WEN & THOM - [2009] FMCAfam 627

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEN & THOM

[2009] FMCAfam 627

FAMILY LAW – Parenting orders – no matter of principle.

FAMILY LAW – Property orders – no matter of principle.

Family Law Act 1975, ss.4, 4(1AB), 60B, 60CA, 60CC, 60CG, 61B, 61C, 65C, 65D, 65DA, 65DAA, 65DAC, Part VII, 75, 79

B v B (Re Jurisdiction) (2003) FLC ¶93-136
U v U (2002) 211 CLR 238; (2002) FLC ¶93-112
Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286
Brandt & Brandt (1997) FLC ¶92-758
C & C [2005] FamCA 429
Farmer & Bramley (2000) FLC ¶93-060
Figgins & Figgins (2002) FLC ¶93-122
G & G (1984) FLC ¶91-582
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143
Moose & Moose [2008] FamCAFC 108
Norbis & Norbis (1986) FLC ¶91-712
AJO & GRO [2005] FamCA 195; (2005) FLC 93-218; (2005) 33 FamLR 134
Russell & Russell (1999) FLC ¶92-877
Pierce & Pierce (1999) FLC ¶92-844

Applicant:

MR WEN

Respondent:

MS THOM

File Number:

MLC 6669 of 2007

Judgment of:

Riethmuller FM

Hearing date:

29 August 2008

Date of Last Submission:

23 December 2008

Delivered at:

Melbourne

Delivered on:

15 June 2009

REPRESENTATION

Counsel for the Applicant:

Ms Nikou S.C.

Solicitors for the Applicant:

Plaza Legal

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Forte Family Lawyers

ORDER BY THE COURT

That all previous children’s orders be discharged.

ORDER BY CONSENT

The husband and wife have equal shared parental responsibility for [C] born in 2006 and [J] born in 2008.

ORDERS BY THE COURT

The child C live with the husband:
(a)Each week from 8.00am Thursday to 8.00am Sunday;
(b)From 12.00pm Christmas Eve until 12pm Christmas Day each year; and
(c)As otherwise agreed between the parties, from time to time.
The child J spend time with the husband:
(a)
Each week on Tuesday and Thursday for 2 hours from 5.00pm to 7.00pm and on Saturday from 3.00pm to 7.00pm until

30 September 2009
;
(b)
Each week on Tuesday and Thursday for two hours from 5.00pm to 7.00pm and on Saturday from 2.00pm to 7.00pm from

1 October 2009
until 10 January 2010.
(c)Each week on Tuesday for two hours from 5.00pm to 7.00pm, and Friday and Saturday from noon until 6.00pm from 11 January 2010 until 10 April 2010;
(d)From 11 April 2010, each week from Tuesday for two hours from 5.00pm to 7.00pm, and from 8.00am Friday until 6.00pm Saturday until 10 July 2010;
(e)
From 8.00am Thursday until 6.00pm Saturday from 11 July to

10 January 2011
.
That upon the child J attaining 3 years of age he live with the husband:
(a)Each week from 8.00am Thursday to 8.00am Sunday;
(b)From 12.00pm Christmas Eve until 12pm Christmas Day each year; and
(c)As otherwise agreed between the parties, from time to time.
At all other times, the children live with the wife.
That the children of the marriage also spend time with the husband as follows, in the event that they are living with the wife on the days specified:
(a)On Father’s Day from 9.00am until 7.00pm should such time fall when they are not in his care (and in the case of J, a period no longer than the longest continuous period he would live with the father in the forthcoming week);
(b)On each of the children’s birthdays for at least 4 hours, should such time fall when they are not in his care;
(c)On the husband’s birthday from 3.00pm until 7.00pm should such time fall when they are not in his care;
That the children of the marriage also spend time with the wife as follows, in the event that they are living with the husband on the days specified:
(a)On Mother’s Day from 9.00am until 7.00pm should such time fall when they are not in his care;
(b)On each of the children’s birthdays for at least 4 hours, should such time fall when they are not in her care;
(c)On the mother’s birthday from 3.00pm until 7.00pm should such time fall when they are not in her care;
The husband collect the children from and deliver the children to the wife’s residence at the commencement and conclusion of his time with the children.
Each party forthwith notify the other in event of any serious injury or illness affecting either of the said children.
Each party notify the other of any proposed attendance by either child upon a specialist medical practitioner, and provide details of the medical practitioner and the date and time of the proposed attendance.
That the parties each ensure that the other parent is listed as an emergency contact on any enrolments or other documents relating to the children.
That each party notify the other of any intention to relocate with the children in writing at least 60 days prior to any such intended move.
That the wife consult with the husband prior to enrolling or placing either or both children in any child care facility, crèche, kindergarten, or school.
That the wife, her servants and or agents be and are hereby restrained by injunction from removing, or attempting remove the children of the marriage [C] born in 2006 and [J] born in 2008 from the Commonwealth of Australia otherwise in accordance with these orders.
That the Marshall and all officers of the Australian Federal Police and or police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s names on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said children’s names on the Watch list until further orders of the Court.
That the wife be permitted to apply for Singaporean Citizenship and a passport for the child [J] born in 2008 and the husband sign all documents and do all things necessary for Singaporean citizenship and a passport for J to be obtained.
That neither party denigrate or belittle the other in the presence or hearing of both or either of the children of the marriage or permit their servants or agents to denigrate or belittle either parent in the presence or hearing of the children.
The wife be at liberty to travel with both children to Singapore up to 3 times each year for an aggregate of 6 weeks, provided that:
(a)The wife gives notice 30 days prior to any departure, in writing, to the husband, together with a copy of the travel itinerary and flight details;
(b)These orders are registered in the Family Court of Singapore, and a sealed copy of the registered orders provided to the husband at least 30 days prior to any departure;
(c)The wife provides security in the sum of $25,000 available to be drawn upon or executed by the husband in the event that the wife the children do not return to Australia within 3 days of the date provided in the itinerary to meet the reasonable costs of proceedings to obtain the return of the children, such security to be by way of:
(i)a cash deposit into the husband’s solicitor’s trust account;
(ii)a charge in registrable form over real property with sufficient equity to meet the charge; or
(iii)in such other form agreed in writing by the husband.
That the husband and wife each do all things required to register these Orders in the Republic of Singapore to enable enforcement of these Orders should the children be removed or detained from Australia.
That upon C commencing school, the parties attend a Family Relationships Centre for the purpose of renewing these orders and thereafter the parties have liberty to apply to vary the parenting orders.

PROPERTY ORDERS

That the wife sign all documents and do all things reasonably necessary to effect a transfer of all her right, title and interest in the real property situated at Property S in the State of Victoria (“the Property S property”), being the whole of the land described in Certificate of Title Volume [3] Folio [0] to the husband and the wife further at her expense cause any caveat which may have been placed on the said Title by her or her agents to be removed as soon as practicable.
That contemporaneously with Order (22), the husband sign all documents and do all things necessary to effect a transfer of all his right, title and interest in the real property situated at Property P in the State of Victoria, (“the Property P property”), being the whole of the land described in Certificate of Title Volume [8] Folio [7] to be transferred to the Wife free of encumbrances, and the Husband further at his expense cause the mortgage to the Commonwealth bank to be discharged and any caveat which may have been placed on the said Title by him or his agents to be removed as soon as practicable.
That contemporaneously with the transfers referred to in orders (22) and (23), the Husband pay to the Wife the sum of $16,493.85 and the sum of $843.22.
That the parties each retain for their sole benefit, all the rights title and interests they have in any superannuation presently in their respective names.
That the parties retain to their exclusive use and possession any chattels presently in their respective possession.

IT IS NOTED that publication of this judgment under the pseudonym Wen & Thom is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 6669 of 2007

MR WEN

Applicant

And

MS THOM

Respondent

REASONS FOR JUDGMENT

The applicant husband and respondent wife seek parenting and property orders.

Background

The Husband was born in Australia in 1966 and is now 42 years of age. The wife was born in Singapore in 1976 and is now 32 years old. They started living together in late 2002 when studying in the United States, marrying there in May 2003. In late 2003, the husband moved back to Australia, followed by the wife in early 2004.
In April 2006 their first child, C (who is now 3 years old), was born. The parties separated a little over a year later in May 2006, although remained living under the one roof at Property S. The wife sought an intervention order, and the husband left the home. Soon after that, the parties entered into mutual undertakings, and the husband returned to the home.
In June 2007, the husband commenced proceedings as a result of the wife’s intention to travel to Singapore. Ex parte interim orders were made to ensure that the child was not removed from Australia. In late June, orders were made for a conciliation conference, and directions made to ensure that the matter was ready for trial in February 2008, if it did not settle before hand. The parties attended a conciliation conference in late July, but were unable to reach agreement.
In early August, the husband applied for ex parte orders to prevent the wife’s family from taking the child to Singapore. This application was heard by the after hours duty Federal Magistrate (FM Sexton). In early September, following an interim hearing orders were made to ensure the child remained in Australia (including orders for the airline ticket for the child to be delivered up for cancellation), for the husband to have exclusive use of the home at [S], and the wife exclusive use of a rental property of the parties at Williamstown.
In September 2007, the matter was again before the court on an urgent application before the duty Federal Magistrate (FM Riley) following the wife’s unilateral removal of over $149,000 from the mortgage accounts to repay her mother in Singapore. In late September, at the consequential interim hearing, it became apparent that the wife was again pregnant to the husband.
The matter was again before a duty Federal Magistrate (FM Hughes) before Christmas for orders restraining the mother from naming their second child, who was still in utero at that time. The parties’ second child, J, was born in 2008.
In mid December 2008, the parties received a Family Report from

Mr Papaleo, who recommended no change to the interim parenting orders. The parties have completed post separation parenting courses, and undertaken mediation with Mr Papaleo, but have been unable to resolve the children’s issues.
The trial (listed to run for two days, on the parties’ estimates) commenced on 27 February 2008. After two days, there was no further court time available and the balance of the trial was adjourned to

19 March 2008
. The trial was unable to be completed on that day and the further hearing adjourned to 22 May 2008, when two days were available. Again the trial was unable to be completed, and adjourned for further hearing on 13 June 2008. The parties requested a further date for final submissions to be made orally (rather than simply making submissions in writing), which was provided on 29 August 2008. Further written submissions were subsequently made shortly prior to Christmas 2008.
Both the children’s care arrangements, and the parties’ property division remain in issue.

Children’s Issues

The law

The power to make a children’s order is provided for in s.65d of the Family Law Act 1975. This power is subject to the effects of a variety of provisions in Part VII of the Act. Either or both parents, the child, grandparents or ‘any other person concerned with the care, welfare or development of the child’ may apply to the court for parenting orders: see s.65C. In this case, the parties are the parents of the children.

Relevant Factors in considering parenting orders and the best interests of the child

In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B:
60B [Object of Part and Principles underlying it]
(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) [Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)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
(b)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
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The court must regard the best interests of the child as the paramount consideration: see s.60CA. Although it should be noted that this is not the sole or only consideration when making a parenting order: see the discussions in B v B (Re Jurisdiction) (2003) FLC ¶93-136 and U v. U (2002) 211 CLR 238; (2002) FLC ¶93-112 and the cases referred to in those judgments.
When determining the best interests of the children, one must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC as follows:
60CC [How a court determines what is in a child’s best interests]
Determining child’s best interests
(1)    Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)    The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s 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.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)    Additional considerations are:
(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;
(b)     the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(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;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(4)    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)    to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)    communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5)    If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

The Court must also consider any risk of family violence, as required by s.60CG:
60CG [Court to consider risk of family violence] (1)   In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)     is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)    For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The phrase ‘family violence’ is given a detailed definitions in s.4 of the Act:
4(1) [Definitions] in this Act … unless the contrary intention appears:
…
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
The definition is not easy to understand as it focuses upon the relationship between the person acting and the other person before addressing the nature of the conduct that falls within the definition. Thus one must turn to s.4(1AB) to find the definition of ‘member of the person’s family’. In this case, s.4(1AB)(d) applies, which says:
4(1AB) For the purposes of:
(a) the definitions of family violence and step-parent in subsection (1); and
(b) paragraphs 60CC(3)(j) and (k); and
(c) section 60CF;
a person (the first person ) is a member of the family of another person (the second person ) if:
(d) the first person is or has been married to, or in a de facto relationship with, the second person;
…
In this case, the first person would be the husband and the second person would be the wife.
The definition then requires consideration of whether a person reasonably fears for or is apprehensive about their personal safety or wellbeing. Oddly, it seems that fear or apprehension about property, (for example a threat to destroy one’s car) is not within this definition as currently drawn as the fear must relate to personal wellbeing. A further difficulty is that the apprehension or fear must be experienced by the person with respect to themselves: thus, a fear by a parent about the safety of a baby may fall outside the definition if the child is too young to understand anything is happening.
Fortunately, behaviour that would be considered domestic violence or family violence in the usual sense of those terms can still be taken into account under s.60CC under other appropriate headings. It would not be appropriate to allow the drafting difficulties apparent in this definition to result in less than appropriate weight being placed upon such conduct.

Parental Responsibility

When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61b:
61b [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61c provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ may arise as a result of s.61da which provides:
61da [Presumption of equal shared parental responsibility when making parenting orders] (1)    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.
Note:     The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65daa).
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)     family violence.
(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal
The effect of an order for shared parental responsibility is set out in s.65dac of the Act as follows:
65dac [Effect of parenting order that provides for shared parental responsibility] (1)     This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)    The order is taken to require the decision to be made jointly by those persons.
Note:     Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65dae).
(3)    The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)    To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

PARENTING TIME

When deciding upon orders for parenting time, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. In this case, it is agreed that there should be an order for equal shared parental responsibility. Section 65daa states:
65daa [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1)    [Court must consider whether equal time is in the best interests of the child] 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:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60ca is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)     [Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60cc(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)     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 (paragraph 60cc(3)(c));
(b)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60cc(3)(i)).
Note 2: Paragraph (c) reference to future capacity–the court has power under section 13c to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286, the Full Court discussed the meaning of the term ‘consider’, saying that the wording of the sections ‘suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s.65daa(1)(a), being the best interests of the child, and s.65daa(1)(b), reasonable practicability, are met’: see para [64].

Reasoning Process

In Goode & Goode, the Full Court considered the reasoning process that should be applied under the Act in its current form with respect to interim decisions: see para [82]. This guide can be usefully adapted to final hearings as follows:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the … hearing, and making relevant findings;
c)considering the matters in s.60CC that are relevant and … making findings about them …;
d)deciding what orders should be made about parental responsibility
e)if s.60DAA is enlivened, considering making an order that the child spend equal time with the parents, and if not equal time, substantial and significant time;
f)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC.

The Proposals of the parties

In their final written outlines, both parties seek orders for equal shared parental responsibility.

Husband’s Proposals

The husband seeks the following additional children’s orders:
a)That [J] live with the husband until he reaches 12 months of age as follows:
i)Each Saturday from 8.00am until 6.00pm;
ii)Each Friday from 8.00am until 6.00pm;
iii)Each Tuesday from 8.00am until 6.00pm; and
iv)Each Thursday from 4.00pm until 6.00pm.
b)The child [J] live with the husband from his first birthday for three months as follows:
i)From Friday at 8.00am until Saturday at 6.00pm each week;
ii)Each Tuesday from 8.00am until 6.00pm; and
iii)Each Thursday from 4.00pm until 6.00pm.
c)The child [J] live with the husband from eighteen months of age for three months as follows:
i)From Friday at 8.00am until Saturday at 6.00pm each week;
ii)Each Tuesday from 8.00am until 6.00pm; and
iii)From Wednesday at 8.00am until Thursday at 6.00pm each week.
d)The child [J] live with the husband from the age of 21 months three months as follows:
i)From 8.00am Friday until 6.00pm Saturday each alternate week;
ii)From 6.00pm Thursday until 6.00pm Saturday each alternate week; and
iii)From 6.00pm Monday until 8.00am Wednesday each week.
e)The child [J] live with the husband from the age of 24 months until four years of age as follows:
i)From Thursday at 8.00am until Monday at 8.00am on alternate weeks; and
ii)From Wednesday at 8.00am until Saturday at 8.00am on alternate weeks.
f)That when the child [J] born in 2008 attains the age of four (4) years he live with the husband on a week about arrangement between the husband and the wife and for the first half of the long summer school vacation in even numbered years and for the second half of the long summer vacation in odd numbered years.
g)That the child [C] born in 2006 live with the husband from:
i)From Thursday at 8.00am until Monday at 8.00am on alternate weeks; and
ii)From Wednesday at 8.00am until Saturday at 8.00am on alternate weeks.
h)That when the child [C] born in 2006 attains the age of four (4) years, she live with the husband on a week about arrangement between the husband and the wife and for the first half of the long summer school vacation in even numbered years and for the second half of the long summer vacation in odd numbered years.
i)That the children of the marriage also spend time with the husband as follows:
i)On Father’s Day from 9.00am until 7.00pm should such time fall when they are not in his care;
ii)On each of the children’s birthdays, from 3.00pm until 7.00pm should such time fall when they are not in his care;
iii)On the husband’s birthday from 3.00pm until 7.00pm should such time fall when they are not in his care;
iv)From 4.00pm on Christmas Eve until 4.00pm on Christmas day each year should such time fall when they are not in his care; and
v)For all public holidays should those days fall on a time when the children are not living with the husband from 8.00am until 6.00pm.
j)That each party notify the other in the event of any serious injury or illness affecting the children.
k)That each party notify the other of any intention to relocate with the children in writing at least 30 days prior to such intended move.
l)That the wife be restrained from placing either or both children in any child care facility without written agreement from the husband.
m)That the wife, her servants and or agents be and are hereby restrained by injunction from removing, or attempting remove the children of the marriage [C] born in 2006 and [J] born in 2008 from the Commonwealth of Australia.
n)That the Marshall and all officers of the Australian Federal Police and or police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s names on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said children’s names on the Watch list until further orders of the Court.
o)The orders dated 13 June 2007 remain in full force and effect.
p)That the wife be restrained by injunction from applying for Singaporean Citizenship or any passport for the child [J] in 2008.
q)For the purposes of changeover, the husband shall collect and deliver [C] and [J] from the wife’s home in Property P.
r)That neither party denigrate or belittle the other in the presence or hearing of both or either of the children of the marriage or permit their servants or agents to denigrate or belittle either parent in the presence or hearing of the children.
s)That the children live with the wife at all other times.

Wife’s proposals

The wife seeks children’s orders that provide for the wife to have a greater proportion of the children’s care. The orders she seeks are that:
a)The children live with the wife.
b)The child [C] spend time with the husband:
i)Each week from 8.00am Thursday to 8.00am Sunday;
ii)From 12.00pm Christmas Eve until 12pm Christmas Day each year; and
iii)As otherwise agreed between the parties, from time to time.
c)The child [J] spend time with the husband:
i)each week on Tuesday, Thursday, and Saturday from 5.00pm until 7.00pm and Sunday from 8.00 am until 8.45am until [J] is one year old;
ii)Each week on Tuesday and Thursday for 2 hours from 5.00pm to 7.00pm and on Saturday from 3.00pm to 7.00pm for a period of three months;
iii)Each week on Tuesday and Thursday for two hours from 5.00pm to 7.00pm and on Saturday from 2.00pm to 7.00pm for a period of three months.
iv)Each week on Friday and Saturday from noon until 6.00pm until [J] is two years old;
v)Each week from 8.00am Friday until 6.00pm Saturday for a period of six months;
vi)Each week from 8.00am Thursday until 6.00pm Saturday for a period of six months;
vii)Thereafter in accordance with the husband’s time with [C] pursuant to paragraph hereof.
d)The husband collect the children from and deliver the children to the wife’s residence at the commencement and conclusion of his time with the children.
e)Each party forthwith notify the other in event of any serious injury or illness affecting either of the said children.
f)The wife be permitted to apply for Singapore citizenship and a passport for [J] and the husband shall sign all documents and do all things necessary for Singaporean citizenship and a passport for [J] to be obtained.
g)The wife be at liberty to travel with both children to Singapore up to 3 times each year for an aggregate of 8 weeks. The wife is to give notice 30 days prior to any departure, in writing, to the husband, together with a copy of the travel itinerary and flight details.
h)That the husband and wife each do all things required to register these Orders in the Republic of Singapore to enable enforcement of these Orders should the children be removed or detained from Australia.

During the course of the trial, the possibility of orders for the appointment of a person such as Mr Papaleo to be a Parenting Co-ordinator, in a style similar to the role as utilised in California, was explored with the parties, given the young ages of the children, and the extent of the conflict involved. This was not supported by both parties, after taking some time to consider the option. As it did not have the support of the parties, and there remains some question as to the precise powers to implement such a model, I indicated to the parties that I would not make such as order in this case. Of course, I draw no inferences with respect to this issue.

Current interim orders

At present, there are interim orders in place that provide for the husband to have time with the child as follows:
a)With the child C from 8.00am Thursday until 8.00 am Sunday each week;
b)With the child J:
i)From 8.00am to 10.00am each Thursday or until J wakes if he has been put to sleep, with the husband to telephone the wife in that event by 10.00am;
ii)From 5.00 pm until 7.00 pm each Saturday, during which time the husband is to bath the said child;
iii)From 5.00 pm until 7.00 pm each Tuesday, during which time the husband is to bath the said child;
iv)From 8.00 am until 8.45 am each Sunday, noting that the wife attends church at 9.00 am with the two children.

The evidence and issues in dispute

The husband gave some brief evidence in chief and was then cross-examined for a lengthy period.
The husband presented as a polite and careful witness, taking time to answer questions put to him. He is clearly an intelligent man who is genuinely concerned for the welfare of his children and to ensure that he builds a relationship with them. However, he also gave the impression of a witness taking care to always cast his evidence in the best possible terms. He remains fixed upon precisely equal care arrangements for the children as a key outcome in the litigation. Having regard to his demeanour in the witness box, he appeared to be very strong willed, to the point of being somewhat controlling. This was also apparent in some of the events; for example, he enlisted the aid of the wife’s parents when the parties were in dispute (see below) to exert influence over the wife and he remained adamant that the wife should return to work soon after the second child was born, and altering passwords on the frequent flyer account without telling the wife.
The husband’s mother gave evidence. She presented well, and I accept her evidence. She explained that she had seen the parties arguing, but didn’t see the husband as violent, threatening or controlling toward the wife. Of course, she was not always present with the parties. She explained that since separation she tries to acknowledge the wife, but that the wife looks away.
During the marriage, the father’s mother had assisted a great deal with child care (from December 2006 to July 2007) at the home of the parties. She continues to assist the husband with care of the children. I have no doubts as to her capacity to care for the children, and accept that she has a good relationship with the C and is likely to develop a loving relationship with J.
The husband also relied on an affidavit of a family friend, who was not required for cross-examination. She swore that following C’s birth, the wife ‘was keen to return to work’ and that the arrangements with the husband’s mother were put in place to facilitate her return to work.
After some brief evidence in chief, the wife was cross-examined for a day. She also presented as a very intelligent and capable person. I have no doubt that she is deeply committed to the children. As with the husband, not all aspects of her presentation were positive. She gave the impression, in the witness box, of being somewhat unassuming, but rarely conceded anything. Her presentation in the context of the case left one with the impression that she was somewhat manipulative. As with the husband, various events bore this out; for example, transferring over $149,000 to her mother without notifying the husband or his solicitors, the incident with the toy at Mr Papaleo’s officers, purchasing over $500 worth of tram tickets on the husband’s credit card after separation, and purchasing air tickets for overseas travel before telling the husband.
The wife’s mother gave evidence by telephone on the afternoon of the fifth day. She presented as forthright and responsive to questions.
The wife’s mother explained that she did expect to be repaid monies she had advanced to the wife as those monies were part of her retirement fund. She denied that the advances (totalling AU$298,000) included S$20,000 (around AU$16,000 at the time) that was intended to be a gift. She said that she had wanted to give the S$20,000 to the wife, but the wife did not want to take it as a gift. She explained that she pursued the return of funds when she realised that the marriage was breaking down. Whilst she plans to give assets to the wife when she dies, it is clear that this is not an event that is likely to occur for some time. I accept that the monies advanced by the wife’s mother (except for the S$20,000) were a loan. She was prepared to be particularly flexible with respect to the use made of the money and time of repayment, as are many parents who wish to assist their children to obtain a secure financial base. However, I do not accept that this flexibility was such as to alter the basic understanding of the transaction as a loan to be repaid, as is evidenced by a memorandum she signed to be evidence for tax purposes.
The evidence of the wife’s mother with respect to the repayment of insurance policies was less persuasive. However, I accept that a similar arrangement with respect to repayment of insurance premiums is in place with respect to her son. I accept her evidence on this issue
The wife’s mother expressed the view that the husband was a caring father, but was critical of his caring skills (for example changing nappies, etc). I am not persuaded that there is a significant deficit in the father’s skills to care for the children, although at present he may not be as adept as the mother. Her evidence that the child C runs to the mother when the husband comes to the door, and that C then has to be pacified, must be seen in the context of the evidence of Mr Papaleo.
Most of the sixth day of trial was taken up with Mr Papaleo spending time with the parties as there was thought to be some hope of the children’s issues being resolved. He later gave evidence on the afternoon of the sixth day.
The paediatrician in Malaysia who provided a report was not required for cross-examination. I accept the contents of her report and her observations as outlined in the report.

Evidence of Family Report Writer

Mr Papaleo interviewed the parties before J was born and had seen the parties with baby J since he prepared his initial report.
In his written report, he concluded:
It certainly appears clear that [the husband] and [the wife] come from very different families of origin and no doubt these differences must have manifest significantly in their relationship given the rapid decline described by both. [The husband] referred to himself as having to adopt a position of prominence within his own family following his parents’ separation, and I think it quite likely that in this regard he has very clear and traditional views about how things should progress, how decisions are made, amidst a level of compliance and hierarchy. This description of [the husband] fits very much with the description given by [the wife] the [the husband] deeded things to be his way, that he is proud and traditional in his views, and that their relationship was relatively harmonious up until the time that she stood up and asserted herself, at which point there was conflict. There was certainly a flavour of rapid escalation given by both from their accounts, which supports this construction and the lack of synchrony and cohesion that was evident in their marriage.
The significance of this insofar as their relationship as separated parents is it si unlikely in the extreme that the dynamic between them during the course of their marriage will be any different to the dynamics in their relationship as separated parents. From this perspective, there is clearly much more of the same that is apparent in their interaction, consolidating their polarization, the sense of competition, the unease and the different points of view.
Importantly, Mr Papaleo noted that ‘neither [parent] really described of C anything that elevates my concerns.’ He found that the complaints as to C’s behaviour problems ‘minor in the extreme’. He found that at that time the arrangement fitted ‘within the broad parameters of what has happened for most of her life, and that fundamentally she is happy.’ He thought that the parents should consult with a suitably qualified mental health practitioner in order to discuss and review changes to the arrangement.
Mr Papaleo saw the desire of the husband for a long term ‘road map’ style orders being ‘at one level … practical’ and at another fitting with the wife’s suggestions that he can not put his needs above those of the children.
With respect to the difficulties of long term orders with such young children Mr Papaleo said:
With regards to the unborn child, it is clearly not possible to make any kind of predictive statements about how or what should occur in relation to this child. It is completely unfeasible to make any predictions about how this child will be, how he will cope, what his temperament or routine will be…
I accept the statements of Mr Papaleo in his report, which is insightful, and based upon observations borne out by the evidence before the court. I also accept his suggestion that with this particular family confidential mediation is unlikely to be helpful, but that they need reportable interventions ‘and it may be that more a level of arbitration is required’.
When Mr Papaleo arrived to give evidence, he spent some time with the parties, in the hope that some agreement may be able to be reached. After that he gave evidence. He started his evidence with much useful information about the developmental stages of the children and the impact of that, saying:
… it's really important to understand the particular phase of human development that we're talking about. The first 30 months of a person's life are particularly crucial in terms of developing a sense of separation and individuation, so that if all goes to plan and if there's a strong attachment and if the child develops a sense of basic trust in his or her carers, by about the time that they're 30 months of age they should have a stable internal representation of their parents, which then allows them to launch into the world, without effectively having to see them all the time. So they carry their parents on the inside. The way in which that sort of internal representation occurs is through repetitive, continuous, high-quality safe caring and nurturing; so the whole bonding and attachment process. As I'm sure everyone is aware, it occurs over a period of time and it's really a biological system that is enacted through the continuous care. The idea is for children to have a sense that the adults in their world are able to predict their needs and respond accordingly.
There are a number of tricky parts to this phase. In between around the ages of 15 to 18 to 18 to 20 months is a period called rapprochement or reapproaching. Effectively, what the child is doing during that time is practising becoming more separate from his or her parents and caregivers. So typically, during this age range, you'll see children starting to experiment with becoming more separate, returning to their carers to emotionally refuel, going off, coming back, refuelling, going off, coming back, refuelling. It also coincides with the child's development of language and greater motor skills, so the word "No" for example helps to differentiate my needs and wishes from those of yours.
It's a time when, for example, you'll see children put lids on pots, take lids off pots, put lids on pots, take lids off pots, because the child is actually doing it to the pot, so the pot is separate to him and so it's an example of this differentiation. It's a time when you see children throw food onto the floor and take great delight in watching it splatter because they're doing it to the food. The food is separate to themselves. It's a time when children will start to bite, because they are doing it unto others.
One of the real challenges for family law disputes in this particular age range of say 15 to 24 months is that often we are hoisting onto the child a schedule of visitation that works for parents or works for parents' lives and circumstances, which is out of synchrony with the coming and the going of the child's needs. So whereas the child might need to go and come back, we might impose on the child going, and typically what you see in this age range is a conflict of description by parents. Inevitably mothers will say, "The child comes back to me, they're really clingy, they're anxious, they're unsettled, they won't sleep, they're off their food, they're aggressive. I can't go to the toilet without the child following me." And the husband says, "Look, they're fine with me, there's no problem whatsoever. They come to me and she's fine or he's fine, he's affectionate." In fact, both of them are giving you an accurate portrayal of what's occurring. What we need to do is try and understand that behaviour through the eyes of the child who is going off to the father, having a good time, and then leaving the father, returning to mother and being confronted with the threat of being separated from mum, hence the regression in their behaviour.
I think we're seeing that in relation to [C]'s behaviour at the moment. That in fact she's at a developmentally vulnerable time, and the way in which the schedule is implemented around her is causing her to become a bit more stressed. Children in this age range need to be in the one place with both parents, having them both continuously there looking after them. Anything other than that is less than the optimal situation. So the end part of this phase is challenging. The first part is equally challenging, and of course that's where we have [J] at the moment. That [J] needs regular, continuous involvement in his parents' lives, and his parents to have a lot of hands-on contact with him, so he develops a sense of basic trust, and that in fact these are familiar, continuous, caring adult figures in his life upon whom he can rely. Hence the reason why we talk about more frequent contact of less duration, rather than less frequent contact of longer duration.
… in the ideal world, if we have parents who have separated, they separate and they maintain a high level of cohesion and communication. They are flexible, they tolerate each other's presence, they elevate their children's needs above and beyond all other considerations, they can be in the same place and not be in conflict, and can roll with their children's changing developmental needs. I think unfortunately for this situation that's not an easy point of transition. … fundamentally [the husband] and [the wife] don't trust each other, and I think that they have pretty fixed views about the other person and their intentions, their motivation. So in the middle of all that we're trying to superimpose a schedule of visitation which I think is difficult. Ideally, what we should be doing in my view is they should be seeing - speaking with someone at about quarterly intervals, every three months, and reviewing their children's situation and making whatever adjustments to the schedule seem necessary at that particular time in their child's development, rather than saying, "Well, my best guesstimate is we should do this."
… They are not going to agree. They're not going to agree and they're going to see it differently. Even the behaviour that [C] is displaying now, they tend to view from their own vantage point and they view it with a degree of suspicion in relation to the other parent.
Mr Papaleo took the view that ‘from [his] involvement with this family, that there are two obvious choices:
a)One is for you to make orders about what's going to happen over the next 12 or 18 months, and that for the next three, then the next three, then the next six, and the next three months, that the contact will occur in this way and that it will be fixed and regimented; or
b)that they go and see someone and be guided by that person's direction and instruction, and in the event they're not happy then they make an application back here.’
With respect to J, Mr Papaleo said:
… ideally what I'm suggesting is that the time that he spends with his dad should encompass as much of the normal sequence of his routines as possible. So that it is important that his father puts him to sleep, it is important that his father wakes him up, but then he has got to get him back to mum in order for a breastfeed. That's where it becomes enormously dependent upon them being able to be cooperative and on the same page and have a clear vision. It's important for [J] to have his father look after him, change his nappy, put him to sleep, wake up, be comforted by his dad, then taken to mum for a breastfeed. You want to give to [J] the whole experience, not just the waking hours … it's extremely important that it's the whole spectrum of normality that we're shooting for.
He believed that the behaviours of C at that time were typical of children of that age in 2 households and not reflective of any deficiencies of either parent. However, was strongly of the view that the frequent change overs were causing stress for C, given her age now.
Mr Papaleo held no concerns about the grandparent involvement at the husband’s household, and believed that a spectrum of normality was needed at the husband’s house (both awake time and asleep time). He was also of the view that changeover that flowed better would improve the situation for the children, such as a handover of one parent to the other over a cup of tea during the course of 15 minutes for the wife delivering the child. Given the acrimony of the parents in this case, the latter appears to me to be unlikely at this time.
Mr Papaleo was clear in his view that he couldn’t ‘see how [one] could make an order that will be so all-encompassing [as] to meet all of the inevitable changing circumstances that will befall this family.’
I accept the evidence of Mr Papaleo. Unfortunately, the more flexible alternatives he suggested are not available, and I must make orders as best I can to meet the needs of the children for the foreseeable future.
The last day of the trial was taken up entirely by addresses.

Issues at the Hearing

There were many issues explored by the parties at the hearing. It is neither necessary nor appropriate to review every incident or claim in detail. However, the more significant issues require some exploration.

Toy rabbit Incident

An incident occurred when the parties attended upon Mr Papaleo with respect to a toy rabbit. The interviews were arranged for Mr Papaleo to interview the wife, followed by observing the wife with C and then the husband attending and being observed with C. The wife returned to

Mr Papaleo’s rooms on the pretext of packing up after C and was asked to leave by Mr Papaleo. It appears that C had retained a toy rabbit, which the wife was insistent on retaining, despite Mr Papaleo’s suggestions that she allow the child to retain the toy rabbit. The wife eventually left upon Mr Papaleo’s insistence.
With respect to the interview with Mr Papaleo the wife said that she had left books of sentimental value with C and Mr Papaleo and asked the receptionist for their return and that the receptionist had told her to wait until the interview had ended. I prefer the version of the husband with respect to these events. The wife’s behaviour in this respect was inappropriate, and could only be explained on the basis of attempting to impact upon the observations of the husband by the report writer, or a degree of obsessive behaviour that is troubling.

Compliance with orders

The parties were unable to agree upon the name for the child. Ultimately, lists of names were exchanged and, following indications via me, the parties agreed on a western first name and a Chinese middle name for the child. The arrangements were for the husband to provide a list from which the wife would choose a name. The name she chose for the child’s first name was not on the list of proposed first names provided by the husband (some 15 names) but an additional name the husband placed on the list for middle names.
After one of the interim orders the wife diverted some of her income to a work colleague, although this does not appear to have frustrated the substantive intent of any orders. The wife explained this in evidence as being a method of utilising the work colleague’s account to have quick access to money. This did not ring true, as she could easily have commenced her own account.
The wife had withdrawn $2000 on 18 September from joint bank accounts, despite knowing there was an injunction from the court, not seeking consent or variation of the injunction.

Dealing with matrimonial funds

Despite the fact that proceedings were on foot, and there had been a number of interim orders, the wife nonetheless withdrew from the parties’ joint account $149,851.81 and transferred it to her mother. This occurred on 10 September 2007, evoking a response from the husband’s solicitor and ex parte applications to the court.
At trial the wife’s counsel submitted that the wife undertook such a step as she believed the husband would refuse it and the money was genuinely owing to the maternal grandmother. The husband agreed that he had not included in his affidavit material, with respect to the money the wife transferred to her mother, that he knew that the parties were indebted to the wife’s mother in the sum of $140,000 plus some interest calculation, but rather said that he didn’t expect the respondent’s mother would want to be repaid.
I do not accept that the parties ever understood that the respondent’s mother would never want to be repaid, particularly in the context of them having separated. He admitted in cross-examination that the wife had told him that the maternal grandmother had wanted to be repaid and, indeed, had received an email in June 2007 demanding repayment by the maternal grandmother. To this extent, the affidavit material he filed stating that the maternal grandmother had not asked for repayment was not true. He explained this on the basis that he had said he was looking into options and that he had not received further demands from the maternal grandmother he did not believe she required repayment until the proceedings were over.
At a time after she had repaid her mother over $149,000 she nonetheless stated that there were a personal loan owing to her mother in completing forms with the Child Support Agency.
As it transpires, it appears that slightly less than that sum was ultimately owing to the maternal grandmother; however this does not appear to me to answer or explain the conduct of the wife. An appropriate course would have been a written request that such monies be provided to the maternal grandmother, which if refused could have been the subject of an interim application. As it was, no receipt was obtained from the maternal grandmother at the time, nor any notice given with respect to the disbursement of such a significant sum of money. Ultimately, on 4 October 2007 the wife provided a receipt from her mother to the solicitor’s for the husband with respect to the monies transferred to the husband.
This is an example of the type of conduct that the wife has engaged in, perhaps as a result of controlling behaviour by the husband in the past, but in my view more likely as a result of the manipulative aspects of the wife’s personality. Another example is the purchase of hundreds of dollars of tram tickets purchased on the credit card, sufficient tram tickets to last many months, without the agreement of the husband but after separation. Whilst counsel for the wife argued that the latter incident was a reflection of the wife being held out of funds, it remained open to the wife to seek spousal maintenance rather than simply stockpiling tram tickets.
These incidents reflect poorly on both parents. The husband was not frank in his disclosures to the court when seeking the injunction, nor however was the wife’s conduct reasonable, but particularly inflammatory.

Family violence alleged against F

The wife does not allege that the husband has struck her. She says that there have been incidents where he has pulled her, and engaged in threatening behaviour. There were 2 incidents between the parties that were the subject of evidence.
The first incident occurred on Melbourne Cup weekend in 2006. The parties argued and the wife says the husband threw a discus shaped tape measure at the fence with great force, narrowly missing her. In cross-examination she agreed that the tape was thrown at the fence and not her. Her parents became aware of the argument as they were in the house at the time. There followed emails in which the husband enlisted the aid of the wife’s parents to assist him in his relationship with the wife. The emails show that there had been ongoing difficulties of this type. I find the general tenor of the emails indicative of controlling or manipulative behaviour by the husband.
On 18 December 2006 the parties had a significant argument when travelling in a motor vehicle. The wife says that the husband was driving erratically and then stopped and ordered her out of the car. When she refused to get out, he tried to pull her from the car following which she tried to unbuckle C. Eventually they headed off, all still in the car. The wife says that she suffered bruising to her left arm.
The husband denied attempting to pull the wife out of the car and the incident with C, however accepted events unfolded as alleged when an email was put to him. The email that he wrote to the wife’s parents describes him trying to get her out of the car and telling her parents he was confused at the time.
The husband admitted that he ‘crossed the line’ and told them that he was upset and that divorce could be an outcome. It appears clear that the husband was seeking the assistance of the wife’s parents to have the wife comply with his requests of her. When viewing the emails, it seems clear that the wife was experiencing the husband’s conduct as controlling of her and seeking more freedom, however he did not perceive the relationship to be in this vein at this time. He said that in some of the emails he made concessions in order to move forward rather than meeting the truth of all of the statements. It appears to me that the emails are more likely to be a frank exchange with respect to the difficulties the parties were having at that time. Whilst I found that the wife was engaged in much manipulative conduct, I am persuaded that in the past the husband has been very controlling of her.
The wife says that at time passed she felt she was living on tenterhooks, always concerned that arguments would erupt. She also says that they had loud arguments, and that in the US the husband had pulled on her shoulder to make her turn towards him when arguing. I accept this evidence.
It is clear that the husband has no trust in the wife and believes that she would do anything to get the children out of the country. He has also engaged in spiteful behaviour, such as cancelling a Medibank policy and not telling the wife, claiming in evidence that he believed the organisation would send the wife a letter.
The husband has also engaged in other controlling behaviours, for example, changing the password numbers for the Qantas account, when challenged by the wife, re-setting the password and then changing it again later. Whilst he knew of the airline tickets to Singapore at the time of the intervention order proceedings, he did not raise them at that time, saying that he believed he could cancel the flights until he tried and then brought the court proceedings in this court with respect to those tickets.
Another incident occurred when the wife required her passport to establish her claims for social security in circumstances where she is not receiving spousal maintenance. The husband refused to release the passport for Department of Social Security (DSS) nor were any alternative proposals put forward, such as arranging for a clerk of his solicitor to attend with the passport for the purpose of DSS’ perusal, or indeed providing the mother with the passport during the period of time that he had the care of the child, both of which would have provided more than adequate protection and enabled the wife to utilise the passport for her identification. It was put to the husband this conduct was part of an effort to make the wife go back to work to improve his children’s case. He denied the allegations. Whether it was for this purpose or simply obstinacy, it nonetheless reflects poorly upon the husband.
The incidents referred to appear to me to fall within the definition of ‘family violence’ under the Family Law Act, and to the extent that they do not (due to the very technical nature of its drafting) they are nonetheless incidents that are relevant in determining the parenting orders.

Role of Paternal Grandmother

The relationship between the parties broke down as time passed to the extent that the mother now believes that the paternal grandmother has tried to undermine her with C and that the paternal grandmother has not properly cared for C from time to time. My impression of the parties is that the mother is a protective mother and that these allegations are more reflective of the breakdown of the relationship than objectively poor quality care for the child. I find no reason to be critical of the paternal grandmother, who has provided great assistance to the parties.

Wife’s return to work

The wife took six months maternity leave after C was born. The wife says that she wished to take a full year of maternity leave but the husband insisted that the parties needed the money and she ought to return to work. The husband’s version is supported, to some extent, by the evidence of Ms R asserted in her affidavit that the wife was keen to return to work and that to facilitate that, Mr Wen’s mother relocated from [E] to [P] so that she could take up the responsibility as C’s main caregiver during business hours.
The wife explained that, following C’s birth in April of 2006, her mother came from Singapore and stayed until December. The husband cared for C until January whilst his office was closed, and the paternal grandmother commenced caring for C during the mother’s work days from January 2007. During this time the mother continued to breastfeed C, although left for work in the morning at around 7 in the morning and returned home between 3.30 and 4. The husband says that he was also significant in caring for C after the birth, bathing her, changing nappies and developing a close bond with her. Whilst the wife’s mother is somewhat critical of the father’s parenting skills, it appears clear that he has had involvement with caring for the child, although the wife was child’s primary carer.
I am not satisfied that the wife was forced to return to work after giving birth to C. At best it appears that it may have been a difficult decision for her, as it is with many mothers in today’s society who balance career, income and children’s needs.
She agreed she had enquired as to places for J to attend crèche at the hospital where she works commencing in the middle of 2008, when she made enquiries of the crèche late 2007. She says that she changed her mind as J was clingy. The observations of J in court were not consistent with this evidence
The wife hopes to continue in the role of a full-time mother for some time, expecting that J will commence attending crèche when he is 11 or 12 months old. Bearing in mind that she no longer has the full support of the paternal grandmother, and must also care for C, I have ultimately come to the view that this is a realistic expectation.

C’s eczema

In late September through to early October 2006, the parties took C to Singapore to visit the wife’s family. C had eczema in the weeks leading up to the departure and whilst in Singapore. The husband says that the eczema was caused by the heat in Singapore and that living in a hot, humid climate aggravates the child’s condition. The mother denies this.
There is expert evidence of the paediatrician in Singapore who attended upon the child during the time that they were there. The evidence of the paediatrician, Dr M (who was not cross-examined), was that C had moderately severe generalised eczema from

25 September 2006
and very dry skin. She was treated with antiseptic washes, steroidal and antibiotic creams and given an antihistamine to relieve itching. Some antibiotics were applied to all areas of skin and Dr M reviewed C on 2 October 2006, noting that her eczema had improved compared to the first time that she had seen her.
It appears clear that C was suffering significant eczema before travelling to Singapore and that, following treatment, it had improved.
I am not persuaded that the climate in Singapore is sufficiently adverse to result in orders preventing the mother from taking the child to Singapore. C’s eczema is a condition that will need to be managed into the future, but I am satisfied it can be properly managed and that the benefits of relationships with extended family far outweigh the eczema that C may suffer.
The evidence about this incident also bears upon the capacity of the parties to care for the children as discussed below.

Travel to Singapore and citizenship

On 16 May 2007 the wife made a booking for her and C to travel to Singapore for a holiday during the period of Chinese New Year, in February 2008. She said in her affidavit that she felt that this would give her and the husband plenty of time to agree about the child going overseas for the holiday. Notably she had already booked the holiday, utilising Qantas award points accumulated on their American Express card, before discussing it with the Husband. It is not surprising that the husband found this behaviour somewhat manipulative.
The wife says that she told the husband about the booking and the husband says that he found out without her having told him. The husband then sought ex parte orders to place the child on the airport watch list and restrain the wife from obtaining a Singapore passport for C.
In cross-examination the wife agreed she took the birth certificate and passport of C without telling the husband, saying that this was because she was making flight bookings but agreed, in cross-examination, that she didn’t need the documents for flight bookings.
Whilst the Orders provided for C’s passport to be delivered to the solicitors for the husband, the wife delivered it to her own solicitors and had them write to the husband advising that they had possession of it, despite the terms of the Order. The husband’s solicitors then insisted upon compliance with the Order, at which point the passport was sent by registered post. The incident with the passport between the solicitors is but one example of a number of incidents where even when the solicitors were involved, relatively straightforward transactions could not be achieved without significant altercation.
It was not until 27 June 2007, that the husband became aware that the wife was pregnant with the second child. The wife’s barrister told the husband’s barrister at court that day. After that the wife reduced her working days so that she worked the days that C was in the father’s care (Fridays and Saturdays), and Mondays when C was in child care. The wife utilised her annual leave at this stage to facilitate a reduction in hours without a reduction in pay.
The wife later sought orders to allow her to travel to Singapore to give birth to the second child, which were refused by Federal Magistrate Hughes. In September 2007 interim orders were made by consent for C to live with the husband from 8am to 6pm Saturday, in alternate weeks, 6pm Thursday to 6pm Saturday in alternate weeks and from 6pm Monday to 8am Wednesday each week. It was also provided for the child to see the husband over Christmas and live with the husband when the wife was in hospital to give birth to the second child. The ticket to Singapore was delivered up to the husband and the wife was restrained from leaving Australia until further order.
The husband retained the use of the matrimonial home and the wife retained the use of the investment property, with the husband to continue making the mortgage payments on the investment property. Other orders for the sharing of photographs and attendance by the husband at the hospital were made. The parties also agreed to attend upon Mr Papaleo, for the preparation of a family report.
Not surprisingly, given the levels of distrust between the parties, the husband also made application to the court for watch list orders when the wife’s brother attended in Australia.
The wife says that Australia is now her home and she does not propose to return to Singapore to live, but wishes to be able to holiday regularly in Singapore to maintain her family relationships and to ensure the children build family relationships. However, during the wife’s evidence, the wife stated that she intended to stay in Melbourne over the next 5 years but couldn’t rule out a suggestion of moving to Singapore. The husband says that she had previously indicated a desire to live in Singapore. The wife has family in Singapore (including her father who is ill), but not Australia.
The wife’s family speaks Mandarin and she intends for the children to learn some Mandarin as they grow older. The husband’s family speaks Cantonese, no doubt he hopes that the children will learn some Cantonese as they grow up.
The child C has a Singapore passport and the wife seeks to ensure that the child J also attains a Singapore passport. The husband objects to J obtaining a Singaporean passport and points out that in Singapore military service is compulsory for men. There was no evidence in the trial as to the precise details of Singapore’s military service rules, although it is clear that it is not something that would have to be undertaken at least until later teenage years. The children have a large extended family in Singapore and the opportunity to be citizens of both Singapore and Australia.
It appears that one of the trade-offs for J obtaining Singaporean citizenship, as against the obligation to undertake military service, is the availability of educational grants which relatives have received for tertiary education.
I see no reason that the children ought not to be able to obtain the citizenship of both countries, and have preserved for them the option of retaining both or renouncing either, should they choose to do so as they grow older and are able to make choices for themselves.
Whilst the wife’s case was that the husband had predatorily applied to the court with respect to passports and travel, the wife also agreed that undertakings had been sought and refused, which she said was done on legal advice. I am not persuaded that the husband’s fears of the wife absconding with C were without reasonable foundation in the context of this case.
Despite all of the difficulties with respect to the children travelling to Singapore, and the concerns about their return, the husband made no enquiries of a Singaporean lawyer before trial. He does not suggest that the courts in Singapore are in any way corrupt or unreliable. It appears to me he was concerned as to the return of the children if the wife took them to Singapore in the absence of court orders. If orders are in place and registered in Singapore, it appears that there can be confidence that the children would be returned to Australia, despite Singapore not being a signatory to the Hague Convention.

Conclusions on Children’s Issues

I find that proposals in the style proposed by the wife with respect to week to week care better meet the best interests of the children, to the extent that they can be ascertained at this time. I also find that there will need to be a review of the care arrangements when C starts school, as the arrangements do not seem to accommodate either parent having weekend time with the children. A review will be needed to identify the children’s needs at this time.
I accept that there should be orders for special days, in the style proposed by the husband, in order to minimize conflict over these periods and ensure that the children have the benefit of being with their parents on special occasions. The orders proposed by the wife with respect to Christmas.
I find that it is in J’s best interests to allow him to obtain his Singaporean citizenship, and for the children to be able to travel to Singapore to spend time with their family. I am satisfied that registration of this order in Singapore, appropriate notice to the husband, and a $25,000 security by the wife (by cash deposit or charge over real property) in an appropriate balance to protect the husband’s position without unduly restraining the wife.

Property Division

Section 79 of the Family Law Act 1975 (‘the Act’) enables the Court to make such orders as the Court considers appropriate altering the interests of parties in the property. Section 79 of the Act sets out a number of significant matters that must be considered in order to determine what orders would be appropriate.
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143 the Full Court of the Family Court conveniently summarised the preferred approach as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to 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), (“the other factors”) 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: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
The approach taken in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC ¶93-143 must now be read subject to the decision in C & C [2005] FamCA 429 (with respect to superannuation), where Bryant CJ, Finn and Coleman JJ said:
43.    Thus, the way in which s 90ms is drafted leads us to the view that superannuation interests are another species of asset which is different from property as defined in s 4(1), and in relation to which orders also can be made in proceedings under s 79.
44.    However s 90ms(1) does have the effect, in our view of requiring that in a case where the Court intends to make orders in relation to superannuation interests of the spouses, it must do so “under” s 79 (although s 90ms(2) makes it clear that the Court cannot make an order in relation to a superannuation interest except in accordance with Part VIIIb). In other words, the Court must apply to superannuation interests the matters to be taken into account under s 79.
…
63.    …we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise). This of course is the approach which the trial Judge adopted in this case.
In undertaking the first step the various items of property should be identified with reasonable precision and value. However in the subsequent steps it is not possible to make an adjustment for each relevant factor with mathematical precision. This is clearly stated by Nygh J in G & G (1984) FLC ¶91-582 (at page 79,697), where his Honour said that:
It cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item.
This observation was approved by Mason J (as his Honour then was) and Deane J in Norbis & Norbis (1986) FLC ¶91-712. This observation has regularly been repeated by the authorities: see for example Brandt & Brandt (1997) FLC ¶92-758 and Farmer & Bramley (2000) FLC ¶93-060. Of course, ‘Judges [and Federal Magistrates] are obliged to exercise their discretion judicially and should explain the broad nature of their reasoning that leads to their conclusion’: see Figgins & Figgins (2002) FLC ¶93-122.
With respect to the final step it is important to note that it is the justice and equity of the actual orders that the Court must consider: see Russell & Russell (1999) FLC ¶92-877.
In this case the husband seeks orders that:
a)That the wife sign all documents and do all things reasonably necessary to effect a transfer of all her right, title and interest in the real property situated at …, Property S in the State of Victoria , being the whole of the land described in Certificate of Title Volume … Folio … to the husband and the wife further at her expense cause any caveat which may have been placed on the said Title by her or her agents to be removed as soon as practicable.
b)The husband be solely entitled to the exclusion of the wife to solely occupy the [[S]] property.
c)i) That the husband sign all documents and do all things necessary to effect a transfer of all her right, title and interest in the real property situated at …Property P in the State of Victoria, being the whole of the land described in Certificate of Title Volume … Folio … to be transferred to the wife and the husband further at his expense cause any caveat which may have been placed on the said Title by him or his agents to be removed as soon as practicable.
ii)That c) i) be subject to the wife being solely responsible for the payment of all monies due in respect of the mortgage to the Commonwealth Bank and that she refinance the property to effect a discharge of the said mortgage as soon as practicable. The wife shall indemnify the husband in respect of all monies owed in relation to the said property.
d)That the wife be solely liable and indemnify the husband from any liability whatsoever in respect of the loan from the wife’s mother, including outstanding or future interest, if any.
e)That on or before 90 days from the making of these Orders, the husband pay to the wife the sum of $102,510.
f)That the husband be entitled to retain for his sole benefit, all his interest in his superannuation.
The wife seeks property orders that:
a)That the property known as … and situate at Property P, in the State of Victoria, be transferred to the wife as sole registered proprietor free of encumbrance.
b)That the property known as …and situate at Property S in the State of Victoria be transferred to the husband as sole registered proprietor, subject to a transfer of the mortgage encumbrance of $318,726 presently secured against … , Property P.
c)That the husband pay to the wife $203,000.
d)That the Court declare that the parties are indebted to [the wife’s mother] in the sum of $9,500 as at this day.
e)That the wife pay [her mother] $9,500 in discharge of the debt to her.
f)That the husband pay to the wife the additional amounts sought in paragraphs 15, 16 and 19 of her amended response of $11,493.
The paragraphs referred to in item (f) are:
a)Paragraph 15 of the Amended Response seeks order for payment of $843.22 in satisfaction of the parties’ agreement with respect to chattel division;
b)Paragraph 16 of the Amended Response seeks reimbursement of the costs that she paid for the proceedings on 20 September 2007 (the injunctions as a result of her transferring money to her mother); and
c)Paragraph 19 of the Amended Response seeks re-imbursement for the amounts that the wife contributed to the mortgage from September 2007 to date.
The payment in satisfaction of the chattel agreement between the parties should be ordered to ensure that the agreement is completed.
The effect of the orders sought by the wife are a split of the combined property and superannuation pool of around 57:43 in favour of the wife, made up of a split of property at nearly 70:30 and superannuation at 94:6. However, the wife argues that the superannuation of the husband would be given a notionally discounted value of 70% as it cannot be accessed for many years. If the value of the superannuation is discounted by 30% of the overall split, on the wife’s case this results in a split of around 60:40 in favour of the wife.
The effect of the husband’s orders is a split in favour of the husband of a little over 70:30 of a combined property and superannuation pool. This is made up of a split of property at around 66:34 and superannuation of 94:6. If the wife’s discounting methodology is applied when determining the outcome of the orders sought by the husband, the result of his orders would be an overall split of around 70:30 in favour of the husband.
As neither party has sought a split of superannuation, the ultimate split of superannuation interests remains fixed at 94:6, and must be taken into account as a s.75(2) factor on the basis that it is not within the definition of ‘property’ in s.79.

The pool of assets

The parties are agreed the pool includes the following real estate:
a)Property at [P]  $ 600,000
b)Property at [S]  $ 893,000
c)Mortgage on Property P  $ 318,726
d)Total  $1,174,274
The parties have superannuation interests with agreed values:
a)Husband’s superannuation  $ 255,567
b)Wife’s superannuation  $ 15,762
c)Total  $271,429
In determining the pool of property, there remains a dispute as to the exact amount of the debt to the wife’s mother. The husband says that she was overpaid $20,861 by the wife, and the wife says that she is still owed $9,446.
The wife’s mother advanced funds to the parties. The amount of the advance was $294,000. In a letter, the wife’s mother signed on
20 February 2004, the amount was stated to be AU$278,000. The balance is said by the husband to have been a gift from the wife’s mother of S$20,000 (AU$16,000). The wife’s mother says that it all started as a loan and that she later forgave $20,000 of the debt to allow the wife to have pocket money. She and the wife say that the wife rejected this gift. The letter signed by the wife’s mother was intended to be a tax record providing evidence of the true nature of the transaction. I accept that the wife’s mother loaned the parties AU$278,000 and provided a gift of AU$16,000.
It appears clear that the debt to the wife’s mother was repayable at call, and subject to an obligation to pay interest at 5%, no doubt at a compound rate, reflecting the rate she would have achieved had this money been in a term deposit. This provided the wife’s mother with similar benefits to a term deposit and the parties a lower interest rate on borrowings to that which they would have had to pay to a bank.
There is only one of the series of repayments to the wife’s mother where there is a dispute as to the quantum. It appears that wife also had a debt to her mother for insurance premiums paid by her mother in the past. It was argued that this should be treated as a gift by the wife’s mother to the wife. However, the wife’s mother was clear in her evidence that this was not a gift, and that siblings had repaid premiums to her with respect to their own insurance policies. I accept that the wife owed her mother around $10,000 for premiums, largely from before the commencement of the relationship, and therefore this should be taken into account as a debt of the wife that came into the relationship. It appears that this was repaid in December 2006, when the husband sent a cheque for $30,000 to the wife’s mother, including a $20,000 repayment on the advance from the wife’s mother discussed below. Whilst the husband asserts that none of the $10,000 was with respect to the insurance repayments, this appears inconsistent with earlier statements in his affidavit and the balance of the evidence. I therefore prefer the evidence of the wife and her mother on this point.
Spreadsheets were compiled showing the amount of the debt, after the interest was calculated, taking account of the various repayments over the years. Based upon the calculations at 5% compound interest, the advance, and repayments that I have found on the evidence, as at
10 September 2007, the payment by the wife to her mother was an overpayment of AU$9,742.18.
Counsel for the husband makes submissions that this sum be treated as an add-back to the pool. However, to do so would also require recognition that the increased mortgage repayments met by the wife following repayment ought to be considered a joint expense, once it is accepted that the repayment of the wife’s mother was required as it was a loan repayable on demand. I would also have to consider the wife’s support from her mother after separation having regard to the living expenses of the wife (particularly when stopping work to have the second child): see generally AJO & GRO [2005] FamCA 195; (2005) FLC 93-218; (2005) 33 FamLR 134. Ultimately, I am not persuaded that an adjustment to the pool is required in this regard.
I therefore find the respective property and superannuation pools to be the agreed figures set out above, without adjustment for any of the disputed items. For these reasons, I do not accept that the wife should obtain orders adjusting for the costs order on the injunction proceedings, or the increased mortgage payments.

Contributions

Section 79(4) of the Family Law Act requires consideration of the contributions of the parties. The relevant parts of s.79(4) are as follows:
79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
(a)The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
It is relevant when considering the various contributions to also consider the times when those contributions are made. For example see the discussion in Pierce & Pierce (1999) FLC ¶92-844, where the court was considering the weight to be given to various contributions having regard to the time of the contributions, and the importance of those contributions.
It is agreed that at the commencement of the relationship the husband had significant assets:
a)A flat at [Y]  $267,000
b)Cash in a US bank account  $117,000
c)Cash in a CBA account  $97,000
d)Accrued long service leave entitlements      $17,000
e)Total  $498,000
The husband also says that he had superannuation entitlements of around $119,000 (this is supported by the documents from the funds, showing that: he rolled $77,799.91 to a superannuation fund on 1 April 2004 from his ‘[Company Name] Employees Fund’; and also received $40,782.66 from the ‘[Company Name] Management Retirement Plan’ in March 2004). I accept the figure of around $119,000 as the husband’s superannuation entitlements at around the commencement of the relationship.
The husband also said that he brought to the relationship a further savings account of $60,000 at the start of the relationship, held in a ‘Reward Savers Account’, separate from his ‘Term Deposit Account’. This issue was contested throughout the trial. The husband did not produce (from his own records or on subpoena) copies of bank statements that showed the funds in the separate accounts at the same time, nor evidence that such documents could not be obtained. The wife argues that the documents that were tendered show the same sum of money, just in different accounts at different times. Counsel for the wife also complied a brief financial reconstruction covering the relevant periods to show that if there were an additional $60,000 as asserted by the husband, that around $48,000 would be missing after the purchase of the Property S property. Ultimately, on the state of the evidence, I am not persuaded that there was a further $60,000 that the husband brought to the relationship.
I have found that the wife brought $78,000 into the relationship, but also had insurance premium debts (that have been repaid to the wife’s mother) of $10,000.
The marriage was of short duration, only 4 years. Both parties worked, and contributed to the household. The husband’s earnings were greater than the wife, in part because of the different points they were at in their careers, and in part because the wife had a child C. Both parties were provided with financial assistance by their parents who assisted in their accumulation of assets.
During the course of the relationship, both parties’ parents lent money to the parties. The husband’s mother has been repaid. The wife’s mother advanced $294,000 in December 2003 to the parties. Of this, only $278,000 is a loan, and the balance a gift which should be considered a contribution with respect to the wife.
They repaid $170,000 during the course of the marriage. The wife repaid her mother $15,000 in August 2007. The wife drew money on the accounts of the parties after separation to pay her mother, without the husband’s consent, to further repay her mother $149,851. Although the parties paid interest at the rate of 5% per annum, using compound calculations to the wife’s mother, it nonetheless provided them with a benefit (the difference between 5% and bank interest rates, and not having to provide security). That debt has now been discharged.

It is appropriate in this case to assess the contributions to the assets and superannuation separately, given the large disparity in initial contributions, the significant amount of superannuation, and that neither party has sought a splitting order.
I assess the contributions to the property (not superannuation) at 62.5:37.5 in favour of the husband.
I have been provided with no evidence as to what would be the value of the husband’s superannuation interests now, but for his contributions during the relationship. Doing the best that I can on the limited material available, I assess the contributions of the parties toward superannuation at 80:20 in favour of the husband.

Section 79(4)(d) to (g)

I now turn to the third step in the process of apportioning the assets available for distribution between the parties.

The effect of any proposed order upon the earning capacity of either party to the marriage: s.79(4)(d)

The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.

The matters referred to in sub-section 75(2) so far as they are relevant: s.79(4)(e)

a) The age and state of health of each of the parties

The husband is 42 and the wife 32 years of age. Both are in good health.

b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

Both parties present as capable people. I have no doubt that they would be able to obtain and maintain employment in the future.
The wife says that she desires to continue in the role of homemaker and primary carer. I accept that this is the case until the children are older, although I do not accept that this will last beyond the time that the youngest child starts prep. In the interim it is likely that the wife will continue to have part time work.
The husband is at or near the peak of his career. The wife has her career in front of her, and will probably have it largely on hold until the children are older. The husband’s earnings are around $118,000 per annum and the wife, when working full time could expect to earn around between $65,000 and $75,000 per annum based upon her past employment. This will also result in significantly different superannuation contributions, particularly over the next few years.
I have regard to the large disparity in assets and financial resources of the parties, based upon my findings with respect to contributions.
As no superannuation split is sought in this case, I must also take into account the large disparity in superannuation between the parties, and their respective contributions to superannuation as discussed above, in considering any adjustment at this step.
In cases with small pools, with a significant superannuation component, it may be that it would not be just and equitable to make any significant adjustment to the presently available property as a result of the superannuation entitlements of the parties, as each party is in need of the presently available assets to use the funds to maintain a reasonable lifestyle. In these cases, the party with little superannuation runs a real risk of not obtaining the best financial outcome unless that party seeks a superannuation split.
In cases where the pool is very large, and the presently available assets sufficient for both parties to continue in a reasonable lifestyle, with the split of property proceeding on the full face value of the superannuation, then it may be appropriate for the court to decline to discount the value of the superannuation, proceeding on the basis that if the party with superannuation was concerned not to have the superannuation taken up at full value, it is open to them to seek a splitting order. In these cases the court may well take a robust approach.
In cases such as the present, neither of the more extreme positions are present. After the split, it is likely that both parties will have mortgages to meet. Counsel for wife suggests proceeding to make determinations as if superannuation could be split, then making property alterations rather than super splitting, on the basis that the superannuation adjustment be discounted by 30%. I am not convinced that the section contemplates an arithmetic approach, nor why 30% would be the appropriate discount rate. It appears to me that it is more appropriate that I have careful regard to the superannuation as a resource of the parties, in the context of their circumstances, and the contributions findings. The fact that the husband has a large superannuation entitlement must be taken into account in any adjustment under the third step.
I pause to note that there can be no suggestion that the choice not to seek a superannuation splitting order must not have been deliberate, in that both parties had ample opportunity to give notice to the relevant funds should a splitting order have been desired.

c) Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years

The parties have the care of two children. The greater portion of that care is with the wife at present. When the children are in the care of the husband he has the support of his mother, and a considerable degree of flexibility in his employment that enables him to work full time.
Whilst the wife has family support, her family are in Singapore and not available day to day.

d) Commitments of each of the parties that are necessary to enable the parties to support himself or herself or a child or another person that the party has a duty to maintain.

Neither of the parties has commitments other than those necessary to support himself or herself and their child.

e) The responsibilities of either party to support any other person;

Neither party has a responsibility to support any one other than each other (to the extent such maintenance may be required) and their children (as discussed above).

f) The eligibility of either party for a pension, allowance or benefit.

I do not regard this factor is of significance in this case. The husband’s earnings are never likely to make him eligible for a pension or benefit. To the extent that the wife relies, in part, upon a pension this is income tested and as a result of her care for the child.

g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

Both parties expect to continue a middle class standard of living, and to retain their own homes. For the wife to maintain her standard of living over the next few years, until the children reach school age, it is unlikely that she will work full time, and therefore may draw upon her capital resources, or be reliant upon her family.

h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

There is no claim for spousal maintenance, nor is it likely that it could increase the earning capacity of the wife who already has employment and a PhD in her chosen field.

k) The duration of the marriage and the extent to which it has affected the earning capacity of the parties;

In this case the marriage has been quite short in duration. Both parties completed high levels of education and have pursued their chosen professions. Whilst the wife has had some periods on maternity leave, and will not be working full time for a period, the likely impact upon earning capacity of the wife has been that resulting from having children, but her earning capacity has not been otherwise impacted upon by the marriage.

l) The need to protect a party who wishes to continue that party’s role as a parent;

The wife says that she does not wish to return to full time work so that she may care for the children. The husband can arrange his full-time work around child care. At least until the children commence school, it appears likely that care for the children will have a greater impact upon the wife. The can be no dispute that this is the case at present whilst the wife is breast feeding J.
The husband argues that during the marriage the wife returned to work 6 months after C was born, and that she should do the same with respect to J. It appears to me that this overlooks the added pressures of single parenthood, and the changed nature of her support structures. Whilst I accept that the paternal grandmother is still favourably disposed to the wife, I also accept that it is not reasonable to expect that the wife would be at ease with support from the paternal grandmother. The practical reality is that the support to the wife of the husband and paternal grandmother, during the marriage, is not such a support to her now. I accept her case that it is not reasonable to approach the case on the basis that she will return to work full-time as quickly as she did after C was born.

m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;

On the evidence before me, neither party’s financial circumstances appears to be affected as a result of cohabiting with another person nor is it likely in the foreseeable future that this situation will change.

n) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;

There is nothing in the evidence to indicate that the husband will not continue to pay the proper amount of child support as assessed by the Agency in respect of whatever level of salary he receives. Having regard to the husband’s salary and the wife’s reduced earnings this contribution will not be insignificant, but reflect the needs of the children.

o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

There is no other fact or circumstance in this case that is significant.

Any other order made under this Act affecting a party to the marriage or a child of the marriage: s.79(4)(f)

There are other orders made under the Family Law Act 1975 which affect a party or the child which need to be taken into account. The parenting orders made in this matter are set out above.

Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage: s.79(4)(g)

These matters have been considered in relation to s.75(2)(na) above.

Conclusions

In this case, the submissions of the parties are at the extremes. Counsel for the husband submits that orders should be made which, in effect, make no adjustment in favour of the wife, despite a significant income earning differential, and the impact of the care of the children. Counsel for the wife submits that an adjustment be made to the property pool in the order of 30% over the contributions findings that I have made (although the submissions of the wife did not attempt to quantify the contributions assessment and the adjustment).
In this case, I am persuaded that an adjustment of 15% in favour of the wife is required with respect to the property of the parties.

Is the result Just and Equitable?

The result of the orders is to leave both parties with a home. The wife’s home is valued at $600,000 and will be unencumbered. She will also receive a cash payment from the husband of $16,493.85. The husband will retain a home worth around $893.000, but with a mortgage of around $335,000. Whilst the husband will have less property than the wife, it is in part reflective of the significant disparity in superannuation, where the wife is left with less than $16,000 and the husband with over $250,000.
Standing back and considering the matter as a whole, I am satisfied that the outcome proposed is just and equitable.

Conclusions

As a result of the findings set out above I find that the children’s and property orders I have indicated are the appropriate orders to be made in the circumstances of this case.
Any application with resect to costs (should there be such an application having regard to s.117 of the Family Law Act) ought to be brought within 14 days.

I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate: Katherine Sudholz

Date: 15 June 2009