Zang and Lai
[2009] FMCAfam 575
•14 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZANG & LAI | [2009] FMCAfam 575 |
| FAMILY LAW – Parenting – equal time or substantial and significant time – family report – property – dispute in relation to contributions in relation to property – wife’s support of husband’s education – s.75(2) factors. |
| Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65DAA, 65DAA(3), 65DAA(5), 75(2), 79(1), 79(2), 79(4) |
| In the Marriage of Hall (1979) 5 Fam LR 609 In the Marriage ofHickey (2003) 30 Fam LR 355 Monahan, G. and Young, L. (2006) Family Law in Australia (6th edition), Chatswood, New South Wales: Lexis Nexis, Butterworths, pp 498-499. |
| Applicant: | MR ZANG |
| Respondent: | MS LAI |
| File Number: | MLC 9002 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 29 January 2009 |
| Date of Last Submission: | 9 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 14 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swart |
| Solicitors for the Applicant: | Sharrock Pitman Legal |
| Counsel for the Respondent: | Ms Piggott |
| Solicitors for the Respondent: | Harry Singer & Associates |
ORDERS
Children
All previous parenting orders be discharged.
The husband and wife have equal shared parental responsibility for the children of the marriage; namely [X] born in 2001 (“[X]”) and [Y] born in 2004 (“[Y]”) (together referred to as “the children”).
Subject to Orders 4 and 5 herein, the children live with the wife.
The children spend time and communicate with the husband and wife as follows:
(4.1)(when the children are otherwise living with the wife), with the husband on each of the children’s birthdays at such times as agreed and failing agreement for a period of two hours (if a school day) and four hours (on a non-school day) with such times to commence as agreed and failing agreement, from
5.00 p.m. to 7.00 p.m. (if a school day) and from 10.00 a.m. to 2.00 p.m (if a non-school day);
(4.2)(when the children are otherwise in the care of the husband), with the wife on each of the children’s birthdays at such times as agreed and failing agreement for a period of two hours (if a school day) and four hours (on a non-school day) with such times to commence as agreed and failing agreement, from
5.00 p.m. to 7.00 p.m. (if a school day) and from 10.00 a.m. to 2.00 p.m (if a non-school day);
(4.3)From 12 noon Chinese New Year’s Eve to 12 noon Chinese New Year's Day with the wife in 2010 (and even-numbered years thereafter) and from 12 noon Chinese New Year's Eve to 12 noon Chinese New Year's Day with the husband in 2011 (and odd-numbered years thereafter);
(4.4)From 12 noon Christmas Eve to 12 noon Christmas day with the husband and 12 noon Christmas day to 12 noon Boxing Day with the wife in 2009 (and odd-numbered years thereafter) and from 12 noon Christmas Eve to 12 noon Christmas day with the wife and 12 noon Christmas day to 12 noon Boxing Day with the husband in 2010 (and even-numbered years thereafter);
(4.5)(when the children are otherwise living with the wife), with the husband by telephone on such days and at such times compatible with the children’s usual daily routine as agreed and failing agreement each Tuesday and Thursday between 7.30 p.m. and 8.00 p.m.;
(4.6)(when the children are otherwise in the care of the husband), with the wife by telephone on such days and at such times compatible with the children’s usual daily routine as agreed and failing agreement each Tuesday and Thursday between 7.30 p.m. and 8.00 p.m.; and
(4.7) on such further days and times as the parties agree.
Subject to Order 4 herein, the children spend time with the husband as follows:
(5.1)commencing 21 August 2009, each alternate weekend during school term from after school Thursday until before school Monday;
(5.2)commencing 13 November 2009, each alternate weekend during school term from after school Thursday until before school Tuesday;
(5.3)for one half of all school term holidays, with changeover to occur at 5.00 p.m. on the middle day of such holidays at times to be agreed, or in default of agreement, the first half in odd numbered years and in the second half in even numbered years with the commencement of such time in the first half being at 10.00 a.m. the day after school concludes and with the termination of such time in the second half being at 5.00 p.m. the day before school re-commences;
(5.4)for one half of the long summer vacation on a week about basis as agreed, or in default of agreement, the first week in odd numbered years and in the second week in even numbered years with the commencement of such time being at 10.00 a.m. the day after school concludes and with the termination of such time being at 5.00 p.m. the day before school re-commences;
(5.5)in the event that Father's Day falls on a Sunday when the children would ordinarily be living with the wife, the children spend time with the husband from 12 noon on Father's Day until before school the next day; and
(5.6)in the event that Mother's Day falls on a Sunday when the children would ordinarily be spending time with the husband, the children’s time with the husband will end at 12 noon on Mother's Day; and
(5.7) on such further dates and times as the parties agree.
In relation to the child [Y], any references to “school” in Orders 4 and 5 herein should be read as a reference to “day care” or “kindergarten” (until [Y] commences school in 2010).
In relation to all school term holidays and the long summer vacation, the husband and the wife provide each other in writing with details of their holiday care plans for the children well prior to the relevant holiday periods commencing (and subject to agreement to the contrary at least 14 days prior to the relevant holiday periods commencing). In addition, if either the husband or wife need to place the children in outside paid care for more than two consecutive days during the relevant holiday periods, then the other parent be given the first option of caring for the children on those days.
In the event that changeover occurs on a non-school day the wife will be responsible for delivering the children to the husband's home at the commencement of the husband's time and the husband will deliver the children to the wife's home at the conclusion of his time with the children.
The husband and the wife must:
(9.1)advise and keep the other advised of their current residential address and telephone number;
(9.2)advise and keep the other advised of any medical or health issue suffered or experienced by the children when the children are in his or her care;
(9.3)authorise the children's schools and kindergarten to provide school reports, photograph order forms, memoranda and like documents to the other;
(9.4)be entitled to attend school interviews, sports days and events which parents would normally attend; and
(9.5)keep one another informed about the children's activities, education and development. In this respect, the parties are to ensure that the children attend all agreed extracurricular activities scheduled during the time that the children are in their respective care.
Unless otherwise agreed in writing, the wife obtain and the parties maintain a communication book to travel with the children between the household of each parent.
The parties, their servants and agents be and are hereby restrained from denigrating or abusing the other to or in the presence or hearing of the children.
Each party participate forthwith in a post separation parenting program of their choosing.
Should the parties have difficulty resolving issues in relation to the children they will attend upon Family Dispute Resolution in an attempt to resolve those issues prior to issuing proceedings.
Property
Within thirty (30) days of the date of these Orders, the husband transfer to the wife at her expense all his right title and interest in the real property situate at Property V in the State of Victoria (“the former matrimonial home”).
Contemporaneously with the transfer of the former matrimonial home pursuant to Order 14 herein, the wife shall:
(15.1)cause the mortgage to Westpac bank secured over the former matrimonial home (“the mortgage”) to be discharged;
(15.2)indemnify the husband against all liability pursuant to the mortgage; and
(15.3)indemnify the husband against all rates, taxes and outgoings with respect to the former matrimonial home.
Pending the transfer of the former matrimonial home the wife have sole right to occupy the former matrimonial home, provided she pays all rates, taxes and outgoings thereon:
In the event that the wife is unable to secure the refinancing of the former matrimonial home (if applicable) pursuant to Order 15 herein within thirty (30) days of the date of these Orders, she shall have a further sixty (60) days in which to do so.
In the event that the wife is unable to secure the refinancing of the former matrimonial home (if applicable) pursuant to Order 15 herein within ninety (90) days of the date of these Orders, then the husband and wife make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the former matrimonial home and the reserve price be as agreed between the parties or, failing agreement, as nominated by the auctioneer agreed to by the parties, or failing agreement, as nominated by the Chief Executive Officer for the time being of the Real Estate Institute of Victoria, and upon completion of the sale, the net proceeds be applied:
(18.1) to discharge the mortgage;
(18.2)to pay any outstanding rates, taxes and outgoings owing in respect of the former matrimonial home;
(18.3)to pay all costs, commissions and expenses of the sale; and
(18.4) to pay the wife the remaining balance.
Within thirty (30) days the parties do all things necessary to withdraw the Term deposit funds held either jointly or in the husband's name, with such funds to be thereafter immediately divided as follows:
(19.1) to the wife $24,636.40; and
(19.2) to the husband the remaining balance.
Within sixty (60) days the parties do all things necessary to:
(20.1)wind up the family trust and associated companies, and to transfer to the husband 100% of the shares held by the family trust;
(20.2)wind up the joint self-managed super fund and to transfer to the husband 100% of the balance of the fund; and
(20.3)transfer the immigration bond in relation to the wife's parents (and in the amount of $14,000) to the wife.
The husband retain the following property free of any claim by the wife:
(21.1) the Camry motor vehicle;
(21.2) the Tattersall shares;
(21.3) the Telstra shares;
(21.4)(subject to Order 19 herein) any monies standing to his credit in any bank or financial institutions;
(21.5) all furnishings and household effects in his possession; and
(21.6)(subject to Order 20 herein) all his estate and interest in the following superannuation schemes:
(21.6.1) HESTA; and
(21.6.2) Unisuper.
The wife retain the following property free of any claim by the husband:
(22.1) the Mazda motor vehicle;
(22.2)(subject to Order 19 herein) any monies standing to her credit in any bank or financial institutions; and
(22.3) all furnishings and household effects in her possession;
The husband indemnify the wife with respect to all other debts and liabilities in the husband’s sole name.
The wife indemnify the husband with respect to:
(24.1)any liability due to the Commonwealth of Australia in respect of her parents’ migration; and
(24.2)all other debts and liabilities in the wife’s sole name.
All extant applications be otherwise dismissed.
AND THE COURT NOTES:
A.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Zang & Lai is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9002 of 2008
| MR ZANG |
Applicant
And
| MS LAI |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant husband is Dr Zang born in 1969 (“the husband”). The respondent wife is Ms Lai born in 1966 (“the wife”). The parties were married in 1996, following five years of cohabitation. There are two children of the marriage; [X] born in 2001 (“[X]”) and [Y] born in 2004 (“[Y]”) (together referred to as “the children”).
In summary, the husband is seeking orders for an equal time parenting arrangement and a division of matrimonial property 55% in his favour. The husband’s application is opposed by the wife, who seeks different parenting and property orders. In summary, the wife is seeking orders that the children live with her and spend substantial and significant time with the husband and a property division 70% in her favour.
By his Application filed on 2 October 2008 the husband sought the following final orders:
“1. That the applicant husband and respondent wife share equal parental responsibility for the children [X] (“[X]”) born in 2001 and [Y] (“[Y]”) born in 2004 (collectively “the children”).
2. That the husband and the wife have shared care of the children and that the children live with the husband for seven days in each fortnight and they live with the wife for seven days in each fortnight.
3. That the husband be excused from further particularising the property orders he is seeking until the wife has made full disclosure of all the assets and liabilities of the parties.”
By her Response filed 25 November 2008, the wife sought the following final orders:
“1. That the Applicant Husband and the Respondent Wife share equal parental responsibility for the children [X] (“[X]) born in 2001 and [Y] “[Y]”) born in 2004 (“the children”).
2. That the children live with the Wife and spend time with the Husband as this Honourable Court deems appropriate.
3. That the Wife specifies the property orders sought after disclosure, discovery and valuation of the parties’ assets and liabilities.”
The matter came before his Honour Federal Magistrate Walters on
10 November 2008and on that occasion his Honour made various consent orders, including:
“2. The wife file and serve her Response and Affidavit within 14 days of the date of these orders.
3. The parties exchange all financial documents within 30 days, and the wife provide to the husband’s solicitors all documentation requested in paragraph 10 of the husband’s Application.
4. Within 14 days, the parties agree upon a valuation of the wife’s business and failing agreement, the parties appoint a duly qualified business valuer to provide a written valuation of the business within 30 days and the cost of that valuation will be equally borne by the parties.
5. The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on 21 January 2009 at 9.15 a.m.
6. The applicant husband and respondent wife have equal shared parental responsibility for the children [X] (“[X]”) born in 2001 and [Y] (“[Y]”) born in 2004 (collectively “the children”).
7. That until the trial date the children live with the husband as follows:
(a) in the first week of each two week cycle, from after school/child care on Friday to the commencement of school on Monday;
(b)in the second week of each two week cycle, each Thursday from after school/child care to 7.30 p.m.;
(c)during the Christmas school holidays from :
(d)12 noon on Christmas Day to 12 noon on 1 January 2009; and
(e) 10 a.m. on 10 January 2009 to 5 p.m. on 17 January 2009
8. Until further order, the children live with the respondent wife at all other times.
9. The parties jointly appoint a person registered by the Court, to prepare a Family Report to be released by 12 January 2009, and the cost of the report to be equally borne by the parties.
10. Within 14 days the wife do all things and all acts required to transfer the funds (being approximately $50,000.00), currently held in the name of the wife as trustee for the children (being the balance of the repayment of the loan to Ms L) into a bank account in the names of the parties (and advise the solicitors for the husband of the bank account details), to await further order of the Court.”
In addition his Honour made the following order:
“Until further order, the wife be restrained by injunction from withdrawing, paying, transferring or dealing in any way with the moneys currently in the account referred to in Paragraph 10 of these orders, save as required by the said paragraph.”
The parties subsequently agreed and attended upon Mr Trevor Holland for the preparation of a family report on 15 December 2008. This report is discussed shortly. On 21 January 2009 the parties attended before Registrar Riddiford for a Conciliation Conference but no agreement was reached.
The matter came on before me for hearing over 2 days commencing
29 January 2009, and as the matter was not completed in that time, the matter was further adjourned for final hearing on 9 April 2009. Both parties were legally represented at the hearing.
Background
The applicant husband was born in China and is currently aged
39 years. He arrived in Australia on 21 January 1989 and he is now an Australian citizen. He is currently employed [in the scientific industry] and resides in rented accommodation in [F]. The respondent wife was born in China and is currently aged 42 years. She arrived in Australia on 12 June 1989 and is now an Australian citizen. She is [employed in the financial industry] and runs her [financial] practice from the former matrimonial home at Property V where she resides with the children of the marriage and her elderly parents.
As previously mentioned, the parties commenced cohabitation in 1991 and married in Melbourne in 1996. There are two children of the marriage, namely, [X] aged 8 years and [Y] aged 4½ years. [X] is currently in grade two at [L] Primary School and [Y] attends a local childcare centre each weekday. [Y] commences school (i.e. his ‘prep’ year) in 2010.
The parties separated under the one roof in late 2007 and physically separated on 18 March 2008 when the husband left the former matrimonial home. Since separation neither party has formed any new relationship.
In March 2008 the wife initiated proceedings to seek an Intervention Order (“IVO”) against the husband. The IVO was returnable at Ringwood Magistrates Court on 4 April 2008, and on that occasion, following an undertaking given by the husband in terms of the application sought, the application was not proceeded with.
Proposals of the parties
In the husband’s Outline of Case document, handed up in Court on
29 January 2009but unfiled, he outlines his proposals in relation to the children:
“5. The Husband’s proposals in relation to the children
The parties have different approaches to parenting and in particular to the education of the children. The husband is concerned that the wife has developed an unrealistic schedule of activities for [X] and that he is suffering anxiety from the imposition of too many activities with insufficient time for play and relaxation.
He proposes that the children live with the parties on a “week about” basis. He submits that both children will benefit form spending substantial time with him as he has a more relaxed and interactive approach to parenting which will ease the stress that [X] is beginning to manifest.”
The husband elaborates upon his proposals for the children in paragraphs 1-9 of his “Minute of Orders sought by the Husband”, presented to the Court on 9 April 2009. In summary the husband is seeking:
·equal shared parental responsibility for the two children;
·a week about arrangement during the school term from the end of school Monday (or 5.00 pm if Monday is not a school attendance day) until the following Monday before the commencement of school; and
·one half of all school holidays (from 2010/2011) and other special days.
The husband’s proposals with respect to property, as stated in his Outline of Case document, are as follows:
“9. The Husband’s Proposal for Property Settlement
The Husband is willing to ‘buy out” the wife’s interest in
Property V, if the Wife does not wish to retain the property.
He proposes a division of 55/45 in his favour.”
The husband also proposes as part of the property settlement that the wife should:
“1. Take over the CBA Term Deposit bonds for her parents
2. Pay the husband $25,000.000 being his share of the non-refundable bond paid for her parents migration.
3. De-register [S]
4. Divide and de-register [A] Investments
5. Divide and de-register [A] Superannuation Fund.”[1]
[1] Husband’s Outline of Case document handed up in Court on 29 January 2009 (unfiled), page 4.
The husband further elaborates upon his proposals in relation to property in paragraphs 10-20 of his “Minute of Orders sought by the Husband”, presented to the Court on 9 April 2009. In summary, the husband is seeking that:
·The wife buy out his interest in the former matrimonial home (at Property V) for $98,300 (or that the property be sold if the wife does not do so within 60 days of the making of the orders);
·The parties wind up the family trust and associated companies and divide the shares equally;
·The parties wind up the self managed superannuation fund and divide up the balance equally;
·The wife transfer to the husband the value of the immigration bond lodged on behalf of her parents and remove the husband from any liability in relation to same;
·The husband retain the following property:
- his Tattersalls shares;
- Telstra shares;
- Westpac joint term deposit funds;
- balance of the Westpac classic plus joint account; and
- the Toyota Camry motor vehicle; and
· The wife retain her Mazda motor vehicle.
The husband also sought the return of some specific property but otherwise sought the usual order in respect of the parties retaining assets and liabilities in their current names and possession. In respect of the specific property sought by the husband, the Court notes that the parties entered into certain orders by consent on 9 April 2009 whereby it was agreed that:
“The wife deliver to the husband at 5pm Sunday 12 April 2009:
(i) his family ring
(ii) his family coin
(iii) the Chinese painting by friend of paternal grandfather
and the wife will endeavour to locate the family pendant and if found deliver to the husband forthwith.”
In her “Minute of Proposed Orders” presented to the Court on 9 April 2009, the wife sought various orders in respect of the children including that:
·the wife have sole parental responsibility for the two children;
·the children live with the wife;
·the children spend time with the husband:
- each alternate weekend from Thursday after school or day-care at 3.30 pm until before the commencement of school or day-care at 9.00 am on Monday in alternate weeks from the commencement of the gazetted term 2 in 2009;
- for five consecutive nights during school holidays in 2009;
- alternate weeks in the long summer vacation in 2009/2010;
- one half of all school holidays upon [Y] commencing school; and
- on other special days.
Interestingly, the wife also sought an order that both parties attend a post separation parenting course.
Today, the wife’s solicitors forwarded to my Chambers an e-mail (copied to the husband solicitors) enclosing an amended “Minute of Proposed Orders”, which added the following two additional clauses:
“12. The wife is to advise the husband of the details of any extra curricular activities that the children have been enrolled in and the husband ensure that the children attend those activities if they are scheduled during the time that the children are spending with him.
13. The parties be at liberty to communicate with the children whilst they are in the care of the other party by telephone, at a reasonable time given the children's routine, and no more than once each day, unless otherwise agreed between the parties.”
The wife’s “Minute of Proposed Orders” also detailed her proposals in relation to the property settlement. Based upon “an agreed asset pool” of $424,478.24[2], the wife sought “a percentage split of 70/30” in her favour and the retention of the following assets:
· Matrimonial home $196,000;
· Mazda motor vehicle $16,000;
· Joint self managed super $37,283;
· Tattersalls shares $1,400;
· Telstra shares $1,500; and
· Term deposit $50,000;
· TOTAL (69.5% of assets) $302,783.00
[2] Court Exhibit A.
The family report
An affidavit of the Family Consultant Trevor Holland sworn on
27 January 2009was filed on behalf of both parties in Court on
29 January 2009. Mr Holland annexes a copy of his family report to his said affidavit (being exhibit “TH1”). Mr Holland was also cross-examined by both parties.
As previously indicated, Mr Holland conducted his interviews with the parties (together with their children) on 15 December 2008. At pages
1 and 2 of his report, Mr Holland identifies the issues in dispute:
“ …The children currently live with their mother Ms Lai; and spend time with their father Mr Zang each alternate weekend Friday pm to Monday am, and each alternate Thursday from after school to 7.30 pm.
Mr Zang is seeking a week about shared care arrangement he maintains that he has been the primary care giver to the children while Ms Lai was busy establishing her [financial] business. He states that they fundamentally disagree on the parenting of the children, and believes that Ms Lai’s focus on the children’s education and extra curricular activities is exhausting and damaging to the children’s emotional development. Mr Zang feels that the week about arrangement will provide some respite to the children from these allegedly excessive routines.
Ms Lai is seeking for the children to live with her and spend time with Mr Zang each alternate weekend from Friday pm to Sunday pm, and for 4 weeks of school holiday time commensurate with Mr Zang’s leave entitlements. Ms Lai disputes Mr Zang’s assertion that he was the primary care giver to the children but agrees that they fundamentally disagree on the parenting of the children. Ms Lai believes the children would not cope with the disparity in the parenting styles and that a shared care arrangement would be disruptive for the children.
Ms Lai states that the current learning arrangements for [X] are to assist with learning and behavioural difficulties he experiences at school. She does not believe that they are detrimental or exhausting and feels that [X] responds well to the structure and has ample free time to relax and play with friends.”
Mr Holland describes his interview with the husband on pages 3 and 4 of his report. He also describes his observations of the husband with the children on page 6. It is clear from Mr Holland’s report that disputes have arisen between the parties over their different parenting styles, and in particular, the extra curricular activities that the wife has engaged [X] in.
Mr Holland describes his interview with the wife on pages 4 and 5 of his report and his observations. He also describes his observations of the wife with the children on page 6. In paragraphs 3 and 4 on page 4 of his report, Mr Holland states:
“Ms Lai denies that Mr Zang became increasingly involved in the care of the children, and states that he would not take a day off to care for them. This was her motivation for seeking the help of the maternal grandparents in 2001 and 2004. She alleges that
Mr Zang became increasingly abusive towards her parent’s (sic) and increasingly obsessive in his behaviour in particular around domestics issues.
Ms Lai acknowledges the programmes and extra curricular activities that [X] is enrolled in. She describes [X] as having behavioural and attention difficulties and believes that the structured extra curricular work in Kumon is helpful. She states that his swimming, acting, tennis and piano lessons are all recreational activities that [X] enjoys doing. Ms Lai states that she does not “push” [X] and that he has lots of non structured recreational time in which he plays with friends in the street and at home.”
Mr Holland describes his interviews with [X] on page 5 of his report as follows:
“Interview with [X] (age 7)
[X] presented as shy and somewhat confused by the context of the interview. He had poor eye contact, was monosyllabic in his answers, and appeared fidgety and distracted throughout the interview. He attends [L] Primary school and is in grade 1. [X] informed me he some times gets in to trouble at school for arguing and not sharing ‘with the other children. He described having friends but was unable to name them and could not remember the name of his counsellor.
[X] described his parents arguing a lot prior to the separation and identified [sic] the reduction in arguing as a positive aspect of the separation. He stated that he missed his father and would like to spend more time with him. When asked how much time he stated quite emphatically he would like to go to his father’s from Thursday to Monday.
We discussed [X]’s extracurricular activities and be also included golf in his list. [X] stated that he was always tired as a result of the numerous activities he does. [X] lost interest in the interview at this point and explored the room and the various toys and activities he did not answer any further questions and appeared absorbed in his play.”
Mr Holland describes his observations of [Y] on pages 5 and 6 of his report.
Mr Holland provides his evaluation in pages 7-9 of his report. On page 7, paragraphs 1-2 he states:
“Evaluation
Both parties identify the deterioration in the relationship beginning after the birth of [X] and accelerating after the birth of [Y]. It appears the parties fundamentally disagreed on the parenting approach to the children and the role of the maternal grandparents, and this has found its early expression in the disagreement over breastfeeding. Financial issues, gender roles, and career development also appear as underlying themes of conflict in the narratives’ [sic] of both the parties.
Both parties present as having a warm and intuitive rapport with the children, are child focused, and bring their established gender roles to their repertoire of parenting interaction. Mr Zang believes that Ms Lai has over committed [X] to a programme of extracurricular activities and has both children in an overregulated regime of care and activity generally. Ms Lai believes that [X]’s attention and learning difficulties require significant input and feels that [X] gains significantly both educationally and socially from his involvement in these activities.”
On page 7, paragraph 5 he states:
“Mr Zang is seeking a week about shared care arrangement and the lack of agreement around parenting values is critical to this discussion. The literature on shared care describes the prerequisite conditions for optimal out comes with this style of arrangement as: a high level of constructive communication and problem solving, alignment of parenting values, commitment by both parties to the concept, and the ability of both parties to keep any parental conflict encapsulated.”
On page 8, paragraph 2 he states:
“The children’s early developmental history and current developmental context are important considerations when considering the spending time arrangements for the children.
Ms Lai with the aid of the maternal grandparents appears to have had the early day to day care of both children, and her overall attendance on the children duning this period and through out strongly suggests that the primary attachment of both children is with Ms Lai.”
On page 8, paragraph 4 he states:
“…Both boys have a close and affectionate relationship with their father and [X] is asking to spend extra time with him. The sibling relationship appears warm and harmonious and this would be supportive of [Y] spending extra time with his father as well.”
On page 8, paragraph 5 (continuing into paragraph 1 of page 9)
Mr Holland states:
“Ms Lai’s proposal tends to focus on the need for continuity and consistency around the extra curricular activities and the philosophical differences in opinion as to the relevance of these. There is nothing in the material before me to suggest that
Mr Zang has undermined Ms Lai’s approach in the post separation period, and to some extent Ms Lai’s focus tends to underestimate the children’s attachment to Mr Zang. In this context it is recommended that [X] and [Y] spend time with
Mr Zang from Thursday pm to Monday am, and upon [Y] turning 5 in November 2009 the arrangement to be extended to Thursday pm to Tuesday am.”
On page 9, paragraphs 1-4 he states:
“This incremental approach leading to 5 nights each alternate weekend in November 2009 allows both parties to attend the post separation parenting course, the assessment of [X]’s difficulties and needs, and time for [Y] to developmentally mature further with out breaching his potential threshold for separation from
Ms Lai.
School holidays present as an opportunity to condition the children to extended breaks with Mr Zang leading up to the
5 night proposal in November 2009, and it is recommended that children spend 5 consecutive nights with Mr Zang on each of the term holidays in 2009, and thereafter half of all school holidays with the long summer break taken on a week about basis.
Ms Lai has understandable concerns about Mr Zang’s capacity to care for the children given the 4 weeks annual leave he is currently entitled to. It is an unfortunate fact of parental separation that single working parents frequently have to make care arrangements for their children during holiday periods in an effort to balance their work and parenting commitments. This applies to both parties and Ms Lai has the support of the maternal grandparents and is self employed in this regard.
It may be reasonable to apply a simple equation, and where the children are required to spend more than [sic] 2 consecutive day’s in outside child care in any one holiday week the non resident parent has the first option of caring for the children. Both parties would keep each other informed of the holiday arrangements for the children in writing prior to the holidays commencing.
Finally, Mr Holland makes the following recommendations on page 10 of his report:
“Recommendations
1. The children [X] and [Y] to live with Ms Lai.
2. The children to spend time with Mr Zang each alternate weekend from Thursday pm to Monday am, and from November 2009 Thursday pm to Tuesday am.
3. The children to spend holiday time with Mr Zang for
5 consecutive nights in each of the term holidays 2009, and thereafter for half of all school holidays with the long summer break of 2009 taken on a week about basis.
4. Where the children are required to spend more than 2 consecutive days in outside day care in any holiday period the non resident parent be given the first option of care. The parties to provide in writing their holiday care plans prior to the holidays commencing.
5. Mr Zang and Ms Lai to attend a post separation parenting course.
6. [X] to be assessed by a paediatric consultant with the input of his teacher and counsellor Dr G, and educational psych testing to be considered if appropriate.”
Developmental psychologist report
An affidavit from Dr G, educational psychologist, sworn on 27 January 2009 was filed on behalf of the husband on 29 January 2009. In her affidavit, Dr G indicates that she undertook an educational assessment of [X] on 22 January 2009. A copy of her assessment report was annexed to her affidavit as “MG1”. This affidavit was the subject of objection by the wife primarily due to its late filing and the unavailability of Dr G to be available for cross-examination. I determined that the affidavit should be allowed into evidence despite the unavailability of Dr G because it was directly relevant to one of the issues in dispute between the parties and moreover it was clear that the wife had consented to the assessment taking place. In any event, by the time the hearing resumed on 9 April 2009, the issues raised in respect of [X]’s extra curricular activities seemed to no longer be an issue of major dispute between the parties. This was due to the wife’s agreement to reduce the number of extra curricular activities that [X] presently undertook.
Dr G describes the education assessment of [X] in pages 1-4 of her report. Her interpretation comments appear on pages 4-5. She makes various recommendations on pages 5-6, including a “Discontinuation of extra-curricular academic programs” and “structured activities” for [X] until further assessment is conducted.
In her summary on page 6 of her report, Dr G states:
“[X] is a likeable 7 ½ boy about to go into Year 2. He is currently the subject of disputed care arrangements between his parents, who disagree on child-rearing practices. [X] is considered to be highly intelligent, but in fact has only average ability, and possibly some specific learning difficulties related to his language development.
In the belief that it will give [X] the best possible advantage,
Ms Lai had devised an intense routine of extra-curricular activities for [X]. However, it is likely that such a regime is in fact detrimental to [X], as he is developing signs of anxiety disorder, and is not showing the academic strengths part of his routine is intended to foster.”
Evidence of the parties
Both parties provided the Court with affidavit and oral evidence and were the subject of cross-examination by each other’s respective counsel.
The applicant husband’s evidence
The following documents and affidavits were relied upon by the husband:
· The husband’s application filed 2 October 2008;
·The husband’s affidavit sworn 18 September 2008 and filed 2 October 2008 (“his first affidavit”);
·The husband’s affidavit sworn 26 January 2009 and filed 28 January 2009 (“his second affidavit”);
·The husband’s financial statement sworn 26 January 2009 and filed 28 January 2009; and
·Outline of Case document handed up in Court on 29 January 2009 (unfiled).
At paragraph 4 of the husband’s first affidavit he states:
“I was born [in] 1969 in Shanghai, China. I arrived in Australia on 21 January 1989 to study English and later science. I am now an Australian citizen. I completed my undergraduate studies at [S] University in 1995 and then received a scholarship to complete a five year PhD at [M] University. I commenced working in 2001 [in the scientific industry].”
The husband details his proposals for the care of the two children in paragraphs 21-23 of his first affidavit. At paragraph 24 he states:
“My hours of work are from 9am to 5pm. I have a very understanding employer who will allow me to work more flexible hours if necessary. There is a “before and after school care” program at [X]’s school and [Y]’s carers are happy to have him from 8am to 6pm. I propose that when the children are with me I will collect them from after care on Friday and Mondays and deliver them to before school care on Monday and Tuesdays.”
The husband outlines his evidence in relation to property matters at paragraphs 34-39 of his first affidavit. In particular, the Court notes paragraph 34 where the husband states:
“When we started living together, neither Ms Lai nor I had many assets apart from second hand cars and a few pieces of furniture. We were students but we had part time jobs to support ourselves. My parents were very supportive and encouraging and whenever I needed extra money they always gave it to me. In 1995 I received a scholarship which gave us a living allowance and paid my fees whilst I completed my Ph.D. Most of our assets were acquired during the relationship.”
The husband’s second affidavit was filed on the day prior to the first day of the hearing. The late filing was, not surprisingly, the subject of an objection by the wife. After due consideration I allowed the husband to rely on his second affidavit, but also allowed the wife to give her reply to its contents in her examination in chief.
The husband outlines further matters in relation to the children in paragraphs 4-8 of his second affidavit. He details more comprehensive evidence in relation to property matters in paragraphs 9-40 of his second affidavit. In respect of parenting matters, and in particular Trevor Holland’s report, the husband states at paragraph 8:
“I have read the Family Report prepared by Trevor Holland and I do not agree with his recommendation that the children only spend 4 or 5 nights per fortnight with me. When he prepared that report the children had only spent time with me overnight for one month and they had not had any holiday time with me. Over the Christmas holidays it was clear to me that the children were happy, secure and relaxed staying with me for a week at a time. There was no difficulty with changeover and the transitions from one home to another were very smooth. I consider that it is in the best interest of the children that they live with Ms Lai and me on a week about basis.”
In relation to financial contributions, the husband now asserts in his second affidavit that he made substantial contributions to the acquisition by the parties of land at Property V (which became the former matrimonial home). More particularly, the husband now asserts that he brought funds into the relationship from the “numerous jobs” he had whilst he was studying.[3] The husband claims that his US-based parents gave him approximately $30,000 to assist with his studies[4], and denies that the wife supported them both financially[5]. The husband also refers to a scholarship he received in 1994 from the company [C]to complete his honour’s degree[6]. The husband also states that he received scholarships totalling $17,500 per annum to undertake his PhD studies[7]. Moreover, the husband now asserts that he used his own funds to purchase 5,000 [C] shares in 1994 and 2,200 Telstra shares in 1997. The husband further asserts that the [C] and Telstra shares were sold in 1998 for a substantial profit and that the proceeds ($56,000) were used to finance the purchase of the block of land that become the former matrimonial home ($88,000)[8].
[3] Husband’s second affidavit, paragraph 10.
[4] Ibid, paragraph 11.
[5] Ibid, paragraph 9.
[6] Ibid, paragraph 12.
[7] Ibid, paragraph 14.
[8] Ibid, paragraphs 18-23.
At paragraph 24 of his second affidavit, the husband states:
“In 1998 we commenced building an A V Jennings house on the land at a cost of $145,000. The total house and land package was $235,000. The house was completed in May 1999. We took out a mortgage of $175,000 to cover the balance of the purchase.”
At paragraph 25 of his second affidavit the husband denies that the wife made all the mortgage repayments in respect of the former matrimonial home and he asserts that his PhD scholarships, and the proceeds of his redundancy package (from [P]), were used as well[9].
[9] Ibid, paragraph 27.
At paragraph 32 of his second affidavit, the husband states:
“In 2003/04 Ms Lai asked me to financially sponsor her elderly parents so that they could migrate to Australia. I agreed to do so and I deposited $14,000 in CBA Term Deposits for the bonds required by the Australian Government. In addition we paid $50,000.00 to the Australian Government to cover their health care costs for 10 years. The bonds are refundable but the $50,000.00 for health care costs is not.”
At paragraph 39 of his second affidavit, the husband states:
“In February 2007 Ms Lai and I established a Family Trust known as [A] (Aust) Pty Ltd to invest on the stock market. We drew down on our mortgage and over the next few months we invested $442,345.00 in various shares. Those shares are now worth $91,084.00. I refer to paragraph 49 of Ms Lai’s affidavit and deny that I made the decisions concerning the selection of the shares. Ms Lai was the “business” member of the family with the skill and expertise to make investment decisions. I am [employed in the scientific industry], not a share market expert.”
At paragraph 40 of his second affidavit, the husband states:
“In June 2007 we set up our own self managed superannuation fund known as [A] Investments Pty Ltd. We invested $90,000.00 in shares which now have a value of $26,752.00. We also have $11,800.00 in cash in the superannuation fund which has total assets of $38,552.00.”
The respondent wife’s evidence
In her response, the wife relied upon the following documents and affidavits:
· The response of the wife filed 25 November 2008;
·The affidavit of the wife sworn 12 November 2008 and filed on 25 November 2008;
·The wife’s financial statement sworn on 28 October 2008 and handed up in Court on 29 January 2009 (unfiled); and
·Outline of Case document handed up in Court on 9 April 2009 (unfiled).
The wife asserts at paragraph 8 of her affidavit that she financially supported the husband and herself while he was studying full time during the 1990s. At paragraph 10 she admits that the husband’s parents did give the husband approximately “$10,000” at the start of his university studies to assist with fees. At paragraph 11 she states:
“In March 1998 we purchased a block of land. I had saved the amount for the deposit and we took out a bank loan for the remainder. The bank loan was approximately $175,000. My salary from my job was paid directly into the mortgage account to pay for the mortgage repayments.”
The wife provides details about the children’s routine and activities at paragraphs 20-24 of her affidavit and again in paragraphs 40-41. At paragraph 42 the wife asserts that she is able to manage her business in addition to the full time care of the children. She specifically states:
“I employ a work assistant, full-time, who can take messages for me from clients if I am either caring for the children, taking them to after school activities or otherwise engaged. I schedule my clients around the children’s schooling and their holidays. My parents, who are now permanent residents and who live with me are able to assist with the household tasks and the children. Both the children have a close and loving relationship with their grandparents.”
At paragraph 43 of her affidavit the wife details her view that the husband would not be able to maintain the full time care of the children. She specifically states:
“The Applicant’s work is very demanding. He [employed in the scientific industry]. During his study period he needed to go to the laboratory every day and frequently at night to monitor his experiments. He usually returned home late in the evening, both when he was working and studying. In addition, it is necessary for him to attend both interstate and overseas conferences. When attending these conferences he can be away for days at a time. His work hours were very long and definitely not 9.00am to 5.00pm. Before separation, he usually was able to get home by 7.00pm but was required to work later and at times needed to return to the laboratory late at night, often around 10.00pm etc.”
At paragraph 50 the wife asserts that the monies borrowed from her brother in May 2007 (and totalling approximately $57,239.00) have now been repaid.
The report writer’s evidence
Mr Holland was the subject of cross-examination from counsel for the husband, Ms Swart, and counsel for the wife, Ms Piggott, in relation to his report.
Ms Swart opened her cross-examination by asking Mr Holland about the report of Dr. Dr G:
“You've had the opportunity of reading Dr G’s (sic) [Dr G’s] opinion on that?”
“I have, yes.”
“I think I can inform you that the parties have agreed to reduce [X]'s activities as a result of that recommendation from Dr G (sic). Is that good news to you?”
“Yes, it is good news. One of the reasons why I recommended that this type of WISC assessment take place is that the WISC is a really good comprehensive evaluation tool for determining children's behavioural and educational needs, and at the level at which I did the assessment I had a sense that [X]…and I had a sense that it was quite overwhelming for him and there was too much of it. So it is a relief to see that that's being reduced, yes.”
“Essentially, Dr G's (sic) opinion indicates that the father's concerns that he was raising were justified about the level of extracurricular activity?”
“Yes, I'd say they were justified. His concerns in relation to that were justified, yes.”
“In this particular occasion, that issue has been resolved by calling in the expert?”
“Yes.”
“The wife has now accepted the opinion of the expert and agreed to try that. Do you have any suggestions as to how these two parents can resolve those type of conflicts themselves in the future?”
“I guess what is one of the ways that I've been suggesting to couples in this post separation period is that they go through Centrecare or Relationships Australia and they firstly have a joint assessment in which a mediation counsellor identifies the issues. They may even provide a copy of the report and the outcomes from this particular case. Then they use that person on a needs basis so that the first port of call is they attempt to resolve and communicate with each other around differences and when they don't they have a person that knows them, that's done some preliminary assessment for them, and for $45 or $60 or I think it's means tested they can go to see that person and have some level of mediation carried on between them.
That's for couples that are not going to move through and move onto a more cooperative basis, so some formal counselling process which they have access to on a needs basis. But it's not a counselling process; it's a mediation process for couples that just can't get to the next step.”
“Do you think that that program would be suitable for these parents?”
“I think so, yes, if it's going to stay at its current level where every issue needs to be – or if we're going to avoid continually coming back to court over issues, then yes, I think some sort of third person that's objective that can communicate with them is going to be helpful.”[10]
[10] Transcript, 9 April 2009, page 27 line 26 to page 28 line 24.
Ms Swart then asked Mr Holland a series of questions about the children’s attachments to their mother and father. Mr Holland conceded that, while in his view the children were primarily attached to their mother, they were nonetheless securely attached to their father.
Mr Holland commented:
“…the conclusion I came to when I did my assessment and observation of Mr Lai (sic) with the children was that…Dr Zang, sorry, is that the children were securely attached with him. That is, that… they were able to move between both parents with a relative degree of security without feeling too anxious, without being too distressed by the process, even though their parents had separated, that they had a warm affectionate regard for each other, that there was obviously evidence there of… the father having had significant involvement with the children, and I had no qualms about the children spending extra time with Dr Zang at all…”[11]
Ms Swart then asked:
“The children's ability to separate from their mother would also be something that they had learned to do, given the extensive involvement of their elderly grandparents?”
“Absolutely. They had two busy parents that were career oriented. The children have experienced a lot of extra-curricular daycare and so on. They've had extended family looking after them. These children are used to being in a system of care that - that can provide adequately for them, and because they've got the security of attachment with both parents, it makes - that makes it easier for them to go to other people, and that's what we mean by the secure attachment. It - it enables them to move out into the world a lot easier and with less anxiety.”[12]
[11] Transcript, 9 April 2009, page 32, lines 31 to 42.
[12] ibid, page 32 line 45 to page 33 line 9.
Ms Swart then asked questions in relation to Mr Holland’s recommendation to increase the time spent between the children and the father to five nights a week from November 2009. Ms Swart specifically asked.
“Why not just plunge into the swimming pool now and go in the deep end?”
“Well, I'm not totally opposed to that idea, and I guess I might be acting rather conservatively, but he [referring to [Y]] is a little boy and I guess one of my inclinations is to move judiciously and - and slowly in terms of incrementally getting children used to it, and I, and I think he's four years old. I suspect he could probably do it because he's got [X] there and they have a nice warm relationship, and I think [X] would be supportive of him. …The clinician in me says, "Move slowly." If you move slowly and you provide a sound base, even though it's a conservative pace that you're moving at, then the likelihood is you'll get better outcomes anyway, particularly in terms of anxiety, which is what we're looking at, in the midst of parental separation…”[13]
[13] Transcript, 9 April 2009, page 33, lines 27 to 38.
Later Ms Swart asked questions about Mr Holland’s support for a ‘5-9’ arrangements as distinct from an equal time or ‘6-8’ arrangement and its impact on the children. Mr Holland replied:
“…I don't think it's so much the significant difference that they would experience between the care of their parents, but the psychological concept of them identifying one place as the central base and home, through which most things such as school, doctors, hospital appointments, run, so that there was a central point of organisation that the child psychologically and emotional identifies as, "This is where I live and I spend lots of nice - really nice time with my dad and I spend significant time with my dad, but this is where the organisation of my life fundamentally occurs." In a perfect world, we have two people that are cooperating and talking so there's a huge degree of cooperation and so on and so forth, and then it's not an issue about psychologically where the child needs to identify a single base, because everything is done conjointly in the perfect world with the perfect parents and the child doesn't so much need to identify with that consistency and single-base concept. But in this case, where we have parents where it looks to me unlikely that they're ever going to achieve to (sic) level of sophisticated cooperation and communication required, then I would say that we need to maintain for the children's sake a concept - a psychological and practical concept of a single base for them. I think the nine-five split does that.”[14]
[14] Ibid, page 35, lines 11 to 28.
Ms Swart asked Mr Holland questions about school holiday time, and in particular time during the long school holiday period. More specifically, she asked about whether there were advantages for these children in having a block-half of the long summer school holidays or whether it should be week about. Mr Holland responded:
“…Look, my professional preference for these, particularly with children under 10, is to have it weekabout. So that unless there is a specific holiday plan where, you know, mum or dad want to go to Queensland or go overseas and, you know, is going to be away and then they can do that by negotiated agreement - you know, "Yes, I don't mind if you do that and I'll have the" - the default position for me professionally is weekabout, particularly for children of four years of age, five years, or whatever. Two weeks is a long time to be away from your dad and it's a long time to be away from your mum when you're four or just turned five, in [Y]'s case. So the default position if there's nothing special going on is weekabout for me professionally, I think.”[15]
[15] Transcript, 9 April 2009, page 36, lines 30 to 40.
Mr Holland also reiterated his recommendation that in the event that either parent proposed to place the children during holiday time in more than two days of consecutive outside care, then the other resident parent should have the option of caring for the children on those days.[16]
[16] Ibid, page 37, lines 33 to 36.
Ms Piggott’s cross-examination of Mr Holland focused in particular on whether the parties generally had the capacity to make decisions for the two children, in particular long-term decisions, and whether their history of disagreement was promoting anxiety in the children:
“If Dr Zang does not acknowledge that Ms Lai is the primary caregiver and her - I'll use it - home should be the central base, is that likely to continue to – or cause underlying anxiety in the child?”
“Look, any level of unresolved parental conflict is going to provoke anxiety in these children regardless of where it comes from. That's why it is critically important that they come to understand and start cooperating and communicating at a more sophisticated and mature level because what they do by not doing that is predispose their children to potential anxiety disorders, both the children not just [X], and that's common across all separations.”[17]
Later Ms Piggott asked:
“Would it be correct to say that in your view these two parents have quite a long way to go before they are in a harmonious and cooperative parenting regime?”
“Yes. I mean, I can't say how long but certainly if we say, yes, the seeking of help is an early sign of that emerging then that's great. Is it at a level that's still not dangerous to the children? My answer to that would be, no, they have got a little way to go. How far I couldn't say.”[18]
[17] Ibid, page 43, lines 35 to 44.
[18] Ibid, page 44, lines 14 to 19.
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609 contains an authoritative statement about how reports such as the one written by Mr Holland should be treated in proceedings such as this case:[19]
[19] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615.
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182, In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”
In this matter the report writer’s evidence was tested and not found wanting in relation to his recommendations. In addition, as Mr Holland is the only independent and expert party in these proceedings, the Court must give the report and his oral evidence considerable weight.
The law in respect of parenting proceedings
The Court is asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine how much time [X] and [Y] will live, and /or spend time, with each of their parents. Although, there is no disagreement between the parties that each should have equal shared parental responsibility in their initial orders sought, the wife (through her Counsel Ms Piggott) sought an order for sole parental responsibility in final submissions.
Parenting orders are defined in section 64B of the Family Law Act 1975 (“the Act”). Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration.
Section 61DA incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility.
The Court is required under section 65DAA of the Act to consider whether [X] and [Y]’s best interests would be served by making an order that they spend equal time,[20] or alternatively substantial and significant time,[21] with each of her parents.
[20] Section 65DAA(1).
[21] Section 65DAA(2).
As previously discussed, the husband is seeking equal time. This is opposed by the wife who favours that [X] and [Y] spend substantial and significant time with the husband in accordance with the recommendations made by Mr Holland in the family report. Either outcome requires the Court to consider whether the children spending equal time (or substantial and significant time in lieu) with each of the parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
It is note worthy that section 65DAA(3) stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
In considering the reasonable practicality issue, section 65DAA(5) requires the Court to 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 an the child; and
(e) such other matters as the court considers relevant.”
The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
The Court will now turn to consideration of the factors in section 60CC(2), (3) and (4) of the Act in the context of this case. The primary considerations are set out in section 60CC(2).
The benefit to the child of having a meaningful relationship with both parents
It is clear from the evidence of the parties that both accept the need for [X] and [Y] to have a meaningful relationship with the other parent. The parties disagree, however, on whether the children should live with each of them on an equal time basis, as proposed by the husband. The wife proposes that the children live with her and spend time with the father during school terms each alternate weekend from Thursday afternoon to the following Monday morning. This proposal reflects the consent orders made at the conclusion of the hearing on 9 April 2009 and flows from a recommendation of the family consultant, Trevor Holland. That having been said, Mr Holland also recommended that the time the children spend with the husband during school terms should increase from November 2009 to each alternate weekend from Thursday afternoon to the following Tuesday morning. Consequently, while Mr Holland is not supporting the equal time arrangement as proposed by the husband, he is clearly recommending that the children (from November this year) spend more time with the husband than they do under the existing orders (i.e. more time that the wife is proposing).
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
There are no relevant issues of abuse or harm to the children or family violence in this case. Although the period leading up to and following separation is the subject of allegations by the wife of family violence, the Court notes that the intervention order proceedings commenced by the wife were resolved in April 2008 by an undertaking given by the husband.
As mentioned above, the additional considerations are set out in s.60CC(3).
The child’s expressed views and the weight those views should be given
[X] was interviewed by Mr Holland as part of the family report process. He appears to favour spending time with the husband from Thursday to Monday. Indeed, at page 5 of his report, Mr Holland describes [X] stating this view “quite emphatically”. Interestingly, Mr Holland also records (on page 5 of his report) [X]’s view that there has been a reduction in his parents arguing with each other since they separated and that represents (presumedly in Mr Holland’s words) “a positive aspect of the separation”.
Given [Y]’s age it was not possible or appropriate for Mr Holland to interview him as part of his family report.
The nature of the relationships between the child and each parent and other people important in their lives
There is no doubt that both the husband and the wife love [X] and [Y]. Both parties wish to maintain a close and continuing relationship with their children. In his family report on page 7, Mr Holland states:
“Both parties present as having a warm and intuitive rapport with the children, are child focused, and bring their established gender roles to their repertoire of parenting interaction.”
In his family report, Mr Holland on page 6 describes his observation of the wife with the children:
“Ms Lai came well prepared for the interview with snacks and activities she displayed the easy interaction style of the day to day carer and was attentive and structured around the children’s needs and play.”
Similarly, Mr Holland describes on page 6 his observation of the husband with the children:
“Mr Zang appeared practiced at containing [X]’s short attention span and successfully kept him on task and involved with [Y]. Both children responded warmly to Mr Zang and there appeared a warm and affectionate rapport between Mr Zang and the children.”
The relationship between the children and the maternal grandparents is also of relevance given that they have resided in the household with the children for many years. While the wife (in her “Relevant Legislative Provisions – children’s issues” document handed up to the Court) describes her parents’ relationship with the children as “close” and “loving”, the husband expressed some criticisms in his interview with Mr Holland. At page 3 of his report Mr Holland states:
“… Mr Zang maintains the maternal grandparents used bribery with sweets to manage [X]’s behaviour … Mr Zang alleges that Ms Lai and her parents began placing undue pressure on [X] to academically perform ….”
That having been said, it is clear from the evidence that the maternal grandparents have assisted the parties with the parenting of the children.
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the children and the other parent
At the time of the hearing the relationship between the parties remained strained. The Court believes that once this matter is finalised, in particular their property dispute, the parties will be better placed to focus on their respective futures to the benefit of their mutual parenting of [X] and [Y]. Perhaps indicative of an improvement in the parties’ relationship was the wife’s agreement (by the time the hearing resumed on 9 April 2009) to the husband’s request for a reduction in the number of [X]’s extracurricular activities. In any event, the Court agrees with Mr Holland’s recommendation (at page 10 of his report), that the parties attend a post-separation parenting course to further improve their ability to communicate with one another and make joint decisions in relation to the long-term welfare of both [X] and [Y].
As to the origin of their conflict, Mr Holland made the following comments in his evaluation on page 7 of his family report:
“It appears the parties fundamentally disagreed on the parenting approach to the children and the role of the maternal grandparents, and this has found its early expression in the disagreement over breast-feeding. Financial issues, gender roles, and career development also appear as underlying themes of conflict in the narratives’ (sic) of both the parties.”
As previously indicated, there is nothing in Mr Holland’s report that suggests that the husband should not have equal shared parental responsibility for the two children with the wife. That having been said, Mr Holland is not recommending (on page 10 of his report) an equal time arrangement but rather that ‘substantial and significant time’ be spent by the children with the husband. Mr Holland did explain, in answer to a question I asked about the configuration of a ‘5/9 arrangement’ he proposes to commence in November this year, that he did not propose that the 5 nights be broken up in any way because:[22]
“…the level of conflict and the lack of communication means that probably the point of stress and anxiety for the children is when these people came together to change over and therefore reducing the amount of change overs reduces the children's exposure to the level of parental disharmony and conflict. So that's why my preference in this case is for block time. It's that it provides the opportunity to reduce the amount of times the parents have to come together.”
Any changes in the children’s circumstances including the likely effect on the children of any separation
[22] Transcript, 9 April 2009, page 44, lines 33-39.
The proposals of both the mother and the father will result in changes to [X] and [Y]’s existing circumstances. Indeed, the parties have, by consent, adopted the recommendation of Mr Holland (on page 10 of his report) to increase the time the children spend with their father to “Thursday pm to Monday am”.
The Court agrees with Mr Holland that any further changes to the children’s future circumstances must be introduced gradually. That having been said, Mr Holland was certainly of the view (in his report, also at page 10) that the children’s time with their father should increase “from November 2009 Thursday pm to Tuesday am”. Under cross-examination, Mr Holland further explained this recommendation and indicated that the increase in time recommended from November 2009 was largely due to [Y] turning 5 at that time.[23]
[23] Ibid, page 33, lines 21-25.
As previously mentioned, on page 10 of his report, Mr Holland made two specific recommendations about holiday time to be spent between the children and the husband:
“3. The children to spend holiday time with Mr Zang for
5 consecutive nights in each of the term holidays 2009, and thereafter for half of all school holidays, with the long summer break of 2009 taken on a week about basis.
4. Where the children are required to spend more than two consecutive days in outside day care in any holiday period, the non-resident parent be given the first option of care. The parties to provide in writing their holiday care plans prior to the holidays commencing.”
The practical difficulty and expense of the children spending time with both parents
Both parties appear settled in their current environments and neither propose any specific changes in respect of the children’s physical circumstances. The parties currently live relatively close to one another (about 3 minutes by car).[24]
The capacity of each parent to provide for the child’s needs/ the attitude each parent has demonstrated to the responsibilities of being a parent
[24] Transcript, 29 January 2009, page 55, lines 10-14 (evidence of the husband).
The Court is satisfied that both parties have the capacity to provide for their children’s needs and generally demonstrated a positive attitude to the responsibilities of being a parent.
As I stated at the end of the first day of the hearing, the use of a communication book will assist the parties into the future in dealing with the responsibilities of parenthood, particularly in the reporting of minor medical complaints.[25] It was pleasing that the parties considered my comment and indicated to the Court (through Ms Swart for the husband) at the commencement of the second day of the hearing that both parties had agreed to implement the use of such a communication tool.[26]
[25] Ibid, page 56, lines 4-10.
[26] Transcript, 30 January 2009, page 58, lines 10-16.
The maturity, sex, lifestyle and background of the child and the parents
The parties come from a similar ethnic background and share reasonably similar cultural values and ideals.
Any family violence (or any family violence order) involving the child or a member of the child’s family
There is no family violence (or family violence order) involving [X] and [Y]. Although, as previously mentioned, the period leading up to and following separation between the parties is the subject of allegations by the wife of family violence, the Court notes that the intervention order proceedings commenced by the wife were resolved in April 2008 by an undertaking given by the husband. Consequently, there is no relevant issue of family violence or any family violence order between the parties.
Unless both parties desire it, there is no need for the parties to have any face-to-face contact apart from changeovers in the short term. Once [Y] commences school next year there is no need for the parties to have any face-to-face contact during school terms. The parties can communicate using the recommended communication book, telephone (including text messages) and other written correspondence via email and post.
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
While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits both [X] and [Y], it is clear that the parties will require specific Court orders to assist them in their future parenting of their children.
As previously stated, the Court is confident that once these parenting and property proceedings are resolved there is little likelihood in any further proceedings being likely in the immediate future. That having been said, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.
It is also clear that any Court order requiring any changes to the children's current and ongoing circumstances should be introduced cautiously and gradually.
Any other fact or circumstance the Court thinks is relevant
There are no additional issues which the Court thinks are relevant.
Conclusion - parenting proceedings
The Court is not satisfied that the presumption of equal shared parental responsibility has been rebutted by the evidence and consequently the parties should continue to have equal shared parental responsibility for [X] and [Y]. The Court is not persuaded by the submissions made by Ms Piggott for the wife that her client should be given sole parental responsibility. As previously indicated, Mr Holland’s report did not recommend against equal shared parental responsibility. Moreover, the wife herself did not seek such in her Response but rather in her Counsel’s final submissions to the Court. While it is clear that the parties’ relationship remains strained, the Court is convinced that the parties have the capacity to communicate (and to negotiate) with each other in relation to the long-term care and welfare of [X] and [Y]. That having been said, the Court believes that the parties will benefit from completing a post-separation parenting course to better improve their mutual relationship. Consequently, the final Orders will include a requirement that both parties undertake such a course (unless they have already completed such a course by the time of this decision).
The Court agrees with Mr Holland’s recommendation that in the longer term, an equal time parenting arrangement would not be in the best interests of both [X] and [Y]. Consequently, the children will remain primarily living with their mother.
The Court also agrees with Mr Holland’s recommendation for the children to spend substantial and significant time with their father on a ‘5/9’ basis from early November 2009. In other words, subject to any further agreement between the parties, the children will spend time with their father during school terms (and until [Y] turns 5) each alternate weekend from Thursday PM until Monday AM, and following [Y]’s 5th birthday, during school terms, each alternate weekend from Thursday PM until Tuesday AM. The Court is satisfied that such a substantial and significant time arrangement will be of benefit to [X] and [Y]’s ongoing relationship with both their parents and is reasonably practicable. The Court is also convinced that the children’s best interests will be promoted by the small increase in substantial and significant time parenting to occur in the next three months.
In relation to school holiday periods, the Court is satisfied that it will be in [X] and [Y]’s best interests to spend half of the school holidays with each parent. In any event, the Court notes that, in paragraph 1(d) of the interim Orders made by the consent of the parties on 9 April 2009, the parties have now agreed that the children should spend time with the husband:
“for half of each school term holiday period, being the first half in 2009 and alternate years, and the second half in 2010 and alternate years.”
Subject to any agreement by the parties to the contrary, the final Orders should reflect the equal time school holiday arrangement in the current interim Orders, and be week about in the long summer vacation. The final Orders should also include a provision that if the children are required to spend more than two consecutive days in outside day care during any holiday period, then the parent that the children are not living with during that period is to be given the first option of caring for the children. In this respect, the parties will be required to provide each other with their holiday care plans in writing prior to the holiday periods commencing (and in default of agreement at least 14 days prior to the holiday periods commencing).
The final Orders should also provide that [X] and [Y] spend time with the husband and the wife at all times as agreed by the parties, and should include some specified special day arrangements in the event that the parties cannot otherwise agree. [X] and [Y] should, if possible, spend time with both their parents on their respective birthdays. The children should also spend time with their mother on ‘Mother’s Day’ and with their father on ‘Father’s Day’. Moreover, when possible, [X] and [Y] should spend part of ‘Chinese New Year’ with both parties (and ‘Christmas Day’ and/or other religious days if relevant). The children should also be able to speak by telephone to their father (if living with their mother), and to their mother (if spending time with their father) on days and times agreed between the parties, keeping in mind the children’s general daily routine.
The final Orders should also include obligations on both parties to keep each other informed about [X] and [Y]’s activities, health, education and development (preferably through the use of a communication book) and not to denigrate each other in the children’s presence. The parties will be required to ensure that the children attend all agreed extracurricular activities during the time that the children are in the respective care.
Lastly, the final Orders should include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to [X] and [Y]’s long term care, welfare and development.
The law in respect of property proceedings (‘the four steps’)
Section 79(1) of the Act provides that the Court may make such order as it sees fit altering interests in matrimonial property. The Court’s discretion is not unlimited and must be exercised in accordance with the factors set out in the legislation and more specifically, s.79(4). The preferred approach to the exercise of the discretion has been outlined in numerous decisions of the Full Court of the Family Court, most recently in cases such as In the Marriage ofHickey (2003) 30 Fam LR 355. That approach involves four interrelated steps:[27]
“First, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) and (c) and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the Court should identify and assess the relevant matters referred to in section 79(4)(d), (e), (f) and (g) (the other factors) including, because of 79(4)(e), the matters referred to in section 79(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution-based entitlements of the parties established at step two. Fourth, the Court should consider the effects of those findings and resolve what order is just and equitable in all of the circumstances of the case.”
[27] Monahan, G. and Young, L. (2006) Family Law in Australia (6th edition), Chatswood, New South Wales: Lexis Nexis, Butterworths, pp.498-499.
Step 1 – the asset pool
The parties provided the Court with an agreed statement of relevant assets and liabilities. This document was admitted into evidence with the consent of both parties and became ‘Exhibit A’. At that time, the Court notes that the parties had agreed that the former matrimonial home was valued at $610,000.
On 13 August 2009, the Court received a letter jointly signed by the party’s respective solicitors which stated:
“… at the commencement of the trial, the parties prepared an Agreed List of Assets valuing the former matrimonial home at Property V at $610,000.00. The parties have now each undertaken updated valuations and they have agreed that the value of the former matrimonial home for the purposes of the proceedings is now $647,500.00. On behalf of both parties, we now request that the agreed value of the home, being $647,500.00, be admitted into evidence.”
Today my Chambers received a letter from the husband’s solicitors dated 13 August 2009 enclosing an “Application in a Case” and an affidavit of Mr C sworn 13 August 2009 (both yet to be filed). The husband’s “Application in a Case” seeks the following:
“1. That the judgement in the matter of Mr Zang and Ms Lai No. MLC 9002/2008 be stayed.
2. That the trial of the matter be reopened to permit further evidence of the value of the former matrimonial home at Property V to be adduced by consent between the parties.
3. That the Agreed List of Assets prepared by the parties provided to the Court at the commencement of the trial on 29 January 2009, be amended to substitute the figure of $647,500.00 for the figure of $610,000.00 as the value of the former matrimonial home at [Property V].”
Given that both parties are in agreement, I have decided to accept the subsequent agreed valuation for the former matrimonial home (i.e. $647,500.00). Therefore, no stay of the judgement is needed.
Consequently, the Court is satisfied that the net property pool is as follows:
| Assets | Ownership | Agreed Value |
| Property V (“former matrimonial home”) | Husband & Wife Valuation: $647,500 Less mortgage: $414,000 | $233,500 |
| Family Trust shares | Husband & Wife | $88,148 |
| Term deposit | Husband & Wife | $50,000 |
| Bond for Wife’s parents | Husband | $14,000 |
| Tattersalls shares | Husband | $1,400 |
| Telstra shares | Husband | $1,500 |
| Camry motor vehicle | Husband | $2,000 |
| Mazda motor vehicle | Wife | $16,600 |
| Sub-Total | $407,148 |
| Superannuation | Ownership | Valuation |
| HESTA | Husband* | $17,547.24 |
| Joint self-managed superannuation | Husband & Wife | $37,283.00 |
| Sub-Total | $54,830.24 |
*In addition, the Husband has Unisuper superannuation with an agreed value of $10,695.70 that was accumulated post-separation.
In relation to the non-superannuation net asset pool, both parties have agreed that it be valued at $407,148.00.
In relation to the relevant superannuation policies, both parties have agreed that they collectively be valued at $54,830.24 for these proceedings.
Consequently, the Court finds that the net asset pool of the parties is valued at $461,978.24.
Step 2 – contributions
Both parties claimed to have made substantial contributions to the matrimonial property, in addition to contributions to the family as homemaker and parent.
Financial and non-financial contributions
Both parties (subject to some modification by the husband in his second affidavit) have given evidence that when their relationship commenced they had little in the way of assets to bring into the relationship. The parties disagree however on the extent of any financial assistance given by the wife to the husband to finance the parties’ living expenses and to enable the husband to stay in full time studies. The husband, for example, claims that his U.S. based parents gave him approximately $30,000 to assist with his studies, and that his studies were further supported by a scholarship he received from [C]. While the wife acknowledges that the husband’s parents did give the husband some monies to assist with his studies (on her evidence, $10,000), she did admit under cross-examination that the husband received financial assistance from his scholarships.[28]
[28] Transcript, 30 January 2009, page 129, line 15.
The parties also had a significant difference of opinion in relation to the husband’s claim that his funds were used in term deposits and to finance share transactions. While it is true that the relevant term deposits were deposited under the name of the husband, and while that may imply that he was the source of such funds, the wife’s explanation is equally plausible. That is, that their joint monies were deposited under the husband’s name for tax effective purposes given that her income, at that time, exceeded that of the husband’s.[29] Consequently, in the absence of evidence to the contrary the Court finds that the parties used their joint funds to purchase the block of land that was subsequently improved to become the former matrimonial home. The same logic may be applied to the payments in respect of the subsequent mortgage in respect of the former matrimonial home and in the deposits required by the Australian Government to financially sponsor the wife’s parents as migrants to this country.
[29] Ibid, page 130, lines 16-20.
While the husband refers in his evidence to the losses sustained by the parties in their investment of significant sums in share transactions, in early 2007, the Court is not satisfied that any adverse finding can be made against the wife given her [financial] backgrounds. The parties, like many other Australians, appear to have invested significant funds in equities that have suffered in light of the recent “global economic recession”.
Global or asset-by-asset assessment of financial and non-financial contributions
Neither party suggested to the Court that it adopt an ‘asset-by-asset’ analysis in lieu of a ‘global’ approach in relation to contributions. Regardless the ‘global’ approach is probably the most convenient and appropriate to the parties’ circumstances.
Contributions to the family as homemaker and parent
Despite some evidence that the husband has assisted in home-making and parenting duties over the years, the Court is satisfied that the wife was the primary carer for the children and homemaker for the parties from the time their cohabitation commenced until separation in 2008. She was also the primary carer of [X] and [Y] from the time of their births.
It is clear from the evidence that the wife not only provided financial assistance to the husband during his full time studies, but also encouraged his higher education. This decision to favour her husband’s career advancement, and the parties’ decision for her to be the primary carer of the children, to the detriment of her own career advancement, is a factor of relevance.
Step 3 - section 75(2) and related factors
The parties are both aged in their early 40s and both are in good health. In addition, both parties are well educated. The husband is a qualified [scientific industry employee] and has several higher degrees including a PhD. The wife is qualified [in the finance industry].
The husband is [in the scientific industry]. He currently earns approximately $78,000 per year. Despite being a contracted (rather than a tenured) employee, it can be expected, given the husband’s significant qualifications, that he will be able to seek well-paid employment into the years ahead.
The wife, in addition to being the primary carer of [X] and [Y], runs a relatively successful [financial] practice from her home. The wife asserts that she only earns approximately $40,000 per year from her [fiancial] practice. The husband disputes this, and asserts that the wife’s income from her [financial] practice is some $100,000 per year. In support, the husband exhibited (as annexure “JZ13” to his second affidavit) an undated business valuation prepared by Mr S (who was not the subject of cross-examination). The wife did admit under cross-examination, however, that her business expenses included payments made to her parents, allegedly for their work in the business. In any event, it can be expected that the wife will continue to operate her [financial] practice into the years ahead. Regardless, in addition to her earnings from her [financial] practice, the wife also receives family tax benefit and child support totalling approximately $19,000 per year.
In the absence of evidence to the contrary, the Court finds that the parties have similar earning capacity.
In light of the fact that the wife will be the primary carer for the children into the years ahead, and given that she is self-employed in a small part-time [financial] practice, the Court is satisfied that an adjustment of 10% in favour of the wife under section 75(2) is warranted given the parties’ respective circumstances into the foreseeable future.
Final step – justice and equity
Section 79(2) of the Act provides that:
“The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
This case concerns an 18 year relationship (including a 12 year marriage) where the children will be primarily parented in the foreseeable future by the wife (i.e. on a ‘9 nights per fortnight’ basis). It also concerns additional contributions made by the wife during the relationship whereby she financially supported and encouraged the husband through his higher degree university studies, culminating in the award of a PhD. It is also clear that the wife made some personal sacrifices to her own career advancement, not only to support the husband’s career advancement, but also to raise the two children of the marriage.
Conclusion - property proceedings
The Court is satisfied that the wife’s financial contributions to the matrimonial property pool and her contributions to the family marginally outweigh that of the husband. The parties appear to have made only minor (and relatively equal) contributions in respect of their non-financial contributions to their property.
Overall, the Court is satisfied that on a contributions analysis, the division of property should be 47.5% in favour of the husband and 52.5% in favour of the wife.
In addition, as previously stated, the Court is satisfied that a further adjustment of 10% in the wife’s favour to reflect section 75(2) and related factors is warranted.
In other words, the wife should receive 62.5% of the net property pool and the husband 37.5%. Based on the agreed statement of relevant assets and liabilities the wife should receive approximately $288,736.40 and the husband should receive approximately $173,241.84.
As to the specific division of assets, this is somewhat complicated by the fact that the husband and wife, in their submissions to the Court, were both seeking to retain the Term deposit, the Tattersall shares and the Telstra shares.
There did appear to be agreement between the parties that the wife should retain the former matrimonial home as part of the outcome (the wife’s proposal) or by acquiring the husband’s relevant interest (the husband’s proposal). There also appeared to be agreement between the parties that each should retain their current motor vehicles as part of the outcome. Moreover, both parties appeared to accept the need to wind up the family trust and the joint self-managed superannuation fund, although in respect of the latter, the wife proposed to retain it.
The Court has determined that as part of the outcome the wife will receive and/or retain the following net assets (with their agreed values):
Former matrimonial home $233,500.00
Mazda motor vehicle $ 16,600.00
Bond for wife’s parents $ 14,000.00
Of course, as part of this outcome, the wife will be required to refinance and discharge the existing loan in relation to the former matrimonial home and indemnify the husband accordingly in relation to all relevant outgoings. She shall also be required to indemnify the husband in respect of any liability in relation to the immigration bond.
The balance due to the wife, namely $24,636.40, will be paid to the wife from the proceeds of the Term deposit.
The remaining assets, including the balance then remaining in respect of the Term deposit (after payment to the wife of her interest), will be transferred to, or retained by, the husband. In other words, as part of the outcome the husband will receive and/or retain the following assets (with their agreed values):
Family Trust shares $ 88,148.00
Term Deposit (balance) $ 25,363.60
Joint self-managed superannuation $ 37,283.00
HESTA superannuation $ 17,547.24
Camry motor vehicle $ 2,000.00
Tattersalls shares $ 1,400.00
Telstra shares $ 1,500.00
Of course, as part of this outcome, the wife will be required to transfer to the husband all her interest in the Family Trust shares and the Joint self managed superannuation fund.
In addition, the husband will retain all his interest in his Unisuper superannuation fund (which given the circumstances of its creation the Court finds is not relevant matrimonial property).
Unless already provided for in the above outcome, the wife will retain all property currently in her possession, free of any claim from the husband. This would include any monies standing to her credit in any bank or financial institution and any furnishing and household effects in her possession.
Similarly, unless already provided for in the above outcome, the husband will retain all property currently in his possession, free of any claim from the wife. This would include monies standing to his credit in any bank or financial institution, and any furnishing and household effects in his possession. In this respect, the Court notes that the parties entered into certain orders by consent on 9 April 2009 whereby it was agreed that:
“The wife deliver to the husband at 5pm Sunday 12 April 2009:
(i) his family ring
(ii) his family coin
(iii) the Chinese painting by friend of paternal grandfather
and the wife will endeavour to locate the family pendant and if found deliver to the husband forthwith.”
The final Orders will also provide that each party will be required to indemnify the other with respect to any debts and liabilities standing in that party’s sole name. This would include the wife indemnifying the husband in respect of the existing mortgage secured over the former matrimonial home.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Monahan FM
Deputy Associate: Matthew Raggatt
Date: 14 August 2009.
0