WADE and BRAUN
[2013] FCWA 31
•8 APRIL 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WADE and BRAUN [2013] FCWA 31
CORAM: MARTIN J
WALTERS J
HEARD: 31 MARCH, 1-6 & 21 APRIL, 9 MAY 2011, 8 FEBRUARY 2012 & 4 FEBRUARY 2013
DELIVERED : 8 APRIL 2013
FILE NO/S: PTW 5286 of 2008
BETWEEN: JANE MARY WADE
Applicant
AND
DANIEL MICHAEL BRAUN
Respondent
Catchwords:
FAMILY LAW – PARENTING – where mother seeks sole parental responsibility and father seeks equal shared parental responsibility – whether the presumption that it is in children’s best interests for parents to have equal shared parental responsibility applies – whether the presumption has been rebutted – effect of earlier consent orders for equal shared parental responsibility – where parties choose not to communicate with each other on a face-to-face basis for their own reasons – where parties otherwise able to communicate with each other – order for equal shared parental responsibility made
FAMILY LAW – PRACTICE AND PROCEDURE – evidence – conduct of proceedings – obligations of legal practitioners – requirement to ensure that parenting cases are focused on the criteria set out in the Family Court Act (1977) (WA) and relevant considerations – where mother ran a wholly negative case – where aspects of the cross-examination were improper
FAMILY LAW – PROPERTY – alteration of property interests under the Family Court Act (1977) (WA) – consideration of the parties’ respective contributions – consideration of s 205ZD(3) factors
Legislation:
Family Court Act 1997 (WA), Part V, s 51, s 66, s 66A, s66C, s 70A, s 70DA, s 84, s 89, s 89AC, s 89AD, s 89AA, s 205ZD, s 205ZG.
Family Law Act 1975 (Cth), Part VII, s 60B, s60CC, s61DA, s 64B, s 65DAA, s 75(2), s 79.
Evidence Act 1995 (Cth), s 44
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms V Amidzic
Respondent: Ms G Anderson
Solicitors:
Applicant: Amidzic Lawyers
Respondent: Richard Warner & Associates
Case(s) referred to in judgment(s):
B & B (2006) FamCA 883
Bonacci & Bonacci (2012) FamCAFC 15
Carpenter & Lunn (2008) FLC 93-377
Champness & Hanson (2009) FLC 93-407
Chappell & Chappell (2008) FLC 93-382
Collu & Rinaldo (2010) FamCAFC 53
DL & W (2012) FLC 93-496
G & G (2004) FamCA 1179
Gollings & Scott (2007) FLC 93-319
Goode & Goode (2006) FLC 93-286
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
Hungerford & Tank [2007] FamCA 637
In the marriage of Bremner & Bremner (1995) FLC 92-560
In the marriage of Clauson & Clauson (1995) FLC 92-595
In the marriage of Ferguson & Ferguson (1978) FLC 90-500
In the marriage of Ferraro & Ferraro (1993) FLC 92-335
In the marriage of Lee Steere & Lee Steere (1985) FLC 91-626
In the marriage of McLay & McLay (1996) FLC 92-667
In the marriage of McMahon & McMahon (1995) FLC 92-606
In the marriage of Money & Money (1995) FLC 92-485
In the marriage of Pastrikos & Pastrikos (1978) 31 FLR 524
In the marriage of Pastrikos & Pastrikos (1980) FLC 90-897
In the marriage of Rice & Asplund (1979) FLC 90-725
In the marriage of W & W (1980) FLC 90-872
In the marriage of Way & Way (1996) FLC 92‑702
In the marriage of White & White (1995) FLC 92-648
In the marriage of Whitely & Whitely (1996) FLC 92‑684
Jets & Maker (No 2) [2011] FMCAfam 1473
Kennon & Kennon (1997) FLC 92-757
M & S [2006] FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mayne & Mayne (2011) FLC 93-479
Mazorski & Albright(2007) FamLR 518
McCall & Clark (2009) FLC 93-405
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Norbis v Norbis (1986) 161 CLR 513
Omacini, AJO & Omacini, GR (2005) FLC 93-218
OSF & OJK (2004) FLC 93-191
Pender & Haywood [2007] FamCA 1526
Pierce & Pierce (1998) FLC 92-844
Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133
Russell & Russell (1999) FLC 92-877
Sealey & Archer [2008] FamCAFC 142
Stanford & Stanford [2012] HCA 52, (2012) 87 ALJR 74
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Williams & Williams (2007) FamCA 313
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1In these Reasons, and unless otherwise indicated:
(a)all statements of fact comprise findings of fact;
(b)I have referred to the parties as the mother and the father (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent, or the de facto wife and the de facto husband;
(c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate “in tandem” and exercise similar jurisdiction); and
(d)I have referred to the Family Court Act 1997 (WA) as the FCA and the Family Law Act 1975 (Cth) as the FLA.
2Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”.[1] I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, section 84(2) of the Family Court Act 1997 (WA). See also Carpenter & Lunn (2008) FLC 93-377 and Chappell & Chappell (2008) FLC 93-382.
3I will record, at this stage, that the mother was represented at trial by Ms Amidzic. The father was represented by Ms Anderson.
Background
4The father was born in 1971, and the mother in 1972. They commenced a relationship in 1993 and became engaged in 1998. They commenced cohabitation in 1998. Separation occurred in October 2008. The parties never married.
5There are three children of the relationship: [Benjamin] (born [in] 2004) and twins, [Nathan] and [Sally] (born [in] 2006). The children live with the mother.
6The father is a credit analyst. He has been employed by a number of financial institutions. He has always worked on a full-time basis. At the commencement of cohabitation, the mother was a legal secretary. After [leaving this position], she obtained employment as a “typist” (see the mother's financial statement sworn 22 December 2010). In broad terms, she has worked in clerical or secretarial positions. Until Benjamin's birth, she worked on a full-time basis. Thereafter, she worked on a part-time basis. A job sharing position that she held in [employer omitted] was made redundant in July 2012 and she has effectively been unemployed since September 2012.
7In April 1998 (which was prior to the commencement of cohabitation), the parties – together with the mother’s parents – purchased a residential [Property 1]. The purchase price was $226,000. Property 1 was registered in the joint names of the parties and the mother’s parents.
8The house on Property 1 was dilapidated, and required renovations before the parties could live in it. Among other things, electrical and plumbing work was done to the house, and the kitchen was improved. Significant work was done to the garden and surrounds to make the home more attractive. Although the amount spent on the improvements was relatively modest, the effect was dramatic (see, for example, Exhibits 3 and 7). I shall refer to the work done at this time as “the preliminary renovations”.
9The preliminary renovations were planned and organised by the mother. The father did much of the labouring associated with them. I am satisfied that the preliminary renovations were a joint effort of the parties.
10In March 2002, the father ceased employment with [Bank A] (for whom he had worked for approximately 12 years). As a consequence, he received a net payout (including leave entitlements) of in excess of $50,000. He then worked for the [Bank B].
11In late 2005, the parties moved from Property 1 to a residential property across the road (“Property 2”). The move occurred because the parties were aware that the mother was having twins and a decision had been made to the effect that the twins should not be born in Property 1, where additional, major renovations were due to commence. The purpose of the renovations was to transform Property 1 into a substantial and comfortable home for the family.
12Property 2 was owned by the mother’s mother.
13In early 2006, the major renovations to Property 1 were commenced. I shall refer to this work as ‘the major renovations’. Around the same time, Property 1 was subdivided into two lots – to be known as [Lot A] and [Lot B] of Property 1. The house was situated on Lot A of Property 1, which had street frontage. Lot B was an empty block, behind Lot A.
14In the remainder of these Reasons, and unless otherwise indicated, references to Property 1 should be taken as references to Lot A of Property 1.
15In approximately May 2007, the mother ceased employment with a law firm for which she had worked since October 1993 (although with time off for the birth of the children, and on something other than a full-time basis after Benjamin’s birth in January 2004). Upon leaving the law firm, she received a total payout of just over $44,000.
16The mother returned to work ([employer omitted]) in November 2007.
17In July 2008, the parties and the children moved from Property 2 into Property 1, upon partial completion of the major renovations.
18In October 2008, the mother ceased her employment at [employer omitted].
19The parties separated on 7 or 8 October 2008, when the mother left Property 1 with the children. Thereafter, and until December 2008, she and the children lived with her parents.
20The father continued to live in Property 1.
21The mother commenced a new, part-time secretarial position at a law firm in early October 2008, immediately after separation.
22On 31 October 2008, the mother filed an application for final orders, together with an application in a case. The father filed a response to the application in a case on 6 November 2008. The applications and response related to property issues. Among other things, the mother sought an order for exclusive occupation of Property 1, and orders enabling her to complete the major renovations and sell Property 1. The father opposed these orders.
23The parties’ competing interim applications came on for hearing before Mr C J Judges M on 10 November 2008. Both parties were represented. Judges M delivered brief Reasons for Decision on 26 November 2008.
24In his Reasons, the learned Magistrate recorded that the Court had heard oral evidence from both parties supplementing the affidavit evidence, and that both parties were cross-examined. Both counsel also made submissions. The learned Magistrate also said:
(a)Property 1 is the major asset of the parties, but it is common ground between them that neither can finance a property settlement that would enable Property 1 to be retained and hence it will have to be sold as soon as possible.
(b)It is not possible to tell how long it will take for the property to sell.
(c)There are “some renovation works to the value of perhaps $25,000 that should be carried out prior to sale”.
(d)The mother has been responsible for liaising with builders and contractors in the past and she should continue to carry out that role:
... it is accepted that historically [the mother] has been the party has been responsible for liaising with the builders and contractors who have been engaged to carry out the renovation works on the family home. In the opinion of the Court [the mother] should continue to fulfil that role. Even if [the father] remains living in the family home for the present it is important that [the mother] have for access to the home for the purpose of supervising the contractors as that has been her role in the past.
(e)The issues in the case are “finely balanced”, in that there are factors which weigh in favour of each party’s application for exclusive occupation. What is clear, however, and what both parties accept, is that “it is neither reasonable, sensible nor practicable” for the parties to continue to reside in the same house. It follows that only one of them can live in the home until the property is sold.
(f)It would be “convenient for the parties” for the father to continue to live in Property 1:
[The father’s] continued presence in the home will be strictly on the condition that he pays all of the mortgage instalments and other outgoings on the Property 1s and when the same fall due and does not allow any of the outgoings to fall into arrears. The father’s occupation of the family home would also be conditional upon him fulfilling his promise to obtain funds from his parents to complete the building works. Those advances from his parents would certainly be a debt secured against the equity of the parties in the matrimonial home by court order. His parents should have peace of mind that any advances made by them will be repaid upon the sale of the home.
25The learned Magistrate made orders on 26 November 2008 in accordance with the above Reasons. Relevantly, the orders were as follows:
1.Until further order [the father] do pay as and when the same fall due all instalments of principal and interest due ... in relation to the mortgage on the family home and further pay as and when the same fall due all of the outgoings in relation to the property such as the Council and water rates.
2.[The father] do proceed to complete ... the renovation to the family home.
3.Any expenditure paid for by [the father’s parents] in relation to the renovations shall be a debt of [the mother] and [the father] jointly to be repaid upon the sale of the home or the resolution of the property proceedings.
26On 21 November 2008, the parties had filed amended documents setting out the orders sought by each in relation to parenting issues. Thus, in addition to orders dealing with property, the orders made on 26 November 2008 included provisions to the effect that the father was to have contact with the children – such contact to take place in the presence of the father’s father or the father’s sister.
27In approximately December 2008, the mother and the children moved from her parents’ home into a residential property that her parents had purchased for her. The property was at [Property 3]. The mother’s parents also purchased a car for her.
28Although a dispute arose between the parties as to the division of chattels and other items in Property 1, it is apparent that the mother had the ability to enter the house on the property at any time until (at least) late November 2008, when her application for exclusive occupation of the property was refused. Indeed, in his Reasons for Decision dated 26 November 2008, the learned Magistrate wrote:
Historically, the mother has been the party who has orchestrated and supervised the builders and contractors who have been engaged to carry out building works on the home. She should continue to fulfil her role in that regard [without] hindrance by the father. Indeed, the Court would expect that the father would comply with any reasonable request by the mother for him to absent himself from the home when [the mother] may be attending upon an appointment with a builder or a contractor in relation to building works, quotes or inspections.
29Immediately after the Court dismissed her application for exclusive occupation, the mother withdrew $1,000 from the parties’ joint mortgage account – seemingly on advice from her then solicitor. Given that the father was obliged to service the mortgage payments, the mother’s actions could fairly be regarded as provocative. The evidence reveals that the mother’s actions impeded constructive negotiations as to a fair division of the chattels and other items in Property 1 (see Exhibit 5 and 5 April 2011 transcript, pages 3 to 8). During cross-examination at trial, the mother suggested that the father’s actions in endeavouring to negotiate what he perceived to be a fair division of the chattels and other items in Property 1 were “done to cause hardship and difficulty ... and cruelty to his own children” (5 April 2011 transcript, page 7). I reject the mother’s assertion in that regard. There was nothing to prevent her from removing items of her choice from Property 1 during the weeks following separation, and the father was as entitled as the mother to put forward his proposals as to the manner in which relevant items should be divided. The mother’s attitude appears to be that the father should have immediately and unconditionally agreed to whatever division the mother deemed appropriate.
30After the mother withdrew the amount of $1,000 referred to in the preceding paragraph, the father and members of his family removed the household contents from Property 1 and stored them elsewhere. I have said more about this event elsewhere in these Reasons.
31As a consequence of the removal of the household contents from Property 1, the mother filed an application in a case on 23 December 2008. The father filed a response on 23 January 2009. Following lengthy negotiations between the parties, orders were made on 2 February 2009 dividing the household contents (or the majority of the household contents) between the parties. The division was expressed to relate to “the question of interim possession of chattels”, and the orders of 2 February 2009 have attached to them a lengthy “interim caretaking list” allocating a large number of items to each of the parties. The list had been agreed between the parties, with each taking turns to select items to add to his/her respective column.
32On 9 February 2009, further interim orders were made dealing with the father’s contact with the children. Relevantly, the earlier requirement that contact be in the presence of the father’s father or sister was dispensed with. In other words, from 9 February 2009, the father’s contact with the children was unsupervised.
33Further orders were made on 9 February 2009 to the effect that the parties have equal shared parental responsibility for the children, and the children live with the mother.
34On 23 February 2009, various orders were made, including –
(a)an order that, until further order, the parties be restrained by injunction from drawing down on the mortgage account for purposes other than meeting the mortgage payments (unless the parties have otherwise agreed beforehand); and
(b)an order that the parties be restrained by injunction from “removing or allowing to be removed” any remaining chattels from Property 1 (unless the parties have otherwise agreed beforehand).
35The parties attended a Child Dispute Conference with a family consultant on 6 November 2009. The Conference Memorandum relating to the conference speaks for itself.
36On 6 November 2009, Judges M heard further argument regarding contact arrangements. In his Reasons for Decision dated 7 December 2009, the learned Magistrate summarised the dispute before him as follows:
In these interim children’s issues proceedings the court is required to determine a matter of quite narrow compass. Essentially, the mother wishes to reduce the frequency of the father’s overnight midweek contact and to limit weekend contact to the alternate weekends. The father wishes to extend his weekend contact and to maintain his overnight midweek contact on Wednesday night. The parties have been unable to reach agreement on a number of special occasions and holiday contact arrangements.
37On the first page of his Reasons for Decision dated 7 December 2009, the learned Magistrate emphasised that the parties “have agreed and the Court has already ordered by consent that the parties both have equal shared parental responsibility”. On the second page of his Reasons, the learned Magistrate wrote:
The court needs to draw to the attention of the parties and counsel the fact that on 5 December 2008, and at the invitation of counsel no less, the court pronounced orders by consent that conferred upon the parties equal shared parental responsibility for their children Benjamin, Sally and Nathan. The order appears on its face to be a permanent order.
38I am unable to determine from the material presently before me whether the order for equal shared parental responsibility was made on 5 December 2008 (as the learned Magistrate indicated) or 9 February 2009 (as I have indicated above). It is likely that little turns on the precise date that the order was made.
39After discussing the relevant law and summarising the parties’ competing proposals, the learned Magistrate continued in his Reasons:
[In] relation to children’s issues of the ongoing dispute between the parties is escalating far beyond the scope of resolution at an interim hearing. ...
Some (but certainly not all) of the issues raised by [the mother] in her affidavit material go to the very heart of the question as to whether or not unsupervised contact is in the best interests of the children. Of course, that presupposes that [the mother’s] allegations are true. If the allegations were not true then that would, of course, raise serious issues for her. ...
The court cannot see how [the serious allegations raised by the mother] can be properly investigated without the appointment of a single court expert and/or the proceedings being listed immediately for trial in open court so that witnesses can be called and cross examined.
40At the conclusion of his Reasons, the learned Magistrate indicated that the Court would “publish these preliminary reasons and await advice from counsel as to whether matter should proceed from here”.
41It appears that no orders were made on 7 December 2009, but on 23 December 2009, consent orders were made dealing with the father’s contact with the children at Christmas 2009, on the children’s birthdays in 2010 and during Easter 2010. The consent orders did not include any provision to the effect that the contact be supervised, or even that it be in the presence of any other person. Nor did the consent orders deal directly or indirectly with the learned Magistrate’s comments to the effect that an order for equal shared parental responsibility had been made, by consent, approximately a year earlier.
42Property 1 was sold in late 2009. The sale price was $965,000. At settlement on 14 December 2009, the net proceeds of sale (amounting to just over $663,000) were deposited in a solicitors’ trust account. Thereafter, the father moved to live with his parents.
43A further Child Dispute Conference was held on February 2010. The Conference Memorandum contains the following comment:
Despite the parties having attended the Mums and Dads Forever Program there is a very poor relationship between the parties and the only communication is via the communication book. [The mother] said [the father] still writes vitriolic material against her in the book [but the father] denies it. [The father] alleges that everything [the mother] raised at the conference today is lies and all her evidence on file is lies. [The mother’s] position is that everything [the father] does or doesn’t do is aimed at hurting her because he is bitter that the relationship is over and he is acting to make her life difficult. ...
Both parties appear to want the matter to go to trial so that the evidence will prove that the other is in the wrong.
I recommend no further mediation will be of benefit in this matter.
44In relation to the children’s contact with the father after separation, the situation is adequately summarised in the single expert report dated 28 March 2011, prepared by Cris De Rooster (which I shall call “the family report”):
After the parents separated, the children lived with the mother and did not see the father for three months after which the Court ordered that the children spend time with the father. Initially the contact was under supervision of the father’s parents or sister. Then the children spent unsupervised contact with the father on a Wednesday evening 7 PM through to Thursday morning 8:45 AM and every weekend, either on a Friday 7 PM through to Saturday 7 PM or on a Sunday 9:30 AM through to Monday 8:45 AM. The contact with the father ended in August 2010.
45During cross-examination, the mother said that the relevant period was in fact six weeks and not three months. She said that the father saw the children on only one occasion during that period: he spent less than half an hour with them on his birthday in 2008. The parties had arranged for the children to spend time with their father at a park, but because of inclement weather the mother took the children to a nearby McDonald’s and told the father that they could see him there. The father had not wanted to spend his time with the children in McDonald’s, but was left with little alternative if he wished to see the children.
46In mid August 2010, and as a consequence of concerns that she then had regarding the children’s welfare, the mother took steps to prevent the father spending time with the children. According to the father, he had no idea as to why the mother had seen fit to terminate his contact with the children. The mother asserted that Benjamin had told her a number of things about the father’s behaviour towards him, including that the father had hit him in the stomach or in the chest. She conceded (1 April 2011 transcript, page 44-5) that this was the only occasion of which she was aware on which the father had allegedly caused physical injury to the children, or allegedly physically disciplined them or any of them.
47According to Dr [GP] (who had treated both parties in the past), the mother telephoned his clinic on 16 August 2010 and made an appointment for him to see Benjamin on 18 August 2010. Dr GP saw Benjamin on his own 18 August 2010. He said:
During my consultation with Benjamin, he told me unprompted that [the father] had hit him in the chest twice because “I wouldn’t tell who went to the pizza shop with us when no one did”; that he had been locked in a room for something his sister did and was scared and alone; that he does not want to go on Wednesday as [the father] keeps him up late; that [the father] said that he will kill [the mother] and put her in the fire and [Baz] (a male friend of the mother) also; that he wants [the father] to be nice to him and not nasty and that he’d been smacked on the bare bottom.
48Dr GP said that he considered himself “duty-bound to report the matter to the Department of Child Protection, and did so”.
49During cross-examination, however, Dr GP said that the mother had come to see him on 10 August 2010 (in other words, six days before the mother made an appointment for him to see Benjamin, and eight days before he actually saw Benjamin). At the appointment on 10 August 2010, the mother told him that (among other things):
Dad made Benjamin write it down who Mum sees, and Dad punched him in the stomach (9 May 2011 transcript, page 44).
50It follows from the above, and Dr GP conceded during cross‑examination, that Dr GP was well aware, beforehand, as to why Benjamin was coming to see him on 18 August 2010. He seemed discomforted by the suggestion in his affidavit that the appointment had been made on an urgent basis. It had not. Further, Martin J raised with Dr GP the fact that – according to his notes – the mother told him that the incident allegedly occurred around Mother’s Day, some three months before she brought Benjamin in to see him.
51Dr GP also said that Benjamin came into his rooms and proceeded to make the various statements recorded in his notes. He offered no clear explanation as to why Benjamin had apparently told the mother that the father had punched him in the stomach, but told him (Dr GP) that the father had hit him (twice) in the chest.
52In relation to the report to the Department of Child Protection, Dr GP said that, in effect, he was endeavouring to protect himself in case anything happened to Benjamin in the future. In other words, so that it could never be alleged that he had not done as much as he could have done to act protectively. He added (9 May 2011 transcript, page 48):
I wasn’t making a decision about whether I thought the child was at risk.
53The father denied that he had behaved in the manner described by Benjamin.
54In due course, the allegations were investigated, including by the WA Police. They were not substantiated. On 10 December 2010, the Court received a response from the Department for Child Protection to a Form 4 Notice of Child Abuse filed by the mother in September or October 2010. In the response, the DCP officers wrote:
As part of the Police and DCP investigation into the allegations of physical abuse of Benjamin by [the father], Benjamin was formally interviewed ... on 23 August 2010. Benjamin's recollection of the alleged physical harm by [the father] was hazy and kept changing. This coupled with the lack of medical evidence to support the allegations resulted in no further action by police. Also DCP did not substantiate the allegations.
It appears that there is considerable conflict between [the father and the mother], which is having an impact on the children. Following investigation no further action was taken by police or DCP regarding the allegations of physical abuse of Benjamin. As such there is no evidence at this stage to support that Benjamin or any of the children are unsafe in either of their parents care.
55Dr GP saw all three children on 20 October 2010, at a time when they were not seeing the father. Among other things, he said that they obviously missed seeing their father (9 May 2011 transcript, page 50).
56The trial commenced before her Honour Justice Martin on 31 March 2011 and occupied approximately nine days over approximately 11 months. At the completion of the trial, the parties were ordered to file closing submissions in writing, and judgment was reserved. By mid May 2012, both parties had filed their closing submissions. Unfortunately, Martin J was unable to complete the judgment before her death on 1 October 2012.
57At the commencement of the hearing on 18 January 2012, Martin J made a number of comments for the benefit of the parties (18 January 2012 transcript, pages 15-18). For example, her Honour said:
... there is far too much detail in the case, and I’m afraid this comes out in [the mother].
Now, it’s been prepared in an extraordinarily thorough manner, but there is no way that I’m going to write a judgment at the end of this minutely examining every person who did any work on the home or whether they cleaned a brick or carried a brick or scraped or whatever; this is not what this is about. ...
Broadly, the issue is that whereas [the father] says he made enormous personal contribution after separation and his work on the renovations, [the mother] says ... he has grossly overestimated all that, lots of other people did the work and, yes, some work was done ... I don’t want this to be a minute examination in my judgment, and it won’t be of the pros and cons of these tiny details ...
... I don’t think it’s necessary [to go into minute detail in closing addresses], but I just need the broad summary of what everyone is saying in this regard, and I am prepared to accept the evidence shows that everyone worked really hard on this property, it was very much that [the mother], [the father] did a lot of work, the families did a lot of work, other people have done a lot of work ... and as long as I make findings broadly about the sort of thing I have just said then I think that’s all I have to do, because I just have to come down to the percentages. ... That doesn’t mean to say that I intend to overlook all this evidence or anything like that, but I’ve just got to reach a broad conclusion, which I have to justify to some extent, so the parties know what I’ve decided, but I don’t have to say ‘well, I believe one witness on that and not the other on that and, yes, this one has overestimated on this and underestimated on that.’
[In relation to section 205ZD(3) factors] it’s obvious that there’ll be a slight adjustment in the favour of [the mother], but ... one of the issues is that clearly [the mother] can rely on fairly substantial assistance from her parents in the future ... and I appreciate it’s not been said that they are so wealthy that that is of enormous significance, but they have been of assistance to her and they obviously are still at the moment.
58As explained below, I agree with her Honour that there is far too much detail in the case and that it is unnecessary (indeed, it is impossible in a practical sense) to minutely examine every aspect of the work done or not done (or allegedly done or not done) by the father and his father (among others). I also agree with her Honour that the evidence to that point demonstrated that both parties (and others) had worked very hard to improve Property 1. Realistically, it makes no difference whether the father did as much work as the mother thinks that he should have done, or whether the quality of the work that he did could have been improved. There can be no doubt (as Martin J observed) that the father (and his father) had done a great deal of work on the property. The fact that tradesmen did a substantial amount of work, or even the vast majority of the work, does not diminish the nature of the contributions made by the father or on his behalf.
Directions hearing on 29 October 2012 (before Thackray CJ)
59Having regard to the death of Justice Martin on 1 October 2012, and because these proceedings had not been concluded, a directions hearing was held on 29 October 2012. The hearing was conducted by the Chief Judge.
60Both parties were represented at the hearing.
61It was not in dispute that the most expeditious way to resolve the proceedings would be for a newly appointed Judge to decide the matter on the basis of the evidence as it stood – subject to the new Judge having the opportunity to see and hear from the parties if he/she was minded to do so.
62The outcome of the directions hearing was that the proceedings were adjourned to 4 February 2013 – before me. Both parties were given leave to file a further affidavit updating issues relating to the parenting and financial disputes.
Narrowing of issues in dispute
63To the parties’ credit, a significant number of issues were resolved on 4 February 2013. The vast majority of parenting orders were agreed. Similarly, the identity and value of the parties’ property was also agreed – save for one item. Thus, the only issues remaining for determination after the hearing on 4 February 2013 were these:
(a)Whether an order for equal shared parental responsibility should be made (or whether an order should be made to the effect that the mother have sole parental responsibility for the children).
(b)Whether the debt to the father’s parents is $69,490 (as the mother asserts) or $82,490 (as the father asserts).
(c)What property settlement orders should be made?
64It was not in dispute at the conclusion of the hearing on 4 February 2013 that I would be required to write a judgment based on the material filed before Martin J, the transcript, any relevant video or audio-recording of the proceedings and the draft reasons for judgment prepared by Martin J prior to her death. Nor was it in dispute that the parties, by agreeing to the process described above, had not thereby abandoned any right of appeal that they may have in relation to the substance of all relevant findings made (whether by Martin J or by me).
65I have read all the evidence presented by both parties, but – having regard to the concessions made, and agreements reached, on 4 February 2013 – I do not propose to summarise it or to dwell on those aspects which do not relate to the issues still in dispute. Having said that, I confirm that I have carefully considered the evidence bearing on the issues remaining for my determination.
Agreed parenting orders
66On 4 February 2013, it was agreed that the following orders can be made by consent:
General provisions
(a)The children spend time with the father:
(i)commencing Friday 8 February 2013 until the end of the first school term in 2013 – each alternate weekend from 6.00 pm on Friday until 5.00 pm on Sunday; and
(ii)thereafter, each alternate weekend from 6.00 pm on Friday until Monday at school (or Tuesday if the weekend is a long weekend).
(b)During school holidays, the children spend time with the father as follows:
(i)in the first term holidays 2013 – from Monday at 9.00 am to Friday at 6.00 pm;
(ii)in the second term holidays 2013 – from Monday at 9.00 am to Friday at 6.00 pm;
(iii)in the third term holidays 2013 – from Monday at 9.00 am to Sunday at 6.00 pm, and thereafter in each term holiday; and
(iv)one 7 day period during the third week in January of each Christmas school holiday period, commencing on the third Monday of January in each year.
(c)The time referred to in paragraph (b) above be suspended during the term school holidays (but not during the Christmas school holiday period).
Christmas Day/Boxing Day
(d)The children spend time with the father:
(i)from 6.00 pm on Christmas Eve to 11.00 am on Christmas Day commencing in 2013, and thereafter in each alternate year; and
(ii)from 11.00 am on Christmas Day to 5.00 pm on Boxing Day commencing 2014, and thereafter in each alternate year.
Easter
(e)The children spend time with the father:
(i)from 6.00 pm on Thursday before Good Friday to 6.00 pm on Easter Saturday in 2013, and thereafter in alternate years; and
(ii)from 6.00 pm on Easter Saturday to 6.00 pm on Easter Monday in 2014, and thereafter in alternate years.
Mother’s Day/Father’s Day
(f)The father spend time with the children from 5.00 pm on the day prior to Father’s Day to 6.00 pm on Father’s Day.
(g)If Mother’s Day falls during the father’s time with the children, then the father’s contact be suspended from 5.00 pm on the Saturday before Mother’s Day to 6.00 pm on Mother’s Day.
Mother’s Birthday/Father’s Birthday
(h)If the father’s birthday falls on a weekday, then the father spend time with the children from 6.00 pm on the father’s birthday to the following day at school (at 8.45 am).
(i)If the father’s birthday falls on a weekend during which the father would not ordinarily be spending time with the children, then the father spend time with the children from 9.00 am to 7.00 pm on his birthday.
(j)If the mother’s birthday falls during the father’s time with the children, then the father’s time be suspended as follows:
(i)in the event of the mother’s birthday falling on a weekday – from 6.00 pm on the mother’s birthday to 9.00 am on the following morning; and
(ii)in the event of the mother’s birthday falling on a weekend – from 9.00 am to 7.00 pm on the mother’s birthday.
Children’s Birthdays
(k)The children spend time with the father from 6.00 pm to 7.30 pm should a child’s birthday fall on a day not on a weekend and not during any time spent with the father, with the father to collect the children from the mother’s residence and return the children to the mother’s residence at the conclusion of contact.
(l)The children spend time with the father from 2.00 pm to 6.00 pm should a child’s birthday fall on a weekend, and not during any time spent with the father.
(m)The father’s time be suspended from 6.00 pm to 7.30 pm should a child’s birthday fall on a day not on a weekend and not during any time spent with the mother, with the mother to collect the children from the father’s residence and return the children to the father’s residence at the conclusion of contact.
(n)The father’s time be suspended from 2.00 pm to 6.00 pm should a child’s birthday fall on a day during the children’s contact period with the father.
Travel
(o)The father and the mother each be at liberty to take the children away from Perth within Australia for two blocks of one week in each year, such blocks to be during school holidays only.
(p)The children must not be removed from Perth at any time that would interfere with the time the other parent is entitled to spend with the children, unless otherwise agreed.
(q)The children must be returned to Perth by 5.00 pm on the day immediately prior to the day upon which school is to commence.
(r)The parent taking the children must give the other parent 14 days notice of his/her intention to travel and the proposed itinerary.
Telephone communication
(s)The father and the mother must permit the children to telephone the other parent whenever he/she is reasonably requested to do so.
Information exchange and school activities
(t)The father and the mother must:
(i)keep each other informed of their residential address, landline home telephone number and work number;
(ii)urgently advise the other in the event either of the children is seriously injured or becomes seriously unwell while in their care; and
(iii)otherwise agree that this order shall be authority to the children’s medical and educational providers to discuss with either parent the children’s care, welfare, development and treatment.
Injunctions
(u)The father and the mother be restrained by injunction from:
(i)denigrating the other party or their friends or relatives when the children are present;
(ii)allowing the children to read any Family Court documents or correspondence connected with Family Court proceedings;
(iii)discussing the Family Court proceedings and the issues raised in the proceedings with the children or in their presence; and
(iv)removing the children from Australia without the written consent of the other parent.
Variation of arrangements/communication
(v)The father and the mother shall be at liberty to have the children spend time with them other than as set out in these orders, provided such variations are agreed in writing.
Orders sought
67As indicated above, the mother seeks sole parental responsibility for the children. The father seeks an order for equal shared parental responsibility.
68In relation to property settlement, and in broad terms, the mother seeks orders to the effect that the property available for distribution be divided as to 80% to her and 20% to the father. The father seeks orders to the effect that the property be divided on the basis of 60% to the mother and 40% to him. Put another way, the mother’s case is that the first 60% of the property pool should be allocated to her, with the balance to be divided equally. The father’s case is that the first 20% of the property pool should be allocated to the mother, with the balance to be divided equally.
Parenting Orders – The Law[2]
[2] This generic summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
69Applications concerning children of parents in Western Australia who are not and have never been married (or, more accurately, applications for parenting orders) are dealt with in Part V of the Family Court Act 1997 (WA) – which, as I have explained, I shall call the FCA. Part VII of the Family Law Act 1975 (Cth) – which, as I have also explained, I shall call the FLA – is the comparable Commonwealth legislation.
70In this summary, and unless otherwise indicated, subsequent references will be to the provisions of the FCA.
71The Full Court carefully analysed the structure and effect of a significant portion of Part VII of the FLA in Goode & Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of “parenting orders”, and by referring to FLA section 64B (FCA section 84), which includes, among other things, a list of the matters with which a parenting order may deal. For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
72Parenting orders dealing with the allocation of parental responsibility for a child can also deal with “the allocation of responsibility for making decisions about major long-term issues in relation to the child”.[3] Such issues include (but are not limited to) important questions regarding a child’s education, religious and cultural upbringing and health. A proposed change to a child’s name, or proposed changes to a child’s living arrangements, which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent’s decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[4]
[3] FCA s 84(3).
[4] See the definition of “major long term issues” in s 7A of the FCA.
73If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[5] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[6]
[5] FCA s 89AC; see also Pender & Haywood [2007] FamCA 152656.
[6] FCA s 89AD.
74As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 66A:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
75The objects of Part V, and the principles underlying it, are set out in s 66. They are important.
76The objects of Part V are:[7]
… to ensure that the best interests of children are met by:
(i)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
(ii)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(iii)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(iv)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
[7] FCA s 66(1).
77The principles underlying these objects are:[8]
… that (except when it is or would be contrary to a child’s best interests):
(i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(ii)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(iii)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(iv)parents should agree about the future parenting of their children; and
(v)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[8] FCA s 66(2).
78Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
(a)“maintain a connection” with and “develop a positive appreciation” of it; and
(b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child’s age and developmental level, and the child’s views).[9]
[9] FCA s 66(3).
79Given that all the expressed objects of Part V are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child’s best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child’s best interests is crucial. The subject is dealt with in s 66C, which directs the Court to consider a relatively lengthy list of factors before determining what is in a child’s best interests.[10] The list is divided into two parts, the first comprising “primary considerations”, and the second comprising “additional considerations”.
[10] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s 66C(6) of the FCA.
80The primary considerations are set out in s 66C(2). They are:
(a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
81The additional considerations are set out in s 66C(3). They include:[11]
[11] This list is not intended to be comprehensive. It is simply a summary of the factors in s 66C(3). The actual factors set out in s 66C (3) – or, more accurately, those of them that are relevant – will be considered later in these reasons.
(a)any views expressed by the child, and any factors that the Court thinks are relevant in determining the weight that should be given to those views;
(b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
(c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
(e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child’s right to maintain personal relations and direct contact with both parents on a regular basis);
(f)the capacity of each of the parents, and of any other relevant person, to provide for the child’s needs (including his or her emotional and intellectual needs);
(g)the child’s maturity, sex, lifestyle and background (including the child’s culture and traditions);
(h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
(j)any relevant family violence, or
(k)any family violence order;
(l)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”; and
(m)any other fact or circumstance that the court considers relevant.
82Section 66C(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s ‘track record’ as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[12] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[13]
[12] FCA s 66C(5).
[13] FCA s 66(4)(c).
83Although the primary considerations are listed before the additional considerations, they will not always ‘outweigh’ them.[14] Clearly, the primary considerations “should be accorded particular importance in determining what order will best promote the interests of the child”, but they will not always determine the outcome of the proceedings.[15] Further:[16]
Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions.
… (It is not necessary to determine whether other factors serve to) “displace” one of the primary considerations. Rather, (the Court is) obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as (it thinks) appropriate in arriving at the result most likely to promote the child’s best interests. … (Particular emphasis must be placed on the primary considerations) not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance the child’s best interests.
[14] Champness & Hanson (2009) FLC 93-407 at [101].
[15] Marsden & Winch (No 3) [2007] FamCA 1364.
[16] Marsden & Winch (No 3) at [77-78].
84In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the “preferred” approach is to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”, although an approach which involves examining evidence of the nature of the child’s relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances.[17] Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
[17] McCall & Clark (2009) FLC 93-405 at [117-122].
85The Full Court in Goode summarised the above process as follows (referring to the FLA provisions then in effect):[18]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC.... The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[18] Goode & Goode (2006) FLC 93-319 at [10].
86Notwithstanding the Full Court’s reference to a “framework”, and to the context in which the factors comprising that framework are to be considered, a trial Judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[19] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[20]
[19] See, in a different context, In the marriage of McLay & McLay (1996) FLC 92-667 at 82,901.
[20] FCA s 89(1).
87When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility.[21] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[21] FCA s 70A.
88The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[22] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that “it would not be appropriate in the circumstances” for it to be applied.[23]
[22] FCA s 70A(2) and the definition of “family violence” in s 5.
[23] FCA s 70A(3); it is important to note, however, that the Full Court in Goode (at [78]) held that the discretion in FLA s.61DA(3) (FCA s70A(3)) should not be exercised “in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.”
89In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted “by evidence that satisfies the Court that it would not be in the best interests of the child” for the parents to have equal shared parental responsibility.[24]
[24] FCA s 70A(4).
90Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[25]), the Court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[26] and in the child’s best interests. If it is both of these things, then the Court must consider whether it should make an order to that effect.[27] If the Court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending “substantial and significant time”[28] with each parent would be both reasonably practicable[29] and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect.[30]
[25] See for example, Goode at [46] and [47], and Pender & Haywood [2007] FamCA 1526 at [44].
[26] How a court determines “reasonable practicality” is the subject of s 89AA(5).
[27] FCA s 89AA(1).
[28] “Substantial and significant time” is defined in s 89AA(3).
[29] How a court determines “reasonable practicality” is the subject of s 89AA(5).
[30] FCA s 89AA(2); see also Goode at [43] and [44].
91In MRR v GR (2010) 240 CLR 461, the High Court said (referring to the comparable FLA provisions):
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-sections (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
335It follows that the overall distribution of the property between the parties should be on the basis of 62.5% to the mother (being 57.5% for contribution, plus 5% to take account of the s 205ZD(3) factors), and 37.5% to the father.
336Clearly, the observations which I have already quoted from G & G (2004) FamCA 1179 and Steinbrenner & Steinbrenner [2008] FamCAFC 193 also adhere to the exercise of judicial discretion that I have just performed in relation to the s 205ZD(3) factors.
Just and equitable?
337As explained above, the parties in this case had separated well before the commencement of property settlement proceedings. It is arguable, therefore, that the express and implicit assumptions that underpinned the property a arrangements that they had made during their cohabitation had been “brought to an end by the voluntary severance of the mutuality of the marital relationship”. It follows that it can be considered just and equitable that the Court should make a property settlement order (which order is to be determined by applying s 205ZG(4) of the FCA, including the s 205ZD(3) factors).
338In any event, I propose to (metaphorically) step back and consider whether the outcome achieved by my consideration of the parties’ contributions and the s 205ZD(3) factors has brought about a just and equitable result.
339The Full Court has cautioned against assessing the FLA equivalent of the s 205ZD(3) factors in percentage terms only, without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is “the critical issue” (see Clauson (1995) FLC 92-595).
340In the present case, the s 205ZD(3) adjustment equates to approximately $37,980 (being 5% of $759,558). I am satisfied that such an adjustment is proper. Indeed, I am also satisfied that the adjustment is proper when regard is had to the difference between the mother’s overall entitlement (being 62.5%) and the father’s overall entitlement (being 37.5% per cent), which difference equates to 25% of the property pool (or approximately $189,890).
341I am very conscious that justice and equity must be done to both parties, and I am satisfied that the split that I have proposed achieves that result.
342It follows that the mother should receive property (including superannuation) to the total value of approximately $474,724 (being 62.5% of $759,558). The father should receive the balance (being property to the value of $284,834).
Effect of orders
343I have concluded that the mother is entitled to 62.5% of the property available for distribution between the parties (including superannuation).
344The orders of 26 November 2008 provided that any expenditure paid for by the father’s parents in relation to the renovations was to become a debt of the parties jointly to be repaid upon the sale of Property 1 or the resolution of the proceedings, and both parties have treated the debts to their respective parents as being payable from the proceeds of the term deposit. I have found that the amount owing to the father’s parents is $82,490. The amount owing to the mother’s parents was agreed at $30,000.
345If the liabilities referred to in the preceding paragraph are paid from the moneys presently held in trust, then (ignoring any interest currently accrued) the amount remaining in trust will be $600,558 (being $713,048 less $82,490, less $30,000).
34662.5% of $759,558 is $474,724. It is clear, however, that the mother will be retaining approximately one half of the chattels (with a value of $5,000), and her superannuation (with an agreed value of $50,000). In other words, the mother will be retaining property (including superannuation) with the net value of $55,000. It follows that she should receive $419,724 from the proceeds of Property 1 in order to bring her overall entitlement to 62.5%.
347But the proceeds of sale of Property 1 are invested and are earning income. To avoid confusion, it seems reasonable to calculate the amount that the mother is to receive as a percentage of the funds invested – after allowance for the payment of the debts to the father’s parents and the mother’s parents. $419,724 is 69.89% of $600,558 (which is the balance left in the trust account after payment of the two debts). I propose to order, therefore, that the moneys held in the term deposit (comprising the proceeds of sale of Property 1, together with any interest thereupon) be paid as follows:
(a)$82,490 to the father’s parents;
(b)$30,000 to the mother’s parents; and
(c)thereafter, the balance of the moneys (including interest) be divided as to:
(i)69.89% to the mother; and
(ii)30.11% to the father.
348It follows that the mother will be retaining:
(a)69.89% of the moneys currently invested, including interest;
(b)the furniture, chattels and effects presently in her possession; and
(c)her superannuation entitlements.
349The father will be retaining:
(a)30.11% of the moneys currently invested, including interest;
(b)the furniture, chattels and effects presently in his possession;
(c)will his Subaru motor vehicle; and
(d)his superannuation entitlements.
Summary of proposed orders
350It is clear from these Reasons, that there should be orders to the following effect:
(a)All previous parenting orders be discharged.
(b)The parties have equal shared parental responsibility for the children Benjamin, Nathan and Sally.
(c)The children live with the mother.
(d)Additional parenting orders as set out under the heading “Agreed parenting orders” above.
(e)As and by way of property settlement:
(i)The mother and the father do forthwith sign all such documents and do all such acts and things as shall be necessary to cause the moneys currently held on trust for the benefit of the parties (being the net proceeds of sale of Property 1, including all interest earned thereupon) to be divided between them as follows:
(A)$82,490 to the father’s parents;
(B)$30,000 to the mother’s parents; and
(C)thereafter, 69.89% to the mother and 30.11% to the father.
(ii)The mother indemnify and keep indemnified the father from all debts, liabilities and obligations of the father relating to or arising out of any claim (of whatsoever nature) by her parents, or either of them, or by any other member or members of the mother’s family, based upon, regarding or associated with –
(A)the debt of $30,000 owed by the mother and the father to the mother’s parents; and
(b)any other moneys owed or allegedly owed by the father, or by the mother and the father jointly, to the mother’s parents, or either of them, or to any other member or members of the mother’s family,
and from all actions, proceedings, costs, claims and expenses in respect thereof.
(iii)The father indemnify and keep indemnified the mother from all debts, liabilities and obligations of the mother relating to or arising out of any claim (of whatsoever nature) by his parents, or either of them, or by any other member or members of the father’s family, based upon, regarding or associated with –
(A)the debt of $82,490 owed by the mother and the father to the father’s parents; and
(B)any other moneys owed or allegedly owed by the mother, or by the mother and the father jointly, to the father’s parents, or either of them, or to any other member or members of the father’s family,
and from all actions, proceedings, costs, claims and expenses in respect thereof.
(iv)The mother retain for her sole use and benefit, and the father do forthwith transfer and assign to the mother all his share and interest (if any) in –
(A)the furniture, chattels and effects presently in her possession;
(B)all moneys standing to the credit of the mother in any account in any bank, building society or other financial institution; and
(C)the mother’s superannuation entitlements.
(v)The father retain for his sole use and benefit, and the mother do forthwith transfer and assign to the father all her share and interest (if any) in –
(A)the father’s Subaru motor vehicle;
(B)the furniture, chattels and effects presently in his possession;
(C)all moneys standing to the credit of the father in any account in any bank, building society or other financial institution; and
(D)the father’s superannuation entitlements.
(vi)Except as otherwise provided for in these orders –
(A) all of the mother’s right, title, share and interest in any property or financial resource in the name of the father do forthwith vest in the father; and
(B)all of the father’s right, title, share and interest in any property or financial resource in the name of the mother do forthwith vest in the mother.
(f)All extant applications otherwise be dismissed.
(g)Subject to the following paragraph:
(i)the mother must file and serve any application for costs (in the form of an application in a case), together with a single supporting affidavit, by not later than 4.00 pm on Monday, 22 April 2013 – and not otherwise;
(ii)the father must file and serve any response to such an application (in which the father may seek an order for costs against the mother if he is minded to do so), together with a single supporting affidavit, by not later than 4.00 pm on Monday, 6 May 2013 – and not otherwise; and
(iii)the mother must file any reply to the father’s response, together with a single supporting affidavit, by not later than 4.00 pm on Monday, 13 May 2013 – and not otherwise.
(h)Each affidavit referred to in the preceding paragraph must –
(i)in the case of the affidavits referred to in subparagraphs (i) and (ii), comprise a maximum of 12 pages (excluding annexures);
(ii)in the case of the affidavit referred to in subparagraph (iii), comprise a maximum of 6 pages (excluding annexures); and
(iii)deal with the issue of costs, and only with the issue of costs;
(iv)be able to be read as a “stand alone” document, in that it must not require the reader to refer to previous affidavits sworn by the party (by affirming or adopting such previous affidavits), and relevant passages from previous affidavits must be reproduced in the fresh affidavit; and
(v)contain annexures (if any) which are clearly indexed, paginated, tabbed and identified in the body of the affidavit.
(i)The issue of costs otherwise be adjourned to be listed on a date to be fixed.
351I shall now hear from Counsel as to an appropriate parenting orders program for the parties to attend, or such other order or orders as they consider appropriate in the light of the order for equal shared parental responsibility.
I certify that the preceding [351] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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