financial year will be an estimated $150,000 to $180,000 less than he earned in each of the last 10 years.
328The father deposed he has not changed his job to purposely reduce his income, but primarily to facilitate the parenting of the children and provide more stability for himself and them. He further deposed given his expenses, he does not consider he needs to earn as much and would rather spend more time with the children. The father commenced permanent part-time work at Business B in April 2019 and has a contract for work of 18 hours per week. The father deposed as the position can be emotionally strenuous, coupled with his desire to be an active and engaged parent, his part‑time hours suit him and are suitable in terms of the requirements of the role. He will do occasional locum shifts, approximately one day per month to maintain skills.
329The parties' respective incomes during the relationship are as set out above. In the years 2011 to 2017 the father's gross income was not less than $280,000 each year and was estimated usually at $300,000 per year or more.
330Having regard to the father's previous earnings and taking into account the orders I intend to make for the children's living arrangements, I find the father's earning capacity is at least $300,000. The father has a greater earning capacity than the mother.
331The father has superannuation of $565,269 and the mother has superannuation of $751,243. Each party will retain his or her superannuation.
(c) whether either de facto partner has the care or control of a child of the de facto relationship who has not attained the age of 18 years
332The greater responsibility for caring for the children will rest with the mother. Pursuant to my orders the children will live with her for nine nights and with the father for five nights out of every 14 during the school terms. The children will spend equal time with the parties during the school holidays.
(d) commitments of each of the de facto partners that are necessary to enable the partner to support –
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain
333The parties have the commitments as set out in their financial statements.
334The father continues to meet the mortgage repayments in respect of Property B. He also pays child support.
335The mother pays rent for her accommodation although she plans to purchase a home in which to reside.
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under –
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
336Neither party is eligible for a pension allowance or benefit. The parties have the superannuation benefits as set out above.
(g) a standard of living that in all the circumstances is reasonable
337The parties enjoyed a comfortable standard of living during their relationship.
338Having regard to the parties' incomes, it is likely they will enjoy a comfortable standard of living in the future.
(k) the need to protect a party who wishes to continue that party’s role as a parent
339The mother remains the primary carer for the children.
(l) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation
340The mother has not re-partnered. The father is in a relationship but is not cohabiting with his partner.
(m) the terms of any order made or proposed to be made under section 205ZG in relation to the property of the parties
341Upon my assessment of contributions the mother's entitlement is $1,614,709 and the father’s entitlement is $2,039,442.
342It is agreed the mother's interest in Property B will be transferred to the father and he will be responsible for the loans in respect of that property.
(n) any child support under the Child Support (Assessment) Act 1989 that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship
343The mother first applied for child support in February 2019. The father applied for a variation of the child support order in March 2019. As at October 2019 the father was in arrears of $10,414. The arrears have since been paid. The father currently pays child support of approximately $1,088 per month.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
344I take into account that the property to be received by the father includes an amount of $101,020 by way of paid legal costs which I have added back as a notional asset.
ASSESSMENT OF SECTION 205ZD(3) FACTORS
345Senior Counsel for the mother submitted that if I found the mother was entitled to less than 40% of the parties' net assets, excluding her inheritance, then an adjustment for the s 205ZD(3) factors should be made. I infer her position to be that if I found her entitled to 40% or more of the net assets, excluding her inheritance, there should be no adjustment for the s 205ZD(3) factors.
346Counsel for the father submitted there should be no adjustment for the s 205ZD(3) factors.
347I have taken into account the father's greater earning capacity. I have taken into account the mother's greater share of the care of the children and her greater superannuation benefits. I have also taken into account that the property to be received by the father includes a notional asset in respect of legal costs paid.
348These factors and others discussed under s 205ZD(3), taken as a whole lead me to conclude, in my discretion, that there should be no adjustment for the 205ZD(3) factors.
JUST AND EQUITABLE
349The property in Pool A should be divided 62.5% to the father and 37.5% to the mother. The property in Pool B is to be received 100% by the mother. The effect of this finding as to contributions is that the mother is entitled to receive property in Pool A to a value of $1,223,665 and the father is entitled to receive property in Pool A to a value of $2,039,442. The mother will receive the property in Pool B of $391,044.
350The total of the net assets and superannuation is $3,654,151.
351The father's entitlement is $2,039,442. The mother's entitlement is $1,614,709. The differential is $424,733 which is approximately 12%.
352The father will retain the following:
| Assets | |
| Property B | $670,000 |
| Household Contents (Property B & Property A) | 15,000 |
| Property A | $1,190,000 |
| Overseas property – [in] Country D | $6,544 |
| Motor Vehicle B | $27,000 |
| Motor Vehicle C | $4,000 |
| Bank C Bank Account | $314,921 |
| Boat | $15,000 |
| Addback legal costs paid | $101,020 |
| TOTAL ASSETS | $2,343,485 |
| Liabilities | |
| Home Loan A | $209,210 |
| Home Loan B | $206,085 |
| Credit Card | $2,418 |
| TOTAL LIABILITIES | $417,713 |
| TOTAL NET ASSETS | $1,925,772 |
| Superannuation | |
| Superannuation Fund C | $167,058 |
| Superannuation Fund D | $398,211 |
| TOTAL SUPERANNUATION | $565,269 |
| TOTAL NET ASSETS AND SUPERANNUATION | $2,491,041 |
353The mother will retain the following:
| Assets | |
| Bank B Access Advantage Account | $4,371 |
| Bank B Account (Child A) | $452 |
| Bank B Account (Child B) | $391,044 |
| Motor Vehicle A | $11,000 |
| Household Contents (Rental) | $5,000 |
| TOTAL ASSETS | $411,867 |
| Superannuation | |
| Superannuation Fund A | $737,912 |
| Superannuation Fund B | $13,331 |
| TOTAL SUPERANNUATION | $751,243 |
| TOTAL ASSETS AND SUPERANNUATION | $1,163,110 |
354In terms of the table at [351] above the father retains net assets and superannuation to a value of $2,491,041. This table includes Property A and Property B and associated liabilities.
355In terms of the table at [352] above the mother retains assets and superannuation to a value of $1,163,110.
356The mother's entitlement is $1,614,709.
357To give effect to the percentage division which I have determined to be just and equitable, the father will have to pay to the mother the sum of $451,599.
358The mother does not own a home. She will receive this payment from the father and she retains the balance of her inheritance. She will be able to apply these funds to a purchase of a home if she chooses to do so. The mother is in employment with a good earning capacity and she retains her superannuation.
359The father will pay the sum of $451,599 to the mother. He has some savings which he may apply to that payment. He retains two properties, including Property A which was his at the commencement of the relationship and which is unencumbered. The father retains the loans associated with Property B. He too is in employment with a good income, although his earning capacity is greater than that being exercised at this time. The father retains his superannuation. Both parties should be able to enjoy a comfortable standard of living in the future.
360The father brought Property A into the relationship and the mother received an inheritance after separation. Having regard to these and other matters referred to above and in the context of the relationship of these parties, I am satisfied that the orders I make reflecting this outcome are those which are just and equitable.
THE PROPOSED ORDERS
361Subject to hearing from Senior Counsel and counsel the orders I propose to make are as set out below:
Cash payment
1Within 90 days of orders, the father pay to the mother the sum of $451,599.
Transfer of Property B
2Contemporaneously with order 1 above, the mother shall transfer all her right, title and interest, if any, in the property situate at [Property B] to the father.
3Contemporaneously with the transfer of [Property B] referred to in order 2 above, the father, at his expense, shall do all things necessary and sign any documents required to:
(a)refinance [Home Loan A and Home Loan B], ("the [Property B] mortgages"), secured against [Property B] into his sole name;
(b)discharge in full the [Property B] mortgages and release the mother from the [Property B] mortgages; and
(c)indemnify and keep indemnified the mother against all liabilities in respect of the mortgage repayments, expenses and outgoings in relation to [Property B].
Personal property
4Except as otherwise provided for in these orders, the father forthwith cause to be transferred and assigned to the mother all of his right, title and interest, if any, in and to:
(a)her [Motor Vehicle A];
(b)her [Superannuation Fund A] and [Superannuation Fund B];
(c)the household contents in her possession;
(d)any shares in her name; and
(e)any monies held in any bank accounts registered to her sole name.
5Except as otherwise provided for in these orders, the mother forthwith cause to be transferred and assigned to the father all of her right, title and interest, if any, in and to:
(a)the property situate at [Property A];
(b)the [Country D property];
(c)his [Motor Vehicle B] and [Motor Vehicle C];
(d)his [Superannuation Fund D] and [Superannuation Fund C];
(e)the household contents in his possession; and
(f)any monies held in any bank accounts registered to his sole name.
6Unless otherwise specified in these orders:
(a)each party shall be solely entitled to the exclusion of the other to all other property, financial resources and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank record thereon, or 50% if joint, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property which that party is entitled to pursuant to these orders, including any taxation liability accruing prior to the date of these orders.
7The mother and father pay, indemnify and keep each other indemnified in relation to any liability that is in that party's name or otherwise arises in relation to any asset that vests in her or him pursuant to these orders.
Further Orders
8The parties do all acts and things and sign all such documents required to give effect to these orders.
9All outstanding applications and responses seeking property orders otherwise be dismissed.
10All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
11In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
12In the event of an appeal being lodged prior to the expiration period of 42 days, orders and 10 and 11 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
19 NOVEMBER 2020
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