WOODBINE & WOODBINE
[2010] FamCA 339
•23 April 2010
FAMILY COURT OF AUSTRALIA
WOODBINE & WOODBINE [2010] FamCA 339
FAMILY LAW – CHILDREN – parental responsibility – best interests – where it has been determined that an equal shared parenting arrangement is to continue – equal shared care and equal shared parental responsibility proven to be successful in the past – orders for parties to have equal shared parental responsibility
FAMILY LAW – CHILDREN – with whom a child spends time – best interests – issue as to the ability of parties to communicate effectively – not satisfied upon the evidence that the parents cannot communicate effectively about matters relating to the children – consideration of the impact of mother’s proposal for change of care – mother proposes children move to school where she teaches – effect on father’s ability to participate in schooling – where evidence that child is sensitive to change – unjustified risks associated with changes promoted by the mother – orders made for equal time with each parent and for children to remain at current school
FAMILY LAW – PROPERTY SETTLEMENT – dispute as to liability of interest on loan from father’s parents – not satisfied on evidence that mother was a party to any agreement to pay interest – inappropriate to declare interest a joint liability – consideration of father’s superior financial contribution – contributions assessed as 57.5%/42.5% in favour of the father – further adjustment of 7.5% in favour of the mother upon consideration of 75(2) factors – asset pool divided equally
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA & 75(2)
O’Loughlin and O’Loughlin (No. 2) [2007] FamCA 1546
Baker and Parker-Lesley [2008] FamCA 1002
Re G: Children’s Schooling (2000) FLC 93-025
Kirkland and Granger [2007] FamCA 1471
Raymond and Harold [2009] FamCA 155Jennifer McIntosh and Richard Chisholm, ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2008) 20 (1) Australian Family Lawyer 1, 9.
APPLICANT: Ms Woodbine
RESPONDENT: Mr Woodbine
INDEPENDENT CHILDREN’S LAWYER: J Richard Croft
FILE NUMBER: ADC 528 of 2007
DATE DELIVERED: 23 April 2010
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: BURR J
HEARING DATE: 12 August & 19 November 2008, 6, 18 & 24 February 2009, 9, 10, 29 & 30 June 2009, 25, 26 & 27 November 2009, 4 December 2009 REPRESENTATION
COUNSEL FOR THE APPLICANT: MR BERMAN
SOLICITOR FOR THE APPLICANT: BARNES BRINSLEY SHAW LAWYERS
COUNSEL FOR THE RESPONDENT: MR McQUADE
SOLICITOR FOR THE RESPONDENT: ADEY LAWYERS COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
MS ROSS
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J RICHARD CROFT Orders
1.That all current previous parenting orders in relation to the children C born … July 2002 and K born … May 2004 be discharged.
2.That the parties have equal shared parental responsibility for the said children.
3.That save as otherwise specified in these Orders C live with:-
(a)the father:-
(i)on a two weekly cycle as follows:-
(A)in week one, from 5.00 pm on Thursday until 5.00 pm on Monday and each alternate week thereafter;
(B)in week two, from 5.00 pm on Tuesday until 5.00 pm on Friday and each alternate week thereafter;
(ii)for one half of all short end of term school holiday periods, or at such other times as may be agreed between the parties;
(iii)for one half of all Christmas school holiday periods at times as may be agreed between the parties or in default of agreement, on an alternating weekly cycle;
(b)with the mother at all other times.
4.That notwithstanding paragraph 3 of these Orders, C and K live with the father and the mother as follows:-
(a)Each Easter:-
(i)with the father from 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday commencing in 2011 and each alternate year thereafter; and
(ii)with the mother from 5.00 pm on Easter Thursday until 5.00 pm on Easter Monday commencing in 2012 and each alternate year thereafter
upon noting that in the event that Easter forms part of the April school holiday period then this order overrides and determines the children’s living arrangements during such April school holiday period.
(b)with the father from 10.00 am until 5.00 pm on Father’s Day;
(c)with the mother from 10.00 am until 5.00 pm on Mother’s Day;
(d)with the father from 3.00 pm on 24 December 2010 until 3.00 pm on 25 December 2010 and each alternate year thereafter and in each intervening year from 3.00 pm on 25 December until 3.00 pm on 26 December;
(e)with the mother from 3.00 pm on 25 December 2010 until 3.00 pm on 26 December 2010 and each alternate year thereafter and in each intervening year from 3.00 pm on 24 December until 3.00 pm on 25 December;
(f)with the father from 5.00 pm on 31 December 2010 until 5.00 pm on 1 January 2011 and each alternate year thereafter;
(g)with the mother from 5.00 pm on 31 December 2011 until 5.00 pm on 1 January 2012 and each alternate year thereafter;
(h)with each parent on the respective birthdays of the children noting that:-
(i)if the children’s birthdays fall on a weekend or during school holiday periods then the parent who does not otherwise have the care of the children on that day is to spend not less than four [4] hours with the children at such times as may be agreed;
(ii)if the children’s birthdays fall on a school day then the parent who does not otherwise have the care of the children is to spend two [2] hours with the children at such times as may be agreed;
(i)with each parent on the respective birthdays of the father and the mother noting that:-
(i)if the parent’s birthday falls on a weekend or during school holiday periods then the parent who has their birthday on that day is to spend not less than four [4] hours with the children at such times as may be agreed;
(ii)if the parent’s birthday falls on a school day then the parent who does not otherwise have the care of the children is to spend two [2] hours with the children at such times as may be agreed.
5.That the two weekly cycle identified in paragraph 3 of these Orders be suspended during school holiday periods and recommence in the first week of the new school term.
6.That the father collect the children from the mother’s home at the commencement of his periods to be spent with the children and the mother collect the children from the father’s home at the commencement of her periods to be spent with the children.
7.That C and K attend the S Primary School.
8.That the parties share equally the children’s school fees, cost of swimming lessons and other expenses associated with the children’s extra curricular activities and private health cover (including the gap).
9.That the parties do each authorise the children’s school to provide the other parent with copies of all newsletters, school reports, school photographs and the like and that each party be entitled to attend any function at which parents are normally entitled to attend.
10.That each party do:-
(a) facilitate the attendance of the children at any extra-curricular activity and special events offered by their school provided that each party do attain the agreement of the other prior to enrolling the children in any extra-curricular school activity;
(b) keep the other party informed as to any accident or illness of the said children and do inform the other within twenty-four [24] hours of the time and place of medical consultations arranged and the name of all medical practitioners involved in the care of the children and that each party be entitled to attend at all specialist medical appointments and to obtain from such specialist a written report at their sole cost;
(c) keep the other informed at all times of their mobile telephone number, landline telephone number, email address, residential address and any address of his / her place of employment.
11.That in the event that the children (or either of them) are away or to be away from their normal residential address for a period in excess of forty-eight [48] hours then the party who has the care of the children do inform the other party of their proposed address and contact details during such period no later than three [3] days prior to departure.
12.That the parties do utilise a communication book to record issues concerning the care, welfare and development of the said children, with such communication book to be exchanged at handovers.
13.That each party is restrained and an injunction is hereby granted restraining each of them from denigrating the other to or in the presence of the said children or within their hearing and from permitting any other person to do so.
14.That the appointment of the Independent Children’s Lawyer be discharged.
15.That in full and final settlement of all claims that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a)within thirty [30] days of the date hereof the father do pay or cause to be paid to Barnes Brinsley Shaw Trust Account for and on behalf of the mother the sum of THREE HUNDRED AND THIRTY THREE THOUSAND FOUR HUNDRED AND FOUR DOLLARS [$333,404];
(b)the father’s estate and interest (if any) both at law and in equity in the following be and the same is hereby vested in the mother:-
(i)the mother’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the mother’s possession;
(iii)the mother’s 50% interest in the property at G;
(iv)the mother’s ING savings account;
(v)the mother’s Holden Commodore VN motor vehicle;
(vi)the mother’s N Staff Super Fund – Accumulation Interest.
(c)the mother’s estate and interest (if any) both at law and in equity in the following be and the same is hereby vested in the father:-
(i)the father’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the father’s possession;
(iii)the former matrimonial home property at M (“the M property”);
(iv)the Savings and Loans Credit Union account in the joint names of the parties;
(v)the father’s Toyota 4 runner motor vehicle;
(vi)the father’s Super SA, State Lump Sum Scheme – Defined Benefit Scheme;
(vii)the father’s Statewide Super Trust –Accumulation Interest.
(d)the father do pay or cause to be paid to the exoneration of the mother:-
(i)all mortgage and loan instalments (if any), rates and taxes and other outgoings in relation to the M property;
(ii)the liability to the father’s parents
and do indemnify the mother against any liability in relation to any such payments;
(e)The mother do pay or cause to be paid to the exoneration of the father all mortgage and loan instalments (if any), rates and taxes and other outgoings in relation to the B property and do indemnify the father against any liability in relation to any such payments.
(f)Henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
(g)Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders, with the costs associated with the transfer of any property to be met by the transferee provided that if the parties or either of them shall refuse or neglect to execute such documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
(h)In the event that the father defaults in payment of the sum or any part thereof mentioned in paragraph 15(a) of these Orders then and in such event the father do pay to the mother interest thereon at the rate prescribed at the time by the Family Law Rules AND FURTHER that the M property be sold and the net proceeds of sale applied in the manner following:-
(i)to the mother the sum of $333,404 or such balance as then remains due and outstanding together with interest thereon at the aforesaid rate calculated from the said due date for payment to the date of payment to the mother of the said sum or such balance as at that time shall remain due and outstanding to the mother; and
(ii)to the father the balance thereof.
16.That all applications be otherwise removed from the pending list.
IT IS NOTED that publication of this judgment under the pseudonym Woodbine & Woodbine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT ADELAIDE FILE NUMBER: ADC 528 of 2007
MS WOODBINE Applicant
And
MS WOODBINE Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The applications
1.I have before me for determination competing applications for property settlement and parenting orders. The parenting applications relate to the parties’ two children C born in July 2002 (7 years) and K born in May 2004 (almost 6 years).
2.The mother seeks, inter alia, that she have sole parental responsibility for the children, that the children live with the father from 5.00pm Thursday to 5:00pm Monday in alternate weeks (4 nights per fortnight) and for half of the school holidays and live with her at all other times. The mother also seeks various orders with respect to time to be spent with the children on special occasions. The mother asks that the children attend T School.
3.The father asks that the parties have equal shared parental responsibility and that the current arrangements continue, namely that the children live with him for 7 nights in 14 on a two weekly cycle. At the commencement of the trial his application was in week one from 5:00pm Wednesday to 5:00pm Sunday and in week two from 5:00pm Tuesday to 5:00pm Friday. At a suggestion from me in order to ease the process of handover, he now asks that in week one the children live with him from 5.00 pm Thursday to 5.00 pm Monday. He is further seeking half of school holidays, specified time on special occasions and that the children live with the mother at all other times. The father’s preference for schooling is that both children attend S Primary School.
4.The parties have essentially reached agreement in relation to the asset pool available for distribution between them. The mother seeks that the parties’ property be divided equally.
5.The father seeks to retain the former matrimonial home at M, that the mother retain the G property, that the parties keep the property in their possession and their respective superannuation interests and that the father pay to the mother the sum of $95,000.
6.Thus the issues in dispute between the parties requiring my determination are:-
6.1whether the presumption applies and the parties are to have equal shared parental responsibility or whether the mother is to have sole parental responsibility for the children;
6.2the time the children are to spend with the parties - whether the current arrangement is to continue or whether the children should live primarily with the mother;
6.3the school the children are to attend;
6.4property settlement issues.
Factual background
7.The father was born in 1966 and is now aged 44 years.
8.The mother is now aged 40 years having been born in 1969.
9.On 13 February 1997 the mother’s parents purchased for $86,000 a property at G in the joint names of the mother and her sister in equal shares.
10.On 17 July 1998 the mother purchased a property at H for $146,500. The purchase was funded in part by a loan of $80,000 secured by way of mortgage over the property.
11.On 4 August 1999 the father purchased the former matrimonial home at M for $250,000.
12.The parties met in 1999 and married in January 2000 at which time they commenced cohabitation. At the time of their marriage the mother was working full time at T School as a teacher and the father was working as a professional at a practice at V.
13.On 31 July 2000 the mother sold the H home for $165,000, receiving net proceeds of approximately $80,000 after discharge of the mortgage.
14.In December 2000 the parties travelled overseas to work as self funded voluntary missionaries for approximately 12 months, returning to Australia in December 2001.
15.Following the parties’ return to Australia, the mother returned to full time work in January 2002 at T School and the father commenced work in February 2002 as a professional at a practice in an Adelaide suburb.
16.In June 2002 the father sold shares he held in Santos for $17,909 and shares in BHP Billiton for $53,181.
17.The parties’ child C was born in July 2002 and is now aged 7 years. The mother ceased working prior to the child’s birth.
18.In July 2003 the mother returned to work part-time (0.4 FTE) at T School. The father reduced his work to 2 days per week.
19.In January 2004 the mother ceased working to care for the parties’ child.
20.The parties’ second child K was born in May 2004 and is now aged almost 6 years.
21.In June 2004 the father sold OneSteel shares held by him for $1,529.
22.In 2005 the father increased his work hours to 4 days per week.
23.In May 2005 the father’s parents provided a loan of $50,000 to the parties. The parties undertook renovations on the former matrimonial home in the sum of $380,119.
24.The child C commenced kindergarten at S Kindergarten in July 2005.
25.In January 2006 the mother returned to work at T on a part-time basis 3 days per week. The father reduced his work to 2 days per week at this time.
26.On 3 January 2007 the parties separated under the same roof until 28 January 2007 when the mother left the former matrimonial home with the children, residing in rental accommodation.
27.In late January 2007 C commenced attending kindergarten at E.
28.On 2 February 2007 the mother commenced proceedings seeking parenting orders. The father filed his response on 13 April 2007.
29.On 22 February 2007 interim orders were made by Senior Registrar Kelly (as she then was) by consent, inter alia, with respect to the time the children were to spend with each parent. From Term 3 in 2007 the children were to live with the father from 5:00pm Wednesday to 5:00pm Sunday in alternate weeks and from 5:00pm Tuesday to 5:00pm Friday in the intervening weeks as well as for half of school holidays and specified times on special occasions. The children were to live with the mother at all other times. Orders were also made that until further order the child C attend E Kindergarten while living with the mother and S Kindergarten while living with the father for two sessions each week, and that from Term 3 in 2007 the child was to attend such school as could be agreed between the parties. The child K was to attend S Children’s Centre at S for one session per week and to attend such kindergarten as was agreed and thereafter to attend primary school with C.
30.K commenced attending S Children’s Centre at S in Term 2 of 2007.
31.On 3 May 2007 the father filed an Amended Response to an Application for Final Orders seeking in addition orders with respect to property settlement.
32.On 5 July 2007 Forbes JR ordered that the father enrol the child C at S Primary School from Term 3 in 2007 and that the father and mother do all things to facilitate the child attending that school.
33.On 9 October 2007 orders were made by Forbes JR, inter alia, appointing Ms R as a single expert to prepare a Family Assessment Report and also appointing an Independent Children’s Lawyer.
34.On 25 January 2008 Ms R provided a Family Assessment Report in which she proposed the following options:
Option 1
§The current split-week shared care arrangement continue
§[C] continue at [S] Primary School
§[K] be prepared for attending [S] Kindergarten
Option 2
§The children live primarily with [the mother]
§The children spend substantial time each week with [the father] (e.g two nights per week, such as a Friday - Saturday),
§These arrangements are reviewed when [K] is established at school (i.e six years of age). The children’s education be local to [the mother’s] employment (i.e [T School]) or halfway between the two houses (after [the mother] purchases a house)
Ms R recommended Option 1 at that time.
35.On 3 April 2008 Registrar Dore made orders (inter alia) dismissing an application by the mother seeking to call an adversarial witness in relation to a real estate valuation. The mother filed an Application in a Case on 9 April 2008 seeking a review of the Registrar’s decision.
36.A 1st Day of trial was held in this matter on 12 August 2008.
37.On 19 December 2008 Ms R prepared a further Family Assessment Report in which she outlined that her recommendations were unchanged from her initial assessment, but that Option 2 was now to be preferred.
38.On 23 December 2008 the mother’s Application seeking review of the Registrar’s decision of 3 April 2008 was dismissed, upon noting that the parties were agreed that the value of the former matrimonial home was $875,000.
39.The continuation of the trial was heard on 18 and 24 February, 9, 10, 29 and 30 June , 25, 26, and 27 November and 4 December 2009.
40.On 18 February 2009 I made orders that during the period of the adjournment the parties do all things necessary to engage in therapy and co-parenting counselling and mediation with Ms D, psychologist, with a view to addressing the child K’s developmental issues. The parties were to facilitate the attendance of K upon the psychologist as required.
41.On 29 May 2009 Ms R provided her third and final Family Assessment Report to the Court. She also provided valuable assistance to the Court by way of oral evidence.
The evidence
42.Each of the parties relied upon identified affidavits filed by them and gave oral evidence.
43.In addition the mother called evidence from:-
43.1Dr B, general medical practitioner for the mother and the two children;
43.2Mr ME, Principal of the T School;
43.3Ms RE, Manager of the S Children’s Centre at S;
43.4Dr HD, the child C’s treating Paediatric Gastroenterologist. He was not required for cross-examination. His affidavit filed on 30 January 2009 and annexed reports were agreed as being in evidence before me.
44.The father called evidence from:-
44.1His mother, the paternal grandmother;
44.2Mr ER, a friend who was not required for cross-examination and whose affidavit filed on 29 January 2009 was agreed as being in evidence before me.
45.Ms R, called by the Independent Children’s Lawyer, provided three reports which were agreed as in evidence before me and gave oral evidence on two occasions, 18 February 2009 and 27 November 2009.
Credit
46.As a matter of general observation, I do not prefer the evidence of one party over the other. Credit where relevant as an issue is identified by me below.
The legislation
48.Any determination I make has to be dictated by the relevant provisions of the Family Law Act 1975 (as amended) and in that regard the most relevant is Section 60CA which is to the effect that the Court must make any determination on a parenting issue in terms of what represents the best interests of C and K. In doing that the Court is then obliged to consider the numerous sub-paragraphs of Section 60CC which is divided into “primary” and “additional” considerations.
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
49.The benefit to the children of having a meaningful relationship with the other, is not disputed by either parent. To their credit, despite the issues about which they cannot agree and which require my determination, the parties are in ready agreement that each of them is important to their children and each of them should play a significant role in the lives of the children. Each acknowledges that the other parent loves their children dearly and benefits from regular and significant contact with them. More importantly, the parties acknowledge that the children love both parents and benefit from regular time spent with the other.
50.The dispute between the parents is as to the division of the children’s time between each of them. Whilst the mother asks that the children be placed in her primary care, in acknowledgement of the importance of their relationship with their father, the mother proposes that the children spend four nights in fourteen with their father, to be effected by the children living with their father from 5.00 pm on the Thursday until 5.00 pm on the Monday of each alternate week. She proposes that school holidays be shared equally. The mother further asks that she be entrusted with sole parental responsibility for the children.
51.It is the father’s proposal that there be equal shared parental responsibility coupled with an equal shared care arrangement whereby the children live with him in week one of a two weekly cycle from 5.00 pm on the Thursday until 5.00 pm on the Monday and then in week two, from 5.00 pm on the Tuesday until 5.00 pm on the Friday. He too proposes that school holidays be shared equally between the parties.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
52.Save and except as to an issue of K’s capacity to adjust psychologically to change, no matters of relevance emerge for my consideration pursuant to this sub-paragraph. C has some long term toileting issues but there is no evidence that they are psychologically related. Indeed, they existed well before separation. There is certainly no evidence that those issues for C are as a consequence of neglect. To the contrary, these two children have been loved and nurtured by both of their parents and have never been subjected to, or exposed to, physical or psychological harm, abuse, neglect or family violence.
53.I am satisfied that the evidence supports a finding that K is sensitive to change. Ms R saw these two children on four occasions. She makes a number of references to concerns about K’s sensitivity and his capacity to accommodate change. That chink in K’s psychological armour is in no way though due to his treatment at the hands of his parents. That is just the way he is. As the evidence indicates, and as I explore below, K is demonstrating some improvement in that regard but the very issues which the mother has presented for the Court’s determination make K’s presentation a very relevant consideration. The mother’s proposals for the care of the children will result in changes for them, and particularly K, in:-
53.1the shared care of the children and hence the amount of time that they spend with each of their parents;
53.2 schooling;
53.3 neighbourhood;
53.4 peer group and friendships.
54Whilst there was some minor concern early that the children’s physical needs and health issues were not being met, the evidence is clear that those issues for the children are now being managed well by the parents.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
55In her first report of 25 January 2008 Ms R observed (page 6) that it would be unwise to rely upon the views of either of the children expressed at that time. I agree with her observations.
56By the time of her second report of 19 December 2008, Ms R recorded (page 5) that C wished the shared care arrangement to continue. K was at that time unable to express his views on the arrangement.
57By the time of her third report of 29 May 2009, Ms R reported C as expressing very strong views about wanting to go to her mother’s school (page 8). I am not comfortable about relying upon that expression though as it is clear that C had had a number of detailed discussions on the topic with her mother.
58I am satisfied that it would not be appropriate to place a great deal of weight upon the children’s expressed views in relation to the topics of where it is that they wish to live or what school it is that they wish to attend. Other factors dealt with below are of far greater significance in determining those issues.
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
59As I said earlier in relation to the first of the primary considerations, each of the parties enjoys a close and loving relationship with the children and is supportive of the children’s relationships with the other parent. Despite the disputes they have had both prior to and since separation, the parties have behaved admirably in shielding the children from their differences. Ms R makes favourable reference in her reports to the excellent relationships across the board and to the manner in which the children have coped with their parents’ separation and their shared living arrangements. Such positive adjustments by the children would not be evident if the contrary was the case.
60In her first report, Ms R recorded (at pages 7 and 8) variously:-
Page 7
[The father] impressed as attuned to the children and their level of interest in involvement, and responded to them at their level. He impressed as skilled in gently directing the children, through offering opinions and encouraging certain behaviours such as sharing. The interactions throughout were good-humoured and relaxed, and were characterised by periods of conversation, active play and quiet play.
And further:-
Overall the atmosphere was similar in both play sessions, and [the mother’s] skills with and attunement to the children was as evident.
Page 8
In summary, the children impressed as having emotionally close and supportive relationships with each parent. They both impressed as feeling secure with each parent, with differences in their behaviour consistent with their differences in age (e.g. [C] confident to interact with the writer, [K] willing to interact if in close proximity to a parent). In turn, these observations reflected that the parents were developmentally sensitive and attuned to the children.
61As to C, she had this to say (at page 6):-
[C’s] report and presentation was of secure, positive emotional relationships with each parent.
62Ms R again reports close emotional relationships between the parents and the children in her second report. With respect to C, she said (page 6):-
Regarding emotional relationships (3b), [C] continued to report on and show close emotional relationships with each parent. [C] showed feeling happy with each of them on a rating scale (7 out of 10, where 1 = very unhappy and 10 = very happy). This was the case even though sometimes her father would, in her view, “shout” (as described above). On a measure of perceived closeness, [C] placed both parents and her brother closest to her. [C] identified nothing she would change in either household.
63As to K, she notes (at page 8):-
His comments did suggest a close emotional relationship with each parent ….”
64Nothing had changed by the time that Ms R provided her third report or gave evidence to the Court.
65The foundations for the positive and loving relationships which exist, were laid at birth. Both parties have taken an active role in the care and development of the children from the outset. This is not a case where one parent has made a very late commitment to the children post separation.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
66Similarly in addressing this sub-section, the evidence is emphatic that each of the parties has demonstrated both a willingness and an ability to ensure that the children’s close and loving relationships with the other parent, continue.
67From the very beginnings of her contact with this family, Ms R indicated that she found it very difficult to make a clear recommendation as to the two options for parenting arrangements that were being presented by the parties. She said that it was difficult for reasons other than those which she normally encountered. She was not being asked to proffer advice or recommendations in circumstances where the children were at risk. Her difficulty was in finding any identifiers which would assist her in establishing a clear choice between two very good parents. It was for her, and it is for me, a somewhat pleasant change in having to choose between two outcomes which could possibly serve the children well. The issues are subtle and are very much about optimising outcomes for the children. Whilst Ms R found it a difficult choice to make, by the conclusion of the evidence, I had no such difficulty.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
68The matters raised pursuant to this sub-section are among the most relevant in assisting my determination of the dispute. The changes promoted by the mother are as to living arrangements and schooling. Those changes have the incidental effect of incurring other changes such as physical environs and friendship and peer groups. The evidence is clear that, apart from her toileting problems, there are no issues of particular concern with C. Ms R is confident that she could accommodate change in her schooling and quickly establish new friendships at the T School. C’s school reports and the evidence of Ms R indicate that C is demonstrating significant improvement, although the true impact upon C of change is unknown.
69The impact of change upon K though is more predictable. The totality of the evidence, but in particular that of Ms R, is that there is some risk to K in being able to develop his full potential in the event that change was effected.
70Ms R said that there would be a number of challenges for K in the changes proposed by the mother, particularly in relation to his schooling. He would know only his mother and his sister at T School and his mother would be working on a different part of the campus. Significantly, K would know no children at the school and would be separated from his established friendship groups. Ms R said that a child with K’s sensitive temperament would find the task of such change harder and that he would face more challenges at T School than at S Primary School.
71I accept too that the problems for K would be compounded by his father’s inability to engage, or discomfort in engaging, fully in K’s schooling at T School given that his former wife is a staff member there, given that she is a friend and respected associate of other staff members, including potentially the children’s teachers, and given some events in 2007 in which another T School staff member was engaged. The parties attended ten counselling sessions with a Mr WN who is a pastor and youth worker at the school. It was the father’s evidence that he was engaged at the mother’s suggestion but that he proved to be anything but an independent and impartial counsellor and rather became the mother’s advocate. In cross-examination the mother acknowledged that:-
71.1she thought Ms R should speak to Mr WN;
71.2she thought Mr WN’s views would assist Ms R;
71.3she thought such an arrangement would likely favour her position;
71.4she thought Mr WN would tell Ms R “what kind of a man her husband was”;
71.5if the children went to T School she may well arrange for them to receive counselling from Mr WN;
71.6the father may well have some reluctance about Mr WN counselling the children.
72It is imperative for K and his continued development that both parties are able to participate in, and feel comfortable about participating in, his schooling. I accept that the father would have great difficulty in doing so at T School.
73The children have been accustomed to the present arrangements for many years now, not just since separation. Prior to separation the agreement between the parties was that the father cared for the children three days per week, the mother two days per week (although two of her working days were half days) and on weekends they shared their care. For effectively the whole time since separation in January 2007, the children have enjoyed an equal shared care arrangement.
74Those shared care arrangements have worked well for the children and careful consideration must be given as to whether or not change is appropriate with the concomitant risks attached thereto. In the vernacular “if it’s not broke, don’t fix it”.
75In the early stages Ms R had some concerns about the father’s emotional attunement and sensitivity to the children and their needs. She described the mother as “more emotionally intelligent”. However, in her later reports and most recent evidence Ms R notes that the father must have acknowledged his shortcomings in that regard and addressed them or the children’s observed comfortable and improving presentation would not have been demonstrated. She had no hesitation in categorising this matter as “not a high conflict case” and that it stood at the lower end of the continuum of disputes. She was emphatic that the children were not at risk, that the parents were providing “good enough” parenting and that the children’s physical and intellectual needs appeared to be met.
76I am satisfied that all of the evidence as to the impact and effect of change upon the children in these proceedings, particularly upon K, is that there are unwarranted and unjustified risks associated with the changes promoted by the mother but none in leaving the accustomed shared care arrangement in place. Expressing it in the positive, there are a number of discernable benefits to K in maintaining the long term shared care parenting, including:-
76.1familiarity with routines;
76.2familiarity with physical, geographical, neighbourhood and schooling environments;
76.3moving to S Primary School for which S Children’s Centre is a feeder establishment;
76.4transitioning from kindergarten to primary school with established friends, some of whom are already at S Primary School, the school which his sister also attends;
76.5maintaining his established “play dates” and hence continuing his improved socialisation (as evidenced in part in Mr ER’s affidavit filed 29 January 2009).
77The most discernable benefit to K though is the maintenance of his psychological healthy functioning and demonstrated improvement. He is secure in his present circumstances. He may not be in new or altered circumstances. The mother acknowledged that the move could make things worse for K and that she was “hopeful only” that it would be successful.
78The Independent Children’s Lawyer does not support change. The Independent Children’s Lawyer endorses the conclusion that the evidence does not support change and that change would present a risk to the children (but particularly K) in enabling them to achieve their full potential.
79I deal more explicitly with other issues surrounding change of schooling later in these reasons.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
80No issues of relevance emerge for my consideration pursuant to this sub-section.
(f) the capacity of:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
81Ms R’s evidence was clear, as was the balance of the evidence in these proceedings. Each of the parents has a demonstrated capacity to cater for the children’s physical, emotional and intellectual needs. The father’s capacity to address the children’s emotional needs was an early concern for Ms R but not now. He has demonstrated a capacity to accept advice and adjust his parenting style and capacity to meet the needs of his children. Each parent is intelligent and has acquired tertiary qualifications. The mother is a teacher. The father practices a profession.
82Part of the mother’s case was that the children’s health needs would be better met by the children moving to her primary care. The principal issues mentioned by her in her materials and in her evidence were as to C’s toileting control and K’s asthma and early slow weight gain. It is clear from Dr HD’s evidence, contained in reports agreed as being before me, that C’s bowel and bladder problems are receiving diligent attention from both parents and are being managed as well as is possible. Likewise, K’s issues have been addressed and are of no present concern.
83All of the objective evidence, including the children’s school reports, the Children’s Centre reports, the evidence of Ms RE and the evidence and reports of Ms R, is to the effect that the children are coping, despite the mother’s assertions to the contrary, and are having all of their needs met by each of their parents.
84A remaining area of concern though is the one raised by the mother, namely the ability of the parents to communicate effectively with one another in respect of the children’s needs. It is not overstating the case to say that a principal plank of the mother’s case promoting a changed care arrangement whereby she became the primary care parent, was the alleged poor levels of communication between the parties and the difficulty they have in parenting co-operatively. I explore that issue in detail when exploring whether or not it is appropriate for the parties to continue to enjoy equal shared parental responsibility. The legislative pathway then leads to the requirement to consider whether or not equal time or substantial and significant time with the parents is the appropriate outcome for the children. In consideration of that issue, the question of the parties’ capacity to communicate looms large (Section 65DAA(5)(c)).
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
85Matters of relevance pursuant to this sub-section have been adequately canvassed in the exploration of relevant matters which arise pursuant to the other sub-sections.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
86This sub-section throws up no matters of relevance for my determination in these proceedings.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
87No additional matters of relevance emerge pursuant to this sub-section. Matters relevant to this sub-section have already been canvassed.
(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
88These matters are not relevant here.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
89This sub-section does not provide any clear indicator of what might be the outcome which best represents the children’s interests. The parties have been engaged in lengthy, intense and expensive litigation for years now. My observation of them during the course of the proceedings suggests that they do not again wish to experience the emotional and financial drains of litigation. I am satisfied too that they recognise the potential direct and incidental detrimental impact upon their children of further litigation.
90I am satisfied that the evidence supports a conclusion that the orders which would least likely lead to further litigation between the parties are orders continuing the equal shared care arrangement. The only evidence of risk to the children is as to the potential risk associated with change. The mother’s application promotes change. The father’s application does not.
(m)any other fact or circumstance that the court thinks is relevant.
91No additional matters of relevance emerge for my consideration pursuant to this sub-section.
Section 60CC(4)
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfill, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
92The most significant component of the mother’s case before the Court was that the father was almost impossible to deal with, that communication between them was poor and that the father frustrated and hindered the decision making process about the children and their needs. I say a little more about that later in these reasons but in summary I am satisfied that the mother has not made out her case in that regard. In fact, I am satisfied that the conduct of each of the parties has been commendable in terms of the matters raised for my consideration pursuant to this sub-section. Each has taken every opportunity to have as full an involvement as is possible in their children’s lives and the decisions surrounding their children’s lives. Whilst each, but especially the mother, had some complaint about the demonstrated capacity of the other parent to facilitate decision making in relation to the children, I am satisfied that they are not matters of serious concern or implication for the children. As Ms R observed, the dispute between these parties is at the lower end of the continuum.
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
93The mother asks that she be given sole parental responsibility for the children. The father seeks the continuation of the present equal shared parental responsibility. In my view, this issue can be dealt with in short order. Given my determination that the equal shared care arrangement for the children should continue, and in any event, I am satisfied that it is imperative for the children and their needs that their parents retain their equal shared parental responsibility. The children will spend half of their lives with each of the parents. There will be issues that arise on a daily basis, issues which could range from the mundane to the serious. I am satisfied that the children’s best interests would be impeded by the father having to defer to the mother on parenting responsibility issues which could require an urgent determination. In practical terms, the mother could quite simply not be available at a critical time.
94The Independent Children’s Lawyer supports the continuation of the equal shared parental responsibility. The present structure of equal shared parental responsibility and equal shared care of the children has worked well for the children and served their needs. That is not to say that it has been perfect. Such is to be expected when separated adults are endeavouring to parent young children.I am satisfied here though that the areas of disagreement between the parties have had no impact upon the children at all at any discernable level.
95This matter is not about highly conflicted parents who have sacrificed their children’s needs in their struggle to achieve their individual parenting aims. They have done their best to shield their children from their own disputation and all of the evidence suggests that they have been successful in that regard. The only evidence of concern is as to the evidence of the possible impact and effect of any change in the present arrangements. Thus no change either with respect to the equal shared care of the children or the equal shared parental responsibility, satisfies the best interests of C and K.
96A number of options on the issue of parental responsibility were explored during the trial of the proceedings. A number of questions were put to Ms R about separating out some specific issues from the general parental responsibility. There was evidence about whether or not educational and medical issues should be the responsibility of the mother with the balance remaining as a matter of equal shared parental responsibility. However, whilst some time was devoted to that notion, in the end result I am satisfied that such an arrangement would not suit the children’s needs. Each of the parties has demonstrated a keen interest in all aspects of their children’s welfare including educational and medical issues. Whilst at times, one party may have taken a keener interest than the other, overall it has been an effective arrangement. The evidence does not support any change.
Section 65DAA
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
97It is not necessary for me to consider these provisions given my determination that the equal shared parenting arrangement should continue.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
98Whilst on the basis of all of the factors and evidence referred to previously I am satisfied that an equal shared care arrangement is the one which best meets the children’s needs and interests, the ability of the parties to communicate in relation to their children is one matter to which the Court must still have regard. It arises quite specifically under Section 65DAA(5)(c) above. Many cases have highlighted the importance of communication between the parties where they are to share the care of their children. I will not though refer to them all.
99In O’Loughlin and O’Loughlin (No 2) [2007] FamCA 1546, Strickland J discussed what he saw as some of the necessary factors for shared care to be successful:
132.There is ample authority and research to indicate that for shared care to be successful the parties need to have or be able to develop a working relationship (FORCK & THOMAS (1993) FLC 92-372 at p.79,868; H & H (1995) FLC 92-599 at p.81,973). It is not just a matter of sharing time; the emphasis is on responsibility and to achieve that there needs to be a high level of cooperation and a genuine commitment to the arrangements (PADGEN & PADGEN (1991) FLC 92-231). The parties need to communicate, work together, understand, respect, and complement each other’s parenting style to create as stable and consistent an environment for the child as possible.
133.Of course though, it is not the case that where any of these elements are not present the Court cannot make an order for a shared care arrangement. Each situation is different and it is still a matter of discretion as to what is in the best interests of the child after taking into account all factors that are required under the Act (G & G (2000) FamCA 12, Full Court, 18 January 2000).
134.In this case the evidence supports the comments of Ms T. There is an inordinately high level of conflict, there is no communication, there is no cooperation or trust, and it is a vain hope to imagine the parties sitting down and discussing on a frequent and regular basis details such as daily routines, diet, and school, sporting and social arrangements.
135.It also seems to me that the need to consider these issues has not been altered by the amendments made to the Family Law Act 1975 which came into force on 1 July 2006. What those amendments do is require the Court to consider the child spending equal time with each parent in certain circumstances. In doing so though, it is spelt out that the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether it is reasonably practicable.
100A poor relationship between the parties, or an inability on the part of the parties to communicate, may be a factor which leads the Court to conclude that it is not in the children’s best interests for the parties to have equal shared parental responsibility or, that if they are to have equal shared parental responsibility, it is not appropriate for the children to spend equal or substantial and significant time with both parents.
101For example, in Baker and Parker-Lesley [2008] FamCA 1002, Dawe J concluded that it would not be in the best interests of the child for the parents to have equal shared parental responsibility in circumstances where there had been a “loss of any civil relationship between the parties” which her Honour considered would compromise the child’s welfare.
102In their article ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’[1] McIntosh and Chisholm outline that:
[1](2008) 20 (1) Australian Family Lawyer 3
128The present parenting regime also includes a raft of orders which cover specific occasions and a multitude of other factors. Each parent supported the continuation of such arrangements in the event that there was otherwise no change in the equal shared parenting arrangements.
129The present handovers are recorded (and I will record in my orders) as occurring at 5.00 pm. I am not aware as to whether or not anything significant, such as changes of clothing or educational materials, occurs between the end of school for the day and 5.00 pm and hence I will make no order different from that. However, if nothing of significance occurs between those times, the parties may by agreement deem it appropriate to voluntarily alter handovers to be effected by the relevant parent delivering the children to, or collecting them from, school.
PROPERTY SETTLEMENT
Assets and liabilities
130The parties were essentially able to agree the asset pool. They were certainly able to agree the assets, including their superannuation entitlements, and the values which were to be attached to them. Their only area of disagreement was as to whether or not it was appropriate that the Court take account of a liability to the father’s parents in terms of interest on a loan provided by the father’s parents. There was no dispute raised by the mother as to the appropriateness of taking into account the principal sum of the loan, being an amount of $50,000. The agreed asset pool is as follows:-
Assets
130.1Former matrimonial home property at M $875,000.00
130.2Mother’s 50% interest in the property at G $145,000.00
130.3ING savings account in the mother’s sole name $59,511.00
130.4Savings and Loans Credit Union account in
the joint names of the parties $2,345.00
130.5Furniture and effects in the possession of the
father$2,455.00
130.6Furniture and effects in the possession of the
mother$5,519.00
130.7Father’s Toyota 4 runner motor vehicle $3,200.00
130.8Mother’s Holden Commodore VN motor vehicle $1,200.00
130.9Father’s Super SA, State Lump Sum Scheme –
Defined Benefit Scheme $16,505.00
130.10Father’s Statewide Super Trust –
Accumulation Interest $77,014.00
130.11Mother’s N Staff Super Fund
– Accumulation Interest $48,482.00
$1,236, 231.00
Less Liabilities
130.12Loan due to father’s parents $50,000.00
Sub-total $1,186,231.00
131As indicated in the previous paragraph, the mother agrees to accept as a liability relevant for the calculation of the net asset pool for division between the parties, an amount of $50,000 loaned by the father’s parents in early 2005. That loan was used to undertake renovations to the former matrimonial home property. In paragraph 565 of his trial affidavit filed 29 January 2009 the father records the loan as having been provided to both him and to the mother. At paragraph 14 of her affidavit filed on 29 January 2009, the father’s mother also indicates that the loan of $50,000 was to both parties. Annexure “GG” to the father’s said trial affidavit is a copy of the Loan Agreement which shows that the Loan Agreement was signed only by the father’s parents and the father. The mother was not a signatory to that document.
132The father is also seeking to have taken into account as a joint liability of the parties, interest allegedly due to his parents on that loan, being an amount of $6,833. I do not accept that it is appropriate to do so for a number of reasons:-
132.1the Loan Agreement was not signed by the mother but by the father only;
132.2the Loan Agreement records this in relation to interest:-
“Interest (if any) to be agreed upon yearly on the anniversary of this loan”.
132.3I accept the mother’s evidence that she was never party to any agreement to pay interest or to establish an interest rate;
132.4that purported agreements as to interest payable on the loan (Annexure “OO” to the father’s trial affidavit) were signed only by the father’s parents and the father. The mother was not a signatory to any of those documents;
132.5all of the purported Loan Agreements which include a provision as to interest payable on the said loan, were executed after the parties’ separation in January 2007.
132.6I am satisfied that the likelihood of the mother being consulted about interest payable on the loan, let alone agreeing to pay interest on the loan subsequent to the date of separation, is so unlikely and remote as to be absurd.
Summary of assets and liabilities
133Thus the net pool of assets and superannuation to be divided between the parties is represented by a figure of $1,186,231.
Contributions
134The parties were also able to agree the identity and value of the financial contributions made by them at the date of their marriage which was also the date they commenced cohabitation. In respect of the contributions made by the father, it was agreed:-
134.1Former matrimonial home property at
M (at 4 August 1999) $250,000.00
134.2Statewide Super Trust – Accumulation interest
(at 31 December 1999) $23,392.00
134.3Super SA, State Lump Sum Scheme – Defined
Benefit Scheme (at 3 January 2000) $8,660.00
134.4BHP shares (sold on 3 January 2000) $50,800.00
134.5Santos shares (sold on 3 January 2000) $11,910.00
134.6Savings and Loans S1 account $6,491.00
134.7Savings and Loans S11 account $369.00
134.8Toyota 4 runner motor vehicle $16,500.00
134.9Furniture and effects $5,000.00
Total $373,122.00
135As to the mother’s contributions, it was agreed:-
135.150% interest in the property at G,
(purchased 13 February 1997) $43,000.00
135.2Property at H $146,500.00
135.3N Staff Super Fund-Accumulation Interest $19,339.00
135.4Bank SA set off account $6,789.00
135.5Bank SA visa account in credit $96.00
135.6Commodore motor vehicle $15,990.00
135.7Furniture and effects $5,000.00
$236,714.00
135.8LESS mortgage over H property $78,506.00
Total $158,208.00
136In his final address Counsel for the father also made reference to a gift of some $60,000 from the father’s parents in August 1999, some 5 months prior to marriage and cohabitation. However in paragraph 553 of his trial affidavit, the father makes it plain that the said sum of $60,000 was contributed to the purchase of the property at M for which the father has already been given credit as a contribution at marriage.
137Counsel for the father pointed out that there was a differential between the contributions of the father and the mother of some $215,000 in the father’s favour. That sum represented approximately 18% of the current net asset pool. Whilst acknowledging that it was not appropriate to apply a strict mathematical calculation to the assessment of the parties’ respective financial contributions, Counsel for the father submitted that it was appropriate to recognize the greater contribution of the father in that respect by a 60 / 40 distribution in favour of the father.
138Counsel for the father contended that contributions since marriage should be treated as having been equal. Certainly, as I have identified above, both parties contributed to the best of their ability in terms of employment and the consequent income earned therefrom and to parenting duties.
139Counsel for the mother conceded that it was appropriate to recognize a greater contribution by the father because of the greater financial contribution made by him at the commencement of the parties’ cohabitation, but contended that it ought to be recognized by a 55 / 45 distribution of the assets in the father’s favour.
Conclusion on contributions
140The parties’ cohabitation was of modest duration, being some 7 years. I accept, as conceded by Counsel for the mother, that the greater financial contribution of the father at the outset of their relationship ought to be recognized by the father receiving a greater share of the net asset pool at this contributions stage. I am satisfied that 10% represents too great, and 5% too little, a recognition of the father’s superior financial contribution. In my view an appropriate recognition would be a division between them in favour of the father of 57.5 / 42.5 of the net asset pool. That would be represented respectively by figures of $682,083 for the father and $504,148 for the mother.
Section 75(2) factors
(a)the age and state of health of each of the parties;
141The parties are of roughly equivalent age, the father being aged 44 years and the mother 40 years. Both enjoy good health.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
142On a 57.5 / 42.5 distribution of the net asset pool as identified as appropriate by me above, after consideration of contributions only, the father will enjoy a superior share of that net pool represented by a figure of some $177,935.
143The father, as a professional, earns more than the mother does as a school teacher. For the 2006 / 2007 financial year the father earned approximately $15,000 more than the mother. In previous years he had earned significantly more. Due to their parenting commitments they work approximately the same number of days and hours per week. Both though have the capacity to increase their hours and hence their income with K’s commencement at school and as the children grow and assume increasing independence, the capacity of each of the parties to earn more will similarly increase. It was the father’s evidence that presently he only works 1 ½ days per week being Mondays from 9.00 am until 5.00 pm and Tuesdays from 9.00 am until 1.00 pm. He indicated that it was likely that he would increase his hours once K commenced school. He indicated that Wednesday, Thursday and Friday mornings were possible.
144Thus the father’s capacity to earn higher income is significantly greater than that of the mother. I am satisfied that he will always enjoy a superior financial position to that of the mother in terms of their respective capacities to earn income.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
145As identified above, the parties will be sharing this responsibility equally.
(d)commitments of each of the parties that are necessary to enable the party to support:-
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
and
(e) the responsibilities of either party to support any other person;
146No matters of relevance emerge for my consideration pursuant to these sub-sections.
(f)subject to sub-section (3), the eligibility of either party for a pension, allowance or benefit under-
(i)any law of the commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
147As identified earlier in these reasons, each of the parties enjoys superannuation entitlements, the father’s presently totalling $93,519 and the mother’s $48,482.
(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
and
(k)the duration of the marriage and the extent which it has affected the earning capacity of the party whose maintenance is under consideration;
and
(l)the need to protect a party who wishes to continue that party’s role as a parent;
and
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
and
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
148No additional matters, not already canvassed, emerge for my consideration pursuant to these sub-sections.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
149Annexure “RR” to the father’s trial affidavit is a Child Support Assessment issued on 14 November 2007. It identifies that the father pays to the mother child support of $238.25 per month.
150The parties are agreed that they will share children’s school fees, private health cover and “the gap”, costs of swimming lessons and other expenses associated with the children’s extra curricular activities.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
151The father has remained resident in the former matrimonial home property since the separation of the parties over three years ago. There is no mortgage commitment in respect of that property. The only liability is that to his parents where any interest payable to them is as agreed between the father and his parents. He otherwise has the usual commitments in terms of utilities and maintenance of the property.
152For her part, the mother has had to meet significantly greater expense since separation in having to find alternative rental accommodation for herself and the children.
(p)the terms of any financial agreement that is binding on the parties;
153This sub-section is not relevant for my consideration.
Conclusion on Section 75(2) factors
154In my view it is appropriate for there to be an adjustment from the determination after consideration of contribution factors only, in favour of the mother of 7.5%. Such an adjustment recognises the differential in income between the parties, the significant differential in income earning capacity of each of the parties and the fact that the mother had to meet expenses not matched by the father in terms of securing accommodation after separation.
155The final outcome therefore is an equal distribution of the net asset pool between the parties, represented by a figure of $593,115.
Just and equitable
156The parties agree that the father is to be given the opportunity of retaining the former matrimonial home property at M. Thus he will retain from the asset pool, the following:-
156.1Former matrimonial home property at M $875,000.00
156.2Savings and Loans Credit Union account in
the joint names of the parties $2,345.00
156.3Furniture and effects in the father’s possession $2,455.00
156.4Father’s Toyota 4 runner motor vehicle $3,200.00
156.5Father’s Super SA, State Lump Sum Scheme –
Defined Benefit Scheme $16,505.00
156.6Father’s Statewide Super Trust – Accumulation
Interest $77,014.00
Sub-total$976,519.00
Less
156.7Liability to the father’s parents $50,000.00
Total net assets to be retained by the father $926,519.00
157There would thus be a payment due by the father to the mother, to achieve equality of distribution of the net assets between them, of $333,404.
158From the net asset pool the mother will retain:-
158.1Mother’s 50% interest in the property at G $145,000.00
158.2ING savings account in the mother’s sole name $59,511.00
158.3Furniture and effects in the mother’s possession $5,519.00
158.4Mother’s Holden Commodore VN motor vehicle $1,200.00
158.5Mother’s N Staff Super Fund – Accumulation Interest $48,482.00
Total$259,712.00
159She is entitled to receive an amount of $593,115, being one-half of the net asset pool. Thus it is confirmed that the payment due by the father to the mother to achieve equality is an amount of $333,404.
160I am satisfied that this represents a just and equitable outcome for the parties. It will enable the mother to purchase appropriate accommodation for herself and the children whilst they are in her equal shared care. The father’s only liability is the debt due to his parents. Clearly the arrangement he has with his parents is particularly flexible and I am satisfied that it may well be that they will not require repayment of that debt to them and indeed could take a very charitable view about matters of interest on that loan.
161I am further satisfied that the father well and truly enjoys the capacity to borrow the funds necessary to discharge his calculated obligation to the mother of $333,404. There is significant equity in the M property and he has the income and the capacity to earn income to service any borrowings. It was his evidence that he had established that even on his income earned from only 1 ½ days work per week, he could borrow from the bank the sum of $250,000.
I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr
Associate:
Date:
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