WOLTER & WOLTER
[2012] FamCA 1133
•21 December 2012
FAMILY COURT OF AUSTRALIA
| WOLTER & WOLTER | [2012] FamCA 1133 |
| FAMILY LAW – CHILDREN – Best interests of a child – Where the parties agree they have equal shared parental responsibility for the children – Where the children were in the primary care of the mother and had a continuous and significant relationship with the father – Where post separation both parties have been significantly involved in the children’s care – Where the parties are involved in a highly conflicted parental relationship – Where the father sought primary care of the children on the basis that the there is a risk of harm in the mother’s care – Whether the children are at risk of harm in the mother’s care – Consideration of Part VII of the Act – Consideration of the single expert report – Where the single expert’s recommendation about live with/spend time arrangements was not accepted – Where orders are made that the children live with the mother and spend substantial and significant time with the father each week. FAMILY LAW – PROPERTY – Application for property settlement orders – Whether it is just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Where assessment of the contribution of the parties was made on a global basis – Where the mother conceded that the father’s significant initial contribution warranted a sizeable adjustment in his favour – Where the mother’s total contributions as a homemaker and parent materially exceed the father’s – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of contributions and other factors has resulted in the husband receiving 72 per cent of the assets compared to the wife’s 28 per cent – Where an adjustment, pursuant to s 75(2), of 11 per cent in the wife’s favour is appropriate – Where it was determined to be just and equitable that the parties’ interest and rights in property is altered. |
| Family Law Act 1975(Cth): ss 79(4); 75(2); 81; 79(2); 64B; 61C(1); 61B; 61DA; 60B; 60CA; 65AA; 60CC; 60CG; 65DAA Child Support (Assessment) Act 1989 (Cth) |
| AJO & GRO (2005) FLC 93-218 B and B [2000] FamCA 1301 (unreported) Bonnici & Bonnici (1992) FLC 92-272 Browne v Green (1999) FLC 92-873 C & C [1998] FamCA 143 (unreported) Clauson (1995) FLC 92-595 Collu & Rinaldo [2010] FamCAFC 53 Farmer and Bramley (2000) FLC 93-060) Ferraro and Ferraro (1993) FLC 92-335 Goode & Goode (2006) FLC 93-286 Kowaliw & Kowaliw (1981) FLC 91-092 M & M [1998] FamCA 42 (unreported) NHC & RCH [2004] FamCA 633 Norbis v Norbis (1986) 161 CLR 513 Pierce v Pierce (1999) FLC 92-844 Rosati v Rosati (1998) FLC 92-804 Stanford v Stanford [2012] HCA 52 Tomasetti & Tomasetti (2000) FLC 93-023 Townsend & Townsend (1995) FLC 92-569 Waters & Jurek (1995) FLC 92-635 |
| APPLICANT: | Ms Wolter |
| RESPONDENT: | Mr Wolter |
| FILE NUMBER: | SYC | 5747 | of | 2009 |
| DATE DELIVERED: | 21 December 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 7, 12-16 December 2011 and 10 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Watkins |
| SOLICITOR FOR THE APPLICANT: | Shipton & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | York Family Lawyers |
Orders
Property
That Ms Wolter (“the mother”) shall forthwith do all acts and things and sign all necessary documents to transfer to Mr Wolter (“the father”) the whole of her right title and interest in F Street, D (“D property”).
That the father shall forthwith do all acts and things and sign all necessary documents to sell such of the following properties as have not already been sold:
a.D property;
b.V Street, N (“N property”);
c.E Street, Y (“Y property”); and
d.U Street, L (“L property”).
In relation to the N, Y, D and L properties the following conditions of sale apply:
1.list each of the above properties for sale by private treaty or public auction (as agreed between the parties or in the absence of agreement as recommended by the agent), with such agent as the parties agree to appoint and in default of agreement as to agent within 14 days from the date of these orders, with such agent or agents as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”), the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due;
2.the listing price, selling price or the reserve price (as the case may be) at which each of the above properties shall be listed shall be such sum as may be mutually agreed upon by the parties or in the absence of agreement, shall be the price nominated as the fair market value thereof by a valuer appointed by the President of the NSW Division of the Property Institute of Australia or its equivalent upon the written request of either party (“the valuer”), the costs of and incidental to such valuation to be borne equally by the parties as and when they fall due;
3.the father will co-operate in every way with the agent including (without limiting the generality of the foregoing):
(a)making a key available to the agent and the mother;
(b)allowing inspection at all reasonable limes requested by the agent;
(c)doing or saying nothing to hinder or prevent a sale being effected;
(d)ensuring that each of the above properties including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(e)signing all documents requested by the agent in relation to the listing for sale of each of the above properties except a contract or agreement for sale which has not been authorised by the parties’ solicitors;
(f)the father will execute a contract for sale in the form prepared by the solicitors having the conduct of the sale;
(g)the father shall instruct such solicitor as the parties agree upon to have the conduct of the sale on behalf of the father or, in the absence of agreement within 14 days of the date of these orders, shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when the same fall due;
(h)neither party may confer on the agent without the consent of the other party any right to any sole or exclusive agency in respect of any of the above properties or to any commission;
(i)in the event that the bidding at auction does not reach the reserve price or the property in question is not sold within three months from the date of listing it for sale (as the case may be), then the father may negotiate with the highest bidder(s) or any other interested person to effect a sale of each of the above properties for a price which is not more than 5% below the reserve price or selling price (as the case may be) or such other price as the parties may then agree in writing;
(j)if any of the above properties remains unsold for three months after first listing it for sale (or the said property fails to sell at public auction) (as the case may be), then the father shall forthwith do all acts and things and sign all necessary documents to relist or list (as the case may be) the property that remains unsold for sale by public auction on such date as nominated by the agent and at such auction these provisions shall apply mutatis mutandis insofar as they relate to listing the property for sale by public auction unless otherwise agreed in writing by the parties.
That on settlement of the sale of each of the L, N, D and Y properties referred to in the above order the proceeds of sale shall be distributed as follows:
(a)selling costs;
(b)rates;
(c)mortgage secured thereon;
(d)an amount equivalent to the Capital Gains Tax payable by the father for that property;
(e)61 per cent to the father from which he shall pay any amounts payable but otherwise taken into account in the asset pool being “Bills per exhibit F as updated May 2012”; and
(f)the balance to the mother from which she shall pay the father $189,332.00 or such of the adjusting amount as remains outstanding.
In relation to Capitals Gains Tax, no less than three (3) weeks prior to settlement of the sale of each property, the father shall give the mother a written calculation by his accountant of the Capital Gains Tax payable by him for that property. In the event the amount is other than the Capital Gains Tax attributed to that property for this hearing, an adjustment will be payable by the relevant party at settlement. If the Capital Gains Tax is more than set out in the evidence of Mr P (in relation to Y property as per his affidavit and otherwise exhibit R), a 61% adjustment for the excess is to be made by the mother from the amount she would otherwise be entitled to receive and, if it is less, a 39% adjustment is payable by the father to the mother.
In relation to the rent that the father receives in respect of Y, N and L properties that rent shall be applied by him to meeting the outgoings in relation to those properties. However for so long as the father is not in receipt of an income whether that be Centrelink, workers compensation or wages he is entitled to apply no more than $500.00 per week for his own expenses. This order operates from 10 May 2012. The father shall provide the mother with a monthly statement that identifies rental income and its disposition.
Excluding Orders 1, 8, 9, 10, 11, 12 and 13(f) of the orders dated 10 May 2012 are discharged.
In the event there is a credit balance in the D property CBA account established pursuant to the orders dated 10 May 2012 the balance at settlement of D property is to be distributed 61% to the father and 39% to the mother.
In the event that the proceeds of the Y Local Court litigation referred to in the orders dated 10 May 2012 has not finalised and/or amounts payable have not been recovered prior to completion of the sale of D property, the balance which remains after payment of the amount pursuant to Order 12(a) of those orders, shall be distributed 61% to the father and 39% to the mother.
From the sale proceeds of whichever property sells first and before funds are distributed to the parties the amount of $6,085.00 is to be paid to S & Associates for reimbursement of expenses paid for the failed auction of D property.
If either party refuses or neglects to sign any document necessary to implement these orders, that a Registrar sign the necessary document on behalf of the defaulting party pursuant to section 106A of the Family Law Act 1975 (Cth).
Unless otherwise specified in these orders each party is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age and working future provides the conditions for payment out of such payment.
It is noted that the parties agree that they will market for sale the N and L properties after the D property has sold by way of an unconditional exchanged contract.
A failure by a party to respond to a party’s written proposal, made in writing by or to a party’s solicitor, in relation to the sale process, within 14 days shall constitute a disagreement for the purposes of these orders. A party’s proposal includes but is not limited to a proposed selection of agent, selection of solicitor, listing price, selling price or reserve price.
A failure by a party to respond to a written request to sign any document necessary to implement these orders within 14 days of such written request shall constitute a default by that party pursuant to clause 11 of the orders.
Parenting
All prior parenting orders in relation to the children M born … December 2004, C born … August 2007 and A born … August 2007 (“the children”) are discharged.
That the mother and father have equal shared parental responsibility in relation to the children.
Subject to periods during which pursuant to these orders the children live with the father, they shall live with the mother.
The children live with the father as follows:
Until C and A turn seven (7) years
(a)During school term from after school Friday until the commencement of school Monday in the first and each alternate week thereafter and in the second and each alternate week thereafter from after school Thursday until noon Saturday;
(b)For one half of the Term 1, Term 2 and Term 3 school holidays with the parties to agree as to which half but in the absence of agreement as follows:
(i)the first half with the father and the second half with the mother in even numbered years;
(ii)the first half with the mother and the second half with the father in odd numbered years.
(c)In relation to the Christmas school holidays week about with each of the mother and father as follows:
(i)in odd numbered years, with the mother to have the first week and each alternate week thereafter and the father to have the second week and each alternate week thereafter;
(ii) in even numbered years, with the father to have the first week and each alternate week thereafter and the mother to have the second week and each alternate week thereafter.
From when C and A turn seven (7)
(d)During school term each alternate week from after school Thursday until the commencement of school Tuesday;
(e)Terms 1, 2 and 3 school holidays as per Order 14(b);
(f)One half of the Christmas school holidays with each of the parties in one block with the parties to agree as to which half but failing agreement as follows:
(i)the first half with the father and the second half with the mother in even numbered years; and
(ii)the first half with the mother and the second half with the father in odd numbered years.
(g)Notwithstanding any other order, the children shall live with each parent as follows:
(i)from 1.00 pm on Easter Saturday to 1.00 pm on Easter Sunday with the father and from 1.00 pm Easter Sunday to 1.00 pm Easter Monday with the mother;
(ii)with the father on Fathers Day from 9.00 am to 5.00 pm;
(iii)with the mother on Mothers Day from 9.00 am to 5.00 pm.
(h)Each year from 12.00 noon on 24 December until 12.00 noon Christmas Day with the father and from 12.00 noon Christmas Day until 12.00 noon 26 December with the mother;
(i)If a child’s birthday falls on a school day then the children shall spend time with the parent that they are not staying with from after school until 6.00 pm;
(j)If a child’s birthday falls on a weekend or a non-school day then the children are to spend time with the other parent from 9.00 am to 2.00 pm;
Order 19(a) is varied for the period 24 to 27 February 2013 so that during that period the children are in the father’s care with makeup time to be given to the mother for the period 21 to 23 February 2013.
That for their primary years the children shall attend O Public School or such other school as the parties may agree in writing.
That each party shall:
(a)provide to the other party as they are received copies of school reports and school newsletters;
(b)make available to the other party homework and schoolwork done by the child on the basis that this is returned to the providing party on demand and when required by the child and the providing party;
(c)advise the other party of parent/teacher meetings and school functions such as open days and awards functions;
(d)advise the other party of the residential address of the child and of any changes to that address;
(e)advise the other party of details of any other persons entrusted with the care of the child;
(f)advise the other party of an emergency and urgent message contact number to contact them and of any changes to that number;
(g)when wishing to take the child away on holidays, that parent give to the other reasonable notice of the intended holiday specifying the intended destination and contact numbers;
(h)not to travel overseas with any or all of the children other than in accordance with these orders;
(i)in the event of a child becoming ill, suffering an injury or requiring medical treatment, the party having the care of the child at that time shall at the first reasonable opportunity advise the other parent of the particulars of these circumstances.
During periods when the children live with the father he is permitted to remove them from the Commonwealth of Australia to travel to New Zealand.
For the purposes of such travel to New Zealand:
(a)the father shall provide not less than 30 days notice of the dates that he intends to travel with either M or the twins;
(b)the father shall provide the mother in writing all details of the proposed accommodation, contact telephone numbers and the itinerary showing the confirmed flight times for the father and M and/or the twins not less than 21 days prior to the proposed travel dates;
(c)not less than 14 days from the proposed travel dates, the mother shall provide to the father the relevant passports for the child or children who are travelling with the father;
(d)the father shall meet all expenses of such travel to New Zealand including visa (if any) and passport expenses;
(e)the father shall hand the child or children’s passports back to the mother at the first changeover of the children after return to Australia.
If either party wishes to take any or all of the children out of Australia, other than the father’s travel to New Zealand pursuant to the previous orders, the party wishing to travel overseas shall:
(a)travel during periods which the children would ordinarily spend with them pursuant to these orders and travel only to countries which are:
(i)signatories to the Hague Convention; and
(ii)not the subject of travel advisory warnings issued by the Australian Government of level 3 or above;
(b)give to the other at least eight (8) weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom the child(ren) will be travelling, the intended destination, contact numbers and addresses for the child(ren) for the duration of the trip and the intended date and time of return.
(c)that upon written notice being given by a party pursuant to the previous order, the other party shall within seven (7) days from the date of receipt of the said notice, give written notice of their agreement to the children travelling out of Australia for the specified period and to the specified destination.
(d)That no less than 14 days prior to the proposed travel, the party in possession of the children’s passports shall provide those passports to the other party.
Both parties shall do all acts and things and sign all documents necessary to maintain a current passport for each of the children.
That the mother shall take all medication prescribed for her in relation to any condition that she suffers from including but not limited to her anxiety.
That the mother shall seek treatment in relation to all medical conditions that she has including but not limited to treatment for her anxiety by any treating specialist that is recommended to her by her general practitioner (“GP”) from time to time and that she is to comply with all reasonable directions of her specialist and/or GP in relation to the management of any medical condition.
That both the parties are restrained from physically chastising the children or any of them and further that each of the mother and the father ensure that no third party, including the mother’s parents, physically chastise the children or any of them.
That the parties are to forthwith establish a communication book which communication book is to include the parties’ communicating to the other a description of any bruises that the children have at the time of changeover and the cause of each bruise, what treatment was applied and whether the child was taken to their GP for treatment.
That the parties are to do all acts and things and ensure that the children attend upon one GP at all times, except in the case of an emergency and in relation to this, that within seven days from the date of these orders:
(a)the father is to nominate three GPs or medical centres that he wishes the children to attend with the location of such GPs to be equidistant from the parties’ current homes;
(b)the mother shall within seven days thereafter choose one of the medical centres/GPs that the father has nominated. In the absence of the mother complying with this order the father is to thereafter nominate one of the medical centres/GPs that he has nominated which GP/medical centre will be the medical practitioner that the children will attend for any and all ailments except in the case of an emergency;
(c)that within 30 days from the date of the making of these orders the parties are to provide all authorities and directions to all of the medical centres/GPs that the children have attended in the past two years and authorise those GPs/medical centres to forward copies of the children’s medical records from those GPs/medical centres to the new GP that the children will commence attending in accordance with this order.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Subject to any application for costs, all outstanding applications are dismissed.
It is noted by consent the mother agrees that the father can attend the twins’ first day of school.
IT IS NOTED that publication of this judgment under the pseudonym Wolter & Wolter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5747 of 2009
| Ms Wolter |
Applicant
And
| Mr Wolter |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for parenting and property settlement orders. The parenting proceedings relate to the parties’ three children, M who is nearly eight and five year old twins, A and C. Although there is an issue about whether the parties separated under the one roof, in total, they cohabited for just over six years. When Ms Wolter (“the mother”) moved away from the family home the children who were then four and 13 months went with her. Thus, as was the situation while the parties cohabited, she continued to be primarily responsible for their care.
Without the necessity for court intervention, the parties ensured that the children continued to regularly spend time with Mr Wolter who is their father (“the father”). However, within a relatively short period they were seriously at odds about his desire to spend longer periods with the children than the mother thought was developmentally appropriate along with child support and property settlement issues. Nonetheless, in the constant shadow of ongoing litigation, the parties were able to ensure that the children spent time with the father every week including for the past three years or so overnight. Through this period the parties’ relationship became increasingly acrimonious in relation to which a single expert child psychiatrist explained there are strong indications that the children are suffering through being caught in the middle of their parents’ highly conflicted relationship.
It is interesting that in spite of these difficulties, the parties agree they should have equal shared parental responsibility and both have significant time with the children. It is the father’s proposal that the children’s time is divided four nights with him each week and equally during school holidays. On the other hand, it is proposed by the mother that the children have each alternate weekend with the father, as well as every Monday night during school term. She too proposes equal time during school holidays, albeit configured differently to the father’s proposal. Notwithstanding that the Single Expert recommended a 4-3 night alternating structure the Court raised concerns about the constant movement of the children this involved. In the context of discussion about whether a 5-2 arrangement might promote a more appropriate degree of stability for the children, the mother but not the father indicated such an outcome was acceptable to her. When it is appreciated that the father (as did the mother) also pressed for further adjustments to the children’s arrangements on their and the parties’ birthdays, Mother and Father’s Days and for Christmas and Easter it is apparent that the extent to which the children need stable living arrangements is contentious.
For the mother, strong reliance is placed upon her being the children’s lifelong primary carer and primary attachment figure. Because the twins are still quite young, she argues that this is a particularly significant factor and that separation from her to the extent proposed by the father would be unduly disruptive and emotionally troubling for the children. However, the father raises serious concerns about the mother’s parenting capacity; in particular, that she has an anxiety disorder which has resulted in her being physically and emotionally aggressive; including to the children. He has observed that the children come to him with bruises and other marks which generally are either unexplained or, according to the children, inflicted by the mother. In short, he says that while it is important for the children to have a proper amount of time with the mother, this needs to be tempered by her being protected from more stress associated with their care than she can handle.
There is a chasm between what the parties claim is a just and equitable property settlement. While they agree that the father made a greater initial contribution to their property they disagree about its significance. Issues arose in relation to whether the father gave full and frank disclosure and the effect of contradictory evidence he gave in relation to significant financial matters. Post separation he retained possession and control over the majority of the parties’ assets, including assets acquired during cohabitation. Questions arose about the disposition by him of monies held at separation and the extent to which funds he disposed of should be notionally added back into the asset pool.
In broad terms, the father says he should receive between seventy and eighty per cent of their net property whereas the mother says it should be divided equally. According to the father there should be no adjustment pursuant to s 75(2) whereas the mother claims a twenty per cent adjustment.
Background facts
Findings of fact will be determined on the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
The father was born in New Zealand in 1961.
The mother was born in Sydney in 1971.
In 1993 the father purchased a unit at E Street, Y (“Y property”) for $285,000.00. He borrowed $85,000.00 from a bank and, depending upon which version of his evidence is accepted the balance came from savings or was a combination of savings and $200,000.00 advanced (either by gift or loan) by his late mother.
In 1995 the father purchased V Street, N (“N property”) for $345,000.00. He borrowed $170,000.00 from a bank and, depending upon which version of his evidence is accepted the balance came from savings or was a combination of savings and $180,000.00 advanced (either by gift or loan) by his late mother.
Also in 1995, the mother purchased a two bedroom unit at I Street, F (“F property”) for $169,000.00. The purchase price comprised $40,000.00 savings and $130,000.00 bank loan. By December 2000 this loan was fully repaid. This is where she and the children reside.
The parties’ relationship commenced in late 2001.
In April 2002 they agreed that the father purchased a property at U Street, L (“L property”) for $740,000.00. The property was acquired in his sole name in relation to which he borrowed the entire purchase price and stamp duty. The L property was thereafter rented.
In June 2002 the father moved in with the mother at her F property. By then, save for the sum of $1,000.00 secured on N property, both Y and N properties were unencumbered. At the commencement of cohabitation the mother was employed full-time in hospitality earning $42,675.00 per annum and part-time in health care earning $5,083.00. The father was in full-time employment with B Company as a technician earning $120,000.00 per annum plus superannuation.
At the commencement of cohabitation the father had the following assets and liabilities:
·Y property worth $900,000.00 and unencumbered. Between 1 July 2002 and February 2011 Y property produced about $235,000.00 gross rental income.
·N property worth $700,000.00. This property was subject to a $1,000.00 mortgage to the Commonwealth Bank. N property was also collateral security for the funds advanced to acquire L property. In this regard the father drew down against the N mortgage to pay a five per cent deposit ($37,000.00) and stamp duty on L property ($28,790.00). From acquisition in 1995 until December 2009 N property was rented out. Between 1 July 2002 and late 2010 it produced gross rental income in the amount of $212,000.00. This includes rental paid by the parties’ (father’s) private company, the details of which will be discussed later. N property was rented again for a period in 2011.
·L property worth $750,000.00. This property was subject to a mortgage of $800,000.00 to the Commonwealth Bank, which at that stage was drawn down to approximately $703,000.00. The mortgage comprised seven accounts. L property was rented from April 2002 until December 2004 when it became the family home. While the parties were in occupation their company (X Company) paid rent for its use of the property. This ceased in the 2010 tax year when the father and company vacated. Following renovations L property was rented again from January 2010 at $690.00 per week. In total from April 2002 until the end of 2010 L property produced gross rental in the amount of $120,120.00. There was a mortgage shortfall throughout which was met from rent received from N and Y properties.
·Honda motor bike worth about $6,000.00.
·1990 van worth about $3,000.00.
·Savings and offset accounts - $157,775.40.
·Superannuation with a total balance of $41,663.00.
·Furniture and household contents of approximately $5,000.00.
·Liabilities which include the amounts referred to above in the amount of $839,209.00.
In relation to the funds held in offset accounts the father’s practice was to not repay the loan and keep the funds available for investment. This was both tax effective and afforded investment flexibility. In addition, he had a 25 per cent interest in a property at H in New Zealand which was his mother’s home. The H property will be discussed later. Not long after cohabitation commenced the father received $25,922.60 taxation refund. The following year he received $32,248.00.
It is alleged by the father that when the parties commenced cohabitation he owed his mother $380,000.00. As will be discussed later, his mother passed away a few months prior to the hearing. There is an issue about the nature of his interest in his late mother’s estate and whether he is indebted to the estate. Allied to this issue is whether the father borrowed $380,000.00 from his mother towards the purchase of the Y and N properties. If he did, any claim for repayment is statute barred.
At paragraph 50 of his affidavit filed 25 November 2011, the father set out the source of funds used to acquire the Y property in 1993. Relevantly, he said an estimated $200,000.00 was borrowed from his mother. At paragraph 59 of the same affidavit, he set out the source of funds used to acquire N property in 1995. He said an estimated $180,000.00 was borrowed from his mother. In cross-examination the father agreed that he was unable to produce any documentation which corroborated his evidence that some $380,000.00 was advanced by his mother. So that it is clear, there are no bank statements, correspondence or documents of that ilk that confirm the advance or constitute a claim by the father’s late mother for repayment. Indeed, in cross-examination he conceded the only document which suggested an advance along those lines, as well as that the advance was a loan, is a letter from his sister’s solicitors sent a few weeks prior to this hearing. The father’s sister did not give evidence.
On 9 May 2011, the father filed a Financial Questionnaire. At Part C he said “my parents gifted me the sum of $380,000.00 towards the purchase of the [Y] and [N] properties as a pre-testamentary gift. I do not anticipate receiving any further inheritance when my mother dies and this amount has been taken into account” (exhibit “I”). Asked to reconcile the two different descriptions applied to the alleged advance, namely a gift in one document and loan in another, the father said “I’ve always stated the fact to the solicitors if it was a gift it would subject to New Zealand gift tax. That could be larger than, in fact, what I owe. It would depend on the interest rates and accumulations” (Transcript, 14 December 2011, p 15). He went on to say that his former solicitors asked him “to say it’s a gift, but technically it’s not a gift” (Transcript, 14 December 2011, p 16).
What is apparent from the sequence of events is that while the father’s mother was alive he provided a statement to this Court which said those monies were advanced by his parents as a gift. After she passed away, he claimed the advance was a loan. More contradictions emerge when the father’s affidavit sworn on 17 June 2010 is taken into account. At paragraph 24 of that affidavit in relation to the Y property purchase, he said “I borrowed $85,000.00 from the Bank of Melbourne to assist with the purchase. The balance of purchase monies and all other costs associated with the purchase, including stamp duty and legals were paid from my savings.” At paragraph 29 where he discussed N property he said “I obtained a mortgage from the Commonwealth Bank for $170,000.00 to assist with the purchase. The balance of purchase monies and the cost of the purchase, including stamp duty and legal fees were paid from my savings” (exhibit “J”). Nowhere is reference made to either a gift or a loan advanced to assist with his acquisition of those properties. Pressed about the inconsistencies in his evidence, the father again attributed responsibility to his former solicitors. He said “[t]hey say it’s a gift, not a loan, and they’ve always recommended to say that it’s a gift, and therefore it is my savings and I can see the confusion, and I understand what the confusion is, but you know, I do owe the family money and it will be sorted out hopefully in the next year” (Transcript, 14 December, p 20). It is noteworthy that notwithstanding his claim that he received these monies from his mother on the basis this was his inheritance, this is not reflected in her will in relation to which no distinction is drawn between the father’s and his siblings bequests.
In his affidavits the father demonstrated worthy attention to detail in relation to financial matters. In his oral testimony he evidenced clear determination to answer questions his own way, was not cowered by the process and in essence showed strong will and determination to ensure he got his point across. He is not someone who would describe facts such as those under discussion in a particular manner merely because his lawyer said he should. In short, it is not accepted that the inconsistencies in the father’s evidence discussed above are explained merely by reference to advice he says he received from his former solicitors. Rather, it is my conclusion he cast his evidence to mount whatever case he considered would best achieve his desired outcome. As his view of that changed, so has his evidence. It highlights the unreliability of the father’s evidence and demonstrates that caution is appropriate. This point is reinforced when it is appreciated that even after evidence was given that any alleged loan was statute barred, the father still pressed for inclusion as a liability $380,000.00 to his mother’s estate. So as to reinforce the point, he said even if he has no legal obligation to pay that amount to the estate, he intended to do so. Although he is at liberty to do so, this begs the question (assuming for this question funds were advanced) why he failed to repay his mother before she passed away. His failure to pay anything is another indictor that there was no advance and notwithstanding the father’s evidence, it would be unsafe to find he is likely to pay that amount to the estate.
It follows that it is not accepted that the father was indebted to his mother. Thus, his net assets, including superannuation, at the commencement of cohabitation were worth approximately $1,720,000.00 and the H property.
In relation to the mother, at the commencement of cohabitation she had the following assets and liabilities:
·The F property unencumbered and worth $325,000.00. Between 2004 and 2008 F property produced about $75,000.00 gross rental.
·Toyota motor vehicle which she purchased in May 2001 for $6,000.00.
·Suzuki motor bike purchased in 1994 for $1,000.00 hence negligible value.
·Savings of $16,927.00.
·The mother was debt free.
Thus, her net assets were in the vicinity of $349,000.00. From her savings, between 18 October 2002 and 15 October 2004 the mother paid $17,200.00 into the L mortgage.
From when the parties commenced cohabitation they moved between their properties so as to maximise rental and make as good use of their property portfolio as they could.
In October 2003 the parties executed a Binding Financial Agreement which has been set aside. Later that month they married.
In December 2003 the parties purchased 56 F Street, D (“D property”) for $660,000.00 as an investment in their joint names. Together, they borrowed about $703,000.00 from the Commonwealth Bank with that advance secured over the D and F properties. The mortgage comprises seven fixed interest loans each for $100,000.00. Until recently D property has always been tenanted and at all times its expenses exceeded it income. In this regard from her income, from acquisition until she stopped paid work in December 2004, the mother contributed $16,900.00. Once the F property was tenanted the rental income was also applied to the shortfall. Since December 2006 the father has paid about $260,000.00 towards the shortfall.
Annexure “G” to the father’s affidavit filed 25 November 2011 is his schedule of rental income and outgoings for D property between 2004 and 2010. During those years the property earned about $120,000.00 and outgoings (including $325,738.00 interest but excluding low value pool) amounted to about $400,000.00. On the basis that 2011 largely duplicated the figures are respectively increase to $141,000.00 and $470,000.00. While this undoubtedly created significant tax offsets, there can be no doubt that these were significant expenses which were a drain on the parties’ income (after separation). Excluding taxation benefits, rounded out it means that from about 2008, annually the parties needed to find about $50,000.00 to meet the D property shortfall. D property is listed for sale and will sell at a loss. From the sale proceeds the mortgage, which may include break fees, will not be fully repaid. Because it is agreed that the mother will retain the F property care is required to ensure that the D property shortfall is paid from other realised assets. As was mentioned earlier there is a significant issue about whether funds held in the offset account at separation which the father has depleted should be notionally added back. To a degree the answer to this lies in whether the father had sufficient income from paid work and rental income to meet reasonable expenses, including those associated with D property. According to him he did not in relation to which he says, post separation, to pay D property “I have borrowed funds from the Commonwealth Bank by drawing down on my offset accounts to meet the shortfall (when my income has been insufficient to meet the shortfall).”
For the taxation years ended 2006-2008 (inclusive) the parties mistakenly under-estimated the interest paid on the D mortgage. The details of the understatement are set out at paragraph 99 of the father’s affidavit filed 25 November 2011. He has now lodged his 2009 and 2010 returns using the correct figures and, as anticipated received a larger taxation refund. Should the mother do the same, she too should receive a modest additional tax refund.
In April/May 2004 the father was made redundant in relation to which his employer (B Company) paid him $34,000.00. Those funds were paid into the Commonwealth Bank mortgage.
When the father was made redundant the parties agreed to renovate and sell the F property. Accordingly they vacated F property and moved into Y property. Although the father took some private paid work as a skilled tradesman, until F property was placed on the market in about September/October 2004 he was primarily involved in the renovations. Some he personally undertook with some undertaken by friends and contractors. In general terms, the father:
·liaised and selected contractors;
·performed electrical work and lighting;
·installed oven, dishwasher and stove top;
·installed floating floorboards;
·installed new toilet and vanity;
·prepared the property for renovation, e.g. removing carpet;
·painted; and
·selected items for installation.
This was a not an insignificant renovation, the costs of which were either paid by the father and reimbursed by the mother or paid by her.
The F property was then listed for sale but failed to sell. In late 2004/early 2005 it was tenanted for about $360.00 per week. As was earlier referred to the net rental income was paid to the D mortgage.
In early December 2004 the mother stopped paid work and the parties moved into the L property. From this time their company made L its principal place of business. The company’s primary business is work undertaken by the father as a privately contracted tradesman and repair and renovation work undertaken on properties in which he has an interest. X Company paid the father rent for the space it occupied, this arrangement ceased in the 2010 tax year when he and the company vacated the premises.
The child M was born in December 2004.
According to the father sometime in 2005 the parties separated, albeit they continued to live in the same home. It is the mother’s evidence that separation occurred some years later. This issue will be discussed later.
In about July 2005 the father obtained contract employment with K Company. This was a full time position in which he worked an alternating roster of two weeks of 12 hour night shifts, then two weeks of day shifts. With a new baby, the mother breastfeeding and thus unable to take mood stabilising medication and the father needing to sleep at odd hours, this was an understandably difficult time for the family.
When the father’s contract with K Company expired, he commenced a 12 month full time position with TS.
The mother returned to work part time in hospitality in September 2005. She arranged her shifts around M’s routine, including breast feeding.
The mother stopped paid work in June 2007. Between April 2007 and December 2008 the mother had a cleaner two hours a week. There is no doubt that following the birth of the twins in August 2007 her homemaker and parental responsibilities were particularly onerous. As they had following M’s birth, the mother’s parents visited most days to help.
The twins were born in August 2007 following which the father took three weeks leave then returned to work. From the time of the twin’s birth, as was the situation following M’s birth, the mother was overwhelmingly responsible for their care. Again she breast fed, which in accordance with her doctors advice meant she did not go back onto mood stabilising medication (which she stopped taking during her pregnancies) until they were weaned. With three very small children this was a very difficult time for the family.
In late 2007 the father resigned his employment with TS and commenced full time employment with Z Company as a skilled tradesman.
Attached to the mother’s affidavit sworn 11 November 2011 is a Commonwealth Bank statement which sets out the father’s various Commonwealth Bank accounts as at 20 February 2008. The Commonwealth Bank was the only financial institution with whom the parties had loans. The statement shows total debits of $1,549,604.32, total credits (predominately MISA accounts) of $404,148.66 which resulted in an overall debit balance in the amount of $1,145,455.66. So that it is clear the father paid his wages into the Viridian account, kept funds in the MISA accounts to offset the attached loan balance and used the credit cards for expenses.
Account Type
Account Number
Account Balance
Available Funds
Viridian
#860
$7,327.82 CR
$37,327.82 CR
Cheque A/c
#164
$1,051.53 CR
$919.53 CR
Streamline
#744
$1,154.65 CR
$1,154.65 CR
Inv HL
#550
$87,000.00 DR
$0.00 CR
Inv HL
#569
$87,000.00 DR
$0.00 CR
Inv HL
#577
$87,000.00 DR
$0.00 CR
MasterCard
#495
$7,178.18 DR
$2,611.82 CR
MasterCard Gold
#599
$217.50 DR
$7,103.97 CR
Home Loan
#000
$138,949.89 DR
$1,079.51 CR
MISA
#000
$134,030.39 CR
$134,030.39 CR
Home Loan
#706
$266,723.76 DR
$4,219.37 CR
MISA
#706
$260,584.27 CR
$260,584.27 CR
Home Loan
#802
$87,851.10 DR
N/A
Home Loan
#004
$87,683.89 DR
N/A
Home Loan
#007
$100,000.00 DR
N/A
Home Loan
#103
$100,000.00 DR
N/A
Home Loan
#701
$100,000.00 DR
N/A
Home Loan
#904
$100,000.00 DR
N/A
Home Loan
#018
$100,000.00 DR
N/A
Home Loan
#309
$100,000.00 DR
N/A
Home Loan
#501
$100,000.00 DR
N/A
It is the father’s evidence he had “lots” of other liabilities, for example land tax and council fees. If he did no evidence was given about precise amounts or clear evidence as to whom these liabilities were due. Although no further property was acquired after 20 February 2008 and when the father swore his Financial Statement on 25 March 2011, he disclosed that the overall debit balance increased by $381,000.00 to $1,527,000.00. It is common ground that after December 2008 (excluding the mother’s credit card) he was solely responsible for transactions in these accounts. It is the mother’s contention that a portion of the $381,000.00 ($132,477.00) should be notionally added back. This issue will be discussed later.
During 2008 the father changed the L mortgage from principal and interest to interest only. This was done to reduce periodic payments and alleviate financial pressure.
There is no doubt that by 2008 both parties realised that their marriage was in trouble. It is the father’s view separation occurred earlier (2006), evidenced at least by him moving into a bedroom at one end of the house while the mother and children used bedrooms at the other end. It would appear that the father considers that he made plain his desire to end the marriage, whereas the mother remained hopeful for their future together. Indeed she understood he moved to the other end of the house so that his sleep would not and thereafter was not, disrupted by the children. The father told Dr Q he moved to the other end of the house because he needed sleep; it is inferred primarily so he could sleep without being disturbed by the children. Their financial arrangements did not alter nor, other than sleeping arrangements did other aspects of their lives change. In short, the father’s claim they separated is regarded as artifice which he hoped might be to his forensic advantage.
In any event, counsel sensibly approached the matter as requiring consideration of the facts of the parties’ lives, not how they viewed the state of their marriage. By late 2008, the parties agreed that separation was inevitable and arrangements were made for the mother and children to vacate the L property. This included agreement that the father, who oversaw management of the F property, would give its tenants notice to quit. When he failed to do so, on 11 November 2008 the mother did. Self evidently the parties lost rental income which would otherwise have been paid towards the D property shortfall.
On 14 December 2008 the mother and children moved into the F property. The parties have lived separately ever since. At that time they had the following assets and liabilities:
Assets
·D property;
·F property;
·N property;
·Y property;
·L property;
·in the father’s sole name 25% interest in the H property;
·offset accounts;
·savings at bank;
·L MISA account #706 - $260,584.27;
·household contents;
·Toyota Hilux;
·Ford Falcon in the mother’s name;
·jewellery and personal effects owned by the mother; and
·superannuation (father and mother).
Liabilities
·L mortgage #706 - $266,723.76 (as at 1 January 2009);
·N mortgage #004 - $85,460.62 (as at 1 January 2009). In relation to this loan the required monthly payment was $633.00;
·N mortgage #802 - $85,799.33 payable at $633.00 per month;
·D mortgage;
·Credit card.
There is no dispute that between 2005 and 2008 the father’s mother advanced $30,000.00 which he used for joint purposes. According to him this was a loan which at separation he owed his mother. There is no documentary evidence which supports his contention that his mother wanted this money repaid. Unfortunately, the father’s evidence is not sufficiently reliable that his uncorroborated evidence about this can be accepted. It follows it is accepted his mother gave him this money which is an indirect contribution made solely on his behalf.
The evidence does not enable me to determine with reasonable precision individual values and liabilities at separation. In this regard the best evidence about savings and mortgage liabilities is that outlined in the table at paragraph 42 above and the evidence which underpins the mother’s argument that liabilities have increased by $381,878.34.
In late April 2009 the father transferred $168,500.00 from the L MISA account to the following:
·$74,000.00 to N MISA account for mortgage #004;
·$10,000.00 to N mortgage account #004;
·$74,500.00 to N MISA account mortgage #802; and
·$10,000.00 to N mortgage account #802.
These are a small number of the movements between the MISA and offset accounts made between March 2008 and October 2011. In this regard it is common ground that during this period $691,705.40 was withdrawn and $448,500.00 deposited into the MISA offset accounts. The point being the parties’ overall liability increased in relation to these accounts by $294,000.00. This forms part of the $381,878.34 increase referred to earlier. The father made an insufficient attempt to give comprehensible detail about these transactions. Essentially, he said the increase in liabilities was “to pay all the bills, all the mortgages all that sort of stuff. It’s all explained, it can be explained…to go into dollar detail it would take me months to do, but it can be explained.” (Transcript 14 December, p 36). Although it is accepted that a vast volume of financial records was given to the mother’s lawyers, as his oral evidence just outlined exposes, this was insufficient to clarify the situation. Without in any way being critical of those appearing for the father (who came in late and obviously undertook a vast amount of work in a short period) it was incumbent upon the father to provide the sort of detail which would have meant further months of work on his documents was not required.
Although it was agreed that he would pay the D property shortfall from the offset accounts, in order to place his lawyers in funds for this hearing, he took money from the offset account. Curiously, no offer was made to use the offset account to contribute to the children’s financial support or give the mother a portion to meet her legal expenses. Although, in one sense, the father’s agreement that the funds withdrawn for his legal expenses are included in the property pool enables those transactions to be taken into account in a manner which is just and equitable, his approach is illustrative of his poor approach to the mother and children’s financial needs.
Immediately after the parties ceased to cohabit, the mother applied to the Child Support Agency for an administrative assessment of child support. It was and remains the father’s opinion that because he would meet the mother’s share of the D property shortfall he should not pay child support. He of course, in addition to receiving all income from D property also retained the parties’ savings and continued to receive rental income from the Y and N properties. The information that the father gave the agency resulted in him being assessed with a “nil” 2008 adjusted taxable income. As a consequence, an assessment issued on 7 January 2009 which required him to pay the mother $280.50 per month child support. This assessment related to the period 16 December 2008 to 15 March 2010. Nonetheless between December 2008 and August 2009 the father did not pay child support. Thus, from December 2008 until the mother obtained part time work in May 2009, her sole income was Centrelink benefits of approximately $580.00 per week.
During this period, on average, the child M spent two nights per week with the father and the twins were with him one night. The arrangement was fluid in that days were adjusted to coincide with the father’s shifts.
In early 2009 M commenced preschool at O Public School (suburb F).
The father was able to rearrange his work schedule so that commencing 30 March 2009 this comprised three 12 hour shifts between 6.00 am and 6.00 pm Friday, Saturday and Sunday each week. Thereafter the parties agreed that the children would spend time with him as follows:
·For M from 9.00 am Monday until 8.00 pm Wednesday; and
·For the twins from 9.00 am until 12.00 noon Monday and from 9.00 am Tuesday until 8.00 pm Wednesday.
The children spent time with the father in accordance with this agreement.
In May 2009 the mother obtained part time work in hospitality with CC Company. She was initially employed one day per week from which she earned approximately $152.00. The mother remained with CC Company until June 2010 when her employer relocated and she became unemployed. In the intervening period her shifts increased and she generally worked between 15-24 hours per week and, on average, earned about $350.00 per week. Her weekly wage varied depending upon the hours she worked. As far as possible the mother attempted to work while the children were with the father. When this was not possible, her parents cared for the children.
Notwithstanding the mother’s paid work she remained in a difficult financial situation. In June 2009 she lodged an objection with the Child Support Agency in relation to the assessment that issued on 7 January 2009. This resulted in a revision upwards of the father’s adjusted taxable income which was assessed at $90,000.00 for the 2008 child support year. The effect of this change of assessment is that for the period commencing 22 June 2009 to 15 March 2010 the father’s child support liability increased to $1,188.00 per month. To this revised assessment the father objected and, as a consequence, his 2008 adjusted taxable income was re-assessed at $82,700.00. As a consequence, a revised child support assessment issued for the period 7 September 2009 to 15 March 2010 which required the father to pay $650.50 per month.
In the meantime, disagreement arose about the children’s living arrangements with, from mid June 2009, the father wanting the children to live week about. The child M was then 4½ and the twins 22 months. Agreement was not forthcoming from the mother. A separate dispute arose about where M would start school. The father proposed that M attend a public school which is close to suburb N, whereas the mother proposed O Public School, close to where she lives. When this could not be resolved, the father filed an application for interim orders which, in effect, would have M attend the school nominated by him. At the father’s request the mother was directed to not have M attend school orientation at O Public School. Thereafter, she asked that the father agree M attend orientation at each nominated school, which oddly he refused. This is a simple vignette of the real problems which the parties highly conflicted relationship visits upon the children.
The father’s school application came before the Court on 14 December 2009 when interim consent orders were made for the appointment of Dr Q as a single expert witness, that the parties have equal shared parental responsibility and:
2. The mother have sole parental responsibility for the day to day care, welfare and development of the children when they are in her care.
3. The father have sole parental responsibility for the day to day care, welfare and development of the children when they are in his care.
4. Pending the hearing of the father’s Application in a Case filed 23 October 2009 the following shall apply:-
4.1[M] live with the father from 9:00am Monday to 8:00pm Wednesday each week;
4.2[C] and [A] live with the father as follows:-
4.2.1from 9:00am to 1:00pm on Monday each week;
4.2.2from 9:00am Tuesday to 8:00pm Wednesday each week.
4.3At all other times other than as agreed between the parties and other than stated in 4.1 and 4.2 the children shall live with the mother.
…
7. That [M] shall attend [O] Primary School from the school year commencing 2010.
8. The children shall spent time with the father as follows:-
8.1from the conclusion of the father’s work on Christmas Eve 24 December 09 to 12:00 noon on 25 December 09.
These arrangements were put into effect.
In December 2009 the father moved out of the L property and into the N property. Between December 2009 and January 2010 he painted and undertook minor repairs to the L property which was then tenanted.
In about December 2009 the father was informed his employer might move in which case redundancies could follow, including him. Thus he told the mother his job was in jeopardy and he may no longer be able to pay the D mortgage. Indeed paying the D mortgage and the necessity for its sale had been a recurrent contentious theme which predated separation. The mother opposed its sale until some time during 2009 following which in December 2009 her solicitors took the matter up with the father’s solicitors. On 21 December 2009 they again wrote to the father’s solicitors and pressed for its sale. For months she continued to do so curiously without agreement from the father. According to the father he eventually agreed and in relation to any shortfall said this would come from the offset accounts. Yet nothing was done and this financial drain continued.
At the commencement of the 2010 school year, M started school at O Public School and the twins commenced preschool at suburb F. At that point, the father’s child support liability, even when paid, was less than the preschool fees which the mother paid without contribution from the father. M settled into O School happily where she in now ensconced with a nice group of friends. Because the twins regularly change-over at O School they are familiar with it.
On the basis of new information provided by the father to the Child Support Agency on 1 February 2010 a further assessment issued which, for the period 1 November 2010 until 15 June 2011, reduced his child support to $335.50 per month. Relevantly, the father presented information which resulted in his adjusted taxable income being reduced to $39,236.00. This prompted another objection to the agency by the mother, which resulted in a review by the Social Security Appeals Tribunal (“SSAT”). SSAT determined the father’s child support liability as follows:
·from 16 December 2008 to 21 June 2009 $1,794.25 per month;
·from 22 June 2009 to 6 September 2009 $1,794.25 per month;
·from 7 September 2009 to 15 March 2010 $1,713.00 per month; and
·from 16 March 2010 to 31 October 2010 $1,744.75 per month.
In February 2010 the mother commenced a relationship with Mr R. They do not cohabit and the mother has no plans to do so in the foreseeable future.
As a consequence of orders made on 14 December 2009, the parties attended Dr Q. Dr Q is a consultant psychiatrist who holds a senior academic position. She has considerable expertise in the area of family and marital relationships and many years experience as an expert witness in these and other fields. Dr Q is well qualified for the task undertaken by her. Having interviewed and seen the parties, the children and the maternal grandparents in March 2010, Dr Q’s first report issued on 28 March 2010. In this report Dr Q made the following recommendations:
Throughout their lives the children have been in the primary care of their mother and have had a continuous and very significant relationship with their father and also with the maternal grandparents. Given their tender age, especially the twins, it would not be in their best interests for any abrupt changes to be made to this arrangement unless there is obvious risk of harm. They are accustomed to spending a significant amount of time with their father each week and this needs to continue, Ultimately an arrangement of shared parenting would be appropriate since [the father] appears to have the flexibility in his work life to undertake this.
I would suggest that an arrangement of shared care, meaning approximately 50/50, should be phased in according to the developmental needs of the children. In my view at age two and a half the twins are not yet able to cope with a 50/50 parenting arrangement and it would be in their best interests to progress to that slowly.
At present the arrangement of [M] having an extra night with her father has particular merit since she is feeling somewhat overshadowed by the twins and this special time with her father is valuable,
I would recommend that the current arrangement continue until the twins are aged three at which time they might progress, like [M], to Monday and Tuesday overnight with their father; at that stage I would suggest that [M] has an additional overnight so that she continues to have some special time with her father.
When the twins are aged around three and a half, I would suggest that all three children progress to three consecutive nights with their father.
When the twins are aged four all three children could accommodate a 50/50 arrangement but not in a seven day block. In my experience children under the age of seven are not ready for a seven day separation from either parent and particularly not from a primary caregiver and neither are they sufficiently organised to plan ahead in terms of school activities for a seven day period, so it is better to have a schedule of three plus four days each week. It appears that the father intends to keep working weekends so that may make the division of time easier.
If the parents prefer seven days block time then the children would be better equipped to cope with that by the time the twins are aged seven, but in my experience even then many children find a seven day block period difficult and cope better when they are older and more self reliant, at around 11 or 12.
Regarding school holidays it is also difficult for young children to cope with separations of one or two weeks and I would favour the arrangement of three and four days continuing through the school holidays until the twins are aged four; at that time they would cope with one full week with each parent if that were the preference of the parents - although again in my view it would be in the best interests of the children that a full seven day separation wait until they are older. The children need to be at least aged seven before they can cope with half the short school holidays and older again for half the summer holidays, which involve three weeks of separation; in my experience this is a long period for young children and is better deferred until they are closer to age 10.
The children have an important relationship with the maternal grandparents and this should continue. Generally children benefit from relationships with extended family. The grandparents also provide important support to the family. (my emphasis)
On 8 February 2010 the father withdrew $90,000.00 from the L MISA account which he paid onto mortgage account no #100, the effect of which was to reduce the balance outstanding from approximately $140,000.00 to about $50,000.00.
On 10 November 2010 interim consent orders were made in relation to the children. These orders are set out below:
1.That the Orders made on 14 December 2009 be discharged.
2.That the Mother and Father have equal shared parental responsibility for the long term care, welfare and development of [the children].
3.That the Mother has sole parental responsibility for the day-to-day care, welfare and development of the children when they are in her care.
4.That the Father has sole parental responsibility for the day-to-day care, welfare and development of the children when they are in his care.
5.That the children live with the Mother and spend time with the Father as follows, commencing on the first Monday after the date of these Orders:-
[M]:-
5.1Each week from 9.00am on Monday until 3.00pm on Thursday subject to Order 5.2 below;
5.2That during the normal school holiday period only, the time in Order 5.1 shall conclude at 12 noon on Thursday unless otherwise agreed by the parties;
[C] and [A]:-
5.3Each week from 9.00am until 1.00pm Monday; and
5.4Each week from 9.00am on Tuesday until before pre-school on Thursday morning.
6.That notwithstanding the provisions of Order 5, the Father shall spend the following additional time with the children:
6.1From 9.00am until 5.00pm on Father’s Day.
6.2From 9.00am until 5.00pm on the Father’s birthday in the event that the Father’s Birthday occurs on a day the children are not spending time with the Father;
6.3From 3.00pm until 8.00pm on the children’s birthdays in the event the children’s birthdays occur on a day that the children are not spending time with the Father; and
6.4From 12 noon on 24 December until 12 noon on 25 December and from 9.00am until 5.00pm on New Year’s Day.
7.That the children shall live with the Mother at all other times not specified in Orders 5 and 6.
8.That notwithstanding the provisions of Orders 5, 6 and 7 the Mother shall spend the following additional time with the children:
8.1From 9.00am until 5.00pm on Mother’s Day.
8.2From 9.00am until 5.00pm on the Mother’s birthday in the event that the Mother’s Birthday occurs on a day the children are not living with the Mother; and
8.3From 3.00pm until 8.00pm on the children’s birthday in the event the children’s birthdays occur on a day that the children are not living with the Mother.
9.For the purposes of all changeovers, the Father shall collect the children from outside the Mother’s residence, or from school/pre-school as the case may be from time to time, at the commencement of all such periods that the children are to spend time with the Father and the Mother shall collect the children from outside the Father’s residence at the conclusion of all such periods as the case may be from time to time.
The Child Support Agency issued two assessments on 22 November 2010, which recalculated the father’s adjusted taxable income. In relation to the period 1 November 2010 to 21 November 2010 he was assessed with an adjusted taxable income of $39,236.00 and required to pay child support at the rate of $335.50 per month. For the period commencing 22 November 2010 to 15 June 2011 he was assessed with an adjusted taxable income of $20,000.00 (for the 2009 child support year), as a consequence of which his monthly child support was set at $6.50.
So that it is clear, the father continued throughout the period to be employed full time as a skilled tradesman for which he earned approximately $90,000.00 per annum, as well as receiving rental income. While he also met expenses associated with those properties, bought the mother a car and paid some modest credit card expenses (of hers), his approach to child support raises questions about how he views parental responsibility and the extent to which he can be relied upon to pay appropriate child support in the future. He can have been in no doubt about how difficult the mother and children’s circumstances were. For example, he knew her income and that in the two bedroom F unit, the twins shared one room, M had the other room and the mother slept on a fold up bed in the lounge room. Although the parties might have needed to rearrange their finances (perhaps even sell a property) it was unreasonable of the father to reject the mother’s requests that she and the children move into one of the larger tenanted properties. The difficult situation under which the mother and children lived was stressful for the mother and the children and it is accepted contributed to some of the difficulties which will be discussed later.
By consent, on 21 December 2010 the financial agreement entered into between the parties was set aside.
The mother lodged an objection to the 22 November 2010 child support assessments in January 2011. New assessments issued on 8 March 2011 which, based upon the father having an adjusted taxable income of $116,074.00 for the assessment period 1 November 2010 to 16 November 2010, assessed him as liable to pay $1,528.00 per month and for the period 17 November 2010 to 21 November 2010 assessed him as liable to pay $1,401.25 per month.
Presently, the father is assessed as liable to pay child support at the rate of $351.41 per week. The Child Support Agency intercepted the father’s 2011 taxation refunds as a consequence of which there are no child support arrears. But for the interception his child support arrears were significant. For the mother the ongoing dispute in relation to child support has been anxiety provoking. The father is weary of it and disgruntled by ongoing child support issues and the amount he has been required to pay.
The father injured his back at work on 2 January 2011. He previously had back problems which, in 1985, prompted him to cease work at his parents’ agricultural business and commence work as a tradesman. Following his 2 January 2011 injury the father’s employers agreed he could commence a period on light duties. When the agreed period lapsed the father felt unable to resume his position and, as a consequence, from April 2011 he went on to Work Cover and light duties.
Work Cover referred the father to an orthopaedic surgeon, namely Dr T. It is Dr T’s opinion that an MRI showed that the father has “… multi level disc degeneration from L1 to L5”. According to Dr T, the father “… exacerbated [a] pre-existing underlying problem in January 2011 and that this exacerbation occurred in the course of his work”. Dr T recommended a period of physiotherapy and hydrotherapy, as well as a home based exercise program. As to the future, Dr T opined “… the most important thing in his future is an appropriate work situation given the permanently altered mechanics of his back due to degenerative spondylosis”. In this regard, Dr T recommended that the father “… limit or abolish[ing] awkward work in confined spaces” and that “exceptionally heavy work should probably be avoided”. It was his opinion that the father’s return to three consecutive days working 12 hour shifts was “possibly questionable”.
Throughout this period the father also consulted Dr G, who is his treating consultant physician. According to Dr G:
... It was evident that he had two nerves being irritated in the lumbar spine and hence the symptoms down both legs. It was also evident that he was going through a lot of stress at the time of examination (25 February 2001) and it was then that I requested a lifestyle change for him.
Dr G said it was imperative the father “… did a lot of core strengthening exercises, hydrotherapy and gym work to get him over the current problem”. He recommended that the father “… avoid heavy lifting and also twisting actions of the lumbar spine”.
According to Dr G the father is diagnosed as suffering “degenerative changes through the lumbar spine with two nerve roots being irritated”. In his opinion, the father’s prognosis is variable albeit through extensive rehabilitation and exercise he could get back into sports and some of his work. Dr G did not view this as promising and opined that “… as [a skilled tradesman] it will be very difficult for him to work because of restrictive back movements and the amount of pain he is in”. Dr G was very clear that even with back surgery, the father would not be symptom free and clearly saw it as being unlikely that he could return to his career as an active skilled tradesman.
From acquisition the Y property, for capital gains tax and land tax purposes, has been the father’s principal place of residence. Nonetheless the Y property was generally tenanted in relation to which between 1 July 2002 and February 2011 it produced about $235,000.00 gross rental income. After payment of Y expenses such as insurance, rates and levies, the excess income went towards the shortfall on the L mortgage and from 2003 the D mortgage. In any event, so that the Y property did not to lose its tax free status, in February 2011 the father moved back in. It follows that from that point, for a period, three of the parties’ properties did not produce income; two of which (Y property at $710.00 per week and F property) previously had. Inevitably, this increased financial pressure and contributed to the increased demands on their offset/drawing accounts. So that it is clear, because the father regards the Y property as too small for him and the children, while they were with him they resided at the N property. It should not be overlooked that while the mother and children were crowded at the F property, the father lived between two properties. His persistent refusal to agree to her request that she and the children move into the L property can be seen as designed to make her life difficult.
The parties participated in a Child Dispute Conference on 18 March 2011 at which agreement was reached in relation to the children’s arrangements for Easter and New Year’s Eve.
Dr Q saw the parties and children again in March 2011. A second report was issued by her on 7 December 2011. In this report, Dr Q made the following recommendations:
4.Likely effect of changes in circumstances including separation:
a. From either of their parents.
The father seeks primary care of the children on the basis that there is risk of harm in the mother’s care. As the children have been in the primary care of the mother since their birth, this would be a serious disruption of their primary bonds that carries a risk of some psychological trauma and there would need to be clear evidence of risk in order to justify such an outcome.
[M] is manifestly angry with her siblings and with her mother, however, this is not an argument to limit her time with them but rather to explore the issues and try to resolve them. A child who is having emotionally difficulties may express them by directing anger towards her primary attachment figures; unless it is clear that there is some risk of harm, then limiting her time with them is unlikely to be the solution and could even be counterproductive; for example such a move may result in [M] feeling excluded by her mother and more resentful of the younger girls and she might become even angrier. I would not recommend limiting of [M’s] time with her mother unless after ongoing clinical assessment and intervention this seems to be indicated.
The children are now at an age when they can cope with a shared care arrangement but, as noted in my first report, generally children under the age of seven are not ready for a seven day separation from either parent, usually they cope better with this when they are older and more self reliant, at around age 11 or 12. Thus, I would continue to favour a three/four day split of each week.
Similarly, my recommendations for school holidays remain as per my first report: the children could cope now with one full week with each parent if that were the preference of the parents but it may be in the best interests that a full seven day separation be deferred until the twins are a little older, perhaps at age five. Again, I would say that the children need to be at least aged seven before they can cope with half the short school holidays and older again for half the summer holidays. Given [M’s] current difficulties, I would not recommend her having different holiday arrangements from the younger two unless there are clinical grounds for this – that would need to be assessed over time by a clinician working with [M] and the family.
b.Any other child or person, including grandparents or other relative.
As noted before, the children have an important relationship with the maternal grandparents and it is in their best interests that this continues.
…
10.Any other factor or circumstance.
Clinical needs of the children
The situation is not settling and the context of ongoing conflict is having a negative impact on the children, who are coping less well with the situation now than when first assessed. There is now an indication for clinical intervention – this should be with a psychiatrist or psychologist who is trained in working with children and families and who work with all three children and both parties and the grandparents – that would not mean the parents attending together, unless they were willing to do so, generally in separated families, sessions with parents are conducted separately.
While it is apparent that [M] is expressing angry feelings towards her mother more than towards her father, this is not an indication for separating them but for clinical assessemtn [sic] and intervention. In this context, where the adults cannot resolve conflict, it is not surprising that the children also deal poorly with conflict.
Mother’s current partner
Mr [R] was not sufficiently cooperative with the assessment to enable an adequate understanding of his adjustment. He has a friendly relationship with the girls as they do with him although they have not yet developed a strong bond with him; possibly over time that will happen. His attitude towards this assessment was of some concern.
Recommendations
In my view there is not sufficient cause for concern to place the three children in their father’s primary care with limited contact with the mother, as [the father] would wish. In my view it would be preferable to continue with an essentially shared care arrangement of three plus four days and half the school holidays, however, in light of the concerns already noted, I would recommend that four days each week be spent with the father and three with the mother. My recommendations regarding school holidays remain essentially as per my first report.
While the needs of the children would be met by a shared parenting arrangement, the level of conflict between the parties is a major obstacle in implementing this. With such young children it is optimal to have some level of flexibility with the parenting plan but again the level of conflict makes this almost impossible. As soon as practicable it would be preferable to schedule changeovers to and from school and preschool in order to minimise contact between the parties. (pp 42, 43, 47, 48) (my emphasis)
Broadly speaking and after extensive questioning, at the close of her oral evidence, Dr Q’s recommendations accord with those outlined above.
In April 2011 the parties agreed to sell the D property. To this end, consent orders were made on 9 June 2011 which are set out below:
1.The Court notes that the [D] property is to be placed on the market for sale by the parties within 14 days and in the event the property has not been sold by 1 November 2011 then the parties will appoint National Property Valuers to value the property forthwith.
2.That both parties forthwith do all things necessary and sign all documents to list the property at [D] for sale on the following terms:-
a.The Real Estate Agent is to be selected by the husband within 14 days
b.The Solicitor appointed to act on the conveyance is Ken Heasman.
c.The listing price is $700,000
3.That upon the sale of the property the parties are to cause the proceeds of sale to be disbursed as follows:-
a.The reasonable costs of sale including real estate costs and legal costs
b.Any rate adjustments
c.Any land tax as assessed
d.Any other necessary adjustments
e.The balance to be paid into the mortgage account at the Commonwealth Bank registered on the [D] and [F] properties.
f.In the event that there are any monies remaining after the discharge of the mortgage they are to be paid into a controlled monies account in joint names
g.In the event that there are insufficient funds to discharge the mortgage referred to in 12(e) then the husband is to do all things necessary to effect the discharge of the said mortgage.
Although the distinction is a fine one, because the mother is more insightful the consequences for the children should be less serious.
Both parties take their parental responsibilities seriously. Each seeks to be and has been actively involved in the children’s care. Where there have been attitudinal difficulties, these have their genesis in a highly conflicted parental relationship which, unfortunately, shows no signs of improvement. Even before they had the benefit of Dr Q’s first report, it must have been apparent to them how their conflict affected the children. It should have been apparent to the father that his approach to child support and housing was a manifestly inadequate response to his parental responsibilities. For the mother to be less than frank with the father about the date of M’s first day at school is another example. There is no doubt the father was entitled to be there which the mother should have facilitated. Their miscommunication about medicine and school issues is another.
Findings have already been made in relation to allegations of physical mistreatment of the children which need not be repeated. In relation to family violence, it is accepted that in 2008 during a heated argument the father placed his hands around the mother’s throat. It is not accepted that the mother bruised the father. Although it is accepted that the mother has, unprovoked, behaved towards others in a violent manner (Anzac Day for example) there is virtually no risk that in either parent’s care the children will be exposed to family or other violence. In the father’s case the 2008 incident was part of a larger argument with the mother during which both lost control and he reacted in a manner which is wholly out of character. While the risk of exposure to physically aggressive behaviour is slightly higher with the mother, it is negligible and in the context of my satisfaction she will be compliant with medication and therapy, it is afforded little weight.
Both parties are weary of litigation and their disputation has clearly taken a heavy toll on them and the children. Further litigation is likely to exacerbate the tensions between the parties which, in turn, is likely to result in further pressure on the children. Irrespective of what orders are made there is a risk of future litigation. Doing the best I can, the orders made will be designed with the aim that they might endure and to moderate the risk of future litigation. However, the risk of future litigation is not a matter which warrants significant weight.
There is considerable overlap between s 60CC(4) and s 60CC(4A) with s 60CC(3). There are no further matters which require consideration.
Conclusion and structure of the orders
When making parenting orders, the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. Here, the parties agree equal shared parental responsibility is in the children’s best interests. Although there is reason to be concerned that they will be unable to constructively exercise parental responsibility in the manner intended, because these orders will address major long-term issues for the distant future, on balance, their faith they can make this work is accepted.
It is not until the twins are seven that equal time orders are sought to be implemented. That arrangement does not have the support of Dr Q and I am strongly satisfied would not be in the children’s best interests. It is not accepted that the reduction in the amount of time with the person who has always been their primary carer and to whom they are primarily attached could be implemented without compromising the children’s happiness and overall wellbeing. In short, the evidence did not establish a proper basis connected to the children’s long-term interests to deny them the support and comfort they have always enjoyed from their mother. Although it would be reasonably practicable it is contraindicated.
Both parents agree that orders should be made forthwith which ensure that the children spend substantial and significant time with each of them. I agree that such an arrangement is in the children’s best interests and is reasonably practicable.
During the hearing, I raised the prospect of a five night/two night arrangement during school term. The idea being to bring a degree of order to the children’s lives, which is regarded as particularly important after the twins start school. Although it would have been desirable for M her arrangements were complicated by the need to take into account her younger siblings’ ability to cope with periods away from their mother, as well as the parties’ hours of work.
The parties’ work arrangements create some difficulty albeit both have demonstrated that they can adjust their hours to meet their parenting commitments. It was difficult to get a clear response from the father about his future working arrangements. However, in circumstances where he has been stood down and himself proposed a routine which conflicted with weekend work, I am satisfied he will be able to care for the children whatever time is ordered. The mother’s part-time work mainly sees her working during the week and, when her shifts start early her parents are available to help with the children.
I have not been able to agree with Dr Q that a four/three arrangement in the father’s favour during school term is in the children’s best interests. Greater weight is placed on the mother having been the children’s primary carer and my assessment of the impact of her anxiety on her parenting capacity differs somewhat from Dr Q’s. I am far more confident that the benefit to the children of a meaningful relationship with both parents is assured if the children reside primarily with the mother. Such an outcome has the added benefit of ensuring their close and loving relationship with the maternal grandparents is enriched through regular contact. Although it does not influence the outcome, the children will be able to see Mr R with whom they have a friendly relationship.
With the twins shortly to commence school, the time is right for the next changes to their living arrangements to be made. Because they are used to spending time with their father every week this will continue. So as to avoid conflict, as far as possible changeovers will be designed to take place at school. This is appropriate notwithstanding that even in that setting there have been unpleasant exchanges between the adults and arguments in relation to school uniforms, books and the like. Thus, until the twins turn seven, they will live with the father from after school Friday until the commencement of school Monday in the first and each alternate week and from after school Thursday until noon Saturday the following week. This will give both parents weekend time and the ability to be involved with the children’s education.
Although it might occasion brief disquiet, the father’s approach for half short term school holidays taken in block periods finds favour. It has the obvious advantage of enabling the children to holiday with their parents and reduces the number of changeovers and thus the opportunity for conflict.
In relation to Christmas school holidays, week about will be ordered. It being accepted that the twins are too young for longer periods of separation from their parents.
When the twins turn seven they will be mature enough to manage longer separations from their parents. Thus, the school term arrangements will change so that the five nights that the children have with the father will be taken in one block commencing after school Thursday each alternate week. This has the obvious advantage of reducing the number of changeovers and gives the children a full weekend with each parent. From that point on the school holiday arrangements will also change to equal block halves. I considered but decided against extending the amount of time the children have with their father at this stage. Essentially and for the reasons already given, it is my view that the children should not have their time with their primary carer further reduced.
Both parties put forward proposals in relation to a raft of special occasion days which, as I discussed during closing addresses, would introduce too much disorganisation into the children’s lives. Days which are important to the children, namely their birthdays, Fathers and Mothers Days, Easter and Christmas will be provided for. Because the children’s living arrangements have been unstable (albeit routine) the arrangements for Easter and Christmas Day will be fixed. Thus, the children will know that Easter and Christmas are spent in the same fashion every year.
Reference has already been made to the necessity for the Court to make orders in relation to where M attends school. The Court ordered she attend O Public School. Like the twins, M attended preschool. Many of the children at M and the twins’ preschool go on to attend O Public School. Schools nominated by the father are out of the area and have no obvious connection with the children’s preschool.
M is settled and happy at O School where she has close friends. Because changeover takes place at O School, the twins are also familiar with it. A number of their preschool friends will attend O School which will make it easier for them to settle into school. There is no academic or other reason associated with the various State schools nominated for the Court’s consideration which would make the choice of one or other more appropriate for the children. In circumstances where the parties have established relationships with O, M is settled there, all the children will have friends there and it is close to where the mother resides, I am satisfied an order should be made that the children attend O School.
The remaining orders are self-explanatory and, in essence, are designed to facilitate the provision of important communication in relation to the children, facilitate their movement between the parties and travel overseas and otherwise constitute a series of injunctions that address problems in the parties’ communication and orders which the mother conceded.
For these reasons I am satisfied the parenting orders identified below are in the children’s best interests.
Proposed Orders
Property
(1)That [Mr Wolter] (“the father”) shall forthwith do all acts and things and sign all necessary documents to sell such of the following properties as have not already been sold:
a.F Street, D (“D property”);
b.V Street, N (“N property”);
c.E Street, Y (“Y property”); and
d.U Street, L (“L property”).
(2)In relation to the N, Y and L properties the following conditions of sale apply:
1.list each of the above properties for sale by private treaty or public auction (as agreed between the parties or in the absence of agreement as recommended by the agent), with such agent as the parties agree to appoint and in default of agreement as to agent within 14 days from the date of these orders, with such agent or agents as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”), the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due;
2.the selling price or the reserve price (as the case may be) at which each of the above properties shall be listed shall be such sum as may be mutually agreed upon by the parties or in the absence of agreement, shall be the price nominated as the fair market value thereof by a valuer appointed by the President of the Real Estate Institute of New South Wales shall appoint (“the valuer”), the costs of and incidental to such valuation to be borne equally by the parties as and when they fall due;
3.the father will co-operate in every way with the agent. including (without limiting the generality of the foregoing):
(a)making a key available to the agent and the mother;
(b)allowing inspection at all reasonable limes requested by the agent;
(c)doing or saying nothing to hinder or prevent a sale being effected;
(d)ensuring that each of the above properties including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(e)signing all documents requested by the agent in relation to the listing for sale of each of the above properties except a contract or agreement for sale which has not been authorised by the parties’ solicitors;
(f)the father will execute a contract for sale in the form prepared by the solicitors having the conduct of the sale;
(g)the father shall instruct such solicitor as the parties agree upon to have the conduct of the sale on behalf of the father or, in the absence of agreement within 14 days of the date of these orders, shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when the same fall due;
(h)neither party may confer on the agent without the consent of the other party any right to any sole or exclusive agency in respect of any of the above properties or to any commission;
(i)in the event that the bidding at auction does not reach the reserve price or the property in question is not sold within three months from the date of listing it for sale (as the case may be), then the father may negotiate with the highest bidder(s) or any other interested person to effect a sale of each of the above properties for a price which is not more than 5% below the reserve price or selling price (as the case may be) or such other price as the parties may then agree in writing;
(j)if any of the above properties remains unsold for three months after first listing it for sale (or the said property fails to sell at public auction) (as the case may be), then the father shall forthwith do all acts and things and sign all necessary documents to relist or list (as the case may be) the property that remains unsold for sale by public auction on such date as nominated by the agent and at such auction these provisions shall apply mutatis mutandis insofar as they relate to listing the property for sale by public auction unless otherwise agreed in writing by the parties.
(3)That on settlement of the sale of each of the L, N and Y properties referred to in the above order the proceeds of sale shall be distributed as follows:
(a)selling costs;
(b)rates;
(c)mortgage secured thereon;
(d)an amount equivalent to the Capital Gains Tax payable by the father for that property;
(e)61 per cent to the father from which he shall pay any amounts payable but otherwise taken into account in the asset pool being “Bills per exhibit F as updated May 2012”; and
(f)the balance to the mother from which she shall pay the father $189,332.00 or such of the adjusting amount as remains outstanding.
(4)In relation to Capitals Gains Tax, no less than three (3) weeks prior to settlement of the sale of each property, the father shall give the mother a written calculation by his accountant of the Capital Gains Tax payable by him for that property. In the event the amount is other than the Capital Gains Tax attributed to that property for this hearing, an adjustment will be payable by the relevant party at settlement. If the Capital Gains Tax is more than set out in the evidence of Mr P (in relation to the Y property as per his affidavit and otherwise exhibit R), a 39% adjustment for the excess is to be made by the mother from the amount she would otherwise be entitled to receive and, if it is less, a 61% adjustment is payable by the father to the mother.
(5)In the event the D property sold in accordance with the orders dated 10 May 2012 and there is a surplus, the surplus shall be distributed 61 per cent to the father and 39 per cent to the mother.
(6)In the event the D property sold in accordance with the orders dated 10 May 2012 and there is a shortfall, that shortfall is to be paid from whichever of the abovenamed properties sells first (prior to distribution of the relevant net sale proceeds).
(7)In the event the D property has not sold Order 13(f) of the orders dated 10 May 2012 is discharged and in lieu thereof, the sale proceeds shall be distributed in accordance with Order 3 of these orders.
(8)In the event that the proceeds of the Y Local Court litigation referred to in the orders dated 10 May 2012 has not finalised and/or amounts payable have not been recovered prior to completion of the sale of the D property, the balance which remains after payment of the amount pursuant to Order 12(a) of those orders, shall be distributed 61 per cent to the father and 39 per cent to the mother.
(9)If either party refuses or neglects to sign any document necessary to implement these orders, that a Registrar sign the necessary document on behalf of the defaulting party pursuant to section 106A of the Family Law Act 1975 (Cth).
(10)Unless otherwise specified in these orders each party is solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age and working future provides the conditions for payment out of such payment.
Parenting
(11)All prior parenting orders in relation to the children M born … December 2004, C born … August 2007 and A born … August 2007 (“the children”) are discharged.
(12)That the mother and father have equal shared parental responsibility in relation to the children.
(13)Subject to periods during which pursuant to these orders the children live with the father, they shall live with the mother.
(14)The children live with the father as follows:
Until C and A turn seven (7) years
(a)During school term from after school Friday until the commencement of school Monday in the first and each alternate week thereafter and in the second and each alternate week thereafter from after school Thursday until noon Saturday;
(b)For one half of the Term 1, Term 2 and Term 3 school holidays with the parties to agree as to which half but in the absence of agreement as follows:
(i)the first half with the father and the second half with the mother in even numbered years;
(ii)the first half with the mother and the second half with the father in odd numbered years.
(c)In relation to the Christmas school holidays week about with each of the mother and father as follows:
(i)in odd numbered years, with the mother to have the first week and each alternate week thereafter and the father to have the second week and each alternate week thereafter;
(ii) in even numbered years, with the father to have the first week and each alternate week thereafter and the mother to have the second week and each alternate week thereafter.
From when C and A turn seven (7)
(d)During school term each alternate week from after school Thursday until the commencement of school Tuesday;
(e)Terms 1, 2 and 3 school holidays as per Order 14(b);
(f)One half of the Christmas school holidays with each of the parties in one block with the parties to agree as to which half but failing agreement as follows:
(i)the first half with the father and the second half with the mother in even numbered years; and
(ii)the first half with the mother and the second half with the father in odd numbered years.
(g)Notwithstanding any other order, the children shall live with each parent as follows:
(i)from 1.00 pm on Easter Saturday to 1.00 pm on Easter Sunday with the father and from 1.00 pm Easter Sunday to 1.00 pm Easter Monday with the mother;
(ii)with the father on Fathers Day from 9.00 am to 5.00 pm;
(iii)with the mother on Mothers Day from 9.00 am to 5.00 pm.
(h)Each year from 12.00 noon on 24 December until 2.00 pm Christmas Day with the father and from 2.00 pm Christmas Day until 2.00 pm 26 December with the mother;
(i)If a child’s birthday falls on a school day then the children shall spend time with the parent that they are not staying with from after school until 6.00 pm;
(j)If a child’s birthday falls on a weekend then the children are to spend time with the other parent from 9.00 am to 2.00 pm;
(15)That for their primary years the children shall attend O Public School or such other school as the parties may agree in writing.
(16)That each party shall:
(a)provide to the other party as they are received copies of school reports and school newsletters;
(b)make available to the other party homework and schoolwork done by the child on the basis that this is returned to the providing party on demand and when required by the child and the providing party;
(c)advise the other party of parent/teacher meetings and school functions such as open days and awards functions;
(d)advise the other party of the residential address of the child and of any changes to that address;
(e)advise the other party of details of any other persons entrusted with the care of the child;
(f)advise the other party of an emergency and urgent message contact number to contact them and of any changes to that number;
(g)when wishing to take the child away on holidays, that parent give to the other reasonable notice of the intended holiday specifying the intended destination and contact numbers;
(h)not to travel overseas with any or all of the children other than in accordance with these orders;
(i)in the event of a child becoming ill, suffering an injury or requiring medical treatment, the party having the care of the child at that time shall at the first reasonable opportunity advise the other parent of the particulars of these circumstances.
(17)During periods when the children live with the father he is permitted to remove them from the Commonwealth of Australia to travel to New Zealand.
(18)For the purposes of such travel to New Zealand:
(a)the father shall provide not less than 30 days notice of the dates that he intends to travel with either M or the twins;
(b)the father shall provide the mother in writing all details of the proposed accommodation, contact telephone numbers and the itinerary showing the confirmed flight times for the father and M and/or the twins not less than 21 days prior to the proposed travel dates;
(c)not less than 14 days from the proposed travel dates, the mother shall provide to the father the relevant passports for the child or children who are travelling with the father;
(d)the father shall meet all expenses of such travel to New Zealand including visa (if any) and passport expenses;
(e)the father shall hand the child or children’s passports back to the mother at the first changeover of the children after return to Australia.
(19)If either party wishes to take any or all of the children out of Australia, other than the father’s travel to New Zealand pursuant to the previous orders, the party wishing to travel overseas shall:
(a)travel during periods which the children would ordinarily spend with them pursuant to these orders and travel only to countries which are:
(i)signatories to the Hague Convention; and
(ii)not the subject of travel advisory warnings issued by the Australian Government of level 3 or above;
(b)give to the other at least eight (8) weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom the child(ren) will be travelling, the intended destination, contact numbers and addresses for the child(ren) for the duration of the trip and the intended date and time of return.
(c)that upon written notice being given by a party pursuant to the previous order, the other party shall within seven (7) days from the date of receipt of the said notice, give written notice of their agreement to the children travelling out of Australia for the specified period and to the specified destination.
(d)That no less than 14 days prior to the proposed travel, the party in possession of the children’s passports shall provide those passports to the other party.
(20)Both parties shall do all acts and things and sign all documents necessary to maintain a current passport for each of the children.
(21)That the mother shall take all medication prescribed for her in relation to any condition that she suffers from including but not limited to her anxiety.
(22)That the mother shall seek treatment in relation to all medical conditions that she has including but not limited to treatment for her anxiety by any treating specialist that is recommended to her by her general practitioner (“GP”) from time to time and that she is to comply with all reasonable directions of her specialist and/or GP in relation to the management of any medical condition.
(23)That both the parties are restrained from physically chastising the children or any of them and further that each of the mother and the father ensure that no third party, including the mother’s parents, physically chastise the children or any of them.
(24)That the parties are to forthwith establish a communication book which communication book is to include the parties’ communicating to the other a description of any bruises that the children have at the time of changeover and the cause of each bruise, what treatment was applied and whether the child was taken to their GP for treatment.
(25)That the parties are to do all acts and things and ensure that the children attend upon one GP at all times, except in the case of an emergency and in relation to this, that within seven days from the date of these orders:
(a)the father is to nominate three GPs or medical centres that he wishes the children to attend with the location of such GPs to be equidistant from the parties’ current homes;
(b)the mother shall within seven days thereafter choose one of the medical centres/GPs that the father has nominated. In the absence of the mother complying with this order the father is to thereafter nominate one of the medical centres/GPs that he has nominated which GP/medical centre will be the medical practitioner that the children will attend for any and all ailments except in the case of an emergency;
(c)that within 30 days from the date of the making of these orders the parties are to provide all authorities and directions to all of the medical centres/GPs that the children have attended in the past two years and authorise those GPs/medical centres to forward copies of the children’s medical records from those GPs/medical centres to the new GP that the children will commence attending in accordance with this order.
(26)Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(27)Subject to any application for costs, all outstanding applications are dismissed.
I certify that the preceding three hundred and seven (307) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 December 2012.
Associate:
Date: 21 December 2012
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Damages
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Remedies
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Statutory Construction
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