WORTH & WORTH

FAMILY COURT OF AUSTRALIA

WORTH & WORTH

[2017] FamCA 227

FAMILY LAW – CHILDREN – Best interests – With whom the children should live – Where the father has been living in the United Kingdom for sixteen months – Where the son has autism at the extreme end of the spectrum – Where the daughter is on the autistic spectrum – Whether the children should spend increased time with the father – Whether the mother is capable of facilitating a meaningful relationship between the father and children – Where it is in the children’s best interests for the mother to have sole parental responsibility

FAMILY LAW – PROPERTY – Final – Just and equitable to make an adjustment of property interests – Where the parties signed a prenuptial agreement – Where the mother’s legal fees are notionally added back – Where a superannuation splitting order is made – Where an adjustment is made in favour of the mother pursuant to s 75(2)

FAMILY LAW – CONTRAVENTION – Where the father’s Application-Contravention was heard as part of the trial – Where the mother was found to have contravened on some of the counts as alleged

Family Law Act (1975) Cth

M v M (1988) 166 CLR 69
Chorn & Hopkins (2004) FLC 93-204
Omacini & Omacini ((2005) FLC 93-218
Cerini & Cerini [1998] FamCA 143

APPLICANT:

Ms Worth

RESPONDENT:

Mr Worth

INDEPENDENT CHILDREN’S LAWYER:

Janelle Osborne

FILE NUMBER:

BRC

1771

2014

DATE DELIVERED:

13 April 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

20, 21, 22, 23, 24 and
27, & 28 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Osborne
Legal Aid Queensland

Orders

Parenting

Parental Responsibility

(a) That the mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the children, M born … 2008 (“M”) and Y born … 2011 (“Y”), (collectively “the children”), save for any decision to move the children to a place of residence that would make it significantly more difficult for the children to spend time with the father as provided in these Orders.
(b) In respect of any issue for which the mother has sole parental responsibility, she shall nevertheless, prior to solely making the ultimate decision on any such issue:
(i)Advise the father in writing of the decision intended to be made before it is made and of her reasons for the decision intended to be made;
(ii)Seek the written response of the father in relation thereto before the decision is made;
(iii)Consider, by reference to the best interests of the child, any such written response prior to making any such decision; and
(iv)Advise the father in writing as soon as reasonably practicable of her ultimate decision and the reasons for that decision.
(c) Any decision to move the children to a place of residence that would make it significantly more difficult for the children to spend time with the father as provided in these orders shall only be made by the mother with the written consent of the father.

Specific Issues

That notwithstanding Order 1, unless otherwise agreed in writing between the mother and the father, the child M shall continue to attend N School, and the child Y shall continue to attend O School.
That the parents are to do all acts and things necessary to keep each other informed about the health of the children including but not limited to:
(a)advising the other parent of the name and contact details of any medical practitioner, health care professional or other treatment providers (including but not limited to: general practitioner, psychiatrist, psychologist, occupational therapist, speech therapist, paediatrician or any other specialist) within 24 hours of any attendance by the child (or the parent without the child but on behalf of the child) upon such person and providing to the other parent at the same time details of the reasons for the attendance, any diagnosis and/or treatment provided, any prognosis given and details (including the name and prescribed dosage) of any medication prescribed;
(b)advising each other immediately in the event that either child should become seriously ill, attend a hospital emergency department, be hospitalised or seriously injured, and in such circumstance, provide the details required in (a):
(i) in person or by telephone immediately; and
(ii) within three (3) hours by way of the communication platform “Our Children” or such other platform as may be agreed between the parents in writing;
(d)advising the other parent at least seven (7) days prior to the time of any appointments made for either of the children to attend upon any medical specialist, or any therapist, including the name of the specialist or therapist, the specialist’s or therapist’s contact details, the reason for the appointment and the date, time and location of the appointment, but, to be clear, the other parent is restrained from attending at such appointments without the prior written consent of the parent who has made the appointment;
(e)upon the first attendance after the date of these parenting orders with either of the children upon any medical practitioner or health care professional or other treatment providers (including but not limited to: general practitioner, psychiatrist, psychologist, occupational therapist, speech therapist, paediatrician or any other specialist and including any the child is already seeing at the date of these orders), authorise that person to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
Within two school days from the date of these parenting orders, the mother shall provide to the Principal of N School a list of any and all of M’s current medications, the prescribed dosage and details as to when the medication is administered, and she shall inform and keep the Principal informed of any changes to the medications or dosage on the next school day following any such change in the future (even if the medication is not going to be administered at school).
Within two school days from the date of these parenting orders, the Mother shall provide to the Principal of O School a list of any and all of Y’s current medications, the prescribed dosage and details as to when the medication is administered and she shall inform and keep the Principal informed of any changes to the medications or dosage on the next school day following any such change in the future (even if the medication is not going to be administered at school).
(a) Within two weeks from the date of these parenting orders, the mother shall authorise any school, out of school hours child care provider or extra-curricular activity provider either of the children currently attends to provide the father with any information the father might request that they are lawfully able to provide about the children that the father may request of them and this order shall serve as such authority and the mother shall inform the father in writing of the details, including correct name, address and contact telephone number, of any out of school hours child care provider or extra-curricular activity provider either of the children currently attends and she shall provide written confirmation to him that she has provided the authorisation this Order requires.
(b) Each parent shall inform the other parent in writing of any new out of school hours child care provider or extra-curricular activity provider that either child begins attending within 24 hours of the commencement of such attendance including details of the correct name, address and contact telephone number of the new provider, and the parent who has instigated the attendance shall immediately authorise the new provider to give the other parent, as the other parent may request, any information that they are lawfully able to provide about the children, (including but not limited to the option to purchase school photographs, obtain newsletters, access online updates about the children) and this order shall serve as such authority and the parent who has instigated the attendance shall provide written confirmation to the other parent that he or she has provided the authorisation this Order requires as soon as that authorisation has been provided.
If there is a cost to a school, a provider of health care, out of school hours child care, or extra-curricular activity associated with the provision to the father or the mother of any information or documents under these parenting orders that cost shall be borne by the parent requesting the provision of the information or documents.
Subject to any conditions imposed by the children’s schools, educational facility or extra-curricular provider, these orders authorise both parents to attend functions and events to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews, save that the father shall only be authorised to attend such functions and events in respect of M at the express invitation of the Principal of the N School.
Each parent is restrained from denigrating the other parent or any member of the other parent’s family to, or in front of, or within the hearing of, either of the children and shall direct third parties to refrain from denigrating either party or any member of the other parent’s family to, or in front of, or within hearing of, either of the children and failing their compliance with such a direction shall remove the children from that environment immediately.
Neither parent shall discuss these proceedings with or in the presence or hearing of the children or either of them.
The father shall not consume alcohol during any time he spends with either of the children nor for 12 hours prior to spending time with either of them.
Neither party shall provide either of the children with any prescription medication unless they hold a current prescription for that medication which was obtained from a medical practitioner currently treating the child and whenever the children or either of them are in the father’s care he shall administer any medication provided to him by the mother for either of the children in accordance with the prescription as conveyed to him by the mother, whether he approves of the child being on that medication or not.
(a) Within six months of the date of these parenting orders the mother shall complete a Parenting Orders Program with Relationships Australia and provide documentary evidence to the father that she has done so.
(b)Within six months of the date of his return to live in Australia the father shall complete a Parenting Orders Program with Relationships Australia and provide documentary evidence to the mother that he has done so.
The mother and father shall do all acts and things necessary to register and maintain an account with the online communication platform “Our Children” ( or such other similar service as may be agreed in writing between the parties (“the communication service”), and unless otherwise specified in these orders, they shall use the communication service for exchanging information and documents as required by these orders, and for such purpose:
(a)each parent shall register with the communication service within three days of the date of these parenting orders;
(b) each parent shall do all acts and things necessary to ensure the other parent has access to the information and documents they enter into the platform;
(c) each parent shall pay their annual registration fee as and when it falls due;
(d) communication completed by way of the service shall be deemed to be communication in writing for the purposes of these parenting orders.
Each parent shall keep the other parent informed of their residential address, mobile telephone contact number, Skype profile and details necessary for the communication service at all times, including but not limited to notifying the other parent within 24 hours of any change to any of those things, save for a change of residential address, details of which shall be provided to the other parent in writing at least 14 days prior to any such change.
The mother and father shall each be permitted to provide to the Principal of each of the children’s schools and any medical practitioner or health care professional or other treatment providers (including but not limited to: general practitioner, psychiatrist, psychologist, occupational therapist, speech therapist, paediatrician or any other specialist), a copy of these parenting orders but not the property adjustment orders herein.
The Independent Children’s Lawyer shall be permitted to provide a copy of these parenting orders but not the property adjustment orders herein and reasons for judgment to the Principal of N School (M’s school), Dr D (M’s treating psychiatrist), and Dr A (Y’s treating psychiatrist).
The Independent Children’s Lawyer shall also be permitted to provide a copy of these parenting orders but not the property adjustment orders herein to the Principal of O School (Y’s school).

Live with

The children shall live with the mother.

Communication

Y shall communicate with the parent she is not with at the time by webcam (such as Skype, Facetime or similar) each Tuesday at 6.00 pm Queensland time and each Saturday at 9.00 am Queensland time (unless 9.00 am is a changeover time); with Y to initiate the call, and with the parent she is with at the time to facilitate the communication by providing her with access to a personal computer, lap top computer, tablet (such as an iPad) or smart phone (such as an iPhone) and helping her to establish a connection and contact with the other parent and then giving her privacy to communicate with the other parent.
After M has begun spending time with the father as provided in paragraph 32 of these parenting orders he shall be permitted to communicate with the parent he is not spending time with at the same time as Y communicates in accordance with paragraph 20.

Changeover

Unless specified otherwise, or otherwise agreed, changeover for the purpose of these parenting orders for the children (or either of them) to spend time with their father shall occur by the mother delivering them to the changeover location at the beginning of the time, and by the father returning them to the changeover location at the end of the time, where the changeover location shall be outside Coles supermarket, at Q Centre, Suburb P.

IF THE FATHER LIVES IN BRISBANE

Spends time with

The children shall spend time with the Father in accordance with orders 24 to 38 on the conditions that:
(a)the father is living within 30 kilometres of M’s school, currently N School; and
(b) the father provides the mother 14 days’ notice in writing of his intention to commence time with the children in accordance with these parenting orders.

Spending time - Y

That subject to special occasion time, the child Y shall spend time with the father at all times as agreed between the mother and the father and failing agreement, in the following stages:
(a) for 8 weeks, each Saturday from 1.00 pm until 5.00 pm;
(b)following completion of time in (a), for 8 weeks, each Sunday from 9.00 am until 5.00 pm; and for the first 4 hours of any special occasion time that falls within this period;
(c)following completion of time in (b), for 8 weeks, each weekend from 1.00 pm Saturday until 5.00 pm Sunday; and
(d)following completion of time in (c), for 8 weeks, each alternate weekend from after school Friday (or 3.00 pm if not a school day) to 5.00 pm Sunday;
(e) following completion of time in (d), during school terms:
(i)in the first week of the fortnight, from after school Thursday (or 3.00 pm if not a school day) to commencement of school the following Monday (or 9.00 am if not a school day), commencing on the first weekend of each new school term.

School holidays - Y

For the first school holiday period after Y has spent at least 2 weekends with the father in accordance with 24(e), Y shall spend time with her father from after school on Friday which is the last day of term, or immediately follows the last day of term, to 2.00 pm on the following Wednesday.
For the second school holidays after Y has spent at least 2 weekends with the father in accordance with 24(e), and thereafter during school holidays, Y shall live with her parents for school holiday periods as follows:
(a)in even numbered years, the first half of the holidays with the mother and the second half with the father; and
(b)in odd numbered years, the first half of the holidays with the father and the second half with the mother;
(c)for the purpose of these Orders, the school holiday time shall commence:
(i)when a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5.00 pm on the day calculated to be the day on which the half way point of the holidays falls;
(ii)when a parent’s time falls in the second half of the holidays, from 5.00 pm on the day calculated to be the day on which the half way point of the holidays falls ending at 9.00 am on the day the school term recommences;
(iii)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00 am on the day the children return to school and should the half way point of any holidays calculated in this way ever occur at midnight then that half way point shall be, for the purposes of this paragraph of these parenting orders, deemed to fall on the day that is concluding at that midnight hour.

Special Occasions

Notwithstanding any previous orders, Y shall spend time with her parents on special occasions, as follows:
(a)      Christmas day, commencing in 2017:
(i)In odd numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day with the Father, and from 3.00 pm Christmas Day until 3.00 pm Boxing Day with the mother; and
(ii)In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day with the mother, and from 3.00 pm Christmas Day until 3.00 pm Boxing Day with the father;
(b)      Easter, commencing in 2018:
(i)In odd numbered years from 9.00 am Good Friday to 5.00 pm Easter Saturday with the mother and from 5.00 pm Easter Saturday to 5.00 pm Easter Monday with the father; and
(ii)In even numbered years from 9.00 am Good Friday to 5.00 pm Easter Saturday with the father and from 5.00 pm Easter Saturday to 5.00 pm Easter Monday with the Mother;
(c)      On Y’s birthday, commencing in 2017:
(i)If a school day, from after school until 4.30 pm with the father and from 4.30 pm to 6.00 pm with the mother;
(ii)If a non-school day, from 9.00 am to 1.00 pm with the mother and from 1.00 pm to 5.00 pm with the father;
(d)      On the mother’s birthday, commencing in 2018:
(i)If a school day, from after school until 6.00 pm with the mother;
(ii)If a non-school day, from 9.00 am to 5.00 pm with the mother;
(e)      On the father’s birthday, commencing in 2018:
(i)If a daycare/school day, from after school until 6.00 pm with the father;
(ii)If a non-school day, from 9.00 am to 5.00 pm with the father;
(f)       With the mother on Mother’s Day from 9.00 am to 5.00 pm;
(g)      With the father on Father’s Day from 9.00 am to 5.00 pm.

Unless otherwise specified, special occasion time shall commence for Y, once the father has spent time with Y in accordance with paragraph 24 (b) of these parenting orders, and shall commence for M, once the father has spent time with M in accordance with paragraph 29 of these parenting orders.

Spending Time - M

For the first two calendar months following the making of these orders, M shall spend time with the father:
(a) each Tuesday and Friday from after school to 3.00 pm at N School (in accordance with paragraphs 34 to 38 of these parenting orders) should the father be able to make it, allowing for any employment he may have, and should he not be able to get the time to spend this time with M then the two month period provided for in this paragraph shall extend to three months; and/or
(b) from 9.00 am to 1.00 pm each Saturday on the condition that such time takes place in the company of a respite carer with whom M is familiar (that carer having spent at least two previous sessions with M or with M and the mother) and for such purpose:
(i)the mother shall do all acts and things necessary to gain the permission of the respite carer for the father to attend in accordance with these orders or to arrange a respite carer who will provide such service;
(ii)the father shall follow all reasonable directions of the respite carer including allowing the respite carer to nominate venue and activity;
(iii)the mother shall deliver M and the respite carer to the changeover location at the beginning of the time and collect M at the end of the time;
(iv) if a Government funded provider of respite care will not provide this service and the respite carer has to come from a commercial provider, the father shall meet the cost of the provision of such service, including the cost of the first two sessions the respite carer spends with M and the mother before M and the respite carer begin to spend time with the father.
Following completion of the time provided for in paragraph 29 of these parenting orders, for two calendar months, M shall spend time with the father:
(a) each Tuesday and Friday from after school until 3.15 pm at N School (in accordance with paragraphs 34 to 38 of these parenting orders) should the father be able to make it, allowing for any employment he may have, and should he not be able to get the time to spend this time with M then the two month period provided for in this paragraph shall extend to three months; and/or
(b) from 9.00 am to 1.00 pm each Saturday on the condition that such time takes place in the company of a respite carer with whom M is familiar (that carer having spent at least two previous sessions with M or with M and the mother) and for such purpose:
(i)the mother shall do all acts and things necessary to gain the permission of the respite carer for the father to attend in accordance with these orders or to arrange a respite carer who will provide such service;
(ii)the father shall follow all reasonable directions of the respite carer including allowing the respite carer to nominate venue and activity;
(iii)the mother shall deliver M and the respite carer to the changeover location at the beginning of the time and collect M at the end of the time;
(iv) if a Government funded provider of respite care will not provide this service and the respite carer has to come from a commercial provider, the father shall meet the cost of the provision of such service, including the cost of the first two sessions the respite carer spends with M and the mother before M and the respite carer begin to spend time with the father.
Following completion of the time provided for in paragraph 30 of these parenting orders, for two calendar months, M shall spend time with the father:
(a) each Tuesday and Friday from after school until 3.15 pm at N School (in accordance with paragraphs 34 to 38 of these parenting orders) should the father be able to make it, allowing for any employment he may have, and should he not be able to get the time to spend this time with M then the two month period provided for in this paragraph shall extend to three months; and/or
(b) from 9.00 am to 1.00 pm each Saturday.
Following completion of the time in paragraph 31 of these parenting orders, M shall spend time with the father:
(a) from 9.00 am to 3.00 pm each Saturday during school terms; and
(b)during school holidays, each Saturday from 9.00 am to 3.00 pm when Y is spending time with the Father pursuant to these parenting orders;
(c)for special occasions, for the first 6 hours of any period that Y spends with the Father in accordance with these orders.
Commencing in 2018, both Y and M shall spend time with the father on M’s birthday:
(a)If a school day, from after school until 4.30 pm with the father and from 4.30 pm to 6.00 pm with the mother;
(b)If a non-school day, from 9.00 am to 1.00 pm with the mother and from 1.00 pm to 5.00 pm with the father.
Time at N School (M’s school), shall occur if it occurs at all, at the times and on the days specified in the above paragraphs of these parenting orders, on the following conditions:
(a) all time to be spent at school is subject to the ongoing approval of the Principal of Suburb P State Special School (“the Principal”);
(b) time at school shall only occur on the days that M would ordinarily be attending school (ie during school terms and not on school holidays or pupil free days);
(c)the time shall take place in the playground of Suburb P State Special School;
(d)the time shall commence immediately after school on the first Tuesday following the making of these orders or such other date as nominated by the Principal;
(e)the father shall attend the playground outside M’s classroom at the commencement of the time;
(f)the father shall return M to the mother at the entry gate to the playground nearest the K Street Car Park at the end of the time;
(g)for the first two calendar months, the duration of the time shall be 30 minutes, and thereafter the duration of the time shall be 45 minutes or as otherwise agreed between the parents and the Principal;
(h)The mother and father shall do all acts and things necessary to encourage and facilitate M spending time with his father including but not limited to:
(i)working with the Principal to create and implement a transition plan/social story about M spending time with his father;
(ii)speaking positively with M and in his presence about the transition plan/social story;
(iii)providing the Principal with photographs or other resources reasonably requested by him for the purpose of any transition plans/social stories for M;
(i)The mother and the father shall each:
(i)Contact the Principal by 2.30 pm on the third school day following the making of these orders; and
(ii)Arrange an appointment for preparation of a transition plan/social story;
(iii)Attend any appointments made with the Principal;
(iv)Comply with any appointments made by the Principal for time;
(v)Comply with all reasonable rules of the school; and
(vi)Comply with all reasonably requests or directions of N School staff and Principal.
In the event that the Principal offers to facilitate time between the father and M only at times which are less regular than specified in these orders then time will be spent at the times which are nominated by the Principal.
The father shall not attend the school or its vicinity before the time with M is to start and shall promptly leave the school and the vicinity when his time with M is ended.
The mother shall not attend the school or its vicinity before the time she is to collect M, and shall promptly leave the school and vicinity after collecting M.
The period of time to be spent provided for in these orders may vary by reason of the closure of school such as for school and public holiday periods, and in such event, time will be spent at times when the school can facilitate the time.

WHILE THE FATHER IS LIVING OUTSIDE OF BRISBANE (CURRENTLY IN UNITED KINGDOM)

While the father is living outside of Brisbane the children shall spend time with the father in accordance with paragraphs 40 to 42 of these parenting orders.
The children shall spend time with the father on the conditions that:
(a)he provides to the mother at least 28 days’ notice in writing of his intention to travel to Brisbane, and the duration of his stay (up to 28 days); and
(b) prior to spending time with the children (other than M at school), he provides to the mother in writing the address where he will be staying while in Brisbane; and
(c) these provisions shall apply for periods up to 28 days in duration, and occur on no more than five times per calendar year.

Y

Subject to paragraph 40 of these parenting orders, Y shall spend time with the Father:
(a)during school terms each Saturday from 1.00 pm to 5.00 pm, and each Sunday from 1.00 pm to 5.00 pm;
(b) during school holidays each Saturday, Sunday, Monday and Tuesday from 1.00 pm to 5.00 pm during the first week, and from 9.00 am to 5.00 pm in the second and subsequent weeks.

On the condition that the father provides to the Principal of N School at least 28 days’ notice in writing of his request to do so, and provides a copy of that request to the mother, M shall spend time with the father in accordance with paragraph 29 of these orders and on the conditions set out in paragraphs 34 to 38 of these orders.

Interpretation

For the purpose of all of these orders, “school terms” shall mean the Queensland Gazetted school terms, and “school holidays” shall mean the Queensland Gazetted school holidays.
The Independent Children’s Lawyer is discharged.

NOTATION:
A.If within two years of the making of these orders, either parent applies for a parenting order in relation to either child, it is requested that the matter be listed before his Honour Justice Forrest if at all practicable.
B.If a contravention application is filed in relation to these orders, it is requested that the matter be listed before his Honour Justice Forrest if at all practicable.
Property Adjustment

All of the father’s right title and interest in the following property is hereby transferred to the mother and the mother shall retain these as her sole property absolutely:
(i) The two German motor cars currently in her possession; and
(ii) All the furniture, chattels and other items of personal property currently in her possession;
(iii) Any monies in bank accounts in her name.
All of the mother’s right, title and interest in the following property is hereby transferred to the father and the father shall retain these as his sole property absolutely:
(i)All the furniture, chattels and other items of personal property currently in his possession;
(ii)Any monies in bank accounts in his name.
The mother shall pay the father the sum of $19,000 being the total amount he paid to R Children’s Contact Service in payment for the supervision of his time with the child, Y, but same shall be paid by the mother by way of deduction by $19,000 in the amount she will receive from the monies currently held on trust for the mother and the father pursuant to these property adjustment Orders and an increase by $19,000 in the amount the father will receive from those monies.
By way of property adjustment and further adjustment in compliance with the previous Order, the mother and the father shall take all steps necessary to jointly authorise the solicitors currently holding the net proceeds of sale of their former jointly owned real property on trust for them to pay to the mother or at her direction the sum of $194,009.31 plus 65 per cent of any interest earned on the principal sum invested since it was invested and to pay the balance of the principal sum invested and any interest earned to the father or at his direction.
Pursuant to s 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the father’s (Mr Worth) interest in the Sunsuper Superannuation Fund, the mother (Ms Worth) shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $36,586.06 (thirty six thousand five hundred and eighty six dollars and six cents) and that there be a corresponding reduction to the entitlement the father would have had in the Sunsuper Superannuation Fund but for this Order.
Paragraph 49 binds the Trustee of the Sunsuper Superannuation Fund and that Order takes effect from the operative time being the fourth business day after the date of service of a sealed copy of these Orders upon the Trustee of the Fund.
Each party and the Trustee of the Fund has liberty to apply on not less than three (3) business days’ notice, in respect to the implementation of the super splitting orders.
Other than as provided herein, the father shall retain his superannuation interests solely and the mother shall retain her superannuation interests solely.
The mother shall indemnify and shall keep the father indemnified against any liability in respect of any and all debts in her name.
The father shall indemnify and shall keep the mother indemnified against any liability in respect of any and all debts in his name.

Costs of the Contravention Proceedings

The mother shall also pay the father’s costs of and incidental to the filing and prosecution of his contravention application filed 7 September 2015 on a party and party basis as agreed or as assessed pursuant to the Family Law Rules 2004.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Worth & Worth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1771 of 2014

Ms Worth

Applicant

And

Mr Worth

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr and Ms Worth have two children who are eight and six years old. Since the former married couple separated in September 2013, they have been in high conflict about their co-parenting of these two children. At the same time, they have been unable to agree on a finalisation of their financial affairs and an adjustment of their interests in property and superannuation. These matters are now to be determined by this Court at the conclusion of a seven day trial, just completed a few weeks ago.
As well as being required to determine the proper parenting orders and the appropriate property adjustment orders to make, the Court also heard an application by Mr Worth for Ms Worth to be found to have contravened certain interim parenting orders. Ms Worth denied that she contravened those orders as alleged and said that whilst she did contravene some other part of the orders she did so with such motivation that she would not be found to have contravened the orders without reasonable excuse.
The mother, the applicant in the parenting and property proceedings, was represented from shortly after separation from the father by the same solicitor who instructed experienced counsel for her at the trial. The father had been represented by a number of different solicitors over the time since separation, but was without legal representation at the trial. There was an Independent Children’s Lawyer (“ICL”) in the proceedings from soon after they were commenced and she was also represented at the trial by counsel.

The Essence of the Parenting Dispute

The mother and father separated in tumultuous circumstances and their relationship and communication has not improved at all in the three and a half years that have since elapsed. Little trust and mutual respect exists between them. It is unsurprising, in such circumstances, particularly where the father has been without legal representation for the last year, that so many issues are required to be determined by the Court.
For much of the time that the proceedings have been pending in the Court, the mother maintained that the children, who have both lived with her since separation, should not spend any time with the father. Her actions throughout the years since separation have reflected, I am satisfied, true commitment and determination to achieve that end. On the other hand, the father has continued to press the mother for time with the two children. His persistence paid off early in the proceedings when he obtained orders from, first, the Federal Circuit Court, then this Court for the children to spend time with him over the mother’s strong opposition. However, as is so often the case in such circumstances, things did not progress smoothly, and at the end of 2015 the father returned to the United Kingdom (from where he originates) and remained there, returning intermittently over the last year for events in these proceedings and ultimately for the trial. That absence from the lives of the children did not make his cause any easier for him.
The father came to the trial seeking orders that the two children live with him. He also wanted to be permitted to return to the UK with the children where they would stay for nine months without any contact with the mother. He said he would then return with the children to live in Australia and they would then start to spend time with the mother on a supervised basis, before gradually building to regular and frequent unsupervised time in her care.
Just prior to, and at the trial, the mother presented a less rigid view of the benefit to the children of spending time with their father than she had previously been espousing. She proposed that they now begin spending regular time with him, particularly if he returns to live in Australia.
I announced at the end of the second day of the trial that I had determined, pursuant to s 69ZR (1) of the Family Law Act 1975 (“the Act”), that I would not be making an order that allowed the father to take the two children from Australia to live with him in the UK. Consequently, the father, though somewhat reluctantly, modified his position and ultimately sought orders, prefaced on his stated planned return to live in Australia again in or about one month’s time. He asked for orders providing for six year old Y to live with him from that time on and to spend time with her mother and for 8 year old M to live with the mother and to spend time with him.

My Decision in the Parenting Proceedings

As I made clear to the father during the trial, I am satisfied that it is not in the best interests of the two children to separate them in their day to day living arrangements. I will not be making orders that permit that. Ultimately, despite concerns I have about the mother’s attitude towards the merit of facilitating relationships between the children and the father, I am satisfied that it is in the children’s best interests that they remain living with the mother. However, I am also satisfied that unambiguous orders must be made for these children to spend time and communicate with their father, whether he lives in the UK or in Australia.
I am also satisfied that the mother did contravene some of the interim parenting orders as alleged, without reasonable excuse, and I will discuss that further in these reasons. Both the mother and the father need to be aware that strict compliance with the parenting orders that are made by the Court is expected of them. As final as these parenting orders will be, it has to be understood that ongoing defiance of them could easily result in renewed consideration of just what it is that the best interests of the children demand in terms of their parenting.

Some Background

The father was born in the United Kingdom in 1974. He is now 42 years old and is a professional with post-graduate university qualifications.
The mother was born in New South Wales in 1978. She is 39 years old. She is also a professional with university degree qualifications.
The former couple met in Middle East in 2003 where they were both working at the time. They commenced a relationship and began living together around the end of 2004, marrying in 2005, just before the mother returned to live in Australia to complete her degree.
The father did not move to Australia until 2006 because of the needs to fulfil his work obligations in the Middle East and to obtain an Australian visa. I am satisfied that he came to Australia to live in April that year and the couple lived together from then until their separation in mid-September 2013.
The mother completed her degree at the end of 2006 and began working in her profession at that time. She had been doing some work as a paid carer whilst studying. The father obtained employment in his profession upon his arrival in Brisbane. He also obtained Australian citizenship soon after.

A Pre-Nuptial Agreement

In January 2005, in the British Embassy in Muscat, Oman, the father and the mother each signed a document described as a Pre-Nuptial Agreement. It attached a list of assets said to be the father’s at that time. Included in that list were the following:
·     A residential property in City T in the UK;
·     An investment in a fund known as LL account number …14;
·     A pension with W;
·     A pension with X Finance member number …05;
·     A UK Government Pension;
·     An Account with V Finance with a balance of 22,000 British Pounds;
·     A deposit paid on a property in Suburb U, Brisbane of AUS$51,000.
No greater detail, such as the then current values of his pension entitlements, was included. The document included a page such as this for the mother, but it listed no assets.
The father adduced that document into evidence. In doing so, he quite correctly did not assert that the operative terms of the pre-nuptial agreement are binding in any way on the mother, or that this Court is prevented from making property adjustment orders by its terms. He submitted it is only relevant to the determination of the property interests he owned at the commencement of the relationship with the mother. I accept that and shall return to this subject matter when I move to the determination of the property adjustment orders in the matter later in these reasons.

Some relevant history

The father and the mother did not complete the purchase of the Suburb U property, but rather used the deposit paid on that property to purchase a property in Suburb Y in Brisbane in 2006. It was purchased for $335,000. They took up residence in that property after purchasing it and lived in it until 2010. The father undertook improvements to the Suburb Y property during their ownership of it. It was sold in mid-2010 for $510,000.
Their first child, M, was born in 2008. The mother ceased working full-time when M was born and took maternity leave.
In April 2010, they purchased land at Suburb Z in the northern suburbs of Brisbane and had a house constructed on the land, with construction commencing in October 2010.
Their second child, Y, was born in 2011. Later that year, the family took up residence in the Suburb Z property and after its occupation, garden landscaping and some additional construction work was undertaken at the property, much of it being done by the father.
The mother and the father borrowed money from a bank to assist in paying for the land and the construction of the house on that land and provided security for the loan in the form of a mortgage over the property. At the same time, they also had money invested in an interest bearing account with the interest earned on that being offset against the interest payable on the home mortgage.
In the years after arriving in Australia, the father transferred his UK pension entitlements to his Australian superannuation fund and redeemed his other UK investments and transferred the proceeds to Australia. He also sold his real property in City T and transferred the net proceeds of sale to Australia.
During their marriage, the parties also acquired two motor cars that remain, to this day, in the possession of the mother. They also purchased furniture and household goods for furnishing the family home.
In 2008, the mother’s parents separated. The mother’s father had a life insurance policy that the mother asserted she thought he had for six or seven years already at that time. Apparently, the mother’s father had some health troubles and was not thought to have a long life expectancy. The mother spoke with her father at the time and they agreed that the ownership of that insurance policy (and with it the right to be paid the benefit on the death of the insured) be transferred to the mother and her brother in return for them paying the premiums on an ongoing basis. When they took over the policy, the premium, paid monthly, was about $800 per month and the mother began paying half of that from family funds. In December 2009, the mother’s brother was unable to keep paying his half share of the premiums and the mother and her brother agreed that the mother would pay all of the monthly premiums from that time with there to be an adjustment made in her favour out of her brother’s share of a payout on the father’s death to repay her for the additional share of premiums she paid. Over a relatively short period of time, the monthly premium payments went up to $1,800. This amount was being paid out of the joint finances of the mother and the father.
The mother’s father died in 2012 and the insurance company paid out on the life insurance policy over his life, as anticipated. The payout did not fall into the mother’s father’s estate, but rather went to the mother and her brother. In accordance with their agreement about the reimbursement of premiums paid by the mother, there was an adjustment to the agreed equal division and the mother received $318,000 with her brother receiving $268,000. The mother contributed that amount to the family’s finances by depositing it into the mortgage offset investment account.
In or around 2010, when M was around two years old, he was diagnosed as autistic. There is no dispute that he is at the high end of the autism scale and is quite seriously disabled as a consequence, requiring high levels of care and attention on an ongoing basis. Perhaps one of the other most relevant aspects of his condition, at least according to the opinion of the medical experts, which I accept, is M’s inability to form emotional attachments to people around him, even his immediate family members. I will discuss this further later in these reasons.
In September 2011, the mother and M were involved in a car accident whilst driving on the AA Street just north of Brisbane. The mother’s car was struck by another car and she was forced off the road, suffering injuries in the accident. The driver of the other car failed to stop and fled the scene. The mother and M, who was in the back seat at the time, were taken to hospital for treatment. Subsequently, the mother commenced legal action against the Nominal Defendant to recover damages. That action remained on foot at the time of the separation of the mother and the father in September 2013.
Although she had been injured in the 2011 accident, the mother returned to work on a casual, intermittent basis after the second child, Y, was old enough for her to do so. Both children were sometimes left at home in the care of the father at times when the mother went to work. The family also had the assistance of the maternal grandmother in caring for the two children. The boy, M, was in the care of paediatrician, Dr S, for his autism and an additional intellectual disability he has also been assessed as having, from 2010. He attended at a specialist educational/developmental facility for autistic children operated by a non-profit organisation devoted to the assistance of families with autistic children, before later starting at a Special School on Brisbane’s north side.
The couple began experiencing serious relationship troubles and these deepened in 2012 and into 2013. Those troubles spilled over into their parenting relationship as well, with disputes emerging between them about parenting issues.
In August 2013, the family went to the Brisbane Exhibition. That day they had a crisis and conflict developed. It worsened after they arrived home that day. Police were called and attended at the home.
I am satisfied that both the father and the mother reverted to increased consumption of alcohol to help cope with the stress they were suffering up to and around this time and that such increased alcohol consumption probably contributed to their ongoing problems. I do not find that one was any more blameworthy or affected thereby than the other, though the father self-reported increased use, whilst the mother did not. It is not uncommon for abuse of alcohol to occur when individuals are dealing with unprecedented stress in their lives. Quite apart from their relationship difficulties, these parents had a lot more challenges to deal with than many parents do. To his credit, the father began attending Alcoholics Anonymous in February 2014, though denying that he had alcohol dependency. He still attends on a weekly basis and has not consumed alcohol for three years.
In September 2013, the mother left the Suburb Z property and took the two children with her. At the same time, she withdrew $50,000 from their mortgage offset investment account and transferred it into an account of her own. She said she did that to ensure that she had sufficient funds for their accommodation and needs.
An application for a protection order was later made on behalf of the mother by the police. The father consented to protection orders being made against him in the Magistrates Court without any admission as to the allegations of fact upon which the orders were sought.
The father, who was still living in the former family home, then sought to list the property for sale so as to put a property settlement in train. Soon thereafter, in November 2013, the mother returned to the property with her brother, a friend of his and the child, M, in her company. That was a Saturday morning when some real estate agents were at the house to carry out an inspection and an appraisal at the father’s request. More conflict, including physical altercations, occurred on that occasion. Police were called and attended at the home again. The father was arrested and taken away by the police. The mother subsequently attended hospital and sought medical treatment for herself and the child, M. The father also subsequently sought medical attention for an injured eye.
The police took no further action against the father. They did not charge him with breaching the existing protection order. Police Service records adduced in evidence reflect that after interviewing the father and the real estate agents who were present on the day, police formed the opinion that it was the mother, her brother and his friend who instigated the conflict and altercations on the day.
At around this time, the mother retained her solicitor who began communicating on her behalf with the father. The father was seeking to spend some time with his children, and the mother, through her solicitor, was denying him any such time, asserting that his violence towards her and the children was the reason he could not have any time with them. It is agreed that the mother did let the father see the child, M, once at the court house when they were there for the protection order application.
The mother subsequently brought her own application in the Magistrates Court to vary the existing protection order previously consented to by the father. As part of that variation, she sought an order that the father vacate the home so that she and the children could move back into it. The father opposed such variation. The mother’s application for those variation orders to be made on an interim basis was refused by a Magistrate and the hearing was eventually set down for a day in March 2014. All through this time, the father was pressing to see the children, asserting that there was no legal reason why they should not be able to spend time with him. Such requests were steadfastly rebuffed by the mother, through her solicitor.
Remarkably, given that she was legally represented by an experienced family law solicitor, in late 2013, the mother herself made an application for a Justice’s Examination Order under the Mental Health Act 2000 (Qld) for the father to be involuntarily psychiatrically examined. They are, of course, applications that are made on an ex parte basis. The mother’s application was made by her at the BB Town Magistrate’s Court. It was refused. In January 2014, the mother made another such application at the CC Town Magistrate’s Court. Such orders were made that time. The mother sent the father a text informing him that he should expect to be involuntarily examined by a team who would come to the home and break the door down if necessary. She insensitively advised him that he should open the door for them as she did not want to have to pay for a new door.
Having been made aware of the existence of the examination order, the father voluntarily presented himself to the DD Hospital in the northern suburbs of Brisbane where he was psychiatrically examined with no adverse outcome. This is despite the fact that the father’s evidence is that he was diagnosed in 2013, following the separation, with “situational dependent adjustment disorder with anxiety and depressed moods.”
I have no doubt that in some cases the use of the Justices Examination Order procedure is an abuse of that process and amounts to an act of family violence of itself. I am satisfied that it was such an abuse in this case.
In February 2014, the mother commenced proceedings in the Federal Circuit Court here in Brisbane. She filed a ‘Notice of Child Abuse, Family Violence, or Risk of Family Violence’ alleging the father had been violent towards her in the presence of the children and also violent towards the children. Her allegations of fact contained in that Notice were the same ones upon which she relied to found her protection order application in the Magistrates Court and the same ones upon which she was relying to found her application to vary the terms of the protection order that had been set down for hearing in March that year. She sought interim and final parenting orders giving her sole parental responsibility for the children and orders that they only spend such time with the father as she agreed to.
The trial of the mother’s application to vary the protection order commenced in 2014. The father appeared without legal representation, opposing the mother’s application and denying her allegations that he had been violent towards her and the children. The mother was represented by her solicitor, Mr Rosen. The hearing went for three days in total but they were not consecutive days. It was finally concluded on 14 May 2014, with judgment reserved.
Around the time that hearing was being finalised and after the mother had commenced these proceedings in the Federal Circuit Court, the father, who was still being denied time with the children, requested that he at least have some time with the children even if it was supervised at R, a private, commercially operated children’s contact service in Brisbane.
The matter first came before Federal Circuit Judge Cassidy on 12 May 2014, and she made certain orders, including for the appointment of an ICL, and the preparation of a Memorandum by a Family Consultant after a Child Inclusive Conference. The matter was then adjourned to a further interim hearing on 1 July 2014.
That Family Consultant’s Memorandum was prepared. Soon after and just prior to the 1 July hearing before Judge Cassidy, the mother agreed to permit the child, Y, to spend time with the father in the supervised setting offered by R. The first such supervised visit took place on Sunday, 22 June 2014, paid for by the father.
In 2014, judgment was delivered in the Magistrates Court protection order proceedings. The Magistrate dismissed the mother’s application for variation of the existing protection order and actually discharged the existing order. The judgment was adduced into evidence in the proceedings in this Court, as was the transcript of the entire proceedings in the Court. The transcript was admitted pursuant to s 69ZX(3) of the Act. Critically, the Magistrate did not accept the evidence of the mother. Indeed, it was that the mother had deliberately lied to gain advantage over the father in the parenting dispute. Some of the Magistrate’s most critical findings were:
[121] …I find that the allegations of child abuse made by [the mother] against [the father] are entirely without substance. I find her orchestration of the confrontation on 9 November, 2013, cogent evidence of a clear intent to have [the father] removed from his home by police to enable her to remove her belongings and the children’s belongings …
[122] I reject the evidence of [the mother] that she is fearful of [the father] and note that the contentions concerning the lack of relationship between [the father] and his children are again a clear indication of her intention to prevent [the father] having access to his children.
…
[124] … I find that [the mother] demonstrated a cavalier disregard for the truth and sought to embellish her account to external agencies to garner sympathy and obtain a strategic advantage over [the father] which she would use in the contested proceedings in the Federal Court (sic).
[125] … I find that [the mother] has invented grandiose fictions about alleged conduct of [the father] to achieve her objective of denying him access to their children.
The admissibility of this judgment and the transcript of the proceedings had been the subject of considerable disagreement and argument between the mother and the father in the proceedings in the FCC and then in this Court. So too, the use to which those documents could be put.
Ultimately though, during the process of readying and listing the matter for trial before me, counsel for the mother conceded that the findings of the Magistrate on the disputed issues of fact were binding on the mother and the father in these proceedings. Counsel informed the Court that the mother could not and would not seek to revisit them in the proceedings in this Court. With respect, that was a sensible concession in my view. Consequently, after determining that those documents would be admitted into evidence in these proceedings, I struck out many parts of an affidavit of evidence in chief of the mother filed in these proceedings in which she deposed to those factual matters that had already been the subject of the Magistrate’s determination. Then, at the commencement of the trial, the Court was informed that the mother did not read and rely on any of the content of that affidavit in the trial, in any event.
Section 69ZX(3)(b) of the Act empowers this Court to adopt any “… finding, decision or judgment” of the Magistrate’s Court. The protection order proceedings were between the mother and the father. Critical factual issues alleged by the mother as supporting her Notice of Abuse filed in the Federal Circuit Court and her position that the children’s best interests were served by not being permitted to spend time with the father were determined by the Magistrate after a three day hearing in which the mother was represented by an experienced solicitor and the father was unrepresented. Other witnesses were relied upon by the mother and the father. They were cross-examined. Findings were made by the Magistrate about their credibility and those findings also influenced the Magistrate’s assessment of the credibility of the mother and the father. There was no appeal against the decision of the Magistrate.

The mother’s counsel challenged the father in cross-examination and, on instructions, put to the father that he was not telling the truth in respect of all of his evidence contained in paragraph 193 of his affidavit filed 20 October 2015. It was suggested to the father that he had made up the figures that were included therein.
The father was able to produce and adduce into evidence in re-examination documents that proved some of the assertions contained in paragraph 193 to be entirely correct. The suggestion that he had simply made those figures up was clearly incorrect. As such, I accept the truth of all of the father’s evidence in paragraph 193.
The father’s W pension was transferred into his Sunsuper account in Australia in March 2008. It came in at AUD$5,530. I accept that to be a direct financial contribution by the father to the property of the parties.
The father’s X pension was transferred into his Sunsuper account in Australia in November 2001. It came in at AUD$13,677. I accept that to be a direct financial contribution by the father to the property of the parties.
The father’s evidence was that the V Finance account balance at January 2015 was worth AUD$54,240. The mother said in cross-examination that she thought that the deposit of AUD$51,000 paid on the Suburb U property was the V Finance money. The father told the Court that they were two separate amounts. That is certainly how they were represented in the Pre-Nuptial Agreement that the mother signed at the time. She gave no evidence to explain why she might have signed the document that represented those to be two different amounts if she actually thought they were the same amount of money. I consider her evidence about that to be contrived to attempt to reduce the father’s direct financial contribution at the commencement of their relationship.
Those amounts equal a total of $344,753 contributed directly by the father to the property of the parties at the start or in the early years after his marriage to the mother.
The father submitted to me that I would assess and determine the respective contributions of him and the mother to the point of the trial to be reflected by a notional 80-20 division in his favour.
The mother’s counsel submitted that I would assess them and determine them to the point of trial to be reflected by a notional 60-40 division in favour of the mother.

Findings and Consideration

Each of the mother and the father made conflicting claims about the extent of their contributions during the course of their marriage. I am quite satisfied that each exaggerated their respective claims and minimised the contributions of the other. However, I consider the mother particularly deliberately minimised and downplayed the father’s contributions, particularly his parenting contributions and his contributions towards the well-being of the family.
Putting aside for the moment, the direct financial contributions made by the father that were brought in from outside of the marriage in the form of his interests in property and pension funds and his cash savings that he had at the commencement of the relationship, and putting aside the money paid to the mother by the life insurance policy on her father’s life that she took over in 2008, I am quite satisfied that after they married, the father and the mother each contributed to their relationship and to the acquisition, conservation and improvement of their property to their best of their abilities and in ways such that it would be reasonable to consider that they contributed equally up until the point of their separation in September 2013.
The mother’s counsel submitted that I would also consider that the contribution the mother made by the receipt and contribution of the money from her father’s life insurance policy should be considered to equally balance out the father’s direct financial contributions at the commencement of the relationship. With respect, I do not accept that submission.
$318,000 was received on that policy in 2012, only one year before separation. The father’s direct contributions, which came in during the early years of the marriage, totalled around $345,000. In addition, I am satisfied that the father made direct financial contributions to the receipt of the life insurance payment and that it was not just a contribution made on behalf of the mother. I do not accept the father’s submission that his contribution to the receipt of the insurance money should be treated as equal to the mother’s contribution though.
In my judgment, the fact that the life insurance policy was the policy of the mother’s father makes it more probable than not that it only became available to the mother and the father for the mother to take over because she was the daughter of the man over whose life the policy was taken in the first place and because he permitted it. In that sense, I consider that it should principally be regarded like an inheritance or a gift from one spouse’s family, as a contribution made on that spouse’s behalf, but with regard had to the contribution the father made by the payment of substantial monthly premiums from family funds between 2008 to 2012.
Considering these matters, I would assess all the contributions made by each of the mother and the father to the point of separation in September 2013, to favour the father as to a 60-40 division.
From separation to the time of trial, there are many contributions issues to consider. The father paid for the construction of the fence from his income. He also paid off the credit card on which the mother had purchased some electronic items without his consent after separation, which she retained for herself. The mother also withdrew and used $50,000 from their mortgage offset account for her re-accommodation and living expenses, but with some $16,000 of that being spent on legal fees for the Magistrates Court proceedings that have been notionally added to the pool. The mother also had the benefit of $125,000 in personal injuries damages settlement monies received after separation, that she spent in that time. $75,000, I have notionally included in the “pool” already, but the other $50,000 the mother has had the sole benefit of. I am satisfied the father contributed indirectly to the receipt of those funds in a way that must be recognised and considered, albeit not to the same extent as the mother, given that some of the money she received was, she said, and I accept, for her future economic loss.
In the same period of time, the father continued to occupy their former family home and he let the mortgage payments be met from the mortgage offset account rather than paying them himself from his income. Payment from the mortgage offset account reduced the capital of the mother and the father by around $20,000. These are to be regarded as contributions made by the mother to the father’s well-being, unmatched by the father, save for some offsetting by contributions made by the father in the maintenance of the home, yard and gardens and in the preparation of the property for sale.
The mother made very substantial contributions to the practical and financial care of the two children in the years since separation and she did so, I am satisfied, without the proper levels of financial support from the father, particularly having regard to the income he has been earning over the last year in the UK.
The father himself, during his final submissions, conceded that the mother’s contributions in the post-separation period have exceeded his and that this must be recognised. Clearly, he is correct. Converting this assessment to percentage points is, of course, not a mathematical or accounting exercise. Doing the best I can, I would consider a 10 per cent swing in the 60-40 assessment back in favour of the mother, reflective of the equivalent of almost $70,000 having regard to the “pool”, to be appropriate recognition of the mother’s greater contributions during the post-separation years. That results in a notional 50-50 division at the end of the contributions assessment stage.

Adjustment having regard to the matters set out in s 79(4)(d) to (g), including the matters set out in s 75(2)

Relevant to this part of the assessment, the father submitted that I should find that the earning capacity of the mother is no less than his. I reject that submission.
The mother has returned to work. The father has continued to work. He said he intends to return to live and work in Brisbane and told the Court he had secured an interview for a position here before he left to return for the UK. He told the Court that he intended to return to Brisbane after a month back in the UK if he had access to some of the funds currently held in trust for the mother and the father. The orders I propose to make will ensure that he does have access to some of those funds as he hoped.
I am satisfied, on the evidence, that the father has a greater earning capacity than the mother does. I expect he should be able to obtain employment in his field in Brisbane within a reasonable period of time upon his decision to return here and that the income he is capable of being able to earn is greater than the income the mother is capable of earning. As a consequence, the father’s superannuation interest will grow in the future, faster and to a greater level than the mother’s superannuation interest.
The fact that the former couple organised their parenting responsibilities after they had two children such that the father continued with his career and the mother was not able to advance her own career to the same degree has also contributed to these differences.
I accept that on my parenting orders the mother will continue to have the principal responsibility for practically and financially supporting the two children. Although, the father will have more time with the children than he has had, and will probably pay more appropriate levels of child support in the future, most of the responsibility for the children will still fall on the mother.
On the contributions assessment, each of the mother and father would be entitled to just under $300,000 in property (including property already received) and superannuation interests.
Counsel for the mother submitted that a 15 per cent adjustment in favour of the mother for these matters in order to arrive at a just and equitable property adjustment was appropriate. The father conceded that was probably correct. After considering the matters that I am satisfied are relevant, I accept their submissions and assess a 15 per cent adjustment at this step of the determination to be appropriate.
Such an adjustment takes the assessment of the appropriate percentage division to 65/35 in favour of the mother. That is equal to $454,225.85/$244,583.15 in dollar terms as against the notional “pool”.

The Appropriate Orders

The mother already has the following:
·Partial property payment      $50,000
·Superannuation interest                   $34,680.48
·Two motor cars   $9,100 and $9,850
·Furniture and chattels   $10,000
·Legal fees paid                  $75,000 and $16,000
·Total   $204,630.48
Thus, the mother is entitled to receive a further $249,595.37 in cash and superannuation interests.
She has $34,680.68 in superannuation and the father has $107,853.
I am satisfied that as most of that total superannuation has been accumulated since the mother and the father commenced their relationship that justice and equity require a division of the superannuation of both parties in such a way that the father is not left holding most or an unjust proportion of his total entitlements in superannuation.
The total of the superannuation interests is $142,533.48. I consider that it would be appropriate for the mother to have as much superannuation as the father. That would be $71,266.74. That entitles the mother to receive a superannuation split of $36,586.06 from the father’s superannuation interest. That results in the mother being entitled to receive a further $213,009.31 from the money that is held for the father and the mother in trust with the father being entitled to the balance.
Taking into account the sum of $19,000 that I have determined the mother should pay to the father being the costs of the R supervision of his time with Y that really should not have been incurred, the mother will receive $194,009.31 from that money and the father will receive $137,400.53.
I will make orders that give effect to this determination, satisfied that they are appropriate and just and equitable.

I certify that the preceding three hundred and thirty-four (334) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 April 2017.

Associate:

Date: 13 April 2017

[2017] FamCA 227

13 April 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

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