Walker and Pliego
[2011] FamCA 397
•2 June 2011
FAMILY COURT OF AUSTRALIA
| WALKER & PLIEGO | [2011] FamCA 397 |
| FAMILY LAW - CHILDREN - With whom a child spends time – best interests FAMILY LAW - PROPERTY - Settlement in relation to marriage |
| Family Law Act 1975 (Cth) - Part VII, s 60B, s 60CA, s 60CC(2), s 60CC(3), s 61C, s 61DA(1), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3), s 75(2), s 79(1), s 79(2), s 79(4) |
| Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 Ferraro and Ferraro (1993) FLC 92-335 Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355 Kowaliw and Kowaliw (1981) FLC 91-092 Lee Steere and Lee Steere (1985) FLC 91-626 |
| APPLICANT: | Mr Walker |
| RESPONDENT: | Ms Pliego |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2651 | of | 2009 |
| DATE DELIVERED: | 2 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATES: | 3 September, 10 December 2010 & 11 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Auld |
| SOLICITOR FOR THE APPLICANT: | Tiyce & Partners Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | David Lardner Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Donnell, Legal Aid NSW |
Orders
PARENTING
That the following parenting orders are made in relation to the children M Walker born … October 1996, L Walker born … November 1998 and S Walker born … November 2001 (“the children”).
That all previous orders are discharged.
Parental Responsibility
That by consent the husband and the wife have equal shared parental responsibility for the children.
Live with
That by consent the children shall live with the wife except during the times when they live with the husband pursuant to these orders.
That the children shall live with the husband on a fortnightly cycle as follows:-
5.1.Each alternate Thursday in week one commencing on 9 June 2011, from after school until 8:30 pm, when he shall return the children to the wife’s residence;
5.2.Each alternate week in the second week commencing on 17 June 2011, from after school Friday until before school on Tuesday;
5.3.For one half of all New South Wales school holiday periods, for the second half of school holidays which commence in odd numbered years and the first half of school holidays which commence in even numbered years;
5.4.Between 12:00 noon Christmas Eve and 3:00 pm Christmas Day in odd numbered years, the children to live with their mother during these times in even numbered years;
5.5.By consent, on the children’s birthdays as follows:
5.5.1.If the child’s birthday falls on a weeknight, from 5:30 pm to 8:00 pm;
5.5.2.If the child’s birthday falls on a weekend, from 10:00 am to 2:00 pm;
5.5.3.If the children are living with their father on the birthday of one of them, his time with the children shall be suspended and the children shall spend time with their mother in accordance with paragraphs 5.5.1. and 5.5.2.
5.6.At such other times as may be otherwise agreed between the parties in writing, and, that email and/or SMS communication shall be sufficient for this purpose.
That when Mother’s Day falls on a Sunday in a weekend the children are living with the husband, he shall return the children to the wife’s home at 9:00 am on Mother’s Day.
That when Father’s Day falls on a Sunday in a weekend the children are living with the wife then the husband shall collect the children from the wife’s home at 9:00 am on Father’s Day.
That for the purposes of residence changeovers on non-school days, the husband or his nominee shall collect the children from the wife’s residence at the commencement of his time with the children and shall deliver the children to the wife’s residence at the conclusion of his time with the children.
That the husband shall attend to all changeovers personally unless there is an emergency in which case he can arrange for a member of his family to attend in his place.
Communication
That the husband shall have telephone and email communication with the children each day at all reasonable times and with reasonable frequency.
Other
The parents will both be entitled to attend all events involving the children including:-
11.1.Sporting fixtures;
11.2.Extra curricula activities that allow for parental attendance;
11.3.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
And the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children's transportation to and from that event unless otherwise agreed between the parties.
That within 14 days of these orders and within 14 days of the children's subsequent enrolment at any school the wife is to do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the husband, at his cost, copies of all of each child's school reports and merit cards, any written material pertaining to each child's academic and extra-curricular activities.
The parties shall ensure that they each keep the other informed of:
13.1.Any medical problems or illnesses suffered by the children while the children are in their respective care
13.2.Any medication/ dosage regime that has been prescribed for the children whilst in their respective care.
That in the event of the children suffering a medical condition or requiring urgent medical attention while in the care of either party, or in the event of the children being hospitalised or receiving urgent medical attention, the parent with whom the children are spending time shall notify the other parent as soon as practicable after their first contact with either the medical practitioner, medical centre or hospital.
That each party shall provide to the other party, addresses and telephone numbers for the contact of the children while the children are in their care.
That each party shall have the liberty to send letters, videos, gifts, email and other communication to the children and the other party shall ensure that such letters, videos, gifts, email or other communication is received unopened by the children.
Each party shall be and is hereby restrained from:
17.1.Making critical or derogatory remarks in relation to the other party, or in regard to a member of the other party's household, or any person with whom one party has a current relationship, within the hearing or presence of the children and,
17.2.Each party shall do all things necessary to ensure that no third party makes critical comments about the other party or in regard to a member of the other party's household, or about any person with whom one party may have a current relationship, within the presence or hearing of the children, and each party shall immediately remove the children from the presence of any person or persons engaging in such behaviour.
That both parties are restrained from removing any of the children from Australia without the written consent of the other.
That the parties may make such alternative or substituted arrangements for periods of time that the children have with each party pursuant to these Orders as they agree upon from time to time, provided that any agreed alteration to these Orders shall be reflected between the parties in writing, including email or SMS messages.
That where the wife and husband cannot agree about the interpretation, implementation or enforcement of these orders, then they shall do all things necessary to attend counselling or mediation with Relationships Australia, or any organisation recognised under the Family Law Act or by the Commonwealth Attorney General.
That both the wife and husband shall participate in a group or individual post separation parenting orders program offered by Relationships Australia ( Telephone: 1300 364 277) for the purpose of:-
21.1.Developing and facilitating effective communication practices with each other in their role as parents, and
21.2.Developing consistent and agreed parenting strategies.
The parents shall facilitate their participation in such a program as set out in order 21 above, by completing each of the following steps:
22.1.Contacting Relationships Australia Sydney on 1300 364 277 within seven (7) days of the date of these orders to arrange an appointment for assessment for suitability for intake into the relevant post separation parenting orders program
22.2.Attending the Intake / assessment
22.3.Complying with any appointment times made by Relationships Australia
22.4.Complying with all reasonable rules of Relationships Australia
22.5.Complying with all reasonable requests or directions of the staff of Relationships Australia, including referrals to any other professionals, and
22.6.If Relationships Australia following its intake procedure is unable or unwilling to provide the parties with an opportunity to participate in a post separation program/s as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court,
22.7.Ensure that the children attend any and all appointments arranged at the request of Relationships Australia.
22.8.Each parent shall pay the fees nominated by Relationships Australia for the provision of the relevant post separation parenting orders program.
22.9.Each party shall provide a copy of these orders, and a copy of the Child Dispute Conference Memorandums dated 8 October 2009 and 13 August 2010 to Relationships Australia at the first opportunity, with leave of the Court.
The nature and effect of these orders shall be explained to the children by the Independent Children's Lawyer within 7 days of the date of these orders and the parties shall ensure that the children attend all appointments made with the Independent Children's Lawyer for this purpose.
PROPERTY
That the parties forthwith do all things and sign all documents necessary to transfer the business known as “P Company” to the wife and upon such transfer the wife shall indemnify, and keep indemnified, the husband against all liability of the business.
That the parties forthwith do all things and sign all documents necessary to cause their Northern Suburbs property being the whole of the land in Folio Identifier … to be sold by private treaty at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of NSW or his nominee and that the proceeds of sale be disbursed as follows:
25.1.Payment of agent’s commission, advertising expenses and legal expenses of the sale;
25.2.Payment of any monies due and owing to CBA pursuant to mortgage registered number 7…;
25.3.$2,500 to Ms V and thereafter the wife indemnify, and keep indemnified, the husband in respect of any further claim by Ms V;
25.4.$114,836 plus any further amount owing to Ms W and thereafter the husband indemnify, and keep indemnified, the wife in respect of any further claim by Ms W;
25.5.The net balance to be divided between the parties as follows:
25.5.1.57.57 percent to the husband;
25.5.2.42.43 percent to the wife.
That in the event that the property fails to be sold by private treaty within a period of three months hereof, then each party do all things and sign all documents necessary to cause the said property to be sold by auction at the earliest possible date at a reserve price to be agreed between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of NSW or his nominee and that the proceeds of the said sale be disbursed as follows:
26.1.Payment of agent’s commission, advertising expenses and legal expenses of the sale;
26.2.Payment of any monies due and owing to CBA pursuant to mortgage registered number 7…;
26.3.$2,500 to Ms V and thereafter the wife indemnify, and keep indemnified, the husband in respect of any further claim by Ms V;
26.4.$114,836 plus any further amount owing to Ms W and thereafter the husband indemnify, and keep indemnified, the wife in respect of any further claim by Ms W;
26.5.The net balance to be divided between the parties as follows:
26.5.1.57.57 percent to the husband;
26.5.2.42.43 percent to the wife.
That until the sale of the property the wife continue to pay as they fall due all regular instalments in respect of the mortgage, council rates and water rates in respect of the property and pay forthwith any arrears in respect of the said instalments.
That the wife shall within 30 days sign all documents necessary to transfer to the husband her interest in the Volvo motor vehicle NSW registration number … and the husband shall thereafter indemnify and keep indemnified the wife with respect to any and all debts relating to the vehicle.
Contemporaneously with order 28 above the husband shall do all things and sign all documents necessary to discharge the hire purchase contract existing between Volvo Car Finance (a division of Primus Automotive Financial Services Australia Limited) and the parties.
That the husband shall within 30 days sign all documents necessary to transfer to the wife his interest in the Honda motor vehicle NSW registration number … and the wife will thereafter indemnify, and keep indemnified, the husband with respect to any and all debts relating to the vehicle.
That the husband do all things and sign all documents necessary to transfer his interest in the St George Bank account to the wife (referred to in Exhibit 5).
That otherwise the parties are declared the sole owners respectively of all other property and superannuation in their possession and/or control.
That the interim orders made on 25 November 2009 are discharged and all obligations arising thereunder are discharged with effect from 25 November 2009 and neither party may claim in respect of any non compliance arising thereunder.
That the above property orders not commence operation until 30 June 2011.
That both parties have leave to re-list these proceedings by arrangement with the Associate to Johnston J at any time not later than 29 June 2011 for further submissions in relation to the form of the orders only.
That all exhibits be released.
IT IS NOTED that publication of this judgment under the pseudonym WALKER & PLIEGO is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2651 of 2009
| Mr Walker |
Applicant
And
| Ms Pliego |
Respondent
REASONS FOR JUDGMENT
Introduction and Applications
The parties in these proceedings are Mr Walker and Ms Pliego. For convenience I shall refer to them as “the husband” and “the wife”.
They have been unable to resolve differences concerning parenting arrangements for their children and also in relation to their property.
Background
The wife was born in 1962 and she is therefore 48 years of age. The husband was born in 1967 and he is therefore 44 years of age. The parties met in 1988 and commenced their relationship in 1989. They married in 1993 and separated on 27 May 2008.
There are three children of the marriage, M born in October 1996 who is therefore 14 years of age, L born in November 1998 who is therefore 12 years of age and S born in November 2001 who is therefore 9 years of age.
In 1990 they purchased an investment property in a south western Sydney suburb. The wife contributed $7000 from a superannuation policy and the parties shared the legal costs and stamp duty costs. They rented this property out.
The wife was working full time at the Head Office of a large shopping centre group as a clerk. The husband was studying for a commerce degree at University and working part time.
The parties sold their investment property in mid-1991 and purchased the property at a western Sydney suburb for $140 000. They paid the net proceeds of sale of their south western suburb property towards this purchase.
In 1992 the wife commenced studying towards a Diploma in Business Studies which she completed in 1996.
The parties sub-divided the land on which their western Sydney home stood. The sub-division costs were approximately $90 000. In early 1997 they sold the western Sydney property for $190 000.
They then purchased the property in a north western suburb for $320 000 using the net proceeds of sale of the western Sydney property as the deposit and to fund other expenses.
In late 1997, when M was approximately 12 months old, the wife worked for some 9 or 10 months at X Company until shortly before the birth of L.
In late 1999 the parties sold their north western suburb property for $450 000. They then purchased a house and land package at an outer western suburb for approximately $325 000. They sold this property in mid-2000 for $395 000.
The parties and children then resided at the husband’s sister’s home for 6 months rent free.
They then purchased the property in the northern Sydney suburb, G, for $590,000, moving in after approximately a month which enabled the husband and his father to undertake renovations.
In 2002 the husband was posted overseas for his employment. The family lived in a rented apartment there. They rented their G home out.
While they lived overseas the parties purchased in the husband’s sole name the property at B for $390 000. The wife’s parents and her two brothers lived in this property at a reduced rental.
The wife and children returned to live in Sydney in 2003. The parties found that they were unable to afford to live overseas on only one income. In July 2003 the husband worked between Sydney and the overseas location at two week intervals.
In July 2004 the husband was made redundant. He received a termination payment of $70 000.
In 2005 the parties purchased a business, P Company, for $240 000. This was funded by loans from the husband’s sister and the wife’s sister in the amounts of $120 000 and $80 000 respectively as well as $22 000 drawn on the Commonwealth Bank credit card. The parties operated the business together.
In May 2008 the B property was sold for $410 000. The parties neither made any significant profit nor loss in respect of this property.
As indicated above, the parties separated on 5 May 2008. The wife remained in the former matrimonial home with the children. The husband went and resided with his parents.
The wife had stopped working regularly in the business from approximately January 2008. The husband continued working in the business.
In February 2009 the husband arranged for an employee of the business, Ms J, to manage the business. The husband then commenced employment with his present employer C Pty Limited as a Manager.
The parties repaid the wife’s sister $75 000 of the $80 000 they had borrowed from her to assist the funding of the purchase of the business. They did this by re-financing their G home.
In late February 2009 the wife took control of the business. In mid-2009 the wife dismissed Ms J and appointed a new manager called T. She also changed the locks on the business premises.
In November 2009 the wife again changed the locks on the business premises with the consequence that the husband was unable to access the premises.
On 25 November 2009 this Court made consent orders to the effect that:
·The husband be added as a party to the new business account the wife had opened but not operate on the account;
·The wife pay the usual business expenses including $850 per month to the husband’s sister on the business loan and lease payments on the Volvo motor vehicle; and
·That the husband have access to all accounts linked to all business EFTPOS machines but not operate on such accounts.
The husband formed a relationship with Mr N and they commenced living together in November 2009.
During 2009 / 2010 the husband went on two separate overseas holidays with Mr N firstly to South East Asia and subsequently to the Philippines. They travelled at discounted air fares which Mr N was able to obtain as an employee of an airline.
Credit
The wife
The wife gave her answers to questions in a forthright manner. I regarded her evidence as being fairly reliable although she appeared to have forgotten some of the evidence relating to the state of the loan from her sister Ms V. The wife maintained during the hearing that of the $80 000 which had been loaned by her sister to assist the parties to purchase the business only $75 000 had been repaid. The wife said that $5000 remains owing. The wife appeared to have forgotten the letter from her then solicitors dated 1 April 2009 which informed the husband, amongst other matters, that the wife’s sister had been repaid the $75 000 but that $2500 remained owing.
The husband
The husband appeared to have some difficulty with the process of cross-examination. The husband was not always forthright in his answers to questions during cross-examination. There were also problems with his financial statement. He did not disclose the fact that his partner Mr N was an income earner in his household as required by Part E nor details of Mr N’s income. Nor did the husband indicate in his financial statement that Mr N shares payment of any part of the rent with him. Yet during cross-examination the husband conceded that Mr N contributes to the payment of their rent. Mr N is also named as a tenant on the lease.
Where the evidence of the parties is in conflict, generally I prefer that of the wife.
Parenting arrangements
To their credit the parties were able to agree on the broad framework of the parenting arrangements. This is that they shall have equal shared parental responsibility for the children. It is agreed that the children shall live primarily with the wife but there is some disagreement about the extent of time during which they should live with the husband.
The Independent Children's Lawyer proposed an arrangement for the children to live with their father on a fortnightly cycle as follows:
(a)each alternate Thursday in week 1 from after school until 8:30 pm;
(b)each alternate week in the second week from after school Thursday until before school on Monday, unless Monday is a public holiday when such time will extend to before school on Tuesday;
(c)for one half of all NSW school holiday periods, for the second half of the holidays which commence in odd numbered years and the first half of school holidays which commence in even numbered years;
(d)between 12:00 noon Christmas Eve until 3:00 pm Christmas Day in odd numbered years;
(e)on the children’s birthdays at times as agreed between the parties;
(f)at such other times as may be otherwise agreed between the parties in writing and that email and/or SMS communication shall be sufficient for this purpose.
The Independent Children's Lawyer also proposed specific orders in respect of Mother’s Day and Father’s Day.
The wife disagrees with the children spending time after school with the husband on Thursdays. She has a number of problems with this. Firstly the wife says that the children should have stability during the weeks of school term and that to spend time or be living with their father on Thursdays as proposed by him and the Independent Children's Lawyer would compromise that stability. In any event S has dancing class from 5:30 pm to 6:30 pm each Thursday. For some reason the mother thinks that this might cause a problem in that the father might not be able to take her to dance class. The mother also has a concern that the father would not put the children to bed at an appropriate time. She says that her experience of him is that he would let them stay up too late. The mother also says that she is concerned about whether the children’s father could provide appropriate supervision for their homework.
The parties agree that each of them should be able to have the children in their care on special days such as Mother’s Day and Father’s Day each year. The Independent Children's Lawyer proposed that when the special day fell on the Sunday of a weekend when the children were living with the other parent, then the other parent would return the children to the parent having the special day at 9:00 am that day. But the father is unhappy about such a position. He would prefer orders to the effect that the parent who would enjoy the special day should have the children for the entirety of that weekend rather than just from 9:00 am on the special day.
In relation to the children’s birthdays, after each of the parties had been cross-examined, to their credit, they were able to agree on arrangements for the children’s birthdays. They agreed that if the birthday was to fall on a weeknight then the children would spend time with their father on that occasion from 5:30 pm to 8:00 pm. They also agreed that if the children’s birthday fell on a weekend then the children would spend time with their father from 10:00 am to 2:00 pm on that occasion. They also agreed that if the children were living with their father on their birthday then their mother would enjoy time with them on the reciprocal arrangement, that is from 5:30 pm to 8:00 pm if a weeknight and from 10:00 am to 2:00 pm if a weekend.
Not only was the wife opposed to the children spending time with their father each alternate Thursday in the first week but she was also opposed to this for each alternate week in the second week from after school Thursday until before school on Monday.
In these circumstances the father proposed that rather than spend the Thursday evenings with the children during the second week that the time could be from after school Friday until commencement of school the following Tuesday extending to before school if the Tuesday was a public holiday or pupil free day.
The husband also wished to be able to take the children on holidays overseas. He also sought an order to the effect that in the event that the children travel with either parent overseas that parent shall ensure that the children are supervised by an adult at all times.
It was submitted on behalf of the husband that the objects and requirements of Part VII of the Act require the Court to endeavour to put in place orders which will enable the children to have a meaningful relationship with each of their parents. And it was submitted that the Court is required to consider that time between the children and their father should involve significant and substantial time within the meaning of that expression in the legislation. It was submitted on behalf of the husband that his proposals for the Thursday after school time and in the alternate week for the children to live with him from Thursday to Monday or even from Friday to Tuesday would satisfy the requirements of the legislation. This is particularly because such arrangements would enable him to have some opportunity to have some involvement with the school in the sense that he would be picking them up from school and delivering them back to school, and would enable him to further participate in extra curricular activities such as the dancing classes on Thursdays.
It was submitted on behalf of the Independent Children's Lawyer that the purpose of the Thursdays would be to provide opportunity for the children to have a meaningful relationship with their father. The Independent Children's Lawyer expressed concern about the lack of trust by the wife towards the husband and the poor relationship between the parents which must have an impact on the children. It was submitted that while the husband made no criticisms of the wife’s parenting and indeed made positive concessions, the wife made no similar concessions and made various criticisms about the husband and his capacity to properly supervise the children at all times. In relation to the wife’s concern about the husband’s capacity to properly supervise the children it was pointed out that the wife does not appear to criticise the husband in respect of the care that he has provided to the children on Saturdays.
The Independent Children's Lawyer urged the Court to make the orders suggested by her which would require the parents to attend specific parenting after separation courses. It was to be hoped that one of the programs suggested for the wife would assist her to better manage some of the uncertainties which she appears to feel flow from the husband’s same sex relationship with Mr N.
It was also submitted by the Independent Children's Lawyer that some of the wife’s evidence in cross-examination would suggest that she has involved the children in the ongoing dispute between the parties and that is a matter for concern. On the other hand it was submitted by learned counsel for the wife that any suggestion that she has involved the children in the parties’ dispute was not supported by the evidence. It was submitted that all she had done was to ask the children about whether they wished to see their father at times in addition to what they had been engaged in under the interim orders. I accept this last submission.
There was a strong submission on behalf of the wife to the effect that the evidence supported the arrangement for the children to live with their father on weekends as having been in their interests but that there was no evidence to suggest that it would be in their interests to extend this to weekdays when their major commitment was attending school and undertaking their homework. It was submitted that the wife would regard the children living with their father during the week as a distraction from their regular weekly school routine, that it involved a risk to the regularity of their completing their homework and that their father would not easily be able to take M to her dance lesson and provide appropriately for the other two children during this time. It was submitted that it is in the interests of the children to be with their mother during the week because she lives much closer to their schools and that in all the circumstances for the children to be living with their father on Thursdays after school would not be consistent with their best interests. A similar submission was made in relation to Monday evenings.
It was submitted that there was no evidence which would satisfy the Court that the wife has been negative towards the husband. It was also submitted that the wife’s criticism about the husband’s supervision and her concern that he might not at all times be able to properly supervise them in swimming pools was a genuine concern and ought to be treated seriously. The children had also raised a concern with their mother about the father’s partner walking around the house in his underpants in front of the children.
It was submitted that to the extent that the Court might have a concern about lack of cooperation between the parents the Court could draw some comfort from the fact that the husband was able to speak to the children each day which indicated a reasonable level of cooperation between the parents.
There was a submission to the effect that the husband would like to be able to nominate an adult person to stand in his place for collection and delivery of the children. There was a strong submission on behalf of the wife that if the Court permitted this it would not be very long before the father simply engaged a nominee to undertake this responsibility. This was because it was suggested that in order to collect the children on a school day the father would have to finish work at approximately 2:30 pm which would not be in his employment interests to do.
In relation to the husband’s proposal for overseas travel it was submitted that the wife’s reasons for objecting to such were rational and that overseas travel should not be permitted except with the consent of both parents.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As indicated above the parents have agreed that they will continue to have equal shared parental responsibility for their children.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. As indicated above, the parties have decided that it is not in the children’s interests for them to spend equal time with each parent.
Sub-section 65DAA(2) of the Act provides in effect that if equal time is not going to be ordered, the Court is to consider whether the children spending substantial and significant time with each of their parents would be in their best interests and also be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the children spend with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the children spend with the parent allows the parent to be involved in:
-the children’s daily routine; and
-occasions and events that are of particular significance to the children; and
·The time the children spend with the parent allows the children to be involved in occasions and events that are of special significance to the parent.
In determining what is in the best interests of the children the Court is to consider the matters set out in s 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. They are:
·The benefit to the children of having a meaningful relationship with both of their parents; and
·The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional Considerations – s 60CC(3)
Section 60CC(3)(a) – 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
I am not aware of any particular views expressed by the children which would be relevant to the matters in issue between the parents. Under current interim orders the children spend weekends with their father. I am not aware of any particular difficulties that they have had with this.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The children appear to have a close relationship with each of their parents.
Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Unfortunately the parents have a very poor relationship and there has been considerable conflict and hostility between them. Having said this, they have been able to maintain the weekend visits by the children with their father. I am not aware that there have been any particular problems on return of the children to the care of their mother. This suggests some optimism that the parents will be able to facilitate a relationship between the children and the other parent.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
The Court is not dealing with young children in this case and, as indicated above, they appear to have been able to pass from the care of each of their parents into the care of the other without problems.
Section 60CC(3)(e) – 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.
Both parents live in Sydney and there have not been practical difficulties.
Section 60CC(3)(f) – the capacity of each of the child’s parents and 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.
Each of the parents has demonstrated appropriate capacity to parent each of the children. The wife has made some criticism of the husband as indicated above. These have included that he has not always demonstrated that he can adequately supervise the children and assist them with their homework. In my view these criticisms by the mother have not been supported by the evidence.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
In my view each of the parents demonstrates appropriate attitude to the children and to their responsibilities as parents, apart from not having been able from time to time to protect the children from displays of their poor relationship.
Section 60CC(3)(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
As indicated above the parties have a very poor relationship. Having said this, to their credit, they have been able to agree about the overall structure of their parenting responsibilities and arrangements. It is just that they appear to have difficulty at resolving the detail. It is not clear to me that any particular orders would be least likely to lead to the institution of further proceedings in relation to these children.
Conclusion
As indicated above, amongst the other matters to which I have referred, the Court must clearly have regard to the benefit of these children having a meaningful relationship with both of their parents. As I have said this is a primary consideration under the legislation and in order to achieve this and to endeavour to achieve the intention of Parliament for children to be able to enjoy substantial and significant time with the parent who is not their primary parent, clearly opportunity ought to be provided for them to spend time with their father in accordance with the broad requirements of that provision.
In my view these requirements of the legislation would be more likely to be achieved if a structure of living arrangements between the children and their father were put in place more along the lines of what the Independent Children's Lawyer and the husband are seeking rather than those which the children’s mother would prefer.
So far as the Thursday evenings are concerned during the first week, I must say while I note the wife’s concerns as stated above I am not persuaded that for the husband and children to have this opportunity would not be in the children’s interests. After all, the husband has been able to deliver the children to dance on Saturdays although, apparently, he was assisted by his sister doing this on some occasions. Having said that, clearly the wife does not want the children to spend Thursday evenings with their father for the reasons that she has articulated. Accordingly, in my view, it would be preferable for the weekend time between the children and their father to commence on the Friday after school and continue through to the Tuesday rather than involve the Thursday continuing through to Monday. This would mean that the children would be with their mother on alternate Thursday evenings. Such extended weekends would have the advantage of enabling the husband to have some involvement with taking the children to school and the responsibilities that go along with that.
I am not enamoured with the submission on behalf of the husband that he be permitted to have a nominee involved in the collection and delivery arrangements for the children. As was submitted on behalf of the wife it is the husband who has the parental responsibility for them, not a person simply to be nominated by him. Secondly the wife is strongly opposed to this other than to some limited extent and on the basis that the nominee would be a family member. This is because she thinks the husband would involve the nominee as part of a regular arrangement rather than as the exception. In my view the appropriate arrangement would be for the husband to involve himself personally in the collection and delivery arrangements except in an emergency in which case it would be appropriate for him to involve his sister or other family member in the arrangements.
In relation to overseas travel the wife is strongly opposed to the husband travelling with the children overseas. It is the case that the children have undertaken some overseas travel. It appears that the children have travelled many times just with their mother. The wife says that she thinks S is too young to travel without her mother.
Unfortunately it would appear that the subject of overseas travel provides yet another opportunity for disputation between the parents. If the Court was to make orders for the children to undertake some overseas travel it would appear that this would likely cause some anxiety on the part of their mother. In my view, at this stage, whatever benefits there might be to the children in travelling overseas would be likely to be outweighed by the negative effects in terms of the mother’s anxiety and her parenting of them upon their return. Given the poor relationship between the parties and given the non-essential nature of overseas travel for these children, in my view, at this point their interests would not be served by orders permitting them to travel overseas other than by consent of both of their parents.
Property
Orders Sought
The husband seeks orders to the following effect:
·That the parties’ sell the former matrimonial home at G and the proceeds of sale be paid as follows:
i.To pay the agents commission and legal costs on the sale;
ii.In payment of the loan from the husband’s sister;
iii.In payment of the business creditors;
iv.In payment of all credit cards in the husband’s name;
v.In payment of the lease on the Volvo motor vehicle;
vi.In payment of the sum of $2627.71 to the husband; and
vii.In payment to the wife of the balance.
·That within seven days the wife transfer to the husband her interest in the business known as P Company and O Company; and
·Pending sale of the former matrimonial home and discharge of the business liabilities the husband apply any income from the business to pay creditors and the mortgage secured against the former matrimonial home;
·That within seven days the wife remove the husband from the lease and O Company registration in respect of the Honda motor vehicle;
·That the wife be restrained from attending at the business;
·That within seven days the wife provide to the husband all business records that are necessary for the husband to operate the business and to prepare taxation returns for the business and himself;
·A machinery order; and
·The wife pay the husband’s costs.
On the other hand the wife seeks orders to the following effect:
·That the parties transfer the business P Company to the wife;
·That the parties sell the former matrimonial home at G and that the proceeds of sale be disbursed as follows:
i.Payment of agents commission and advertising expenses and legal expenses of the sale;
ii.Payment of any outstanding mortgage balance;
iii.Payment of $5000.00 to Ms V and the wife to indemnify the husband in respect of any further claim by the wife’s sister against either party;
iv.Payment of $114,836.00 to Ms W and the husband to indemnify the wife with respect to any further claim by her against either party; and
v.Payment of the balance in the proportions of 56 per cent to the wife and 44 per cent to the husband.
·That pending the sale of the property the wife continue to pay all the mortgage instalments, council rates and water rates with respect of the property and any arrears;
·That the husband transfer to the wife his interest in the St George Bank account;
·That within 30 days the wife transfer to the husband her interest in the Volvo motor vehicle and the husband to indemnify the wife in respect of any debts relating to the vehicle;
·That the husband discharge the hire purchase contract in relation to the Volvo motor vehicle;
·That the husband within 30 days transfer to the wife his interest in the Honda motor vehicle and the wife indemnify the husband in relation to any debts relating thereto;
·That the interim orders made 25 November 2009 are discharged with effect from 25 November 2009;
·That a superannuation splitting order be made in relation to the husband’s interest in the R Super Trust, Personal Superannuation Division with the effect that the wife be entitled to be paid 42 per cent of the splittable payment at the operable time and related machinery orders;
·Otherwise the parties transfer to each other any interest they have in property owned by, or in the possession or control of, the other.
The Applicable Law
Sub-section 79(1) of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate.
Sub-section 79(2) provides that the Court shall not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
There is a long-standing preferred approach to the determination of an application brought pursuant to the provisions of s 79. This involves four inter-related steps. Firstly, the Court should make findings about the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
This approach has been confirmed in numerous cases in this Court including for example Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355; Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414 and Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693.
The Business
Both parties wish to keep the business. As indicated above, during the marriage both of them had been involved with the operation of the business but the wife has been operating the business for most of the time since separation much to what I perceive has been some frustration on the part of the husband.
The husband said he wants to keep the business because he will be able to operate the business more efficiently than the wife, and more profitably.
On the other hand the wife is anxious to keep the business although she says that in recent years there has been a substantial decrease in customers and turnover of the business. The wife wishes to retain the business because it offers her some flexibility to spend more time caring for the needs of the children than if she was working in an employed position. The wife says that she is able to collect the children after school and attend otherwise to various of their needs during business hours because she has employees and a manager.
In my view it is fair that the wife be permitted to enjoy the asset of the business. She has the primary responsibility for the children and I accept her submission that the business offers her flexibility to spend some time with the children during business hours which she would not be likely to have available in an employed position.
The husband enjoys a well-remunerated employed position as a manager. He also has the support of his partner Mr N. One would have thought in these circumstances, and given his experience with operating the business, in the event that he desired to do so he would be able to obtain a business of his own. I do not regard the wife as having the same facility to be able to again set herself up in business in the event that she was unable to enjoy ownership of the business.
Property Available for Division
To the parties’ credit they were able to agree on the majority of items of property and the values in respect of such. But there were some differences between them.
In relation to the $14 250 joint bank account with St George Bank, I accept that these funds represent the bond for the business and that whoever of the parties is to retain the business will have the benefit also of this bond.
In relation to the Volvo motor vehicle in the husband’s possession it was submitted on behalf of the wife that this item should be omitted from the balance sheet along with the liability in relation to it. The parties agree that the Volvo has a current value of $21 000 but there was in the balance sheet an amount of $33 815.74 which was said to be the joint liability in respect of the lease of the vehicle. It was submitted that this amount was arrived at by aggregating the payments required over the remaining part of the lease. It was also submitted on behalf of the wife that to include the liability in that amount would be unfair to the wife. This was said to be because it would assume that the husband would keep the vehicle over that period of time and in effect would attribute to the parties a liability which, or at least part of which, is or would be a future liability. I accept these submissions and have decided to delete from the balance sheet the Volvo and the liability thereon.
There was also a dispute between the parties concerning the husband’s submissions that there ought to be various addbacks to the property available for division between the parties. These alleged add backs include $16 503.30, being a tax refund which was the husband’s tax refund but which was used by the wife. I must say in relation to this matter I do not accept the submission of the husband that this money should be added back. As was submitted on behalf of the wife there was no evidence to the effect that the wife has wasted these funds or spent them inappropriately and the reality is if she had not had the use of such moneys then presumably her liabilities would be increased by a similar amount.
I take the same view in relation to various transfers of funds from the business account into the wife’s personal account. These were the amounts of $17 517.68, $12 046.70 and $30 772.45. Again there was no evidence that any of these moneys have been wasted or improperly used.
I note in this regard the following well-known observation of Baker J in the case of Kowaliw and Kowaliw (1981) FLC 91-092 at page 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, the overall effect of which has reduced or minimised their value.
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
Although in the present case we are not dealing with financial losses, in my view the above principles apply to the submissions on behalf of the husband.
The husband also seeks to have added back to the pool of available property the amounts of $5842.00 and $9854.16. These amounts were to be paid by the wife under interim orders and the wife has not complied with such orders.
It was submitted on behalf of the wife that she ought not be required to have these added back in circumstances where she has used the money either in support of herself and the children or to run the business and there is no evidence that she has used these funds inappropriately. Similarly it was submitted that in the event that she had complied with the court orders by paying these amounts there would be less funds in her bank account and presumably a higher level of liabilities. Again I accept these submissions, noting in particular that the wife has agreed to all of the husband’s credit card liabilities being included in the pool of liabilities.
There was a dispute about the amount actually owing to the wife’s sister, Ms V. As indicated above she loaned the parties $80 000 to assist in the purchase of their business. There is no issue that she has been repaid $75 000. The wife said there remains $5000 owing. The husband said the loan has been repaid in full.
I note that a letter from the wife’s then solicitors dated 1 April 2009 (husband’s affidavit sworn on 8 March 2010 Annexure J) includes the following:
Our client’s sister was repaid $75,000.00 and $2500.00 remains outstanding.
I accept this evidence and find that $2500 remains outstanding.
There was also a dispute about liabilities asserted by the wife as being owed by her to Ms W ($15 000) and Ms U ($5000). There were no affidavits by these persons to support the wife’s assertions. I do not propose to accept the wife’s assertions about these liabilities. If such money is owing, the wife will have to repay it from her own sources.
In these circumstances, in my view, the property available for division consists of the following:
1. Former matrimonial home at G
$1,200,000
2. P Company
$275,000
3. Wife’s Honda CRV
$15,000
4. Joint bank account with St George Bank (business bond)
$14,2505. St George Bank Account in name of O2 Company
$4,654
Total
$1,508,904
The liabilities of the parties are as follows:
1. Mortgage on G home
$510,586
2. Loan from husband’s sister Ms W for business
$114,8363. Loan from Ms V (wife’s sister)
$2,500
4. Wife’s Coles MasterCard
$7,310
5. Husband’s CBA Credit Card
$22,204
6. Husband’s American Express Card
$18,903
7. Husband’s ANZ Card
$9,372
Total
$685,711
This is a surplus of property compared with liabilities of $823 193.
Each of the parties has a superannuation benefit. The husband’s superannuation has an agreed value of $60 524 and the wife’s St George super fund has an agreed value of $9383.
Accordingly, the total of net assets is therefore $893 100 ($823 193 + $60 524 + $9383 = $893 100).
Contributions
There was no issue about the assessment of contributions, the parties having agreed at the hearing that their contributions overall had been equal as at the date of the hearing.
Sub-section 75(2) Matters
The husband is 44 years of age and he is in good health. As indicated above he works as a manager and his remuneration is $138 125 per year including superannuation which is $2656.25 per week gross.
The husband would appear to have the capacity to earn income at this rate for the foreseeable future. The husband is living with his partner Mr N. They have cohabited since November 2009. Mr N is employed full time in the airline industry. As indicated above Mr N assists the husband by paying some of the rent and contributing to household expenditure.
On the other hand the wife is 48 years of age and she also enjoys good health. She says that the benefits to her from the business come to approximately $1500 per week net. As indicated above the wife has a diploma of business administration majoring in accounting. But she says that she has lost a lot of her accounting skills not having endeavoured to obtain any employment away from the business. As also indicated above I have decided that it is appropriate for the wife to retain the business. In my view she has the capacity to operate the business successfully for the foreseeable future.
The wife has a relationship with a Mr H although I understand that they do not cohabit.
In my view the following matters set the parties apart so far as s 75(2) matters are concerned. Firstly the husband is more than four years younger than the wife and, all other things being equal, would be expected to have more income earning years available to him prior to his retirement.
The wife has the major responsibility for the care of the children. This is a significant matter because on all present indications this will continue for many years.
The other relevant matter is that, in my view, the husband has a somewhat stronger capacity to earn income than that of the wife, although perhaps not by a considerable margin.
Looking towards the future, in my view the husband is in a considerably more favourable position than the wife. He has a strong income and the support of his partner. Even taking account of the child support he pays in respect of the children he will not have anything like the parenting responsibility which the wife faces for many years yet.
These differences, in my view, justify a set off of property in favour of the wife in order to achieve a just and equitable order as required pursuant to s 79(2) of the Act. In my view the appropriate set off is 12 percent of the available property and superannuation.
Conclusion and Fourth Step
As indicated above the property and superannuation available for division has a value of $893 100.
The wife is to have 62 percent of this. This is property and superannuation with a value of $553 722.
The wife has the following:
1. Honda CRV
$15,000
2. St George Bank Account in name of O2 Company
$4,6543. Superannuation
$9,383Total
$29,037
But she also has the liability for her Coles Mastercard of $7310. Accordingly, the wife has net assets with a value of $21 727 ($29 037 - $7310 = $21 727).
The wife is to have sole ownership of the business as I have said. This has a value of $275 000. And she is also to have the business bond in the St George Bank which is $14 250.
On this basis the wife would have property and superannuation with a value of $310 977 ($21 727 + $275 000 + $14 250 = $310 977). To achieve property and superannuation with a value of $553 722 the wife would need additional property with a value of $242 745 ($553 722 - $310 977 = $242 745). This would come from the net proceeds of sale of the former matrimonial home.
On the other hand the husband is to have 38 percent of the property and superannuation available for division between the parties. This is property and superannuation with a value of $339 378.
The husband has the following:
1. Superannuation
$60,524
But he also has the following liabilities:
1. Husband’s CBA Credit Card
$22,204
2. Husband’s American Express Card
$18,903
3. Husband’s ANZ Card
$9,372
Total
$50,479
Accordingly, the husband has surplus assets compared with his liabilities of $10 045 ($60 524 - $50 479 = $10 045).
To achieve property and superannuation with a value of $339 378 the husband will require additional property with a value of $329 333 ($339 378 - $10 045 = $329 333). This will come from the net proceeds of sale of the former matrimonial home.
The former matrimonial home has an agreed value of $1 200 000. But the following liabilities will have to be paid from the proceeds of sale:
1. Mortgage
$510,586
2. Business loan from Ms W
$114,836
3. Business loan from Ms V
$2,500
Total
$627,922
This would result in net proceeds of sale of $572 078 ($1 200 000 - $627 922 = $572 078).
The wife would be paid $242 745. This would leave $329 333 ($572 078 - $242 745 = $329 333) for payment to the husband.
But what sale price the former matrimonial home might attract is unknown as are the sale and other costs which will be inevitable. To provide for these uncertainties I shall convert the above relevant amounts payable on these figures to the wife and the husband respectively to percentages of the net proceeds of sale of $572 078.
The wife’s above payment of $242 745 is 42.43 percent thereof.
The husband’s above payment of $329 333 is 57.57 thereof.
Overview
On this basis the wife would have sole ownership of the business which would be unencumbered, her motor vehicle and superannuation. She would have to pay out her Mastercard liability. And if she owes money to Ms W and Ms U she would still have to pay them. The wife would also have $242 745 which she could pay as a deposit on a home for herself and the children, or use for rent or otherwise as she might choose. As I have said, the wife should be able to operate the business for the foreseeable future. But the wife also has the major responsibility for accommodating and providing for the children. This responsibility will continue for many years.
On the other hand the husband will have his superannuation and a payment of $329 333 from the net proceeds of sale of the former matrimonial home. He will have to pay his liabilities.
While this will be substantially less property and superannuation than the wife will enjoy, the husband will, on present indications, earn more income than the wife and enjoy the financial support of his partner in meeting his household expenses. The husband would be more likely than the wife to be able to borrow funds to assist in purchasing a home particularly if he was supported by his partner in such a venture.
In my view, it is not appropriate to make any superannuation splitting order. This is because the husband’s benefit in superannuation is modest and because there is sufficient other property to enable the Court to make appropriate orders.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 2 June 2011.
Associate:
Date: 2 June 2011
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Consent
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Res Judicata
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